Judgment

N. H. BHAGWATI J. : This appeal with a certificate of fitness under S. 110 of the Code of Civil Procedure raises an important question as to the rights and remedies of a bailor in the event of non-delivery of the goods by the bailee.

2. The appellants carried on business in partnership in the firm name and style of "Ishwarsing Dhiansingh" and were the owners of two motor trucks, one bearing No. AWB 230 (V-8 Ford 1938 Model) and the other earring No. AWB 253 (Oldsmobile Model 1938). On May 4, 1942, the appellants entered into an agreement for the hiring out of these trucks to the respondent for imparting tuition to the military personnel. Rs. 17 per day per truck was stipulate as the hire and the agreement was terminable on one month s notice by either side.

3. Pursuant to the said agreement truck No. AWB 230 was handed over to the respondent on April 29, 1942, and truck No. AWB 253 was given on May 4, 1942. The respondent used truck No. AWB 230 from April 29, 1942, to July 31, 1942, excepting the period from June 4, 1942, to June 9, 1942, and truck No. AWB 253 from May 4 1942, to July 31, 1942, accepting the period from June 1, 1942, to June 9, 1942. On 29-6-1942, the respondent gave notice to the appellants terminating the agreement with effect from August 1, 1942, and asked them to remove the trucks on the expiration of that period. The appellant No. 1 attended upon the Officer Commanding 4 M. T. T. Centre, Kamptee at about 9 a. m. on August 1, 1942, for removing the trucks but they were not delivered to him by the transport in charge and by his letter of the same date addressed to the S. S. O., Kamptee, the appellant No. 1 put the above fact on record.

4. The respondent did not return the trucks to the appellants nor did it pay any hire charges to them. The respondent took up the position that the amount of hire had been paid and the trucks had been delivered by it to one Surjan Singh who was alleged to have been a partner of the appellants and thus entitled to receive the said payment and the delivery of the trucks in question. The appellants controverted the said position and claimed that the respondent was liable to pay the hire money as well as return the trucks to them.

5. On August 4, 1942, the appellants gave the requisite notice under S. 80 of the Code of Civil Procedure to the respondent and claimed (i) the hire money up to July 31, 1942, at R. 17 per day for AWB 230 from April 29, 1942, and for AWB 253 from May 4, 1942, and interest at 6 per cent on the hire money from the due date till realization (ii) damages at Rs. 17 per day per truck from and inclusive of August 1, 1942, onwards till delivery of possession and (iii) return of the trucks Nos. AWB 253 and AWB 230 in good running order with spare wheels, accessories and tools and in goods condition or in the alternative Rs. 3,500 being the price of the said two trucks.

6. The respondent failed and neglected to comply with the requisitions contained in the said letter with the result that on January 8, 1943, the appellants filed a suit against the respondent and the said Surjan Singh claiming the aforesaid reliefs together with future damages from the date of suit to the date of the delivery of the trucks and costs.

7. In the plaint as filed the cause of action was stated to be the failure of the respondent to pay hire money and the non-delivery of the trucks to the appellants by reason of their having been wrongfully delivered by the respondent to the said Surjan Singh. It was averred that the appellants were entitled to the return of their trucks or their value at the date of the decree. The appellants reserved their right to claim excess amount if the price of the trucks at that time was found more than what was claimed by them owing to the rise in prices thereof, by paying additional court fee. The action was one for wrongful detention and the appellants claimed a return of the trucks or in the alternative the price thereof at the date of the decree, paymen