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High Court Of Calcutta
S.P. Mitra, J.
Gambhirmull Mahabirprasad - Appellants
Vs
The Indian Bank Ltd. - Respondents
Decided on: Jun 17, 1960
Plaintiff entrusted defendant bank with 52 cases of hosiery goods for re-shipment from Rangoon to Calcutta. Defendant bank appointed defendant company as substituted agent for arranging re-shipment. Defendant company failed to arrange re-shipment and goods were lost due to enemy action. Plaintiff sued both defendants for damages.
Fact of the Case:
Plaintiff entrusted defendant bank with 52 cases of hosiery goods for re-shipment from Rangoon to Calcutta. Defendant bank appointed defendant company as substituted agent for arranging re-shipment. Defendant company failed to arrange re-shipment and goods were lost due to enemy action. Plaintiff sued both defendants for damages.
Finding of the Court:
Defendant bank was liable to plaintiff for damages as it failed to arrange for re-shipment of the goods and defendant company was also liable as it was the substituted agent of defendant bank.
Issues: 1. Whether defendant bank became the plaintiff's agent for a. re-shipment of the goods and b. in case of re-shipment becoming impossible for arranging their storage and insurance against war risk? 2. Was there any breach or default or neglect on the part of the defendant bank as alleged in paragraph 14 of the plaint? 3. Did the plaintiff waive its rights, if any, as alleged in paragraph 14 of the written statement of the defendant bank? 4. Did the agreement of agency become frustrated as alleged in paragraph 9 of the written statement of the defendant bank? 5. Is the plaintiff entitled to the refund of money as stated in paragraph 18 of the plaint? 6. Was there any agreement as alleged in paragraph 10 of the plaint? If so, was such agreement frustrated? 7. To what relief, if any, is the plaintiff entitled?
Ratio Decidendi: 1. Defendant bank was appointed as plaintiff's agent for re-shipment of the goods and for arranging storage and insurance against war risk in case re-shipment became impossible. 2. Defendant bank breached its duty as agent by failing to arrange for re-shipment of the goods. 3. Plaintiff did not waive its rights against defendant bank. 4. The agreement of agency did not become frustrated as defendant bank could have arranged for re-shipment of the goods. 5. Plaintiff was entitled to a refund of the money paid to defendant bank for re-shipment charges and insurance premium. 6. There was an agreement between plaintiff and defendant company for re-shipment of the goods, but the agreement was not frustrated. 7. Plaintiff was entitled to damages from both defendants for the loss of the goods.
Final Decision: Decree in favor of plaintiff against defendant company for Rs. 8646.77nP and interest on judgment @6% per annum. Suit dismissed against defendant bank. Defendant company to pay costs of plaintiff and defendant bank.
1. IN this suit the plaintiff states that at the material time both the defendants had Branch Offices at Rangoon. The plaintiff was a constituent of the defendant Indian Bank Ltd. in Calcutta which was acting as the plaintiff's bankers and agents and was in-charge and control of three consignments of Hosiery goods belonging to the plaintiff. The goods were lying in Rangoon. The documents relating thereto were in the custody of the defendant bank. The goods consisted of 34 cases shipped per s.s. Hupeh; 16 cases shipped per s. s. Taksand and 2 cases shipped per s. s. Hong-peng.
2. ON and prior to the 3rd January, 1942 the plaintiff instructed the defendant bank in Calcutta, to arrange for the immediate reshipment of the goods, to Calcutta and if re-shipment was not possible to arrange for insurance and storage of the goods- The defendant bank informed the plaintiff that instructions to the said effect had been sent by them to their Rangoon Office on the 3rd January, 1942.
By letter dated the 7th January, 1942 Machinon Mackenzie and Co., the defendant No. 2 herein had at the request of the plaintiff undertaken to have the consignment of 34 cases re-shipped to Calcutta immediately on receipt of a deposit and the documents relating to the goods. On the 10th January, 1942 the defendant bank at Calcutta informed the plaintiff that its Rangoon Office had undertaken to arrange for the immediate re-shipment of the goods and if re-shipment was not possible to arrange for insurance of the goods against waf risks and to store the same. On the 10th January, 1942 the plaintiff handed over the letter of the defendant No. 2 to the defendant bank, at Calcutta to take further action in the matter. Pursuant to these instructions the defendant bank, by its letter dated the 10th January, 1942 to the defendant No. 2, requested the latter to arrange for the immediate re-shipment of all the three consignments from Rangoon to Calcutta and to instruct their Rangoon Office to act accordingly and to accept the documents relating to the goods. Pursuant to the plaintiff's instructions the defendant bank, at Calcutta by their letter dated the 10th January, 1942 to their Rangoon Office confirmed the previous correspondence in the matter and requested the latter to hand over the documents relating to the goods to the Rangoon Office of Messrs. Mackinon Mackenize and Co. immediately with instructions to re-ship the goods at once, if re-shipment had not already been made.
3. BY their letter to the defendant bank dated the 13th January, 1942 the defendant No. 2 undertook to arrange for re-shipment of the goods immediately on receipt of a deposit of Rs. 600/-. On the 14th January, 1942 the defendant bank on behalf of the plaintiff paid the sum of Rs. 600/- to the defendant No. 2.
4. THE plaintiff's case is that the defendant Bank, at Calcutta agreed with the plaintiff that it would arrange for the immediate re-shipment of the goods from Rangoon to Calcutta and would forthwith hand over the documents relating thereto to the defendant Mackinon Mackenzie and Co., and that if re-shipment was impossible the defendant bank would store the goods and would arrange for insurance against war risk. It is also the plaintiff's case that the defendant Mackinon Mackenzie and Co., at Calcutta agreed with the plaintiff that they would arrange for the immediate re-shipment of the goods on receipt of the documents relating thereto. THE defendant No. 2 retained the sum of Rs. 428/5/- out of the deposit of Rs. 600/- for their charges in the matter and remitted the balance of Rs. 171/11/- to the defendant bank. THE plaintiff has paid to the defendant bank the sum of Rs. 428/5/- as also the sum of Rs. 229/- for war risk insurance charges and Rs. 12/12/- for commission and postage.
The defendant bank committed breaches of its agreement with the plaintiff and of its duties as the agent of the plaintiff and conducted the business undertaken by it negligently and without skill and dil
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