Norman Macleod, Kt., C.J.
1. The plaintiff, the Secretary of State for India in Council filed this suit in the Resident's Court at Aden against the three defendants to recover Rs. 45,600 alleged to be due on a bond signed by the defendants, Exhibit P 1, on the 15th of March 1918. The defendants were anxwus to ex! Aden fifty bales of piece-goods to Djibouti on the A The Government were anxious that goods exported' should not be diverted from the port of destination anl into enemies' territory. Therefore they exacted exporters, the condition of the bond being that if th| MacUod, C.J. ahoQid produce a certificate from a proper and respom at the port of destination as to the arrival at such vessel and as to the due landing of the goods is qtit as to such goods not having been there reshipped or tti to some other port, or should give, in default of such good and sufficient reason to the satisfaction of the in whose name the bond was taken for the non-prod' such certificate, then the bond should be void. It w that the defendants became liable on their bond to theexfcent of Rs. 45,600, because they were unable to produce a certificate that the fifty cases were landed at Djibouti. They produced a certificate for forty cases only. Therefore they became liable on their bond unless they could give a good and sufficient reason for the non-production of the certificate for the remaining ten cases.
2. In the first Court the suit was dismissed, but on appeal to the Court of the Political Resident it was held that the onus of proving satisfactory reasons for the non-production of the certificate lay on the defendants, and the defendants had not discharged the burden of proof, The case was then referredto this Court under Section 8 of the Aden Courts' Act.
3. The plaintiff in the plaint claimed that he was entitled to succeed, because no certificate had been produced with regard fco the ten cases, and ulearly the Political Resident was right in saying that the onus lay on the defendants to give good and sufficient reasons why the certificate was not produced.' They might have shown that the goods were actually shipped on board complete as to their number and that it was absolutely inexplicable why they were not landed out of the ship at Djibouti, and it may very well have been if they had proved to the satisfaction of the Court that all the fifty cases had been shipped, the Court would have taken a different view. The trial Court as a matter of fact thought that the evidence of the ' shipment of fifty cases was sufficient to prove what the were required to prove. But I think that the Eplitieal was perfectly correct in holding that there was no evidence at that these ten cases actually arrived on board the SJ3. Cetria There was no direct evidence, such as the evidence of the wfiarfinger for the lighterman who actually put the goods on board, or the Ship's Officer who received the goods on board. There was only the presumption arising from the fact that the bill of lading produced was for fifty bales, but it must be noted that the bill of lading was made out without the mate's receipt. The defendants' evidence does not exclude by any means the possibility that these ten oases had not been diverted to some other destination, I think, therefore, that the defendants have become liable on their bond. But the defendants' counsel argued that although under the Exception to Section 74 of the Indian Contract Act they are liable to pay the whole amount mentioned in the bond it is clearly open to the Court to pass a decree for a lesser amount. I think it is clear that this bond comes under the Exception to Section 74 as the bond was given under the orders of the Government of India for the performance of an act in which the public were interested, It is not likely that when the Indian Contract Act was passed, the Legislature contemplated circumstances arising such as those in which this bond was exacted in this form from exporters. But clearly the defendants gave the bond for their producing a certificate that these goods had arrived at their proper destination, and that certainly was an act in which the public were interested, considering the state of War which existed when the bond was passed. But although the Exception says that the person entering into the bond shall be liable upon breach of the bond to pay the whole sum mentioned therein, that in ordinary legal language does not mean that the Court is bound to exact the whole of the liability to the extent of the amount mentioned in the bond and to pass a decree for the whole amount. Considering the nature of this bond it certainly would be most inequitable for the Court to pass a decree for the whole amount whatever the circumstances might be, leaving the defendant to the mercy of the plaintiff to relax what he was entitled to under the decree. Here in this case the whole of the terms of the bond have not been broken, but from the Advocate General's. argument it would follow that even if one bale had been missing and a certificate had been issued for forty-nine bales, still the Court would have been bound to pass, a decree for the plaintiff for the whole amount of the bond. There is no direct authority on the construction of the Exception. But generally when it is said that a person renders himself liable to a particular penalty in the-case of his having broken any condition or committed any breach of what lie was, obliged to do, then the meaning is that, the sum of the penalty is the total of the amount of his liability beyond which his liability cannot be stretched. It does not mean generally that all discretion is taken out of the hands of the Count mo that it cannot reduce the amount of the penalty according to the circumstances of the case.
4. We think, therefore, that in this case as the plaintiff' has shown that the certificate for ten cases was not produced, and the defendants have not shown why it was not produced, they are certainly liable on their bond to the extent to which they failed to perform its condition, and therefore it would be reasonable to exact one-fifth of the penalty.
5. The papers, therefore, will be returned to the Political Resident with this expression of our opinion.
6. Costs will be costs in the appeal
7. I agree.