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New Hindustan Bank Ltd. Vs. Amritsar Pathankot Transport Ltd. and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Case NumberExecution No. 22-L of 1953
Judge
Reported inAIR1958P& H348
ActsCode of Civil Procedure (CPC) , 1908 - Sections 145 - Order 21, Rule 43D
AppellantNew Hindustan Bank Ltd.
RespondentAmritsar Pathankot Transport Ltd. and ors.
Appellant Advocate B.R. Tuli, Adv.
Respondent Advocate C.L. Aggarwal, Adv.
DispositionApplication allowed
Cases ReferredCarter v. Hyde Park Hotel
Excerpt:
.....under article 227 of the constitution. - the body of the bus was in a badly damaged condition. the condition of the other vehicle was also stated to be very bad and some of the parts were missing. 1. is the petition maintainable ? 2. are the attached vehicles in the same condition in which they were at the time of their attachment ? 3. what is the extent of the liability of the respondents with respect to the vehicles ? 4. whether the respondents are entitled to any charge for safe custody of the vehicles ? if so, what is the amount ? issue no. 5. so far as the other vehicle pna-1114 is concerned, i am of the opinion that the bank has failed to prove that that vehicle suffered any damage due to wilful negligence of the sapurdar, or that it was in a better condition at the..........hosepipe, distributor cup, plugs, battery and gear lever.the body of the bus was in a badly damaged condition. it was also stated that at the time of attachment this vehicle was in running condition but on account of the damage caused to it, it could not be sold. the condition of the other vehicle was also stated to be very bad and some of the parts were missing. it was also stated in the petition that the value of pna-1097 at the time of pledge on 29-5-'46, was rs. 9,673/5/- and that of pna-1114 was rs. 6,622/4/-.respondent no. 3, master karam chand, the sapurdar, was liable to restore the vehicles to the same condition in which they were at the time of attachment. in the alternative it was prayed that the respondents should pay the value of these vehicles as stated above. the.....
Judgment:
ORDER

Tek Chand, J.

1. A payment order was passed on 13th of August, 1953 by Falshaw, J. for recovery of Rs. 17,928/12/6 with future interest at six per cent, per annum in favour of the Bank. It was also ordered that two vehicles Nos. PBA-1097 (present No. PNA-1097) and PBA 1114 (present No. PNA-1114) liable to be sold and the proceeds made available towards the amount due to the Bank from defendants Nos. 1, 2 and 3.

It was also ordered that defendant No. 4, the New United Transport Company Limited, should be liable for the plaintiff's costs. Letters Patent Appeal against the above order was dismissed on 25th of September, 1956, vide L. P. A. No. 84 of 1953. During the pendency of the Letters Patent Appeal order had been obtained staying the execution of the payment order. The two vehicles PNA-1097 and PNA-1114 were attached on 18th November, 1953.

One Master Karam Chand, Managing Director of the New United Transport Company (Private) Limited was made the sapurdar and the sapurdnama, Exhibit R-4, was duly executed by him. On I8th of November, 1953, the value of the two vehicles was mentioned as Rs. 5,000/-. The attached vehicles were kept at the place of the judgment-debtor and a security deed was executed. In this document also the value of the two vehicles was assessed at Rs. 5,000/-.

After the dismissal of the Letters Patent Appeal, the Bank took out execution for the sale of the two vehicles. It is stated that the vehicles could not be sold in view of their unserviceable condition. It is alleged that the deterioration had been caused due to the negligence of the sapurdar and that the vehicles were not in the condition in which they were when they had been entrusted to the sapurdar. On 24th of May, 1957 the Bank filed an application under Order 21, Rule 43-D and Sections 145 and 151 of the Code of Civil Procedure.

It was alleged that at the time of the attachment of the two vehicles, bus No. PNA-1097 was in running condition and was being plied by respondent No. 1. The other vehicle PNA-1114 was said to be complete in all respects but that it had no body. It was then stated that when the vehicles were being sold a number of accessories and parts of the engine were missing. According to the report Of Shri Harbans Lal, Nazir, Exhibit D-H/1, vehicle PNA-1097 was without radiator, carburettor, hosepipe, distributor cup, plugs, battery and gear lever.

The body of the bus was in a badly damaged condition. It was also stated that at the time of attachment this vehicle was in running condition but on account of the damage caused to it, it could not be sold. The condition of the other vehicle was also stated to be very bad and some of the parts were missing. It was also stated in the petition that the value of PNA-1097 at the time of pledge on 29-5-'46, was Rs. 9,673/5/- and that of PNA-1114 was Rs. 6,622/4/-.

Respondent No. 3, Master Karam Chand, the Sapurdar, was liable to restore the vehicles to the same condition in which they were at the time of attachment. In the alternative it was prayed that the respondents should pay the value of these vehicles as stated above. The respondents in their written statement denied the above allegations and stated that the vehicles at present are in the same condition in which they were at the time of the attachment. They also raised several other pleas which gave rise to the following issues:

1. Is the petition maintainable ?

2. Are the attached vehicles in the same condition in which they were at the time of their attachment ?

3. What is the extent of the liability of the respondents with respect to the vehicles ?

4. Whether the respondents are entitled to any charge for safe custody of the vehicles If so, what is the amount Issue No. 1.

2. Order 21 Rule 43-D as amended by this High Court runs as under:

'Liability of Sapurdar. Any person who has undertaken to keep attached property under Rule 43 (1) (c) shall be liable to be proceeded against as a surety under Section 145 of the Code and shall be liable to pay in execution proceedings the value of any such property wilfully lost by him.'

3. Read with Section 145 it is manifest that no suit need be instituted against a Sapurdar. I am, threrefore, of the view that the first issue should be decided in favour of the petitioner and I find that the petition is maintainable.

Issue No. 2.

4. On this issue apart from the report of the Nazir there is the statement of Shri Hans Raj Bhalla liquidator to the effect that vehicle PNA-1097 was seen by him carrying passengers who were set down at the company's stand at Pathankot on the day on which he went to Pathankot in order to effect attachment. He was also there on the date of the sale and himself noticed that parts of the vehicle were missing and that the condition of the body had deteriorated.

He also stated that the bonnet of the vehicle had been damaged. Witnesses appearing for the respondents have denied that vehicle PNA-1097 was in a running condition at the lime of its attachment. It is stated on their behalf that the registration certificate relating to this vehicle was deposited in the office of the Deputy Commissioner with the Motor vehicles licence clerk on 25-12-1953, and R. W. 1, Mohindar Partap Singh Bedi, the Arms and licence Clerk, has appeared to depose to that tact.

It does appear to me that after 25-12-1953, PNA-1097 was not in use. In the case of PNA-1114, the registration certificate had already been deposited in the office on 1-4-1952. R. W. 7, the Accountant of the New United Transport Company (Private) Limited has stated that the vehicle PNA- 1097 was not in service after 27-7-1953. I prefer to believe the statement of DHW/1, Hans Raj Bhalla, who has seen the vehicle being plied for hire on 18-11-1953.

If this vehicle had been withdrawn from service on 27-7-1953, the company would have deposited the registration certificate much earlier and would not have paid the fee for the last quarter of 1953. The attached vehicle has no doubt substantially deteriorated and I think this deterioration was not in consequence of natural wear and tear but as a result of the negligence of the Sapurdar. I believe what is stated in Exhibit DH/1, the report of Harbans Lal Nazir, which is attested by the liquidator Shri Hans Raj Bhalla.

There is a note in the handwriting of the Nazir to the effect that Master Karam Chand, the Sapurdar, was asked to sign the report as an attesting witness, but he declined to do so. There is nothing to suggest that the report of the Nazir supported by the statement of Shri Hans Raj Bhalla is false, I can understand that the battery of the bus or its tyres and tubes may become unserviceable on account of the vehicle remaining in the open for a long time, in this case for some years, but that will not account for the missing parts and other damage done to it.

5. So far as the other vehicle PNA-1114 is concerned, I am of the opinion that the Bank has failed to prove that that vehicle suffered any damage due to wilful negligence of the Sapurdar, or that it was in a better condition at the time of attachment. I find the second issue in favour of the petitioner and hold that the condition of PNA-1097 had deteriorated after the date of attachment owing to negligence and dereliction of duty on the part of the Sapurdar for which I hold him liable.

6. Before leaving this issue, I may deal with another kind of damage which has been referred to in the arguments of the learned counsel for the official liquidator. By order of Falshaw J., dated 13th of August, 1963 it was held that the two vehicles in question were liable to be sold and the proceeds thereof were to be made available towards the amount due to the Bank. The defendants unsuccessfully sought reversal of this judgment by instituting Letters Patent Appeal.

On 2nd of December, 1953, an order was obtained from Harnam Singh, J. that 'Lorries should not be auctioned pending the disposal of the Letters Patent Appeal'. The consequence of this application and of the order obtained in it, was that the two vehicles could not be sold till the disposal of Letters Patent Appeal, which was dismissed on 25th of September, 1956. During this period, there is no doubt that their condition deteriorated substantially.

R. W. 8, Karam Chand sapurdar, when asked, could not give any idea of the value of the vehicles in their present condition, as according to him they were not marketable. The defendants cannot escape their responsibility for the vehicles becoming unmarketable. They moved the Court for stay of execution proceedings during the pendency of the Letters Patent Appeal.

7. This is not a case in which the defendants can take shelter behind the maxim 'actus curiac neminem gravabit' (an act of the Court shall prejudice no man). The deterioration of the vehicles cannot be said to be due to the act of the Court. It is not a case of a wrong having been inflicted by a judicial Tribunal for which the law supplies no remedy. In this case, deterioration caused to the vehicles is not attributable to the act of the Court but to the act of the party moving the Court.

The damage caused owing to the delayed disposal of the vehicles could have been mitigated if the defendants had sought the permission of the Court to sell the vehicles and the sale price could be paid to the Bank on its furnishing security for refund of the amount in case the Letters Patent Appeal had been allowed.

8. The value of this vehicles on 18th of November, 1953 was admitted by R. W. 8 to be Rs. 5,000/-. The two were not assessed to separate valuation, but as vehicle No. PNA-1114 was a chassis without the body, its price must be considerably less. It will be reasonable to hold that on 18th of November, 1953, the price of PNA-1097 was Rs. 3,000/-and that of PNA-1114, was Rs. 2,000/-. It is not denied that the present price is almost equivalent to the price of scrap iron, and for this the defendants are to blame. Issue No. 3 :

9. The determination of the extent of the liability of the respondents with respect to the damage, is an important but a difficult matter. There is no evidence, forthcoming, on the record from which quantification of damage, in terms of money, may be possible of ascertainment. The loss sustained has not been itemised in this case.

10. I find myself in the same predicament which faced Lord Goddard, C. J. in Bonham-Carter v. Hyde Park Hotel, Ltd., (1948) 64 TLR 177 (A), when he observed :

'On the question of damages I am left in in an extremely unsatisfactory position. Plaintiffs must understand that if they bring actions for damges it is for them to prove their damage; it is not enough to write down the particulars, and, so to speak, throw them at the head of the Court, saying: 'This is what I have lost, I ask you to give me these damages'. They have to prove it.'

11. No expert has been produced to show the value of the missing parts and the cost of repairing the damage done to the other parts of the vehicle PNA 1097 in order to put it in a running condition. This evidence should have been available to the Bank if an effort had been made in that direction, but in the words of Mayne

'Difficulty in assessing the damages is no reason for refusing to award damages, or for awarding only nominal damages. Where the case is tried with a jury the jury assess the damages. The jury, however, can only award a lump sum or sums, for which judgment can be entered. * * * * Where the case is tried by a Judge alone, he assesses the damages.' (Vide Mayne on Damages, Eleventh Edition, page 610).

12. Real damages, as pecuniary compensation for general damage, can be awarded. General damage is the kind of damage which the law presumes, when a contract is broken or a tort is committed, to flow from the wrong complained of, and to be its natural or probable consequence. Thus general damages are those which the law implies in case of every violation of a legal right. (Vide Halsbury, Third Edition, Volume II, page 217).

13. In this case, I feel certain in my mind, that a damage to the Bank has resulted on account of the wrongful acts of the sapurdar and the Company of which he is the Managing Director. In such a case a mere uncertainty as to the amount of damage and the difficulty in quantifying damage, in terms of money cannot preclude the right of recovery. This is certainly true, where from the nature of the case, the amount of damage is not capable of exact and accurate proof.

In this case, the vehicles were old. It is not possible to determine with certainty the pecuniary value of the missing parts or the monetary compensation resulting on account of delay in their disposal. Even where the tort is of such a nature so as to preclude the determination of the amount of damage with certainty, the Courts have to draw just and reasonable inference, although the deduction is based only on approximation.

14. In the light of the above observations, I assess the amount of damages at Rs. 2,000/-. Out of this amount, Shri Karam Chand sapurdar, shall be liable to pay Rs. 500/- as damages which resulted on account of the value of the property wilfully lost by him as contemplated by Order 21, Rule 43-D of the Code of Civil Procedure. Rs. 1,500/- shall be payable by the New United Transport Company, (Private) Limited, Pathankot, the first respondent. The Bank will be entitled to the sale proceeds of the two vehicles which it may sell. Issue No. 4.

15. This issue has not been seriously pressed. All that was said on behalf of the respondents was that they were entitled to a portion of the rent of the premises where they were kept and the Bank should also contribute towards the pay of the chowkidar. It was no part of the term of the sapurdar to insist upon a term whereby the decree holder had to pay for the safe custody of the vehicles.

I do not accept the evidence of R. W. 3, Shri Karam Chand sapurdar, that he had to pay Rs. 10/- per mensem to a chowkidar for keeping watch over these vehicles during the night. There are no receipts produced for the charges paid to the chowkidar. There is no credible proof forthcoming on the record that any charges had been incurred for their safe custody. Moreover, it is most unlikely that a chowkidar would be kept for taking care of these vehicles. This claim seems to be only in the nature of a counterblast. I decide this, issue against the respondents.

16. In the result, I allow the application made under Order 21, Rule 43-D, read with Sections 145 and 151 of the Code of Civil Procedure. The Bank shall be entitled to its costs against both the respondents, which are assessed at Rs. 150/-, Rs. 100/- shall be payable by respondent No. 1 and Rs. 50/- by respondent No. 2.


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