Yogeshwar Dayal, J.
(1) This order will dispose of LA. 444 of 1976 filed by the plaintiff under order 40 rule 1 and Section 151 of the Code of Civil Procedure for appoiltment of receivers for taking immediate possession of the cylinders lying stored at various places mantioned in the application, as well as LA. 468 of 1976 filed on behalf of defendant No. 1 for staying operation of the ad-interim order dated February 26, 1976 passed in LA. 444 of 1976 filed on behalf of the plaintiff.
(2) The plaintiff had filed the aforesaid application for appointment of receivers during the pendancy of the suit filed by them, against defendant Nos. 1 & 2 for recovry of Rs. 2,21, 977.26 and for mandatory injunction directing the defendants to return and deliver back 584 cylinders and not to obstruct the plaintiff to have access to the said gas cylinders and to take them in its possession and also for prehibitory injunction restraining the defendants from transferring, disposing, dealing or using them in any manner whatsoever with the said gas cylinders. It was played in the alternative that in case mandatory injunction cannot be granted, a decree for delivery of the gas cylinders may be passed in favor of the plaintiff.
(3) The case of the plaintiff is that vide agreement of June, 1965, defendants I and 2 started purchasing carbonic gas from the plaintiff in the gas cylinders belonging to ihe plaintiff company against the deposit of security for due performance of the agreement. Defendants continued to purchase gas from the plaintiff up to March 1968 when another agreement dated April 1, 1968 known defendants 1 & 2. The terms of the agreement are in para 5 of the plaint. According to the terms of the agreement, the plaintiff is the owner of the cylinders and defendants 1 & 2 shall have no right, title or interest in the cylinders. They are to hold the same as trustees or bailees and shall not mortgage, the same or hypothecate the cylinders entrusted to them by the plaintiff and to return the same to the plaintiff in good condition at the factory premises of the plaintiff. The plainiiff shall have full and unrestricted access to the cylinders and take possession thereof froem any premises, place or places where the cylinders are lying stored. In addition to the said two agreements, another agreement dated October 1, 1970 known as 'short term agreement' without deposit was also executed between the plaintiff and defendants 1&2. The terms of the said agreement are also similar to the aforesaid two agreements. The relevant terms are reproduced in para 7 of ihe plaint.
(4) It is the further case of the plaintiff that defendants 1 & 2 have from time to time deposited a total sum of Rs. l,15,000.00 as security amount for due performance of ihe agreements for supply of gas. Defendants 1 & 2 on various occasions confirmed the statements of accounts pertaining to the amount relating to the price of gas supplied and the number of cylinders of different sizes and capacities lying in the custody. Paragraph 11 of the plaint gives the account of the cylinders of various cap: cities and sizes which defendants 1 & 2 confirmed to be in their possession as trustees or bailees for and on behalf of the plaintiff as on January 31, 1976.
(5) Defendants 1 and 2 acknowledged and confirmed a sum of Rs. 2.207,873.70 to be due from them to the plaintiff company as on January 31.1976. In paragraphs 17 to 21 of the plaint, the plaintiff vis-a-vis defendants 1 and 2 and also vis-a-vis defendants 3 to 11. It is pleaded that the cylinders belonging to the plaintiff are lying in the custody of the defendant as trust property of the plaintiff to which the defendants have no right, title or interest and that the defendants are liable as per terms of the said agreements or even otherwise to return back 584 cylinders of the plaintiff company at its factory at their cost and expense. In paragraph 19 of the plaint, it was expressly pleaded that the plaintiff has an absolute right to the immediate possession of the gas cylinders against all the defendants who were holding the same as trustees or bailees for and on behalf of the plaintiff and they are liable to return back the cylinders as soon as they are emptied and even otherwise when demanded back by the plaintiff as the same are being held by the defendants as trustees or baliees of the plaintiff. It was further pleaded that the cylinders mentioned in the list annexed as Annexure 'A' to the plaint are properties of the plaintiff and are lying in the custody of the defendants in trust as bailees or trustees.
(6) In paragraphs 20 and 21 of the plaint, defendants 3 to 11 are described as bailees or trustees of the plaintiff and also that the said defendants are to observe all the terms and conditions of the agreement between the plaintiff and defendants of the agreement between the plaintiff and defendants 1 and 2 and are bound to return the cylinders in their respective custody or power or possession to the plaintiff on the demand of the plaintiff. It is further pleaded that defendants 3 to 11 are also contractually bound to return the cylinders, bath under privity of contract or privity of estate. It it pleaded that telegraphic notices dated 20th and 21st February, 1976 were sent to defendants 3 to 11 for handing over the cylinders in their respective power and posse ion to the plaintiff company. In spite of the said notices, the cylinders were not returned to the plaintiff.
(7) In the written statement filed on behalf of defendants 1 and 2) the defense is taken in paragraphs 8 to 11 wherein it is pleaded that 500 cylinders out of the cylinders in dispute had been sold by the plaintiff to defendants 1 and 2 for a sum of Rs. l,15,000.00 . Another defense taksn is that .the plaint is liable to be rejected under Order 7, Rule 11 of the Code of Civil Procedure since the alternative relief for recovery of money valus has not been asked for in the suit.
(8) None of the other defendants, except defendant No. 6 filed the written statement. The defense of defendant No.6 which is proprietory concern of Shrimati Manmohan Kaur wife of Defendant No.2 is that 500 cylinders were sold by the plaintiff to defendant No.1 during the years 1965 to 1968 and that there is no agreement, whatsoever of the plaintiff with defendants 3 to 11. It is further pleaded by this defendant that the cylinders are given to defendants 3 to 11 filed with gas and till they are emtpied out, defendant No. 1 even has no right to take possession, much less the plaintiff who is a stranger to defendants 3 to 11. It was pleaded that the defendant hold the cylinders as bailee on certain terms and unless the purposs of bailment is completed, there is no question of taking their possession.
(9) At this stage, the facts alleged by defendants 1 and 2 in I.A. 468 of 1976 filed by them on March 1, 1976 immediately after passing of the ad interim order on I.A. 444/76 may be noticed. In this application defendants 1 & 2 took up the plea that there was an oral agreement to sell 500 cylinders for which Rs. 1,15,000.00 has been paid and that the sale was to be effected after the expiry of ten years from the date of import of the cylinders. It is significant that defendants 1 and 2 admitted that they were in possession of the cylinders in dispute but the said cylinders were in their possession under an agreement to sell. The statement of cylinders with them was filed as Annexure DA/3 wherein the credit balance of 464 cylinders was admilted.
(10) In the replication to the written statement of defendants 1 and 2 and defendant No. 6, the plainitiff has specifically pleaded that defendants 3 to 11 being the sub-bailees or otherwise are liable to return the cylinders to the plaintiff, both under contractual obligations and the obligations annexed to the bailment or trust made by the plaintiff in respect of the said cylinders. It is further alleged that defendants 3 to 11 took the cylinders from defendants land 2 knowing fully well that the said cylinders belonged to the plaintiff and that the gas contained in the cylinders was known as 'Sirdar Gas' and that the cylinders were entrusted to defendants 1 and 2 on bailment or trust.
(11) It will be noticed that defendants 1 & 2 in their written statement are claiming 500 cylinders by way of outright purchase for Rs. l,15,000.00 by an oral agreement, whereas in I.A. 468 of 1976 they are pleading an oral agreement to sell 5CO cylinders for which Rs. 1,15.000.00 had been paid and that the sale was to be effected after the expiry of ten years from the date of the import of cylinders. During the pendency of the application for appointment of receivers,
(12) Since the plaintiff had filed a mass of documentary evidence in support of its case that the gas cylinders were under its ownership and were given to defendants 1 & 2 as bailees, and the plea taken by defendants 1n the written statement and I.A. 468 of 1976 was contractdictory to each other I thought it fit to examine in court Shri Sohinder Singh, Defendant No. 2 who is also the proprietor of Sher-I-Punjab Trading Company, Defendant No. 1 Shri Sohinder Singh in his statement dated April 30, 1976 admitted the Letter (Exhibit P.1) dated December 1 1975 sent by them to the plaintiff admitting the oustanding amount of Rs. 22, 956.12 as on November 30, 1975. The said defendant also admitted the confirmation memo No. 362 dated December 4,1975. 'Exhibit P-2' whereby the defendants as on December 4, 1975admitted the various cylinders of the plaintiff lying with the defendant. The description and size of the various cylinders are mentioned in this memo. The defendant a' so admitted another -confirmation memo No 373 dated January 1, 1976 (Exhibit P-3) which admitted the cylinders in suit as ying with them to the credit of the plaintiff Another similar confirmation memo No. 377 dated February 2, 1976 (Exhibit P-5)was admitted by the Defendant. This confirmation memo also staves that a sum of Rs. 1,15.COO.00 was lying by way of deposit with the plaintiff company. This credit memo also states the number of cylinder of defendants 1 & 2 lying with the plaintiff to their credits. Defendants No. 2 also admitted his own letter dated February 14, 1974 (Exhibit P-6) which gives complete details of the various amounts lying with the plaintiff company by way of deposit, as security for the 500 cylinders. By this veiy letter, another sum of Rs. 70.000.00 was stated to be lying by way of security as 'short term deposit' with the plaintiff company. The defendant also admitted plaintiff's letter dated June 9, 1975 (Exhibit P-8) as also the confirmation contained therein that a sum of Rs. 25000.00 was lying as balance with the plaintiff company towards 'short term deposit' and also admitted another letter of the plaintiff dated June 6, 1975 (Exhibit P-9) containing also confirmation by defendant No. 1 that a sum of Rs. 1,15,000.00 was lying as balance of the long term deposit. Defendant also admitted their letter dated April 4, 1975 (Exhibit P-13) whereby the defendants requested the plaintiff to refund to them a sum of Rs. 25,000.00 lying as deposit towards the 'short term agreement' so as to enable them to refund an amount of Rs. 60,000.00 to M/s Pure Drinks, New Delhi and to take back 285 cylinders from them. It was further state I in this letter that in lieu of Rs. 25.000.00 from short term deposit, the defendant will return 100 cylinders that they will get from M/s Pure Drinks retaining the balance quantity of 185 cylinders for their own use.
(13) The plaintiff has also placed on record numerous order received by them directly from defendants 8 to 11 in pursuance of which various supplies were made by the plaintiff to defendants 3 to 11 dircet as well as the various cylinders returned by them directly from time to time in the normal course of business.
(14) Prima facie, after considering the aforesaid documents and pleadings, it transpires that 584 cylinders belonging to the plaintiff had been entrusted to defendants 1 & 2 while 120 cylinders belonging to defendants 1 & 2 in possession of the plaintiff to the credit of the said defendants. The defendants have also placed on record Annexure Da 3 filed with I A. 468 of 1976 showing that they have given a credit of 464 cylinders to the plaintiff after adjusting their own 120 cylinders while admitting 584 cylinders as per receipt No. 377 dated February 2, 1976. The case of the plaintiff, prima facie, is established from the confirmation memos Exhibits P2, P3 & P5.
(15) At the time of arguments, learned counsel for defendants 1 & 2 made the following submissions :
(1) Cylinders belong to defendants 1 and 2.
(2) No description or identification of the cylinders has been given by the plaintiff.
(3) The suit is not maintainable under Order 20, Rule 10 of the Code of Civil Procedure as alternative relief of money has not been asked for and in this connection the learned counsel referred to Form 32 of Appendix 'A' of the Code.
Learned counsel for defendant No. 6 supplemented the submissions of the learned counsel for defendants 1 & 2 asunder :
(1) This court has no territorial jurisdiction.
(2) The suit is had for misguide of cause of action under order 2 rule 3 of the Code of Civil Procedure.
(3) The Contract Act is exhaustive and according to Section 167, the plaintiff has to seek his remedy under Section 167 of the Contract Act.
(16) I have already referred to some of the documentary evidence produced on record which shows) prima facie whether the cylinders belong to the plaintiff or defendants 1 & 2. As noticed earlier, whereas the plea in 1.A. 468 of 1976 was merely of an agreement to sell afier expiry of ten years from the date of the import of cylinders the plea in the written statement was animprovement whereby outright sale was pleaded by the plaintiff in favor of the defendant. It is clear from the various confirmation memos on record that prima facie, there is no force in the submission of defendants 1 and 2 they are the owners. Not a single letter has been produced whereby this case may have ever been set up before the filing of the suit and even in this court, the plea is of oral sale.
(17) The next question is about the identification of the gas cylinders in dispute. The specification thereof has been given in paragraphs 11 and 18 of the plaint. However, it will be noticed that in the application which was made by defendants 1 and 2 immediately after the passing of the interim order (IA 468 of 1976), there was no plea of lack of identification. It is only when reply was filed to is 444 of 1976 that the defendants alleged that there was no identification mark on the cylinders and nor have the same been given in the plaint. To this the plaintiff filed rejoinder wherein it was staled :
'the cylinders belonging to the plaintiff are embossed as 'Sardar' or stenciled as 'Sardar's property.'
(18) It was also submitted that. the defendants know as to which 500 cylinders are in dispute and hence the question of lack of identification does not arise.
(19) In order to prima facie settle this controversy, since some of the cylinders were taken in possession by the joint receiver who were appointed in pursuance of my ad interim order dated February 26, 1976. I examined some of the gas cylinders. The cylinders contained full description and identification. In fact, not single cylinder, out of the cylinders taken into possession by the receivers, could be said as not being identificable. All the cylinders contained the embossment of 'Sardar' or stenciled as 'Sardar's property'. The embossment is such as could not have been made on the cylinders after they were taken into possession by the joint receivers.
(20) The submission relating to the non-maintainability of the suit under Order 20, Rule 10 of the Code of Civil Procedure and or not in compliance with Form 32 thereof will now be considered. Order 20 Rule 10 places an obligation on the court to state in the decree the amount of money to be paid as an alternative relief, if the delivery of the moveable property cannot be had. There is no statutory obligation by which the plaintiff is required to state the money value to be paid to him in the alternative, if the delivery cannot be had. This provision even in the case of courts is directory since the same power can be exercised by the executing court under order 21, rule 31(2) Form No. 32 of the Code is not mandatory. Order 6, rule 3 of the Code requires the pleadings to be informs and appendixes so far as applicable. The defendants have no right to compel the plaintiff to accept the money value of he moveable property and not the actual delivery thereof. The defendants in law are bound to deliver the moveable property which is in their possession if they are not the ownes thereof. The defendants cannot take advantage of their own wrong by no delivering back the moveable property in their possession which they are liable to return, and require the plaintiff to accept the money value thereof.
(21) Coming to the submission made by defendant No. 6 whether this Court has territorial Jurisdiction or not it may be noticed that no such plea was taken by defendants land 2. Defendants No. 6 also admits that it is liable to return back the cylinders after the same are emptied. The question then arises as to which is the place where the cylinders are to be returned by defendant No. 6 according its own case. On its own showing, defendant Nos. 1 and 2 are at Delhi where the cylinders had been supplied by the said defendants to defendants No. 6 and as such on the showing of defendant No. 6 itself, the cyclinders are to be returned by it at Delhi. It is a different matter as to what is the right of the plaintiff to ask for the return of the cylinders from defendant No. 6 which shall be dealt later but so far as the question of territorial jurisdiction is concerned, prima facie, this court has the territorial jurisdiction to entertain the suit.
(22) The plea as to misguide of causes of action is not taken in the written statement cr in the replies to the I.A. for appointment of receivers and I am, thereforee, not considering it at this stage.
(23) As to the right of the plaintiff to ask for the return of the cylinders from the defendants, the law is well settled. In case of sub-bailment, in Halsbury's Laws of England, Volume 2, in paragraph 1541 and 1585 it is observed as under:-
1541.'Sub-bailment. A third party who, with the bailor's consenti accepts the custody of chattels from a bailee towards the bailor. The nature of these obligations will, as in the case of an ordinary bailment.
Vary according to the circumstances in which and the purposes for which the goods are delivered. Thus if the sub bailment is for reward, the sub bailee will owe to the bailor all the dueies of a bailee for reward. The sub-bailee also owe, concurrently, the same duties to the original bailee, whose obligations to the bailor are not extinguished by the sub-bailment,
(24) The bailer has a light of action against the sub bailee for any breach of his duties either if the bailor has the right to immediate possession of the chattels or if they are permanently injured or lost
(25) 1585 'Bailor's Right to sue.-Where there has been a sub bailment the owner has concurrent rights with the bailee against the sub- bailee ; and if the owner has consented to the sub-bailment he will be bound by the terms of the sub-bailment contract.
'WHERE under a contract of bailment the owners of a chattel had deprived himself of his right to its use of possession for a time, as in the case of hiring for reward or of pledge, he cannot during that time bring an action for the act of conversion of the chattel unless the act of conversion adversely affects his reversionery interest or his absolute property in it, such as by destroying the chattel or prelimingntly injuring it.
(26) Where the bailee is merely a bailee during pleasure, as is the case in any gratutitions bailment, or a carrier, the bailor may, by reason of his property, sue for the conversion of the chattel a third party who wrongfully takes it out of the bailee's possession, for the property draws to itseif theri right of possession as an end has infect been put to the bailment.
(27) As the bailor can at any moment demand the return of the object bailed, he may he said still to have possession, throughout the continuance of the bailment, for he has the right to immediate possession and by reason of this right can exercise those possessory remedies which are available the possessir; the person having the right to immediate possession is frequently refarred to in English Law as being the possessor.
(28) Further, where the bailee, by a wrongful dealing with the chattel, has determined the bailment, all their, persons, however, innocent, who purport in any way to deal with the property in the chattel are guilty of conversion and liable to the bailor, unless protected by the Law relating to sales in market overt or by the Factories Act 1889.
(29) In Chitty on contract's Volume Ii, Chapter 2, in paragraph 169, it is observed as under :-
(30) The bailor may, however, have given the bailee actual or ostebsible authority to sub-bail the chattel to the third person, in which case the mere fact that the third person has taken possession of the chattel under the sub bailment will not constitute a tort as againse the original bailor, because the latter will be taken to have consented to the sub- bailment. Such authority to sub-bail may be inferred from, the parties' knowledge of ordinary commercial practices, e.g. that a carrier who carries goods over a long distance may engage a sub-contractor as his local delivery agent or that the post office may engage an airline to carry air mail. Where there is such actual or apparent consent to the sub bailing, their relationship of bailment may arise directly between the original bailor and the sub-bailee, hence, it would appear that the original bailor may take advantage of rules of bailment against the sub bailee, instead of relying on the ordinary rules of the law of tort. Thus by relying on the fact that there is a sub-bailment, the original bailor need not prove a duty of case owned by the sub-bailee under the ordinary tort of negligence, since the sub-bailees will owe him all the duties of a bailee.
(31) Similarly if the original bailor sues the sub-bailee in detineue or for conversion he need prove only that the act of the sub-bailee was wholly inconsistent with the sub-bailee's duties qua bailee or with his contractual duties under the contract of sub-bailment i.e. he will not be oblige .1 to prove conversion or detineue according to ordinary principles of the law of tort. Likewise, the sub-bailee will presumably be estopped from denying the original bailor's tIT is to the chattel by pleading to juttertii.'
(32) Looking at the course of business it, prima facie, appears that the plaintiff had given his consent to sub-bailment, and the defendants 3 to 11 also had the knowledge of the bailment in favor of defendants 1 & 2 and the condition of their bailment. It is not the case of defedant No. 6 that the cyclinders are still filled with gas and have not yet been emptied. The purpose for which sub-bailment was created has already been complied with.
(33) Coming to the last argument of learned counsel for defendant No. 6 that Section 167 of the Contract Act is a bar to the present suit, the provisions of Section 167 of the contract act may be noticed.
'IF a person, other than the bailor, claims goods bailed, may apply to the court to stop the delivery of the good to the bailor and to decide the title to the goods'.
(34) The very wording of the section shows that it is not applicable to the present case. The plaintiff is not a person other than the bailor. The plaintiff claims to be the bailor and in that capacity he is asking for the delivery of the goods in detinue. Even if the contention of Shri S.N. Kumar, learned counsel for defendant No. 6 is that the plaintiff is a third person vis a vis defendant No. 6 since its bailor are defendants 1 and 2, it again, has no substance. For the present, the allegations in the plaint are to be assumed to be correct and this is so, particularly, when the same have not specifically been denied by defendants 1 and 2 and the plaintiff is claiming the goods not only against defendant No. 6 but also against defendants 1 and 2 on the ground that the goods had been bailed by defendants 1 and 2 to the other defendants are sub bailees with his knowledge and consent; and defendants 1 & 2 and the other defendants are thus liable to deliver back the cylinders to the plaintiff. Section 167 of the Act, prima facie, comes into operation only in case of third person, other than the bailor claiming the goods and the bailee threatens to deliver the goods to its so-called bailor and the third person seeks the remedy in stoppage of the delivery of the goods to the so called bailor. Here, in this case no such plea has been taken by defendant No. 6 i.e. it is not the case of defendant No. 6 that the defendants 1 & 2 the so-called bailors, are demanding delivery of the goods and that it is bound to deliver the goads and shall deliver the goods to its bailors defendants 1 & 2 and is not bound to deliverthe goods to third party, vis, the plaintiff herein. Since defendant No. 6 does not assert its obligation to return back the cylinders only to defendants 1 & 2 nor does it asset a demand from defendants 1. & 2 for the return of cylinders from it, Section 167 cannot bs invoked. Even otherwise, according to the plaintiff there is sub bailment and according to settled law of sub bailment, the obligations to of the sub-bailee are the same as the obligations of the bailee. The terms and conditions for bailment are binding on sub-bailees.
(35) It was then argued by learned counsel for defendant No. 6 that Sec. 167 of the Contract Act is exhaustive. I am afraid, I can not agree with this submission. Section 167 does not deal with sub-bailment. In the Indian Contract and Specific Relief Acts by Pollock and Mulla, 9th Edition, it is relevant to note the commentary at pages 650 and 651 which is as under :- p. 650 'Bailment is necessarily dealt with by the contract act only so far as it is a kind of contract. It is not assumed that without an enforceable contract there cannot in any case be a bailment. Bailment is a relationship suigeneris and unless it is sought to increase or diminish the burdens imposed upon the bailee by the very fact of bailment, it is not necessary to incorporate it in the Law of Contract and to prove a consideration.'
P.651 'It (Bailment) is dealt with by the Contract Act where it arises from a contract but it is not correct to say that there cannot be a Bailment without any enforceable contract. Bailment can arise before a contract, letter alone being dealt with in the Contract Act. There can thereforee, be bailment and relationship of a bailor and a bailee in respect of specific property without there being an enforceable contract'.
(36) Again at page 665 of the aforesaid book, while giving commentary u/s. 151 of the Contract Act, the learned author under the heading 'Sub bailee right of the owner, against' has commented as under;-
'A sub bailee for reward owes to the owner all the duties of a bailee for reward. And the owner can sue the sub bailee direct for loss of an damage to the goods unless the latter is protected by an exception clause.'
(37) From the above authoritative commentaries, it appears well settled that sub-bailment can arise even if there is no contract and the sub-bailee is bound by the obligations of the bailee qua the bailor. The Contract Act is not exhaustive of all the cases of bailment. Only a part of the law relating to bailment has been dealt with by the law of contract. In any case, Section 167 has get no application whatsoever.
(38) It will thus be seen that the plaintiff has prima facie, a right to immediate possession of the gas cylinders in dispute as it was a case of bailment at Will and sub bailment in favor of defendants 3 to 11 with his knowledge add consent and this right of his requires to bs safeguarded during the pendency of the suit which may take sometime to be decided. The cylinders, otherwise, may be damaged or lost. The cylinders are imported-ones under the Actual Users' license, even after my ad-interim order, the receivers could take into possession only a few of the gas cylinders out of the 584 cylinders in dispute. For all these reasons, I find it is a fit case for making my ad-interim order dated February 26, 1976 appointing joint receivers, absolute, I.A. 444 of 1976 is accepted with costs and I.A. 468 of 1976 is dismissed.
(39) It is made clear that nothing stated herein should be taken as expression of final opinion on the merits of the controversy in the main suit which is yet to be tried.
(40) In the main suit the parties are directed to appear before the Deputy Registrar on August 9, 1976 for taking further directions in the suit.