S.N. Modi, J.
1. This is an appeal brought by the plaintiff, the Bank of Rajasthan Ltd. against the judgment and decree dated 26.3.60 passed by the District Judge, Pratapgarh, dismissing the plaintiff's suit against the defendants Nos. 1 and 2, the State of Rajasthan and the Manager, Government Ginning and Pressing Factory, Kapasin.
2. The relevant facts giving rise to this appeal are that in the year 1954 defendant No.3 Uttam Chand (who is now dead) as sole proprietor of M/S. Jailal Mohanlal carried on business in cotton at Kapasin. He got his cotton ginned and pressed into bales at the Government Ginning and Pressing Factory, Kapasin (hereinafter called as the 'Factory'). The practice of the factory from the time of the erst-while State of Mewar was to issue 'Tak Patti' that is storage receipt to the dealer in respect of his goods which remained with the factory in its godown. The further practice was that the dealer, who possessed 'Tak Patti'could get the goods mentioned therein endorsed or entered in the name of his banker called 'Marfati' and the factory issued a letter called 'Marfati Chithi' in favour of the 'Marfati' that is the banker. On the basis of 'Marfati' that is banker on the security of the goods entered in the 'Marfati 'Chithi' as the factory took liability that the goods entered or endorsed in favour of a 'Marfati', would be delivered only to that 'Marfati' and to none else.
3. The plaintiff's case is that it advanced money to defendant No.3 Uttamchand under a cash credit account at its Udaipur branch on the security of the goods endorsed in its favour under the following 'Marfati Chithis' duly certified by defendant No. 2, the Manager of the factory:
Description No. Tak Pattis Date Weight Chithi Marfati
of of of Tak Marfati Chithi
goods bales No. Ex. Patti Mds. Seers No. Ex. date
Cotton bales 15 150 Ex.6 25-6-54 Ex.6 25-6 64
-do-- 11 148 Ex.7 25-6 54 456 33 25-6 54 456 33
-do-- 34 134 Ex 9 16-6-54 Ex.8 18-6-54
--do- 36 141 Ex.11 22-6-54 Ex.10 22-6-54
--do- 107 103 Ex.13 15-5-54 509 12 15-5-54 509 12 Ex.12 24-6-54
Kapas Dher No. 9 183 4
4. The plaintiff presented the aforesaid 'Tak Pattis' and 'Marfati Chithis' and demanded the goods from the manager of the factory on 15, 1955 and subsequent there to, but he did not deliver the same. The plaintiff, therefore, brought the suit on 21.8.56 against the State of Rajasthan bying the owner of the factory as well as the Manager of the factory and Uttamchand for the recovery of a sum of Rs. 46,788/5/- which remained due to the plaintiff under the cash credit account of Uttamchand and in the alternative for the delivery of 203 bales of cotton and 183 maunds 4 seers of 'Kapas' of 'Dher' No.9
5. The suit was contested by defendadt No.1 the State of Raj and defendent No. 3 Uttamchand, who filed separate written statements. It may be mentioned here that Uttamchand died during the pendency of the suit and his legal representatives were brought on the record We need not point out the pleas raised by Uttamchand in his written statement as the trial court has passed a money decree for the suit amount against the legal representatives of Uttamchand and no appeal has been filed against that decree.
6. The State of Rajasthan admitted that 96 bales pertaining to 'Tak Pattis' Nos.134, 141, 148 and 150 as well as 'Dher' No.9 of 'Kapas' were stored in the godown of the factory and 'Marfati Chithis' in respect of them were issued by the factory in favour of the plaintiff. It, however, pleaded that 92 bales out of 96 bales had been delivered to the plaintiff and Uttamchand and the remaining 4 bales are lying with the factory. As regards 'Kapas' of 'Dher' No.9 it was pleaded that the same was ginned and pressed in presence of the representative of the plaintiff and the defendants cannot be held responsible for the wastage. In respect of 107 bales pertaining to 'Tak Patti' No.103 (Ex. 18) and 'Marfati Chithi' (Ex.12), it was pleaded that both these documents were issued by the factory. Another plea raised by the defendant was that the issue of 'Marfati Chithi' in favour of the 'Marfati' i.e. banker did not fasten any liabilities on the factory or the State for the delivery of goods mentioned therein. Several other plea were raised, but we are not concerned with them in this appeal.
7. The trial court decided against the defendants on the point relating to delivery of 92 bales and held that the defendants had failed to prove that 92 bales were delivered to the plaintiff by the factory. It decided in favour of the defendants in respect of claim relating to 'Kapas' of 'Dher' No. 9. On the point relating to 10/ bales pertaining to 'Tak Patti' No.103 (Ex.18) and Marfati' Chithi' (Ex.12) it was held that both these documents are genuine and both of them were issued by the factory. On the question of liability of the defendants to deliver the goods mentioned in the 'Tak Pattis and 'Marfati Chithis, the lower court held against the plaintiff It held that neither the factory nor the State was liable to return the goods to the plaintiff entered in the 'Marfati Chithis'. It accordingly dismissed the suit against the State of Rajasthan and the Manager of the factory.
8. In this appeal the only point urged on behalf of the plaintiff-appellant is that the court below committed an error in holding that 'Marfati' Chithi' did not fasten liability oil the State and the factory. Learned Counsel for the plaintiff did not challenge the finding arrived at by the lower court in respect of its claim for recovery of 'Kapas' of 'Dher' No. 9. The defendants on the other hand challenged the correctness of the finding arrived at by the lower Court in respect of the genuineness of 'Tak Patti' (Ex.13) and 'Marfati' Chithi' (Ex 12) as well as the finding relating to the delivery of 92 bales.
9. We first take up the points urged on behalf of the defendants. In the first place it is contended that the lower Court committed an error in holding that 'Tak Patti' Ex.13, and its 'Marfati Chithi' Ex.12 are genuine. In our Opinion the contention is well founded. Our reasons are as follows:
(i) A persual of 'Tak Patti' Ex.13 shows that it mentions on the top pressing Nos. 5261 to 5367.The defendants have producted' Tak Patti, book Ex. A/1. Counter-foils contained therein reveal that up to 19.5.54 pressing numbers up to 4304 only were reached. If that is so, it is clear that pressing numbers 5261 to 5367 mentioned in 'Tak Patti' Ex.13, which is dated 15-5-54 are clearly wrong, as by that time number had not reached.
(2) According to Ex A/1 the pressing Nos.5261 to 5367 were reached on 14-6-54 as these numbers are mentioned on 'Tak Patti' No.130 dated 14-6-54 which was issued to Uttamchand It further appears from the statement of P.W.5 Rikhabchand that the goods of 'Tak Patti' No. 130 were pledged by Uttam chand with the State Bank of Jaipur on the same day i e. 14-6-54. There were thus two 'Tak Pattis' bearing some common pressing numbers. One of them, therefore, must be forged. The genuineness of 'Tak Patti' No 130 cannot be doubted as its counterfoil is found in 'Tak Patti' book Ex A/1.
(3) A persual of Marfati Tak Chitti Ex. 12 reveals that goods mentioned in Tak Patti Ex. 13 were endorsed in favour of the plaintiff on 26-6-54 that is after a period of more than a month from the date of 'Tak Patti' Ex. 13. A perusal of other 'Tak Patti' and 'Marfati Chithis' on record show that Uttamchand invariably took advances from the Bank within a day or two of the issue of the 'Tak Patti'. No explanation is forthcoming on behalf of the plaintiff or Uttamchand why the goods mentioned in 'Tak Patti' Ex.13 15-5-54 were not endorsed in favour of the plaintiff upto 26-6-54.
(4) A perusal of 'Tak Patti' Ex.13 shows that it is on the form bearing serial No. 91. 'Tak Patti' book Ex A/1 shows that form bearing serial number 91 is missing from that book. It further shows that forms up to serial No.63 only were used out of this Tak Patti' Book. The above circumstances give rise to suspicion that some one had taken out form No 91 from 'Tak Patti' book Ex.A/1 and used that form in preparing 'Tak Patti' Ex. 13.
(5) A perusal 'Tak Patti' Ex.13 and 'Marfati Chithi' Ex 12 would show that both of them bear the signatures of Ramchander, the clerk of the factory. To prove these signatures the only evidence available on the record is that of D.W.6 Sohanlal. No evidence was produced on behalf of the plaintiff to prove the signatures of Ramchander. D.W.6 Sohanlal in his cross-examination stated that he was acquainted with the signatures of Ramchander and that Ex.12 and Ex.13 bear the signatures of Ramchander. When further cross-examined he admitted that he was not acquainted with the handwriting of Ramchander. The evidence of P.W.6 Sohanlal in the circumstances cannot be regarded as satisfactory. Ramchander has not been produced by the plaintiff. In absence of any satisfactory evidence to prove the signaturts on Ex.12 and Ex. 13 with his admitted signatures on other 'Tak Pattis and 'Marfati Chithis' on record and we feel no hesitation in saying that the signatures of Ramchander on Ex.12 and Ex.13 are not at all similar to his accepted signatures and it appears as if they have been made by some one slowly and cautiously. If further appears that in all the admitted documents Ramchander made his signatures as 'Ramchander Ojha' but in Ex.12 and Ex.13 the word 'Ojha' is significantly missing. We have no doubt that the signatures of Romchandra on Ex.12 and Ex.13 are not genuine.
10. The trial court has held Ex.13 and Ex 12 to be genuine on the basis of the evidence of P. W.1 MM. Doshi, P.W.2 Jhamaklal and P.W.13 Rajmal. These witnesses prove the signatures of the managers of the factory Kripashanker Sharma and Mr Misra on Ex.13 and Ex.12 respectively. Out of these witness P.W.9 Krishnachand is the handwriting expert and the remaining witnesses are those who are acquatnted with the signatures of Kripashanker Sharma and M.R Misra. We are, however, not prepared to place reliance on the opinion evidence of the said witnesses specially in view of the circumstances narrated above. The plaintiff has not producted Mr. Misra to prove his signatures Kripashanker Sharma has appeared in the witness box and he denied his signatures on Ex 13. Our attention was drawn to the cross-examination of Kripashanker wherein he admitted his signatures on Ex.13 when he was shown that document after covering it. We do not place much weight on this part of his statement, which might have been made on the basis of some what similarity of his signatures. We have also carefully examined the signatures. We have also carefully examined the signatures of Kripashanker Sharma and M.R. Misra appearing on Ex.13 and Ex.12 respectively and compared them with their other admitted signatures on record in the light of the evidence of P.W 9 Krishnachand. handwriting expert. In our opinion the signatures on Ex.13 and Ex. 12 are dissimilar and the evidence of the handwriting expert in respect of these signatures does not appear to be correct. We accordingly hold that Ex.13 and Ex.12 are not genuine documents and they were not issued by the factory.
11. We now take up the next contention of the defendants that they have succeeded in proving that 92 bales were delivered to the plaintiff and Uttamchand. In this connection reliance is placed on gate passes Ex.A/4, Ex. A/5, Ex.A/6 and Ex.A/7. It is alleged that the plaintiff or Uttamchand got delivery of 92 bales pertaining to disputed 'Tak Pattis' Ex.6, Ex.7, Ex.9 and Ex.11 under the said gate passes. We have carefully examined the said gate passes and we find nothing therein to shows that the bales pertaining to the disputed 'Tak Pattis' No.134, but that appears, to be an interpolation subsequently added in a different ink. We find similar interpolations in Ex A/4, Ex.A/5 and Ex.A/6 also On the other hard the plaintiff has produced Tak Pattis' Ex 326, Ex 328 and Ex.329 having endorsements showing that under gate pass Ex. A./4 goods relating to 'Tak Pattis' No.131, 128, 103 and 157 were removed and not that of the disputed 'Tak Pattis'. Similarly the endowment on Ex.330 shows that under gate pass Ex A/7 58 bales relating to 'Tak Patti' No.88 were removed. None of the gate passes, produced by the defendants prove that the goods covered by disputed 'Marfati Chithis' and Tak Pattis' were taken out of the factory and delivered to the plaintiff or to Uttamchand. The plaintiff has produced these 96 bales. The bales could not have been delivered by the factory without talking possession of the original 'Tak Pattis'. The fact that the plaintiff possession the 'Tak Pattis' proves conclusively that the bales to which they relate were not delivered to the plaintiff.
12. If follows from the above discussion that 96 bales relating to 'Tak Pattis' Ex.6, Ex.7, Ex.9 and Ex.11 bearing several numbers 150,148, 134 and 141 respectively and belonging to Uttamchand remained with the factory. It is not disputed before us that the factory and the State were bound to deliver the said 96 bales to Uttamchand. The contention on behalf of the defendants is that there could be no suit against them by the plaintiff as they were strangers to the transaction. On the other hand, the plaintiff in order to hold defendants 1 and 2 liable for the delivery of the goods has relied upon the practice or usage of 'Marfati' system which was in vouge from the time of erst- while State of Mewar and was also recognised by the said State of Mewar as the owner of the factory. The plaintiff in support of its contention has placed reliance on Ex.1, which is the letter of the 'Mahakma Khas'of the Mewar State dated 11.12.43 adressed to the Director of Industries and Commerce, Udaipur. This letter was issued by the Government of Mewar on the basis of a settlement which was arrived at the meeting of its officer the Manager, Bharat Bank, the Manager. Rajasthan Bank and various dealers in cotton. A perusal of this letter shows that the State recognized the previous practice of the system of 'Marfati' by which the factory took the liability that the goods endorsed in favour of 'Marfati' i.e. bankers would be delivered only to them and to none else. There is also ample evidence on the record which shows that when the goods are entered 'Marfati' of a bank the goods become the property of the 'Marfati' and the factory could not deliver the goods to any person except to the 'Marfati' bank. In this connection a reference be made to the statements of P W.1 M.M. Doshi. P.W.2 Surajmal, P.W.10 Sohanlal, P.W. 11 Chunilal. P.W.13 Rajmal and P.W.14 Ramchander. All of them have stated that once the goods are entered or endorsed in favour of a 'Marfati' holder and the delivery of the said goods could be effected only when the delivery order is issued by the 'Marfati' holder. In the present case it is not in dispute that the plaintiff has been entered as a 'Marfati' in respect of 96 bales. The plaintiff is, therefore, entitled to the delivery of the said bales from the factory.
13. We are further of the opinion that the 'Tak Pattis' and 'Marfati' Chithis' issued in the present case are 'documents of title to the goods' within the meaning of Clause 4 of Section 2 of the Sale of Goods Act, 1930, which runs as under:
2.(4) 'Document of title to goods' includes a bill landing, dock warrant, wharehousekeeper's certificate, wharfinger's certificate, railway receipts, warrant or order for the delivery of goods and any other document used in the ordinary course of business as proof to the possession or control of goods, or purporting to authorise, either by endorsement or by delivery, the possession of the document to transfer or receive goods, thereby represented.
14. According to the above definition any document used in the ordinary course of business as proof of goods or purporting to authorise the possession of the document to receive goods thereby represented is a document of title. The defendants did not. deny that 'Tak Pattis' were issued in the ordinary course of business as proof to the possession of the goods and the 'Marfati Chithis' authorised the 'Marfatis' to receive the goods mentioned therein. On the contrary they set up a story having been found to be false, the defendants who are holding the goods on behalf of the dealer became guilty of illegally detaining the goods on their refusal to deliver the same to the dealars Marfati' i.e. the plaintiff on the presentation of the documents of title to goods viz. 'Tak Pattis' and 'Marfati Chithis'. In this connection a reference be made to the case of Gauri Shanker Suraj Mal and Ors. v. Mool Chand Panna Lal and Ors. : AIR1958MP415 . In that case the plaintiffs had lent money to defendant No.3 Rustom Khan. The latter was e manufacturer of charcoal and he had 800 bags of charcoal stored for sale with his commission agents defendants Nos.1 and 2 In payment of his debt, Rustom Khan, defendant No.3, wrote a delivery order directing his commission agents defendants Nos.1 and 2 to deliver 800 bags of charcoal to the plaintiffs. When the plaintiffs took the delivery order to the defendants Nos 1 and 3, the latter refused to deliver the goods on the ground that the goods were pledged to them. It was found that the story as to pledge was false. The trial court as well as the first appellate court passed a decree against Rustom Khan, defendant No 3 alone for the return of the price and the suit against defendants Nos. land 2 was dismissed on the ground that there was no contract between the plaintiffs and defendants Nos.1 and 2. On the second appeal the High Court held that the claim against defendants Nos.1 and 2 was not on the basis of a contract, but was in tort. It further held that the document asking defendants Nos.1 and 2 to deliver the goods was a document of title to goods within the meaning of Section 2(4) Sale of Goods Act and the failure to implent the direction in the delivery order made defendants Nos 1 and 2 liable in tort in detinue and were liable to restore the goods to the plaintiffs and if they had converted them, to the value of the goods.
15. We, accordingly hold defendants Nos.1 and 2 liable for the delivery of 96 bales pertaining to 'Tak Pattis' Ex.6, Ex.7, Ex 8 and Ex.11.
16. In the result, we allow the appeal in part, set aside the decree passed by the lower court and pass a decree against the State of Rajasthan and the Manager of the factory for return of 96 bales of cotton described in 'Tak Pattis' Ex.6, Ex.7, Ex.9 and Ex. 11 or if the goods have been converted, their value prevailing at 'Kapasin', the place of delivery, on the date of the decree of this court. The value of the goods shall be determined by the executing court.
17. In view of the respective success and failure of the parties we leave them to bear their own costs of the suit and the appeal.