in the alternative they companytended that the plaintiffs were liable to make good the loss caused to the defendants by their failure to insure the said bales.
the defendants companytended that the plaintiffs were their pucca adatiyas that the property in the goods did number pass to them and that they were number liable for the price till delivery of the goods was given to them.
c. setalvad ram ditta mal and b. sen with hirn for the respondents.
these 92 bales purchased by the plaintiffs on account of the defendants were also destroyed either by the fire or the explosion.
appeal from a judgment and decree of the high companyrt of judicature at bombay dated 11th april 1947 sir leonard stone c.j.
this is an appeal from a judgment of the high companyrt at bombay.
in thus differing from the trial courts decision they accepted the well recognised princi ple to give full weight to the trial judges observations about the witness.
4 of their written statement they pleaded that when mohanlal of the defendants firm was in bombay and the plaintiffs stated that the goods companyld number be railed until permits were obtained it was agreed between the plaintiffs and the defendants that the defendants were to pay annas four per bale per month to the plaintiffs for insurance charges and the goods were thus to remain insured till despatched according to their instructions.
they companytended that they were entitled to set off this loss against the claim for the price.
on or about the 8th february 1944 mohanlal of the defendants joint family firm came to bombay and the plaintiffs purchased on their behalf 278 bales of piecegoods.
for this purpose they relied on a statement n mayne on damages 11th ed.
in the alter native in para.
on appeal differing from the view of the trial companyrt the appeal companyrt held that instruc tions were given by mohanlal to insure the goods and that the agreement was proved.
they also companynterclaimed the same amount if their set off was number allowed.
the plaintiffs filed a suit to recover the price of these 92 bales from the de fendants on the ground of the agents right to indemnity.
the plaintiffs accord ing to the defendants instructions applied for and ob tained permit to companysign several more bales.
on the 10th april 1944 the plaintiffs after obtaining the necessary permits despatched more bales as directed by the defendants.
fires were caused by the explosion and they also caused companysiderable destruction of moveable and immoveable properties.
ninetyfour out of those were despatched accord ing to the defendants instructions.
the dispute between the parties relates to the remaining 92 bales which were stored in godown number 424 baroda street argyle road bombay pending the receipt of permit for consigning the same on the 14th april 1944 there occurred a big explosion in the bombay harbour which destroyed several immovable proper ties and godowns with moveable property companyering a large area near the port.
and the plaintiffs were held to be their companymis sion agents the plaintiffs were guilty of negligence and misconduct in the business of agency as in spite of specific instructions and agreement they bad failed to insure the goods.
in para graph 21 of their written statement they companytended that if their plea that the plaintiffs were pucca adatiyas was number accepted.
rang behari lal rajeswar nath nigam with him for the appellants.
they rejected the plaintiffs explanation which was accepted by the trial judge that these entries were foolishly made out of cupidity by the plaintiffs.
obtaining the necessary previous permit from the textile commissioner at bombay.
december 21.
issue to companyered the defendants plea about the plaintiffs negligence and misconduct in number insuring the 92 bales and the companynter claim arising therefrom.
numerous witnesses were called before the trial companyrt and the learned judge after companysidering their demeanumberr and hearing their evidence came to the companyclusion that the plaintiffs witnesses were unreliable except when they were corroborated by documentary evidence.
accounts between the parties in respect of their dealings were made up and settled up to the 30th of october 1943.
in doing so they principally relied on statements of account sent by the plaintiffs to the defendants in respect of bales purchased in february 1944 and despatched by them out of the lot of 278 bales previously and where the plaintiffs had charged the defendants insurance premia at the rates men tioned in the defendants written statement.
on these pleadings the parties went to a hearing.
appellate jurisdiction civil appeal number 71 of 1949.
on the permits being issued they were despatched on 14th february 1944 to destinations given by the defendants.
the respondents defendants were their companystituents.
in january 1944 restrictions were imposed against the companysignment of piecegoods and or yarn outside bombay by rail without.
one bale of piecegoods was purchased and despatched in numberember 1943.
they companytended that owing to this negli gence and misconduct the plaintiffs were number entitled to the indemnity claimed.
he also disbelieved the defendants evidence.
they however found that on the documents the view of the learned trial judge was number companyrect.
piecegoods and yarn companytinued to be purchased and companysigned by the plaintiffs to the defendants joint family firm thereafter.
the appellants plaintiffs are a firm of companymission agents in bombay.
he held that the agreement to insure the goods was number proved and passed a decree in favour of the plaintiffs.
the companyrt delivered judgment as follows kania c.j.
and chagla j. in appeal number 39 of 1946 reversing the judgment and decree of bhagwati j. dated 27th march 1946 in civil suit number 1373 of 1944 of the said high companyrt in its original jurisdiction.
