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Judgment
This appeal is from an order passed in execution proceedings instituted on the original side of ihe Court. It raises a question of law, but a
statement of the facts is necessary in order to understand the position.
Under a contract in writing dated the 21st August, 1941, the respondent delivered to the appellants a cinematograph projector. The contract
purported to be a hire purchase agreement, but it did not in law amount to such an agreement because there was no option in the appellants to
terminate the hire. The contract contemplated the appellants paying for the projector in instalments and it expi-essly provided that the ownership of
the machine should not pass to them until the price had been paid in full. In default of payment of an instalment, the respondent had the option of
cancelling the contract, in owhich event he had the right to forfeit a sum of Rs. 1,000 which the appellants had deposited with him as security for
the fulfilment of their part of the bargain, and of recovering from them hire at the rate of Rs. 350 a month for the period during which the projector
remained in their possession. As an alternative, the respondent was given the right of demanding payment of the balance of the agreed price, after
giving credit for any amount which the appellants might have paid. The appellants defaulted in the payment of the instalments and the respondent
exercised his option of demanding the return ot the machine, of forfeiting the deposit and of recovering hire at the agreed rate. He made the
demand, and the appellants did not comply with it. Consequently, he hlfd a sult on the original side for inter alia the following reliefs : (i) the
payment of the arrears of hire; (a) the payment of Rs.- 350 per mensem fromnhe date of the suit to the date of the delivery of the projector to him;
and (3) an order directing the delivery of the projector to him on or before such date as the Court might fix or to pay to him Rs. 4,500 as its value.
1
The respondent was very anxious to recover the projector, as owyjig to the war it was very difficult, if not impossible, to obtain such articles and
this was the main object of the suit, but the prayer was not drafted in accordance with form 32 of Appendix A of the Civil Procedure Code, which
is suggested as a mo''del for a plaint where the plaintiff seeks delivery of a specific article. The prayer there suggested, is for the delivery of the
article and in case delivery
cannot be had, for a decree for itsvaiue. This is in accordance with the provisions of Order 20, Rule 10. The art of pleading is little understood in
India and in order to do justice in a case the Court is often constrained to look at a plaint or a written statement as a whole, rather than to what is
actually said in a particular paragraph, in order to ascertain the real nature of the claim or defence. Looking at the plaint in this case as a whole,
rather to the actual wording of the prayers for relief, we are convinced that what the plaintiff wanted was a decree for delivery of the phattel and a
monetary payment if delivery could not be had.
The suit was tried by Bell, J., who inter alia directed, that in default of delivery, t the appellants should pay to the respondent Rs. 4,500 being the
value of the projector and its accessories. The appellants appealed. The appeal was heard by this Bench which reduced the amount of Rs. 4,500
to Rs. 2,250 See (1944) 2 M.L.J. 74 . The appellate decree so far as it relates to the delivery of the projector reads as follows :
That the said appellants defendants do deliver to the respondent herein, the plaintiff, within 14 days from this date the Erko Projector and its
accessories set out in the schedule hereto or in the alternative do pay the respondent (plaintiff) a sum of Rs. 2,250 the present value of the Erko
Projector and its accessories.
The direction followed the wording of the plaint. The appellants read it as giving them an option to retain the projector on payment of the Rs.
2,250 and they promptly paid the amount into Court. The respondent refused to accept it. He maintained that as the appellants were in a
positioiuto deliver the machine to him, they should be compelled to do so. Consequently he applied in execution for an order directing the
appellants to deliver the projector to him and in the meantime he asked for the appointment of a receiver. The Court appointed a receiver, who
took charge of the machine which is now in the receiver''s possession.
By an order dated the 29th April, 1944, the Master dismissed the application for an order directing delivery to the respondent of th''e projector
as he considered that the appellate Court gave the appellants an option in the matter. The respondent appealed to the Judge. His appeal was heard
by Kunhi Raman, J., who reversed the decision of the Master and directed the receiver to deliver possession to the respondent. The learned Judge
construed the decree as a direction for the payment of the value as an alternative remedy and not as an alternative course which the defendants
were permitted to, adopt at their option. This appeal is from the order of Kunhi Raman, J.
As we have already indicated, the appellate decree was based on the wording of the plaint, but this does not mean that it must be read as giving
an option to the appellants. The question whether the appellants were entitled to retain the projector on payment of the value fixed by the Court
was never raised before us. The main question urged was whether the respondent was entitled to forfeit the deposit and insist on the return of the
projector with hire at the rate agreed upon. It was not suggested that if we decided this question in favour of the respondent he could not insist on
the machine being delivered back to him and would be compelled to rest content with its value. We consider that the decree must be read as giving
the plaintiff the right to delivery of the projector if this form of relief is under the law of India open to him.
The answer to the question really turns on the meaning to be given to Clause (a) of Section 11 of the Specific Relief Act. This section says:
Any person having the possession or control of a particular article of movable property, of which he is not the owner, may be compelled
specifically to deliver it to the person entitled to its immediate possession, in any of the following cases:
(a) when the thing claimed is held by the defendant as the agent or trustee of the claimant
(b) when compensation in money would not afford the claimant adequate relief for the loss of the thing claimed :
(c) when it would be extremely difficult to ascertain the actual damage caused by its loss:
(d) when the possession of the thing claimed has been wrongfully transferred from the claimant.
Pollock and Mulla''s ""Specific Relief Act "" (6th edition, page 662) contains a commentary on the section :,
It is hard to see on principle why the right should be confined to special categories. The framers of the. Act seem to have forgotten that the Indian
Courts are not merely Courts of English equitable jurisdiction. In England a person entitled to the immediate possession of a specific chattel was in
principle, entitled to recover it by an action of detinue. The writ in that action demanded specific delivery,, But owing to the defective procedure for
the execution of common law judgments, this could not in practice be enforced. Then a Court of Equity when applied to for relief, had to be
satisfied that the remedy in damages to the value of the goods, which alone was available for the plaintiff at common law, would not be adequate,
or that some specially equitable right of the plaintiff''s under a trust for example, was involved. Under a more rationally developed system the
burden would be on the defendant to show cause why it should not be just and equitable to avoid specific restitution.
We are in entire agreement with this statement. In Jaldu Venkatasubbarao v. The Asiatic Steam Navigation Co. of Calcutta (1914) 29 M.L.J.
342 : ILR 39 Mad. 1 , a Full Bench of this Court said this:
But in order to entitle the plaintiff to obtain delivery of specific movable property by suit and enforce the decree so obtained by the stringent
methods provided in Order 21, Rule 31, Civil Procedure Code, it is necessary that he should allege and prove facts which entitle him to compel
the delivery of the specific movable under the provisions of Section 11 of the Specific Relief Act, because unless he does so, he cannot have a
decree for the return of the specific movable property. There is no allegation in the plaint that the defendant is in possession of the plank in question
and it is obvious from the correspondence that he is not. That being so, the case does not come within Clause (a) of Section 11 of the Specific
Relief Act, and it certainly does not come within Clause (b), (c) or (d)
There the claim was for the return of a plank and it was held that as the suit did not fall within Section 11, it could not be maintained. The effect
of this judgment is that a plaintiff cannot obtain specific restitution of a chattel unless his claim falls within Section 11 of the Specific Relief Act and
we are bound to follow it. It is obvious that clauses (b), (c) and (d) of Section 11 do not apply to the present case and therefore we have only to
consider Clause (a). If the appellants are in the position of agents or trustees within the meaning of that clause, the Court can direct them to deliver
over the projector to the respondent.
Mr. Braddell on behalf of the respondent has conceded that the appellants cannot be regarded as agents; but he says that they are trustees
within the meaning of Clause (a). The word ""trustee "" here does not mean a trustee within the meaning of the Trusts Act. Section 3 of the Specific
Relief Act says the word "" trustee "" includes every person holding, expressly, by implication or constructively, a fiduciary character. Therefore if the
appellants held the projector in a fiduciary capacity after the respondent had demanded the return of his machine, as he had the right to do, he will
be entitled to an order directing its delivery to him.
In In re Hallett''s Estate : Knatchbull v. Hallett (1880) 13 Ch. D. 696 ., Thesiger, L.J., said :
It has been established for a very long period, in cases at law as well as in cases in equity, that the principles relating to the following of trust
property are equally applicable to the case of a trustee, using the term in the narrow and technical sense which is applied to it in the Court below,
and to the case of factors, bailees, or other kinds of agents.
This statement clearly recognises that a bailee holds a fiduciary character. In Katta Ramaswami Gupta v. Kamalammal (1921) 42 M.L.J. 32 :
ILR 45 Mad. 173, a Bench of this Court, while holding that a bailee is not a trustee within the meaning of the term in the Trusts Act, recognised
that he may in some respects be in a fiduciary position as regards his bailor and the observations of Thesiger, L.J., in In re Hallett''s Estate :
Knatchbull v. Hallett (1880) 13 Ch. D. 696 which we have just quoted, were referred to.
We have here authority for holding that the appellants held the projector in a fiduciary capacity within the meaning of Clause (a) of Section 11
after the respondent had terminated the contract and demanded its seturn. But without authority we consider that this must be the decision when
the facts are borne clearly in mind. The property in the article had never passed to the appellants. When the contract was terminated they had no
right to deal with it or even use it. They held it on behalf of the respondent and it was their duty to deliver it up to him. They were not trustees in the
technical sense, but they held the article in a fiduciary character sufficient to satisfy Section 11 of the Specific Relief Act. It would indeed be remark
able if in the circumstances of this case, especially when the Court holds the article on behalf of the party entitled to it, it could not direct delivery to
be given to the true owner.
For these reasons, we dismiss the appeal with costs.