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Judgment
Sengottuvelan, J.—The plaintiff in O.S. 315 of 1974 on the file of the District Munsif''s court, Tiruvarur, who has failed in both the courts
below, has come forward with the above second appeal challenging the legality and correctness of the judgment and decree of the District Judge,
of East Thanjavur at Nagapattinam in A.S. 36 of 1979. The facts of the case are briefly as follows: The appellant is a trader in cocoanuts. On
15.9.1971, the respondent''s agent placed with the appellants orders for delivery of two lorry loads of cocoanuts and that the appellant had
despatched one lorry load immediately and despatched the second lorry of cocoanuts after sometime which was refused by the respondent who
took the stand that orders for only one lorry of cocoanuts were placed. After exchange of notices, the respondent sold the goods sent in the
second lorry in public auction and realised a sum of Rs. 3,030--71, and sent a sum of Rs. 2,760--33 after deducting the expenses. The appellant
has filed the suit for recovery of the balance of the sale price of the second lorry load of cocoanuts amounting to Rs. 4,446.
The case of the respondent (defendant) is that even in the first lorry load, there was shortage of cocoanuts and on seeing that, he seat a letter
stating that after seeing the out-turn of the first lorry load, he will place further orders. Despite these specific instructions, the appellant had
voluntarily sent the second lorry load of cocoanuts. Since the respondents did not want the second lorry load of cocoanuts, he kept them
separately as the appellant''s goods. After exchange of notices between them and after giving sufficient notice to the appellant, since the goods
were deteriorating, the respondent sold the second lorry load of cocoanuts in open auction and sent the amount after deducting the expenses, to
the appellant. The case of the respondent is that he did not place any order for the second lorry load and hence he is not liable to pay the sale price
as claimed by the appellant.
The trial court, on a consideration of the oral and the documentary evidence, came to the conclusion that the contract of sale in respect of the
second lorry load of cocoanuts was not established and the said finding is confirmed by the lower appellate Court. This concurrent finding of fact
by both courts below is not seriously challenged in the above second appeal.
In the course of the arguments before the trial court, a plea was put forward that in any event the respondent will have to be considered as a
bailee in respect of the second lorry load of goods and as a bailee, he is bound to return the goods and he has no manner of right to sell the same
and as such be having sold the goods, is answerable for the value of the same. Both the courts below rejected this plea and they relied upon
several decisions mentioned in their judgment. The lower appellate Court came to the conclusion that the decisions do not apply to the facts of this
case, since elements of contract of bailment had not been established in this case. It is this conclusion of the lower appellate Court which is
challenged by the learned counsel for the appellant. His contention is that from the oral and the documentary evidence produced, a contract of
bailment can be inferred. It is this legal aspect that will have to be gone into in this second appeal. Bailment is defined in S.148 of the Contract Act
which is reproduced below-
A ''bailment'' is the delivery of goods by one person to another for some purpose, upon a contract that they shall, when the purpose is
accomplished, be returned or otherwise disposed of according to the discretion of the person delivering them. The person delivering the goods is
called the ''bailor'' The person to whom they are delivered is called the ''bailee''.
Explanation--If a person already in possession of the goods of another contracts to hold them as a bailee, he thereby becomes the bailee, and the
owner becomes the bailor of such goods, although they may not have been delivered by way of bailment.
A contract of bailment presupposes delivery of goods by one person to another for some purpose upon a contract on the accomplishment of
which the goods will have to be returned. It is contended on behalf of the appellant that Ex. A8, the letter written by the respondent to the
appellant stating that he will sell the goods on behalf of the appellant and send the value of the same deducting the cost of sale, amounts to an
implied contract or bailment and as such the respondent is debarred from selling the same. This argument can be accepted if the appellant had
stated that he is accepting the suggestion of the respondent contained in Ex. A8. But on the other hand, the appellant takes the stand that he will
not accept the contention of the respondent that he is holding the goods on behalf of the appellant, but stated that there is a contract of sale in
respect of the second lorry load of cocoanuts, which is binding on the respondent. S.148 of the Contract Act contemplates a contract to bring
about a bailment and all the elements of contract should be present if a contract of bailment is to be inferred. In this case, though initially in Ex. A8
an offer was made by the respondent to sell the goods on behalf of the appellant, it was not accepted by the appellant and as such it cannot be said
that there is a concluded contract of bailment as alleged by the appellant. The finding of the lower appellate Court on this legal plea raised is
correct and there are no grounds to interfere with the same. Consequently, there are no merits in this second appeal and the same is dismissed.
There will be no order as to costs in this second appeal.