JUDGMENT
Mishra, J.
1. A suit for damages with future interest has been decreed against defendants 1 and 2 and dismissed against third defendant. Plaintiff has preferred this appeal. The plaintiff is a Government limited company and is carrying on business at P.M. 128, Thilleri Road, Cannanore-1, Kerala State. The first defendant/first respondent is a businessman having his office and business at No. 96, Rue-Saint-Lazare, Paris-8 and having office at all material times at No. 25 Nebert Strasse, 2 Hamburg 76, No. 7 Villa Sequira, C.S.T. Road, Kalina Bombay and No. 9, Valliammal Street, Madras. The second defendant/second respondent is a business concern, carrying on business at No. 7, Sequeira Villa, C.S.T. Road, Bombay-29 and at all material times had an office at Madras.
2. The case of the plaintiff has been that in or about February, 1971 it wanted to export handloom goods to foreign countries and had correspondence with several overseas traders. The first defendant approached the plaintiff and offered to establish business connection for it with overseas buyers. The plaintiff agreed to export the goods to the first defendant and consequently made arrangements with its suppliers for the manufacture and supply of garments and fabrics. The first defendant placed various buying orders for various quantities from time to time. The plaintiff in turn made arrangements for the manufacture and supply through its own agencies. Later, however, the first defendant tried to go back on the agreement stating that the goods had lost their value in European markets and, therefore, attempted to wriggle out by writing several letters. The first defendant wanted the plaintiff to convert the fabric into garments and supply the same to which the plaintiff agreed. The first defendant’s local agent directed the plaintiff to hand over clothes to the third defendant viz. Binny and Company Limited, Madras, for manufacturing garments and supplying them. This was agreed and the goods were delivered to the third defendant on the instructions of the first defendant. The plaintiff delivered fabrics in time to the third defendant, which undertook to deliver in April, 1972, certain quantity of ready garments, but failed to do so. The first defendant also failed to regularly clear the consignment and committed default. According to the plaintiff, this caused serious damage and loss to the business of the plaintiff. According to it, all the defendants are jointly and severally liable to the plaintiff for the amount claimed in the plaint.
3. The third defendant alone filed a written statement. Defendants 1 and 2 remained ex pane. The third defendant’s case in short is that the plaintiffs agent contacted it and represented that shirts were to be manufactured for export and there was some delay in manufacturing the garments on account of heavy bookings, but it was totally wrong to say that there was a contract between first defendant and third defendant for the manufacture of garments. It was the plaintiff which entrusted the fabrics to the third defendant for making them as garments. It is also incorrect to state that the third defendant undertook to deliver absolutely any quantity of garments and in the manner specified in the agreement. There was no breach of the agreement. If there has been any loss to the plaintiff, it was certainly not on account of the conduct of the third defendant.
4. The learned trial judge has found on the issues, whether the third defendant is liable in damages to the plaintiff and if so to which amount, and whether the third defendant committed any breach of contract, as follows:
I am of opinion that even on the general principles of law, the plaintiff cannot claim any damages against the 3rd defendant for the following reasons. Even before the plaintiff-Corporation approached the 3rd defendant, the former had already entered into a contract with the 1st defendant regarding the export of garments. P.W. 1 concedes that the plaintiffs arrangement with the Binny Company (3rd defendant) was confined to stitching and delivery of the finished goods on payment of stitching charges. The consideration for this arrangement of stitching was the stitching charges that are payable by the plaintiff to the 3rd defendant. P.W. 1 states that the rate of stitching charges per garment is Rs. 6.50. It is common ground that the stitching charges have been paid to the 3rd defendant by the plaintiff without any demur. Therefore, the attempt to make the 3rd defendant liable for the suit claim appears to be an afterthought, since the 1st defendant is a foreign resident against whom the plaintiff cannot recover the decree amount easily.
Further, there was no separate contract of indemnity between the 3rd defendant and the plaintiff and there was also no consideration for any such contract if there was one. Thus, the plaintiffs attempt to make out a contract of indemnity has no factual foundation since this is a simple case of bailment for reward. The contract of bailment was fully completed and also performed. There was no loss or destruction or deterioration of the goods. Therefore, no liability arises under Section 161 of the Contract Act.
Even on evidence, the plaintiff/Corporation has not made out a case of damages against the 3rd defendant. According to P.W.1, Ex. P-10 is the starting point for the arrangement of stitching garments by the 3rd defendant. Ex. P-10 is the letter by Binny and Company dated 8.3.1972. Offering its terms for making 20,000 shirts during the month of May, 1972. It is clear from this letter that the 3rd defendant was not soliciting orders from the plaintiff-Corporation and that it was dictating its own terms to the plaintiff and even fixed a time-limit of less than two weeks for accepting its offer. The plaintiff corporation accepted the offer by its leter Ex. D-1, dated 17.3.1972 agreeing to the conditions stipulated by the 3rd defendant and offering to supply cloth to manufacture garments in instalments. Ex. P-18 is a communication by the 3rd defendant dated 6.4.1972 to the 1st defendant at Paris with a copy marked to the plaintiff enclosing a production schedule. Apart from these documents to offer and acceptance, there is nothing on record to show that the 3rd defendant undertook to bear all or any loss that may occasion to the plaintiff. Thus, even on the own showing of P.W.1, it was only an arrangement to stitch the garments. In fact, the manufacturing of garments by Binny and Company (3rd defendant) was subject to the plaintiff making the fabrics available in time and in getting Central Excise license, as also giving sample of specimen models with proper instructions from time to time. P.W. 1 has categorically admitted this in his cross-examination.
Learned trial judge has also noticed the averment of the plaintiff in paragraph 30 of the plaint which is as under:
… that the responsibility of the Corporation was merely to deliver the fabrics according to schedule to the third defendant and that the third defendant would manufacture and deliver the materials to the corporation in accordance with the schedule and the said Corporation need not bother about anything else, excepting receiving the finished goods and despatching them by air after paying the stitching charges due to the third defendant. The first defendant had specifically stated that all other arrangements with the third defendant would be looked after by the first defendant.
Based upon this, learned trial Judge has said, on the own pleading of the plaintiff, it cannot look to the third defendant for the alleged loss caused to it on account of the breach of contract by the first defendant.
5. There has been an argument that the garments entrusted with third defendant for stitching had not been delivered according to schedule and that this delay has resulted in loss to the plaintiff, in that, the foreign buyer did not accept the goods which arrived late. Learned single Judge, after considering the evidence on record in the light of the pleadings of the parties, has found:
It is true that the delivery schedule was not kept up by the third defendant. But, it must be remembered that time was not stipulated as the essence of contract at any time. Further, as already pointed out from paragraph 30 of the plaint, the first defendant had taken up all responsibility of the third defendant and directed the plaintiff just to receive the finished goods and despatch them by air after paying the stitching charges.
He has also found that the delay in the stitching of garments was not entirely due to the default of the third defendant, but the delay was clearly due to the conflicting instructions given by the first defendant. He has accordingly said:
The supply of fabrics was in the month of April, 1972 and certain quantities were to be produced and delivered during the months of April-May, 1972. The delivery was effected late only by a few weeks and that too for the reasons already stated supra, namely the instructions from the first defendant altering the design now and then.
6. Mr. V.S. Subramanyan, learned Counsel for the appellant, has contended that on the admission of the third defendant/third respondent in the written statement, it has to be held that there has been a contract of bailment between the plaintiff and the third defendant. The delivery of goods by the plaintiff to the third defendant is not in dispute; the contract is not in dispute. The third defendant failed to deliver the stitched garments in accordance with the schedule and it thus failed to discharge it liability. It has for the reason of its default to take the responsibility of the cancellation of the plaintiffs contract with the foreign buyers and thus compensate the plaintiff.
7. Before we traverse into this contention, we may recapitulate certain facts leading to the cancellation of certain supply contracts which defendants 1 and 2 had created for the plaintiff. In May, 1972 it is so stated in the plaint, the first defendant threatened to cancel all orders, unless the agreed price of purchase was slashed. The first defendant also asked the plaintiff to prepare only certain number of model shirts and not to cut and stitch any other garment until it heard further from the first defendent. There is hardly anything between April and May, 1972 which would point towards the third defendant’s conduct leading to the first defendant’s saying in April-May, 1972 that there cannot be any revision in the agreement to supply garments, or that any further stitching by the third defendant would be necessary. It is stated in the plaint that first defendant had in and by his telegram dated 7.5.1972 requested the plaintiff to sign a contract with the third defendant for the manufacture of 2000 shirts and stated that the first defendant would be sending orders for the supply of 10,000 shirts in April, 1972 and 10,000 shirts in May, 1972. But then it has also stated in the plaint:
Subsequently, there was a discussion between the third defendant and the Corporation (plaintiff) and it was then suggested that the delivery of fabrics will have to be made to the third defendant before 31st March, 1972 and if delivery was not possible within that time, enough fabrics for 10,000 shirts will have to be delivered by 31st March, 1972 to them and fabrics for the balance of 10,000 shirts will have to be delivered by 31st March, 1972 to them and fabrics for the balance of 10,000 shirts by 10th April and that if supply extended beyond 10th April, 1972 the finished garments would be delivered only after 30th May, 1972.
It is also found in the plaint that the first defendant had placed no orders for supply of any stitched garments with the plaintiff in March, 1972 until atleast the letter received by the plaintiff on 22.3.1972 from the first defendant dated 14.3.1972, wherein the first defendant had stated that he had secured an order for 60,000 shirts and as the third defendant could manufacture only 20,000 shirts, he would give the further order for the supply of 20,000 shirts, if he (the third defendant) could find any other reliable manufacturer. A close reading of the plaint reveals that it has been almost nebulous between the plaintiff and defendants 1 and 2 all the while, when there has been some supply of fabric by the plaintiff to the third defendant for stitching shirts/garments and the plaintiff was not sure if the first and second defendants would continue with the arrangement for the export of garments. The sheet anchor, however, of the case of the plaintiff against the third defendant is a schedule incorporated in paragraph 37 of the plaint which reads as under:
The following summary sets out the net result of the various modification by first defendant in his arrangements with the third defendant and the corporation for manufacture and supply of garments though originally there were several orders of the first defendant for a larger number of garments.
________________________________________________________________
S. O. Fabric Model Qty. Rate Delivery
No. No. Rupees period
_________________________________________________________________
1. 087 Natural Fimp 1
Semi Ladies
Bleached buttoning 5000 15.50 31.5.1972
2. 088 do. do. 5000 15.50 do.
3. 077 do. Fimp 1
Mens
buttoning 1000 10.35 15.6.1972
4. 077 Checks/
Stripes do. 2000 Skr 10.60 do.
5. 077 do. do. 1000 Skr 15.50 do.
6. 075 Natural
Semi
Bleached JC1
Ladies
Buttoning 8000 6.60 15.6.1972
7. 076 do. do. 1200 Skr 6.60 do.
8. 076 Check/
Stripes
White
back
ground do. 1200 Skr 6.60 do.
9. 075 Checks do. 2000 Skr 6.00 30.6.1972
10. 077 Natural
Semi
Bleached JC2
Mens
Buttoning 2000 Skr 9.90 do.
11. 077 Checks do. 6500 Skr 10.20 do.
12. 110 Material
Semi
Bleached JC1
Ladies
Buttoning 500 14.90 do.
13. 110 Checks do. 1500 13.25 do.
14. 072 Checks Mak 46000 7.10 10.7.1972
_______________________________________________________________
40900
________________________________________________________________
According to the third defendant’s schedule the third defendant undertook to deliver in April, 1972, 21,400 garments (items 1 to 8 above), besides 5000 Nora Type garments out of fabric supplied by another part, namely, Kewalram) and the balance of 19,000 garments in May, 1972 (items 9 to 14 above).
38. Actually the Corporation had received revised orders only for 30,900 garments comprised in items 3 to 14 above and had not received any revised type orders for items 1 and 2 above, viz. 087 and 088 referred to in the manuscript order dated 4th April, 1972 and this had been brought in the notice of the first defendant in Corporation’s letter dated 15th April, 1972. Confirmation of the contract for 40,800 garments was however, sent by the corporation to the first defendant on 4th May, 1972.
If the case of the plaintiff is believed, then all of a sudden, for manufacture and supply of garments to the third defendant, all orders in this behalf were given by the first defendant and not by the plaintiff. If the plaintiff intended to implead the third defendant as a bailee it was expected to do so, but it is further noticeable in the plaint (paragraph 40) that the first defendant gave instruction as late as on 20.4.1972 changing the entire schedule. The words used in the plaint are as follows:
The plaintiff further states that while the entire selection of the fabrics for the manufacture of garments had been made by the first defendant and he had been sending telegram for despatch of shirts, the first defendant, suddenly as a bolt from the blue, evidently with the ulterior motive and intention of wriggling out of his obligation somehow or other, intimated in his letter dated 28th April, 1972 which was received by the Corporation on 3rd May, 1972 that all the shirts will have to be manufactured in white background and any material manufactured in dark colour fabric will not be accepted by the first defendant. The Corporation had immediately pointed out in their letter dated 10th May, 1972 the fact that all the materials had been purchased in accordance with the express selection of the first defendant and the first defendant was also informed that he cannot give instructions contrary to each other every now and then. The fact that instructions were being given directly by the first defendant without informing the corporation who is the supplier of the fabric would also be evident even from a letter addressed by the third defendant to the first defendant and dated 4th May, 1972 with a copy to the Corporation.
It is indeed curious how when the reason for the failure of the contract is the change in the design of the garments to be supplied by the first defendant, as late as April, 1972 and May, 1972, there is an attempt to shift the blame upon the third defendant who evidently had no clear instruction to proceed with the schedule of stitching the clothes.
8. As we had only postponed, until recapitulating the facts, the consideration of the main contention of learned Counsel for the appellant, we may here take notice of the definitions of bailment, bailor and bailee other relevant provisions. In Chapter II of the Indian Contract Act. In Section 140, the terms “bailment” and “bailee” are defined as hereunder:
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 accompanied, he retained or otherwise disposed of according to the direction of the person delivering them. The person delivering the goods is called bailor’. The person to whom they are delivered is called the bailee.
Explanation: If a person already is 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.
Section 160 of the Act however says,
It is the duty of the bailee to return, or deliver according to the bailor’s directions, the goods bailed, without demand, as soon as the time For which, they were bailed has expired, or the purpose for which they were bailed has been accomplished.
Section 181 thereof reads as follows:
If, by the default of the bailee, the goods are not returned, delivered or tendered at the proper time, he is responsible to the bailor for any loss, destruction or deterioration of the goods from that time.
A contract for work may in a given circumstances give rise to bailment but not all contracts for work and labour may give to a bailment. In ‘Bailment’ by M.R. Palmer, 1979 edition, there is a Chapter on ‘Hire and Labour’ and therein it is stated:
This variety of bailment, known to the Roman lawyers, as locatio opens faciendi was defined by Halt, C.J. as arising when goods or chattels are delivered to be carried, or something is to be done about them, for a reward to be paid by the person who delivers them to the bailee, who is to do the thing about them. Locatio operis faciendi therefore contains two elements, a contract for services, coupled with a bailment or the article upon which those services are to be performed. The goods will remain in the bailee’s possession until the work is completed and will then be returned to the bailor, or delivered to a third party, in accordance with his instructions. A wide range of everyday commercial activity…including dry-cleaning, laundering, repair, valuation, auctioneering, alteration and the treatment of sick animals, may, therefore, fall within that category of bailment.
Speaking generally as to the contemplation by a contract of work and labour, when Palmer has spoken about contracts for work, he has stated:
To a lesser extent, the same legal indifference attaches as to the distinction between a contract for work and materials and a contract for the sale of goods. This distinction can impinge upon a bailment locatio operis faciendi only when the workman is bound to ally or interim property of his own with the bailor’s goods or chattels, and when property in those goods is thereupon intended to pass to the bailor, for instance, when connecting rods are to be attached to a case for repair. The question whether the materials used in performance of such a contract will pass to the bailor under a contract of sale or under a mixed contract for the supply of work and material is of dismissing importance because both at common law and in Australia, under the Trade Practices Act, 1974, similar terms as to fitness for purpose and merchantable quality are implied. The distinction is not entirely redundant, however, because in England the customer under a contract for the provision of work and materials will not enjoy the rights conferred by the Sale of Goods Act, 1893, or the Supply of Goods (Implied Terms) Act, 1973. Moreover, other States still refer exclusively to contracts for the sale of goods.
Unless the contract provides a specific definition of its nature, the question as to whether it creates a sale of goods or a supply of work and materials will normally be resolved by looking to the substance of the agreement.
If the substance of the contract is the production of something to be sold, and the exercise of skill, though high, is primarily for the purpose of producing goods for delivery at a price, then the contract is one for the sale of goods. But, if the contract is one for skill and labour to be exercised and the article which results is merely a vehicle to record the maker’s skill, it is one for work done and materials supplied. This criterion, although frequently criticised, seems to be supported by most of the decisions. On the one hand, it has been held that contracts, for the installation of machinery or security devices on the customer’s premises, or for the tilling of roofs, the renovation of equipment, the installation of spare parts in a vehicle and the fitting of a built-in-cocktail-cabinet in the customer’s home, are all contracts for the supply of work and materials. Conversely, it has been held that the following are contracts for the sale of goods, the making up, from the tradesman’s own materials, of a fur jacket, a tombstone, a ship’s propellor according to specification and a set of false teeth, the preparation and supply of a meal in a restaurant and he taking and selling of a photograph. But the supply of architects plans do not fall within the concept of sale, because the primary objective is the exercise of specialised skills and not the provisions of a tangible commodity.
9. We have extracted the above, for learned Counsel for the appellant has emphasised rather strenuously that on the terms, as the third defendant was required to stitch garments in response to contract with the first defendant had promised to deliver to the plaintiff, if there has been a default, the third defendant failed to discharge the obligation of bailer.
10. A judgment of Chancery Appeals in In re. Trent and Number Company, Ex pane Cambrian Steam Packet Company, Vol. IV, Chancery Appeals 112, on facts seems to be a case of damages qua the contract, but how in the case of a works-contract damages are realised and calculated is stated. In that case there was a contract to take the ship into the possession of the Trent and Humbership Building Company to repair and alter for a fixed sum and by a fixed date. Lord Cairns, L.J., in his judgment said:
That contract was beyond all doubt, broken the damages would therefore be recoverable. The only argument against the right to some sort of damages for the breach of the contract was that which arose out of the correspondence between the Official Liquidator, and the Cambiran Company. The ship was ultimately repaired, by the Official Liquidator some part of the money having been already advanced by the Cambrian Company, and she was finally, in month of May, 1866, delivered over to the Cambrian Company. The effect of that seems to be simply this, that the damage which I have called a continuing damage was in that way put a stop, to, but not till the ship was delivered over….
Lord Cairns in that judgment said that as to the measure of the damages he had proceeded on the principle that if a profit would arise from a chattel, and it is left with a tradesman for repair, and detained by him beyond the stipulated time, the measure of damage is prima facie, the sum which would have been earned in the ordinary course of employment of the chattal in the time.
11. In Dhian Singh v. Union of India , the appellants had entered into an agreement for the hiring out of two trucks to the respondent (Union of India) for imparting tuition to the military personnel, Rs. 17 per day per truck was stipulated as the hire and the agreement was terminable on one month’s notice by either side. Pursuant to the agreement, the trucks were handed over to the respondent, on different dates. The respondent used the trucks, but later gave notice to the appellants terminating the agreement and asking them to remove the trucks on the expiry of a certain period. When, however, one of the appellants went to take delivery of the trucks, they were not delivered to him nor was any hire charge paid for the trucks. They took up the stand that the hire amount had been paid and the trucks had been delivered by it to one Surjan Singh, who was alleged to have been a partner of the appellants and thus entitled to receive the said payment and the delivery of the trucks in question. The appellants controverted the said position and claimed that the respondent was liable to pay the hire money and return the trucks to them. The trial court found that the respondent was not justified in paying the rent and delivering the trucks to the said Surjan Singh. The High Court confirmed the said finding. Both the trial court and the High Court passed a decree awarding the market value of the trucks and also the rent. We are referring to this judgment, for, there is a candid analysis of the two forms of actions; one for wrongful conversion and the other for wrongful detention, otherwise, known as action in trover and action in detinue. The Supreme Court has said:
A conversion is an act of wilful interference, without lawful justification, with any chattel in a manner inconsistent with the right of another, whereby that other is deprived of the use and possession of it. If a carrier or other bailee wrongfully and mistakenly delivers the chattel to the wrong person or refuses to deliver it to the right person, he can be sued as for a conversion. Every person is guilty of a conversion, who without lawful justification deprives a person of his goods by delivering them to someone else so as to change the possession. (Salmond on Torts, 11th Edition pages 323, 324, 330).
The action of detinue is based upon a wrongful detention of the plaintiffs chattel by the defendant, evidenced by a refusal to deliver it upon demand and the redress claimed is not damages for the wrong, but the return of the chatter or its value. If bailee unlawfully or negligently loses or parts with possession he cannot get rid of his contractual liability to restore the bailor’s property on the termination of the bailment, and if he fails to do, he may be sued, in detinue. (Clerk and Lindsell on Torts, 11th Edition, pages 441 and 442, paras, 720 and 721).
Detinue at the present day has two main uses. In the first place, the plaintiff may desire the specific restitution of his chattels and not damages for their conversion. He will then sue in detinue, not in trover. In the second place, he will have to sue in detinue if the defendant sets up no claim of ownership and has not been guilty of trespass, but the original acquisition ‘in detinue such bailment’ was lawful. Detinue lies against him who once had, but has improperly parted with possession. At common law the natural remedy for the recovery of chattels was the action in detinue. In that action the judgment was in the alternative that the plaintiff do recover the possession of the chattels or their assessed value in case with damages for their detention. (Salmond on Torts, 11th Edition, pages 351, 352 and 353).
Judgment for the petitioner in trover is for recovery of damage for the conversion. Judgment for the petitioner in detinue is for delivery of the chattel or payment of its value and damages for detention. Halsbury’s Laws of England, Hailsham Edition, Vol.33, p.78, para. 135).
These forms of action are survivals of the old form of action in trover and in detinue and it is interesting to note the evolution of the modern causes of action for wrongful conversion or for detention.
The Supreme Court then proceeded to discuss various authorities cited, and then stated the law as to bailment thus:
It is clear therefore that a bailor in the event of the non-delivery of the goods by the bailee on a demand made by him in that behalf is entitled at his election to see the bailee either for wrongful conversion of the goods or the wrongful detention thereof, and if the bailor pursues his remedy against the bailee for wrongful detention of the goods it would be no answer for the bailee to say that he was guilty of wrongful conversion of the goods, the plaintiff knew or ought to have known at or about the time and is therefore not liable to the plaintiff for wrongful detention thereof. It is the option of the plaintiff to pursue either remedy against the bailee just as it suits him having regard to all the circumstances of the case and the bailee cannot be heard to say anything to the contrary for the simple reason that he cannot take advantage of his own wrong and cannot ask the plaintiff to choose a remedy which may be less beneficial to him.
This is of course, the normal rule, though the courts have tried to soften its rigour by importing the consideration that the plaintiff should not be allowed to delay his action in order to get the advantage of a rising market.
Speaking on the facts of the case, the Supreme Court said:
The respondent was the bailor of the two trucks and was bound to return the same on the termination of the bailment”… and then finally stated as follows:
It follows from the above that the position in law in regard to the measure of damages in an action for wrongful conversion is far from clear and the law in regard to the same cannot be said to be perfectly well-settled. Whatever be the position in. regard to the same in actions for wrongful conversion, one thing is quite clear that in actions for wrongful detention the measure of damages can only be the value of the goods as at the date of the verdict or judgment. The tort is complete the moment the goods are wrongfully converted by the defendant and no question can arise in those cases of any continuing wrong. In a case of wrongful detention, however, the cause of action may certainly arise the moment there is a refusal by the defendant to re-deliver the goods on demand made by the plaintiff in that behalf. But even though the cause of action thus arises on a refusal to re-deliver the said goods to the plaintiff the wrongful detention of the goods is a continuing wrong and the wrongful detention continues right upto the time when the defendant re-delivers the goods either of his own volition or under compulsion of a decree of the court. There is moreover this distinction between actions for wrongful conversion and those for wrongful detention that in the former the plaintiff abandons his title to the goods and claims damages from the defendant on goods on the basis that the goods have been wrongfully converted by the defendant cither to his own use or have been wrongfully dealt with by him. In the latter case, however, the plaintiff asserts his title to the goods all the time and sues the defendant for specific delivery of the chattal or for re-delivery of the goods bailed to him on the basis that he has a title in these goods. The claim for the re-delivery of the goods by the defendant to him is based on his title in those goods not only at the time when the action is filed but right upto the period when the same are re-delivered by the defendant to him. The wrongful detention thus being a tort which continues all the time until the re-delivery of the goods by the defendant to the plaintiff, the only verdict or judgment which the court can give in actions for wrongful detention is that the defendant do deliver to the plaintiff the goods thus wrongfully detained by him or pay in the alternative the value thereof which can only be ascertained on the date of the verdict or judgment in favour of the plaintiff.
12. The instant case, however is not an action on account of the alleged conversion or on account of detention of the goods by the third defendant. It is not the case of the plaintiff that the third defendant, when asked to deliver goods that belonged to the plaintiff in the sense that the plaintiff had title in the goods declined to re-deliver. It is also not the case of the third defendant in any manner appropriating the goods belonging to the plaintiff or claiming any conversion thereof. Some sort of bailment if at all, is there involving the third defendant; it is of a kind that the goods, that is to say fabric, that belonged to the plaintiff were entrusted to the third defendant for stitching and after stitching to deliver to the plaintiff. In this, how ever as we have already noticed, there has been an intervening condition that it would be the first defendant who would be procuring the orders and accordingly issuing instructions. The arrangements with the third defendant, about which we have already stated in our judgment, were interfered with primarily because the first, defendant informed the plaintiff on 28.4.1972 that only shirts would have to be manufactured in white background and any material manufactured in dark colour fabric would not be accepted. It is clear that even the little analogy that we were able to see in the case of In re. Trent and Humber Company, Ex pane Cambrian Steam Packet Company, Vol. IV, Chancery Appeals 112, is not found existing in the alleged contract with the third defendant.
13. We, however, have the benefit of another judgment of the Supreme Court on the subject in C.C. Exporters v. B & C Mills . The facts of the case before the Supreme Court were that by a contract in writing dated 9.8.1950 entered into at Bombay, the appellants who carried on business at Bombay as import and export merchants agreed to sell to the respondent, a company carrying on business also at Bombay as a Cotton Spinning and Weaving Mills, and the respondent agreed to purchase 50,000 lbs. of Italian Staple Fibre Cotton of the quality mentioned therein, at Rs. 1,350 per Candy Ex. Docks, Shipment October/November, 1950. Of this quantity, 10,000 lbs. were delivered to and accepted by the respondent company on 31.10.1950. The balance of 40,000 lbs. not having been delivered in terms of the contract, the respondent filed the suit for damages alleging that the appellants had wrongfully failed and neglected to deliver the balance of the contract goods. The appellants admitted failure to deliver this balance; but pleaded that this was not wrongful failure to deliver. The appellants averred that the non-supply of the goods arose by reason of the intermediary parties, viz. suppliers, failing to supply and deliver the goods to the defendant and also of the circumstances beyond their control, and claimed that it was exempted from any liability under printed term 16 of the contract. The defendants further pleaded that the shipment time mentioned in the contract was not guaranteed, and the time of shipment was not the essence of the contract. The contract was on a printed document, with the terms regarding quantity, quality, price, shipment, payment and the remarks column filed in manuscript. Answering the contention as to the time being the essence of the contract, the Supreme Court referring to the contents of the contract said as follows:
Remembering as we must, that in commercial contracts, time is ordinarily of the essence of the contract and giving the word ‘therefore’ its natural, grammatical meaning, we must hold that what the parties intended was that to the extent that delay in shipment stands in the way of keeping to the shipment date October/November, 1950, this shipment date was not guaranteed; but with this exception shipment October/November, 1950 was guaranteed. It has been strenuously contended by the learned Attorney-General, that the parties were mentioning only one of the many reasons which might cause delay in shipment and the conjunction ‘therefore’ was used only to show the connection between one of the many reasons by way of illustration and a general agreement that the shipment date was not guaranteed. We do not consider this explanation of the use of ‘therefore’ acceptable. If the parties intended that quite a part from delay in obtaining import licence, shipment date was not guaranteed, the natural way of expressing such intention-an intention contrary to the usual intention in commercial contracts of treating time as the essence of the contract-would be to say:
‘This contract is subject to import licence and the shipment date is not guaranteed’. There might be other ways of expressing the same intention, but it is only reasonable to expect that anybody following the ordinary rules of grammer would not use ‘therefore’ in such a context except to mean that only to the extent that delay was due to delay in obtaining import licence shipment time was not guaranteed.
Reading the document further in some detail, the court observed as follows:
We are not satisfied, however, that the terms in print would justify any such conclusion.
Dealing with the question how in case of supplies in instalments, a contract should be understood, the Supreme Court has said:
Quite clearly however the question whether delivery should be spread over the period arises only in case of instalment contracts. There is nothing however before us to show that the defendants’ contract with its Italian suppliers was an instalment contract. Even though the proprietor of the defendants’ Italian supplier was examined he said nothing which would even tend to show that the contract, between him and the defendant was an instalment contract. In the absence of the contract or any other circumstances justifying a conclusion that it was instalment contract it is not possible to accept the contention of the learned Attorney General that the defendants’ Italian suppliers would be bound to spread the supply over the period October/November, 1950.
The facts of the case before the Supreme Court justified a decree for damages. There was no intervening event that caused any interference with the completion of the contract by the appellants. The case before us, however, is one, as we have already noticed, in which when the third defendant was introduced to stitch fabrics for the plaintiff, it was given to understand that the contract with it would depend upon the demand of the first defendant. Learned single Judge has in this behalf taken notice of the nature of the contract which the plaintiff had with the third defendant and said as follows:
Even before the plaintiff-Corporation approached the third defendant, the former had already entered into the contract with the first defendant regarding the export of garments.
Learned single Judge, after a full and detailed examination of the evidence, has found that in the contract to stitch garments which the plaintiff had with the first defendant, the third defendant was not in any manner connected.
14. We have seen that the loss of business which the plaintiff had was in no way engineered by the third defendant or caused by any default by the third defendant. There is no suggestion in this case that the third defendant derived any benefit for itself by retaining the goods that belonged to the plaintiff. It is not the case of the third defendant that it agreed to stitch garments for the plaintiff, to ensure that the latter supplied to the first defendant as per schedule. We have already noticed what learned single Judge, has found in this behalf. But a reference to the evidence reveals that the starting point for the arrangement of stitching garments is the letter by Binny and Company Limited dated 8.3.1972, Ex. P-10 offering its terms for making 20,000shirts during the month of May, 1972. The contents of this letter show that the third defendant had fixed a time limit of less than two weeks for accepting the offer. The plaintiff responded to the same by its letter Ex. D-1, dated 17.3.1972 agreeing to the conditions stipulated by the third defendant and offering to supply cloth to manufacture garments in instalments. The first defendant requested the third defendant to take up the order and supply the garments comprising of a large quantity but it had no finality for the facts that had already been noticed and the changes which the first defendant introduced in the fabrics.
15. We have given our careful and anxious consideration to the facts of this case. It is not a case falling under Sections 151 to 157 or Sections 159 to 171 of the Indian Contract Act. Learned trial Judge has committed no error in holding that the plaintiff has not been able to prove any tortious act of the third defendant. There is no merit in the appeal. Accordingly, the appeal is dismissed. There will be, however, no order as to costs.