Shri Vidya Prakash Sethi v. Punjab National Bank, New Delhi

Pritam Singh Safeer, J.:— This appeal is directed against the decree made by a learned Single Judge of this Court on the 21st of October, 1969, by which the petitioner's suit for return of jewellery kept in safe custody with the respondent-bank or in the alternative for granting him a decree for its price which was claimed as being Rs. 32,397 with future interest at the rate of 12 per cent per annum till realisation, was dismissed.

2. We have heard the appeal at great length, and have carefully considered the contentions raised before us.

3. The plaintiff came to court alleging that he had entrusted the respondent-bank with one sealed box wrapped with white cloth and the box had 16 seals with the monogram HBS. The box was delivered to the respondent bank's branch in Rawalpindi city vide safe custody receipt No. 25/44 dated the 10th of October, 1944. It was specifically alleged in paragraph 2 of the plaint that by accepting the safe deposit box for custody the respondent to this appeal incurred the responsibility for its security. In paragraph 3 of the plaint the appellant described the ornaments in the box in detail and gave the weight of gold as being 207. 5 tolas. The plaintiff maintained a record of his own in which he described the jewellery which he had placed in the box of which a safe deposit had been made with the respondent bank. In paragraph 5 of the plaint, which we must notice was carefully drafted, the appellant before us repeated the assertion that by accepting the deposit the respondent bank had incurred the responsibility to keep the box with due care as a trustee and to be vigilant in keeping its wrappings and seals intact. It was asserted that the bank was liable to return the box in the same condition with the wrappings and seals placed by the plaintiff intact. The assertion was made in order to emphasise that in case the wrappings and the 16 seals originally placed by the plaintiff had been kept intact, the contents of the box containing the jewellery, of which the plaintiff also maintained the record, could not have been interfered with.

4. The plaintiff's entire case in the plaint is that the bank did not keep the wrappers and the seals placed by the plaintiff intact and at some stage the same as well as the jewellery in the box were interfered with. According to the plaintiff when he was given inspection of the box he found that the wrappers and the seals placed by him were not visible and the box was otherwise very light. Ultimately, when the open delivery was given it was found that most of the ornaments of which a record had been kept by the plaintiff were missing and only those ornaments were found, which the plaintiff-appellant could describe in paragraph 9 of the plaint. Alleging that the defendant had incurred the liability to compensate him the plaintiff claimed that either the specific jewellery be returned or a decree may be passed in the sum of Rs. 32,397 the amount being the price of the jewellery placed in the box by the plaintiff.

5. The defendant repelled the plaintiff's claim in terms of its written statement and one of the pleas raised was that the suit was barred by limitation. It was denied that the plaintiff could claim the jewellery or any price for the same. It was also stated that the contents of the sealed box had not been declared and disclosed at the time of making the safe deposit. The principal plea raised by the defendant, which needed thorough examination, was that on account of the partition of the country the box having become evacuee property in Pakistan by operation of law its ownership vested in the Custodian of Evacuee Property of Pakistan and for that reason the bank ceased to be liable for the safety of the box or for its safe return and, therefore, for the restoration of its contents whatever the same may have been. It was alleged in paragraph 6 of the written statement that the box was taken into possession by the Custodian of Evacuee Property from Lahore Office of the defendant bank and that later on it was given to the Government of India who brought the same to India and then delivered it to the bank. The plea on its face was a mixed plea requiring the determination as to what was the effect of the box becoming evacuee property. Both the legal as well as the factual aspects had to be adjudicated upon. In paragraph 9 the written statement asserted that it was wrong for the plaintiff to allege that the cover and seals as placed by him were not visible when the box was offered for delivery. It was also denied that the box was light in weight when it was offered to the plaintiff after receiving it from the Government of India. The defendant bank adopted the stand that it had no liability of any kind for the contents of the box. Whatever the assertions the defendant could not deny and had to admit in the written statement that while giving the receipt in respect of the open delivery the appellant before us had made a note on the back of the receipt to the following effect :—

“Received open delivery of the box as the seals and covering is not intact. Claim is preferred for the shortages.

Sd/- V.P Sethi.

1-4-1963”

6. The plaint in this case bears the date 28th of March, 1966. By reproducing the aforesaid assertion in the written statement the respondent did admit that much before the filing of the suit the plaintiff on the date of taking open delivery had made the note that the seals and coverings on the box were not intact and that there was shortage pertaining to the jewellery.

7. The trial Court framed the following issues :—

“1. What is the effect of plaintiff not claiming the return of the box after one year from 10-10-1944? O.P.D

2. Whether the defendant assured the plaintiff about any jewellery or agreed to make good any loss to the plaintiff? O.P.P

3. Whether the box had vested in the Custodian of evacuee property of Pakistan under Pakistan Law: If so, to what effect? O.P.D

4. Whether the suit as filed is not maintainable regarding jewellery and its price? O.P.D

(Onus objected to)

5. Whether the plaint does not disclose of (sic) any cause of action. If so, to what effect? O.P.D

6. Whether the suit is within time? O.P.P

7. Whether the box entrusted to the defendant contained the jewellery stated in para 3 of the plaint: If so, to what effect? O.P.P

8. Whether the defendant is guilty of neglect, breach of trust, misappropriation and tampering with the box: If so, to what effect? O.P.P

9. Whether the plaintiff received back only the jewellery stated in para 9 of the plaint, and if so, under what circumstances the said open delivery was taken by the plaintiff and what is the effect thereof? O.P.P

10. Whether the plaintiff declared the value of the box to be nil and did not disclose the contents thereof and, if so, to what effect? O.P.D

11. To what amount, if any, is the plaintiff entitled on account of the price of jewellery? O.P.P

12. Relief

The parties adduced oral as well as documentary evidence.

8. In the course of the hearing of this appeal we came across the letter written by Shri Dharam Vira on the 22nd of May, 1962, as the Secretary of the Government of India in the Ministry of Rehabilitation to the General Manager of the Punjab National Bank Limited, the respondent to this appeal. We found that the document was a copy of the original which was sent to the respondent. P.W 10 G.G Mariwala, Assistant, Department of Rehabilitation, Jaisalmer House, New Delhi, had been summoned by the plaintiff with the file containing the copy of the said letter. He was examined on the 5th of August, 1968, and stated that he had brought the summoned file containing the letter dated the 22nd of May, 1962, and that he was producing the same in court. In that manner the copy of the letter came to be a part of the record. It was not exhibited. After hearing the counsel for the parties we passed an order on the 23rd of October, 1975, in the course of which we observed that since the original letter was in possession of the bank the secondary evidence in respect thereof could have become admissible under section 65 (b) of the Indian Evidence Act, provided a notice had been given by the plaintiff to the defendant to produce the original as required by section 66 of the said Act. As the notice had not been given, we took the view that the office copy on the record having come from an unimpeachable source and the document being very important for the decision of the case, we should resort to the provision contained in order 41, rule 27 (1) (b) of the Code of Civil Procedure. In order to pronounce judgment we felt that it was necessary to have the original document before us. For that purpose we directed the respondent to produce the original letter of Shri Dharam Vira dated the 22nd of May, 1962. On the 27th of October, 1975, we observed that in case the respondent required any further time that will also be given and that in case the respondent wanted to file by way of further evidence any reply which may have been given to the said letter permission would be given to file the same. This may also serve the same purpose as of a notice under section 66 of the Evidence Act. When we took up the appeal on the 27th October, 1975, the learned counsel appearing for the bank stated that the original letter dated the 22nd of May, 1962, had been received by the bank but that further time should be given for producing the original letter. While giving the time we observed that in case the original letter was not to be produced the copy already on the record would be taken as true copy and would become part of the record. We adjourned the arguments to the 12th of November, 1975. The learned counsel for the respondent affirmed on that date that the original letter although received by the respondent bank was not traceable and could not be produced. We then passed the order admitting in evidence the copy of the letter which appears on pages 201-202 of the paper book pertaining to this appeal. That order having been passed under order 41, rule 27 (1) (b) of the Code of Civil Procedure, the said letter, the contents of which would be considered in the course of this judgment, stands proved.

9. An application had been made by the appellant under order 41, rule 27 of the Code of Civil Procedure which was noticed at page 124 of the paper book. It contained the prayer that permission be given to produce the documents annexed as X and Y by way of additional evidence. We heard the counsel for the parties in detail. We found that annexure X was a true copy of the Pakistan Gazette dated the 30th of August, 1961, certified by Shri R.C Wazirani, Section Officer, Ministry of Labour and Employment and Rehabilitation, Government of India, who had on the 7th of May, 1965, signed over an official stamp. We came to the conclusion that the document was a public document within section 74 (1) (iii) of the Evidence Act and was provable by production of a certified copy. The certificate which appeared on the document was conclusive of its authenticity. We then turned to annexure Y and found that it contained a list of the contents of the box which had originally been placed in safe deposit by the appellant with the respondent. The contents were originally contained in a register maintained by the petitioner. The same were copied by him on a piece of paper on 9th March, 1965, and sent to the Deputy High Commissioner for India in Lahore in order to obtain safe delivery of the concerned box. The document sent by the plaintiff to the Deputy High Commissioner was itself an original document. The plaintiff had summoned P.W 4 Ganesh Sahai, U.D.C, Ministry of Rehabilitation to produce that document. The witness produced the relevant file but left with the court an office copy of the document. We noticed that the Ministry had returned the original letter Exhibit P. 4 to the petitioner and the same having been filed before the learned single Judge as Exhibit P. 4, it became a part of the record. A typed copy of the list was annexed to the said letter as annexure P/5 and appears at page 142 of the paper book. We found that the appellant was urging that a photo-stat copy of the original document which he had sent to the Deputy High Commissioner for India in Lahore be placed on the record. We came to the conclusion that the original document having been with the Government for a long time i.e 1949 onwards, the authenticity of the document was beyond doubt. We then by our order made on the 23rd of October, 1975, after recording the reasons admitted both the documents, X and Y in evidence under order 41, rule 27 of the Code of Civil Procedure. In the light of the evidence produced before the trial Judge and the three documents mentioned above which have been admitted in evidence by us under order 41, rule 27 (b) we proceeded to examine the contentions raised on behalf of the parties.

10. The appellant vehemently contended that he placed his own wrappers and seals on the box when he delivered it for safe deposit to the respondent bank at Rawalpindi on the 10th of October, 1944, on account of which the bank incurred the liability to keep it in safe custody. The respondent-bank issued receipt No. 25/44. The contention of the plaintiff remains uncontroverted that the box was given by the plaintiff to the respondent bank on the aforementioned date for safe custody as against the receipt bearing No. 25/44. The plaintiff has drawn our attention to page 139 of the paper book where appears the photo-stat copy of the safe custody receipt No. 25/44 dated 10th October, 1944. Page 139 is followed by page 140. On page 139 the assertion in the receipt is :—

“One sealed box wrapped with white cloth labelled 16 seals monogram (H.B.S ). Contents unknown. ”

The document is an attested true copy. The attestation is by a notary public. It bears the signatures of the Cashier, Accountant and the Manager of the respondent-bank. The receipt precisely mentions that the box had been received from the present appellant for safe custody. On page 140 amongst the conditions it is mentioned that the seal to be used was to be that of the depositor and not of the bank. It is clear that 16 seals had been put by the appellant. The appellant urges that before placing the ornaments in the box he had maintained the record in respect thereof in his register which described the ornaments and their weight. We have noticed that in clause 3 of the conditions it was stated that the receipt was being issued on the express conditions that in the event of the loss or destruction of the safe custody box or any part thereof by dacoity, fire, or other accident or Vis major over which the bank might have no control, the bank shall not be under any liability or responsibility in respect of the box.

11. The foregoing condition was to the effect that the bank was to be absolved of its responsibility only where the box given for custody or any part thereof was to suffer loss or destruction on account of dacoity, fire or other accident or vis major over which the bank had no control. We have to examine whether the bank ever lost control of the box and if so with what result.

12. One of the conditions was that the bank would have the right to cancel the deposit by giving a fortnight's notice in writing and that the depositor would take away the box within that period. It is nobody's case that any notice was ever given. We turn to the plaintiff's contention that at the time when he gave the box for safe custody he kept with himself a list of its contents. We find that he produced Exhibit P. 25 before the trial Judge which is a letter dated the 30th of March, 1949. It was sent from Nagpur. The letter was addressed to the Deputy High Commissioner for India in Pakistan, Property Section 105, Upper Mall, Lahore. It bears the signatures of one Dharam Dut Bhandari who described himself as RRO, C.P He stated in the letter that he was forwarding along with it an application dated the 23rd of March, 1949, submitted by the present appellant who was a refugee from West Pakistan. It was stated in the letter that the enclosures mentioned at serial No. 33 had been forwarded directly to the Manager, Punjab National Bank, Lahore. The partition of the country had taken place in 1947 and the appellant had been requesting for obtaining the box which had been given for safe deposit. In the course of those efforts he made an application which had been duly forwarded to the Deputy High Commissioner for India in Pakistan. Exhibit P. 25 is continued on pages 153-154. The appellant's application, which was forwarded, was addressed to the Deputy High Commissioner for India in Pakistan. At item (3) in the application the letter mentioned was the one addressed to the Punjab National Bank, Lahore, for transferring the box from Rawalpindi to Lahore. The description at items 5 and 6 in Exhibit P. 25 is very significant. The same may be reproduced :—

“Item 5. Original safe deposit receipt No. 2-25/44 of 10-10-1944. Item 6. List of contents. ”

13. We at once, come to the conclusion that the plaintiff-appellant did not hesitate to send the original safe deposit receipt No. 2-25/44 which had been issued in respect of safe deposit accepted by the respondent. The other conclusion is that the appellant on the 23rd of March, 1949, many years before any dispute arose between the parties i.e anti motum litem and long before the institution of the suit in 1966 sent to the Deputy High Commissioner for India in Pakistan a list of the contents of the box which contained the description of the ornaments which tallies with the description in the plaint in the suit. As we have observed earlier we have admitted in evidence the document annexure Y under order 41, rule 27 (1) (b) of the Code of Civil Procedure in terms of our order dated the 23rd of October, 1975. That document is a list of contents of the box. It tallies with the description of the contents given in the plaint. The plaintiff obtained an attested copy of the list of contents sent by him as is evidenced by Exhibit P. 4 which appears on page 141 of the paper book. That attested copy of the list of contents of the safe custody box describes the jewellery contained in it at the time it was given for safe custody. The list was sent to the plaintiff by no other person than Shri A.G Wasvani, Settlement Commissioner and Ex-officio Under Secretary to the Government of India. It stands established by oral and documentary evidence that at the time the plaintiff-appellant placed the jewellery in the box he maintained a list of it in his register and on the basis of that list he sent his aforementioned application through the official channel to the Deputy High Commissioner for India in Pakistan in 1949. It stands proved that the box when given for safe deposit contained the jewellery mentioned in the plaint. We may at once notice that the learned Single Judge while recording his findings under issue No. 11 came to the conclusion that the plaintiff had proved the market rate of gold as on 1st April, 1963, and the evidence had not been repudiated by the defendant. The learned Single Judge observed that had the plaintiff been found entitled to any price he would have been given the price claimed in suit. No argument has been addressed on behalf of the respondent to controvert the findings recorded by the Single Judge under issue No. 11. We conclude that as on the date when open delivery was given to the plaintiff i.e on the 1st of April, 1963, the missing jewellery was of the value which has been found correct by the learned Single Judge and which was the value claimed through the suit.

14. We may here and now dispose of the contention that the suit was barred by time. The open delivery was given on the 1st of April, 1963. It was only on that date that the plaintiff-appellant came to know that most of the jewellery contained in the box was missing. He could have filed the suit for the reliefs claimed within three years. The learned trial Judge was right in holding that the suit was filed within time and the contention raised before us that it should have been held time barred is meritless.

15. The question which really falls for decision is as to whether the concerned box given for safe deposit remained in the custody of the respondent bank or not and as to whether there is enough of proof on the record for granting relief to the plaintiff. It was found by the trial Judge as is clear from the observations made on page 102 of the paper book that the contents of the box had been pilfered. Under issue No. 7 the learned Single Judge concluded that the box did contain the jewellery mentioned in the plaint. What remains to be determined is as to whether the box remained in the legal and physical custody of the respondent so as to continue its responsibility to deliver it in the same condition in which it had been offered as a safe deposit. It is contended on behalf of the respondent that Administration of Evacuee Property Ordinance had been issued in terms whereof the concerned box came to be owned by the Custodian of Evacuee Property, Pakistan. It is submitted by the appellant that similar ordinances were issued and the law promulgated in Pakistan as well as in India was identical. The appellant prepared a paper book pertaining to the Evacuee and Rehabilitation Laws in Pakistan and India and gave copies thereof to us as well as to the counsel appearing for the respondent-bank. No provisions contrary to the provisions relied on by the appellant have been cited before us on behalf of the respondent to the appeal.

16. Section 6 in the relevant ordinance was to the following effect :—

“S. 6. Vesting of evacuee property in Custodian. “ (1) All evacuee property shall vest in the Custodian and shall be deemed always to have vested in the Custodian with effect from the first day of March, 1947. ”

The mere vesting of the property according to us did not mean the losing of its physical control by the bank. The relevant sub-sections (1) and (2) in section 7 make the position clear :—

“S. 7. (1) Every person who is, or has at any time after the twentyeighth day of February, 1947, been in possession, supervision or management of any evacuee property shall be deemed to hold or to have held, as the case may be, on behalf of the Custodian.

(2) Every person who is in possession, supervision or management of any evacuee property or property which he knows or has reason to believe is evacuee property shall, as soon as may be but not later than such date as may be notified by the Central Government in the Official Gazette intimate to the Custodian in writing his willingness to surrender such property to the Custodian or to any person authorised by the Custodian in this behalf and shall surrender the same if called upon by the Custodian or any person authorised as aforesaid. ”

17. Interpreting the aforequoted provisions we hold that on a plain reading thereof the supervision and management of the evacuee property which vested in the Custodian was to be such that the property was to be held on behalf of the Custodian and the actual physical possession was not interfered with. The person having the physical possession was to supervise or manage the evacuee property as a person acting on behalf of the Custodian. That did not mean that such a person was necessarily to lose its physical control. Only the supervision or management was to be deemed as being on behalf of the Custodian and the person holding the physical possession was to be deemed to be holding it on behalf of the Custodian. It meant that although supervising or managing the property while having its physical possession fee concerned person remained answerable to the Custodian and was to be deemed to be acting on his behalf. Sub-section (2) is of great significance. According to the postulation in that provision the person in possession of the property carrying out its supervision or management was to state in writing his willingness to surrender the property to the Custodian. He was also under a legal liability to surrender it only if called upon to do that.

18. The respondent bank has failed to prove that the Custodian of Evacuee Property in Pakistan at any time issued any demand calling upon the respondent to surrender the property. No document has been placed on the record by the respondent containing any demand by the Custodian Evacuee Property, Pakistan, requiring that the box containing the appellant's jewellery be surrendered. We will later on deal with the transfer of the box from Pakistan to India.

19. With the law as it continued to stand it remains unproved that the Custodian of Evacuee Property, Pakistan, ever obtained a physical surrender of the property and thus became possessed of it. Even when there was a formal transfer of the deposits in lockers from the Banks in Pakistan to Government of India, it was only under the supervision of the said Custodian and not by the Custodian taking from the custody of the respondent and giving into the custody of the Government of India.

19. As we have observed earlier, the letter, dated the 22nd of May, 1962, has been admitted in evidence because of its significance and when we will deal with the transfer of the box, it will come in for consideration. We may, however, notice that the Governments of India and Pakistan passed the Transfer of Evacuee Deposits Acts of 1954. The Government of India passed Act XV of 1954, dated the 26th of March, 1954, and the Government of Pakistan passed Act VI of 1954, dated the 8th of April, 1954. Both the enactments provided for the transfer of the evacuee deposits. The enactments were the result of an agreement between India and Pakistan. The transfer of deposits was covered by statute. We have to examine as to in whose possession the safe deposit box belonging to the appellant remained till it was transferred to the Government of India. In this behalf we may first refer to Exhibit P. 35 a letter, dated the 7th of May, 1957. The letter was addressed by the Manager of the respondent bank to the present appellant and was in reply to the letter sent by him under the date 23rd of April, 1957. The petitioner was informed through the letter :—

“We have to inform you that your safe custody articles have been included in the list of safe custody articles supplied by our Lahore office to the Deputy Rehabilitation Commissioner, Rents and Repairs, Lahore. ”

How could have the Lahore Branch of the bank supplied the list including the item pertaining to the box with which this litigation is concerned if it was not actually in the custody of the bank? This is a document which came into being much earlier than the open delivery given to the appellant on the 1st of April, 1963. There is other conclusive evidence concerned with this aspect. Exhibit P. 64 on page 175 of the paper book is a reply sent to the notice given to the respondent by the appellant through his counsel Shri R.L Kohli. If anything, the reply proves to the hilt that after the box was given for safe deposit to the bank in 1944, it all along remained with the respondent till it was given for a while to the Government of India under the scheme of transfer agreed to by the Governments of India and Pakistan. It is necessary to quote from the reply sent by the respondent :—

“The seals and the covering of the safe custody box deposited by your client with the bank became worn out with the passage of time. The bank as prudent measure put only a wrapper to protect the seals and the covering whatever was left of the same by the passage of time. ”

20. The aforequoted is a serious admission on behalf of the respondent. It is serious because it admits the custody of the box and the fact that with the passage of time the seals and the covering pertaining to the box given for safe custody “became worn out”. The document however, contains another clinching admission which is :—

“The box remained with the bank under its proper care and the question of tampering on the part of the bank does not arise. ”

Question of tampering on the part of the bank could not arise. The respondent bank as a legalistic person did not possess any hands to tamper with the box. There is no explanation as to how tampering with the box occurred while it was in the actual custody of the bank.

21. The legal plea raised, in the course of the litigation is also propounded in the reply to which we are making reference. The words used in the communication were :—

“The said safe custody box became evacuee property under the Evacuee legislation in Pakistan and came to be vested in the Custodian of evacuee property and it remained thereafter with the bank at the disposal of the Custodian. ” (Emphasis added).

The plea that the vesting of the box in the Custodian of Evacuee Property, Pakistan, interfered with the responsibility and obligations of the bank loses all merit in the face of the foregoing admission. The reason is that the admission clearly states that in spite of vesting in the Custodian of Evacuee Property the said safe custody box remained after such vesting with the bank although at the disposal of the Custodian. Such an admission made on the 16th of July, 1965, persuades us to the view that the respondent bank had admittedly the physical possession of the safe custody box belonging to the appellant before us. It was for that reason that the bank was acting with due care as a bailee.

22. We may now refer to another document which is a letter dated the 17th of April, 1957, Exhibit P. 68 in the course whereof it was stated :—

“We have to inform you that the safe custody articles of our Pakistan Branches are lying with our Lahore office and our Lahore office supplied lists of the safe custody articles lying with them to the Deputy Rehabilitation Commissioner. Rent and Repairs, Lahore. ”

The aforesaid admission along with Exhibit P. 64 from which we have quoted leads to an irresistible conclusion that all along the custody of the box with which this litigation is concerned along with other safe custody articles remained with respondent. Vesting in the Custodian of Evacuee Property, Pakistan, fastened an additional liability on the bank to keep the box intact and not to deal with it in any way which may prejudice the vesting. The vesting however, never diverted the respondent of the physical custody of the box. We cannot accept the submission on behalf of the respondent that at any time before it was given to the Government of India under the supervision of Custodian of Evacuee Property, Pakistan, the respondent lost its physical custody.

23. As to what happened when the box with which this litigation concerned was given to the Government of India and what is the effect thereof, we obtain a clear idea about that from the letter dated the 22nd of May, 1962, written by Shri Dharam Vira the then Secretary to the Government of India in the Ministry of Rehabilitation to the General Manager of the respondent bank which was admitted in evidence under order 41, rule 27 of the Civil Procedure Code and to which admission in evidence reference has been made in the earlier part of this judgment. The letter needs to be reproduced in extenso :—

“Office copy of the D.O written by Shri Dharam Vira Secretary to Government, Ministry of Rehabilitation to the General Manager of the Punjab National Bank Ltd. on 22nd May, 1962, produced by P.W 10. Shri G.C Mariwala, Assistant, Department of Rehabilitation. Jaisalmer House, New Delhi on August 5, 1968, in Court.

No. 3 (2)/LSD/62,

New Delhi, May 22, 1962.

My dear —.

As you know, under the movable property agreement between the Governments of India and Pakistan, contents of lockers and safe deposit of displaced persons held with banks in the two countries have been transferred from one country to the other at Government level. Accordingly, 47 safe deposits belonging to displaced persons held with your branches in Pakistan were handed over to the representatives of Government of India, through the Custodian of Evacuee Property, Pakistan, by the Lahore branch of your bank on the 30th November, 1961.

2. It was observed that all the safe deposits handed over by your bank had new packings and bore the seals of your bank.

3. We have since delivered 12 safe deposits transferred by your bank to the claimants. Unfortunately, in ten cases the depositors have complained that the whole or substantial part of the jewellery from their safe deposits were found missing. In some cases, as reported to this Ministry, it was found that all the original seals of the depositors had been broken and the newly wrapped packages contained nothing except the original packing cloth and/or a few old things. In certain cases the depositors have written to your bank about their missing jewellery, and in reply they have been informed that due to passage of time, dampness, white ants etc. the original wrappers as well as the seels affixed thereto had been worn out and, therefore, the bank, as a measure of prudence, put new wrappers and seals over the safe deposits, and further that the bank is not responsible for the contents of the safe deposits.

4. Since the percentage of complaints is very high, (10 out of 12), the matter needs serious consideration. Ordinarily, the bank should not have removed or covered the original wrappers without securing the approval of the depositor and if the circumstances necessitated such action, they should have done so in presence of the representatives of Governments of India and Pakistan. The omission has given the depositors a reasonable cause of grievance and some sort of enquiry is called for in regard to the missing articles.

5. We shall be grateful if you will kindly let us have your views in the matter at an early date.

Yours sincerely,

Sd/-

(Dharam Vira 22-5-62)

Shri R.L Tuli,

General Manager,

The Punjab National Bank Ltd.,

H.O Parliament Street,

New Delhi.

24. The first paragraph in the aforequoted communication proves that 47 safe deposits belonging to the displaced persons held in the various branches of the respondent bank in Pakistan were handed over to the representatives of the Government of India through the Custodian of Evacuee Property. Pakistan, by the Lahore Branch of the respondent bank on 30th November, 1961. The above assertion leads to the following conclusions :—

(i) that the safe deposits belonging to the displaced persons in various branches of the respondent bank in Pakistan had been transferred to the Lahore branch of the bank;

(ii) that in accordance with the agreement between the Governments of India and Pakistan 47 items of safe deposits were handed over to the representatives of the Government of India but the handing over actually was by the Lahore branch of the respondent bank; and

(iii) that the Lahore branch of the respondent bank till the date and time of the handing over of the items of safe deposit held the physical custody thereof.

25. Proceeding further the assertion in paragraph 2 made by Shri Dharam Vira was that all the 47 safe deposits handed over by the bank had new packings which bore the seals of the bank itself. We conclude that as from the year 1944 when the concerned box was placed in safe custody with the respondent bank till the 30th of November, 1961, it had been in the physical custody of the bank and for some reasons the bank had placed its new packings and seals on all the 47 items of safe deposits before the delivery to the Government of India. This is an aspect of prime importance for the reason that before 47 items of safe deposits including the box with which this litigation is concerned were handed over, the bank had taken care to place its own wrappings and seals on all the items. It has never been the case of the respondent throughout this litigation that at the time when the box was returned to the bank by the Government of India for being made over to the claimant anybody in the Government of India had interfered with the box. In paragraph 3 of the aforequoted communication it is stated that the Government of India had delivered twelve safe deposits to the claimants and that in 10 cases the depositors had complained that the whole or substantial part of the jewellery from the safe deposits was found missing. That was a very serious allegation being made by no less a person than a Secretary to the Government of India. He proceeded further and stated in his communication that it had been reported to his Ministry that all the original seals of the depositors had been broken and new wrapped packages contained nothing except original packing cloth and a few old things. The Secretary also noticed that in certain cases the depositors had complained to the respondent bank about their missing jewellery and in reply had been informed that due to the passage of time white ants etc. had interfered with the original wrappers as, well as with the seals and therefore new wrappers and seals had to be fixed.

26. It was never asserted that the white ants had damaged any part of the box. The box may have been of wood or of some metal. In paragraph 4 of the communication it was alleged by Shri Dharam Vira that since the percentage of the complaints was very high (10 out of 12) the matter needed serious consideration and that the bank should not have ordinarily removed or covered the original wrappers without securing the approval of the depositors and if circumstances had necessitated any action it should have been taken in the presence of the representatives of the Government of India and Pakistan. We must express our strong surprise that in spite of the opportunity given to the learned counsel appearing for the respondent bank he has not only not produced the original letter dated the 22nd of May, 1962 but has also pleaded inability to produce any reply which may have been sent to Shri Dharam Vira. It is indeed intriguing why in the face of the allegations contained in the letter written by a Secretary to Government of India the bank kept silent. The silence estops the bank according to all concepts of equity and justice from asserting that the contents of the safe deposits were not interfered with during the period that the safe deposits were held in custody by the bank. No evidence has been adduced by the bank in this case to the effect that at any time the physical custody was taken over by the Custodian of evacuee property Pakistan and that any protest had been made to the Government of India while receiving back the box that it was not in the same condition in which it was given. The letter which has been reproduced was written under the date 22nd May, 1962. The bank without protest took back 3 the box and gave open delivery thereof to the appellant on the 1st of April, 1963. It was never the case of the respondent bank that when the box was received from the Government of India it had been interfered with. We are persuaded that the bank had all along remained liable for restoring the box to the plaintiff with whatever contents it contained. We have held that the appellant has successfully proved that the box when given to the respondent bank contained the items of jewellery mentioned in the plaint.

27. The liability of the respondent bank was the one fixed by section 154 of the Indian Contract Act 1872 which is :—

“S. 154: If the bailee makes any use of the goods bailed which is not according to the conditions of the bailment, he is liable to make compensation to the bailor for any damage arising to the goods from or during such use of them. ”

If any employee of the bank during the consequential years interfered with the box and pilfered it as held by the learned Single Judge then the bank certainly remained responsible for making compensation.

28. Apart from section 154 the bank having held the physical custody of the box and having interfered with the original wrappings and seals put by the appellant without having given him opportunity of inspecting the box and its condition, acted in circumstances which raise suspicion that someone interfered with the contents of the box during the bailment and for that reason the original wrappers and the seals were so damaged that the same had to be discarded or placed under a new wrapper by the bank authorities which wrapper had to be clamped under new seals of the bank. No case has been made out for exonerating the bank from its responsibility. We cannot uphold the findings by the learned Single Judge recorded under issue No. 8 and we are of the view that the bank remains liable for the price of the items of jewellery which were found missing on the 1st of April, 1963. We cannot hold that by operation of law the bank was over divested of the physical custody of the box. As discussed in detail, the physical custody of the concerned box always remained with the respondent bank. We are also in disagreement with the view that the calamity of the partition absolved the respondent bank from its responsibility as a bailee. In reply to the letter dated the 22nd of May, 1962, the bank never repelled serious allegations that the contents of the safe deposits had been interfered with and fresh wrappers and seals had been put on the safe deposits behind the back of the depositors. We, therefore accept the appeal and decree the plaintiff's suit. The suit was filed on the 28th of March, 1966, and the finding by the trial Judge was that in case of his success the plaintiff was to be entitled to the price of the jewellery as stated in the plaint. The decree is being made for a sum of Rs. 32,397 and the appellant will be entitled to receive interest at the rate of 6 per cent per annum as from the 28th of March, 1966, till the date of realisation. He has gone through great hardship and his claim has been resisted without justification. We, therefore, allow him the costs of the suit as well as of the appeal. A decree will be drawn up in accordance with these observations. The appeal being allowed is hereby disposed of.

Appeal allowed.