1. This is an appeal by the defendant who is a firm of hardware merchants at Anjangaon. The plaintiff was the Municipal Committee, Anjangaon. The Committee and the firm entered into an agreement Ex. P-1, on 16-3-1934. Under the agreement the firm was to supply to the Committee sets of weights and measures to be used within the municipal limits of Anjangaon as per by laws of the Committee. On the basis of the agreement the firm got prepared weights and measures, delivered some and was willing to deliver more but the Committee refused to take delivery of the goods. Hence the firm instituted a suit claiming the price of the goods supplied and ready to be delivered.
2. The prior litigation between the parties ended in the judgment of the High Court in Second Appeal No. 353 of 1938, dated 18-11-1941 (Ex. P-4). The firm obtained a decree against the Municipal Committee for the price of the goods. The decretal amount was fully paid by the Municipal Committee to the firm by 5-1-1939 (vide Exs. P-2 and P-3). The goods, however, remained with the firm. After the decision of the High Court in Second Appeal No. 353 of 1938, the Municipal Committee sent three notices (Ex. P-5 dated 18-12-1941, Ex. P-6 dated 29-1-1942 and Ex. P-7 dated 12-2-1942) asking the firm to deliver the goods. To the last notice the firm replied on 21-4-1942 by Ex. D-1. The firm repudiated any responsibility for the delivery of the goods and in fact refused to deliver the goo is except on payment of rent for the keeping of the goods from 14-6-1937 till the date of the actual removal of the goods. On this the Committee instituted the suit on 8-8-1942 out of which the present appeal arises. The Committee claimed that the firm be ordered to deliver, the stock in specie on approval to the plaintiff or in the alternative to pay to the plaintiff damages in respect of the price of the goods.
3. The defendant by his written statement resisted the suit and pleaded that he was willing to give delivery of the goods only on payment of rent for the care and custody of the goods at Rs. 4 per mensem from 14-6-1937 till the removal of the goods. The defendant claimed charges for care and custody by way of a counter claim and paid court fees.
4. The learned trial Judge passed a decree for the delivery of the goods in favour of the Committee and in the alternative for Rs. 1050. The claim of the defendant for care and custody charges was decreed at Rs. 55-8-0 from 14-6-1937 to 29-1-1942 at Re. 1 per month. So the balance only was to be payable to the plaintiff.
5. The first appellate Court limited the decree for money in the alternative to Rs. 696-14-0. The appeal was dismissed.
6. In this Court the learned counsel for the respondent contended that the claim in respect of care and custody charges was barred by limitation. He relied upon Article 110 or Article 115, Limitation Act. Neither of these Articles is applicable to the Claim in question. The liability of a buyer for reasonable charges for care and custody of the goods arises under Section 44 of the Sale of Goods Act. As the liability arises under the statute apart from any contract between the parties, the Article applicable is the residuary Article 120: see Secy. of State v. Guru Proshad, 20 Cal. 51 at p. 57 F.B As the defendant claimed charges for a period within 6 years only of the filing of the written statement, the claim cannot be dismissed on the ground of limitation.
7. The next question is what is the period for which the firm can claim charges in respect of care and custody and at what rate. The contention on behalf of the firm was that there was no proper application for delivery on the part of the Committee. Hence the firm was entitled to get care and custody charges until the articles were actually removed by the Committee on 16-12-1943. On the other hand, it was contended for the Committee that the go ids could not be taken delivery of because of the attitude on the pars of the firm in refusing to deliver the goods until the care and custody charges were paid.
8. To start with, the Committee misconceived their rights and insisted upon the delivery of the goods at the premises of the Committee. Under Section 35 of the Sale of Goods Act, apart from any express contract the Seller of the goods is not bound to deliver them until the buyer applies for delivery. It was not pleaded that there was any express contract that the goods were to be delivered by the firm without any application for delivery by the Committee. Under S. 36 goods are normally to be delivered at the place at which they are at the tune of the sale. So reading Ss. 35 and 36 together, the Committee had to apply for delivery of the goods at the place at which they were at the time of the sale. The goods were with the firm. So the question is whether there was a proper application for delivery of the goods by the Committee. It is not an effective application for delivery on the part of the buyer to merely send notices or letters if goods are to be delivered at the place of the seller. Some person must be sent to whom the goods can be delivered. As it was not established that the Committee made any effective application for delivery up to 21-4-1942, I hold that the firm was enti led to reasonable charges for care and custody up to that date. Both the Courts were in error that there was a proper application for delivery by the Committee when the notice (Ex. P-6) was sent on 29-1-1942. The firm was entitled to charges for a further period of 2 months and 23 days.
9. On 21-4-1912 a definite stand was taken by the firm to the effect that the goods would not be delivered until the charges in respect of care and custody were paid. Though the price of the goods was already paid, the firm was not ready and willing to deliver the goods unless the charges were also paid. The firm could not invoke the lien under Section 46(1)(a) of the Sale of Goods Act doss not give to the seller any lien over the goods in respect of charges for care and custody recoverable under S. 44. The seller is entitled to recover them by an action against the buyer. If the seller, however, keeps the goods so that he may be the better able to enforce the payment in respect of the claim for the charges on account of care and custody, he cannot add to his claim any charges in respect of the further retention of the goods. After 21-4-1942 the goods were retained by the firm in enforcement of their supposed lien. After that date they were not entitled to any charges for the retention of the goods. As Lords Wensleydale observed in Somes v. British Empire Shipping Co., (1860) 11 E.R 459 at p. 462 : (8 H.L.C 338):
“…no person has, by law, a right to add to his lien upon a chattel a charge for keeping it till the debt is paid; that is, in truth, a charge for keeping it for his own benefit, not for the benefit of the person whose chattel is in his possession.”
10. As regards the rate of charges for care and custody, both the Courts found that Re. 1 per month was proper. Though in the written Statement the firm claimed charges in respect of care and custody, evidence given was only in respect of rent. The goods were kept in the shop of the firm. It was not established that any special charges were incurred for looking after the goods. As the evidence was only given about the charge to be made for the space used by the firm in keeping the goods, the question is whether the figure arrived at by the two Courts is proper. That figure was arrived at mainly on the evidence of Abdul Azis (P.W 2) himself a hardware merchant. The defendant (D.W 1) could not say in cross-examination what a tenant would pay for his shop. I see no reason to differ from the conclusion reached by both the Courts.
11. The learned counsel for the appellant contended that the Committee may be made to bear all costs of the suit. In view of the fact that the Committee had to institute the suit for the delivery of the goods because of the attitude taken up by the firm on and after 21-4-1942 the firm's liability for the costs of the Committee was rightly restricted by the first appellate Court to the pries of the goods. I see no reason for interfering with the order.
12. In the result, the appeal is partly allowed. The appellant is entitled to get Rs. 2-12-3 in addition to the sum decreed by the two Courts below. As the Committee has already secured the goods the appellant will now be entitled to recover Rs. 58-4-3 from the Committee. The decree of the first appellate Court will be modified accordingly. As the success of the appellant is insignificant he shall bear his own costs and pay the costs of the respondent. Counsel's fee Rs. 15.
13. Appeal partly allowed.