B. Panigrahi, J.
1. Plaintiff, a partnership firm, is in appeal against the judgment and decree in Money Suit No. 67 of 1982 passed by the Subordinate Judge, Bolangir, dismissing the suit.
2. The important facts leading to this appeal are as follows : The plaintiff entered into a cash-credit agreement with defendant-Bank. As per the agreement, the plaintiff is entitled to draw sixty per cent of the value of the goods pledged with the defendant. It has emerged from the pleadings that 1150 tins of ghee were kept under the custody of the defendant between 5th, June, 1980 and 30th, July 1980. Those articles were kept in 'Bank's a Godown' under lock and key. The market value of the said goods was claimed to be Rs. 3,00,000/-. On 15.12.1980, the plaintiff intended to draw a cheque for Rs. 95,000/- on the defendant-bank and it was presented for encashment on 17.12.1980, but the misfortune of the plaintiff, it is said, the said cheque was dishonoured on the ground 'not arranged for the referred to Drawer'. The plaintiff has claimed itself to be a reputed business firm having highest reputation and by such dishonour of the cheque, it must have smirched against it reputation. So the plaintiff has claimed Rs. 10,000/- towards damage for the act of the defendant which had injured its reputation. On 7.2.1981, the plaintiff sent a notice claiming delivery of the vegetable ghee tins which were pledged with the defendant-Bank and in case of failure to deliver the goods, demanded Rs. 2,30,000/- towards market price of the goods, over and above, Rs. 10,000/- as compensation. The defendant replied that the matter was referred to the controlling authority, but when no response appeared to have been made by the controlling authority, the plaintiff did not find any other way than to file the present suit claiming the value of the articles as well as for damages.
3. The defendant-Bank had, of course, admitted in its pleadings that there was a cash-credit agreement between the plaintiff andthe defendant in which the Bank had agreed permitting the plaintiff to draw sixty per cent of the value of the goods pledged. As per the agreement the plaintiff used to draw money on the pledged articles till 26th, September, 1980. On 17.12.1980, the stock position of the goods did not justify advance of such credit for which it could not, however, be said that the Bank committed any illegality in dishonoring the plaintiff's cheque. On 28th, September, 1980, there was a riot at Bolangir in which the goods were completely destroyed. The plaintiff knew about this roit and wrote to the Bank on 29th, September, 1980. The pledged goods were kept in a separate room of the godown belonging to the plaintiff and the godown had a single entrance gate fitted with a collapsible gate. It was, therefore, impossible to enter into the gate without breaking open the said gate. The defendant-Bank had taken as much care as possible which a prudent man would under similar circumstance take care of his own goods. Despite the care being taken by the defendant, those articles were damaged in the riot. So, the defendant was not responsible for the loss sustained by the plaintiff the Bank is also not liable to refund the value the goods. The goods pledged had been insured by the plaintiff and the suit was bad for non-joinder of Insurance Company as a party which was otherwise necessary as without its presence, the suit cannot effectively and completely be adjudicated. With these averments, the defendant prayed for dismissal of the suit.
4. The trial court has fixed the valuation of the damaged articles at Rs. 2,02,080/- which were allegedly Kept with the defendant, but not Rs. 2,30,000/- as claimed by the plaintiff. It has also decided that the plaintiff-firm had kept the pledged articles in the separate room inside the godown, as is evident from the statement of P.W. 1, but not in a separate godown. There was only one entry to the godown belonging to the plaintiff which was having a collapsible gate. The trial court also noticed that there was material contradiction in Exts. A and C. It is stated in Ext. A, which is the F.I.R., that the articles kept in 'Bank's godown' were taken away. In Ext. C it is described that those articles had been kept in 'plaintiff's godown'. Therefore in the above situation it could not be ascertained as to in whose godown those articles were kept. Exts. A and C were marked in the Sessions Case No. 35/9 of 1983. It was found from the statement of P. W. 1 that plaintiff gave a room from its godown where the articles had been kept. From the evidence of P.W. 1 and D. W. 2 and also the recitals made in Exts. A and C, it is clearly established that the pledged articles were not kept in a separate house, but in a room of the plaintiff's godown.
5. The trial court further noticed that P.W. 1 deposed in his evidence that he expected that a riot might take place two to threedays preceding the actual incident. Although he claimed to have informed the defendant-Bank about such incident, nothing has been filed to show that, in fact, the plaintiff informed the defendant-Bank. It is not understood as to why P.W. 1 did not inform the police about the incident, albeit, he was conscious about the said fact. From the evidence it has transpired that the plaintiff had also kept other articles in the godown and he had not appointed any watcher to keep vigil over those articles. From the clauses of the agreement, the fact, situation has emerged that the plaintiff would deposit the insurance money and the insurance policy would be delivered to the Bank. The plaintiff had filed the receipt showing money to have been deposited with the Insurance Company, but from the evidence nothing has turned out that the plaintiff had delivered the policy as per the agreement to the Bank. Since the money receipt was with the plaintiff, it was expected that the insurance policy must have been delivered to it at the first instance. In the aforesaid situation, the Bank could not have laid a claim before the Insurance Company in respect of the damage caused in course of violence. It was a joint policy. When joint claimant were there, it is not understood as to why the plaintiff also had to laid any claim before the Insurance Company.
6. The uncontroversial facts emerged from the above fact-situation are that there was a riot which broke out on 28th, September 1980. It was unexpected and beyond imagination. In the above situation, it has to be decided whether the bailee could be made responsible to make good all the losses that occurred in course of riot. In this connection, we think it appropriate to quote Section 151 of the Indian Contract act which reads as follows :
'151. Care to be taken by Bailee :
In all cases of bailment the bailee is bound to take as much care of the goods bailed to him as a man of ordinary prudence would, under similar circumstances, take, of his own goods of the same bulk, quality and value as the goods bailed.'
From the evidence of all the witnesses, it has emerged that the goods were stored in the plaintiff's godown, of course, in a separate room. The plaintiff's godown had only one entry which was fitted with collapsible gate. The access to the godown was only with the plaintiff. Admittedly, there was no watchman appointed by the plaintiff. He was also aware that such a riot would break out two to three days preceding the incident. No ostensible action is precipitated by the plaintiff to show that he had reported the matter either to the police or to the bank authorities prior to theincident. The Insurance Policy, though alleged to have been made by the plaintiff, was not handed over to the Bank. In this connection, we rely upon the judgment reported in A.I.R. 1917 Privy Council, 173 (Dwarka Nath Rai Mohan Chaudhury and another v. Rivers Steam Navigation Co. Ltd.). The relevant portion of the observation made in the said judgment is quoted below :
'Before applying themselves to a close examination on of the facts and such disputed points in the evidence as require more minute consideration, their Lordships desire to observe that good sense and the policy of the law impose some limit upon the amount of care, skill, and nerve which are required of a person in a position of duty, who has to encounter a sudden emergency. There have been many expressions of judicial opinion upon this subject, particularly in cases dealing with ships and navigation, where emergencies often arise with great suddenness. For this purpose their Lordships would select the case of the Bywell Castle, (1879) 4 P.D. 219 = 41 L.T. 747-28 W.R. 293.
In that case, which was one of collusion, the emergency was brought about by the previous wrongful manoeuver of the vessel whose owners were complaining. But this makes no different : the question was, what is to be required of a man who finds himself in a sudden emergency, however that emergency has been brought about In the court of Appeal each of the Lords Justices expressed himself in different language but to the same effect. In a moment of extreme peril and difficulty you are not to expect perfect presence of mind, accurate judgment, and promptitude. If a man is suddenly put in an extremely difficult position and a wrong order is given by him, it ought not in the circumstances to be attributed to him as a thing done with such want of nerve and skill as to amount to negligence. If in a sudden emergency a man does something which he might, as he knew the circumstance, reasonably think proper, he is not to be held guilty of negligence, because, upon review of the facts, it can be seen that the course he had adopted was not in fact the best.'
In the instant case, the incident had taken place beyond expectation. At the moment of extreme peril and difficulty, nobody would expect perfect presence of mind, accurate judgment and promptitude. Added to it, the access to the godown was only with the plaintiff. Theplaintiff also did not take any action to prevent such occurrence prior to the riot.
7. Mr. Mukherjee, learned advocate appearing for the plaintiff appellant, argued with vehemence as to why the defendant did not try to secure the amount from the Insurance Company although it was covered by the policy. We are at a loss to understand the logic in such argument, in as much as the policy was with the plaintiff and as such there could be no occasion (or the defendant to lay such claim. Much argument was advanced by faying stress upon a blank form said to have been submitted to the Insurance Company. From the records we find that the Insurance Company was summoned times without number, but the parties failed to procure any policy. The plaintiff too did not produce the policy. In the absence of the policy, mere production of a blank form containing signature of the defendant would not fix-up the liability against the Bank. It is a case of vis major, i.e. an act of God. Nobody could ever forestall that such incident would occur. It cannot be said that due to negligence this had occurred. This is a circumstance which no human foresight can provide against and which human prudence is not bound to recognise possibly. The default is also of the plaintiff itself. Therefore Section 151 of the contract Act is not attracted. In the aforesaid conspectus of the case, we are unable to disagree with the observation of trial court.
8. The appeal has no merit and the same is accordingly dismissed, but in the circumstances, without costs.
L. Mohapatra, J.
9. I agree.
10. Appeal dismissed.