Full Judgment Text
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PETITIONER:
DHIAN SINGH SOBHA SINGH & ANOTHER
Vs.
RESPONDENT:
THE UNION OF INDIA
DATE OF JUDGMENT:
29/10/1957
BENCH:
BHAGWATI, NATWARLAL H.
BENCH:
BHAGWATI, NATWARLAL H.
IMAM, SYED JAFFER
GAJENDRAGADKAR, P.B.
CITATION:
1958 AIR 274 1958 SCR 781
ACT:
Bailment-Non-delivery of goods by bailee-Rights and remedies
of bailor-Election-Action for wrongful detention and
wrongful conversion-Distinction-Value in the alternative, if
as at the date of decree-Value stated in the notice, if a
bar to recovery of appreciated value-Damages for wrongful
detention-Principle of assessment-Code of Civil Procedure
(Act 1 of 1908), s. 80.
HEADNOTE:
The appellants, by an agreement, let out two trucks on hire
to the respondent. The respondent terminated the agreement
but failed to return the trucks on the fixed date on the
plea that they had already been returned to a partner of the
appellants. The appellants served the statutory notice
under s. 80 of the Code of Civil Procedure and, on the
respondent’s failure to comply, brought a suit for wrongful
detention claiming, inter alia, return of the trucks or
their value in the alternative as stated in the notice and
damages for wrongful detention till delivery. Claim was
also made for such appreciated value of the trucks as would
prevail at the date of the decree by paying additional Court
fee. The trial court held that the return of the trucks as
alleged by the respondent was not justified, and, besides
the rent claimed in the suit, passed a decree for recovery
of the price of the trucks in the alternative as stated in
the notice and interest thereon by way of damages, holding
that the price as at the date of the tort was sufficient
compensation in law either for wrongful conversion or for
wrongful detention. The High Court affirmed the decision of
the trial court so far as the recovery of the price in the
alternative was concerned holding that the respondent could
not be called upon to pay more than what it was asked to pay
by the notice, but disagreed on the question of award of
damages and enhanced the decree to the extent of the claim
as tentatively laid in the appeal.
Held, that the courts below were in error in deciding the
matter as they did and the appeal must be allowed.
Where the bailee fails to deliver the goods, the bailor has
normally the right to elect his own remedy and sue him
either for wrongful conversion or for wrongful detention.
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If he chooses to adopt the latter remedy, the bailee cannot
take advantage of his own wrongful conversion and compel the
bailor to choose the other remedy to his disadvantage.
Reeve v. Palmer, (1858) 5 C.B. (N.S.) 84, and Wilkinson v.
Verity, (1871) L.R. 6 C.P. 206, referred to.
The cause of action in a suit for wrongful detention, unlike
that in a suit for wrongful conversion is a continuing one
,and
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the measure of damages must be the value of the goods not as
at the date of the tort but as at the date of the judgment.
Although the cause of action arises with the refusal of the
bailee to deliver the goods, it continues till delivery is
made by the bailee or he is compelled to do so by a decree
of court. While in a suit for wrongful conversion the
plaintiff abandons his title and claims damages in lieu of
the goods, in a case of wrongful detention the plaintiff
claims delivery of the goods on the basis of his title that
subsists till the date of decree. Consequently, the value
of the goods in the alternative on failure of delivery can
be ascertained only at the date of the decree.
Rosenthal v. Alderton & Sons Ltd., [1946] 1 K.B. 374,
referred to.
Case-law discussed.
It is well settled that in a suit for wrongful detention the
plaintiff is entitled not merely to the delivery of the
goods or their value in the alternative but also to damages
for the wrongful detention till the date of the decree. The
principle for assessing such damages must be the same as in
any other case where the wrongful act of one so injures
something belonging to another as to render it unusable or
something is taken away so that it can no longer be used,
and the amount of damages must be ascertained by a
reasonable calculation after taking all relevant
circumstances into consideration. In the instant case the
High Court should have made a reasonable calculation of the
number of days the trucks could have been put to use by the
appellants and awarded damages accordingly.
Strand Electric & Engineering Co., Ltd., (1952) 2 Q.B. 246,
Owners of the Steamship " Mediana " v. Owners, Master and
Crew of Lightship "Comet", [1900] A.C. 113, referred to.
Anderson v. Passman, [1835] 7 C. & P. 193, held
inapplicable.
While the terms of s. 80 of the Code of Civil Procedure must
be strictly complied with, that does not mean that the terms
of the section should be construed in a pedantic manner or
in a manner completely divorced from common sense. There
can be no doubt on a reasonable construction of the terms of
the section that the value of the trucks as stated in the
notice in the instant case, could be no other than the value
as on the date fixed for delivery and, consequently, it
could be no bar to the recovery of such appreciated value as
prevailed at the date of the judgment.
Bhagchand Dagadusa v. Secretary of State, (1927) L.R. 54
I.A. 338, considered.
Jones v. Nicholls, (1844) 13 M. & W. 361: E.R. 149, and
Chandu Lal Vadilal v. Government of Bombay, I.L.R. [1943]
Bom. 128, referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5 of 1954.
Appeal from the judgment and decree dated April 7, 1948, of
the Nagpur High Court in First
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783
Appeal No. 27 of 1954 arising out of the judgment and decree
dated July 7, 1944, of the Court of Third Additional
District Judge, Nagpur, in Civil Suit No. 10-B of 1943.
N. S. Bindra and Gyan Singh Vohra, for the appellants.B. Sen
and H. L. Hathi (for R. H. Dhebar), for the respondent.
1957. October 29. The following Judgment of the Court was
delivered by
BHAGWATI J.-This appeal with a certificate of fitness under
s. 110 of the Code of Civil Procedure raises an important
question as to the rights and remedies of a bailor in the
event of non-delivery of the goods by the bailee.
The appellants carried on business in partnership in the
firm name and style of " Ishwarsing Dhiansingh " and were
the owners of two motor trucks, one bearing No. AWB 230 (V-8
Ford 1938 Model) and the other bearing No. AWB 253
(Oldsmobile Model 1938). On May 4, 1942, the appellants
entered into an agreement for the hiring out of these trucks
to the respondent for imparting tuition to the military
personnel. Rupees 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 said agreement truck No. AWB 230 was handed
over to the respondent on April 29, 1942, and truck No. AWB
253 was given on May 4, 1942. The respondent used truck No.
AWB 230 from April 29, 1942, to July 31, 1942, excepting the
period from June 4, 1942, to June 9, 1942, and truck No. AWB
253 from May 4, 1942, to July 31, 1942, excepting the period
from June 1, 1942, to June 9, 1942. On June 29, 1942, the
respondent gave notice to the appellants terminating the
agreement with effect from August 1, 1942, and asked them to
remove the trucks on the expiration of that period. The
appellant No. 1 attended upon the Officer Commanding 4
M.T.T. Centre, Kamptee at about 9 a.m. on August 1, 1942,
for removing the trucks but they were not delivered
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to him by the transport in-charge and by his letter of the
same date addressed to the S. S.O., Kamptee, the appellant
No. 1 put the above fact on record.
The respondent did not return the trucks to the Appellants
nor did it pay any hire charges to them. The respondent
took up the position that the amount of hire 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 as well as return the trucks to them.
On August 4, 1942, the appellants gave the requisite notice
under s. 80 of the Code of Civil Procedure to the respondent
and claimed (i) the hire money up to July 31, 1942, at Rs.
17 per day for AWB 230 from April 29, 1942, and for AWB 253
from May 4, 1942, and interest at 6% on the hire money from
the due date till realization (ii) damages at Rs. 17 per day
per truck from and inclusive of August 1, 1942, onwards till
delivery of possession and (iii) return of the trucks Nos.
AWB 253 and AWB 230 in good running order with spare wheels,
accessories and tools and in good condition or in the
alternative Rs. 3,500 being the price of the said two
trucks.
The respondent failed and neglected to comply with the
requisitions contained in the said letter with the result
that on January 8, 1943, the appellants filed a suit against
the respondent and the said Surjan Singh claiming the
aforesaid reliefs together with future damages from the date
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of suit to the date of the delivery of the trucks and costs.
In the plaint as filed the cause of action was stated to be
the failure of the respondent to pay hire money and the non-
delivery of the trucks to the appellants by reason of their
having been wrongfully delivered by the respondent to the
said Surjan Singh. It was averred that the appellants were
entitled to the return of their trucks or their value at the
date of the decree. The appellants reserved their right to
claim excess
785
amount if the price of the trucks at that time was found
more than what was claimed by them owing to the rise in
prices thereof, by paying additional courtfee. The action
was one for wrongful detention and the appellants claimed a
return of the trucks or in the alternative the price thereof
at the date of the decree, payment of hire and damages for
wrongful detention of the said trucks. The respondent
reiterated its contentions in the written statement which it
filed and the parties went to a hearing on these pleadings.
The Trial Court held that the respondent was not justified
in paying the rent and delivering the trucks to the said
Surjan Singh. It awarded to the appellants the price of the
two trucks which had been fixed by the appellants at Rs.
3,500 both in the notice under s. 80 of the Code of Civil
Procedure and the evidence led on their behalf. It also
awarded to the appellants interest on that sum at 6% per
annum by way of damages. It, however, refused to grant any
mesne profits holding that for either detention or
conversion, the value of the goods on the date of the tort
was sufficient compensation. The rent of the trucks was
calculated at Rs. 2,380 and it awarded to the appellant that
sum together with interest thereon at 6% per annum from
August 1, 1942, to January 7, 1943. It accordingly passed a
decree in favour of the appellant for Rs. 6,032-4-0 with
proportionate costs against the respondent as well as Surjan
Singh.
The appellants preferred an appeal to the High Court of
Judicature at Nagpur. They claimed a total sum of Rs.
11,985 as also the highest market value of the trucks. In
so far as a decree for Rs. 6,032 had already been passed by
the Trial Court in their favour, they valued the subject-
matter of the appeal at Rs. 5,953 and accordingly furnished
court-fee stamp for that amount.
The Office of the Registrar took objection to the amount of
that court-fee and on February 19, 1945, a Bench of the High
Court passed an order that the appellants must pay court-fee
on Rs. 16,626 being the claim for rent from the date of the
suit till the date
786
of the filing of the appeal and the appellants accordingly
paid the additional court-fee of Rs. 1,279-11-0 on February
28, 1945.
The appeal was heard by a Division Bench of the High Court
On April 1, 1948. The High Court disallowed the appellants’
claim for the higher value of the trucks on the ground that
the appellants had merely claimed Rs. 3,500 as the price of
the said trucks in the notice under s. 80 of the Code of
Civil Procedure. The learned judges were of the opinion
that although it might be permissible to allow some latitude
when the substance of the claim was clear it would not be
right to tell the respondent that only Rs. 3,500 was being
claimed if the trucks were not returned and then in the suit
to demand something like Rs. 14,000. They accordingly
upheld the decree of the Trial Court in this regard. As
regards the claim for damages for wrongful detention of the
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trucks the learned judges held that the appellants should be
compensated for being deprived of the use of the trucks
between August 1, 1942, the date of the breach and July 7,
1944, the date of the Trial Court’s decree. They, however,
observed that the appellants might not have been able to
keep the trucks in use for every day all over the period,
that there might be days when the trucks would be out of
use, that there might be days when there would not be any
hirers for the trucks, and that there might be days when the
trucks would lie idle for repairs and overhaul and so forth.
Even though all this was taken into consideration the
learned judges thought that compensation at the rate of Rs.
17 per day_ per truck for a substantial portion of the
period stated above would be fair. Having arrived at the
above conclusion the learned judges observed that the
appellants had no doubt paid an additional court-fee at a
later stage but the fact that they had originally limited
their claim to Rs. 5,953 showed that they considered that a
fair sum in the beginning. The learned judges therefore
limited the enhancement of the Trial Court’s decree to Rs.
5,953 the sum which the appellant bad originally claimed in
the appeal. The Trial Court’s decree was accordingly
enhanced by Rs, 5,953 thus
787
allowing the appellant a further sum of Rs. 5,477 for
compensation under that head and the appeal was allowed with
costs to that extent.
The appellants thereafter applied for a certificate of
fitness to appeal under s. 110 of the Code of Civil’
Procedure and hence this appeal.
The two main points which have been urged by the appellants
before us are : (i) that the ’appellants’ suit was one for
wrongful detention and the appellants were entitled to
return of the two trucks or in the alternative to the value
thereof as on the date of the decree, that the value of the
two trucks at the date of the decree was Rs. 7,000 each and
the Trial Court should have awarded to them a sum of Rs.
14,000 in the alternative and (ii) that in addition to the
above relief the appellants were entitled to damages for
wrongful detention of the trucks calculated at the rate of
Rs. 17 per day per truck from August 1, 1942, being the date
of the accrual of the cause of action till July 7, 1944,
which was the date of the decree passed by the Trial Court
in their favour.
The reply of the respondent was (i) that at its worst the
respondent was to the knowledge of the appellant guilty of
wrongful conversion of the said trucks from August 1, 1942,
and that the appellants were only entitled to damages for
wrongful conversion which are commensurate with the price of
the trucks at the date of such wrongful conversion and (ii)
that even if the appellants were entitled to any further
damages since August 1, 1942, they were merely the damages
for nonpayment of the value of the trucks by the respondent
and should be assessed at only 6% interest per annum from
the date of such conversion till payment. The respondent
further contended that even on the basis of wrongful
detention the appellant would not be entitled to anything
more than the price of the said trucks as at the date of the
Trial Court’s decree plus nominal damages for the wrongful
detention of the trucks from August 1, 1942, till July 7,
1944. In so far however as the High Court had awarded to
the appellants the sum of Rs. 5,953 in addition to the sum
100
788
of Rs. 6,032 already awarded by the Trial Court in their
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favour, the appellants were not entitled to anything more
and that therefore the appeal was liable to be dismissed.
It would be relevant to consider what is the exact scope of
the two forms of action, viz., action for wrongful
conversion and action for wrongful detention, otherwise
known as action in trover and action in detinue. 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 some one 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 plaintiff’s 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 chattel or
its value. If a 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 & Lindsell on Torts, 11th Edition,
pages 441 and 442: paras. 720 & 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 sur bailment was lawful.
Detinue lies against him who once had but has improperly
parted with possession. At common law the natural remedy
789
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 possession cannot be had together in
any case with damages for their detention. (Salmond on
Torts, 11th Edition, pages 351, 352 & 353).
Judgment for the petitioner in trover is for recovery of
damages 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 forms 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. Denning J. (as he
then was) in Beaman v. A.R.T.S. Ltd. (1) gave the following
history of their evolution at page 92:" The modern causes of
action for wrongful detention or for conversion are very
different from the old forms of action for detinue or for
trover, and must not be confused therewith. Detinue in its
original form was a real action founded on a bailment which
was extended later to cases against a finder. It had,
however, many procedural disadvantages, and, in particular,
the defendant could wage his law. On this account, it was
superseded in the course of time by trover, which for over
150 years was in practice the common remedy in all cases of
taking away or detention of chattels or of their misuse or
destruction. In 1833 the defendant in detinue lost his
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right to wage his law. In 1852 the old forms of actions
were abolished. In 1854 the plaintiff gained the right to an
order for specific delivery of the chattel detained. Since
that time there have developed the new causes of action of
conversion and wrongful detention, the names of which are
derived from the old forms of action, but the substance of
which is quite different. I attempt no precise definition,
but, broadly speaking, the cause of action in conversion is
based on an
(1) [1948] 2 All E.R. 89, 92.
790
unequivocal act of ownership by the defendant over goods of
the plaintiff without any authority or right in that behalf.
The act must be an unequivocal act of ownership, i.e., an
act such as acquiring, dealing with, or disposing of the
goods, which is consistent only with the rights of an owner
as distinct from the equivocal acts of one who is entrusted
with the custody or handling or carriage of goods. A demand
and refusal is not, therefore, itself a conversion, but it
may be evidence of a prior conversion. The cause of action
in wrongful detention is based on a wrongful withholding of
the plaintiff’s goods. It depends on the defendant being in
possession of the plaintiff’s goods. If such a defendant,
without any right so to do, withholds the goods from the
plaintiff after the plaintiff has demanded their return, he
is, for such time as he so withholds them, guilty of
wrongful detention: This is the tort of which a bailee or
finder is guilty who is in possession of the goods and fails
to deliver them up within a reasonable time after demand,
though it may also, in the case of a bailee, be a breach of
contract. If the bailee or finder subsequently disposes of
the goods, he is guilty of conversion, but the wrongful
detention then comes to an end and is swallowed up in the
conversion."
Paton on " Bailment in the Common Law " (1952 Edition) has
the following observations to make in regard to these two
forms of causes of action at page 404:
" The following maxim has been suggested as a guide for
plaintiffs: if the market is falling sue in conversion, if
it is rising sue in detinue. This is the orthodox view and
it shows that even to-day the distinction between the old
forms of action is important."
Whether the plaintiff files an action for wrongful
conversion or for wrongful detention this is essentially a
matter for his election ; he can sue the bailee who has
parted with wrongful possession of the goods in favour of a
third person either in trover on in detinue or where the
goods have been sold be may waive the tort and sue as upon
an implied contract for money
791
had or received. (Halsbury’s Laws of England, Hailsham
Edition, Vol. 33, page 69, para. 115). The defendant cannot
be heard to say that the plaintiff knew or ought to have
known of the conversion of the goods by him and therefore
should pursue his remedy only in conversion. He cannot take
advantage of his own wrong. It was held as early as 1858 in
Reeve v. Palmer (1) by Cockburn C.J.
" It has been held from a very early time that where a
chattel has been bailed to a person, it does not lie in his
mouth to set up his own wrongful act in answer to an action
for detinue, though the chattel has ceased to be in his
possession at the time of the demand.....................
Williams J. also observed:
"All the authorities, from the most ancient time, shew that
it is no answer to an action of detinue, when a demand is
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made for the re-delivery of the chattel to say that the
defendant is unable to comply with the demand by reason of
his own breach of duty." The said decision was affirmed in
appeal before the Exchequer Chamber and that may be taken to
be the settled law on this point.
Wilkinson v. Verity (2) also laid down the same principle of
election of the remedies and the following observations of
Willes J. at page 210 are apposite:
" The misconduct of the party who acts in fraud of the
bargain in such cases gives the other party thereto the
election of suing either for the first violation or for non-
performance at the day; and it does not furnish the
wrongdoer with any answer to the
latter........................
On the other hand, if the action of detinue is resorted to
as it may be (Com. Dig. Detinue A) for the purpose of
asserting against a person entrusted for safe custody a
breach of his duty as bailee, by detention after demand,
independent of any other act of conversion, such as would
make him liable in an action of trover, it should seem that
the owner is entitled to sue, at election, either for a
wrongful parting with the
(1) (1858) 5 C.B (N.S.) 84, 90, 91-
(2) (1871) L.R. 6 C.P. 206.
792
property (if he discovers and can prove it) or to wait until
there is a breach of the bailee’s duty in the ordinary
course by refusal to deliver up on request and that in the
latter case, it is no answer for the bailee to say that he
has by_ his own misconduct incapacitated himself from
complying with the lawful demand of the bailor.
In that case, the principle that a man intrusted with
property for safe custody cannot better his position by
wrongfully parting with possession of it, but must be
answerable as if he retained the possession, was applied
both in this Court and in the Exchequer Chamber to the
action of detinue..................... And this is agreeable
to the maxim, " Qui dolo desiit possidere pro possidente
Damnatur."
It may be noted that this case of Wilkinson v. Verity (1)
was followed by the Court of Appeal in England in Rosenthal
v. Alderton & Sons Ltd. (2 ) and by the High Court of
Australia in John F. Goulding Proprietary Limited v. The
Victorian Railways Commissioners (3).
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 sue 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 at an earlier date which
fact of conversion of the goods the plaintiff knew or ought
to have known at or about that 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
(1) (1871) L.R. 6 C.P. 206.
(3) 48 C.L.R. 157, 167.
(2) [1946] 1 K.B. 374.
793
and cannot ask the plaintiff to choose a remedy which may be
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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. A
speculative element might enter into the matter and a shrewd
plaintiff might attempt to take unfair advantage of a
fluctuating market. " Just as plaintiff may not waive a
conversion so as to pick his own time to demand return and
thus evade being statute barred, so he may not bide his time
after a conversion so as to make his demand when the market
price is highest." (Kialfray (12) Modern Law Review at page
427).
In the present case, however, we are not fettered by any
such consideration. The respondent was the bailee of the
two trucks and was bound to return the same to the
appellants on the termination of the bailment. The bailment
came to an end on August 1, 1942, and the appellants
attended the office of the Officer Commanding 4 M.T.T.
Centre, Kamptee on the said date for having the trucks re-
delivered to them. When the said trucks were not so
delivered the appellants immediately on August 14, 1948,
gave the statutory notice to the respondent under s. 80 of
the Code of Civil Procedure. The period of the said notice
expired on or about October 14, 1942, and the appellants
filed their action for wrongful detention on January 8,
1943. There was no delay on the part of the appellants
which would spell out any intention on their part to take
advantage of the rising market or to waive their remedy in
wrongful conversion with a view to take advantage of the
statute of limitation. There is no evidence to show that
the market value of the trucks had appreciated perceptibly
between August 1, 1942, and January 8, 1943, and it is
significant to note that the only claim which the appellants
had made in their notice dated August 4, 1942, was for
specific delivery of the said trucks by the respondent.
Even though the appellants knew that the said trucks had
been redelivered by the respondent to Surjan Singh and they
794
could have, if they had been so minded, sued the respondent
for wrongful conversion of the said trucks, they elected to
have the said trucks re-delivered to them and asked for the
specific delivery thereof and filed their action for
wrongful detention of the said trucks. They were, in our
opinion, perfectly entitled to do so and we have to consider
the further questions that arise before us on the basis that
the action for wrongful detention had been rightly
instituted by the appellants against the respondent.
This leads us to the question as to what relief the
appellants are entitled to obtain against the respondent.
The claim for the rent already due by the respondent to the
appellants up to August 1, 1942, has been settled by the
judgments of the courts below and we are not called upon to
canvass these findings of fact any further. The more
important questions that require to be dealt with are: (1)
What is the amount which the appellants are entitled to
recover from the respondent as and by way of the value of
the two trucks in the alternative-the respondent being
admittedly not in a position to re-deliver the said trucks
to them and (2) what are the damages which the appellants
are entitled to recover by reason of wrongful detention of
the trucks till the date of judgment.
As regards the first question the Trial Court unfortunately
did not properly appreciate the evidence which was led by
the appellants before it. That evidence was given on or
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about February 1, 1944, more than a year after the
institution of the suit and about five months before the
date of the decree. The evidence such as it stood was to
the effect that the prices of similar trucks had
considerably appreciated after August 1, 1942, and broadly
stated were at least twice those which obtained on or about
that date. The claim of the appellants as laid was no doubt
exaggerated and on the evidence the Trial Court would not
have been justified in awarding to the appellants anything
like the sum of Rs. 7,000 per truck which had been claimed.
The evidence however was sufficient to enable the Trial
Court to come to the conclusion that the price of the said
two trucks which had been fixed at Rs. 3,500 both in the
notice under a. 80 of the Civil
795
Procedure Code as well as in the plaint had appreciated at
least by 100% and if the Trial Court had come to the
conclusion that the appellants were entitled to the value of
the trucks as at the (late of the judgment it would
certainly have been justified in awarding to the appellants
an aggregate sum of Rs. 7,000 in the alternative. The Trial
Court however understood the position in law to be that for
either detention or conversion the value on the date of the
tort was sufficient compensation and awarded to the
appellants only a sum of Rs. 3,500 which was the value
thereof on August 1, 1942, together with interest at 6% per
annum as and by way of damages. The Trial Court was
obviously wrong in awarding this sum and interest to the
plaintiff for the reasons which we shall presently discuss.
When the matter went to the High Court the learned judges of
the High Court did not discuss this aspect of the question
at all but dismissed the claim of the appellants merely on
the ground that the appellants had only claimed Rs. 3,500 in
the notice which they had served on the respondent under s.
80 of the Code of Civil Procedure and that they were
therefore not entitled to recover anything more than the sum
of Rs. 3,500 and they accordingly upheld the decree of the
Trial Court in this behalf
We are constrained to observe that the approach of the High
Court to this question was not well founded. The Privy
Council no doubt laid down in Bhagchand Dagadusa v.
Secretary of State (1) that the terms of this section should
be strictly complied with. That does not however mean that
the terms of the notice should be scrutinized in a pedantic
manner or in a manner completely divorced from common sense.
As was stated by Pollock C. B. in Jones v. Nicholls (2) "We
must import a little common sense into notices of this
kind." Beaumont C. J. also observed in Chandu Lal Vadilal v.
Government of Bombay (3): "One must construe section 80 with
some regard to common sense
(1) (1927) L.R. 54 I.A. 338.
(2) (1844) 13 M. & W. 361, 363; 153 E.R. 149, 150.
(3) I.L.R. [1943] Bom. 128.
101
796
and to the object with which it appears to have been
passed........... If the terms of the notice in question be
scrutinized in this manner it is abundantly clear that the
relief claimed by the appellant was the a re-delivery of the
said two trucks or in the alternative payment of Rs. 3,500
being the value thereof. The value which was placed by the
appellants on the trucks was the then value according to
them-a value as on August 1, 1942, the date on which the
delivery of the trucks ought to have been given by the
respondent to the appellants. The appellants could only
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have demanded that sum as on the date of that notice. They
could not sensibly enough have demanded any other sum. If
the respondent had complied with the terms of that notice
then and there and re-delivered the trucks to the appellant,
nothing further needed to be done. If on the other hand
instead of re-delivering the trucks it paid to the appellant
the value thereof then also it need not have paid anything
more than Rs. 3,500 to the appellant, on that alternative.
If, however, the respondent failed and neglected to comply
with the requisitions contained in that notice the
appellants would certainly be entitled to recover from the
respondent the value of the said trucks in the alternative
on the failure of the respondent to re-deliver the same to
the appellants in accordance with the terms of the decree
ultimately passed by the Court in their favour. That date
could certainly not be foreseen by the appellants and it is
contrary to all reason and common sense to expect the
appellants to have made a claim for the alternative value of
the said two trucks as of that date. The respondent was and
ought to have been well aware of the situation as it would
develop as a result of its non-compliance with the terms of
that notice and if on January 8, 1943, the appellants in the
suit which they filed for wrongful detention of the said
trucks claimed re-delivery of the said trucks or in the
alternative Rs. 3,500 as their value and reserved their
right to claim the further appreciation in the value of the
trucks by reason of the rise in prices thereof up to the
date of the decree by paying
797
additional court-fee in that behalf, it could not be laid at
their door that they had not made the specific demand in
their notice to the respondent under s. 80 of the Code of
Civil Procedure and that therefore their claim to recover
anything beyond Rs. 3,500 was barred under that section. A
common sense reading of the notice under s. 80 would lead
any Court to the conclusion that the strict requirements of
that section had been complied with and that there was no
defect in the same such as to disentitle the appellants from
recovering from the respondent the appreciated value of the
said two trucks as at the date of the judgment. It is
relevant to note that neither was this point taken by the
respondent in the written statement which it filed in answer
to the appellants’ claim nor was any issue framed in that
behalf by the Trial Court and this may justify the inference
that the objection under s. 80 bad been waived. The point
appears to have been taken for the first time before the
High Court which negatived the claim of the appellants for
the appreciated value of the said trucks.
Turning then to the question whether the appellants were
entitled to the value of the said trucks in the alternative
as at the date of the judgment or at the date of the tort,
whether it be conversion or wrongful detention, the position
appears to be a little confused. Recent cases indicate that
there is much conflict concerning the true rule to apply as
to the measure of damages in detinue and conversion. As to
the time at which the value of the goods which are the
subject-matter of the tort should be assessed it is not
certain (a) whether the rule is the same in trover as in
detinue; (b) whether damages should be calculated at the
moment of the wrong, or of the verdict or at some
intermediate period and (c) whether the doctrine of special
damage can be so used as to compensate the owner for
fluctuations in value. (Paton on " Bailment in the Common
Law", page 404).
Up to 1946 the trend of the authorities in England was to
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 23
assess the value of the goods at the date of the breach
where the action was for breach of contract and as at the
date of the tort where the action was for
798
wrongful conversion or for wrongful detention. There was
an old authority of Mercer v. Jones (1) which laid down that
the damages should be the value at the time of the
conversion. This authority was relied upon by the
Attorney-General in Greening v. Wilkinson (2) but Abbott
C.J. observed that case was hardly law, and that the amount
of damages was for the jury, who might give the value at the
time of the conversion, or at any subsequent time in their
discretion, because the plaintiff might have had a good
opportunity of selling the goods if they had not been
detained. He expressed the opinion that the jury were not
at all limited in giving their verdict by what was the price
of the article on the day of the conversion. This case was
considered and not applied in Johnson v. Hook (3) and the
position which obtained was that the damages were to be
assessed on the value of the property at the date of the
conversion.
Bodley v. Reynolds (4) was an action in trover for goods and
chattels comprising of carpenters tools. Special damages
were also claimed and proved and the Court awarded not only
the value of the goods at the date of conversion but also
special damages as laid in the declaration. Lord Denman C.
J. observed that where special damage was laid and proved,
there could be no reason for measuring the damages by the
value of the chattel converted. In effect this confirms the
position that apart from this circumstance the damages would
be measured by the value of the chattel converted which
value was taken as at the date of conversion.
Reid v. Fairbanks (5) was also an action in trover. It was
held that the proper principle on which to estimate such
damages, would be, the value of the ship and all her store,
etc., on the date when the third party took possession of
her; and that, as a, mode of ascertaining such value, the
referee should consider what would have been the value of
the ship,
(1) (1813) 3 Camp. 477; 170 E.R. 1452.
(2) (1825) 1. Car& P. 625 ; 17, E. R. 1344.
(3) (1883) 31 W.B. 812.
(4) (1846) 8 Q.B. 779; 115 E.R. 1066.
(5) (1853) 13 C.B. 692 ; 138 E.R. 1371.
799
if she had been completed by the defendant according to his
contract with the plaintiff and deduct therefrom the money
that would necessarily have been laid out by the defendant
after that date, in order to complete her according to the
contract. The value of the ship was thus calculated as at
the date of the conversion even though the method of
computation was prescribed by the circumstances of the case.
In S. S. Celia v. S. S. Volturno (1) the House of Lords had
to consider the question whether the proper date for
ascertaining the rate of exchange for the purpose of
converting the amount payable into English currency was the
date on which the detention occurred or the date on which
the damages were assessed or payment made. Lord Buckmaster
at page 548 said:
" A judgment, whether for breach of contract or for tort,
where, as in this case, the damage is not continuing, does
not proceed by determining what is the sum which, without
regarding other circumstances, would at the time of the
hearing afford compensation for the loss, but what was the
loss actually proved to have been incurred either at the
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time of the breach or in consequence of the wrong. With
regard to an ordinary claim for breach of contract this is
plain. Assuming that the breach complained of was the non-
delivery of goods according to contract, the measure of
damage is the loss sustained at the time of the breach
measured by the difference between the contract price and
the market price of the goods at that date.
Similar considerations apply to an action for tort. In
cases where, as in the present, the damage is fixed and
definite, and due to conditions determined at a particular
date, the amount of damage is assessed by reference to the
then existing circumstances and subsequent changes would not
affect the result. If these damages be assessed in a
foreign currency the judgment here, which must be expressed
in sterling, must be based on the amount required to convert
this
(1) [1921] 2 A.G. (H.L.) 544, 548.
800
currency into sterling at the date when the measure was
properly made, and the subsequent fluctuation of exchange,
one way or the other, ought not to be taken into account."
Lord Sumner expressed himself in these terms at page 555:
" The matter may be tested in this way. Suppose that, as an
incident of the collision, some seaman belonging to the
Celia had taken possession on behalf of her owners of a
parcel of Italian currency notes, the property of the owners
of the Volturno, and that the former had received and kept
it. The owners of the Volturno could have claimed damages
for conversion of the notes or their return with damages for
their detention, as they chose. In the first case the value
of the notes would be taken and exchanged into sterling as
at the date of the conversion, and as the foundation of the
damages in the second case the same date would have been
taken."
The following passage from Lord Wrenbury’s speech at page
563 clearly sets out the position in law:
" The argument to the contrary is that the defendant is
bound by a pecuniary payment to put the plaintiff in a
position as good as that in which he stood before the tort
was committed. That is true, but it is necessary to add the
consideration of which we have recently heard so much, in
the form of a fourth dimension-namely, that of time. The
defendant is bound to make such pecuniary payment as would
put the plaintiff at the date of the tort in as good a
position as he would have been in had there been no tort.
If the date taken be that not of the tort but of the judg-
ment, it is giving the plaintiff not damages for the tort,
but damages also for the postponement of the payment of
those damages until the date of the judgment. If such later
damages can be recovered as under circumstances they may be
if the defendant improperly postpones payment, they would be
recovered in the form of interest. They would be damages
not for the original tort, but for another and a subsequent
wrongful act."
801
In the Arpad (1) where the plaintiff laid alternative claims
in contract and tort it was held that the true measure of
damages was the value of the goods at the date of the non-
delivery, disregarding circumstances peculiar to the
plaintiffs and that on the alternative claim in tort for
damages for conversion also, the measure of damages was the
same. Scrutton L.J. observed in the course of his judgment
at page 205 :
" In my opinion the damages in conversion should be the
value to the purchaser or goods owner at the time of the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 23
conversion."
The last case in this series is that of the Caxton
Publishing Co. v. Sutherland Publishing Co. (2). Lord
Porter in his speech at page 201 defines conversion in the
terms following:
" As to (3) conversion was defined by Atkin J. as he ’then
was, in Lancashire and Yorkshire Rly. Co. v. MacNicoll (88
L.J. (K.B.) 601, 605). "Dealing", he said’ "with goods in a
manner inconsistent with the right of the true owner amounts
to a conversion, provided that it is also established that
there is also an intention on the part of the defendant in
so doing to deny the owner’s right or to assert a right
which is inconsistent with the owner’s right."
This definition was approved by Scrutton L.J. in Oakley v.
Lyster [1931] 1 K.B. 148, 153.
" Atkin J. goes on to point out that, where the act done is
necessarily a denial of the owner’s right or an assertion of
a right inconsistent therewith, intention does not matter.
Another way of reaching the same conclusion would be to say
that conversion Consists in an act intentionally done
inconsistent with the owner’s right, though the doer may not
know of or intend to challenge the property or possession of
the true owner."
After thus defining conversion the learned law Lord
proceeded to Consider the measure of damages suffered from
that act and he observed at page 203:
" As to (4) there is no dispute as to the principle on which
in general the measure of damages of
(1) [1934] P. 189
(2) [1939] A.C. 178.
802
conversion is calculated. It is the value of the thing
converted at the date of the conversion, and this principle
was accepted by both sides in the present case."
While thus enunciating the principle on which the measure of
damages for conversion is to be calculated the noble law
Lord referred to the statement of Abbott C. J. in Greening
v. Wilkinson (supra) and stated:
" I should wish to leave open for consideration in a case in
which it directly arises the question whether the statement
of Abbott C. J. in Greening v. Wilkinson that the jury " may
give the value at the time of the conversion or at any
subsequent time " can be supported or not."
The catena of authorities quoted above shows that but for
the reservation made by Lord Porter in the last mentioned
case in regard to the statement of Abbott C. J. in Greening
v. Wilkinson (supra) the consensus of opinion was that the
damages for tort were to be measured as at the date of the
tort, though it may be noted that most of these cases were
concerned with wrongful conversion of the goods and not with
the wrongful detention thereof.
In 1946 the Court of Appeal in England laid down in the case
of Rosenthal v. Alderton & Sons Ltd. (supra) that in detinue
the value of the goods should be measured as at the date of
the judgment or verdict, and not at the date of the refusal
to return the goods. The action there was one of detinue.
The plaintiff who was a tenant of the defendants surrendered
his tenancy in June, 1940, and, by arrangement with the
defendants left on the premises certain goods belonging to
him. In 1943, after his return from a period of military
service, the plaintiff found that the goods were missing,
some of them having been sold by the defendants. On October
6, 1943, the plaintiff through his solicitors demanded the
return of the goods and, on the defendants’ refusal to
comply, brought an action against them claiming the return
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of the goods and, in the alternative, the payment to him of
their value and damages for their detention. It was con-
tended on behalf of the defendants that a demand by
803
the plaintiff for the return of the goods having been
refused by the defendants several months before the issue of
the writ; the proper assessment of the value of such of the
goods as had not been returned by the defendants should have
in accordance with their value on the date when the cause of
action arose, which was (as it was claimed), notoriously
less than their value as assessed by the official referee
after action was brought. This contention of the defendants
was negatived and the Court held that in an action of
detinue, the value of the goods to be paid by the defendants
to the plaintiff in the event of the defendants’ failing to
return the goods to the plaintiff must be assessed as at the
date of the verdict or judgment in his favour and not at
that of the defendants’ refusal to return the goods.
Evershed J. who delivered the judgment of the Court dealt
with this contention at page 378 as under:
"In our judgment an assessment of the value of the goods
detained (and not subsequently returned) at the date of the
accrual of the cause of action (i.e., of the refusal of the
plaintiff’s demand) must presuppose that on that date the
plaintiff abandoned his property in the goods: and such a
premise is inconsistent with the pursuit by the plaintiff of
his action of detinue. The significance of the date of the
refusal of the plaintiff’s demand is that the defendant’s
failure to return the goods after that date becomes and
continues to be, wrongful. Moreover, the plaintiff may
recover damages in respect of the wrongful ’detention’
after that date, e.g., where the plaintiff has suffered
loss from a fall in value of the goods between the date of
the defendant’s refusal and the date of actual return, (See
William v. Archer (1847) 5 C.B. 318) and such damages must
equally continue to run until the return of the goods or (in
default of return) until payment of their value. There is
(as appears from the forms of judgment mentioned) a clear
distinction between the value of the goods claimed in
default of their return and damages for their detention,
whether returned or not. The date of the refusal of the
plaintiff’s demand is the date from which the latter
commence to run,
102
804
but appears to be irrelevant to the former and cannot
convert a claim for the return of the goods into a claim for
payment of their value on that date."
A further contention was urged on behalf of the defendants
in that case that the value of certain of the goods which
they had in fact sold could not in any event be assessed at
any higher value than at the date of the sale. This
contention was negatived by the Court in the terms following
at page 379:
"In other words they say "We have proved that we converted
some of your goods and therefore, we can have the benefit of
any lower value prevailing at the date of the conversion".
It is, however, clear that it is no answer for a bailee,
when sued in detinue, to say that he has by his own
misconduct incapacitated himself from complying with the
lawful demand of the bailor-of. Wilkinson v. Verity
(supra). It seems to us that the defendants are, in effect,
saying "Your real remedy is in conversion," but the bailor
can, in such circumstances elect to sue in detinue (at any
rate where he was not aware of the conversion at the time),
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and there is no reason why the value of the goods in fact
converted should be assessed on a different basis from the
value of the goods which the bailee has not converted but
which for some other reason be fails to re-deliver."
These observations are the basis of the headnote which says
that the same principle applies whether the defendant has
converted the goods by selling them or has refused to return
them for some other reason.
This decision of the Court of Appeal lays down that where
the defendant has been guilty of wrongful conversion of the
goods or the wrongful detention thereof, the plaintiff is
entitled to damages for such tort committed by the defendant
measured at the value of the goods which are the subject-
matter of the tort computed as at the date of the verdict or
judgment and not at the date of the tort. If this is the
true position it would run counter to the rule which had
been settled all along up to 1946 that the measure of
damages in an action for tort would be the value of the
goods at the date of the tort. As a matter
805
of fact Denning J. (as he then was) commented on this
position in Beaman v. A. R. T. S. Ltd. (supra) at page 93:
"A recent decision of the Court of Appeal holds that the
damages in such cases are to be assessed at the date of the
judgment or verdict in the plaintiff’s favour : See
Rosenthal v. Alderton & Sons Ltd. (supra) ; but that does
not mean that the cause of action accrues at that time. The
observations of Lord Goddard C. J. in Sachs v. Miklos (1948)
(I All E. R. 67) considerably limit the scope of Rosenthal
v. Alderton, and, should prices hereafter fall, the courts
will probably be faced with the task of reconciling
Rosenthal v. Alderton with the settled rule that damages,
whether in contract or tort, are to be assessed as at the
date of the accrual of the cause of action and that
subsequent fluctuations upwards or downwards in rates of
exchange or commodity prices, before or during legal
proceedings, are irrelevant: See the decision of the House
of Lords in S. S. Celia v. S. S. Volturno (supra)
particularly the speeches of Lord Buckmaster ([1921] 2 A. C.
544, 548), of Lord Sumner (ibid., 556), and Lord Wrenbury
(ibid., 563), and the long line of cases of buyers who sue
sellers for conversion of, or for failure to deliver, goods
bargained and sold (such as France v. Gaudet (1871) L.R. 6
Q.B. 199) where the damages are always assessed as at the
date of the breach."
The qualification added by the Court of Appeal on the
bailor’s right to elect to sue in detinue, "at any rate
where he was not aware of the conversion at the time",. has
also been commented upon by Paton on " Bailment in the
Common Law " at page 405, that on a strict historical basis,
this qualification is unnecessary, but the Courts have added
it to prevent a plaintiff delaying his action in order to
get the advantage of a rising market.
In Sachs v. Miklos (1) the Court of Appeal discussed the
measure of damages in a case that raised the point very
neatly. In 1940 a bailor agreed with a bailee that the
latter should gratuitously store his furniture
(1) [1948] 2 K .B. 23.
806
in her house. In 1944, the bailee wished to get rid of the
furniture and, after fruitless attempts to get in touch with
the bailor, sold it. The furniture realised pound 13 at a
public auction. In 1947 the bailor sued for detinue and
conversion, and the current value of the furniture was now
assessed at pound 115. Lord Goddard C. J. (with whom Tucker
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L. J. and Jenkins J. concurred) stated "that the measure of
damages is the same in conversion as in detinue, where the
facts are only that a defendant has the goods in his
possession and could hand them over, and would not do so"
and as a result the damages fall to be assessed as at the
date of the verdict or judgment. These observations of
Goddard C. J. were understood by Denning J. in Beaman v. A.
R. T. S. Ltd. (supra) as considerably limiting the scope of
Rosenthal v. Alderton (supra). The following comment oil
the case by Winfield on Tort, 6th Edition at page 442 may be
noted with interest:
"It seems, however, that Rosenthal’s case simply laid down
that where the plaintiff sues in detinue the same-principle
of assessment of damages applies whether the defendant
refuses to return the goods because he has converted them or
for some other reason fails to return the goods. This
hardly warrants the conclusion that the measure of damages
is the same in detinue as in conversion. As we have seen
the two actions are distinct in their nature and purpose."
Paton on " Bailment in the Common Law " at page 405 has the
following comment to make, on this position :
" The Court reached a conclusion that was based on common
sense and a desire to do justice to both parties, but in
certain respects breaks new ground. The crucial question
was: What was the plaintiff’s loss ? What damage did he
suffer by the wrongful act of defendant ? If the plaintiff
knew or ought to have known in 1944 of the defendant’s
intention to sell, the damages would be justly calculated at
pound 13. If he did riot know, or ought not to have known,
till 1946 that his goods were sold, then the damages should
be
807
assessed at pound 115. The case was remitted to the County
Court judge in order that the facts might be further
elucidated. The Court also emphasised one further factor.
It was clear that the plaintiff knew of the sale in January,
1946, but he did not begin the action till January, 1947.
If the County Court judge found that there was an undue
delay in bringing the action and that there had been a rise
in price between 1946 and 1947, then allowance must be made.
This point disposes of the criticism that a speculative
element enters into the matter and that a shrewd plaintiff
might attempt to take unfair advantage of a fluctuating
market."
Paton further states that this is an interesting decision,
but a short survey of the cases shows that the earlier
authorities, especially with regard to conversion, are by no
means clear. (See also Salmond on Torts, 11th Edition at
page 347).
The difficulty, however, arises when there is an increase in
the value of the goods which are the subjectmatter of the
tort between the date of the tort and the date of the
verdict or judgment and there is authority for the
proposition that any increment in value due to the act of
the defendant is not recoverable by the plaintiff. Salmond
thus summarises the position in his treatise on Torts, 11th
Edition at page 348 :
" If, on the other hand, where the property increases in
value after the date of the conversion, a distinction has to
be drawn. If the increase is due to the act of the
defendant, the plaintiff has not title to it, and his claim
is limited to the original value of the chattel. Thus, in
Munro v. Willmoti ([1949] 1 K. B. 295) the plaintiff in 1941
deposited a car in the defendant’s yard. In 1945, the
defendant, after endeavouring without success to communicate
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 18 of 23
with the plaintiff, sold the car, having spent pound 85 on
repairs necessary to put it into a saleable state. Lynskey
J. assessed the value of the car at the date of the judgment
as pound 120, but hold " that the defendant is entitled to
credit, not from the point of view of payment for what he
has done, but in order to arrive at the true value of the
property which the plaintiff has lost": if
808
the repairs had not been done the car could only have been
sold for scrap".
It may be noted that Lynslkey J. approved of this statement
of the law as enunciated in Salmond.
Paton, however, in his " Bailment in the Common Law " points
out at p. 412 that there is a tendency to consider the
merits of each case in order to reach a reasonable solution
; although the theoretical rule is that the defendant is
entitled to credit, not as payment for what he has done, but
rather to arrive at the true value of the property
converted. He further points out that American cases also
emphasise the state of mind of the tortfeasor. An innocent
converter is allowed to deduct the value of his
improvements, but one who knowingly commits conversion may
be forced to pay damages for the, value of the res in its
improved state. This is justified on the ground that it is
fair to award punitive damages where the wrong was wilful.
Where, however, the increase in value is not due to the act
of the defendant the plaintiff is also entitled to recover
the extra value as special damage resulting from the
conversion in addition to the original value of the property
converted. The following passage from Paton at page 409
further elucidates this position:
" The plaintiff can always recover, in addition to the value
of the property, any special damage which the law does not
regard as too remote. Thus if a carpenter’s tools are
converted, it has been held that he may recover their value
and also special damages for the loss of employment. France
v. Gaudet (supra) explained this decision on the ground that
the defendant had some notice of the existing contract.
Such special damage must be pleaded.
If this rule is applied to fluctuations in value, the result
is as follows:
(a) If the value increases and is highest at the date of
verdict, the result is the same as taking the test of the
value at the time of verdict, for the plaintiff obtains the
value at the time of conversion, and in addition the
increase in value as special damages.
(b) If the value decreases, then the plaintiff can still
secure the value at the time of conversion: he can
809
claim no special damage and the defendant has no claim to
reduce the damages.
It is doubtful, however, whether the rule as to special
damage should be applied to the question of fluctuations of
value. There is some authority for it, but it cannot be
regarded as established. If it is accepted, the argument as
to the date of the moment of calculating damage loses much
of its practical importance.
A commentator in the Harvard Law Review ((1947) 61 Harv. L.
R. 158) states that in measuring damages for conversion the
courts started with the "traditional but over simplified
value at the time and place of the wrong". But where the
goods are of such a nature that their value fluctuates
greatly the courts have been prepared to depart from this
rule. Thus in New York, where stock is concerned, the
courts allow the owner to recover the highest value to which
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the stock rose a reasonable time after he learnt of the
conversion, the emphasis on the reasonable time being to
prevent speculation by delaying unduly the initiation of the
action. California allows the highest value reached between
the date of the conversion and the time of trial. In Texas
the highest intermediate value is allowed in cases of wilful
wrong or gross negligence, but only the value at the date of
the conversion as against a blameless defendant." (See also
Restatement of the Law, Volume on Torts, pages 650, 653 and
927).
And further at page 410:
" The decisions illustrate the way in which the merits of
the defendant’s case have been allowed to determine the
technical question of the method of calculating damages. In
England, these considerations have not been discussed so
openly, but their influence on decisions is seen in the
judgments in Sachs v. Miklos (supra), where the question of
reasonable speed in bringing the action was discussed and in
Lord Atkin’s speech in Solloway v. McLaughlin ([1938] A.C.
247) where he finds delight in using a technical rule to
award damages against the unjust steward."
It follows from the above that the position in law in regard
to the measure of damages in an action for
810
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
up to 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
the basis that the goods have been wrongfully converted by
the defendant either 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 chattel or
for re-delivery of the goods bailed to him on the basis that
he has a title in those 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 up to 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
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thereof which can only be ascertained as on the date of the
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verdict or judgment in favour of the plaintiff.
Winfield thus enunciates the position in his treatise on
Tort, 6th Edition at page 414:
" The significance of the date of the refusal of the
plaintiff’s demand is that the defendant’s failure to return
the goods after that date becomes, and continues to be,
wrongful, and damages are recoverable for wrongful
"detention" after that date until the goods are returned or
payment of their value. The date of the defendant’s refusal
cannot convert a claim for the return of the goods into a
claim for payment of their value at that date."
It is, therefore, clear that in actions for wrongful
detention the plaintiff is entitled on default of the
defendant in re-delivering the goods to him, to payment in
the alternative of the value of the goods thus wrongfully
detained as at the date of the verdict or judgment, in other
words, at the date of the decree. We are, therefore, of
opinion that the appellants were entitled to recover from
the respondent the value of the said trucks which, as has
been already stated, was Rs. 7,000 in the alternative, on
default committed by the respondent in re-delivery of the
same to the appellants.
The next question to consider is what damages are the
appellants entitled to recover from the respondent by reason
of the wrongful detention of the said trucks from August 1,
1942, up to the date of the decree. It is well settled that
in an action for wrongful detention the plaintiff is
entitled besides the re-delivery of the chattel or payment
of its value in the alternative, also to damages for such
wrongful detention. There is however no definite criterion
laid down by the decided cases as to what the measure of
such damages should be. As was observed by Denning L. J. in
Strand Electric & Engineering Co., Ltd. (1):
" The question in this case is: What is the proper measure
of damages for the wrongful detention of goods? Does it
fall within the general rule that the plaintiff only
recovers for the loss he has suffered or
(1) (1952) 2 Q.B. 246, 253. 103
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within some other, and if so what, rule? It is strange that
there is no authority upon this point in English ’law: but
there is plenty on the analogous case of detention of land.
The rule there is that a wrongdoer, Who keeps the owner out
of his land, must pay a fair rental value for it, even
though the owner would not have been able to use it himself
or to let it to anyone else. So also a wrongdoer who uses
land for his own purpose without the owner’s consent, as,
for instance, for a fair ground, or as a, way-leave, must
pay a reasonable hire for it, even though he has done no
damage to the land at all: Whitwham v. Westminster Brymbo
Coal Company ([1896] 2 Ch. 538). I see no reason why the
same principle should not apply to detention of goods."
In that case certain portable switchboards were lent by the
plaintiff to a Theatre Co., pending the manufacture and
installation by the plaintiffs of permanent switchboards.
The hiring out of portable switchboards was a normal part of
the plaintiff’s business and it was agreed between the
plaintiff and the Theatre Co., on a subsequent date that the
company should pay to the plaintiff the hiring charges at a
certain rate per week. Later on the defendant took
possession of the theatre and gave instructions that nothing
whatsoever must be removed, and the Theatre Co., disclaimed
any responsibility for the plaintiffs’ hire equipment as
from that date. The plaintiffs thereafter wrote a number of
letters to the defendant demanding the return of their
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equipment but received neither their property nor any
satisfactory reply, and they issued a writ claiming the
return of their equipment or its value, and damages for the
period of its detention, which at the trial was shown to be
for 43 weeks. Tile question that arose for consideration
was what was the quantum of damages which the plaintiffs
were entitled to recover and it was held that in an action
in detinue in respect of a chattel which the plaintiff, as
part of his business, hires out to users, the plaintiff, if
the defendant has during the period of detention made
beneficial use of the chattel, is entitled to recover as
damages the full market rate of hire for the whole
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period of detention. After setting out the passage above
quoted Denning L. J. continued at page 254:
" If a wrongdoer has made use of goods for his own purpose,
then he must pay a reasonable hire for them, even though the
owner has in fact suffered no loss. It may be that the
owner would not have used the goods himself, or that he had
a substitute readily available, which he used without extra
cost to himself. Nevertheless the owner is entitled to a
reasonable hire. If the wrongdoer had asked the owner for
permission to use the goods, the owner would be entitled to
ask for a reasonable remuneration as the price of his
permission. The wrongdoer cannot be better off by doing
wrong than he would be by doing right. He must therefore
pay a reasonable hire."
Mr. B. Sen, who appeared on behalf of the respondent, urged
before us on the authority of Anderson v. Passman (1) that
as the gist of the-grievance is mere unlawful detention, the
damages will be nominal unless the plaintiff proves that he
has suffered special damage. This position is, however, of
no avail to the respondent because it cannot be said that
the appellants’ grievance here is merely in regard to the
wrongful detention of the trucks. The appellants in this
instant case have also claimed to recover from the
respondent future damages from the date of detention till
the date of delivery of the trucks and apart from any claim
laid in special damages, these are damages which naturally
flow from the wrongful act of the respondent and which the
appellants would be entitled to recover in the event of non-
delivery of the trucks to them by the respondent.
This is certainly not a case of nominal damages. As Earl of
Halsbury L.C. pointed out in Owners of the Steamship
"Mediana" v. Owners, Master and Crew of Lightship "Comet"
(2):
"the unlawful keeping back of what belongs to another person
is of itself a ground for real damages, not nominal damages
at all."
The quantum of damages may be big or small but it
(1) [1835] 7 C. & P. 193.
(2) [1900] A.C. 113. 118.
814
does not make any difference to the principle. The
,principle of assessing the damages is the same and that is
that where by the wrongful act of one man something
belonging to another is either itself so a injured as not to
be capable of being used or is taken away so that it cannot
be used at all, that of itself is a ground for damages.
(lbid p. 116).
In the case before us the appellants were the owners of the
two trucks and they used to hire out the same to others.
Hiring Out of the trucks was a regular business of theirs
and if the said trucks had been re-delivered by the
respondent to them on August 1, 1942, they would have
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immediately put the same to the user, viz., that of hiring
them out to outsiders and earning thereby a certain sum by
way of rent for each truck per day. The appellants might
not have been able to hire them out for every day of the
period of wrongful detention by the respondent, viz., from
August 1, 1942 to July 7, 1944. As the learned judges of
the High Court have observed, there might be days when the
trucks would be out of use; there might be days when the
trucks would lie idle for repairs and overhaul and so forth;
that would only go to reduce the number of days for which
the appellants would be entitled to recover the damages for
such wrongful detention. If the learned judges of the High
Court had on taking all the circumstances into consideration
arrived at the figure of Rs. 5,953 as the amount of hire
which could have been reasonably earned by the appellants in
the event of the re-delivery of the trucks by the respondent
to them on August 1, 1942, their judgment in this behalf
could not have been success-fully impeached. What they did,
however, was to confine the appellants’ claim to Rs. 5,953
on the ground that the appellants had claimed that amount in
the first instance and had paid the court-fee on the same.
They, therefore, took it that that sum of Rs. 5,953
represented a fair amount of damages for wrongful detention
of the trucks according to the appellants.
We are of opinion that the High Court was clearly in error
in adopting this basis for the award of
815
damages. The payment of court-fee stamp on Rs. 5,953 was
certainly not conclusive against the appellants because on
its being pointed out by the Office of the Registrar, the
appellants paid an additional court-fee stamp of Rs. 1,279-
11-0 on February 28, 1945, and that was done because the
appellants did not confine their claim merely to the said
sum of Rs. 5,953. If, according to the judgment of the
learned judges of the High Court the appellants were
entitled to damages for the wrongful detention of the said
two trucks at the rate of Rs. 17 per day per truck from
August 1, 1942 to July 7, 1944, they ought to have made a
reasonable calculation of the number of days for which the
trucks would have been put to use by the appellants and
awarded damages to the appellants accordingly. This,
however, they failed to do.
In our opinion, the appellants are entitled to recover such
damages from the respondent at the rate of Rs. 17 per truck
per day for such reasonable period between August 1, 1942 to
July 7, 1944, for which the appellants would have hired out
the trucks to outside parties. The trucks were in a fairly
good running condition but were old models of 1938 and it
will be quite reasonable to hold that they would have been
in commission approximately for one year during that period.
Calculating the hire of these trucks at the rate of Rs. 17
per truck per day the total amount of damages which the
appellants would be entitled to, recover from the respondent
works out at Rs. 12,410. The appellants would therefore be
entitled to recover over and above the sum of Rs. 5,953
already awarded to them by the High Court an additional sum
of Rs. 6,457 by way of damages for wrongful detention of the
said trucks by the respondent.
We accordingly allow this appeal and pass in favour of the
appellants, in addition to the enhanced decree which they
have already obtained from the High Court, a decree against
the respondent for Rs. 3,500 being the appreciated value of
the said trucks together with interest thereon at 6% per
annum from July 7, 1944, till this date as also for a sum of
Rs. 6,457 by way of additional damages for wrongful
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detention of
816
the said trucks, additional proportionate costs both in the
Trial Court as well as in the -High Court as also the costs
of this appeal, subject of course to the payment of
additional court-fee for the excess amount awarded hereby.
The whole of the decretal amount as above will carry further
interest at the rate of 6% per annum from this date till
payment.
Appeal allowed.