Judgment 1. THE plaintiff is the appellant in a suit for a sum of Rs 12,700/- on account of the price of a motor truck chassis valued at Rs 12,700/ -. The case of the plaintiff is that the plaintiff carried on business in the name of Everest Motor Company and the defendants purchased the aforesaid chassis on 3rd April 1954, the price of which was agreed to be paid by a draft drawn on the Siliguri Sub-Treasury on the 6th April, 1954. It is further the case of the plaintiff that after taking delivery of the said chassis the Chairman and the Vice-Chairman of the Municipality requested the plaintiff to make it over to a body builder named Nani Gopal Roy and Nani Gopal Roy agreed to build the body at a cost of Rs. 500/ -. The said chassis, under the circumstances, was left by the Chairman and the Vice Chairman of the Municipality at the plaintiff's place for the purpose of getting the body built by the said Nani Gopal Roy entirely at their own risk and that on the 4th April, 1954 there was an accidental fire and the chassis was burnt. The plaintiff had no control nor any responsibility for the said fire. The plaintiff, however, took all precautions and did everything possible, but the chassis was completely burnt. Thereafter, the defendants, the Municipality refused to pay and this suit was instituted after giving proper notice in accordance with law. 2. THE defence was that the plaintiff got certain blank forms signed by the Chairman and the Vice-Chairman stating that it was a formal matter it was lever agreed that the chassis would be sold or delivered separately from the body of the truck as suggested by the plaintiff. The allegation that the Chairman and the vice-Chairman took delivery having granted due receipt was denied. As an alternative case the defendants stated that the plaintiff company was a bailee of the disputed vehicle intended to be sold and the vehicle having been destroyed by fire due to the plaintiff's or his employees' negligence while in their charge and custody, the claim for price was not maintainable and the claim of the plaintiff was liable to be set off under the rule of equitable set off. The loss caused by the destruction of the vehicle by the plaintiff's negligence was stated to be Rs. 13,000/ -. The loss caused by the destruction of the vehicle by the plaintiff's negligence was stated to be Rs. 13,000/ -. A further case of the defendants was that the alleged contract of sale was vitiated because of section 103 (2) of the Bengal Municipal Act and, therefore, void and not enforceable against the defendants. After that, the issues were framed and the suit was heard. The trial court found that it could not hold that the plaintiff took the signatures of defendants 3 and 3 in some blank papers or documents. It further found that the Chairman of the Kalimpong Municipality did not make over the chassis to the body builder nor he authorised the body builder to take delivery of the chassis from the plaintiff. He left Siliguri keeping the chassis under the care and custody of the plaintiff. The trial court further found that because of section 103 (2) of the Bengal Municipal Act there was no enforceable contract as against the defendant Municipality. The plaint was amended by adding defendants 2 and 3 to the suit ; the plaintiff claimed the value from the defendants 2 and 3 personally in the alternative. The trial court overruled that, because the plaintiff knew full well that the purchase was made on behalf of the Municipality and the purchase was really intended to be made on behalf of the said Municipality. The court further held that the provisions of section 65 of the Indian Contract Act were not attracted to the facts of the present case. That, we think, would ordinarily make an end of the case ; according to the court below, the contract was not enforceable against the Municipality ; the principle of restitution as laid down in section 65 of the Contract Act should not be attracted. No question was urged in the court below as to whether the plaintiff would be entitled to the same money on account of section 70 of the Indian Contract Act. The result would, therefore, naturally be that the defendant would not be liable at all. But the court went into the consideration of the question as to whether the plaintiff would be debarred from claiming the money on the ground that he kept the chassis as a bailee and fire by which it was destroyed was due to the carelessness of his servants and the agents. But the court went into the consideration of the question as to whether the plaintiff would be debarred from claiming the money on the ground that he kept the chassis as a bailee and fire by which it was destroyed was due to the carelessness of his servants and the agents. The court found that the plaintiff as a bailee did not take proper care and the contention of the defendant that there was carelessness on the part of the plaintiff could not be brushed aside and on that view of the matter, the defendants could ask exemption from payment of the price of the chassis as the same should be set off against the loss suffered by them on account of fire due to the negligence of the plaintiff. The result was that the suit was dismissed with costs. The plaintiff has preferred an appeal against that judgment and decree. Mr. Bakshi on behalf of the plaintiff urged that the court below was wrong in holding that the contract was bad because of section 103 (2) of the Bengal Municipal Act. According to Mr. Bakshi, the contract cannot be said to be void-the price for the chassis could be recovered from the Municipality ; the court in any case should have granted a decree against the defendants 2 and 3. Mr. Bakshi suggested that in the circumstances of the case the sale was complete, because delivery was given to the Chairman and the Vice-Chairman. Therefore, the provisions of section 103 have been substantially complied with and, therefore, the court should have granted a decree against the Municipality. Mr. Bakshi next said that the court found that section 65 of the Contract Act would not apply. The reason was that in the circumstances of the case no material advantage was received by the Kalimpong Municipality. Mr. Bakshi asked what more could a seller do, than deliver the goods to the purchaser ? The goods were delivered and nothing more was expected to be done by the seller. Therefor, the provision of section 65 does apply. Even if section 65 of the Contract Act does not apply, section 70 of the Indian Contract Act does apply. Mr. Bakshi urges that the court should have granted a decree for the money ; for, the seller did all that he could do to put the buyer in possession. Therefor, the provision of section 65 does apply. Even if section 65 of the Contract Act does not apply, section 70 of the Indian Contract Act does apply. Mr. Bakshi urges that the court should have granted a decree for the money ; for, the seller did all that he could do to put the buyer in possession. If the buyer after taking possession of the goods delivered, kept them with the plaintiff, it could not be said that it was no delivery to the buyer. The next argument of Mr. Bakshi is that, as the goods were delivered, the plaintiff is entitled to the price even if the motor vehicle was kept in the custody of the plaintiff for the purpose that Nani Gopal Roy might build the body. Mr. Bakshi said that he has taken all reasonable care that a prudent man would take of a workshop. He says that the plaintiff's own cars were there and they were burnt. Mr. Bakshi further says if any body was responsible, it was the defendants who were responsible. They knew and saw what type of garage he had. The Chairman and the Vice-Chairman came to Siliguri and saw the workshop ; it was thatched built with wooden walls and partly of wooden floor. They found other cars, presumably with petrol, there ; they must have also known that, as it was a workshop and the repair work was being done, oxygen cylinders would naturally be there. If, after knowing all these things, they had deliberately placed their new motor truck without insuring it in the aforesaid premises of the plaintiff, the defendants will suffer, because the defendants with their eyes wide open took the risk of keeping the newly purchased motor truck which had not till then been insured in the workshop. Mr. Bakshi, therefore, says he has absolutely no liability for the fire. Mr. Hari Prasanna Mukherjee on behalf of the defendants challenged rather feebly the finding arrived at by the court below that the plaintiff took the signatures of the defendants 2 and 3 in some blank papers or documents. It is urged by Mr. Mr. Bakshi, therefore, says he has absolutely no liability for the fire. Mr. Hari Prasanna Mukherjee on behalf of the defendants challenged rather feebly the finding arrived at by the court below that the plaintiff took the signatures of the defendants 2 and 3 in some blank papers or documents. It is urged by Mr. Mukherjee that the plaintiff cannot under any circumstances avoid section 103 of the Municipal Act as the contract of sale was not in writing and not signed by at least two of the Commissioners, one of whom should have been the Chairman or the Vice-chairman and as the contract of sale was not sealed with common seal of the Commissioners, the contract is not enforceable in law either against the Municipality, the defendant No. 1 nor against the defendants 2 and 3. The finding that the defendants 2 and 3 never entered into the contract on their own behalf and the plaintiff knew full well that the defendants 2 and 3 never entered into a contract on their own behalf is a proper finding of the court below. With regard to section 65 of the Indian Contract Act, Mr. Mukherjee strongly urges that the agreement of sale was never "discovered to be void" and this "contract never became void". Further, no material advantage was at all received. Mr. Mukherjee submits that section 65 does not apply on the aforesaid two reasons. He further goes on to say that section 70 does not also apply, because that section speaks of something more than mere advantage. It must be some benefit and the defendants got no benefit whatsoever of the motor truck which was completely burnt down before any benefit could accrue to the Municipality of Kalimpong. Mr. Mukherjee, therefore, urges that neither section 65 nor section 70 is attracted. But even if the plaintiff is entitled to the benefit of either section 65 or of section 70 of the Contract Act, the truck was kept in the custody of the plaintiff. The plaintiff was a bailee and the plaintiff would, therefore, be liable to take reasonable care within the meaning of section 151 and section 152 of the Indian Contract Act. The clear finding of the court below is that the plaintiff did not take such care. This finding is a proper finding and there is no reason why that finding should be reversed. Mr. The clear finding of the court below is that the plaintiff did not take such care. This finding is a proper finding and there is no reason why that finding should be reversed. Mr. Mukherjee, therefore, submits that the suit was properly dismissed in the court below. 3. WE would now take up the first question as to whether the motor truck was delivered or not. Ext. 7 is New Car Inspection and Lubrication Record which bears an endorsement by M. Prodhan, the Vice-Chairman of the Municipality, to the following effect:-"received the chassis with tools". Ext. 7 (b) is the counter-part of Ext. 7. There also it is noted that the truck was delivered on the 3rd April, 1954. Ext. 4 (a) is a letter written by Mr. S. N. Roy, the Chairman of the Municipality. He stated as follows:-"----We confirm having purchased on date a "ford V-8 122" w. b. chassis for a net figure of Rs. 12,700 inclusive of sales tax, immediate delivery at Siliguri" in his own hand he wrote the following words : -"chassis will be in your care till the body is built" it is a clear statement that it was purchased for Rs. 12,700/- and further having purchased it, they took delivery immediately at Siliguri and they placed it in the care of the plaintiff till the body was made. Both Mr. S. N. Roy and Mr. M. K. Prodhan have deposed. Mr. Roy stated as follows : - "then he called for his stenographer P. W. 4 and gave dictation for two letters-one regarding the price of the chassis and the other regarding the body building. Mr. Sen Gupta took the short land of the dictation and typed two letters in duplicate with the help of carbon. The plaintiff then called for nani Gopal. He came. . . . . . . . I added the last line in Ext. 4/a in my handwriting as we did not take delivery of the chassis. After adding the last line I signed Ext. 4 a. "On this evidence it is difficult to say certain blank documents were merely signed and the Chairman knew nothing about it. Mr. M. K. Prodhan has also been examined. He has admitted that the signature in Ext. 7 (b) was, his. He further stated as, follows: -"the Chairman added the last line in Ext. 4/a and then signed." 4. Mr. M. K. Prodhan has also been examined. He has admitted that the signature in Ext. 7 (b) was, his. He further stated as, follows: -"the Chairman added the last line in Ext. 4/a and then signed." 4. IN regard to Ext. 7 (b) he stated that at the time of the signature it was blank and "there was no typewriting there in it, saying "received the chassis with tools." I do not think that the gentleman was telling a lie, but he knew what the document was. There was no question of lubrication unless the car was purchased. Therefore, even if the sentence "received the chassis with tools" was written, later on it must have been done with the consent of Mr. M. K. Prodhan, the Vice Chairman. I have absolutely no hesitation in holding that they signed no blank papers without knowing for what it was intended and that they did take delivery of the chassis. Whatever might have been the earlier correspondence between the parties as to the delivery of chassis with a body, it is clear from the aforesaid documents and depositions of the defendants' witnesses 1 and 2 that they did take delivery of the chassis. The next question is whether section 103 of the Municipal Act makes the contract void or unenforceable or whether that section is applicable to the circumstances of this case. Section 103 of the Bengal Municipal Act is as follows :- "the Commissioners may enter into and perform any contract necessary for the purpose of this Act." Therefore, the Commissioners can perform a contract of purchase under the provisions of 'section 103 (1. Subsection (2) provides as follows:- "every contract made on behalf of the Commissioners in respect of any sum exceeding Rs.500/- or which shall involve. . . . shall be sanctioned by the Commissioners at a meeting and shall be in writing and signed by at least two of the Commissioners, one of whom shall be the Chairman or Vice-Chairman, and shall be sealed with the common seal of the Commissioners. " 5. IT is urged that the provision of this section has not been complied with. . shall be sanctioned by the Commissioners at a meeting and shall be in writing and signed by at least two of the Commissioners, one of whom shall be the Chairman or Vice-Chairman, and shall be sealed with the common seal of the Commissioners. " 5. IT is urged that the provision of this section has not been complied with. It is not disputed that the purchase was sanctioned by the Commissioners at a meeting and there is a document in writing relating to the purchase, but that has not been signed by two of the Commissioners, one of whom should be the Chairman or the Vice-Chairman, nor was it sealed with the common seal of the Commissioners. There is no document here in writing which shows that a purchase was made. But the document Ext. 4 (a) confirms the purchase, immediately after it was made. Therefore, this document may be considered to be the document relating to the sale, particularly, in view of the fact that the purchase price had not till then been paid and the document Ext. 4 (a) stated, "a draft on Sub-Treasury Officer, Siliguri, for this amount will be forwarded to you by the 6th instant in full settlement. " Therefore, this is a document relating to the contract of sale. But it was signed only by the Chairman and not by the Vice-Chairman. Further, it appears that there was no seal. Therefore, the trial court was right in holding that the contract was one which would not be binding upon the Municipality. With regard to this finding, we agree with the decision of the trial court. 6. THE next question is : the goods are stated to have been delivered but the contract was not one which was binding or enforceable as against the Municipality but the contract was void. We should note here that the contract is not merely unenforceable upon the Municipality but that the Commissioners have no power to enter into a valid contract in view of the provisions of section 103 (2. The reasons for this distinction will be apparent when we consider the applicability of section 65 of the Indian Contract Act. The Supreme Court while considering section 175 (3) of the Government of India Act, 1935 came to the conclusion that non-compliance of the mandatory provision of section 175 makes the contract invalid. The reasons for this distinction will be apparent when we consider the applicability of section 65 of the Indian Contract Act. The Supreme Court while considering section 175 (3) of the Government of India Act, 1935 came to the conclusion that non-compliance of the mandatory provision of section 175 makes the contract invalid. The word "shall" was not understood in the sense of mere direction but it was found to be mandatory for the reason that the provision was made in the public interest and so the word "shall" used in making the provision was intended to make the provision itself obligatory and not directory and failure to comply with the mandatory provision of that section was considered to make a contract invalid. We are referring to the decision reported in (1) A. I. R. 1962 S. C., page 779, between the State of West Bengal v. B. K. Mondal., section 103 of the Bengal Municipal Act is based on the same reasons of public interest and pubic policy and, therefore, the word "shall" in that context as well should foe understood to be mandatory and not directory and the absence of compliance with the provisions of section 103 (2) would make the contract void. The next question is, if the contract of sale was void and if the motor truck was delivered, would the plaintiff be entitled to realise an amount equivalent to the price either under section 65 of the Indian Contract Act or under section 70 of the Indian Contract Act. It is not necessary for us to discuss the applicability of section 65 and section 70 in great details for the reasons that the points are now concluded by the decision of the Supreme Court referred to above. The trial court has considered the applicability of section 65 and found that section 65 would not apply, because the purchaser did not derive any advantage from the delivery of the motor truck as it was burnt before they could use it. Mr. Mukherjee says that section 65 has no application on more than one reason. Section 65 is as follows:- "when an agreement is discovered to be void, or when a contract becomes void, any person who has received any advantage under such agreement or contract is bound to restore it, or to make compensation for it, to the person from whom he received it." 7. Section 65 is as follows:- "when an agreement is discovered to be void, or when a contract becomes void, any person who has received any advantage under such agreement or contract is bound to restore it, or to make compensation for it, to the person from whom he received it." 7. UNDER section 2 (g) of the Indian Contract Act, "an agreement not enforceable by law is said to be void" and by section 2 (h), "an agreement enforceable by law is a contract". When people enter into an agreement, they may enter on a belief mistaken or otherwise that the contract is one which is enforceable by law and which is not void. People would never have entered into a contract if at the date of the contract they knew that the agreement itself was void. Therefore, it is provided, "when an agreement is discovered to be void", because at the stage of the agreement, it Was under stood to be valid but at a later stage it was discovered to be void ; because it comes within one or other of the provisions of void agreement as under sections 24 to 30. Section 65 further deals with cases for contract when it becomes void. That means when the agreement was valid at the date when the agreement was arrived at and, therefore, that was a complete contract, but because of subsequent events may be as under sections 62 to 64 of the Act, the contract becomes void. In those cases section 65 is stated to apply. We should further note that section 65 is in Chapter IV of the Indian Contract Act which refers to the performance of contracts. The first subheading is that the contract must be performed and the next sub-heading again is by whom the contract must be performed. The third one refers to time and place for performance and the fourth sub-heading relates to performance of reciprocal promises. The fifth sub-heading relates to appropriation of payment and the last one refers to contracts which need not be performed. Within that sub-heading the, question, that is considered in section 65, is the consequences of contracts which need not be performed. After the consequences of voidable contracts are considered under section 64, section 65 deals with the obligations of a person who has received advantage under void agreements or contracts that became void. Within that sub-heading the, question, that is considered in section 65, is the consequences of contracts which need not be performed. After the consequences of voidable contracts are considered under section 64, section 65 deals with the obligations of a person who has received advantage under void agreements or contracts that became void. In fact, after having considered how contract is to be performed, the last sub-heading deals with the cases where the contract need not be performed and with the legal obligations of the parties under such circumstances. When an agreement is discovered to be void, it goes without saying that the contract heed hot be performed and again when the contract becomes void, the contract need not be performed. The Judicial Committee in (2) 70 Indian Appeals, page 1, has considered section 65 of the Indian Contract Act (Babu Raja Mohan Manucha v. Babu Manzoor Ahmad Khan). The Judicial Committee observed as follows:- "the principle underlying section 65 is that a right to restitution may arise out of the failure of a contract though the right be not itself a matter of contractual obligation. If it be settled law that the incapacity imposed on a judgment-debtor by paragraph 11 of the Third Schedule is incapacity to affect his property and not a general incapacity to contract, it follows that the covenant to repay is not void by the mere operation of the paragraph. But the lender who has agreed to make a loan upon security, and has paid the money, is not obliged to continue the loan as an unsecured advance. The bottom has fallen out of the contract and he may avoid it. If he does so and avoid the contract, he brings himself within the terms of section 65 and within the principle of restitution of which it is an expression-whether for all purpores adequate or exhaustive need not here be considered. " In the circumstances of this case, it cannot be said that the contract ever became void nor can it be said that the agreement was discovered to be void. The agreement was not discovered to be void within the meaning of sections 24 to 30 of the Contract Act. " In the circumstances of this case, it cannot be said that the contract ever became void nor can it be said that the agreement was discovered to be void. The agreement was not discovered to be void within the meaning of sections 24 to 30 of the Contract Act. But in this case the parties did not in law enter into any contract whatsoever, but they were under the mistaken impression that the Municipality had the authority of law to enter into the contract. Section 103 (2) was completely forgotten by the Chairman, the Vice-Chairman-both of whom were present, and also by the plaintiff, the seller of the motor truck. Hence, this is not a case which comes within section 65 of the Indian Contract Act. By saying that, we do not mean to say that we agree with the finding of the trial court that in the present case no material advantage was received by the Kalimpong Municipality upon the delivery of the chassis of the truck. We shall come to that aspect of the matter later on when we consider section 70 of the Indian Contract Act. 8. COMING now to section 70 of the Indian Contract Act, we shall consider on the analysis of the legal position as if the plaintiff delivered the motor truck thinking that he has sold the motor truck on a valid agreement and we should also proceed on the basis that the Chairman accepted the car as if there was a valid agreement. There was none. But yet the plaintiff delivered a valuable thing to the defendants and the defendants accepted that valuable thing knowing full well that it was not given to the defendants gratuitously. Section 70 of the Indian Contract Act, which is in the Chapter V, refers to the relations resembling those created by the contract. Such relations are commonly known as obligations arising out of quasi-contract. Section 70 is as follows:- 'where a person lawfully. . . . Section 70 of the Indian Contract Act, which is in the Chapter V, refers to the relations resembling those created by the contract. Such relations are commonly known as obligations arising out of quasi-contract. Section 70 is as follows:- 'where a person lawfully. . . . delivers anything to him, not intending to do so gratuitously, and such other person enjoys the benefit thereof, the latter is bound to make compensation to the former in respect of, or to restore, the thing so done or delivered." Under section 70 of the Contract Act the Municipality could restore the truck to the plaintiff, but, as the Municipality could not restore, the Municipality would, if section 70 be applicable, be liable to compensate for the thing delivered to them. The Supreme Court, as we have referred to above, in the aforesaid decision between the (1) State of West Bengal v. B. K. Mondal, held that section 70 would apply under similar circumstances. The Supreme Court observed that three conditions must be satisfied before the section could be invoked. The first condition is that the person should do something for another person or deliver something to him. The second condition is that in doing the said thing and in delivering the same thing he must not have intended to act gratuitously and the third thing is that other person for whom something is done or to whom something is delivered must enjoy the benefit of the same. The Supreme Court then observed as follows : - ". . . . all that section 70 provides is that if the goods delivered are accepted or the work done is voluntarily enjoyed, then the liability to pay compensation for the enjoyment of the said goods or for the acceptance of the said work arises." 9. WE have in this case no dispute as to the existence of the first and the second conditions. As the delivery was bona fide, it was lawfully done and it is nobody's case that there was an intention to act gratuitously. It is the third aspect of the matter which has been seriously urged by Mr. Mukherjee on behalf of the respondents. Mr. Mukherjee says that the Kalimpong Municipality never enjoyed any benefit of it. If we refer to section 70, the question is whether such other persons enjoyed the benefit thereof. It is the third aspect of the matter which has been seriously urged by Mr. Mukherjee on behalf of the respondents. Mr. Mukherjee says that the Kalimpong Municipality never enjoyed any benefit of it. If we refer to section 70, the question is whether such other persons enjoyed the benefit thereof. Applying to the facts of this case it reads as follows : -"where such other person enjoys the benefit of delivery. " 10. IT is difficult to conceive that the defendants did not enjoy the delivery of it. The enjoyment might not have lasted long ; but that is not the aspect of the matter with which we are concerned. Nothing more was required to be done by the seller except to deliver the truck. The seller is not an insurer and the seller is not bound for any loss which the buyer incurs after delivery has been made. We are unable to agree with the finding of the trial Judge. The trial Judge thought that the seller must not only deliver it but the buyer must get material advantage out of the delivery. What he means is that the buyer must enjoy it for some material time. We are unable to agree with the aforesaid finding. In fact, we find from the letter Ext. 4 (a) that after the car was delivered to the Municipality, the Chairman kept the car in the custody of the plaintiff for the purpose of building the body. Defendant No. 1 thus exercised some right ' as buyer. The letter is Ext. 4 (a) dated the 3rd April, 1954. The last line which was written in ink, presumably, by the hand of Mr. S. N. Roy is as follows:- "chassis will be in your care till the body is built. " In Ext. 3 we find that Nani Gopal Roy received the said chassis for building the body. We get from the aforesaid decision of the Supreme Court that all that section 70 provides is that if the goods delivered are accepted, the liability to pay compensation arises. Here we get it that the goods delivered were accepted and therefore the liability of the defendant Municipality arises. The motor vehicle was completely burnt and served no useful purpose to the Municipality at any time. Here we get it that the goods delivered were accepted and therefore the liability of the defendant Municipality arises. The motor vehicle was completely burnt and served no useful purpose to the Municipality at any time. They merely took the delivery of the truck and then gave it to a body builder for building the body ; the seller may arrange for insurance ; the seller here also offered to do ; but the seller is not an insurer and if the goods are lost for any reason whatsoever, they are not bound to indemnify the buyer for such loss. They have no such unqualified liability. Hence, if nothing further had happened, we would have found that the plaintiff was entitled to the decree prayed for. But something more happened. The defendants having purchased the car, kept it in the custody of the plaintiff. There is no doubt that the plaintiff accepted such custody. Therefore, the plaintiff is in the position of a bailee and his liability as a bailee would be determined by section 151 and section 152 of the Indian Contract Act. Section 149 of the Indian Contract Act says how delivery is to be made to the bailee. It provides, the delivery to the bailee may be made by doing anything which has the effect of putting the goods in the possession of the intended bailee or any person authorised to hold them on his behalf. In this case after having. taken delivery of the car, the Chairman kept the truck in the care and custody of the plaintiff as evidenced by Ext. 4 (a. Therefore, we have no doubt that the truck was delivered to the bailee. The care that has to be taken by a bailee is provided under section 151 of the Contract Act. In all cases pf bailment the bailee is bound to take as much care of the goods bailed to him as a man of ordinary prudence under similar circumstances would take of his own goods of the same bulk, quality and value as the goods bailed. Section 152 of the Indian Contract Act limits the liability of the bailee. In all cases pf bailment the bailee is bound to take as much care of the goods bailed to him as a man of ordinary prudence under similar circumstances would take of his own goods of the same bulk, quality and value as the goods bailed. Section 152 of the Indian Contract Act limits the liability of the bailee. It provides as follows: -"the bailee, in the absence of any special contract, is not responsible for the loss, destruction or deterioration of the thing bailed if he has taken the amount of care of it described in section 151." There was no special contract between the bailor and the bailee. The plaintiff bailee would not be responsible for the loss and destruction of the motor truck if he had taken the amount of care of the truck as described in section 151. The motor vehicle was destroyed by fire. The question would, in such circumstances, be whether the bailee plaintiff had taken as much care of it as a man of ordinary prudence would under similar circumstances take of his own goods of the same bulk, quality and value of the goods bailed. 11. THE plaintiff has given evidence to show that the cause of the fire could not be ascertained. He further says that the fire was accidental. In order to prove that, the plaintiff has referred to the report Ext. 2 where the cause of fire is put as follows:-"accidental Cause could not be ascertained." 12. THIS is the report of the local police officer. Ext. 1 is a report of the Fire Service. There also the cause of fire is stated to be "could not be ascertained." the plaintiff has given evidence to the following effect:- "my own new truck worth about Rs. 14,000 was totally burnt. It was not covered up by any insurance. Another Ford seven van worth about Rs. 3,000 was also totally burnt. It was my personal property and it was not covered up by any insurance. My stores, accessories and other moveables which were burnt and pilfered were covered up by insurance. My total loss was about Rs. 1,70,000/ -. About Rs. 40,000/- was recovered by the parties from their insurance company. 3,000 was also totally burnt. It was my personal property and it was not covered up by any insurance. My stores, accessories and other moveables which were burnt and pilfered were covered up by insurance. My total loss was about Rs. 1,70,000/ -. About Rs. 40,000/- was recovered by the parties from their insurance company. My premises was only insured." The evidence on behalf of the plaintiff is that they informed the Fire Service as early as possible ; they informed the police officers as early as possible ; they took all possible steps, but they could not save their own property nor the property of the defendants and the plaintiff has taken so much care of the goods as he did, in fact, take of his own goods. Therefore, he has no liability as a bailee as under section 151 of the Indian Contract Act. This is, in substance, the argument of Mr. Bakshi on behalf of the plaintiff. Once it is accepted that the truck was entrusted to the plaintiff and it was lost and destroyed, the onus of proof is on the custodian to show that the injury did not happen in consequence of his neglect to use such care and diligence as a prudent and careful man would exercise in relation to his own property. (Halsbury's Laws of England, 3rd Edn., Vol. II-Art. 227. In English law there is some distinction between gratuitous bailee and a bailee for valuable consideration. In our law no such distinction has been made and there is no reason for such distinction in the Indian Contract Act where the provisions of section 151 and section 152 are quite clear. Section 151, as we have already referred to, includes the phrase "in all cases of bailment." It makes no distinction whether the bailee is a gratuitous bailee or a bailee for valuable consideration. The bailee is bound to take such care of the goods bailed to him as a man of ordinary prudence would take of his own goods. Under section 152 the bailee is not responsible for the loss, destruction or deterioration of the thing bailed if he has taken the amount of care as described in section 151. The bailee is bound to take such care of the goods bailed to him as a man of ordinary prudence would take of his own goods. Under section 152 the bailee is not responsible for the loss, destruction or deterioration of the thing bailed if he has taken the amount of care as described in section 151. Therefore, it is for the bailee to show that he has taken the amount of care as described in section 151 and then he has no responsibility for the loss, destruction or deterioration of the things. We have to see whether the plaintiff as a bailee has discharged that onus on the evidence adduced in this case. But before we consider the evidence we have to consider the legal aspect of the matter. The bailee has a duty to take care. If he acts with due diligence, he performs his duties and if he does not, he is negligent. It is stated by Mr. Bakshi that the plaintiff took as much care of the motor truck as was the common practice and the standard of care is to be determined by common practice. But although compliance with common practice is evidence that reasonable care has been used, it is not conclusive and it is open to the court to hold that common practice does not make proper provision for known risk. (Vide (3) Morris v. West Hartlepool Steam Navigation, [1956] I A. E. R. 385. Therefore, the mere fact that garages are not ordinarily insured against the loss of trucks of customers or that fire extinguishers are not ordinarily kept ready is by itself of no difference. The facts in this case would show that it was not an isolated garage and the fire was not due because of anything that happened in the garage, but it is quite clear from the evidence on record that fire was first seen in the first floor where the two occupants were the servants of the plaintiff and it is that fire which spread to the garage and, the truck was destroyed. 13. WE have seen further from a consideration of documentary evidence that cause of the accident was not known. 13. WE have seen further from a consideration of documentary evidence that cause of the accident was not known. But "it is a mistake to think that because an event is unseen, its cause cannot reasonably be inferred" and in order to make a reasonable inference the facts disclosed must be such as to put the matter beyond a mere surmise or conjecture. If the evidence establishes only that the accident was possibly due to negligence to which the plaintiff seeks to assign it, his case is not proved. To justify the verdict which they have obtained, the evidence must be such that the attribution of the accident to that cause may be reasonably inferred. (Vide (4) Jones v. G. W. Railway (1930) 47 T. L. R. 30. 14. THE third question that we have to consider in this respect is whether a reasonable man in the position of the appellant, considering the matter from the point of view of safety, would have thought it right to refrain from taking steps to prevent the danger. This matter was considered by Lord Reid in (5) Bolton v. Stone, 1951 A. C., page 850. His Lordship observed as fallows:- "I think it would be right to take into account not only how remote is the chance that a person might be struck, but also how serious consequences are likely to be if a person is struck, but I do not think it would be right to take into account the difficulty of remedial measures." Lord Denning in (6) Latimer v. A. E. C. Ltd., 1953 A. C., page 643, held as follows:- "In every case of foreseeable risk it is a matter of balance against the measures necessary to eliminate it." These questions at first appear 'to be questions of fact ; but they are questions of law as well even though it has been characterised that they are perilously near to the questions of fact. It was so observed in a case between (7) Carmarthenshire C. C. v. Lewis, reported in 1955 A. C., 549. So, we have to consider the evidence from these points of view. The onus, as we have referred to, is one which has to be discharged by the plaintiff. With regard to that matter, the trial court held that the plaintiff had not been able to discharge that onus. 15. So, we have to consider the evidence from these points of view. The onus, as we have referred to, is one which has to be discharged by the plaintiff. With regard to that matter, the trial court held that the plaintiff had not been able to discharge that onus. 15. THE first thing that we shall consider is whether a reasonable man would foresee in the circumstances disclosed that damage by fire would be caused and the goods of his customers would be lost. The circumstances are as follows:- 16. ON Sunday the 4th of April, 1954 there was the fire. According to the police report and also according to the Fire Service report which we have already considered, the cause the fire could not be ascertained. But according to the plaintiff's story, the fire was first seen in the study room, then that fire spread out. The time was about 4 O'clock in the afternoon in early April at Siliguri and the day was a Sunday. The workshop was closed on that day. The Fire Service people worked for about four severe hours they saved something but could not save all. The plaintiff was absent from the town at that time. Two of his officers were residing in the first floor. They rang up the Fire Service Station and also informed the Police Station. Their evidence is that they had no knowledge as to how the fire was caused. In Ext. 1 we get the following remarks :- "while at work 3 Gas cylinders inside the ablazed workshop exploded causing danger to our men. " 17. WE have evidence that there were gas cylinders, there was petrol in cars and trucks. We have further evidence from Ext. 10 that the walls were of wooden planks and the roof was of corrugated iron sheet. We further get that the plaintiff considered it safe, considered it prudent to have an insurance with respect to his structures. But he did not think it necessary to cover the cars of his customers. It may be that most of the cars would be covered by insurance; only the new cars would not be insured but they would be insured as early as possible. The plaintiff did not arrange for fire-extinguishers. 18. THE question in such circumstances is, can it be reasonably foreseen that there would be fire in the workshop ? Mr. It may be that most of the cars would be covered by insurance; only the new cars would not be insured but they would be insured as early as possible. The plaintiff did not arrange for fire-extinguishers. 18. THE question in such circumstances is, can it be reasonably foreseen that there would be fire in the workshop ? Mr. Bakshi says that the gas cylinders were properly kept ; there is no doubt, about that, for, the gas cylinders did not leak but they burst. I am also inclined to think that the motor cars and trucks which contained petrol were closed and there is no case that fire was caused in the workshop because of the petrol in the tanks or because of oxygen gas in the cylinders. The fire, on evidence on record, first started in the first floor which was used as a residence 6f the officers of the plaintiff. The trial court held that the 'fire did start in the kitchen and the fire did not break out in the study room of Sudhansu Sekhar Das Gupta, the plaintiff's witness No. 6. The question that we are now considering is not whether fire did start in the kitchen, but the question is whether a reasonable man could foresee that fire may break out in a kitchen. It is difficult for me to say that nobody could apprehend that fire might start in a kitchen. And if it started in the kitchen, could it reasonably be expected to spread to the workshop and burn the cars and the trucks ? In a workshop where the walls were of plank and not pucca and where there was a kitchen in the first floor, to think that fire would never occur and to take no precaution against fire does not seem to us to be reasonable. In considering that matter we have not merely to consider whether fire could break out but we have also to consider what consequences would be, if fire did, in fact, break out ? It is difficult to conceive any other consequence than that petrol in the tank would catch fire, oxygen in cylinders would burst, the planks in the walls of the workshop would catch fire and cars and trucks would be destroyed. It is difficult to conceive any other consequence than that petrol in the tank would catch fire, oxygen in cylinders would burst, the planks in the walls of the workshop would catch fire and cars and trucks would be destroyed. This is, in our opinion, not a remote thing but the normal consequences of fire that may break out in the first floor. The breaking out of the fire at a place where there was a kitchen was a possible factor and subsequent spreading of fire in the workshop is as much possible. But the degree of damage would vary if the fire breaks out in a solitary kitchen or in a kitchen under which there is a motor workshop. It could be apprehended in circumstance that the kitchen would not merely be lost, the roof of the kitchen would not merely be burnt down but that a probable and reasonable consequence of such fire would be the destruction of the workshop together with the cars and trucks therein. Therefore, it is difficult for us to say that the plaintiff could not foresee the danger. 19. THE next question is, having foreseen the danger, what care he did take to prevent the occurrence of such fire It is found that he had not kept fire extinguishers ; practically he made no arrangement for preventing the danger,-the danger is loss of valuable cars. Against that, he took no steps. In considering the matter, the consequences of such failure to take proper steps against fire are not immaterial and they cannot be excluded as irrelevant. Lord Simonds observed as follows: -"I see no valid reason for excluding as irrelevant the gravity of the damage which the employer will suffer if an explosion occurs." Sec. 151 of the Contract Act refers to quality and value. In fact, the plaintiff should have considered the gravity of the situation, the amount of loss that he may have to suffer if he had not taken proper precaution to prevent the danger. The plaintiff thought it fit to insure his structures but he did not take any step for preventing fire or the spreading of fire and did not provide for fire extinguishers. The plaintiff thought it fit to insure his structures but he did not take any step for preventing fire or the spreading of fire and did not provide for fire extinguishers. Hence, we come to the conclusion that a prudent man, in the circumstances, of this case, had reasonable apprehension that fire might originate in a kitchen situated in the first floor and spread to the ground floor and destroy the trucks and cars. The evidence on record shows that the fire spread and spread very quickly. The fire report, which we have already referred to, makes it quite clear. It is urged that ordinarily nothing more is done in garages and, therefore, all that was done in this case must be considered to be sufficient. We would point out ordinarily there is no kitchen over a workshop and ordinarily the walls of the workshop are not of plank. Here he allowed two of his officers to stay in the first floor, to cook their food there and in such circumstances it was imprudent on his part to think that fire would not cause the type of destruction which has been made in the present case. 20. THE last argument of Mr. Bakshi is that the accident was very possibly caused for reasons beyond their control. If fire originated for reasons beyond the control of the plaintiff and them spread up, the plaintiff might have something to say. But, as we have already found, it is a mistake to think that because the event is unseen, its cause cannot reasonably be inferred. In this case the trial court, having considered the evidence, found that the fire started in the kitchen. If the fire did start or even if the fire could start in the kitchen, it is not possible to say that the fire started accidentally, because kitchen is a place where a fire is started and, therefore, special care has to be taken about that. If the plaintiff wants to say that there were other causes for this accidental fire, it is for the plaintiff to prove the same. Mr. Bakshi suggested before us that there might have been short circuit in the electric line and that might have caused fire. If the plaintiff wants to say that there were other causes for this accidental fire, it is for the plaintiff to prove the same. Mr. Bakshi suggested before us that there might have been short circuit in the electric line and that might have caused fire. But we should remember that the time was about 4 O'clock in the afternoon when no light was necessary, The place is Siliguri in April where no fan would be necessary in early April, particularly in the afternoon. It is difficult for us to say that the plaintiff has been able to discharge the onus that the fire has been caused accidentally and without negligence on his part or on the part of his servants. The fire undoubtedly started in the premises where there was the kitchen and spread to the workshop. It is, therefore, difficult for us to say that the plaintiff has proved his case about reasonable care and diligence that he was expected to take. Hence, though the plaintiff would be entitled to the price of the truck, because he had delivered the truck to the Chairman of the Municipality, he would still be unable to recover damages or compensation because that truck was burnt while he possessed the truck as a bailee. 21. HENCE, the appeal must be dismissed. But in. the circumstances of the case, each party will bear his costs throughout.