JUDGMENT The judgment of the Court was as follows :–– The main point for decision herein 18 whether the plaint discloses a cause of action. 2. The plaintiff has an overdraft account with the Central Bank of India Ltd. in its New Market Branch. By a Deed called the Deed of Hypothecation the plaintiff in order to secure the said overdraft account pledged and/or hypothecated in favour of the Bank various iron and steel materials viz., joists, M.S. Rounds, Strips, Angles etc. The plaintiff also executed the usual promissory notes, and other necessary documents as desired by the Bank in its favour. The limit of overdraft was to the extent of 35% of the value of the security. It was subsequently raised to 40%. 3. The plaintiff's case as made out in the plaint, shortly, inter alia, is that in the said overdraft account there were various dealings and transactions between November, 1959 and 29th June, 1962; monthly statements of the stock of the goods were submitted by the Bank from time to time; those were signed by the plaintiff and countersigned by the Godown Keeper of the Bank the plaintiff's last transaction with the Bank would appear from the statement dated 29th June 1962 on the basis whereof the plaintiff made out his claim in this suit. Inasmuch as there were no further transactions after that date, by its letter dated 14th January, 1963 the plaintiff asked the bank to sell his goods lying in the godown at Shalimar. The next averment made in the plaint is that the value of the goods on the basis of the said statement dated 29th June, 1962 was Rs. 1,14,712.60 calculated at the agreed rate of Rs. 500/- per M. ton. The plaintiff gave credit to the defendant bank in respect of its entire dues as shown in the overdraft account to the extent of Rs. 81,957.68 paise and after adjusting the same against the aforesaid value of the said security the account showed a credit balance in his favour to the extent of Rs. 32,754.92 paise. Over and above the said amount, several other sums had also been claimed by way of sales tax, god own rent and interest and on that basis the total amount claimed by the plaintiff had come up to Rs. 41,274.16P. 32,754.92 paise. Over and above the said amount, several other sums had also been claimed by way of sales tax, god own rent and interest and on that basis the total amount claimed by the plaintiff had come up to Rs. 41,274.16P. Thereafter the plaintiff pleaded a notice dated 3rd August, 1964 from his Solicitor calling upon the defendant bank to pay the said sum of Rs. 41,274.16 paise but the defendant failed and neglected to pay the said sum or any part thereof. 4. From the above it will appear that the plaint as framed is somewhat unusual in the sense that although the security is being sought to be recovered from the pledgee by the pledgor yet in the plaint there is no mention about the pledgee’s liability to sell nor any default on the part of the pledgee has been pleaded. In paragraph 11 of the plaint the plaintiff has alleged that the total tonnage of his pledged goods was to the extent of 191 M. ton and 187.666 Kgs. on 29th June, 1962. The plaintiff in effect has asked for the price of the said goods and on the basis thereof has sought to wipe out the dues of the bank after adjusting the same from the value of the security which at the agreed rate was shown at Rs. 1,14,712.60 paise. Inspite of knowledge the plaintiff had totally suppressed in his plaint the fact that the said pledged goods were weighed by the bank some time on or about 22nd on 23rd October, 1963 and upon such weighment they were found to weigh only about 37 M. tons. The plaintiff has further suppressed in the pleading that the said pledged goods to the extent of about 37 M. tons were sold by the bank to the third party and the bank realized only a paltry sum of Rs. 19,000/- and cruelted the same to the plaintiff's account. It is difficult to appreciate how under those circumstances the plaintiff could ask for credit to the extent of a sum of Rs. 1,14,712.60 paise in his account as the value of the pledged goods without pleading any default or liability on the part of the Bank or its duty to sell the same in accordance with the direction or the plaintiff. 1,14,712.60 paise in his account as the value of the pledged goods without pleading any default or liability on the part of the Bank or its duty to sell the same in accordance with the direction or the plaintiff. The plaint as framed would suggest that the pledgor has the right to ask pledgee to credit in his account the value of the goods pledged simply by asking the pledgee to sell the goods. The effect of the pleading is that the pledgor can call upon the pledgee even without tendering the money to sell the pledged articles. In other words, the pledgor without performing his obligation under the contract of pledge would be in a position to exercise a right over the pledged articles which he is not otherwise entitled to do under the law. Under the contract of pledge the pledges alone can have the right to sell the goods pledged if the pledgor makes default in making payment and that right has been provided under section 176 of the Indian Contract Act. 5. If the plaintiff had proceeded to claim the sale proceeds of 37 M. ton the plaintiff might have some case to argue out the plaintiff had not been claiming that amount. Such amount had been credited to his account by the Bank. 6. To appreciate the pleading of the plaint it is convenient to set out the paragraph relating to the claim of the plaintiff. "14. There is now due owing from the defendant to the plaintiff in his said current deposit account a sum of Rs. 41,274.16 paise particulars whereof are set out below :–– Particulars Price of goods of 191 Metric ton 187.666 Kgs. pledged with the defendant as per agreed rate of Rs. 600/- per Metric ton made with the defendant Bank. … … … Rs. 1,14,712.69 p. Bank's dues in the said account from the plaintiff Rs. 81,957.68 p. ---------------------- Rs. 32,755.01 p. Adding Godown rent which the defendant bank caused to accrue at the rate of Rs. 165/- per month from 17 months from January 1963 to May 1964. … … … Rs. 2,805.00 p. Adding Sales Tax dues @ 2 percent. on Rs. 1,14, 712.60 p. Rs. 2,294.24 p. ------------------- Rs. 37,854.25 p. Interest thereon for the period from 14 January, 1963 to July, 1964. … …. Rs. 3,420.00 p. ------------------- Total amount due Rs. 41,274.25 p. 7. … … … Rs. 2,805.00 p. Adding Sales Tax dues @ 2 percent. on Rs. 1,14, 712.60 p. Rs. 2,294.24 p. ------------------- Rs. 37,854.25 p. Interest thereon for the period from 14 January, 1963 to July, 1964. … …. Rs. 3,420.00 p. ------------------- Total amount due Rs. 41,274.25 p. 7. From the averments as pleaded, it appears, that the plaint, as framed, suffers from material defects inasmuch as some material averments are found wanting there. Firstly, it is nowhere mentioned that the defendant was under an obligation to sell the said goods. Secondly, that the defendant made defaults in carrying out its obligation. Thirdly, that there was a sale. Fourthly, that the entire credit had not been given to the plaintiff which the defendant was under an obligation to account for and which the defendant had wrongfully failed and neglected to do. In short, the liability of the pledgee had not been pleaded at all. Furthermore, it should have been a pledgors' action for the return of the pledged articles and in respect thereto the most vital averment should have been that the pledgor tendered the entire amount to the pledgee. Thereafter, the pledgor should have sought to make the pledgee liable in respect of the pledged articles. Nothing of that sort had been pleaded in the plaint. The pledgor cannot have an immediate right to possess the pledged articles until the dues are tendered or until payment of the debit to the pledgee. The entire particulars as set out under paragraph 14 of the plaint did not show the actual state or affairs. It was a notional calculation. 8. In any event, if the pledgee had sold the property wrongfully or otherwise or at an undervalue all that the pledgor could claim against the pledgee under those circumstances, was damages after redeeming his own debt. In this connection form Nos. 1, 2, 3, 4 and 5 in respect of such actions have been provided in Atkin's Book of Encyclopaedia of Pleadings 2nd edition volume 30 at page 347 et seq. The principle on this proposition is to be found in Halsbury's Laws of England Simonds Edition Volume 29. The Indian Law has been provided in sections 148, 152, 160, 161, 172, 173, 174, 176, 177 and 180 of the Indian Contract Act. 9. The principle on this proposition is to be found in Halsbury's Laws of England Simonds Edition Volume 29. The Indian Law has been provided in sections 148, 152, 160, 161, 172, 173, 174, 176, 177 and 180 of the Indian Contract Act. 9. When the case was opened on the first day an opportunity was given to the plaintiff to make an application to get his plaint amended so that necessary averments might be pleaded in the plaint if such amendment application was allowed. The suit was adjourned on that occasion but when the suit again came up in the list on the adjourned date, on behalf of the plaintiff it was submitted that no amendment was thought necessary. 10. Mr. P. K. Dutt on behalf of the plaintiff, in support of the plaint has advanced his arguments from various different aspects. His contention is that on the date of the suit the plaintiff could not have exercised his right or redeem the pledged goods in view of the fact that the same were already sold out on the 21st and 27th May, 1964. Accordingly, the pledgee had no longer any special property in the pledged and the right of possession in respect thereto also came to an end. Hence whatever remained was the money value of goods. There is force and substance in the contention of Mr. Dutt but the plaint does not proceed on that basis. The plaint proceeds on the basis of the claim relating to the entire price of the 191 M. tons 187.666 Kgs. Which quantity was actually not sold by the bank. The balance quantity of about 154 Metric tons or goods according to the plaintiff's calculation, were sold. 11. On behalf of the plaintiff the next argument advanced it that the statement of stock dated 29th June, 1962 (Exhibit C) should be considered as an admission on the part of the plaintiff as regards the value of the goods. It is true that the value has not been mentioned in Exhibit "C" but there could be no difficulty to work out the Value of the 191 Metric tons 187.666 Kgs. of goods calculated at the agreed rate of Rs. 600/- per Metric ton. In support of his arguments Mr. Dutt wants to rely on the evidence on record wherefrom it appears that the said Exhibit "C" was prepared from the bank's godown register. of goods calculated at the agreed rate of Rs. 600/- per Metric ton. In support of his arguments Mr. Dutt wants to rely on the evidence on record wherefrom it appears that the said Exhibit "C" was prepared from the bank's godown register. The said godowns register used to be maintained on the basis of the documents whereby goods used to be put in and/or taken out to and from out of the said godown. Mr. Dutt also relies on the printed declaration which appears at the fact of the statement of stock as follows :– "We solemnly declare that the quality, quantity and rates of the stock noted about and pledged/hypothecated to the Bank are true and the said stock is either out own absolute property or that we have such an interest in same as entitles us to pledge/hypothecate them with the Bank, to the full extent of the Bank's advances to us against these goods and that they are not subject to any lien, claim or charge of any sort and on the strength of this declaration of ours, the loan has been taken. In order to verify our above statement the Bank is at liberty to get the goods counted and/or weighed and/or valued at any time at our expense and we hereby agree to accept as conclusive proof the result of such checking and/or weighment and/or valuation as certified by a duly authorized office of the Bank". 12. Mr. Dutt contends that the above declaration should be considered as an admission on the part of the bank. But in the written statement the bank has stated otherwise. According to the bank the quantity of stock as has been mentioned in Exhibit "C" has been shown of the representation made by the plaintiff from time to time. Under those circumstances, in my opinion, Exhibit "C" cannot be relied on by the plaintiff as an admission. The printed declaration as set out above was a declaration by the plaintiff alone and cannot be ascribed to the bank. Accordingly, in my opinion, the lacuna in the pleading cannot be made good with the help of Exhibit "C". The document being Exhibit "C" might have great evidentiary value but it cannot be considered as an admission. 13. Mr. The printed declaration as set out above was a declaration by the plaintiff alone and cannot be ascribed to the bank. Accordingly, in my opinion, the lacuna in the pleading cannot be made good with the help of Exhibit "C". The document being Exhibit "C" might have great evidentiary value but it cannot be considered as an admission. 13. Mr. Dutt in the next place wanted to reply on the correspondence on record with particular emphasis on Exhibit 13 being the letter dated 16th October, 1963 written by the bank to the plaintiff. In that letter, according to him, there is an admission on the part of the bank as to the value opinion, in the absence of any pleading to that effect the writing on this document cannot be held to be an admission on the part of the bank. Moreover, the plaintiff himself did not admit this letter when it was sought to be proved in evidence on behalf of the bank. 14. On the basis of the said Exhibit 13 it was next argued that is between 16th October, 1963 and 23rd October 1963 shortage must have taken place because the goods were weighed on 23rd October, 1963. The plaintiff was not present at the time of weighment of the goods and was not in a position to know the weight of the goods and the quantity which was weighed. One K. M. Ghose the then Agent of the Central Bank of India Ltd. at its New Market Branch, in his evidence admitted that no felt completely secured about the quantity of the goods upto the date of the weighment. Mr. Dutt wanted to rely on the said correspondence and the said evidence in order to maintain that the position regarding the quantity and practically admitted. In my opinion, in the absence of any averment to that effect Mr. Dutt's contention cannot be accepted. 15. Mr. Dutt then argued that in the plaint a reference to the solicitors' letter dated 3rd August, 1964 Exhibit "BB" has been pleaded in paragraph 15 thereof. That letter has not been made annexure to the plaint. Mr. Dutt wanted me to go through that Exhibit BB and to find out a reference to the letter dated 16th October, 1963 where the value of the stock had been mentioned by the bank. Mr. That letter has not been made annexure to the plaint. Mr. Dutt wanted me to go through that Exhibit BB and to find out a reference to the letter dated 16th October, 1963 where the value of the stock had been mentioned by the bank. Mr. Dutt also wanted me to lock into the particulars set out in paragraph 14 of the plaint where Sales tax had been claimed. It was contended that the claim of sales-tax presupposed that a sale had taken place. In my opinion, either a reference to the solicitor's letter in paragraph 15 of the plaint no sales-tax as claimed in the particulars in paragraph 14 of the plaint could supply a cause of action which had been found wanted in the plaint as indicated above. 16. In the next place Mr. Dutt argued that the cross suit therein field by the bank against his client in Suit No. 153 of 1965 (Central Bank of India Ltd. v. Samarjit Chatterjee) was directed to be consolidated in course of this suit and as such the plaint in that suit should also be considered in connection with this issue. Mr. Dutt also wanted me to consider the written statement failed by the bank in this suit to consider the entire pleadings together to find out the cause of action on the principle that the pleadings should be liberally construed and technicalities should not stand in the way of pleadings and further that no prejudice would be caused to the bank because the bank was fully aware of the entire position. Before considering the observations made by the Supreme Court in the various decisions in this connection it is necessary to examine the pleadings in the said cross suit and also in the written statement in this suit. 17. In paragraph 8 of the written statement of the bank it was inter alia stated that the statement of stock was prepared by the bank on the basis of the representation made by the plaintiff from time to time regarding there to without modification. In paragraph 11 of the written statement of tee bank it was pleaded to the effect that the goods were sold on or about 21st May, 1964 and the sale proceeds had been duly credited to the account of the plaintiff. In paragraph 11 of the written statement of tee bank it was pleaded to the effect that the goods were sold on or about 21st May, 1964 and the sale proceeds had been duly credited to the account of the plaintiff. In paragraph 12 of the written statement there was pleading to the effect that nothing was lying in the godown after such sale. In the erose suit No. 153 of 1965 the bank had relied on Exhibit "A" being a statement dated 28th February, 1963 where the plaintiff and acknowledged its liability to the bank to the extent of the balance sum of Rs. 83,764.34P. and on the basis of such document the claim of the Bank was founded. 18. In my opinion, the statement dated 28th February, 1963 had been relied on by the bank to plead acknowledgment of liability. That did not mean that the bank had admitted the true of the contents of the said document. The acknowledgment of liability was of the plaintiff which had been relied on by the bank. Accordingly, the said pleading in the said cross suit by the bank could not be of any help to the plaintiff in making out a cause of action. It is no doubt true that the bank had admitted the sale of the entire goods lying in the godown but that would not, in my opinion, account for sale of the entire quantity of 191 M. tons of goods. 19. Considering all the arguments put forward on behalf of the plaintiff, in my opinion the pleading of the plaint remains defective and the conservations made by the Supreme Court in various cases cannot be of any help to the plaintiff. None of those observations were made for curing the defect of want of pleading of cause of action. The Supreme Court case of (1) Firm Sriniwas Ram Kumar v. Mahabir Prasad & Ors., reported in AIR 1951 SC 177 has been relied on. That was a case where in a suit for specific performance of a contract to sell a house in performance whereof the plaintiff paid to the second party defendants the sum of Rs. 30,000/-, the second party defendants denied the contract and pleaded that the money was taken as a loan. That was a case where in a suit for specific performance of a contract to sell a house in performance whereof the plaintiff paid to the second party defendants the sum of Rs. 30,000/-, the second party defendants denied the contract and pleaded that the money was taken as a loan. It was held in that case that the Court could pass a decree for recovery of the loan in favour of the plaintiff on his failure, to prove the contract even though the plaintiff had failed to plead and claim relief on this alternative case. At page 179 it was observed : "The rule undoubtedly is that the Court cannot grant relief to the plaintiff on a case for which there was no foundation in the pleadings and which the other since was not called upon for had an opportunity to meet. But when the alternative case, which the plaintiff could have made, was not only admitted by the defendant in his written statement out was expressly put forward as an answer to the claim which the plaintiff made in the suit, there would be nothing improper in giving the plaintiff a decree upon the case which the defendant himself makes. A demand of the plaintiff based on the defendant's own plea cannot possibly be regarded with surprise by the latter and no question of adducing evidence on these facts would arise when they were expressly admitted by the defendant in his pleadings. In such circumstances when no injustice can possibly result to the defendant it may not be proper to drive the plaintiff to a separate suit." 20. The above case also the Supreme Court recognizes the importance of pleading in order to get relief and also recognized the rule that the Court could not grant relief if there was no foundation in the pleadings. The relief that was granted by the Supreme Court in that case was based entirely on the admission by the defendants in his written statement and as such this case should be restricted to the cases of admission in the written statements. The Division Bench of this Court by its recent prodocument in the case of (2) Parikh Brothers v. Kartick Chandra Saha & Ors., reported in AIR 1968 Cal 532 has explained the case of Firm Sriniwas Ram Kumar v. Mahabir Prasad & Ors. The Division Bench of this Court by its recent prodocument in the case of (2) Parikh Brothers v. Kartick Chandra Saha & Ors., reported in AIR 1968 Cal 532 has explained the case of Firm Sriniwas Ram Kumar v. Mahabir Prasad & Ors. by observing as follows :–– "The Rule in Sriniwas's case AIR 1951 SC 177 , must be taken as confined to case where liability is clearly admitted without reservation." 21. Reliance has been placed on the case of (3) Kedar Lal Seal & Anr. v. Hari Lal Seal, reported in AIR 1952 SC 47 where it was observed at page 52 :–– "I would be slow to throw out a claim on a mere technicality of pleading when the substance of the thing is there and no prejudice is caused to be other side, however clausily or inartistically the plaint may be worded. In any even, it is always open to a Court to give a plaintiff such general or other relief as it deems just to the same extent as if it had been asked for, provided that occasions no prejudice to the other side beyond what can be compensated for in costs. 22. This was not a case of want of pleading of cause of action. The question before the Supreme Court was whether the relief that was sought to be prayed was sufficiently pleaded. The case was ultimately remanded to the High Court for certain enquiries regarding certain sums due. 23. In the case of (4) Janakirama Iyer & Ors. v. Nilkanta Iyer, reported in AIR 1962 SC 633 the Supreme Court also considered a case where the question arose whether there was sufficient pleading in the prayer regarding delivery of possession. On a proper construction of the plaint it was found that the question of possession was sufficiently pleaded in substance. This was also not a case where there was want of pleading of cause of action in the plaint. 24. On behalf of the plaintiff it was next contended that inasmuch as both the parties had gone to trial with the specific issue in mine though not expressly pleaded in the plaint viz., which party was to be credited with the amount the Court would go into the question of that finding. 24. On behalf of the plaintiff it was next contended that inasmuch as both the parties had gone to trial with the specific issue in mine though not expressly pleaded in the plaint viz., which party was to be credited with the amount the Court would go into the question of that finding. This argument was made on the basis of the observation made by the Supreme Court in (5) Nagubai Ammal & Ors. v. B. Sharma Rao & Ors., reported in AIR 1956 SC 593 at page 598 to the following effect :–– "We are satisfied that the defendants went to trial with full knowledge that the question of lis pendens was in issue, had ample opportunity to adduce their evidence thereon, and fully availed themselves of the same, and that, in tile circumstances, the absence of a specific pleading on the question was a mere if regularity, which resulted in no prejudice to them." 25. In that case also the Supreme Court did not consider a case where the plaint did not disclose a cause of action as was the case here. All that was observed by the Supreme Court was to allow a point to be taken even though such point was not pleaded on the ground that the parties had full knowledge thereof and had availed of the opportunity to adduce their evidence thereon. The main question was that the irregularity resulted in no prejudice to the other side. In my opinion, the above Supreme Court case cannot help Mr. Dutt on this point. 26. The next case that was cited by Mr. Dutt was the case of (6) Fertilizer Corporation of India Ltd. v. Sanjit Kumar Ghosh & Anr. reported in AIR 1965 Punjub 107. In that case also the Court came to the finding that the cause of action was sufficiently pleaded. It appears from the said judgment that all the material averments which were necessary to be pleaded were pleaded in the plaint. 27. The last case cited on this point was the case of (7) Shri Ram v. Thakur Dhan Bahadur Sing, reported in AIR 1965 All 223 . That was also a case similar to the case of Firm Sriniwas Ram Kumar reported in AIR 1951 SC 177 . 27. The last case cited on this point was the case of (7) Shri Ram v. Thakur Dhan Bahadur Sing, reported in AIR 1965 All 223 . That was also a case similar to the case of Firm Sriniwas Ram Kumar reported in AIR 1951 SC 177 . In that case the defendant pleaded that the mortgage set up by the plaintiff did not exist but that he was in possession of the property under a different mortgage in favour of the defendant's firm. On the basis of such admission in the written statement the Allahabad High Court granted relief to the plaintiff by passing a decree for possession on the basis of the subsequent mortgage admitted in the written statement. 28. In my opinion, none of the above cases really solve the problem which Mr. Dutt has been facing with. 29. Mr. Dutt's next alternative argument on this issue is that the Court can always grant the appropriate reliefs under Order 7, Rule 7 of the Code of Civil Procedure. In my opinion, it is not merely a question of Court's granting relief on the basis of Order 7, Rule 7 of the Code. It is a question of want of pleading of cause of action which has got to be pleaded to enable the plaintiff to obtain a decree from the Court. 30. Mr. Dutt also argues that the pleadegs has the duty to render true and correct account as to the sale proceeds and on that basis contends that the bank having sold the goods already, is bound to pay the balance of the money on the basis of the price of 191 Metric ton at the agreed rate of Rs. 600/- per Metric ton and as such the suit as framed is in order and discloses a cause of action. If that case was sought to be made out in the plaint then, in my opinion, the frame of the suit should have been completely different from the one which is before me. 31. I have no hesitation to reject the arguments put forward by Mr. Dutt on this issue and to hold on the reasons stated above, that the plaint discloses no cause of action. 31. I have no hesitation to reject the arguments put forward by Mr. Dutt on this issue and to hold on the reasons stated above, that the plaint discloses no cause of action. This disposes of Issue No.2 which is set out and answered as follows :–– "Does the plaint disclose any cause of action ?"––No." The only other issue which remains to be decided is Issue No. 1 which is set out as follows :–– 1. (a) On or about June 29, 1962 did the plaintiff have in his godown 191––187.666 Metric tonnes of goods as alleged in paragraph 11 of the plaint? (b) What was the value of the stock lying in the said godown on or about June 29, 1962 ? (c) Was the statement being annexure "A" to the plaint prepared in the circumstances and on the basis as alleged in paragraph 8 of the written statement? (d) Were only 37.18 Metric tonnes of goods found on weighment on or about October 23, 1963, as alleged in paragraph 8 of the written statement? 32. Inasmuch as the case has been heard fully and evidence has been gone into on merits, I feel, I should deal with the same even though the case can be decided and disposed of on the basis of my above finding on Issue No.2 alone. 33. As regards the total quantity of the goods which was in the godown on 29th June, 1962 Mr. Dutt has firstly relied on Exhibit "A" being the statement of stock dated 28th February, 1963. On this date, a total quantity of 191.592 Kgs. of iron and steel goods have been declared to be lying in the said godown. The document is also countersigned by the godown keeper V. Misra. The godown keeper's evidence had been that he would make out the statement from the records kept in the bank's books of accounts. Such statement would be prepared in the office of the bank. The quantity showed in the statement would never be weighed and the quantity would be determined on the basis of the documents by which the goods were stored in the godown and the documents by which the goods were taken out of the said godown from time to time. Mr. The quantity showed in the statement would never be weighed and the quantity would be determined on the basis of the documents by which the goods were stored in the godown and the documents by which the goods were taken out of the said godown from time to time. Mr. Dutt strengthened his argument by pointing out that this particular statement of stock dated 28th February, 1953 was relied on by the bank in paragraph 7 of the bank's plaint in suit No. 153 of 1965 (Central Bank of India Ltd. v. Smarajit Chatterjee.) 34. Mr. Dutt's next contention is that the total quantity as shown in the statement of stock dated 29th June, 1962 has been maintained all along from 29th June, 1962 till 28th February, 1963. It is true that the statement of stock dated 28th February, 1963 was relied on by the bank in its plaint as an acknowledgement of liability on the part of the plaintiff showing the balance sum of Rs. 83,764.34P. as outstanding; it is further true that this document cannot be treated as an admission on the part of the bank as discussed above; yet the quantity of the balance goods as shown therefrom has great evidentiary value specially when this document was prepared by the bank's servant or agent from the bank's books. At no point of time the godown keeper had any occasion to doubt that the quantity mentioned in the books of account of the bank or in the said statements of stock did not show the correct quantity of stock which was actually lying in the said godown from time to time. The Bank's allegation is that on weighment the goods were found to weight only about 37 M. ton whereas the books showed that quantity should have been about 191 M. ton. The difference is enormous. The difference is to the tune of about 154 tonnes. 35. Mr. Dutt then realize on Exhibit 'C' being the statement of daily stock dated 29th June, 1962 which also shown the balance quantity to be 191 Metric tonnes 187.666 Kgs. It is the common case of both the parties that no new transaction took place after 29th June, 1962. The subsequent statements of stock also show the same quantity which was lying in the said godown. One K.M. Ghosh the then agent of the Lindsay Street Branch gave evidence before me. It is the common case of both the parties that no new transaction took place after 29th June, 1962. The subsequent statements of stock also show the same quantity which was lying in the said godown. One K.M. Ghosh the then agent of the Lindsay Street Branch gave evidence before me. According to him the accounts department was to look after the security and they were to know what was the actual position with regard to the materials lying in the said godown. According to Ghosh the bank effected the burglary insurance in respect of the goods lying in the said godown and as such it was not necessary to keep a watchman in the said godown. It transpired from the evidence of Ghosh that the bank was in possession of some other godown in that locality during the same period but there was a watchman to look after the said security. It is evidence before me that a large sum was being debited to the account of the plaintiff every month by the bank to meet the salary of the god own keeper. Nobody on behalf of the bank could say what was the actual reason for shortage. A few probabilities were suggested by Ghosh about the shortage but they were all matters of his opinion. Mr. Dutt contends that at no point of time the bank intimated Chatterjee about any short receipt of the goods at the time they were brought in nor was there any complaint on behalf of the bank that more goods than was mentioned in the delivery order had been taken away from the godown. There was no suggestion that the plaintiff had ever removed any part of the goods from the godown surreptitiously or other wise than through genuine delivery orders. In my opinion, Mr. Dutt's contentions have good deal of force behind them and accordingly I accept the same. 36. Mr. Dutt then relies on the admission contained in Exhibit 13 being the letter dated 16th October, 1963 written by the bank under the signature of Ghose. Even on 16th October, 1963 the bank admitted that the value of the stocks held by it was to the extent of Rs. 1,12,792/- as would a pear from the said account. It is admitted in that document that even though the debit balance was to the extent of Rs. Even on 16th October, 1963 the bank admitted that the value of the stocks held by it was to the extent of Rs. 1,12,792/- as would a pear from the said account. It is admitted in that document that even though the debit balance was to the extent of Rs. 88,161/- yet the value of the stocks held by the bank was such in excess of the said debit balance. If the goods were weighed on 23rd October, 1963 and were found to be of 37 Metric tonnes only then the bank alone has to account for the shortage. Mr. Dutt suggests that something must have happened which resulted in the shortage in between 16th October 1963 and 23rd October, 1963. The plaintiff was so where near the site. Accordingly, the bank alone being in the know of things could explain what had happened to the said 154 Metric tonnes of goods which remained unaccounted for. Further Ghose in his evidence has admitted that he had felt that the bank was fully secured up to the moment prior to the weighment of the goods on 23rd October, 1963. The reason why the goods were weighed was because the Iron & Steel Controller wanted to know the actual quantity of the goods before giving permission to sell the same. At one point of time Ghose wanted to say in his evidence that an intending purchaser had stated that the weight of the goods would not come up to 191 Metric tonnes if the same were weighed and that they would be much below that weight. The bank cannot rely on that piece of evidence because in my opinion the same would be inadmissible as hearsay. 37. The next document on which Mr. Dutt relies in support of his argument is dated 24th August, 1962 being the letter written by the bank to the plaintiff. On that date the bank intimated the plaintiff that there was a marginal deficit to the extent of Rs. 4419/- in the plaintiff's debit balance of Rs. 77,719/-. The bank further stated that on that date the drawing limit was Rs. 73,300/-. Mr. Dutt contends that if the drawing limit was admitted to be Rs. On that date the bank intimated the plaintiff that there was a marginal deficit to the extent of Rs. 4419/- in the plaintiff's debit balance of Rs. 77,719/-. The bank further stated that on that date the drawing limit was Rs. 73,300/-. Mr. Dutt contends that if the drawing limit was admitted to be Rs. 73,300/- then the value of the goods can be arrived at by adding 40% on it and on that calculation the total weight of the goods would also come up to about 191 Metric tonnes. 38. In my opinion, the evidence on this point is overwhelmingly in favour of the plaintiff and against the defendant bank. It is no good saying that the bank could not be liable to account for the shortage because the bank had effected burglary insurance in respect of the quantity. I am satisfied from the evidence on record that the bank was absolutely callous and never bothered itself to know as to what was happening to the goods and in what condition they were lying in the said godown. The bank's own treasurer Baldeoram Beharilal with whom the godown was entrusted intimated to the bank in the beginning of 1963 that the fencing in the god own was damaged and further that they were not in a position to undertake any responsibility if the goods would be stolen. Ghose was surprised in the witness box to come to know that this internal correspondence had been disclosed in this proceeding. Then again, the godown keeper V. Misra was on leave for months together but no substitute was provided in his place during his absence on leave. 39. On behalf of the bank it is contended that the goods were never weighed before 23rd October, 1963. Assuming that position to be correct the fact remains that on so occasion the bank ever complained about shortage of any quantity not to speak of a huge quantity like 154 Metric tonnes. If K.M. Ghose had no idea about the weight of the iron and steel goods by looking at their bulk surely it could be expected of the bank's agent or servant V. Misra to have soma idea about it. It is surprising that no step whatsoever was taken to recover the shortage or the damages arising therefrom from the Insurance Company out of the burglary insurance policy. It is surprising that no step whatsoever was taken to recover the shortage or the damages arising therefrom from the Insurance Company out of the burglary insurance policy. K. M. Ghose said that nobody complained about any shortage or burglary or theft. It is surprising that anybody else excepting the bank's own agent or servant would be expected to make such complaint. From the evidence on record I have no hesitation to come to the finding that the bank was utterly negligent to take care of its own security. 40. In this connection the letter dated 20th February, 1963 (Exhibit T) written by Baldeoram Beharilal and addressed to the agent of the New Market Branch will through a good deal of light as to what was the real position. It is in evidence before me that Ba1deoram Beharilal were the treasurers or banians of the said bank and V. Misra was employed under the bank with their recommendation. The relevant extracts from the said letter are set out as follows :–– Re : Godown at Shed No. 22, Shalimar of Cosmopolitan Trading Co., Calcutta "Dear Sir, With reference to above we take the opportunity of drawing your attention to the wretched condition of the above godown. It is reported that the fencing all around the godown is in broken condition and the same may collapse at any time. Although there is locking arrangement of the entrance yet that is nothing but eye-wash as because the door itself is in collapsing condition the bank inspector had been on inspection on 22.1.63 and witnessed the situation. Further there is no permanent godown keeper posted for the god own even not any Chowkidar or Jamadar to look under the circumstances, we are not going to take any responsibility of any shortage in stock, if any occurs, in the above said godown." 41. The bank by its letter dated 25th February, 1963 (Ex. 'S') replied to the said letter of Baldeoram Beharilal. It appears from the said reply that the bank had already got the information through its cash department and engaged a watchman until repairs of the fencing would be effected. If further appears that the bank felt confident that since the godown was covered by burglary insurance policy the bank would not suffer any loss and if shortage would occur otherwise the god own keeper would be held entirely responsible. If further appears that the bank felt confident that since the godown was covered by burglary insurance policy the bank would not suffer any loss and if shortage would occur otherwise the god own keeper would be held entirely responsible. By its letter dated 8th March, 1963 Baldeoram Beharilal again wrote to the bank complaining that the godown was inspected by their man Gobinda Lal Mehta but he did not find any guard posted there nor any repairs were effected. It was further intimated that the god own keeper was on leave for the last so many months and nobody on behalf of the bank visited the god own for a long time. The said treasurers accordingly disowned their responsibility. Thereafter negotiations took place between the bank and the plaintiff for effecting repairs and ultimately the bank got the fencing repaired and debited the account of the plaintiff in respect of the expenses incurred by it. 42. By his letter dated 14th January, 1963 the plaintiff asked the bank to sell the goods. It was no doubt true that the iron and steel goods at that time could not be sold without the permission of the Iron & Steel Controller and as such the same could not be disposed of immediately for the mere asking. It can also be appreciated that ordinarily such heavy materials in such huge quantity were not likely to remove without being noticed by anybody bit it was expected of the bank to keep some information at least about the godown so that the security might not have been put to jeopardy specially when the bank had been debiting the plaintiff's account with a large sum of money every month on account of the godown keeper's salary. The goods were lying in the custody and control of the bank. The documents executed by the bank showed the balance quantity of goods lying in the godown. The bank's books of account were maintained on the basis of the said stock existing in the said godown. The bank had been allowing the plaintiff to overdraw to the extent of the allowable limit on the basis of such books of account and documents. This had the goods weight on 23rd October, 1963 and found the huge shortage. The bank did not think of making any claim against the burglary insurance policy. The bank had been allowing the plaintiff to overdraw to the extent of the allowable limit on the basis of such books of account and documents. This had the goods weight on 23rd October, 1963 and found the huge shortage. The bank did not think of making any claim against the burglary insurance policy. All these go to suggest that the bank's Officers and/or employees were aware for the shortage and how it occurred and that the bank was itself to be claimed for such shortage. The bank found that it was easier for it to lay the blame on the plaintiff. The bank could have been more careful in satisfying itself about the notice of sale being actually served on the plaintiff before it actually proceeded with the sale. 43. Clauses 5 and 10(a) of the deed of hypothecation, inter alia, provided that the goods would be kept at the risk and responsibility of the party. The determination of the legal position of such a clause in the contract of bailment is not in issue before me and Mr. Basu rightly submits that I should not give my finding on that point in this case. 44. On behalf of the bank Mr. Basu has argued that the plaintiff should have disclosed its books of account and had it done so the correct position as to their stock of the good as on 29th June, 1962 could have been ascertained. In my opinion, the plaintiff's books of account could not have shown anything else other than what was stated in the statements of book. The parties were action on the basis of the said statements of accounts and there could be on reason in the absence of any allegation of fraud or misrepresentation, why the statements of book in the plaintiff's books of account would show differently from what was shown in the daily statements of stock. Mr. Basu then argues that the goods were never weighed and until such weighment was done and the correct weight was checked, the stock as shown in the statement could not be held to be conclusive. Mr. Basu is right when he argued that the printed declaration relates to the plaintiff alone and it cannot be the declaration of the bank as well. Mr. Basu is right when he argued that the printed declaration relates to the plaintiff alone and it cannot be the declaration of the bank as well. Even then the language of the declaration itself provides that the bank would be at liberty to account and/or to verify or to weigh at any time at the expenses of the plaintiff and if such steps would be taken the plaintiff would accept the same as conclusive proof. The correct interpretation of that declaration is that in case the bank would chose not to count or to verify or to weigh the said goods, the bank would be deemed to have accepted the plaintiff's declaration as correct. The very fact that the goods were not counted, valued or weighed by the bank till 22nd/23rd October, 1963 would go to support the plaintiff's case that the quantity of goods as shown in the said statement of stock and specially the statement dated 29th June, 1962, would reveal the correct stock held by the bank in the said godown. 45. Under those circumstances, I have no hesitation to come to the finding that on or about 29th June, 1962 the plaintiff had 191 M. ton 187.666 Kgs. of iron and steel goods in the said Shalimar Godowns. 46. As regards Issue No.1 (b) which relates to the value of the stock lying in the said god own on or about 29th June, 1962. Mr. Basu has not seriously contested the value being considered at the rate of Rs. 600/- per M. ton. In fact, Mr. Basu did not mind if the rate would be fixed at Rs. 600/- per M. ton as agreed to by and between the parties. Mr. Basu of course contends that the evidence of the market rate as on that date should have been adduced on behalf of the plaintiff. My finding is that the value should be calculated at the agreed rate of Rs. 600/- per M. ton and I hold accordingly. On the basis of that calculation the figure has to be worked out. 47. My finding is that the value should be calculated at the agreed rate of Rs. 600/- per M. ton and I hold accordingly. On the basis of that calculation the figure has to be worked out. 47. As regards Issue No.1 (c) it has been pleaded in paragraph 8 of the written statement to the effect that the statement of stock dated 29th June, 1962 was prepared by the bank at the instance of the plaintiff on the basis of representations made by or on behalf of the plaintiff from time to time as to the stocks deposited and taken delivery of and the same was done without verification. Mr. Dutt has argued that from the very beginning statements have been prepared and they have never been challenged as incorrect. Each statement is in continuation of the previous one and such statements have been authenticated by the signature of the godown keeper as genuine document showing the correct state of affairs. It is difficult to appreciate how the bank can be allowed to say that the statements were not correctly prepared when the bank itself was acting on those statements and extending huge credit from time to time to the plaintiff on the basis thereof. In fact the bank had been acting all along on the basis of the said statements which were prepared from the books of account maintained in the office of the bank. Ghose has admitted that there was no pilferage or shortage reported up to 22nd/23rd October, 1963 when the goods were actually weighed. The written statement of the bank has been verified by K. M. Ghose. The evidence of Ghose from the witness six was not in corroboration of the statement pleaded in paragraph 8 of the written statement. In my opinion, the representations as alleged therein nor any misstatement in the statement of account had been established on behalf of the bank and accordingly this Issue No. 1(c) is decided and answered in the negative. 48. As regards Issue No.1 (d) it transpired from the evidence the weighment took place on 22nd October, 1963 and on 23rd October, 1963. As to whether V. Misra was present on the said dates of weighment there is conflicting evidence on the same. 48. As regards Issue No.1 (d) it transpired from the evidence the weighment took place on 22nd October, 1963 and on 23rd October, 1963. As to whether V. Misra was present on the said dates of weighment there is conflicting evidence on the same. V. Misra's own evidence was that he was present on both the occasions but in the evidence of one Majhi it was stated that V. Misra was not seen at the Shalimar Godown for a period of about three months prior to the dates of weighment. Even on the dates of weighment he was not present. On the basis of the said evidence of Majhi, Mr. Dutta has made comments on the signature of V. Misra on Exhibit 8. The bank's other witness including V. Misra stated that he was present on the said dates of weighment. A lot of comment has been made on behalf of the plaintiff, about the absence of the relevant witness from the weigh-bridge station where the goods were alleged to have been weighed. In any event, there was no contradictory evidence from the plaintiff's side and as such I am inclined to hold and I hold that the goods of the weight of 37.18 M. ton were weighed on or about 23rd October, 1963. 49. The only question that remains to be answered is what had happened to the goods. Ghose has said that the account department knew about the security held in the godown. It appears that V. Misra was on leave from December, 1962 to March, 1963. According to Hrishikesh Chakravorty, one Basu Roy was the person who would be in a position to say about the security held in the Shalimar Godown. It appears that nobody has explained what had happened to the goods. The plaintiff did not put the blame on V. Misra for the shortage nor did V. Misra or the bank's other witnesses could lay the blame on the plaintiff. The admitted position is that the goods were lying in the said godown in the custody and control of the bank and if no proper evidence is forthcoming the Court would be justified in drawing the adverse inference against the bank and to hold that the bank withheld such evidence. If Basu Roy was caned then the real position might have been ascertained. If Basu Roy was caned then the real position might have been ascertained. Paragraph 7 of the plaint filed by the bank would show that the bank was proceeding on the basis of the said statement of stock held by the bank. In answer to question 375 V. Misra stated that he saw the goods on 29th June, 1962. Under those circumstances, I hold that the bank withheld the evidence of a material witness by not calling the said Basu Roy. Furthermore, V. Misra had the special knowledge to ascertain the approximate weight of the goods by measurement and it was quite likely that if there had been such heavy shortage he could have at once detected the same. Accordingly, even though the goods were found to weigh only 37.18 M. ton yet the balance quantity remained unaccounted for by the bank. 50. Issue No.3 accordingly is decided against the plaintiff in view of my finding on Issue No.2. The suit is accordingly dismissed on the basis of the decision on Issue No.2 but in view of the finding on merits having gone in the favour of the plaintiff. I think the justice of the case would demand that I should decide, that costs should be borne by each party in his or in its own share and I decide accordingly. 51. The next suit having been complicated with this suit it follows that the plaintiff in the cross suit i.e., the Bank would be entitled to a decree for Rs. 77,018.57/- as claimed in the plaint with interest on decree and costs. In view of my finding in Suit No. 1600 of 1964 on the merits thereof I refuse interim interest. The costs of this suit also would be borne by each party in his or in its own share on the basis of my above observation.