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PETITIONER: DHIAN SINGH SOBHA SINGH & ANOTHER

       Vs.

RESPONDENT: THE UNION OF INDIA

DATE OF JUDGMENT: 29/10/1957

BENCH: BHAGWATI, NATWARLAL H. BENCH: BHAGWATI, NATWARLAL H. IMAM, SYED JAFFER GAJENDRAGADKAR, P.B.

CITATION:  1958 AIR  274            1958 SCR  781

ACT:        Bailment-Non-delivery of goods by bailee-Rights and remedies        of   bailor-Election-Action  for  wrongful   detention   and        wrongful conversion-Distinction-Value in the alternative, if        as  at the date of decree-Value stated in the notice,  if  a        bar  to recovery of appreciated value-Damages  for  wrongful        detention-Principle   of assessment-Code of Civil  Procedure        (Act 1 of 1908), s. 80.

HEADNOTE:        The appellants, by an agreement, let out two trucks on  hire        to the respondent.  The respondent terminated the  agreement        but  failed  to return the trucks on the fixed date  on  the        plea that they had already been returned to a partner of the        appellants.   The  appellants served  the  statutory  notice        under  s.  80  of the Code of Civil Procedure  and,  on  the        respondent’s failure to comply, brought a suit for  wrongful        detention  claiming,  inter alia, return of  the  trucks  or        their  value in the alternative as stated in the notice  and        damages  for  wrongful detention till delivery.   Claim  was        also made for such appreciated value of the trucks as  would        prevail at the date of the decree by paying additional Court        fee.  The trial court held that the return of the trucks  as        alleged  by the respondent was not justified,  and,  besides        the  rent claimed in the suit, passed a decree for  recovery        of  the price of the trucks in the alternative as stated  in        the  notice and interest thereon by way of damages,  holding        that  the  price as at the date of the tort  was  sufficient        compensation  in law either for wrongful conversion  or  for        wrongful detention.  The High Court affirmed the decision of        the  trial court so far as the recovery of the price in  the        alternative was concerned holding that the respondent  could        not be called upon to pay more than what it was asked to pay        by  the  notice, but disagreed on the question of  award  of        damages  and enhanced the decree to the extent of the  claim        as tentatively laid in the appeal.        Held,  that the courts below were in error in  deciding  the        matter as they did and the appeal must be allowed.        Where the bailee fails to deliver the goods, the bailor  has        normally  the  right  to elect his own remedy  and  sue  him        either  for wrongful conversion or for  wrongful  detention.

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      If he chooses to adopt the latter remedy, the bailee  cannot        take advantage of his own wrongful conversion and compel the        bailor to choose the other remedy to his disadvantage.        Reeve  v. Palmer, (1858) 5 C.B. (N.S.) 84, and Wilkinson  v.        Verity, (1871) L.R. 6 C.P. 206, referred to.        The cause of action in a suit for wrongful detention, unlike        that  in a suit for wrongful conversion is a continuing  one        ,and        782        the measure of damages must be the value of the goods not as        at the date of the tort but as at the date of the  judgment.        Although the cause of action arises with the refusal of  the        bailee  to deliver the goods, it continues till delivery  is        made  by the bailee or he is compelled to do so by a  decree        of  court.   While  in a suit for  wrongful  conversion  the        plaintiff  abandons his title and claims damages in lieu  of        the  goods,  in a case of wrongful detention  the  plaintiff        claims delivery of the goods on the basis of his title  that        subsists  till the date of decree.  Consequently, the  value        of  the goods in the alternative on failure of delivery  can        be ascertained only at the date of the decree.        Rosenthal  v.  Alderton  & Sons Ltd.,  [1946]  1  K.B.  374,        referred to.        Case-law discussed.        It is well settled that in a suit for wrongful detention the        plaintiff  is  entitled not merely to the  delivery  of  the        goods or their value in the alternative but also to  damages        for the wrongful detention till the date of the decree.  The        principle for assessing such damages must be the same as  in        any  other  case where the wrongful act of  one  so  injures        something  belonging to another as to render it unusable  or        something  is taken away so that it can no longer  be  used,        and  the  amount  of  damages  must  be  ascertained  by   a        reasonable    calculation   after   taking   all    relevant        circumstances  into consideration.  In the instant case  the        High Court should have made a reasonable calculation of  the        number of days the trucks could have been put to use by  the        appellants and awarded damages accordingly.        Strand Electric & Engineering Co., Ltd., (1952) 2 Q.B.  246,        Owners  of the Steamship " Mediana " v. Owners,  Master  and        Crew of Lightship "Comet", [1900] A.C. 113, referred to.        Anderson   v.   Passman,  [1835]  7  C.  &  P.   193,   held        inapplicable.        While the terms of s. 80 of the Code of Civil Procedure must        be strictly complied with, that does not mean that the terms        of  the section should be construed in a pedantic manner  or        in  a manner completely divorced from common  sense.   There        can be no doubt on a reasonable construction of the terms of        the  section that the value of the trucks as stated  in  the        notice in the instant case, could be no other than the value        as  on  the date fixed for delivery  and,  consequently,  it        could be no bar to the recovery of such appreciated value as        prevailed at the date of the judgment.        Bhagchand  Dagadusa  v. Secretary of State, (1927)  L.R.  54        I.A. 338, considered.        Jones  v.  Nicholls, (1844) 13 M. & W. 361:  E.R.  149,  and        Chandu  Lal Vadilal v. Government of Bombay,  I.L.R.  [1943]        Bom. 128, referred to.

JUDGMENT:        CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5 of 1954.        Appeal from the judgment and decree dated April 7, 1948,  of        the Nagpur High Court in First

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      783        Appeal No. 27 of 1954 arising out of the judgment and decree        dated  July  7,  1944,  of the  Court  of  Third  Additional        District Judge, Nagpur, in Civil Suit No. 10-B of 1943.        N.   S. Bindra and Gyan Singh Vohra, for the appellants.B.   Sen        and H. L. Hathi (for R. H. Dhebar), for the respondent.        1957.  October 29.  The following Judgment of the Court  was        delivered by        BHAGWATI J.-This appeal with a certificate of fitness  under        s.  110 of the Code of Civil Procedure raises  an  important        question  as to the rights and remedies of a bailor  in  the        event of non-delivery of the goods by the bailee.        The  appellants  carried on business in partnership  in  the        firm  name and style of " Ishwarsing Dhiansingh "  and  were        the owners of two motor trucks, one bearing No. AWB 230 (V-8        Ford  1938  Model)  and  the  other  bearing  No.  AWB   253        (Oldsmobile  Model  1938).  On May 4, 1942,  the  appellants        entered into an agreement for the hiring out of these trucks        to  the  respondent for imparting tuition  to  the  military        personnel.   Rupees 17 per day per truck was  stipulated  as        the  hire  and the agreement was terminable on  one  month’s        notice by either side.        Pursuant to the said agreement truck No. AWB 230 was  handed        over to the respondent on April 29, 1942, and truck No.  AWB        253 was given on May 4, 1942.  The respondent used truck No.        AWB 230 from April 29, 1942, to July 31, 1942, excepting the        period from June 4, 1942, to June 9, 1942, and truck No. AWB        253 from May 4, 1942, to July 31, 1942, excepting the period        from  June 1, 1942, to June 9, 1942.  On June 29, 1942,  the        respondent  gave  notice to the appellants  terminating  the        agreement with effect from August 1, 1942, and asked them to        remove  the  trucks on the expiration of that  period.   The        appellant  No.  1  attended upon the  Officer  Commanding  4        M.T.T.  Centre, Kamptee at about 9 a.m. on August  1,  1942,        for removing the trucks but they were not delivered        784        to  him by the transport in-charge and by his letter of  the        same  date addressed to the S. S.O., Kamptee, the  appellant        No. 1 put the above fact on record.        The  respondent did not return the trucks to the  Appellants        nor  did  it pay any hire charges to them.   The  respondent        took  up the position that the amount of hire had been  paid        and the trucks had been delivered by it to one Surjan  Singh        who was alleged to have been a partner of the appellants and        thus  entitled to receive the said payment and the  delivery        of the trucks in question.  The appellants controverted  the        said position and claimed that the respondent was liable  to        pay the hire money as well as return the trucks to them.        On August 4, 1942, the appellants gave the requisite  notice        under s. 80 of the Code of Civil Procedure to the respondent        and  claimed (i) the hire money up to July 31, 1942, at  Rs.        17 per day for AWB 230 from April 29, 1942, and for AWB  253        from May 4, 1942, and interest at 6% on the hire money  from        the due date till realization (ii) damages at Rs. 17 per day        per truck from and inclusive of August 1, 1942, onwards till        delivery  of possession and (iii) return of the trucks  Nos.        AWB 253 and AWB 230 in good running order with spare wheels,        accessories  and  tools  and in good  condition  or  in  the        alternative  Rs.  3,500  being the price  of  the  said  two        trucks.        The  respondent  failed  and neglected to  comply  with  the        requisitions  contained in the said letter with  the  result        that on January 8, 1943, the appellants filed a suit against        the  respondent  and  the said  Surjan  Singh  claiming  the        aforesaid reliefs together with future damages from the date

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      of suit to the date of the delivery of the trucks and costs.        In the plaint as filed the cause of action was stated to  be        the failure of the respondent to pay hire money and the non-        delivery of the trucks to the appellants by reason of  their        having  been wrongfully delivered by the respondent  to  the        said Surjan Singh.  It was averred that the appellants  were        entitled to the return of their trucks or their value at the        date of the decree.  The appellants reserved their right  to        claim excess        785        amount  if  the price of the trucks at that time  was  found        more  than  what was claimed by them owing to  the  rise  in        prices  thereof, by paying additional courtfee.  The  action        was one for wrongful detention and the appellants claimed  a        return of the trucks or in the alternative the price thereof        at  the date of the decree, payment of hire and damages  for        wrongful  detention  of  the said  trucks.   The  respondent        reiterated its contentions in the written statement which it        filed and the parties went to a hearing on these pleadings.        The  Trial Court held that the respondent was not  justified        in  paying  the rent and delivering the trucks to  the  said        Surjan Singh.  It awarded to the appellants the price of the        two  trucks  which had been fixed by the appellants  at  Rs.        3,500  both in the notice under s. 80 of the Code  of  Civil        Procedure  and  the evidence led on their behalf.   It  also        awarded  to  the appellants interest on that sum at  6%  per        annum by way of damages.  It, however, refused to grant  any        mesne   profits  holding  that  for  either   detention   or        conversion,  the value of the goods on the date of the  tort        was  sufficient  compensation.  The rent of the  trucks  was        calculated at Rs. 2,380 and it awarded to the appellant that        sum  together  with interest thereon at 6%  per  annum  from        August 1, 1942, to January 7, 1943.  It accordingly passed a        decree  in  favour of the appellant for Rs.  6,032-4-0  with        proportionate costs against the respondent as well as Surjan        Singh.        The  appellants  preferred an appeal to the  High  Court  of        Judicature  at  Nagpur.   They claimed a total  sum  of  Rs.        11,985  as also the highest market value of the trucks.   In        so far as a decree for Rs. 6,032 had already been passed  by        the  Trial Court in their favour, they valued  the  subject-        matter of the appeal at Rs. 5,953 and accordingly  furnished        court-fee stamp for that amount.        The Office of the Registrar took objection to the amount  of        that court-fee and on February 19, 1945, a Bench of the High        Court passed an order that the appellants must pay court-fee        on Rs. 16,626 being the claim for rent from the date of  the        suit till the date        786        of  the filing of the appeal and the appellants  accordingly        paid the additional court-fee of Rs. 1,279-11-0 on  February        28, 1945.        The appeal was heard by a Division Bench of the High   Court        On April 1, 1948.  The High Court disallowed the appellants’        claim for the higher value of the trucks on the ground  that        the appellants had merely claimed Rs. 3,500 as the price  of        the  said  trucks in the notice under s. 80 of the  Code  of        Civil  Procedure.   The learned judges were of  the  opinion        that although it might be permissible to allow some latitude        when  the substance of the claim was clear it would  not  be        right  to tell the respondent that only Rs. 3,500 was  being        claimed if the trucks were not returned and then in the suit        to  demand  something  like Rs.  14,000.   They  accordingly        upheld  the  decree of the Trial Court in this  regard.   As        regards the claim for damages for wrongful detention of  the

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      trucks the learned judges held that the appellants should be        compensated  for  being deprived of the use  of  the  trucks        between  August 1, 1942, the date of the breach and July  7,        1944, the date of the Trial Court’s decree.  They,  however,        observed  that  the appellants might not have been  able  to        keep  the trucks in use for every day all over  the  period,        that  there  might be days when the trucks would be  out  of        use,  that there might be days when there would not  be  any        hirers for the trucks, and that there might be days when the        trucks would lie idle for repairs and overhaul and so forth.        Even  though  all  this was  taken  into  consideration  the        learned judges thought that compensation at the rate of  Rs.        17  per  day_  per truck for a substantial  portion  of  the        period  stated above would be fair.  Having arrived  at  the        above  conclusion  the  learned  judges  observed  that  the        appellants  had no doubt paid an additional court-fee  at  a        later  stage but the fact that they had  originally  limited        their claim to Rs. 5,953 showed that they considered that  a        fair  sum  in the beginning.  The learned  judges  therefore        limited  the enhancement of the Trial Court’s decree to  Rs.        5,953 the sum which the appellant bad originally claimed  in        the  appeal.   The  Trial  Court’s  decree  was  accordingly        enhanced by Rs, 5,953 thus        787        allowing  the  appellant  a further sum  of  Rs.  5,477  for        compensation under that head and the appeal was allowed with        costs to that extent.        The  appellants  thereafter  applied for  a  certificate  of        fitness  to  appeal  under  s. 110 of  the  Code  of  Civil’        Procedure and hence this appeal.        The two main points which have been urged by the  appellants        before  us are : (i) that the ’appellants’ suit was one  for        wrongful  detention  and  the appellants  were  entitled  to        return of the two trucks or in the alternative to the  value        thereof as on the date of the decree, that the value of  the        two trucks at the date of the decree was Rs. 7,000 each  and        the  Trial  Court should have awarded to them a sum  of  Rs.        14,000  in the alternative and (ii) that in addition to  the        above  relief  the appellants were entitled to  damages  for        wrongful  detention of the trucks calculated at the rate  of        Rs. 17 per day per truck from August 1, 1942, being the date        of  the  accrual of the cause of action till July  7,  1944,        which  was the date of the decree passed by the Trial  Court        in their favour.        The  reply of the respondent was (i) that at its  worst  the        respondent  was to the knowledge of the appellant guilty  of        wrongful conversion of the said trucks from August 1,  1942,        and  that the appellants were only entitled to  damages  for        wrongful conversion which are commensurate with the price of        the trucks at the date of such wrongful conversion and  (ii)        that  even  if the appellants were entitled to  any  further        damages  since August 1, 1942, they were merely the  damages        for nonpayment of the value of the trucks by the  respondent        and  should be assessed at only 6% interest per  annum  from        the  date of such conversion till payment.   The  respondent        further  contended  that  even  on  the  basis  of  wrongful        detention  the appellant would not be entitled  to  anything        more than the price of the said trucks as at the date of the        Trial  Court’s decree plus nominal damages for the  wrongful        detention  of the trucks from August 1, 1942, till  July  7,        1944.   In so far however as the High Court had  awarded  to        the appellants the sum of Rs. 5,953 in addition to the sum        100        788        of  Rs.  6,032 already awarded by the Trial Court  in  their

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      favour,  the appellants were not entitled to  anything  more        and that therefore the appeal was liable to be dismissed.        It would be relevant to consider what is the exact scope  of        the   two  forms  of  action,  viz.,  action  for   wrongful        conversion  and  action for  wrongful  detention,  otherwise        known  as  action  in  trover  and  action  in  detinue.   A        conversion is an act of wilful interference, without  lawful        justification,  with  any chattel in a  manner  inconsistent        with the right of another, whereby that other is deprived of        the use and possession of it.  If a carrier or other  bailee        wrongfully and mistakenly delivers the chattel to the  wrong        person or refuses to deliver it to the right person, he  can        be  sued as for a conversion.  Every person is guilty  of  a        conversion,  who  without lawful  justification  deprives  a        person  of his goods by delivering them to some one else  so        as  to  change  the  possession.  (Salmond  on  Torts,  11th        Edition, pages 323, 324, 330).        The action of detinue is based upon a wrongful detention  of        the  plaintiff’s  chattel by the defendant, evidenced  by  a        refusal to deliver it upon demand and the redress claimed is        not  damages for the wrong but the return of the chattel  or        its  value.  If a bailee unlawfully or negligently loses  or        parts  with possession he cannot get rid of his  contractual        liability   to   restore  the  bailor’s  property   on   the        termination of the bailment and if he fails to do, he may be        sued  in detinue. (Clerk & Lindsell on Torts, 11th  Edition,        pages 441 and 442: paras. 720 & 721).        Detinue at the present day has two main uses.  In the  first        place, the plaintiff may desire the specific restitution  of        his chattels and not damages for their conversion.  He  will        then sue in detinue, not in trover.  In the second place, he        will  have  to sue in detinue if the defendant  sets  up  no        claim of ownership and has not been guilty of trespass;  but        the original acquisition in detinue sur bailment was lawful.        Detinue  lies  against him who once had but  has  improperly        parted with possession.  At common law the natural remedy        789        for the recovery of chattels was the action in detinue.   In        that  action  the judgment was in the alternative  that  the        plaintiff do recover the possession of the chattels or their        assessed value in case possession cannot be had together  in        any  case  with  damages for their  detention.  (Salmond  on        Torts, 11th Edition, pages 351, 352 & 353).        Judgment  for  the petitioner in trover is for  recovery  of        damages  for the conversion: Judgment for the petitioner  in        detinue  is  for delivery of the chattel or payment  of  its        value  and  damages  for  detention.  (Halsbury’s  Laws   of        England, Hailsham Edition, Vol. 33, p. 78, para. 135).        These  forms  of action are survivals of the  old  forms  of        action  in  trover and in detinue and it is  interesting  to        note  the  evolution  of the modern  causes  of  action  for        wrongful  conversion  or for detention.  Denning J.  (as  he        then was) in Beaman v. A.R.T.S. Ltd. (1) gave the  following        history of their evolution at page 92:" The modern causes of        action  for  wrongful detention or for conversion  are  very        different  from the old forms of action for detinue  or  for        trover, and must not be confused therewith.  Detinue in  its        original form was a real action founded on a bailment  which        was  extended  later  to cases against a  finder.   It  had,        however, many procedural disadvantages, and, in  particular,        the  defendant could wage his law.  On this account, it  was        superseded  in the course of time by trover, which for  over        150 years was in practice the common remedy in all cases  of        taking  away or detention of chattels or of their misuse  or        destruction.   In  1833 the defendant in  detinue  lost  his

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      right  to  wage his law.  In 1852 the old forms  of  actions        were abolished. In 1854 the plaintiff gained the right to an        order for specific delivery of the chattel detained.   Since        that  time there have developed the new causes of action  of        conversion  and wrongful detention, the names of  which  are        derived  from the old forms of action, but the substance  of        which is quite different.  I attempt no precise  definition,        but, broadly speaking, the cause of action in conversion  is        based on an        (1)  [1948] 2 All E.R. 89, 92.        790        unequivocal act of ownership by the defendant over goods  of        the plaintiff without any authority or right in that behalf.        The  act must be an unequivocal act of ownership,  i.e.,  an        act  such  as acquiring, dealing with, or disposing  of  the        goods, which is consistent only with the rights of an  owner        as distinct from the equivocal acts of one who is  entrusted        with the custody or handling or carriage of goods.  A demand        and  refusal is not, therefore, itself a conversion, but  it        may be evidence of a prior conversion.  The cause of  action        in wrongful detention is based on a wrongful withholding  of        the plaintiff’s goods.  It depends on the defendant being in        possession  of the plaintiff’s goods.  If such a  defendant,        without  any  right so to do, withholds the goods  from  the        plaintiff after the plaintiff has demanded their return,  he        is,  for  such  time  as he so  withholds  them,  guilty  of        wrongful  detention: This is the tort of which a  bailee  or        finder is guilty who is in possession of the goods and fails        to  deliver them up within a reasonable time  after  demand,        though it may also, in the case of a bailee, be a breach  of        contract.  If the bailee or finder subsequently disposes  of        the  goods,  he is guilty of conversion,  but  the  wrongful        detention  then comes to an end and is swallowed up  in  the        conversion."        Paton  on " Bailment in the Common Law " (1952 Edition)  has        the  following observations to make in regard to  these  two        forms of causes of action at page 404:        "  The  following maxim has been suggested as  a  guide  for        plaintiffs:  if the market is falling sue in conversion,  if        it is rising sue in detinue.  This is the orthodox view  and        it  shows that even to-day the distinction between  the  old        forms of action is important."        Whether   the  plaintiff  files  an  action   for   wrongful        conversion  or for wrongful detention this is essentially  a        matter  for  his election ; he can sue the  bailee  who  has        parted with wrongful possession of the goods in favour of  a        third  person  either in trover on in detinue or  where  the        goods  have been sold be may waive the tort and sue as  upon        an implied contract for money        791        had  or  received.  (Halsbury’s Laws  of  England,  Hailsham        Edition, Vol. 33, page 69, para. 115).  The defendant cannot        be  heard  to say that the plaintiff knew or ought  to  have        known  of the conversion of the goods by him  and  therefore        should pursue his remedy only in conversion.  He cannot take        advantage of his own wrong.  It was held as early as 1858 in        Reeve v. Palmer (1) by Cockburn C.J.        "  It  has  been held from a very early time  that  where  a        chattel has been bailed to a person, it does not lie in  his        mouth to set up his own wrongful act in answer to an  action        for  detinue,  though the chattel has ceased to  be  in  his        possession at the time of the demand.....................        Williams J. also observed:        "All the authorities, from the most ancient time, shew  that        it  is no answer to an action of detinue, when a  demand  is

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      made  for  the re-delivery of the chattel to  say  that  the        defendant  is unable to comply with the demand by reason  of        his  own breach of duty." The said decision was affirmed  in        appeal before the Exchequer Chamber and that may be taken to        be the settled law on this point.        Wilkinson v. Verity (2) also laid down the same principle of        election  of the remedies and the following observations  of        Willes J. at page 210 are apposite:        "  The  misconduct  of the party who acts in  fraud  of  the        bargain  in  such cases gives the other  party  thereto  the        election of suing either for the first violation or for non-        performance  at  the  day;  and  it  does  not  furnish  the        wrongdoer       with      any      answer       to       the        latter........................        On  the other hand, if the action of detinue is resorted  to        as  it  may be (Com.  Dig.  Detinue A) for  the  purpose  of        asserting  against  a person entrusted for  safe  custody  a        breach  of  his duty as bailee, by detention  after  demand,        independent  of any other act of conversion, such  as  would        make him liable in an action of trover, it should seem  that        the  owner  is entitled to sue, at election,  either  for  a        wrongful parting with the        (1) (1858) 5 C.B (N.S.) 84, 90, 91-        (2) (1871) L.R. 6 C.P. 206.        792        property (if he discovers and can prove it) or to wait until        there  is  a  breach of the bailee’s duty  in  the  ordinary        course  by refusal to deliver up on request and that in  the        latter  case, it is no answer for the bailee to say that  he        has  by_  his  own  misconduct  incapacitated  himself  from        complying with the lawful demand of the bailor.        In  that  case,  the principle that  a  man  intrusted  with        property  for  safe custody cannot better  his  position  by        wrongfully  parting  with  possession of  it,  but  must  be        answerable  as  if he retained the possession,  was  applied        both  in  this  Court and in the Exchequer  Chamber  to  the        action of detinue..................... And this is agreeable        to  the  maxim, " Qui dolo desiit possidere  pro  possidente        Damnatur."        It  may be noted that this case of Wilkinson v.  Verity  (1)        was followed by the Court of Appeal in England in  Rosenthal        v.  Alderton  &  Sons Ltd. (2 ) and by  the  High  Court  of        Australia  in  John F. Goulding Proprietary Limited  v.  The        Victorian Railways Commissioners (3).        It is clear therefore that a bailor in the event of the non-        delivery of the goods by the bailee on a demand made by  him        in that behalf is entitled at his election to sue the bailee        either for wrongful conversion of the goods or the  wrongful        detention  thereof  and  if the bailor  pursues  his  remedy        against  the bailee for wrongful detention of the  goods  it        would be no answer for the bailee to say that he was  guilty        of wrongful conversion of the goods at an earlier date which        fact of conversion of the goods the plaintiff knew or  ought        to  have  known at or about that time and is  therefore  not        liable to the plaintiff for wrongful detention thereof.   It        is  the  option  of the plaintiff to  pursue  either  remedy        against the bailee just as it suits him having regard to all        the circumstances of the case and the bailee cannot be heard        to  say anything to the contrary for the simple reason  that        he cannot take advantage of his own wrong        (1)  (1871) L.R. 6 C.P. 206.        (3)  48 C.L.R. 157, 167.        (2) [1946] 1 K.B. 374.        793        and cannot ask the plaintiff to choose a remedy which may be

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      less beneficial to him.        This  is of course the normal rule, though the  courts  have        tried  to soften its rigour by importing  the  consideration        that the plaintiff should not be allowed to delay his action        in  order  to  get  the advantage of  a  rising  market.   A        speculative element might enter into the matter and a shrewd        plaintiff  might  attempt  to take  unfair  advantage  of  a        fluctuating  market.   " Just as plaintiff may not  waive  a        conversion  so as to pick his own time to demand return  and        thus evade being statute barred, so he may not bide his time        after a conversion so as to make his demand when the  market        price is highest." (Kialfray (12) Modern Law Review at  page        427).        In  the  present case, however, we are not fettered  by  any        such  consideration.  The respondent was the bailee  of  the        two  trucks  and  was  bound  to  return  the  same  to  the        appellants on the termination of the bailment.  The bailment        came  to  an  end  on August 1,  1942,  and  the  appellants        attended  the  office  of the Officer  Commanding  4  M.T.T.        Centre,  Kamptee on the said date for having the trucks  re-        delivered  to  them.   When  the said  trucks  were  not  so        delivered  the  appellants immediately on August  14,  1948,        gave  the statutory notice to the respondent under s. 80  of        the Code of Civil Procedure.  The period of the said  notice        expired  on  or about October 14, 1942, and  the  appellants        filed  their  action for wrongful detention  on  January  8,        1943.   There  was no delay on the part  of  the  appellants        which  would spell out any intention on their part  to  take        advantage  of the rising market or to waive their remedy  in        wrongful  conversion  with a view to take advantage  of  the        statute  of limitation.  There is no evidence to  show  that        the  market value of the trucks had appreciated  perceptibly        between  August  1,  1942, and January 8, 1943,  and  it  is        significant to note that the only claim which the appellants        had  made  in  their notice dated August 4,  1942,  was  for        specific  delivery  of the said trucks  by  the  respondent.        Even  though  the appellants knew that the said  trucks  had        been redelivered by the respondent to Surjan Singh and they        794        could have, if they had been so minded, sued the  respondent        for wrongful conversion of the said trucks, they elected  to        have the said trucks re-delivered to them and asked for  the        specific  delivery  thereof  and  filed  their  action   for        wrongful  detention of the said trucks.  They were,  in  our        opinion, perfectly entitled to do so and we have to consider        the further questions that arise before us on the basis that        the   action  for  wrongful  detention  had   been   rightly        instituted by the appellants against the respondent.        This  leads  us  to  the question  as  to  what  relief  the        appellants  are entitled to obtain against  the  respondent.        The claim for the rent already due by the respondent to  the        appellants  up  to August 1, 1942, has been settled  by  the        judgments of the courts below and we are not called upon  to        canvass  these  findings  of fact  any  further.   The  more        important  questions that require to be dealt with are:  (1)        What  is  the amount which the appellants  are  entitled  to        recover  from the respondent as and by way of the  value  of        the  two  trucks  in the  alternative-the  respondent  being        admittedly  not in a position to re-deliver the said  trucks        to  them and (2) what are the damages which  the  appellants        are  entitled to recover by reason of wrongful detention  of        the trucks till the date of judgment.        As regards the first question the Trial Court  unfortunately        did  not properly appreciate the evidence which was  led  by        the  appellants  before it.  That evidence was given  on  or

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      about  February  1,  1944,  more  than  a  year  after   the        institution  of  the suit and about five months  before  the        date  of the decree.  The evidence such as it stood  was  to        the   effect   that  the  prices  of  similar   trucks   had        considerably  appreciated after August 1, 1942, and  broadly        stated were at least twice those which obtained on or  about        that date.  The claim of the appellants as laid was no doubt        exaggerated  and on the evidence the Trial Court  would  not        have  been justified in awarding to the appellants  anything        like the sum of Rs. 7,000 per truck which had been  claimed.        The  evidence  however was sufficient to  enable  the  Trial        Court  to come to the conclusion that the price of the  said        two  trucks  which had been fixed at Rs. 3,500 both  in  the        notice under a. 80 of the Civil        795        Procedure  Code as well as in the plaint had appreciated  at        least  by  100%  and  if the Trial Court  had  come  to  the        conclusion that the appellants were entitled to the value of        the  trucks  as  at  the (late  of  the  judgment  it  would        certainly have been justified in awarding to the  appellants        an aggregate sum of Rs. 7,000 in the alternative.  The Trial        Court however understood the position in law to be that  for        either detention or conversion the value on the date of  the        tort   was  sufficient  compensation  and  awarded  to   the        appellants  only  a  sum of Rs. 3,500 which  was  the  value        thereof on August 1, 1942, together with interest at 6%  per        annum  as  and  by  way of damages.   The  Trial  Court  was        obviously  wrong  in awarding this sum and interest  to  the        plaintiff for the reasons which we shall presently discuss.        When the matter went to the High Court the learned judges of        the  High Court did not discuss this aspect of the  question        at  all but dismissed the claim of the appellants merely  on        the ground that the appellants had only claimed Rs. 3,500 in        the notice which they had served on the respondent under  s.        80  of  the  Code  of Civil Procedure  and  that  they  were        therefore not entitled to recover anything more than the sum        of  Rs. 3,500 and they accordingly upheld the decree of  the        Trial Court in this behalf        We are constrained to observe that the approach of the  High        Court  to  this question was not well  founded.   The  Privy        Council  no  doubt  laid  down  in  Bhagchand  Dagadusa   v.        Secretary of State (1) that the terms of this section should        be strictly complied with.  That does not however mean  that        the terms of the notice should be scrutinized in a  pedantic        manner or in a manner completely divorced from common sense.        As was stated by Pollock C. B. in Jones v. Nicholls (2)  "We        must  import  a  little common sense into  notices  of  this        kind." Beaumont C. J. also observed in Chandu Lal Vadilal v.        Government of Bombay (3): "One must construe section 80 with        some regard to common sense        (1)  (1927) L.R. 54 I.A. 338.        (2)  (1844) 13 M. & W. 361, 363; 153 E.R. 149, 150.        (3)  I.L.R. [1943] Bom. 128.        101        796        and  to  the  object  with which it  appears  to  have  been        passed........... If the terms of the notice in question  be        scrutinized  in this manner it is abundantly clear that  the        relief claimed by the appellant was the a re-delivery of the        said  two trucks or in the alternative payment of Rs.  3,500        being the value thereof.  The value which was placed by  the        appellants  on  the trucks was the then value  according  to        them-a  value  as on August 1, 1942, the date on  which  the        delivery  of  the  trucks ought to have been  given  by  the        respondent  to  the appellants.  The appellants  could  only

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      have demanded that sum as on the date of that notice.   They        could  not sensibly enough have demanded any other sum.   If        the  respondent had complied with the terms of  that  notice        then and there and re-delivered the trucks to the appellant,        nothing  further  needed to be done.  If on the  other  hand        instead of re-delivering the trucks it paid to the appellant        the  value thereof then also it need not have paid  anything        more  than Rs. 3,500 to the appellant, on that  alternative.        If,  however, the respondent failed and neglected to  comply        with   the  requisitions  contained  in  that   notice   the        appellants  would certainly be entitled to recover from  the        respondent  the value of the said trucks in the  alternative        on  the failure of the respondent to re-deliver the same  to        the  appellants in accordance with the terms of  the  decree        ultimately  passed by the Court in their favour.  That  date        could certainly not be foreseen by the appellants and it  is        contrary  to  all  reason and common  sense  to  expect  the        appellants to have made a claim for the alternative value of        the said two trucks as of that date.  The respondent was and        ought  to have been well aware of the situation as it  would        develop as a result of its non-compliance with the terms  of        that notice and if on January 8, 1943, the appellants in the        suit  which  they filed for wrongful detention of  the  said        trucks  claimed  re-delivery of the said trucks  or  in  the        alternative  Rs.  3,500 as their value  and  reserved  their        right to claim the further appreciation in the value of  the        trucks  by  reason of the rise in prices thereof up  to  the        date of the decree by paying        797        additional court-fee in that behalf, it could not be laid at        their  door  that they had not made the specific  demand  in        their  notice to the respondent under s. 80 of the  Code  of        Civil  Procedure and that therefore their claim  to  recover        anything beyond Rs. 3,500 was barred under that section.   A        common  sense reading of the notice under s. 80  would  lead        any Court to the conclusion that the strict requirements  of        that  section had been complied with and that there  was  no        defect in the same such as to disentitle the appellants from        recovering from the respondent the appreciated value of  the        said  two  trucks  as at the date of the  judgment.   It  is        relevant  to note that neither was this point taken  by  the        respondent in the written statement which it filed in answer        to  the appellants’ claim nor was any issue framed  in  that        behalf by the Trial Court and this may justify the inference        that  the objection under s. 80 bad been waived.  The  point        appears  to  have been taken for the first time  before  the        High  Court which negatived the claim of the appellants  for        the appreciated value of the said trucks.        Turning  then  to the question whether the  appellants  were        entitled to the value of the said trucks in the  alternative        as  at the date of the judgment or at the date of the  tort,        whether it be conversion or wrongful detention, the position        appears to be a little confused.  Recent cases indicate that        there is much conflict concerning the true rule to apply  as        to the measure of damages in detinue and conversion.  As  to        the  time  at  which the value of the goods  which  are  the        subject-matter  of  the tort should be assessed  it  is  not        certain  (a)  whether the rule is the same in trover  as  in        detinue;  (b)  whether damages should be calculated  at  the        moment  of  the  wrong,  or  of  the  verdict  or  at   some        intermediate period and (c) whether the doctrine of  special        damage  can  be  so  used as to  compensate  the  owner  for        fluctuations  in value. (Paton on " Bailment in  the  Common        Law", page 404).        Up  to 1946 the trend of the authorities in England  was  to

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      assess  the  value of the goods at the date  of  the  breach        where  the action was for breach of contract and as  at  the        date of the tort where the action was for        798        wrongful  conversion or for wrongful detention.  There   was        an old authority of Mercer v. Jones (1) which laid down that        the  damages  should  be  the  value  at  the  time  of  the        conversion.    This  authority  was   relied  upon  by   the        Attorney-General  in  Greening v. Wilkinson (2)  but  Abbott        C.J. observed that case was hardly law, and that the  amount        of damages was for the jury, who might give the value at the        time  of the conversion, or at any subsequent time in  their        discretion,  because  the plaintiff might have  had  a  good        opportunity  of  selling  the goods if  they  had  not  been        detained.   He expressed the opinion that the jury were  not        at all limited in giving their verdict by what was the price        of the article on the day of the conversion.  This case  was        considered  and not applied in Johnson v. Hook (3)  and  the        position  which  obtained was that the damages  were  to  be        assessed  on  the value of the property at the date  of  the        conversion.        Bodley v. Reynolds (4) was an action in trover for goods and        chattels  comprising of carpenters tools.   Special  damages        were also claimed and proved and the Court awarded not  only        the  value of the goods at the date of conversion  but  also        special damages as laid in the declaration.  Lord Denman  C.        J.  observed that where special damage was laid and  proved,        there  could be no reason for measuring the damages  by  the        value of the chattel converted.  In effect this confirms the        position that apart from this circumstance the damages would        be  measured  by the value of the  chattel  converted  which        value was taken as at the date of conversion.        Reid v. Fairbanks (5) was also an action in trover.  It  was        held  that  the proper principle on which to  estimate  such        damages, would be, the value of the ship and all her  store,        etc.,  on the date when the third party took  possession  of        her;  and that, as a, mode of ascertaining such  value,  the        referee  should consider what would have been the  value  of        the ship,        (1)  (1813) 3 Camp. 477; 170 E.R. 1452.        (2)  (1825) 1. Car& P. 625 ; 17, E. R. 1344.        (3)  (1883) 31 W.B. 812.        (4)  (1846) 8 Q.B. 779; 115 E.R. 1066.        (5)  (1853) 13 C.B. 692 ; 138 E.R. 1371.        799        if she had been completed by the defendant according to  his        contract  with the plaintiff and deduct therefrom the  money        that  would necessarily have been laid out by the  defendant        after  that date, in order to complete her according to  the        contract.   The value of the ship was thus calculated as  at        the  date  of  the  conversion even  though  the  method  of        computation was prescribed by the circumstances of the case.        In S. S. Celia v. S. S. Volturno (1) the House of Lords  had        to  consider  the  question  whether  the  proper  date  for        ascertaining  the  rate  of  exchange  for  the  purpose  of        converting the amount payable into English currency was  the        date  on which the detention occurred or the date  on  which        the damages were assessed or payment made.  Lord  Buckmaster        at page 548 said:        "  A judgment, whether for breach of contract or  for  tort,        where,  as in this case, the damage is not continuing,  does        not  proceed by determining what is the sum  which,  without        regarding  other  circumstances, would at the  time  of  the        hearing  afford compensation for the loss, but what was  the        loss  actually  proved to have been incurred either  at  the

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      time  of  the breach or in consequence of the  wrong.   With        regard  to an ordinary claim for breach of contract this  is        plain.  Assuming that the breach complained of was the  non-        delivery  of  goods according to contract,  the  measure  of        damage  is  the  loss sustained at the time  of  the  breach        measured  by the difference between the contract  price  and        the market price of the goods at that date.        Similar  considerations  apply to an action  for  tort.   In        cases  where,  as in the present, the damage  is  fixed  and        definite,  and due to conditions determined at a  particular        date,  the amount of damage is assessed by reference to  the        then existing circumstances and subsequent changes would not        affect  the  result.   If these damages  be  assessed  in  a        foreign currency the judgment here, which must be  expressed        in sterling, must be based on the amount required to convert        this        (1)  [1921] 2 A.G. (H.L.) 544, 548.        800        currency  into  sterling at the date when  the  measure  was        properly  made, and the subsequent fluctuation of  exchange,        one way or the other, ought not to be taken into account."        Lord Sumner expressed himself in these terms at page 555:        " The matter may be tested in this way.  Suppose that, as an        incident  of  the collision, some seaman  belonging  to  the        Celia  had  taken possession on behalf of her  owners  of  a        parcel of Italian currency notes, the property of the owners        of  the Volturno, and that the former had received and  kept        it.   The owners of the Volturno could have claimed  damages        for conversion of the notes or their return with damages for        their detention, as they chose.  In the first case the value        of  the notes would be taken and exchanged into sterling  as        at the date of the conversion, and as the foundation of  the        damages  in  the second case the same date would  have  been        taken."        The  following passage from Lord Wrenbury’s speech  at  page        563 clearly sets out the position in law:        "  The  argument to the contrary is that  the  defendant  is        bound  by  a  pecuniary payment to put the  plaintiff  in  a        position  as good as that in which he stood before the  tort        was committed.  That is true, but it is necessary to add the        consideration  of which we have recently heard so  much,  in        the  form of a fourth dimension-namely, that of  time.   The        defendant  is bound to make such pecuniary payment as  would        put  the  plaintiff  at the date of the tort in  as  good  a        position  as he would have been in had there been  no  tort.        If  the date taken be that not of the tort but of the  judg-        ment,  it is giving the plaintiff not damages for the  tort,        but  damages  also for the postponement of  the  payment  of        those damages until the date of the judgment.  If such later        damages can be recovered as under circumstances they may  be        if the defendant improperly postpones payment, they would be        recovered  in the form of interest.  They would  be  damages        not for the original tort, but for another and a  subsequent        wrongful act."        801        In the Arpad (1) where the plaintiff laid alternative claims        in  contract and tort it was held that the true  measure  of        damages  was the value of the goods at the date of the  non-        delivery,   disregarding  circumstances  peculiar   to   the        plaintiffs  and  that on the alternative claim in  tort  for        damages for conversion also, the measure of damages was  the        same.  Scrutton L.J. observed in the course of his  judgment        at page 205 :        "  In  my opinion the damages in conversion  should  be  the        value  to  the purchaser or goods owner at the time  of  the

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      conversion."        The  last  case  in  this  series  is  that  of  the  Caxton        Publishing  Co.  v.  Sutherland Publishing  Co.  (2).   Lord        Porter  in his speech at page 201 defines conversion in  the        terms following:        "  As to (3) conversion was defined by Atkin J. as he  ’then        was, in Lancashire and Yorkshire Rly.  Co. v. MacNicoll  (88        L.J. (K.B.) 601, 605).  "Dealing", he said’ "with goods in a        manner inconsistent with the right of the true owner amounts        to  a conversion, provided that it is also established  that        there  is also an intention on the part of the defendant  in        so  doing  to deny the owner’s right or to  assert  a  right        which is inconsistent with the owner’s right."        This  definition was approved by Scrutton L.J. in Oakley  v.        Lyster [1931] 1 K.B. 148, 153.        " Atkin J. goes on to point out that, where the act done  is        necessarily a denial of the owner’s right or an assertion of        a  right inconsistent therewith, intention does not  matter.        Another way of reaching the same conclusion would be to  say        that  conversion  Consists  in  an  act  intentionally  done        inconsistent with the owner’s right, though the doer may not        know of or intend to challenge the property or possession of        the true owner."        After   thus  defining  conversion  the  learned  law   Lord        proceeded  to Consider the measure of damages suffered  from        that act and he observed at page 203:        " As to (4) there is no dispute as to the principle on which        in general the measure of damages of        (1) [1934] P. 189                            (2) [1939] A.C. 178.        802        conversion  is  calculated.  It is the value  of  the  thing        converted at the date of the conversion, and this  principle        was accepted by both sides in the present case."        While thus enunciating the principle on which the measure of        damages  for  conversion is to be calculated the  noble  law        Lord referred to the statement of Abbott C.  J. in  Greening        v. Wilkinson (supra) and stated:        " I should wish to leave open for consideration in a case in        which it directly arises the question whether the  statement        of Abbott C. J. in Greening v. Wilkinson that the jury " may        give  the  value  at the time of the conversion  or  at  any        subsequent time " can be supported or not."        The  catena of authorities quoted above shows that  but  for        the  reservation made by Lord Porter in the  last  mentioned        case in regard to the statement of Abbott C. J. in  Greening        v.  Wilkinson (supra) the consensus of opinion was that  the        damages  for tort were to be measured as at the date of  the        tort,  though it may be noted that most of these cases  were        concerned with wrongful conversion of the goods and not with        the wrongful detention thereof.        In 1946 the Court of Appeal in England laid down in the case        of Rosenthal v. Alderton & Sons Ltd. (supra) that in detinue        the value of the goods should be measured as at the date  of        the judgment or verdict, and not at the date of the  refusal        to  return the goods.  The action there was one of  detinue.        The plaintiff who was a tenant of the defendants surrendered        his  tenancy  in June, 1940, and, by  arrangement  with  the        defendants  left on the premises certain goods belonging  to        him.   In 1943, after his return from a period  of  military        service,  the plaintiff found that the goods  were  missing,        some of them having been sold by the defendants.  On October        6,  1943, the plaintiff through his solicitors demanded  the        return  of  the  goods and, on the  defendants’  refusal  to        comply,  brought an action against them claiming the  return

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      of the goods and, in the alternative, the payment to him  of        their  value and damages for their detention.  It  was  con-        tended on behalf of the defendants that a demand by        803        the  plaintiff  for  the return of  the  goods  having  been        refused by the defendants several months before the issue of        the writ; the proper assessment of the value of such of  the        goods as had not been returned by the defendants should have        in accordance with their value on the date when the cause of        action  arose,  which was (as it was  claimed),  notoriously        less  than their value as assessed by the  official  referee        after action was brought.  This contention of the defendants        was  negatived  and  the Court held that  in  an  action  of        detinue, the value of the goods to be paid by the defendants        to the plaintiff in the event of the defendants’ failing  to        return the goods to the plaintiff must be assessed as at the        date  of  the verdict or judgment in his favour and  not  at        that  of  the  defendants’  refusal  to  return  the  goods.        Evershed  J. who delivered the judgment of the  Court  dealt        with this contention at page 378 as under:        "In  our  judgment an assessment of the value of  the  goods        detained (and not subsequently returned) at the date of  the        accrual of the cause of action (i.e., of the refusal of  the        plaintiff’s  demand) must presuppose that on that  date  the        plaintiff  abandoned his property in the goods: and  such  a        premise is inconsistent with the pursuit by the plaintiff of        his action of detinue.  The significance of the date of  the        refusal  of the plaintiff’s demand is that  the  defendant’s        failure  to  return the goods after that  date  becomes  and        continues to be, wrongful.    Moreover,  the  plaintiff  may        recover damages in  respect  of  the  wrongful   ’detention’        after that date,    e.g.,  where the plaintiff has  suffered        loss  from a fall in value of the goods between the date  of        the defendant’s refusal and the date of actual return,  (See        William  v. Archer (1847) 5 C.B. 318) and such damages  must        equally continue to run until the return of the goods or (in        default  of return) until payment of their value.  There  is        (as  appears from the forms of judgment mentioned)  a  clear        distinction  between  the  value of  the  goods  claimed  in        default  of  their return and damages for  their  detention,        whether  returned  or not.  The date of the refusal  of  the        plaintiff’s  demand  is  the  date  from  which  the  latter        commence to run,        102        804        but  appears  to  be irrelevant to  the  former  and  cannot        convert a claim for the return of the goods into a claim for        payment of their value on that date."        A  further contention was urged on behalf of the  defendants        in  that case that the value of certain of the  goods  which        they had in fact sold could not in any event be assessed  at        any  higher  value  than  at the date  of  the  sale.   This        contention was negatived by the Court in the terms following        at page 379:        "In  other words they say "We have proved that we  converted        some of your goods and therefore, we can have the benefit of        any  lower value prevailing at the date of the  conversion".        It  is,  however, clear that it is no answer for  a  bailee,        when  sued  in  detinue,  to say that  he  has  by  his  own        misconduct  incapacitated  himself from complying  with  the        lawful  demand  of  the  bailor-of.   Wilkinson  v.   Verity        (supra).  It seems to us that the defendants are, in effect,        saying  "Your real remedy is in conversion," but the  bailor        can,  in such circumstances elect to sue in detinue (at  any        rate where he was not aware of the conversion at the  time),

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      and  there is no reason why the value of the goods  in  fact        converted  should be assessed on a different basis from  the        value  of the goods which the bailee has not  converted  but        which for some other reason be fails to re-deliver."        These observations are the basis of the headnote which  says        that  the same principle applies whether the  defendant  has        converted the goods by selling them or has refused to return        them for some other reason.        This  decision of the Court of Appeal lays down  that  where        the defendant has been guilty of wrongful conversion of  the        goods  or the wrongful detention thereof, the  plaintiff  is        entitled to damages for such tort committed by the defendant        measured  at the value of the goods which are  the  subject-        matter of the tort computed as at the date of the verdict or        judgment  and not at the date of the tort.  If this  is  the        true  position  it would run counter to the rule  which  had        been  settled  all  along up to 1946  that  the  measure  of        damages  in  an action for tort would be the  value  of  the        goods at the date of the tort.  As a matter                                    805        of  fact  Denning  J. (as he then  was)  commented  on  this        position in Beaman v. A. R. T. S. Ltd. (supra) at page 93:        "A  recent  decision of the Court of Appeal holds  that  the        damages in such cases are to be assessed at the date of  the        judgment  or  verdict  in  the  plaintiff’s  favour  :   See        Rosenthal  v. Alderton & Sons Ltd. (supra) ; but  that  does        not mean that the cause of action accrues at that time.  The        observations of Lord Goddard C. J. in Sachs v. Miklos (1948)        (I  All E. R. 67) considerably limit the scope of  Rosenthal        v.  Alderton, and, should prices hereafter fall, the  courts        will  probably  be  faced  with  the  task  of   reconciling        Rosenthal  v. Alderton with the settled rule  that  damages,        whether  in contract or tort, are to be assessed as  at  the        date  of  the  accrual  of the  cause  of  action  and  that        subsequent  fluctuations  upwards or downwards in  rates  of        exchange  or  commodity  prices,  before  or  during   legal        proceedings,  are irrelevant: See the decision of the  House        of  Lords  in  S.  S.  Celia  v.  S.  S.  Volturno   (supra)        particularly the speeches of Lord Buckmaster ([1921] 2 A. C.        544,  548), of Lord Sumner (ibid., 556), and  Lord  Wrenbury        (ibid.,  563), and the long line of cases of buyers who  sue        sellers for conversion of, or for failure to deliver,  goods        bargained  and sold (such as France v. Gaudet (1871) L.R.  6        Q.B.  199) where the damages are always assessed as  at  the        date of the breach."        The  qualification  added  by the Court  of  Appeal  on  the        bailor’s  right  to elect to sue in detinue,  "at  any  rate        where he was not aware of the conversion at the time",.  has        also  been  commented  upon by Paton on "  Bailment  in  the        Common Law " at page 405, that on a strict historical basis,        this qualification is unnecessary, but the Courts have added        it  to prevent a plaintiff delaying his action in  order  to        get the advantage of a rising market.        In  Sachs  v. Miklos (1) the Court of Appeal  discussed  the        measure  of  damages in a case that raised  the  point  very        neatly.   In  1940 a bailor agreed with a  bailee  that  the        latter should gratuitously store his furniture        (1)  [1948] 2 K .B. 23.        806        in her house.  In 1944, the bailee wished to get rid of  the        furniture and, after fruitless attempts to get in touch with        the  bailor, sold it.  The furniture realised pound 13 at  a        public  auction.   In 1947 the bailor sued for  detinue  and        conversion,  and the current value of the furniture was  now        assessed at pound 115.  Lord Goddard C. J. (with whom Tucker

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      L. J. and Jenkins J. concurred) stated "that the measure  of        damages  is the same in conversion as in detinue, where  the        facts  are  only  that  a defendant has  the  goods  in  his        possession  and could hand them over, and would not  do  so"        and  as a result the damages fall to be assessed as  at  the        date  of  the verdict or judgment.   These  observations  of        Goddard C. J. were understood by Denning J. in Beaman v.  A.        R. T. S. Ltd. (supra) as considerably limiting the scope  of        Rosenthal  v. Alderton (supra).  The following  comment  oil        the case by Winfield on Tort, 6th Edition at page 442 may be        noted with interest:        "It  seems, however, that Rosenthal’s case simply laid  down        that where the plaintiff sues in detinue the  same-principle        of  assessment  of  damages applies  whether  the  defendant        refuses to return the goods because he has converted them or        for  some  other  reason fails to return  the  goods.   This        hardly  warrants the conclusion that the measure of  damages        is  the same in detinue as in conversion.  As we  have  seen        the two actions are distinct in their nature and purpose."        Paton on " Bailment in the Common Law " at page 405 has  the        following comment to make, on this position :        "  The Court reached a conclusion that was based  on  common        sense  and  a desire to do justice to both parties,  but  in        certain  respects breaks new ground.  The  crucial  question        was:  What  was the plaintiff’s loss ? What  damage  did  he        suffer  by the wrongful act of defendant ? If the  plaintiff        knew  or  ought  to have known in 1944  of  the  defendant’s        intention to sell, the damages would be justly calculated at        pound 13.  If he did riot know, or ought not to have  known,        till 1946 that his goods were sold, then the damages  should        be        807        assessed at pound 115.  The case was remitted to the  County        Court  judge  in  order  that the  facts  might  be  further        elucidated.   The Court also emphasised one further  factor.        It was clear that the plaintiff knew of the sale in January,        1946,  but he did not begin the action till  January,  1947.        If  the  County Court judge found that there  was  an  undue        delay in bringing the action and that there had been a  rise        in price between 1946 and 1947, then allowance must be made.        This  point  disposes of the criticism  that  a  speculative        element  enters into the matter and that a shrewd  plaintiff        might  attempt  to take unfair advantage  of  a  fluctuating        market."        Paton  further states that this is an interesting  decision,        but  a  short  survey of the cases shows  that  the  earlier        authorities, especially with regard to conversion, are by no        means  clear.  (See also Salmond on Torts, 11th  Edition  at        page 347).        The difficulty, however, arises when there is an increase in        the  value of the goods which are the subjectmatter  of  the        tort  between  the  date of the tort and  the  date  of  the        verdict   or  judgment  and  there  is  authority  for   the        proposition  that any increment in value due to the  act  of        the defendant is not recoverable by the plaintiff.   Salmond        thus summarises the position in his treatise on Torts,  11th        Edition at page 348 :        "  If,  on the other hand, where the property  increases  in        value after the date of the conversion, a distinction has to        be  drawn.   If  the  increase is due  to  the  act  of  the        defendant, the plaintiff has not title to it, and his  claim        is  limited to the original value of the chattel.  Thus,  in        Munro v. Willmoti ([1949] 1 K. B. 295) the plaintiff in 1941        deposited  a  car  in the defendant’s yard.   In  1945,  the        defendant, after endeavouring without success to communicate

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      with  the plaintiff, sold the car, having spent pound 85  on        repairs necessary to put it into a saleable state.   Lynskey        J. assessed the value of the car at the date of the judgment        as  pound 120, but hold " that the defendant is entitled  to        credit,  not from the point of view of payment for  what  he        has  done, but in order to arrive at the true value  of  the        property which the plaintiff has lost": if        808        the  repairs had not been done the car could only have  been        sold for scrap".        It may be noted that Lynslkey J. approved of this  statement        of the law as enunciated in Salmond.        Paton, however, in his " Bailment in the Common Law " points        out  at  p.  412 that there is a tendency  to  consider  the        merits of each case in order to reach a reasonable  solution        ;  although  the theoretical rule is that the  defendant  is        entitled to credit, not as payment for what he has done, but        rather  to  arrive  at  the  true  value  of  the   property        converted.   He further points out that American cases  also        emphasise the state of mind of the tortfeasor.  An  innocent        converter   is   allowed  to  deduct  the   value   of   his        improvements,  but one who knowingly commits conversion  may        be  forced to pay damages for the, value of the res  in  its        improved state.  This is justified on the ground that it  is        fair to award punitive damages where the wrong was wilful.        Where, however, the increase in value is not due to the  act        of  the defendant the plaintiff is also entitled to  recover        the  extra  value  as  special  damage  resulting  from  the        conversion in addition to the original value of the property        converted.   The  following passage from Paton at  page  409        further elucidates this position:        " The plaintiff can always recover, in addition to the value        of  the property, any special damage which the law does  not        regard  as  too  remote.  Thus if a  carpenter’s  tools  are        converted, it has been held that he may recover their  value        and also special damages for the loss of employment.  France        v. Gaudet (supra) explained this decision on the ground that        the  defendant  had some notice of  the  existing  contract.        Such special damage must be pleaded.        If this rule is applied to fluctuations in value, the result        is as follows:        (a)  If  the value increases and is highest at the  date  of        verdict,  the result is the same as taking the test  of  the        value at the time of verdict, for the plaintiff obtains  the        value  at  the  time  of conversion,  and  in  addition  the        increase in value as special damages.        (b)  If  the value decreases, then the plaintiff  can  still        secure the value at the time of conversion: he can        809        claim  no special damage and the defendant has no  claim  to        reduce the damages.        It  is  doubtful, however, whether the rule  as  to  special        damage should be applied to the question of fluctuations  of        value.   There  is some authority for it, but it  cannot  be        regarded as established.  If it is accepted, the argument as        to  the date of the moment of calculating damage loses  much        of its practical importance.        A commentator in the Harvard Law Review ((1947) 61 Harv.  L.        R. 158) states that in measuring damages for conversion  the        courts  started  with the "traditional but  over  simplified        value  at the time and place of the wrong".  But  where  the        goods  are  of  such a nature that  their  value  fluctuates        greatly  the courts have been prepared to depart  from  this        rule.   Thus  in  New York, where stock  is  concerned,  the        courts allow the owner to recover the highest value to which

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      the  stock  rose a reasonable time after he  learnt  of  the        conversion,  the  emphasis on the reasonable time  being  to        prevent speculation by delaying unduly the initiation of the        action.  California allows the highest value reached between        the date of the conversion and the time of trial.  In  Texas        the highest intermediate value is allowed in cases of wilful        wrong or gross negligence, but only the value at the date of        the conversion as against a blameless defendant." (See  also        Restatement of the Law, Volume on Torts, pages 650, 653  and        927).        And further at page 410:        "  The decisions illustrate the way in which the  merits  of        the  defendant’s  case have been allowed  to  determine  the        technical question of the method of calculating damages.  In        England,  these  considerations have not been  discussed  so        openly,  but  their influence on decisions is  seen  in  the        judgments in Sachs v. Miklos (supra), where the question  of        reasonable speed in bringing the action was discussed and in        Lord  Atkin’s speech in Solloway v. McLaughlin ([1938]  A.C.        247)  where  he finds delight in using a technical  rule  to        award damages against the unjust steward."        It follows from the above that the position in law in regard        to the measure of damages in an action for        810        wrongful conversion is far from clear and the law in  regard        to  the  same cannot be said to be perfectly  well  settled.        Whatever  be the position in regard to the same  in  actions        for  wrongful conversion, one thing is quite clear  that  in        actions  for wrongful detention the measure of  damages  can        only be the value of the goods as at the date of the verdict        or judgment.  The tort is complete the moment the goods  are        wrongfully  converted by the defendant and no  question  can        arise in those cases of any continuing wrong.  In a case  of        wrongful  detention,  however,  the  cause  of  action   may        certainly  arise  the  moment  there is  a  refusal  by  the        defendant  to  re-deliver the goods on demand  made  by  the        plaintiff  in  that behalf.  But even though  the  cause  of        action thus arises on a refusal to re-deliver the said goods        to  the plaintiff the wrongful detention of the goods  is  a        continuing wrong and the wrongful detention continues  right        up  to  the time when the defendant  re-delivers  the  goods        either  of his own volition or under compulsion of a  decree        of  the Court.  There is moreover this  distinction  between        actions  for  wrongful  conversion and  those  for  wrongful        detention  that  in the former the  plaintiff  abandons  his        title to the goods and claims damages from the defendant  on        the  basis that the goods have been wrongfully converted  by        the defendant either to his own use or have been  wrongfully        dealt  with  by  him.   In the  latter  case,  however,  the        plaintiff  asserts his title to the goods all the  time  and        sues  the defendant for specific delivery of the chattel  or        for re-delivery of the goods bailed to him on the basis that        he  has  a  title in those goods.  The  claim  for  the  re-        delivery  of the goods by the defendant to him is  based  on        his  title  in  those goods not only at the  time  when  the        action is filed but right up to the period when the same are        re-delivered   by  the  defendant  to  him.   The   wrongful        detention  thus  being a tort which continues all  the  time        until  the re-delivery of the goods by the defendant to  the        plaintiff, the only verdict or judgment which the Court  can        give in actions for wrongful detention is that the defendant        do  deliver  to  the plaintiff  the  goods  thus  wrongfully        detained by him or pay in the alternative the value        811        thereof which can only be ascertained as on the date of  the

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      verdict or judgment in favour of the plaintiff.        Winfield  thus  enunciates the position in his  treatise  on        Tort, 6th Edition at page 414:        "  The  significance  of  the date of  the  refusal  of  the        plaintiff’s demand is that the defendant’s failure to return        the  goods  after that date becomes, and  continues  to  be,        wrongful,   and   damages  are  recoverable   for   wrongful        "detention" after that date until the goods are returned  or        payment of their value.  The date of the defendant’s refusal        cannot  convert a claim for the return of the goods  into  a        claim for payment of their value at that date."        It  is,  therefore,  clear  that  in  actions  for  wrongful        detention  the  plaintiff  is entitled  on  default  of  the        defendant  in re-delivering the goods to him, to payment  in        the  alternative of the value of the goods  thus  wrongfully        detained as at the date of the verdict or judgment, in other        words,  at  the date of the decree.  We are,  therefore,  of        opinion  that the appellants were entitled to  recover  from        the  respondent the value of the said trucks which,  as  has        been  already stated, was Rs. 7,000 in the  alternative,  on        default  committed by the respondent in re-delivery  of  the        same to the appellants.        The  next  question  to consider is  what  damages  are  the        appellants entitled to recover from the respondent by reason        of the wrongful detention of the said trucks from August  1,        1942, up to the date of the decree.  It is well settled that        in  an  action  for  wrongful  detention  the  plaintiff  is        entitled  besides the re-delivery of the chattel or  payment        of  its value in the alternative, also to damages  for  such        wrongful detention.  There is however no definite  criterion        laid  down  by the decided cases as to what the  measure  of        such damages should be.  As was observed by Denning L. J. in        Strand Electric & Engineering Co., Ltd. (1):        "  The question in this case is: What is the proper  measure        of  damages  for the wrongful detention of goods?   Does  it        fall  within  the  general  rule  that  the  plaintiff  only        recovers for the loss he has suffered or        (1)  (1952) 2 Q.B. 246, 253. 103        812        within some other, and if so what, rule?  It is strange that        there  is no authority upon this point in English ’law:  but        there is plenty on the analogous case of detention of  land.        The rule there is that a wrongdoer, Who keeps the owner  out        of  his  land,  must pay a fair rental value  for  it,  even        though the owner would not have been able to use it  himself        or  to let it to anyone else.  So also a wrongdoer who  uses        land  for his own purpose without the owner’s  consent,  as,        for  instance, for a fair ground, or as a,  way-leave,  must        pay  a  reasonable hire for it, even though he has  done  no        damage  to the land at all: Whitwham v.  Westminster  Brymbo        Coal  Company ([1896] 2 Ch. 538).  I see no reason  why  the        same principle should not apply to detention of goods."        In that case certain portable switchboards were lent by  the        plaintiff  to  a Theatre Co., pending  the  manufacture  and        installation  by the plaintiffs of  permanent  switchboards.        The hiring out of portable switchboards was a normal part of        the  plaintiff’s  business  and it was  agreed  between  the        plaintiff and the Theatre Co., on a subsequent date that the        company should pay to the plaintiff the hiring charges at  a        certain  rate  per  week.   Later  on  the  defendant   took        possession of the theatre and gave instructions that nothing        whatsoever must be removed, and the Theatre Co.,  disclaimed        any  responsibility  for the plaintiffs’ hire  equipment  as        from that date.  The plaintiffs thereafter wrote a number of        letters  to  the  defendant demanding the  return  of  their

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      equipment  but  received  neither  their  property  nor  any        satisfactory  reply,  and they issued a  writ  claiming  the        return of their equipment or its value, and damages for  the        period of its detention, which at the trial was shown to  be        for  43 weeks.  Tile question that arose  for  consideration        was  what  was the quantum of damages which  the  plaintiffs        were  entitled to recover and it was held that in an  action        in  detinue in respect of a chattel which the plaintiff,  as        part of his business, hires out to users, the plaintiff,  if        the  defendant  has  during the  period  of  detention  made        beneficial  use  of the chattel, is entitled to  recover  as        damages the full market rate of hire for the whole        813        period  of detention.  After setting out the  passage  above        quoted Denning L. J. continued at page 254:        " If a wrongdoer has made use of goods for his own  purpose,        then he must pay a reasonable hire for them, even though the        owner  has  in fact suffered no loss.  It may  be  that  the        owner would not have used the goods himself, or that he  had        a substitute readily available, which he used without  extra        cost  to himself.  Nevertheless the owner is entitled  to  a        reasonable  hire.  If the wrongdoer had asked the owner  for        permission to use the goods, the owner would be entitled  to        ask  for  a  reasonable remuneration as  the  price  of  his        permission.   The  wrongdoer cannot be better off  by  doing        wrong  than he would be by doing right.  He  must  therefore        pay a reasonable hire."        Mr. B. Sen, who appeared on behalf of the respondent,  urged        before  us on the authority of Anderson v. Passman (1)  that        as the gist of the-grievance is mere unlawful detention, the        damages will be nominal unless the plaintiff proves that  he        has suffered special damage.  This position is, however,  of        no  avail to the respondent because it cannot be  said  that        the  appellants’ grievance here is merely in regard  to  the        wrongful  detention of the trucks.  The appellants  in  this        instant   case  have  also  claimed  to  recover  from   the        respondent  future damages from the date of  detention  till        the date of delivery of the trucks and apart from any  claim        laid  in special damages, these are damages which  naturally        flow  from the wrongful act of the respondent and which  the        appellants would be entitled to recover in the event of non-        delivery of the trucks to them by the respondent.        This is certainly not a case of nominal damages.  As Earl of        Halsbury  L.C.  pointed  out  in  Owners  of  the  Steamship        "Mediana"  v. Owners, Master and Crew of  Lightship  "Comet"        (2):        "the unlawful keeping back of what belongs to another person        is of itself a ground for real damages, not nominal  damages        at all."        The quantum of damages may be big or small but it        (1) [1835] 7 C. & P. 193.        (2) [1900] A.C. 113. 118.        814        does  not  make  any  difference  to  the  principle.    The        ,principle of assessing the damages is the same and that  is        that  where  by  the  wrongful  act  of  one  man  something        belonging to another is either itself so a injured as not to        be capable of being used or is taken away so that it  cannot        be  used  at all, that of itself is a  ground  for  damages.        (lbid p. 116).        In the case before us the appellants were the owners of  the        two  trucks  and they used to hire out the same  to  others.        Hiring  Out of the trucks was a regular business  of  theirs        and  if  the  said  trucks  had  been  re-delivered  by  the        respondent  to  them  on August 1,  1942,  they  would  have

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      immediately  put the same to the user, viz., that of  hiring        them  out to outsiders and earning thereby a certain sum  by        way  of rent for each truck per day.  The  appellants  might        not  have  been able to hire them out for every day  of  the        period  of wrongful detention by the respondent, viz.,  from        August  1, 1942 to July 7, 1944.  As the learned  judges  of        the  High Court have observed, there might be days when  the        trucks  would  be out of use; there might be days  when  the        trucks would lie idle for repairs and overhaul and so forth;        that  would only go to reduce the number of days  for  which        the appellants would be entitled to recover the damages  for        such wrongful detention.  If the learned judges of the  High        Court had on taking all the circumstances into consideration        arrived  at  the figure of Rs. 5,953 as the amount  of  hire        which could have been reasonably earned by the appellants in        the event of the re-delivery of the trucks by the respondent        to  them  on August 1, 1942, their judgment in  this  behalf        could not have been success-fully impeached.  What they did,        however,  was to confine the appellants’ claim to Rs.  5,953        on the ground that the appellants had claimed that amount in        the  first instance and had paid the court-fee on the  same.        They,  therefore,  took  it  that  that  sum  of  Rs.  5,953        represented a fair amount of damages for wrongful  detention        of the trucks according to the appellants.        We  are of opinion that the High Court was clearly in  error        in adopting this basis for the award of        815        damages.   The payment of court-fee stamp on Rs.  5,953  was        certainly  not conclusive against the appellants because  on        its  being pointed out by the Office of the  Registrar,  the        appellants paid an additional court-fee stamp of Rs.  1,279-        11-0  on  February 28, 1945, and that was done  because  the        appellants  did not confine their claim merely to  the  said        sum  of  Rs. 5,953.  If, according to the  judgment  of  the        learned  judges  of  the  High  Court  the  appellants  were        entitled  to damages for the wrongful detention of the  said        two  trucks  at the rate of Rs. 17 per day  per  truck  from        August  1, 1942 to July 7, 1944, they ought to have  made  a        reasonable  calculation of the number of days for which  the        trucks  would  have been put to use by  the  appellants  and        awarded  damages  to  the  appellants  accordingly.    This,        however, they failed to do.        In our opinion, the appellants are entitled to recover  such        damages from the respondent at the rate of Rs. 17 per  truck        per day for such reasonable period between August 1, 1942 to        July 7, 1944, for which the appellants would have hired  out        the trucks to outside parties.  The trucks were in a  fairly        good  running condition but were old models of 1938  and  it        will  be quite reasonable to hold that they would have  been        in commission approximately for one year during that period.        Calculating  the hire of these trucks at the rate of Rs.  17        per  truck  per day the total amount of  damages  which  the        appellants would be entitled to, recover from the respondent        works out at Rs. 12,410.  The appellants would therefore  be        entitled  to  recover over and above the sum  of  Rs.  5,953        already awarded to them by the High Court an additional  sum        of Rs. 6,457 by way of damages for wrongful detention of the        said trucks by the respondent.        We  accordingly allow this appeal and pass in favour of  the        appellants,  in addition to the enhanced decree  which  they        have already obtained from the High Court, a decree  against        the respondent for Rs. 3,500 being the appreciated value  of        the  said  trucks together with interest thereon at  6%  per        annum from July 7, 1944, till this date as also for a sum of        Rs.  6,457  by  way  of  additional  damages  for   wrongful

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      detention of        816        the said trucks, additional proportionate costs both in  the        Trial Court as well as in the -High Court as also the  costs        of  this  appeal,  subject  of  course  to  the  payment  of        additional  court-fee for the excess amount awarded  hereby.        The whole of the decretal amount as above will carry further        interest  at  the rate of 6% per annum from this  date  till        payment.        Appeal allowed.