# Reeve v. Palmer, (1858) 5 C.B. (N.S.) 84, and Wilkinson - **Citation:** [1958] 1 S.C.R. 781 - **Court:** Supreme Court of India - **Decided:** 1958 - **Bench:** Bhagwati, Jafer Imam, Gajendragadkar - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/reeve-v-palmer-1858-5-c-b-n-s-84-and-wilkinson-1429 - **Pages:** 36 ## Headnote 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 decre~-Value stated in the notice, if a bar to recovery Clf appreciated value-Damageg for wrongful detention-Principle of assessment-Code of Civil Procedure (Act V of 1908), s. 80. 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 part-- ner of the appellants. The appellants served the stat\1tory 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 com-- pensation in law either for wrongful conversion or forwrongful 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 ~nd sue him either for wrongful conversion or for wrongful detention. If he chooses to adopt the latter remedy, the bailee cannot. take advantage of his own wrongful conversion and com-- pel 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 eonversion, is a continuing: 1957 Octobe 29 782 SUPREME COURT REPORTS [Hl58] 1957 one, and 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 u~!an Singh Sobha the judgment. Although the cause of action arises with the >mgh & Anather 1 f h b ·1 d I" h d "t · "JI v. refusa o .t e ai ee to e 1ver t e goo s, 1 continues ti n, Union of India delivery is made by the bailee or he is ce ·pelled 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 .ean be ascertained only at the date of the decree. Rosenthal v. Alderton & Sons Ltd., [1946] I K.B. 374, referred to. Case-Jaw 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 ether cafle where the wrongful act of one 10 Injures some· thing belonging to another as to render it unusable or something is taken away so that it can no longer be usE!d, and the amount of ## Text _Characters 0–39,956 of 81,441. This is a partial read: ask again with offset=39956 for what follows._ J ' I \ \ ~I S.C.R. SUPREME COURT REPORTS 781 DHIAN SINGH SOBHA SINGH & ANOTHER THE UNION OF INDIA (BHAGWATI, JAFER IMAM and GAJENDRAGADKAR JJ.) 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 decre~-Value stated in the notice, if a bar to recovery Clf appreciated value-Damageg for wrongful detention-Principle of assessment-Code of Civil Procedure (Act V of 1908), s. 80. 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 part-- ner of the appellants. The appellants served the stat\1tory 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 com-- pensation in law either for wrongful conversion or forwrongful 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 ~nd sue him either for wrongful conversion or for wrongful detention. If he chooses to adopt the latter remedy, the bailee cannot. take advantage of his own wrongful conversion and com-- pel 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 eonversion, is a continuing: 1957 Octobe 29 782 SUPREME COURT REPORTS [Hl58] 1957 one, and 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 u~!an Singh Sobha the judgment. Although the cause of action arises with the >mgh & Anather 1 f h b ·1 d I" h d "t · "JI v. refusa o .t e ai ee to e 1ver t e goo s, 1 continues ti n, Union of India delivery is made by the bailee or he is ce ·pelled 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 .ean be ascertained only at the date of the decree. Rosenthal v. Alderton & Sons Ltd., [1946] I K.B. 374, referred to. Case-Jaw 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 ether cafle where the wrongful act of one 10 Injures some· thing belonging to another as to render it unusable or something is taken away so that it can no longer be usE!d, 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 an:d 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 temis 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 colilmon 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 apptedated 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. [i943j Bom. 128, referred to. C1vn. A!>PELLATE JURISDICTION: Civil Appeal No. 5 of 1954. - . ' S.C.R. SUPREME COURT REPORTS 783 Appeal from the judgment and decree dated April ~ 7 1948, of the Nagpur High Court in First· Appeal NO.Dhian Singh Sobha 2'7 of 1954 arising out of the judgment and decree Singh ~.Another dated July 7, 1944, of the Court of Third Additional The U11icno1 JndicDistrict 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 Bhagwat. J. 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. A WB 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. A WB 230 from April 29, 1942, to July 31, 1942, excepting the period from June 4, 1942, to June 9, 1942, and truck No. A WB 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.In. on August 1, 1942, for removing the trucks but they were not 784 SUPREME COURT REPORTS [1958] ~ delivered to him by the transport in-charge and by Dhia11 Singh Sobilo his letter of the same date addressed to the S.S.O. Singh & Another K h ll N ' v. amptee, t e appe ant o. 1 put the above fact on The Union of India record. Bhagwati J. 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 entitkd 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 A WB 253 from May 4, 1942, and interest at 6% on the hire money from the clue · 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. A WB 253 and A WB 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 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 ' \ r S.C.R. SUPREME COURT REPORTS 785 amount if the price of the trucks at that time was 1957 found more than what was claimed by them owing to Dlrlt111 Singh Sobha the rise in prices thereof, by paying additional court- Singh & Another fee. The action was one for wrongful detention and Tfte u111:~ of India the appellants claimed a return of the trucks or in the -'. alternative the price thereof at the date of the decree, Bltogwari J. 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 ~ed 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 pr0fits 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 ofRs. 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 L2SC/61/P VI-4 786 SUPREME COURT REPORTS [19581 1957 of the filing of the appeal and t.lie appellants accordDhfllll Singh Sobhaingly paid the additional court-fee of Rs. 1,279-11-0 Sin,h "/""'her on 1''e bruary 28, 1945. The Umon of India 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 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 paia 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 had originally claimed in the appeal. The Trial Court's decree was accordingly enhanced by Rs. 5,953 thus Bhagwotll. I S.C.R. SUPREME COURT REPORTS 787 allowing the appellant a futther sum of Rs. 5;477 for 1957 compensation under that head and the appeal was D4iitfi ;;;i, Sabha allowed with costs to that extent. Singh & Another v. . . , The Uillon of India The appellants thereafter applied for a certificate -. .- of fitness to appeal under s. 110 of the Code of Civil Bliagwati 1• 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 addit: Jn to the sum 788 SUPREME COURT REPORTS [19581 !!!!. of Rs. 6,032 already awarded by the Trial Court in D/i!llllS/nahSobha their favour, the appellants were not entitled to anySmgh '\Another thing more and that therefore the appeal was liable The Union of India to be dismissed. BhagwatlJ. It would be relevant to consider what is the exact scope of the two forms of action, viz., action for wrongful conv1>rsion 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. Jn 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 S.C.R. SUPREME COURT REPORTS 789 for the recovery of chattels was the action in detinue. 1957 In that action the judgment was in the alternative- Dhlan Singh Sobha that the plaintiff do recover the possession of the Singh & Another chattels or their assessed value in case possession The um:~ of India cannot be had together in any case with damages for BhagwatiJ. their detention. (Salmond on Torts, 11th Edition, pages 351, 352 & 353). Judgment for the petitioner in trover is for reco· very 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 the?). 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 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 torms 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 Sm'REME COURT REPORTS [19581 1957 unequivocal act of ownership by the defendant over DM•• Singh Sobha goods of the plaintiff without any authority or right Singh & ;fnother in that behalf. The act must be an unequivocal act The um:~ of India of ownership, i.e., an act such as acquiring, dealing Bhagwatl 1• 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 today 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 or in detinueor where the goods have been sold he may waive the tort and sue as upon an implied contract for money S.C.R. SUPREME COURT REPORTS 791 had or received. (Halsbury's Laws of England, 1951 Hailsham Edition, Vol. 33, page 69, para. 115). The Dhlan Si"6h Sobh6 defendant cannot be heard . to say that tlie plaintiff Singh &v. Another knew or ought to have known of the conversion of the TM Union of India goods by him and therefore should pursue his remedy Bh;;;;;111• only in conversion .. He cannot take advantage of his own wrong. It was held as early as 1858 in Reeiie v. Pa~mer(1) by Cockburn C. J. · 1 • · ·"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 detiriue, 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 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 b~ 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) (!SS~ S C.B. (N.S.) "84, 90, 91. (2) (1871) L.R. 6 C.P. 206. 792 SUPREME COURT REPORTS Cl958l 1957 property (if he discovers and can prove it) or to wait D~1:;,,Si"'~:0~~~ unt~ there is a breach of the bailee's duty in the . v. . ordmary course by refusal to deliver up on request The U~f India and that in the latter case, it is no answer for the Bharwa1u. bailee to say that he has by his own misconduct incapacitated himself from complying with the lawful demlmd of the bailor. . . . .................................. . In that case, the principle that a man entrusted 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 Wilki'nson v. Verity(') was followed by the Court of Appeal in England in Rosenthal v. Alderton & Sons Ltd.( 2 ) and by the High Court of Australia i,n John F. Goulding Proprietary Limited v. The Victorian Railways Commissioners("). 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 v.Tong and cannot ask the plaintiff to choose a remedy which may be less beneficial to him. (') (1871) L.R. 6 C.P. 206. (2) [1946] 1 K.B. 374. (3) 48 C.L.R. 157, 167. S.C.R. SUPREME COURT REPORTS 793 This is of course the normal rule, though the courts !!!!_ have tried to soften its rigour by importing the Dhl1111 Sl1tgh Sobha consideration that the plaintiff should not be allowed Singh &v,AMther to delay his action in order to get the advantage of a The Uniori of India rising market. A speculative element might enter into B1t;;;;;i11. 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 4271 · In the present case, however, we are not fettered by any such consideration. The respondent was the bailee of the two trucks and was bounq 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 sald 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 SUPREME COURT REPORTS (1958) !!!!_ could have, if they had been so minded, sued the Dhkm S"'8/I Sob/ra respondent for wrongful conversion of the said trucks, Singh & A.noth