1. This is an application for revision by the defendants in a suit the Union of India representing the Central and Northern Railway Administrations.
2. The non-applicant (plaintiff) firm had consigned to themselves 381 kattas of gur from Meerut to Itwari Station, Nagpur. When delivery was asked, the Railway delivered only 361 kattas and was unable to deliver the balance of 20 kattas of gur. This was on 8-1-1954. The plaintiff then served the usual notices and filed the suit on 3-3-1955. The trial Court passed a decree against the defendants for Rs. 440/- and costs.
3. The trial Court came to the conclusion that the non-delivery was due to negligence and misconduct on the part of the servants of the Northern and Central Railways. This finding was not challenged before me. But on behalf of the Railways Mr. Bhave has urged two points. His first point was that the Railway Administrations managed to find the missing consignment of 20 kattas and therefore made an offer to the plaintiff to deliver the goods in specie on 25-3-1955. According to counsel, the plaintiff was bound to accept this offer and even though the goods may be in a damaged condition the only remedy of the plaintiff, was to sue the Railway Administration for damage to the goods but not for non-delivery. He relies upon two cases of the Nagpur High Court, which are: Fazalbhai v. Dominion of India AIR 1951 Nag 245 ; and Jusaf and Ismail Co. v. Governor-General .
4. No doubt, these cases are authorities for the proposition that if delivery of consignment is offered to the consignee, in whatever condition the goods may be, the consignee must take delivery though he may give notice to the Administration of the condition of the goods and then sue the railway for damages. The principle itself was adopted by my learned Brother Mudholkar J., in the first of the two cases mentioned above with some hesitation, and at page 247, column 2 of the A.I.R. report, the learned Judge observed:
'I can find no direct authority in support of what I say, but the following observations in Hiort v. L. & N.W. Rly. Co. (1879) 4 Ex D 188 , lend support to my view.' Then he quoted the observations of Bramwell L. J., that
'A return of the goods undoubtedly might be shown to reduce the damages in the case of a conversion, not only where the owner voluntarily received back the goods but where he took them back against his will.'
In other words, the principle was derived from the right of the defendant in a suit to show that the damages have in fact been mitigated. I do not see how that principle can be extended to a case where the cause of action accruing to a plaintiff has once been put in Court. In the present case the offer was made pending the plaintiff's suit and the result of the acceptance of the offer could only have been that the plaintiff's right to carry ,on the suit would have been defeated. As I said, the principle itself, as acumbrated in the two rulings cited above, was a principle which normally one would hesitate to accept. I see no justification for extending the application of that principle to a case where the rights of the parties have been taken out of the domain of the contract and become the subject-matter of a litigation. I therefore hold that though ordinarily the plaintiff cannot refuse to accept delivery even if the goods are damaged, he need not accept an offer after he has once filed a suit for damages for non-delivery.
5. The other contention on behalf of the applicants has been that in view of the newly added Section 74-C of the Railways Act it must be presumed that the goods were goods consigned at owner's risk in the absence of allegations and proof to the contrary by the plaintiff. In this respect counsel for the applicants urged that the burden was upon the plaintiff to allege and prove that a rate other than the owner's rate was agreed; otherwise it must be presumed that it was the owner's risk rate. Assuming that this contention is correct, I do not see how in the present case the contention can be availed of by the Administration to defeat the plaintiff's suit because of the provisions of Section 74-C (3) which expressly provides that-
'When any animals or goods are carried or are deemed to be carried at owner's risk rate, a railway administration shall not be responsible for any loss, destruction or deterioration of or damage to such goods from any cause whatsoever except upon proof that such loss, destruction, deterioration or damage was due to negligence or misconduct on the part of the Railway Administration or of any of its servants.'
That was precisely what was found in the present case. The trial Court found upon the facts that the loss was due to the negligence or misconduct on the part of the Railway Administrations and therefore it was immaterial whether the goods were sent at owner's risk rate or at any higher rate under any other risk-note terms. In my view, the decision of the Court below was correct.
6. The application for revision is dismissed with costs.
7. Application dismissed.