1. This is an appeal preferred by the appellant-plaintiff against the judgment and decree of the learned Principal Subordinate Judge, Bangalore, in Original Suit No. 24 of 1949-50 partly decreeing the suit.
2. Plaintiff is a partnership firm carrying on business in machinery in Bangalore. Defendant 1 in the case is the Indian Union, defendant 2 the Government of Mysore, and defendant 3 the General Manager, Mysore State Railway. The case for the plaintiff is that the firm placed two orders, one for the supply of a lathe machine, and another for a drilling machine with Messrs. Halifax Engineering Company, Baroda and Messrs. A. Mill & Company, Lahore, respectively, that the said companies consigned the said goods (the first company under invoice No. 49, and the second under invoice No. 16 for value received), that the goods so consigned have not been delivered t,o the plaintiff, that defendant 3 Railway which are responsible for the carriage and delivery of the goods have failed to deliver the same, that the non-delivery is due to the negligence and misconduct of the concerned Railway, that they were therefore liable to make good the value of the said goods amounting to Rs. 3,700 that the defendants failed to meet the plaintiff's claim in spite of repeated demands and notice and that hence the suit.
3. Defendant 1 was treated ex parte. Defendant 2 have put the plaintiff to proof of the allegations made in paras. 2, 3 and 4 of the plaint and have pleaded that they are not responsible for the nondelivery of the goods, that they did not receive the goods from the foreign contiguous railway, that the suit is not maintainable under Section 64, Railways Act, that the Manager of the Mysore State Railway has not been made a party to the suit and that the suit was liable to be dismissed.
In an additional written statement filed by defendant 2 subsequently, it is further pleaded that there was no negligence or misconduct on their part, that the notice issued to them is not valid, that the suit is bad for want oE a notice under Section 61, Mysore Railways Act, that the suit is further bad for Non joinder of parties and misjoinder of causes of action, that the Court has no jurisdiction to entertain this suit, that the suit is barred by time and that it is liable to be dismissed with their costs.
4. Defendant 3 has filed a separate written statement which is almost the same as that of defendant 2. So it is unnecessary to repeat what is stated therein.
5. In the reply statement filed by the plaintiff, the allegations made by the defendants are denied and those made in the plaint reiterated.
6. The learned Subordinate Judge held that the lathe machine booked under Invoice No. 49 from Baroda had not been delivered to the Mysore Railway by the connecting foreign Railway, that the defendants were therefore not liable for the value of the said machine, that the suit with respect to that claim was not maintainable, and he accordingly disallowed that part of the plaintiff's claim.
As regards the drilling machine booked under invoice No. 16 from Lahore, he, however, found that defendant 3 Railway received the same from the connecting foreign railways, that they failed to deliver the same to the plaintiff and that they were liable for the value of the said machine and he accordingly decreed the suit for Rs. 1,850 representing its value, with proportionate costs. The plaintiff has preferred this appeal with respect to the value of the lathe machine disallowed by the lower Court, and defendants 2 and 3 have filed cross-objections in respect of the claim allowed in favour of the plaintiff.
7. The first point that arises for consideration is whether the finding of the Seamed Subordinate judge that defendants 2 and 3 were not liable for the value of the lathe machine is incorrect. It appears to us from a perusal of the evidence that the finding of the learned Subordinate Judge has to be accepted as correct. The contention of defendant 3 Railways is that this lathe machine, booked from Baroda under the railway receipt Ex. B was not delivered to them by the connecting foreign railway and that therefore they are not liable for the value of the said machine. There appears to be considerable truth and force in this contention.
8. That the lathe machine was booked with the North Western Railway is proved by the Railway Receipt Ex. B. The point that would arise for consideration is to what extent defendant 3, Railway can bo held responsible for the non-delivery of the lathe machine referred to in Ex. B. This leads us to the consideration of certain sections of the Mysore Railways Act that were in force at the time when the cause of action arose to the plaintiff and when the suit was filed. Section 64, Mysore Railways Act deals with institution of suits against the Railways for recovery of compensation where the goods are booked over the lines of more than one: railway administration. The aggrieved party is by that section given liberty, at his option to sue either the railway with which he entered into the contract or to sue the railway on whose line the injury or loss occurred.
In this connection, it has to be remembered that the plaintiff wants to make defendants Railway liable on the ground that the alleged loss occurred when the goods were being carried by that railway. When goods are carried by more than one railway, and if a plaintiff wants to make a particular railway liable lor the alleged loss of goods, the burden of proving that the goods were delivered by the connecting railway to the railway which is sought to be made liable is heavily on the plaintiff, and in this case unless the plaintiff establishes that the Mysors State Railway were given possession of the goods in question, he cannot get any relief as against them. It appears to us that the plaintiff has failed to prove, as rightly found by the learned Subordinate Judge,'that the machinery in question was delivered to the Mysore State Railway by the connecting foreign railways.
9. It is conceded that the machinery after having been booked with the North Western Railway had to he carried on the G.I.P. and M. & S.M. Railway before it could be delivered to the Mysore State Railway. The plaintiff has not adduced any evidence worth the name in support of his contention that the machinery was delivered to defendant 8 Railway by the connecting foreign railways. One of the partners of the plaintiff's firm has been examined as P.W. 1 in the case, and his evidence is that he is not aware if the machinery was delivered to the Mysore State Railway.
It was very easy for the plaintiff to have let in evidence, if his case was true, in support of his contention that the goods were delivered to the Mysore State Railway. It is admitted that goods carried by foreign railways booked for delivery in Mysore will be handed over or delivered to the Mysore State Railway either at Harihar or Hindupur. It is rather Strange that the plaintiff has not thought it fit to examine the concerned Railway officials at either of those railways stations or to summon the relevant registers which could have thrown some light on this point.
The learned counsel for the appellant contended that defendant 3 Railway should have summoned the concerned witnesses and registers to prove this fact. It is curious that such an argument should have been advanced. The burden was entirely on the plaintiff to establish this fact when he wanted to make the Mysore State Railway responsible for the loss or nondelivery. It was not for defendant 3 to have proved this fact, the burden of proving which was, as already stated, entirely on the plaintiff.
10. Besides, the evidence adduced on the side of the defendants, goes to show that the machinery in question was not delivered to the Mysore State Railways at all us contended by them. The evidence of D.W. 1, the Commercial Inspector, and Ex. 3 series--the correspondence that took place between the Mysore State Railway and the connecting railways go to establish beyond doubt that the machinery in question was not delivered to the Mysore State Hail-way. Exhibit 4 is an office copy of a letter written by the Mysore State Railway to the plaintiff intimating the firm that the lathe machine was not received by them.
It was contended that Ex. U negatives the contention of defendant 3 Railway that the lathe machine was not delivered to them. We do not know how Ex. U supports such a contention because it relates to the drilling machine covered by the railway receipt Ex. D. From a perusal of the evidence adduced on the side of the defendants and from the absence of evidence on the side of the plaintiff, we will be justified in concluding that the lathe machine was not delivered to the Mysore State Railway by the connecting Foreign Railways. We agree with the finding ot the learned Subordinate Judge in this behalf.
11. The contention of defendant 3 Railway that the drilling machine also was not delivered to them has to be negatived. The evidence adduced on the side of the defendants themselves establishes that the drilling machine booked under the railway receipt Ex. D with the North Western Railway was delivered to the Mysore State Railway. D.W. 2 is the Assistant Traffic Superintendent of defendant 3 Railway. He has sworn, after seeing Ex. D, that a case bearing the same identifying numbers as found in Ex. D had been received at the Bangalore Railway station. He has further staled that Ex. S is a letter written from the office ot the Traffic Manager, Mysore State Railway, to the plaintiff, and that the machinery referred to therein is the same as noted in Ex. D.
In Ex. S the Traffic Manager has admitted that the drilling machine was received in Bangalore on 1-5-48 and has informed the plaintiff to come and take delivery of the same. We do not know what further evidence was necessary in proof of the fact that the machinery was delivered to the Mysore State Railways by the connecting Railways. It is admitted that an unloading register is maintained by defendant 3 railway in which the description of the goods unloaded are noted. This register would have thrown much light on the question whether the goods were not received by defendant 3 Railway.
For reasons not clear, defendant 3 Railway have not produced the said register. From this non-production, an adverse inference has to be drawn against defendant 3 Railway. Reliance was placed by defendant 3 on a portion of the evidence of D.W. 2 and also on Ex. VIII which is the delivery register maintained by defendant 3 Railway. Therein as per Ex. VIII (a), the letters 'N.H.' are noted. Relying on these letters, it 'was urged that 'N' stands for' not and 'H' for 'hand,' and that they indicate that the goods were not received.
We are not prepared to attach any value to this circumstance in view of the other evidence adduced on the side of the defendants alone which establishes a fact contrary to what is stated by D.W. 2 in the earlier portion of his evidence. Exhibit U, which is a letter written by defendant 3 Railway to the plaintiff, throws some more light on this point. Therein defendant 3 Railway have informed the plaintiff that they had already taken delivery of the drilling machine etc.
It is disclosed from the correspondence referred to above that the Mysore State Railway received the drilling machine booked with the North Western Railway under the railway receipt Ex. D, that they offered the same to the plaintiff, that the latter refused to receive the machine as it was either damaged or did not answer the correct description and that they (Mysore State Railway) took inconsistent positions with respect to this consignment.
In view of the stand taken by them, as disclosed in their own letters addressed to the plaintiff with respect to the drilling machine, it would have been better if defendant 3 railway had not contested the suit in the lower Court or at least if they had not chosen to file cross-object ions in this Court. In fairness to their customers, among whom the plaintiff was one, defendant 3 railway should have admitted the plaintiff's claim with respect to the drilling machine. For the reasons-stated above, we agree with the finding of the learned Subordinate Judge that defendant 3 Railway are responsible for the value of the drilling machine as claimed in the plaint.
12. Defendant 1 in the case is the Union of India represented by the President. They arc sought to be made liable for the suit claim on the ground that the North Western Railway, with which the goods were booked, and the G. I. P. and M. & S.M. Railways, through which the goods were carried, are all owned by the Indian Union. Defendant 1 remained ex parte, and the contention urged on the side of the appellant is that the learned Subordinate Judge failed to pass a decree against the Indian Union in spite of their remaining ex parte and that he should have passed a decree against defendant 1 also.
Though we do not entirely agree with the reasons advanced by the learned Subordinate Judge for holding that dependent 1 is not liable, yet we are of opinion that the suit as against defendant 1 should fail on account of other reasons, the chief reason being that a notice as contemplated under Section 61, Mysore Railways Act has not been served on any of the Railways referred to above. A notice contemplated under Section 80, Civil P.C. has been issued to all the three defendants, and, as found by the learned Subordinate Judge, the said notice is not detective in any way, and we may also observe, in this connection, that it is conceded by the learned counsel for the respondents that a valid notice under Section 80, Civil P.C., has been issued to the defendants.
We are inclined to accept the contention of the learned counsel for the respondents to the effect that the suit is bad for want of a notice under Section 77, Indian Railways Act. The notice contemplated under Section 80, Civil P.C. is different from the notice that is on templated under Section 77, Indian Railways Act corresponding to Section 61, Mysore Railways Act. The notice contemplated under the latter section is in respect of a claim to the refund or compensation specified therein, the object being to give an opportunity to the railway administration to make amends and settle the claim.
The notice contemplated under Section 80, Civil P.C. is also meant to give an opportunity to the Chief Secretary to Government, where the suit is instituted against Government, or the concerned Public officer in other cases, an opportunity to consider the legal position and to make amends or settle the claim without litigation. A notice under this section is necessary irrespective of the nature or character of the suit. The distinction between the notices contemplated under the above two sections has been made clear by Sir Sha Mahomed Suleman C.J. (as he then was) in the case reported in (Firm) Balakram Atma Ram v. Secretary of State : AIR1935All900 . Therein His Lordship has observed that the two sections viz., Section 80, Civil P.C. and Section 77, Indian Railways Act (corresponding to Section 61, Mysore Railways Act) are independent and that two separate notices should be issued before a suit can be maintained. His Lordship's finding is that there must he a notice issued to the Railway Administration under Section 77, Indian Railways Act within six months of the date of the delivery of the goods and that the plain-tiff should also issue a notice to the Collector of the District under Section 80, Civil P.C. and must wait for a period of two months before he could sue.
13. In the present case, though a notice as contemplated under Section 61 Mysore Railways Act has been issued to the Mysore Railways as per Ex. E with respect to the lathe machine, no notice under that section has been issued to the North Western Railway. What the plaintiff has stated is that he had sent a copy of Ex. E to the latter Railway. This in our opinion is not sufficient and does not meet the requirements of Section 61, Mysore Railways Act.
By forwarding a copy of Ex. E to the North Western Railway, the plaintiff has made known to them that he had preferred a claim with respect to the lathe machine against the Mysore State Railway. Beyond that, it does not go to show that any claim had been made against the North Western Railway. Exhibit N is a notice of a claim preferred to the Mysore State Railway with respect to the drilling machine. Even in regard to this, there has been no notice to the North Western Railway, as contemplated under Section 61 of the Act. It is further seen from the evidence of the plaintiff that part of the North Western Railway belongs to Pakistan since 15-8-1947.
We are not in a position to know how the liabilities of the Union Government and the Governmentof Pakistan are adjusted or fixed, and it the Government of Pakistan is also a necessary party to this suit.In any view of the case, we are of opinion that theplaintiff was not entitled to a decree as against defendant 1 and that the suit as against the Indian Unionis bad for want of notice under Section 61, Mysore Rail-ways Act. The application, I.A. No. 1, filed by theappellant under Order 1, Rule 10 Civil P.C., for impleading the Railways mentioned therein is liable to bedismissed inasmuch as no notice contemplated under Section 61, Mysore Railways Act was issued to them.Accordingly I.A. No. 1 stands dismissed but withoutcosts.
14. It was contended that the suit is barred by time. There is no merit in this contention and we may also say that the learned counsel for the respondents did not press this ground in the course of his arguments. No doubt, the correct Article of the Limitation Act applicable to suits against a carrier for compensation for non-delivery is Article 31, and the period fixed is one year from the time when the goods had to be delivered. The burden of proving when the goods consigned to him for carriage ought to have been delivered lies upon the carrier of the goods.
The question as to the date when the goods ought to have been delivered for purposes of Article 31 is essentially a question of fact, and there can be no hard and fast rule that time must begin to run from the expiry of the ordinary period of transit. In this case there is no particular date specified for delivery. It is seen from the correspondence that took place between the plaintiff and defendant 3 Railway that the plaintiff continued to make demands with respect to the non-delivery of the goods and that defendant 3 Railway went on stating that the matter was being investigated and they ultimately wrote or intimated to the plaintiff that the lathe machine could not be delivered since it was not handed over to them by the connecting Railways and they also failed to deliver the drilling machine answering the description found in Ex. D.
The suit has been filed within one year from such date after issuing a notice as per Ex. Y, dated 9-4-1949. The suit has been filed on 22-7-1949. In such cases, limitation will run only from the date on which the refusal to deliver the goods or the incapacity to deliver the same was intimated to the claimant. We agree with the finding of the learned Subordinate Judge that the suit is in time. We think that the decision of the lower Court has to be affirmed.
15. In the result, the judgment and decree of thelearned Subordinate Judge are confirmed and theappeal as also the cross-object ions stand dismissedwith costs.
16. Appeal and cross-objections dismissed.