1. This first appeal has been filed by the defendants against the judgment and decree of the Additional District Judge, Mandla, in civil suit No. 3-B of 1951 decreeing the claim of the plaintiffs for Rs. 6,886/6/- and costs.
2. It is not disputed that the firm of Keshrimal Shrikishan of Sangli had despatched to self a consignment of 62 bags of chillies weighing 62 maunds from Sangli railway station to Nainpur railway station on 14-12-1950. This consignment had not reached Nainpur till 6-7-1951, the date on which the present suit was filed.
3. The case of the plaintiffs was that Keshrimal Shrikishan endorsed the railway receipt in their favour after a sum of Rs. 600/- and another sum of Rs. 5059/4/- were paid to him for the value of the goods. As the consignment did not reach the plaintiffs they filed a suit for recovery of damages consisting of the amount paid, the price of empty bags and profits at the rate of 20 per cent.
4. The defendants denied the endorsement of the railway receipt by Keshrimal Shrikishan in favour of the plaintiffs and thus challenged their right to bring the suit. It was also pleaded on their behalf that notice under Section 77 of the Indian Railways Act, 1890, or Section 80 of the Civil Procedure Code was not given by the plaintiffs and if it be held that a notice was given, it was defective in material particulars and was consequently invalid. The damages claimed were also denied.
5. The trial Court held that the plaintiffs had the right of suit as the railway receipt was endorsed in their favour for valuable consideration. It also held that a notice was duly served on the defendants and was not defective, and that the damages claimed were reasonable. Accordingly it decreed the whole of the claim of the plaintiffs with costs.
6. The first point for consideration is whether the plaintiffs acquired title to the goods as alleged. In this connection, it was contended that there was no proper proof of the loss of the railway receipt or of the endorsement of the consignor-firm thereon, The loss of the railway receipt has been deposed to by plaintiff No. 3 Gendlal (P. W. 1).
Apparently he had no motive to suppress the document when the endorsement thereon for consideration in favour of the plaintiffs was not a matter of dispute and has been testified to by Rameshwar Lal (P. W. 2) who is a partner of the firm of the consignors'. It was not disputed before us that the endorsement on a railway receipt entitles the endorsee to sue the railway on the basis of the title to goods. We. accordingly confirm the finding of the lower Court that the plaintiffs had the right to maintain the suit.
7. It is not a matter of dispute that the goods were consigned on 14-12-1950 and had not reached the destination till 6-7-1951 when the suit was filed. The goods arrived at Nainpur on 28-9-1951 after the suit was instituted. The subsequent arrival of the goods, however, did not change the nature of the suit which was for compensation for non-delivery of the goods,
An attempt was made to show that the goods were offered to the plaintiffs after their arrival but they refused to take delivery. The evidence on the point is that of Vishwanathrao (D. W. 1), who is the Goods clerk, and Mukherji (D. W. 2), who is the Commercial Inspector. They were merely servants and not agents of the Railway Administration, and, accordingly, the plaintiffs were justified in refusing to take delivery on their instructions when a Court of Law was seized of the matter.
The defendants, in the absence of a formal offer, cannot, therefore, contend that the plaintiffs ought to have taken delivery of the goods and should have reduced the claim to the extent of the loss, if any, suffered after appropriation of the goods. If they intended to found any defence on this point, they ought to have raised a proper plea by amending the written statement suitably.
8. Since the goods all along remained with the Railway Administration, the suit continued to be one for non-delivery of the goods, for which the plaintiffs would be entitled to compensation at the rate prevailing at Nainpur on the date on which the goods should ordinarily have arrived there: See Dominion of India v. Rupchand, ILR (1953) Nag 314: (AIR 1953 Nag 169) (A); Dominion of India v. Firm Chhaganlal Premji, 1951 Nag LJ 470: (AIR 1951 Nag 357 (2) (B).
In this connection it was not disputed that the goods would have reached Nainpur in the normal course in about 25 days as has been found by the Lower Court. The damages would, therefore, be the price of the goods at Nainpur towards the end of December 1950 or the beginning of January 1951. The profits claimed on this amount by the plaintiffs cannot obviously be allowed, as they exceed the limit of the damages which they can legally recover.
9. This brings us to the question whether the notice was required by law to be given by the plaintiffs, and if so, whether such a notice was served on the defendants. Plaintiff No. 3 Gendlal (P. W. 1) has testified to have sent the notice, a copy of which, Ex. P. 11, is on record. There is no controverting evidence on the point. We, therefore, accept the plaintiffs' contention that a notice as per Ex P. 11 was served on the defendants.
The only defect that was pointed out to us in this notice was that all the persons who figure as plaintiffs in the suit were not mentioned in it. The notice was given, according to its contents, by 'Gendlal Nathuram' which obviously is the name of the plaintiff-firm of which Nathuram and Gendlal, who figure as plaintiffs Nos. 2 and 3, are the partners.
This is not a discrepancy which could have misled the defendants. We do not, therefore, uphold the contention that the notice is defective either under Section 77 of the Indian Railways Act or Section 80 of the Code of Civil Procedure.
10. Apart from this question, we think that the case is not covered by Section 77 of the Indian Railways Act. That section only applies to suits for loss, destruction or deterioration of goods. Therefore, the present suit, which is for non-delivery of the goods, is not affected by it: see Governor General in Council v. Kasiram Marwari, AIR 1949 Pat 268 (C); Governor General in Council v. Mahabir Ram, AIR 1952 All 891 (FB) (D).
So far as Section 80 of the Code of Civil Procedure is concerned, the notice was addressed to the statutory authority and sets out the required particulars. The suit cannot, therefore, be said to be bad under either of these provisions.
11. The only question that remains is regarding the amount of the damages to which the plaintiffs are entitled. The evidence on the price of the goods at Nainpur at the relevant time is furnished by Shamlal (P. W. 4) and Maya Prakash (P. W. 5). We accept their testimony in the absence of any evidence to the contrary. It appears from their evidence that the average rate of ordinary chillies was Rs. 85/- per maund and that of Sangli stuff was Rs. 10/- more. The damages thus work out as below:
(1) Price of 62 maunds.
5890- 0-0(2) Price of bags ....
93- 0-0(3) Costs of notice ....
Leaving the fraction of a rupee, the plaintiffs are entitled to recover Rs. 5985/-.
12. The result is that the appeal is partlyallowed, and the decree of the lower Court is modified by substituting Rs. 5985/- in place of theamount decreed. The plaintiffs shall be entitled toproportionate costs in both the Courts. The restof the costs shall be borne as incurred.