Skip to content


Singhal Transport Vs. Jesaram Jamumal - Court Judgment

LegalCrystal Citation
SubjectContract
CourtRajasthan High Court
Decided On
Case NumberCivil Revn. No. 496 of 1965
Judge
Reported inAIR1968Raj89
ActsContract Act, 1872 - Sections 10, 23 and 28; Code of Civil Procedure (CPC) , 1908 - Sections 20
AppellantSinghal Transport
RespondentJesaram Jamumal
Appellant Advocate D.P. Gupta and; H.C. Rastogi, Advs.
Respondent Advocate D.S. Shishodia, Adv.
DispositionRevision allowed
Cases ReferredIn Dwarka Rubber Works v. Chhotelal
Excerpt:
.....who delivers a bill of lading had to stop to explain what a bill of lading was. i think that a particular plaintiff ought not to be in a better position than other persons on account of his exceptional ignorance or stupidity or carelessness. on the front of these tickets were the words, legibly and clearly printed in large letters,'for conditions see back,'and on the back was printed a condition exonerating the company from liability for injury to the holder of the ticket, however caused. delivering the judgment of the court observed--although he may not understand french, he was a man of business contracting with a french company, whose tickets he knew very well were written in the french language. and it very plainly disclosed upon the face of it that the conditions endorsed were..........in doing so he would read the above declaration or if he did not know english he would have the ticket read by someone else knowing english who could come to know that it was subject to the conditions printed on the back as was held in 1923-2 kb 703 that a man must be taken to know that which he has the means of knowing, whether he has availed himself of those means or not. if he does not he must hear the consequences of his carelessness. the consignor in the present case will be deemed to know of the conditions subject to which the ticket was issued and is bound by them. the consignee is equally bound by these conditions.13. the contrary view taken by me in earlier decisions that unless the consignor affixes his signatures to the agreement relating to the conditions he is not bound.....
Judgment:
ORDER

Jagat Narayan, J.

1. This is a revision application by the defendant against an order of the Judge, Small Cause Court, Bhilwara, holding that he has jurisdiction to try the suit. The revision application has been contested by the plaintiff.

2. M/s. Krishna Agencies, Jaipur delivered 48 tins of Sarson oil to defendant M/s. Singhal Transport having its head office at Udaipur for carriage to Bhilwara. The consignment was to be delivered to the plaintiff M/s. Jesaram Jamumal of Bhilwara. It was booked by goods ticket No. Fr. 508961 dated 26-6-65. On the face of this ticket it is printed:

'The Consignor has expressly declared that the above particulars furnished by him or by his representative or his Agent are correct. No prohibited goods or articles are included and that he is fully aware of and accepts the conditions of carriage given on the back side of this Consignment receipt. Signature of Booking Official

Signature of Consignor.'

3. The above print is signed by the booking official but is not signed by the consignor. On the back of the goods receipt 17 conditions are printed of which two are relevant for purposes of this case and are reproduced below:

'12 The consignor shall be primarily liable to pay the transport charges and all other incidental charges if any at the Head Office of the Company in Udaipur or at any other agreed place.'

'17. The court in Udaipur City alone shall have jurisdiction is respect of all claims and matter arising under the consignment or of the goods entrusted for transport.'

When the consignment was delivered to the plaintiff at Bhilwara one tin was found to be wholly empty and two tins were found to be partially empty. The present suit was instituted for the recovery of damages for short delivery against the defendant in the court of Judge Small Causes, Bhilwara. It was resisted by the defendant inter alia on the ground that the court had no jurisdiction to try it.

4. The contention on behalf of the defendant before the trial court was that the consignor was bound by the conditions printed on the back of the goods ticket as on the face of the ticket it was printed that he was fully aware of and accepts the conditions of carriage given on the back side of the consignment receipt, that the consignee was equally bound by these terms that under condition No. 12 the transport charges were payable at Udaipur and one of the courts which had jurisdiction to try the suit was the court at Udaipur, and that under condition No. 17 the plaintiff was entitled to maintain the suit only in Udaipur Court. The trial court was however of the opinion that the conditions printed on the back of the ticket were not binding on the consignor as he had not affixed his signature in token of his agreeing to abide by them and that the Court at Udaipur was not competent to try the suit as no part of the cause of action arose within its jurisdiction. As a result it held that it had jurisdiction to try the suit.

5.Before me the defendant contended that in view of the conditions printed on the back of the goods ticket the plaintiff was entitled to institute the suit only in the court at Udaipur. On the other hand the plaintiff's case was that the Bhilwara court had jurisdiction to try it. On the respective contentions of the two parties the following points arise for determination in this case:

1. Whether the consignor is bound by conditions printed on the back of the goods ticket in the present case because of what is printed on the face of it.

2. If so, whether in view of condition No. 12 the suit is triable by the Court at Udaipur.

3. If more courts than one have jurisdiction to try a suit whether there is anything contrary to public policy in an agreement between the parties that disputes between them would be tried at one place out of them so as to render the agreement void under Section 23 of the Contract Act

Point No. 1.

6. On behalf of the defendant a number of English decisions were cited from which it appears to be well established that if there is anything on the face of a ticket to indicate that it is issued subject to conditions and that the holder of the ticket has means to find out what these conditions are they are binding on him whether he has himself availed of those means or not. The consignor must be supposed to have read the conditions subject to which the ticket was issued. The leading case on the point is the decision of the Court of Appeal in Parker v. South Eastern Rly Co., (1877) 2 CPD 416. The head note runs as follows:

'On the deposit of articles at the cloakroom at a railway station, a charge is made of 2d, for each, and the depositor receives a ticket, on the face of which are printed the times of opening and closing the cloak-room and the words 'See back,' and on the back there is a notice that the company will not be responsible for any package exceeding 10. A placard upon which is printed in legible characters the same condition is also hung up in the cloak-room.

The plaintiff deposited his bag, of value exceeding . 10 in the defendants' cloakroom, paid 2d., and received a ticket. The bag was lost or stolen. In an action to recover its value the plaintiff swore that he took the ticket without reading it, imagining it to be only a receipt for the money paid for the deposit of the article, or as evidence that the company had received the article, that he did not read the condition at the back of the ticket, nor did he see the notice hung up in the cloak-room. The Judge left two questions to the jury. -- 1. Did the plaintiff read or was he aware of the special condition upon which the article was deposited? 2. Was the plaintiff, under the circumstances, under any obligation, in the exercise of reasonable and proper caution, to read or to make himself aware of the condition? The jury answered both the questions in the negative, and judgment was directed for the plaintiff:

Held, by Mellish and Baggallay, L. JJ., that there ought to be a new trial, on the ground that there had been a misdirection by the judge, inasmuch as the plaintiff could bf under no obligation to read the condition; and that the second question left to the jury ought to have been, whether the company did that which was reasonably sufficient to give the plaintiff notice of the condition.

Held, further by Bramwell, L. J. that, on the above facts it was a question of law and that judgment ought to be entered for the defendants.'

Mellish. L. J. observed--

'The question then is, whether the plaintiff was bound by the conditions contained in the ticket. In an ordinary case, where an action is brought on a written agreement which is signed by the defendant, the agreement is proved by proving his signature, and, in the absence of fraud, it is wholly immaterial that he has not read the agreement and does not know its contents. The parties may, however, reduce their agreement into writing, so that the writing constitutes the sole evidence of the agreement, without signing it: but in that case there must be evidence independently of the agreement itself to prove that the defendant has assented to it . In that case, also, if it is proved that the defendant has assented to the writing constituting the agreement between the parties, it is, in the absence of fraud, immaterial that the defendant had not read the agreement and did not know its contents. Now if in the course of making a contract one party delivers to another a paper containing writing and the party receiving the paper knows that the paper contains conditions which the party delivering it intends to constitute the contract. I have no doubt that the party receiving the paper does, by receiving and keeping it assent to the conditions contained in it although he does not read them and does not know what they are ..... On the other hand if a person who ships goods to be carried on a voyage by sea receives a bill of lading signed by the master, he would plainly be bound by it, although afterwards in an action against the shipowner for the loss of the goods, he might swear that he had never read the bill of lading, and that he did not know that it contained the terms of the contract of carriage, and that the shipowner was protected by the exceptions contained in it. Now the reason why the person receiving the bill of lading would be bound seems to me to be that in the great majority of cases persons shipping goods do know that the bill of lading contains the terms of the contract of carriage; and the shipowner, or the master delivering the bill of lading is entitled to assume that the person shipping goods has that knowledge. It is, however, quite possible to suppose that a person who is neither a man of business nor a lawyer might on some particular occasion ship goods without the least knowledge of what a bill of lading was, but in my opinion such a person must bear the consequences of his own exceptional ignorance, it being plainly impossible that business could be carried on if every person who delivers a bill of lading had to stop to explain what a bill of lading was.

Now the question we have to consider is whether the railway company were entitled to assume that a person depositing luggage and receiving a ticket in such a way that he could see that some writing was printed on it, would understand that the writing contained the conditions of contract, and this seems to me to depend upon whether people in general would in fact, and naturally draw that inference. The railway company, as it seems to me, must be entitled to make some assumption respecting the person who deposits luggage with them: I think they are entitled to assume that he can read, and that he understands the English language, and that he pays such attention, to what he is about as may be reasonably expected from a person in such a transaction as that of depositing luggage in a cloak-room The railway company must, however, take mankind as they find them, and if what they do is sufficient to inform people in general that the ticket contains conditions. I think that a particular plaintiff ought not to be in a better position than other persons on account of his exceptional ignorance or stupidity or carelessness.'

In Thompson v. London. Midland and Scottish Rly Co., 1930-1 KB 41 the plaintiff, who could not read had an excursion ticket taken for her by her niece on the face of which were printed the words: 'Excursion. For conditions see back'; and on the back was a notice that the ticket was issued subject to the renditions in the defendant company's time tables and excursion bills On the excursion bills excursion tickets were stated to be issued subject to the conditions shown in the company's current time tables. The time tables, which could be obtained for six pence each, stated: 'Excursion tickets are issued subject to the general regulations and to the condition that the holders shall have no rights of action against the company in respect of injury however caused'.

A special jury found that an accident to the plaintiff on the journey covered by the excursion ticket was due to negligence on the part of the defendant company. To prevent the case going back for a new trial, the jury were asked whether the defendant company took reasonable steps to bring the conditions to the notice of the plaintiff and answered 'No,' and awarded damages. Arguments were then allowed whether the jury could so find, and it was held that as a matter of law when the ticket was accepted the contract was complete, and therefore there was no evidence on which the jury could find as they did. It was further held that the fact that the plaintiff could not read did not alter the legal position; that she was bound by the special contract made on the excursion ticket on the acceptance of the ticket; and that the indication of the special conditions by reference to the time tables was sufficient notice of their existence and contents. Lord Hanworth M.R. observed--

'It appears to me that the right way of considering such notices is put by Swift J. in Nunan v. Southern Rly. Co. (1923) 2 KB 703. After referring to a number of cases which have been dealt with in the Courts he says: 'I am of opinion that the proper method of considering such a matter is to proceed upon the assumption that where a contract is made by the delivery, by one of the contracting parties to the other, of a document in a common form stating the terms upon which the person delivering it will enter into the proposed contract, such a form constitutes the offer of the party who tenders it, and if the form is accepted without objection by the person to whom it is tendered this person is as a general rule bound by its contents and his act amounts to an acceptance of the offer to him whether he reads the document or otherwise informs himself of its contents or not and the conditions contained in the document are binding upon him.'

In law it seems to me that that is right.' The following observations made by Pollock C.B. in Stewart v. London and North Western Rly Co., (1864) 33 LJ Ex 199 was referred to by the Master of the Rolls:

'There is a rule in the English law that every man must be taken to know that which he has the means of knowing whether he has availed himself of those means or not. Now, as to this ticket, the plaintiff must be supposed to have read it. If he did not choose to consult the handbill, that is his fault, not the fault of the company. The bills points out the terms upon which these particular and special trains are to run.'

He went on to observe--

'It is quite clear therefore, that it was intended there should be a ticket issued; and on that ticket plainly on its face is a reference made to the conditions under which it is issued. .......................................... Now it appears to me that this point is exactly dealt with in Watkins v. Rymill, (1883) 10 QBD 178 in the judgment delivered by Stephen J., in which he said: 'The only question which can be called a question of fact is, whether giving a man a printed paper plainly expressing the conditions on which a keeper of a repository is willing to accept a carriage for sale on commission is or is not equivalent to asking the owner of the carriage to read that paper, with intent that he should read it when he has a fair opportunity of doing so. This, we think, is a question of law, to be answered in the affirmative.' So here the giving of the ticket in plain terms indicated that there are conditions, and that one of the conditions is that the person shall find them at a certain place and accept them, and that is I think quite a plain indication that the carrier has made that offer upon those terms and conditions only, and that any answer that he had not brought the conditions sufficiently to the notice of the person accepting the offer must be set aside as perverse.'

The case of (1877) 2 CPD 416 in which Mellish L.J. held that in the circumstances of the case the question whether the railway company did was reasonably sufficient to give the plaintiff notice of the condition was one of fact was distinguished on the ground that regard being had to the ordinary course of business it was reasonable to suppose that a man receiving a cloak-room ticket should look upon it as a mere voucher for the receipt of the package deposited and a means identifying him as the owner when he sought to reclaim it. Even in that case Branwell L. J. held that on the facts the question was one of law and judgment ought to be entered for the defendants.

7. In Penton v. Southern Rly. (1931) 2 KB 103 the defendants, a railway company, issued to persons asking for tickets between certain hours of the day between certain stations return day tickets at a reduced rate. On the front of these tickets were the words, legibly and clearly printed in large letters,' 'For conditions see back,' and on the back was printed a condition exonerating the company from liability for injury to the holder of the ticket, however caused. It was held on these facts as a matter of law that the company took all reasonable steps to bring to the notice of the plaintiff the special conditions subject to which the ticket was issued.

8. It will thus be seen that wherever on the face of the ticket words to the effect 'For conditions see the back' are printed the person concerned is as a matter of law held to be bound by the conditions subject to which the ticket is issued whether he takes care to read the conditions if they are printed on the back or to ascertain them if it is stated on the back of the ticket where they are to be found. Where on the other hand the words printed on the face of the ticket do not indicate that the ticket is issued subject to certain conditions as in (1877) 2 CPD 416 but there are merely words to the effect 'See back' then it is a question of fact whether or not the carrier did that which was reasonably sufficient to give notice of the condition to the person concerned If however, conditions are printed on the back of the ticket, but there are no words at all on the face of it to draw the attention of the person concerned to them then it has been held that he is not bound by the conditions. In this connection the decision in Henderson v. Stevenson, (1875) 2 Sc & Div 470 may be referred to.

9. On behalf of the respondent the decision in Fosbroke Hobbes v. Airwork Ltd., 1937-1 KBD 108 was referred to. That case is distinguishable as has been pointed out in the editorial note. There was a prior agreement by correspondence and if this was to be varied by the ticket it was clear that the ticket should have been brought to the notice of the hirer. The ticket was handed over to the hirer by the pilot only when the plane was preparing to leave. In the negotiations which preceded the hiring, no mention of any special condition was - made. Further the ticket was enclosed in an envelope when it was handed over and before the hirer had an opportunity of seeing the contents of the envelope the aeroplane started on its journey.

10. The view taken in the English cases referred to above has been followed in India also by a Division Bench of the Calcutta High Court in Mackillican v The Compagnie Des Messageries Maritimes De France, (1881) ILR 6 Cal 227, In a suit for damages for loss of passenger's luggage by the wreck of a ship belonging to a foreign company, it appeared that the plaintiff had received a ticket in the French language, which on its face stated that it ought to be signed by the passenger, and that it was issued subject to certain conditions on the back. These conditions, among other things, stated that the company would not be responsible for loss or damage arising from accidents or risks of the sea; that the ticket was delivered subject to the conditions that certain articles of a specified nature should be made the subject of a special declaration, in default of which the company would not be liable; that the company would not be answerable for unregistered luggage; and that luggage might be insured at any of the company's offices. It was not stated where registration of lug-Sage might be effected. The ticket was not signed by the plaintiff. The plaintiff alleged that he did not understand the French language, and that the conditions had not been explained to him by any person. It was held that the plaintiff was bound by the clauses and conditions on the back of the passage-ticket. Garth C. J. delivering the judgment of the Court observed--

'Although he may not understand French, he was a man of business contracting with a French company, whose tickets he knew very well were written in the French language. He had ample time and means to get the ticket explained and translated to him before he went on board; and it very plainly disclosed upon the face of it that the conditions endorsed were these upon which the defendants agreed to carry him.'

11. The observations of Bramwell L.J. in (1877) 2 CPD 416 were followed.

12. In the present case on the face of the ticket there was a declaration to the effect that the consignor was fully aware of and accepted the conditions of carriage given on the back side of the consignment receipt. Any prudent, consignor would read the ticket to see that his goods and the transport charges payable were correctly entered in it and in doing so he would read the above declaration or if he did not know English he would have the ticket read by someone else knowing English who could come to know that it was subject to the conditions printed on the back As was held in 1923-2 KB 703 that a man must be taken to know that which he has the means of knowing, whether he has availed himself of those means or not. If he does not he must hear the consequences of his carelessness. The consignor in the present case will be deemed to know of the conditions subject to which the ticket was issued and is bound by them. The consignee is equally bound by these conditions.

13. The contrary view taken by me in earlier decisions that unless the consignor affixes his signatures to the agreement relating to the conditions he is not bound by them is erroneous.

Point No. 2.

14. Under condition No. 12 the transport charges were payable at Udaipur or at any other agreed place. According to the respondent the agreed place was Bhilwara. But the transport charges could be paid even at Udaipur in view of condition No. 12. Udaipur being one of the places where the money due under the contract could be paid the cause of action arose at Udaipur also The suit was therefore triable by the competent civil court at Udaipur also.

Point No. 3.

15. It has been held in a number of decisions that where more courts than one have jurisdiction to try a suit there is nothing contrary to public policy in an agreement between the parties that disputes between them would be tried at one place put of them. In this connection the decision in National Petroleum Co. Ltd. v. Meghraj AIR 1937 Nag 334 may be referred to. As was pointed out in Raghavayya v. Vasudevayya Chetty, AIR 1944 Mad 47 the relevant provision of the Contract Act which is directly applicable to such cases is contained in Section 28. I may also refer to the Full Bench decision of the Lahore High Court in Musaji Lukmanji v. Durga Das, AIR 1946 Lah 57 in which it was held that an agreement between two parties that suits relating to disputes arising between them would be instituted only in one out of several competent courts having territorial jurisdiction is not hit by Section 28. In Dwarka Rubber Works v. Chhotelal, AIR 1956 Madh B 120 it was held that such a contract is hit by Section 23 of the Contract Act. With all respect I am of the opinion that the case was not correctly decided.

16. I accordingly hold that the presentsuit is triable only by the competent civilcourt at Udaipur and is not triable by theJudge, Small Cause Court, Bhilwara. Itherefore allow the revision application anddirect that the plaint shall be returned forpresentation to proper court. In the circumstances of the case, I leave the parties tobear their own costs of it.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //