1. The respondent in this second appeal sued to recover from the appellants a sum of Rs. 995-4-8, alleged to be due on account of dealings which appellants had with him from 4-2-19S3 to 5-7-1954. As per the accounts of the respondent Rs. 582-6-6 was stated to be due by way of principal and Rs. 410-14-2 as interest. The suit filed by the respondent was O. S. No. 13 of 1955 on the file of the District Munsiff's Court, Salem. The plaintiff is a firm of registered partnership carrying on business in handloom cloth in Salem town. Defendants 1 and 2 were also running a business in textiles and handloom cloth under, the name and style of Mysore L. G. Lakshmanier and Varadier in Salem Town.
It appears that the defendants had also a branch of their business at Mysore; Pending the suit the second defendant died and defendants 4 to 8 were impleaded as his legal representatives. It is now common ground that a consignment of goods consisting of sarees of different varieties was made by the plaintiff at Salem booking the goods in the railway to be received by the defendants at Mysore. The plaintiff sent 149 pieces or items as disclosed by the invoice dated 30-9-1953. On arrival of the goods at the destination, the defendants found that the parcel was in tampered state and therefore applied for 'open delivery'.
In the 'open delivery' so given, 70 pieces or items were found missing and a note to that effect was made in Ex, B-7, original bill dated 30-9-1953. The dispute between the parties is as to who should be responsible for the value of these missing pieces.
2. The learned District Munsif of Salem who tried the suit held that on the evidence on record the plaintiff was liable for the loss as the property in the goods consigned remained with him and did not pass to the defendants. In this view he granted a decree for a sum of Rs. 9-6-6 as balance of principal and interest due.
3. There was an appeal by the plaintiff before the learned District Judge of Salem in A. S. No. 224 of 1957. The learned District Judge differed from the view taken by the trial Court and held that the property in the goods passed to the defendants on consignment and delivery to the common carrier, namely, the railway, and that therefore, the defendants alone should be made liable for the loss. Accordingly the decision of the trial Court was set aside and the plaintiff was granted a decree for an additional sum of Rs. 573 and costs. This second appeal has been preferred by the aggrieved defendants. The contention urged on their behalf is that the decision of the trial Court was right and that the decree of the trial Court should be restored.
4. The short point for consideration is whether on the facts proved or admitted the property in the goods in respect of which the plaintiff made the consignment passed to the defendant by delivery to the carrier. The railway receipt was admittedly taken in the name of the consignor. This mode of booking is familiarly known as 'self booking'. By itself such booking connotes the idea that the consignor intends to retain and does retain the property in himself. In such cases delivery to the carrier will not have the effect of passing property in the goods to the consignee. But in this case it is common ground that, after taking the railway receipt in his own name, the plaintiff endorsed it in favour of the defendants and forwarded the railway receipt to the defendants, who therefore were in a position to take delivery of the goods at the destination station without any further formality.
5. The decision relied upon by the trial court in Shamji Bhanji and Co v. North Western Railway Co : AIR1947Bom169 was rightly distinguished by the learned appellate Judge and I am of opinion that on the facts of the present Case that decision cannot apply. Section 18 of the Sale of Goods Act provides that where there is a contract for the sale of unascertained goods, no property in the goods is transferred to the buyer unless and until the goods are ascertained. Section 19 of the Act provides that, where there is a contract for the sale of specific or ascertained goods, the property in them is transferred to the buyer at such time as the parties to the contract intend it to be transferred. The learned District Judge has pointed out that, treating this contract as being one in respect of unascertained goods, the goods have been sufficiently ascertained and (unconditionally appropriated to the contract by the very act of consignment and delivery to the carrier. Learned counsel for the appellants relied upon Section 39 Clause (2) of the Act. Section 39(1) reads as follows ; 'Where, in pursuance of a contract of sale, the seller is authorised or required to send the goods to the buyer, delivery of the goods to a carrier, whether named by the buyer or not, for the purpose of transmission to the buyer, or delivery of the goods to a wharfinger for safe custody, is prima facie deemed to be a delivery of the goods to the buyer.'
Clause (2) is as follows :
'Unless otherwise authorised by the buyer, the seller shall make such contract with the carrier or wharfinger on behalf of the buyer as may be reasonable having regard to the nature of the goods and the other circumstances of the case. If the seller omits so to do, and tile goods are lost or damaged in course of transit or whilst in the custody of the wharfinger, the buyer may decline to treat the delivery to the carrier or wharfinger as a delivery to himself, or may hold the seller responsible in damages.'
I am clearly of opinion that Sub-clause (2) cannot apply in the present case. There was nothing in the nature of the goods or the other circumstances in the case to invoke the applicability of that clause. Therefore Section 39(1) will have full operation, which means that delivery of the goods to the carrier for the purpose of transmission to the buyer is really delivery of the goods to the buyer. The fact that the railway receipt contained a clause that the consignment was at the owner's risk is really equivocal. The question for consideration in this case is, who is the owner.
6. In this connection reference may be made to the decision of Wadsworth, J., in Siddique and Co. v. Mysore Textile Agencies, 1947 MWN 194 :AIR 1947 Mad 455. This decision has been referred to by the learned District Judge himself. It is pointed out in that case that where the consignment is booked in the name of the consignor himself, it would be necessary to endorse the railway receipt and deliver it to the buyer in order to complete the transaction. This has certainly been done in this case. I am of opinion that the learned District Judge came to the correct conclusion on the facts of this case that property in the goods passed to the defendants the moment the goods were entrusted to the carrier and the railway receipt was endorsed in favour of the defendants and forwarded to them.
7. The second appeal fails and is dismissed, but in the circumstances without costs.