T. Ramaprasada Rao, C.J.
1. In these four appeals, a common question arises. The appellant is the Food Corporation of India, Madras, represented by its Chairman.
2. As an illustration, the facts in S.A. No, 1682 of 1976 arising from O.S. No. 1115 of 1968 on the file of the II Additional District Munsif, Salem could be taken up for consideration.
3. The Assistant Director (Food Clearance) Madras Harbour of the Food Corporation of India admits that he has despatched 600 bags of wheat against the allotment made to the respondent under Invoice No. 4 10 in Railway Receipt No. 144,070 dated 7th May, 1965 to the Salem Junction and the Railway receipt was endorsed over to the respondent to enable them to take delivery of the same. The respondent when they took delivery of the consignment at Salem admittedly found 40 bags to be missing and in order to sustain their case, the respondent obtained what is known as partial delivery certificate marked as Exhibit A.8 in this case to prove such short delivery. The agreement between the appellant and the respondent was that the respondent should mill the wheat delivered over to them by the appellant and convert it into Maida, Sooji, Atta, Bran etc. The contract is evidenced in writing and marked as Exhibit B-l. After the respondent acted in accordance with the contract and converted the wheat contained in the 560 bags as per the understanding, they presented a bill for and towards the charges of conversion. It appears that the Food Corporation deducted the value of 40 bags which were admittedly short delivered to the respondent and consequent upon such deduction, the plaintiff-respondent being aggrieved called upon the Food Corporation of India to pay the value of such goods which were withheld from the conversion charges by the Food Corporation of India.
4. This was resisted on the ground that the Food Corporation is not liable to make good such loss and once the goods are entrusted to the Railways at Madras by them their responsibility ceased and that, therefore, they were not liable to refund the amount deducted from the bills submitted by the respondent as converters of wheat. Even though the respondent notified to the Food Corporation of India about such short delivery, it is common ground that the appellant-Food Corporation did not pursue the matter with the Railways.
5. When the suit was filed as against the Food Corporation and Ors. a written statement as filed by the Food Corporation discloses that they are not responsible for the loss in transit and that the plaintiff should bear all transit loss and, therefore, the suit had to be dismissed. Both the District Munsif and the District Judge held against the Food Corporation of India. Hence the second appeals.
6. What is contended before me is that once the appellant entrusted the goods for transit to Salem, whatever happened in the onward journey is the responsibility of the respondent-miller and that they have nothing to do if there was a short-delivery of such consigned goods to the Mills by the Railways who were the carriers in this case. Reliance is placed up on a clause in the contract Exhibit B. 1 which reads follows:. The Corporation shall be entitled to realise its claim from any moneys due to the Mills under this or any other agreement with the Corporation with out prejudice to its right to recover from the Mills the said claims in any other manner that may be available or open to the Corporation. This is without prejudice to any other provisions of the agreement.
This omnibus clause is pressed into service before me to sustain the deduction made by the Food Corporation of India I am unable to agree. One accepted feature in our jurisprudence is that law is applicable equally whether it is in connection with a litigation in which a State is concerned or a poor citizen is involved. Unless a claim is justiciable and could be demanded and sustained in a manner known to law, a party like the Food Corporation and even the State for the matter of that cannot as a matter of course or axiomatically depend upon a clause like the one quoted and maintain that they are entitled to deduct any amount due and lawfully payable by them to any other citizen. This is sufficient to answer the defence of the Food Corporation of India. When they loaded the bags at Madras, they loaded them as their property and the goods travelled as their goods until they reached Salem and until they were delivered in a manner usually known in commercial practice to the person to whom the goods were intended to be delivered. All the station of destination, the respondent found that even though they were informed that 600 bags of wheat were coming under Invoice No. 10 in Railway Receipt No 144070 dated 7th May, 1965, 40 out of such bags were missing. They took the precaution of obtaining open delivery and concurrently a partial delivery certificate marked as Exhibit A-8 confirming there was such short-delivery. They also informed the Food Corporation under Exhibit A-6 of such short delivery. In these circumstances, it is idle for the Food Corporation to contend that the respondent-Mills who were their contractors enjoined to do a particular job for them are liable for the loss in transit. This is the unkindest hurt which could be thought of by a public organisation. As I said already, the goods travelled as the goods of the Food Corporation of India and until they reached the hands of the Millers, it is their goods. It is their responsibility therefore, to have tackled the Railways who were admittedly their carriers, and therefore, their agents and querried them as to how the loss occurred. It is not for the plaintiff-respondent to take action against the Railways because there was no consensus between the respondent and the Railways and there was no privity of contract either as between them. Rightly, the District Munsif dismissed the suit as against the Railways against whom also the plaintiff sought for relief. Notwithstanding the fact that the plaintiff openly and honestly came forward with a suit as against the Food Corporation, the Railways and the Port Trust, the Food Corporation did not take any steps, so as to claim for contribution from the co-defendant, which is available under the Civil Procedure Code. This again is surprising. But anyway, that is not the subject-matter before me. The point is whether the Food Corporation is entitled to deduct amounts which are totally unconnected with any responsibility on the part of the respondent and say that they are entitled to do it because under the contract Exhibit B. 1 they could recover any moneys under any circumstances from moneys due by them lawfully to the miller-contractor. I have already characterised this as an extreme contention which is totally not becoming of Live a public institution. Anyway, such a defence is not open to them in law. They are bound to refund the amount withheld by them under the circumstances stated above. The suit has been rightly decreed. There is no point of law arising in these second appeals. It is conceded that the facts are similar in the other three cases. They are, therefore, not traversed. The decrees and judgments of the courts below are affirmed and the second appeals are dismissed. With great reluctance, however, no costs are awarded as even such costs are bound to come from the public exchequer in which a private citizen is very much concerned.