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i.S.P. Trading Co. Vs. Union of India (Uoi) - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberSuit No. 1642 of 1967
Judge
Reported inAIR1973Cal74
ActsRailways Act, 1890 - Sections 80 and 139; ;Code of Civil Procedure (CPC) , 1908 - Sections 20 and 80; ;Evidence Act, 1872 - Sections 3 and 4; ;Limitation Act, 1963 - Section 15(2)
Appellanti.S.P. Trading Co.
RespondentUnion of India (Uoi)
Appellant AdvocateBhabra, Adv.
Respondent AdvocateN.C. Roy Chowdhury, Adv.
Cases ReferredAlliance Assurance Co. Ltd. v. Union of India
Excerpt:
- .....pipes c class measuring 3870 feet for carrying them to shalimar on the south eastern railway. the railway receipt bearing no. 822386 was issued on the 21st april, 1964 in which m. j. patel and company were shown both as the consignor and the consignee.3. on the 2nd may, 1964 the union bank of india limited, clive road, calcutta as an agent of m. j. patel and company endorsed the railway receipt to the plain-tiff for valuable consideration.4. according to the plaintiff, the goods ought to have arrived at shalimar between 12th may, 1964 and the 19th may, 1964. the plaintiff duly presented the rail-way receipt to the railway administration at shalimar but failed to obtain delivery of the goods. it is in these circumstances, that the claim for rs. 10,855.35 p. is made being the invoice.....
Judgment:

T.K. Basu, J.

1. The facts of this case lie within a narrow compass.

2. According to the plaintiff on or about the 21st April, 1964 one M. J. Patel and Company of 177, Nagdevi Street, Bombay-3 delivered to the Central Railway at Wadi Bandar (Bombay) 200 pieces of Seamless 1/2' M. S. Pipes C Class measuring 3870 feet for carrying them to Shalimar on the South Eastern Railway. The Railway Receipt bearing No. 822386 was issued on the 21st April, 1964 in which M. J. Patel and Company were shown both as the consignor and the consignee.

3. On the 2nd May, 1964 the Union Bank of India Limited, Clive Road, Calcutta as an agent of M. J. Patel and Company endorsed the Railway Receipt to the plain-tiff for valuable consideration.

4. According to the plaintiff, the goods ought to have arrived at Shalimar between 12th May, 1964 and the 19th May, 1964. The plaintiff duly presented the Rail-Way Receipt to the Railway Administration at Shalimar but failed to obtain delivery of the goods. It is in these circumstances, that the claim for Rs. 10,855.35 p. is made being the invoice value of these goods.

5. It is further stated in the plaint that on the 4th December, 1964 the South Eastern Railway offered the plaintiff some steel pipes which upon inspection was found not to be the goods covered by the aforesaid Railway Receipt. In the circumstances the plaintiff did not take delivery of the goods.

6. In the written statements filed on behalf of the Railway Administration the consignment of the goods booked under the Railway Receipt is not denied. The defendant, however, does not admit the specification, quality, quantity or ownership of the goods. The defendant also does not admit the endorsement in favour of the plaintiff. According to the defendant the consignment Under the Railway Receipt was duly tendered to the plaintiff but the plaintiff wrongfully refused to accept delivery. It is further alleged that this Court has no jurisdiction to try this suit and that the claim of the plaintiff is barred by limitation. The following issues were framed at the trial :

'1. Did M. J. Patel and Company deliver to the Central Railways at Wadi Bandar Bombay 200 pieces of 1/2' M. S. Pipes Seamless 'C' Class measuring 3870 feet for carrying the same to Shalimar?

2. Did the Union Bank of India Ltd. as agent of M. J. Patel and Co. endorse the Railway Receipt No. 822386 dated the 21st April, 1964, for valuable consideration in favour of the plaintiff, in Calcutta, within the jurisdiction of this Court?

3. Were the goods offered for delivery by South Eastern Railway to the plaintiff covered by the aforesaid Railway Receipt?

4. Is the suit barred by limitation?

5. Has this Court jurisdiction to entertain and try this suit?

6. To what relief or reliefs, if any, is the plaintiff entitled?'

7. With regard to the first issue the main argument of Mr. N. C. Roychowdhury on behalf of the defendant centred round the absence of the mention of any detailed specification in the Railway Receipt with regard to the goods carried. The Railway Receipt Ext 'B' merely describes the goods as 20 bundles black steel pipes. It does not mention any other description. On this the argument was sought to be founded that the goods which are the subject-matter of the Railway Receipt were not the goods which have been mentioned in paragraph 1 of the plaint. Strong comment was also made on the fact that although the Railway Receipt bears the date 21st April, 1964 the challan which was issued by Quiser Business Company out of whose godown these goods, according to the plaintiff, came, mentions the date 22nd April, 1964. It is also submitted on behalf of the defendant that no one has been called on behalf of Quiser Business Company who could have explained as to what were the goods which were brought out of its godown. It was said that if the goods came out on the 22nd April, 1964 as appears from the challan they could not possibly have been consigned to the Railways on the 21st April, 1964.

8. As against this contention on behalf of the defendants the evidence adduced on behalf of the plaintiff may be examined. Two witnesses were examined on behalf of the plaintiff viz. K. H. Thakkar and Manubhai Jani. Thakkar is the manager of the firm of M. I. Patel and Co. which is a big concern selling pipes of various descriptions. The evidence of Thakkar and Jani substantially corroborate each other. According to this evidence in the 3rd week of April, 1964 when Jani was at Bombay in connection with his betrothal ceremony he went to the office of M. J. Patel and Co. There he entered into an agreement with Kanno Patel, a partner of Messrs. M. J. Patel and Co. to buy 200 pieces of mild steel seamless pipes 1/2' diameter 'C' Class at the rate of 2.75 per feet. Thereafter both Jani and Thakkar Went to inspect the goods at Girgaon in the godown of Quiser Business Company from whom M. J. Patel and Co. had agreed to buy these goods. According to Jani he personally checked the measurements. Jani wanted the goods to be despatched on the same day, i.e., 21st April, 1964. Thereafter the pipes were brought from the racks in the presence of Jani and Thakkar and were tied in 20 bundles each containing ten pieces and were sent out to Wadi Bunder by coolies on handcart.

9. Thereafter both Jani and Thakkar went by taxi to Wadi Bunder and Thakkar instructed his agent to despatch the goods. The goods were unloaded, the necessary formalities complied with, and the Railway Receipt was prepared. Both Jani and Thakkar were near about when these things happened.

10. Thereafter both the evidence of Jani and Thakkar is that the description of the goods despatched under the Railway Receipt Ext. B are correctly set out in the challan, Ext. A.

11. Messrs. M. J. Patel and Company gave to the Union Bank of India several documents viz., the invoice Ext. C. Bill of Exchange Ext. D and the Railway Receipt Ext. B was endorsed as Ext. B (I) for presentation to the plaintiff in Calcutta. The plaintiff duly honoured the documents against payment whereupon the Railway Receipt was endorsed by the Union Bank of India in favour of the plaintiff.

12. In this state of the oral and documentary evidence the conclusion seems to be inescapable that Messrs. M. J. Patel and Company delivered to the Central Railway at Wadi Bunder, (Bombay) 200 pieces of 1/2' M. S. Pipes Seamless 'C' Class measuring 3870 feet for carrying the same to Shalimar. The only criticism advanced by learned counsel for the Railways, as I have already said, is that the Railway Receipt docs not mention the description or specification of the pipes. But it is obvious that no businessman would pay money to the Bank for a Railway Receipt which is also accompanied by an invoice unless the goods mentioned in the invoice were the same as the goods mentioned in the Railway Receipt. In that light, the argument that the goods were not identical seems to be unacceptable to me. Issue No. 1 is, therefore, answered in the affirmative.

13. Issue No. 2 relates to the question whether the Union Bank of India as agent of Messrs. M. J. Patel and Company endorsed and delivered the Railway Receipt for valuable consideration in favour of the plaintiff at Calcutta within the jurisdiction of this Court. Issue No. 5 relates to the question whether this Court has jurisdiction to try this suit. These two issues may be conveniently taken together.

14. The evidence adduced on behalf of plaintiff on those two issues may be summarised as follows:

It was agreed between Jani and M. J. Patel and Co. that the documents would be handed over to the plaintiff in Calcutta against payment. This is because Jani did not have the money with him in Bombay. The invoice, Railway Receipt and the Bill of Exchange were delivered by M. J. Patel and Company to the Union Bank of India for presentation to the plaintiff at Calcutta. The plaintiff on the 2nd May, 1964 gave a cheque for Rs. 10,864.05 p. to the Union Bank of India, at 5 Clive Row, Calcutta. The payment of the cheque to the Union Bank of India is corroborated both by the production of the cheque and entries in the books of account. It is on evidence that the Railway Receipt was endorsed by the Union Bank of India at 5, Clive Row, Calcutta. In that state of the evidence the factum of endorsement of the Railway Receipt by the Bank to the plaintiff at Calcutta within the jurisdiction of this Court could not be seriously disputed and was not so disputed by Mr. N. C. Roy Chowdhury appearing for the Union of India.

15. A contention was sought to be advanced on the legal aspect as to whether an endorsee of Railway Receipt could have a cause of action against the Railways for loss or non-delivery of the goods. Certain authorities were cited in this connection which may be noticed now.

16. Mr. Roy Chowdhury strongly relied on a decision of a Division Bench of this Court in the case of Commrs. for the Port of Calcutta v. General Trading Corpn. Ltd., : AIR1964Cal290 . In that case it was, inter alia, held that an endorsee of a Railway Receipt cannot sue the Railways on the contract contained in the Railway Receipt merely because the property or an interest in the goods has been transferred to him. He only has such right of suit as would belong to a person having a proprietary interest in the goods -- that is to say, he can sue in his own name only for conversion or negligence. Hence, it was contended that the present suit by the plaintiff as an endorsee of the Railway Receipt for the non-delivery of the goods was not maintainable. It was pointed out that there was no pleading of any conversion or negligence by the railways.

17. Mr. Bhabra on the other hand sought to point out with reference to para-graphs 26 and 27 of the Report that in that case before the Division Bench the plaintiff was merely the clearing agent of the consignor. It was admitted that the plaintiffs were not owners of any of the consignments. In this context, the observations as to the rights of an endorsee were merely obiter. In the present case it was pointed out that the plaintiff upon the negotiation of the documents of title for valuable consideration had become the owner of the goods and as such the plaintiff was entitled to maintain this action.

18. In my view, this contention of Mr. Bhabra is sound. It seems to me clear that upon the transfer of the Railway Receipt and other documents to the plaintiff by the Bank for valuable consideration the plaintiff acquired the rights of ownership over the goods. Consequently, I hold that the decision of this Court in : AIR1964Cal290 is distinguishable from the facts of the present case. The present suit is maintainable.

19. In the view that I have taken it is not necessary to discuss in detail another decision of a Single Bench of this Court in the case of Alliance Assurance Co. Ltd. v. Union of India : AIR1959Cal563 . In that case it was held by P. B. Mukharji, J. (as he then was) that in a suit against the Union of India for short delivery by the assignee of the right, title and interest of the consignor in the goods despatched by railway where, by the assignment, the railway receipt or the claims thereunder are transferred to the assignee the assignment is a part of the cause of action and the Court, within whose jurisdiction the assignment took place, is competent to entertain and try the suit.

20. It is also not necessary to deal with another decision of the Division Bench of this Court in the case of Bhabani Prasanna Lahiri, v. Rai Radhhica Bhusan Roy Bahadur reported in (1936) 40 Cal WN 1349 in which it was held that a promissory note, the making of an endorsement which effects the assignment, is not only a part of the cause of action but is the most essential part thereof.

21. It was submitted by Mr. Roy Chowdhury that this case is only confined to a negotiable instrument and does not apply to a Railway Receipt.

22. As I have already found the endorsement of Railway Receipt by the Bank in favour of the plaintiff was at 5, Clive Row, Calcutta within the jurisdiction of this Court. Reference may be made in this connection to another portion of the Division Bench Judgment in the case of : AIR1964Cal290 already noticed above. At paragraph 116 of the Report at p. 322 it has, inter alia, been held as follows:

'A negotiation of the railway receipt for value is normally intended to pass the property in the goods and part of the cause of action of the holder of the railway receipt arises at the place where the document is negotiated.'

23. This is a clear authority for the proposition that the negotiation of the Railway Receipt is part of the cause of action.

24. For the reasons given above I hold that both issues Nos. 2 and 5 should be answered in the affirmative.

25. Issue No. 3 deals with the question whether the goods which were offered by South-eastern Railway to the plaintiff for delivery were the goods which are covered by Railway Receipt Ext. B.

26. On this issue, the following facts emerge from the evidence. It appears that on April 21, 1964, 20 bundles of black steel pipes were loaded in wagon No. 50769 and this wagon was destined to go to Ajni. On the 16th May, 1964 the Wagon No. 50769 carrying the consignment covered by Ext. B appears to have reached Ajni where the goods were unloaded. On the 17th May, 1964, the goods were transhipped into Wagon No. 64769. Thereafter, it appears that on some date the Wagon No. 64769 on which the goods including those covered by Ext. B were transhipped was declared sick. Thereafter sometime towards the end of the June, 1964 these goods were transhipped from Wagon No, 64769 into Wagon No. 13490 by steam crane. There is some difference as to the date of this transhipment. According to Exts. 3 and 7 the date is 23rd June, 1964 whereas according to Ext. 2 it is 26th June, 1964. Biswas who gave evidence on behalf of the Railways on this point could not explain the discrepancy. Neither could Iyer -- another witness on behalf of the Railways.

27. Thereafter on the 6th July, 1964 Wagon No. 13490 was received at Banda Munda but without any seal card or any summary entry. The packages were, according to the evidence of Biswas, in a loose state and the marks were illegible. The goods were detained at Banda Munda for particulars.

28. Thereafter sometime between July and September, 1964 the summary entry with regard to the contents of Wagon No. 13490 Was received from the Assistant Traffic Officer Transit Garden Reach, Calcutta at Banda Munda. It is on evidence that between July and September, 1964 the goods which were alleged to have been carried by Wagon No. 13490 were kept in a railway shed in a heap. There were also other goods kept at the saina shed. No inventory or any list of any kind appears to have been made with regard to those goods which were unloaded from Wagon No. 13490.

29. After the receipt of the summary entry sometime towards the end of September, 1964, the goods which were unloaded from Wagon No. 13490 were loaded into Wagon No. 32754 and the wagon left Bunda Munda on the 23rd September, 1964.

30. On the 7th October, 1964, Wagon No. 32754 appears to have been unloaded at Shalimar and the document recording the unloading of these goods is Ext. 10. It is to be noted that in Ext. 10 there is no mention of the number of the Railway 'Receipt. Ext. B. Mr. Roy Choudhury sought to argue that the 120 pieces of pipes which is mentioned in Ext. 10 were the goods which are covered by Ext. B. In my view, it is impossible to identify any of the goods mentioned in Ext. 10 with the goods which were the subject-matter of Ext. B. In the first place the evidence of the plaintiff had been that the 20 bundles which arc mentioned in Ext. B contained 200 pieces. I have already found that they were despatched from Wadi Bunder, Bombay. It is inconceivable how the 200 pieces which were despatched from Bombay became reduced to 120 pieces when they arrived at Shalimar. According to Ext. 10 the weight of the 120 pieces is 50 quintals whereas according to Ext. B the 200 pieces which are despatched weighed 17.40 quintals. Further the total weight of the goods which were unloaded, according to Ext. 10, is 134.20 --quintals whereas the total weight of the goods which were loaded in Wagon No. 32754 at Bunda Munda, according to Ext. 4, is only 69.70 quintals. In these circumstances, even assuming that the goods which are covered by Ext. B were loaded at Bunda Munda in Wagon No. 32754, it is impossible to come to the conclusion that they were unloaded at Shalimar, having regard to the contents of Ext. 10.

31. I must point out at this stage that most of the documents produced by the Railways in this case including Ext. 10 have been sought to be proved by the production of the certified copies of original records. There is the formal evidence that they have been properly certified. No one has, however, come to give evidence on behalf of Railways about the correctness of the contents of most of these documents.

32. Section 139 of the Railways Act, 1890 undoubtedly authorises the Railway authorities to tender Certified Copies of their records in evidence. That Section, however, nowhere provides that the contents of such Certified Copies would be presumed by the Court to be correct unless there is evidence to the contrary. The difference between the language of Section 139 of the Railways Act, 1890 and Sections 3 and 4 of the Commercial Documents Evidence Act is significant in this connection. I do not, however, propose to probe this question in depth any further or come to any decision on this point. This is because I have already held that even assuming that the contents of the documents produced by the Railways by means of Certified Copies of the original entries to be correct, the Railways have failed to establish that what they had received for despatch from Bombay in terms of Ext. B have been carried to and unloaded at Shalimar in terms of Ext. 10. It was not disputed that the onus is entirely on the Railways to establish this as it is a matter within their special knowledge.

33. It appears that the Railways wrote to the plaintiff offering certain pipes alleged to be subject-mailer of Ext. B. The plaintiff on inspection rejected these goods on the ground that they were not the subject-matter of Ext. B and were not the plaintiffs goods. According to the letter of the Railways dated 30th November, 1964, at page 10 of Ext. I it has been stated that 'enquiry reveals' that the pipes which were the subject-matter of Ext. B were lying undelivered at Shalimar. To the same effect is another letter of the Chief Commercial Superintendent dated 19th January, 1965 at page 11 of Ext. I which also speaks of 'enquiry' and calls upon the plaintiff to take delivery of the pipes.

34. No one has come before me to prove the correctness of the contents of these letters. There is no evidence as to who made those enquiries or as to whether any records were kept of those enquiries. The defendant was entirely unable to produce any records before me to show if any contemporaneous survey was made with regard to the goods which are alleged to have been offered for delivery to the plaintiff. According to the plaintiff's letter dated 1st March, 1966 at page 19 of Ext. V and the goods which were offered for delivery to the plaintiff were explained to an Inspector of the Railways Shri S. N. Mukherji. There is no evidence before me as to what transpired in course of this discussion. The only evidence I have is that S. N. Mukherji is dead. Be that as it may, there is no satisfactory evidence before me to establish as to the number or specification of the pipes which were alleged to have been offered to the plaintiff for delivery in discharge of the liability of the Railways to deliver the goods covered by Ext. B. In these circumstances, Issue No. 3 must be answered in the negative and in favour of the plaintiff.

35. The only other Issue No. 4 relates to the question as to whether the suit is barred by limitation. It is to be noted that after the amendment of the plaint the goods ought to have arrived at Shalimar on or about between the 12th May, 1964 and the 19th May, 1964. According to the evidence adduced by the railways the goods did not arrive before the 7th October, 1964. Obviously they could not have been delivered before that date. Even assuming that the plaintiff is made to stick to his pleadings, then the goods ought to have been delivered on the 19th May, 1964. The present suit was filed on the 19th July, 1967. There is no dispute that the period of limitation under the Limitation Act, 1963 is three years. Since a notice under Section 80 of the Code of Civil Procedure was necessary the plaintiff is entitled to add that period to the period of limitation. In that state of affairs, it must be held that the suit is not barred by limitation. Issue No. 4 must therefore be answered in the negative.

36. In the result, there will be a decree in favour of the plaintiff for the sum of Rs. 10,855.35 P. There will be interest on judgment on that sum at the rate of 6 per cent per annum. The plaintiff is entitled to the costs of this suit. The decretal amount is to be paid by the Union of India within three months from date.


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