Pratibha Bonnerjea, J.
1. This is a suit by the plaintiff against the defendant for loss of goods due to misdelivery and/or nondelivery of the same by the Eastern Railway. It is alleged in the plaint that the goods were loaded at Dutta Pukur to be delivered to the consignee, Sub-Divisional Officer (P.W.D.), Mal Construction Sub-Division, under RR No. A 116018 dated 28-6-64. The claim in the suit is for decree for Rs. 14428.80 and for other reliefs. In the written statement filed in the suit, the defendant, while denying the allegations in the plaint, took a preliminary point in paragraph 15 thereof that in view of the provisions in amended Section 80 of the Indian Railways Act 1890, this Court should not and could not entertain the suit inasmuch as the goods were delivered at a place and its destination were both outside the jurisdiction of this court.
2. When the suit was called on for hearing, it was submitted that the question of jurisdiction should be decided first as a preliminary issue.
3. The allegation in the plaint is that the head office of the Eastern Railway Administration is situate at No. 17 Netaji Subhas Road, and as such the defendant carries on business within the jurisdiction of this court. These allegations are not denied in the written statement. Reading the plaint as a whole, it appears clearly, that the jurisdiction of this court has been invoked on the basis of the defendants' carrying on business within the jurisdiction and not on the basis of cause of action in the suit. The defendants' counsel, however, took the preliminary point that after amendment of Section 80 of Indian Railways Act by Indian Railways (Amendment) Act of 1961, the suit for compensation of this nature could be filed only where cause of action arose as provided in the amended Section 80. According to him the present Section 30 overrules by implication Section 20 of Code of Civil Procedure and Clause 12 of the Letters Patent. He strongly relied on Section 4(1) Civil Procedure Code and Clause 44 of the Letters Patent in support of his contention that Indian Railways Act, 1890 being a special and local law in force, the same would prevail over the provisions of Section 20. Civil Procedure Code or Clause 12 of the Letters Patent. In this connection, he also relied on 74 Cal LJ 416: (AIR 1942 Cal 229) (Sitaram Bhattacharjee v. Pancha Muchi). There the question was whether a Civil Court had jurisdiction to decide about the existence of a 'debt' between two parties to a Civil Suit when this dispute between the parties was pending for decision before the Debt Settlement Board, who, under the amended Section 20, Bengal Agricultural Debtors' Act, had exclusive jurisdiction to decide that matter. On a reference under Order 46, Rule 1, Civil Procedure Code, it was decided that Civil Court should not exercise concurrent jurisdiction in a matter which had been relegated to the Debt Settlement Board. The defendant's counsel also relied on a Division Bench decision of this Court in Jagannath Chetram v. Union of India delivered on 19-4-79. There the plaintiff had delivered goods to Western Railway Administration at Surat to be delivered to the consignee at Shalimar through South Eastern Railway Administration. The suit was instituted in this court because the Eastern Railway Administration has its head quarter within jurisdiction although Eastern Railway Administration had nothing to do with the transaction. It was held, that, in a suit for compensation, the liability would be of that particular Railway Administration who had taken delivery of the goods for carrying the same to the destination or the Railway Administration where the destination is situate. Therefore, the Union of India could be sued in Courts within whose jurisdiction the head quarters of these two Railway Administrations are situate. For the purpose of fixing liability for loss or damage of goods, the different Railway Administrations are treated as distinct units and the Union of India can be sued where the head quarters of that particular units liable for the loss or damage is situate. As Eastern Railway had nothing to do with the transaction in suit, it was held that this court was not competent to entertain the suit. This judgment, therefore, proceeded on the basis that a suit for compensation for loss of goods against Railway can be instituted in a Court on the basis of defendants' carrying on business within the jurisdiction and not on the basis of cause of action only as urged by the counsel for the defendant.
4. In this judgment, the learned Division Bench also considered whether in view of the provisions of amended Section 80 of the Railways Act and Section 4(1), Civil Procedure Code, Section 20 of the Code of Civil Procedure should apply in determining the forum for filing a suit for compensation for loss of goods by railway. In the opinion of this Division Bench any provision in Section 20, Civil Procedure Code which would limit or otherwise affect the special jurisdiction provided by Section 80, should have no application for determining the forum. In that connection, relying on 1974 Cal LJ 420 the Division Bench held that Section 80 would overrule by implication Section 20(c) of Civil Procedure Code only and not the rest. This judgment does not support the contention of the defendants' counsel that on account of amendment of Section 80 Railways Act, all suits for compensation must be filed on the basis of the cause of action and in Courts within whose jurisdiction the cause of action in suit has arisen.
5. The submission of the plaintiff's counsel is on the other hand, that the amended Section 80 only deals with the Court's jurisdiction based on the cause of action but it did not affect or take away Court's jurisdiction to entertain a suit filed on the basis of defendant's residence or his place of business. He cited ILR (1972) 2 Cal 154 at pp.189-190 where this Court held:
'.....jurisdiction based on the cause ofaction and the jurisdiction based on the person of the defendant are two independent categories and they have no relation to each other.'
6. The plaintiff's counsel also relied on AIR 1971 Assam 69 (Assam Cold Storage Co. v. The Union of India). There the very same question of jurisdiction was raised in a suit for compensation against Railways as has been done before me. The Division Bench of that Court held at p. 71:--
'The precise point that arises for consideration in this appeal is whether after the amendment of Section 80, it is permissible to add any other place of suing outside the limits of Section 80 even though it may be permissible under Section 20, Civil Procedure Code. In other words, has Section 80 impliedly repealed Section 20, Civil Procedure Code? Or could the two sections co-exist without any inconvenience or difficulty? It will be noticed that when the Legislatures sought to amend Section 80, it must be assumed that it had Section 20 before it which was the earlier section in the field on the subject. If so, in absence of an express provision to the contrary or in absence of a clear implication in the provision, it is not possible to hold that Section 20, Civil Procedure Code has been impliedly repealed by Section 80. When it is a question of the place of suing, both the sections can co-exist and there is no repugnancy orinconsistency in the two sections standing together '
7. The next case relied on by the plaintiff's counsel is (1979) 2 Cal LJ 363 (Bengal Coal Co. Ltd. v. Union of India) where it was held:--
'Under Section 80 of the Railways Act, a suit can be instituted in a Court having jurisdiction over the place at which the goods were delivered for carriage or in the Court having jurisdiction over the place in which the destination lies. But Section 80 of the Railways Act does not override the provisions of Section 20 of the Code of Civil Procedure under which a suit can be instituted in a Court within the local limits of whose jurisdiction the defendant resides or carries on business or works for gain'
8. On the basis of the cases relied on by the plaintiff's counsel, I have no doubt in my mind that the present suit based on the jurisdiction on the person of the defendant is perfectly maintainable. A Court within whose jurisdiction the defendant resides or carries on business and a court within whose jurisdiction cause of action arises within the meaning of present Section 80 of Railways Act, both have concurrent jurisdiction to try suit for compensation for loss or damage of goods by Railways. 74 Cal LJ 416 : (AIR 1942 Cal 229) therefore, relied on by the defendant's counsel can be distinguished on facts and has no application on the facts of this case. Counsel for the defendant pointed out that Clause 44 of the Letters Patent and Section 4(1) Civil Procedure Code were not considered in the last two cases. But I do not think that even if these two provisions were urged before the respective Courts in the aforesaid two cases, the result would have been any different. In : 2SCR87 it was held:--
'It is undoubtedly true that the legislature can exercise power of repeal by implication. But it is an equally well settled principle of law that there is a presumption against an implied repeal upon the assumption that the legislature enacts laws with a complete knowledge of all existing laws pertaining to the same subject, the failure to add or repealing clause indicates that the intent was not to repeal existing legislature. Of course, this presumption will be rebutted if the provisions of the new Act are so inconsistent with the old ones that the two cannot stand together.'
9. Reading Section 80 and Clause 12 of, the Letters Patent, I find that these two provisions can stand together without any inconvenience, inconsistency or difficulty. Moreover, the effect of Section 4(1), Civil Procedure Code on Section 80 of Railways Act was considered in Jagannath Chetran's case (Decision D/- 19-4-1979 (Cal)) which did not support the contention of the defendant's counsel.
10. In the view of the matter, I direct the suit to appear in the list one week after the Christmas Vacation. The plaintiff will get the cost of hearing of the preliminary issue from the defendant irrespective of the result of the hearing of the suit on merit.