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Lalchand Chowdhury Vs. Union of India (Uoi) - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberSuit No. 4352 of 1949
Judge
Reported inAIR1960Cal270
ActsRailways Act, 1890 - Section 72; ;Limitation Act, 1908 - Schedule - Articles 31 and 115; ;Code of Civil Procedure (CPC) , 1908 - Section 80; ;Contract Act, 1872 - Section 73
AppellantLalchand Chowdhury
RespondentUnion of India (Uoi)
Appellant AdvocateBimal C. Mitter and ;H.N. Ghosh, Advs.
Respondent AdvocateR.K. Ghose, Adv.
Cases ReferredIn Union of India v. G.C. Das
Excerpt:
- s.p. mitra, j.1. in this suit the plaintiff states that on the 7th may, 1948 at ahmedabad station, 11 bales of hard waste under three several parcel way bills valued at rs. 9,180/- all belonging for the plaintiff were delivered to the bombay baroda and central india railway and were accepted by them for carriage, under a contract entered into by and between the railway and the consignor thereof. the contract is evidenced by the parcel way bills. the plaintiff had purchased the goods for valuable consideration. the parcel way bills were endorsed in favour of the plaintiff. the plaintiff was at all material times, and still is, the true owner of all the goods and as the holder and endorsee of the parcel way bills is entitled to the benefits of the contract with the said railway. the b.b......
Judgment:

S.P. Mitra, J.

1. In this suit the plaintiff states that on the 7th May, 1948 at Ahmedabad Station, 11 bales of hard waste under three several Parcel Way bills valued at Rs. 9,180/- all belonging for the plaintiff were delivered to the Bombay Baroda and Central India Railway and were accepted by them for carriage, under a contract entered into by and between the Railway and the consignor thereof. The contract is evidenced by the Parcel Way bills. The plaintiff had purchased the goods for valuable consideration. The Parcel Way bills were endorsed in favour of the plaintiff. The plaintiff was at all material times, and still is, the true owner of all the goods and as the holder and endorsee of the Parcel Way bills is entitled to the benefits of the contract with the said Railway. The B.B. and C. I. Railway agreed to carry for reward these 11 bundles of hard waste from Ahmedabad Station on the said Railway to Manipur Road Station on the Assam Railway through the Great Indian Peninsular Railway, the East Indian Railway, the Oudh Trihut Railway and the Assam' Railway and to deliver the sarhe to the consignee or its assigns. All these Railways are now owned and administered by the Union of India. In breach of the agreement these Railways or any of the Railways through which the goods had to pass failed and neglected to carry the goods safely to the plaintiff within a reasonable time pr at all. The loss occasioned by non-delivery is due to gross negligence, misconduct and want of due care and attention of the servants of the Railway Administrations and as such the plaintiff is entitled to compensation assessed at Rupees 9,180/-. Notice under Section 77 of the Indian Railways Act has been served on the defendant. Notice under Section 80 of the Code of Civil Procedure has also been served within the jurisdiction of this Court. The plaintiff has claimed, inter alia, Rupees 9,180/-, interest and costs.

2. The suit was instituted on 21-11-1949. The original written statement was filed on behalf of the Dominion of India as representing the East Indian Railway on 31-3-1950. Some of its paragraphs were amended under an order of this Court made on the 11th July, 1956. The defence in the written statement as amended, inter alia, is that the consignments under the said Parcel Way bills were correctly despatched from the forwarding station and arrived in due course of transit at the Nainhati Station on 7-6-1948. But the goods were seized by the Land Customs Authority and detained there on the 8th June, 1948 for examination thereof. The goods were ultimately released by the Land Customs Authority on 7-2-1950. the goods were then despatched in good condition by the East Indian Railway from the Naihati Station to the Manipur Road Station. The goods reached the destination on dated 7th April, 195ft and were unloaded there. The defendant informed the plaintiff in writing about the arrival of the goods at the destination but the plaintiff refused to take delivery thereof. The defendant's liability in respect of the goods ceased after the plaintiff had refused delivery as aforesaid. The seizure and detention of the consignments by the Land Customs Authority occurred in circumstances beyond the control of the Railway Administration which isnot responsible and answerable for the same. The Railway Administration, their agents or servants took all reasonable and proper care for the security and transit of the goods. The Railways or any of them did not guarantee delivery of the goods within any definite time nor was there any time stipulated for the same and the booking of the consignments was subject to the exigencies incidental to railway traffic. In the premises, the claim made by the plaintiff is denied. In any event the compensation claimed is grossly inflated and exaggerated. The defendant also denies the validity or sufficiency or due service of the notices under Section 77 of the Indian Railways Act and Section 80 of the Code of Civil Procedure. The defendant contends that no part of the cause of action arose within the jurisdiction of this court. The plaintiffs claim, if any, is also barred by limitation.

3. An additional written statement was filed by the plaintiff on 29-4-1958. The plaintiff states here that the loss of goods occurred on 8-6-1948 when the goods were seized by the Land Customs Authorities. The railway authorities involuntarily or through inadvertence lost possession of the goods for the time being and was unable to trace them. The subseuqent despatch of the goods to the destination does not alter the character of the loss. In any event, it was entirely due to the negligence and default on the part of the Railway Authorities that the goods were seized by the Land Customs Authorities and after such seizure the goods were detained for two years. During the detention the goo'ds so much deteriorated as to have become unmerchantable and no buyer would buy and no honest seller would sell them. The goods were a total loss. The defendant is liable for the loss, detention and deterioration amounting to the total loss of the goods. Alternatively, the plaintiff is entitled to damages amounting to the full value of the goods for the defendant's delay in offering delivery. The plaintiff rightly refused to take delivery because (1) there was loss of the goods, (2) the goods so much deteriorated in quality as to have become unmerchantable and were a total loss and of no use to the plaintiff, and (3) there was unreasonable delay in offering delivery of the goods.

4. The following issues wpre raised:

(1) were P. W. bills endorsed for valuable consideration in favour of the plaintiff as alleged in paragraph 2 of the plaint?

(2) were the goods lost or not delivered due to the negligence or misconduct or want of care or attention on the part of the Railway Administration?

(3) Did the defendant agree to tender or deliver the goods to the plaintiff within a reasonable time?

(4) Did the plaintiff wrongfully refuse to take delivery of the goods when offered as alleged in paragraph 4(a) of the written statement?

(5) Has the court jurisdiction to try the suit?

(6) Is the suit barred by limitation?

(7) To what relief, if any, is the plaintiff entitled?

5. It is urged on behalf of the defendant that the plaintiff is not the endorsee of the P. W. bills for valuable consideration. Mr. Chose, learned counsel for the defendant, drew my attention to some of the statements made by the plaintiff in his evidence. According to the plaintiff the consignor. Naharmal Kundanlal, came to Calcutta in the middle of May, 1948 in connection with the sale of the goods in suit. He came to the plaintiffs guddi and made over the original bijak to the plaintiff after putting his signature on the bijak and also handed over the P. W. bills upon making endorsement to the effect that delivery of the goods should be given to the plaintiff. The plaintiff thereupon made payments to the consignor. The endorsements were made at No. 22, Burtolla Street in Calcutta. The plaintiff paid to the consignor Rs, 8,778-6-0 (QQ. 50 to 56). In QQ. 127 to 158 the plaintiff has stated that he went to Ahmedabad in March, 1948 with about Rs. 5,000/-. He purchased 12 bales of hard waste to start with but he does not recollect the price that he paid for it nor does he recollect the weight of each bale. The plaintiff was in Ahmedabad for about a month1. He purchased 12 bales in April, 1948. He was present when these 12 bales were booked at Ahmedabad Station. He was not known to the consignor, Naharmal Kundanlal. He does not know whether this was a partnership firm or individual concern. He talked to Kundanlal who he thought was the Malik or Karta. He saw the sample, made enquiries in the market and after 4 or 5 days the purchase of these goods was settled. He said to (Kundanlal) Kundanmal that if booking facilities were available he would purchase further consignments of goods later on. There were no talks of buying the goods on credit at that time.

6. On this evidence of the plaintiff Mr. Ghose has commented that it is strange that the plaintiff purchased 11 bales of hard waste after his purchase of 12 bales without making any payment from a consignor who was a stranger to the plaintiff. The purchase of 11 bales was made by the plaintiff after he had purchased 12 bales (QQ. 124 to 129). Mr. Chose submitted that on tbe plaintiffs evidence it would be reasonable to conclude that with Rs. 5,000/- the plaintiff purchased both the consignments of 11 bales and of 12 bales. But learned Counsel had to admit that on the documentary evidence on record the plaintiff was the endorsee for valuable consideration of the P. W. bills. The original bills and the bijak it appears from the correspondence were sent to the Railway Administration, By the letter dated 15-2-1949 the Deputy Chief Commercial Manager of the Assam Railway asked the plaintiff to furnish him with the plaintiffs original bills and bijak together with the original railway receipts separately for each consignment to enable him to test and verify the plaintiffs claim. By the letter dated 12-8-1949 the plaintiff sent to tbe Deputy Chief Commercial Manager the original railway receipts and the original bijak for all these three consignments in suit. The plaintiffs case is that on the original receipts the endorsements in his favour by the consignor would appear. Learned Counsel for the defendant has stated that these original documents have not been found in the railway files. In these circumstances I have to accept the plaintiffs oral testimony and I hold that the P. W. bills were endorsed for valuable consideration in favour of the plaintiff as alleged in paragraph 2 of the plaint. I have some doubts as to whether the endorsements were made or the plaintiff paid for the goods in Calcutta. But it is unnecessary for me to express any definite opinion on this point.

7. The next question is whether the goods were lost or were not delivered due to the negligence or misconduct or want of care or attention on the part of the Railway Administration. Learned counsel for the defendant contends that the goods were neither lost for 'not delivered'. The goods reached the destination and were offered to the plaintiff. But in para. 6 of the plaint the plaintiff has based his claim on 'loss' occasioned by non-delivery. 'Loss' means loss of the goods by the Railway Administration and not loss sustained by the plaintiff. The plaintiff should not be allowed to travel beyond his pleading. The goods were not lost. Amal Kumar Basu, who was at the material time a Tally Clerk at the Naihati Station, has deposed that on 7thJune, 1948 the goods were detained by the Land Customs Officer. He has produced entries from the Transhipment Register in support of his statement (Ex. 7). Although the goods were seized by the Land Customs Authority, they remained in the custody of the Railway Administration in its own godown in charge of the Head Parcel Clerk (QQ. 5 to 18, 38, 93, to 95). Sushil Chandra Kar, who was working as Parcel Checker at Naihati in 1948, has stated that the consignments in suit were detained by the Land Customs Officer at Naihati and were despatched by the All India route from Naihati to Bandal on 18-3-1950. The destination was Manipur Road. This was done under the order of the Divisional Superintendent, Scaldah. He has produced entries in the Guidance Register (Ex. 6A) to corroborate his evidence. Between June, 1948 and February, 1950 the goods were kept in the Railway godown (QQ. 5 to 29, 83 and 84). Amarendra Nath Roy, who was Inspector of the Land Customs Department at the relevant time, has also stated in 0. 61 that the Customs Department did not have their own godown at the Naihati Station and all goods detained by them were lying at the Railway godown. On the depositions of these witnesses Mr. Ghose contended that this was not a case of 'loss' of goods at all. 'Loss' means complete lack of knowledge as to the whereabouts of the goods.

8. Learned Counsel for the plaintiff has conceded that the goods were not lost. In paragraphs 5 and 6 of the plaint the allegation is that the Railways have failed to deliver the goods within a reasonable time whereby the plaintiff has suffered loss occasioned by non-delivery. As to detention by Customs Authorities Mr. Mitter for the plaintiff has submitted that the evidence on behalf of the defendant is not at all satisfactory. The Notification in the Gazette authorising seizure by the Customs officer has not been produced. The plaintiff's document No. 23 is an undated letter from the Deputy Chief Commercial Manager to the plaintiffs Solicitor reminding him to send the original bills and Bijaks to enable him to proceed towards settlement of the plaintiff's claim. Had there been a general order of detention, this letter would not have been written by the Deputy Chief Commercial Manager of the Assam Railway. Amarendra Nath Roy was in the Central Preventive Circle of the Land Customs Department. His duty in 1948 was to prevent smuggling of goods into Pakistan. He used to go to Naihati at times. He had nothing to do with the consignments in suit. He does not remember if these goods were seized at all nor does he know when they were released. He is not, therefore, a proper witness to depose on seizure of goods by Land Customs at all (vide evidence of Roy QQ. 82 to 89 and 163). Amal Kumar Basu, Tally Clerk at Naihati at that time, has said that all the goods which were going through Pakistan, were not detained by the Land Customs. They seized some of the goods and released the others. His attention was drawn to certain goods which were going to Jorhat and Shillong through Pakistan that were not detained by the Customs Authorities. There used to be general orders that so many parcels would be detained and so many would be released, and thereupon the Head Parcel Clerk would issue instructions for despatch of the consignments concerned (QQ. 49 to 73). The evidence of this witness shows that there was no general order of detention of all goods travelling from one part of India to another through Pakistan. Sushil Chandra Kar, the Parcel Checker, had stated that the goods in suit were not examined by the Customs Authorities at all between June, 1948 and February, 1950 (QQ. 86 and 87). Amarendra Nath Roy in course of his evidence produced certain forms which he said the consignors had to fill in to get their goods released by the Land Customs, but these forms did not appear to apply to goods which were being sent from one part of India to another through the territory of Pakistan. It was suggested in Q. 257 to the plaintiff that the consignor Naharmull Kundanlal came to Calcutta in May, 1948 for the purpose of observing customs formalities. The plaintiff has denied this suggestion. In this state of evidence Mr. Mitter invited me to hold that there was no detention of the goods in suit by the Land Customs at all. I am unable to accept this contention. It is true that better evidence might have been adduced to support the defendant's case of seizure of the goods by the Customs Authorities, but on the evidence already On record I am of opinion that the consignments in suit were lying in the Railway godown at Naihati between June 1948 and February, 1950 under the orders or directions of the Land Customs Authorities at Naihati. The Inspector of the Customs Department has no personal knowledge of this detention. But the Railway witnesses have proved conclusively in my view that the goods, in fact, were detained.

9. Coming now to the question of negligence or misconduct or want of care or attention on the part of the Railway Administration causing the failure to deliver the goods within a reasonable time, it has to be noted that the goods were booked at Ahmedabad on 7-5-1948. Amarendra Nath Roy, Inspector of the Land Customs Department, has said that at the time the consignments arrived at the Naihati Station they used to be detained by the Land Customs Authorities. The Railway Administration would then inform the consignor or the consignee that the goods had been detained. The consignor or the consignee would then apply to the Customs Authorities or to the Railways. The Customs people would ask the party to send an application either through one of its own men or an authorised Clearing Agent. His positive evidence is that it was the duty of the Railway Administration to inform the consignor or the consignee that the goods had been detained by the Customs. Thereupon the consignor or the consignee was to take steps for the release of the goods. The Railway as the carrier was to intimate the party to observe the formalities of the Customs and when the parties submitted an application or observed all formalities the Customs Department would issue an order for the release of the goods (QQ. 29 to 34, 40, 41 and 137). The plaintiff Lal Chand Chaudhury has stated that he was the consignee of 12 bales of hard waste booked from Ahmedabad on 17-4-1948. There was no question of observing any Customs formalities so far as this consignment was concerned. With regard to the 11 bales in suit which were booked from Ahmedabad on the 7th May, 1948 no question arose of observance of Customs formalities. Neither the consignor nor the plaintiff being the consignee ever received any information that such observance was necessary (QQ. 81 to 84). Sushil Chandra Kar the Parcel Checker, says that the effort that was made between May 1948 and February, 1950 to get the goods released was that the Station Master of Naihati wrote to the Station Master of Ahmedabad and the Station Master of Manipur Road to observe the Customs formalities (Q. 75). The defendant's document No. 5 is a copy of a message sent by the Statiton Master, Naihati to the Station Master, Ahmedabad that the consignments in suit had been detained by the Land Customs Officer. The Station Master, Ahmedabad was requested in this message to advise the party concerned accordingly. Kar does not know whether the Head Parcel Clerk of Naihati had any further correspondence with the Station Master, Ahmedabad (Q. 76). Amal Kumar Basu, a TallyClerk in 1948, has said that no advice was sent to the consignor, hut an advice went to the Station Master, Ahmedabad. The address of the consignor did not appear on the parcel way bill (Q. 30). The evidence of Sushil Chandra Kar, a Parcel Checker in 1948, is that goods which were to be despatched through Eastern Pakistan in those days were detained by the Land Customs at Naihati. The movements were not normal at that time. His case is that even if the Railways had informed the Customs that the goods in suit were meant for the Manipur Road Station and the necessary permit of the Civil Supplies Department had been obtained, the Customs Authorities would have exercised their powers of detention. (QQ. 31, 32 and 97).

10. It appears from the oral evidence of these witnesses called on behalf of the defendant that the Railway Administration had the duty to the consignor or the consignee to send an intimation that the goods had been detained by the Land Customs. The consignor or the consignee was then expected to take steps for the release of the goods by the Customs Authorities for onward despatch. In the present case between the 7th June, 1948 and the 31st March, 1950 there is no evidence before me that any intimation was received either by the consignor or by the consignee. On the, 31st March, 1950 the written statement was filed. In this written statement the defendant for the first time came out with the case that the Land Customs Authorities had detained the goods at Naihati on the 8th June, 1948. It may be that messages were sent from Naihati to the Station Master at Ahmedabad and Manipur Road Station so that the consignor or the consignee could be informed that the goods had been detained. It seems to me that the Railway employees at Naihati acted wisely in sending messages both to Ahmedabad and to the Manipur Road Stations. In the circumstances of this case notice of seizure to the consignee was much more imporant than the notice to the consignor. The consignee was the person directly interested in the delivery of the goods at the destination. But neither the Station Master, Ahmedabad nor the Station Master, Manipur Road has been called to prove what steps, if any, were taken by any of them alter they received these messages. On the 20th October, 1948 the plaintiff gave notice to the Railway Administration concerned under Section 77 of the Indian Railways Act. There is no evidence that any intimation of the detention was received by the plaintiff between the 20th October, 1948 and the 31st March. 1950. In these circumstances I hold that the goods were not delivered to the plaintiff within a reasonable time owing to the default, negligence or misconduct of the Railway Authorities to inform the consignor or the plaintiff as the consignee that they had been detained on the 8th June 1948 by the Land Customs Officer at Naihati. Had there been any evidence that the Railway Administration communicated either to the consignor or the plaintiff after receipt of his notice under Section 77 that the goods were lying at Naihati under the orders of the Land Customs Officer, I might have come to a different conclusion.

11. I now come to Issue No. 3. Mr. Chose for the defendant has submitted that there was no agreement to deliver the goods within a reasonable time. In Fazal Hahi v. E.I. Rly. Co. AIR 1922 All 324 it was held that in the absence of a guarantee by the Railway that the goods would reach before a particular date and of notice by the consignor at the time of the consignment that the goods were required in connection with a particular festival the consignor was not entitled to special damages but to ordinary damages for non-delivery within a reasonable time. Under Section 72 of the Indian Railways Act the position of the Railway Company carrying goods for another is that of a bailee. It is bound to carry the goods under ordinary circumstances within a reasonable time. If any loss accrues to the owner of the goods on account of delay in delivery, the railway company is not liable unless the delay is unreasonable. Hut where there is evidence that delay is unreasonable and the goods such as fireworks are not ordinarily saleable in the market except at certain times of the year, the plaintiff is justified in refusing to take delivery of the goods unless the company is willing to compensate him for the deterioration of their value and for the loss caused to him by the delay.

12. This decision of the Allahabad High Court was followed in Secretary of State v. School Book and Apparatus Depot AIR 1933 Oudh 339. When therefore goods are delivered to the Railway Administration for carriage, in the absence of any agreement, they should be delivered to the consignee within a reasonable time. It has, therefore, to be ascertained, in the present case what was the reasonable time for delivery of the goods on the facts and in the circumstances herein. The evidence is that the goods which were booked from Ahmedabad on the 7th May, 1948 arrived at Naihati on the 7th June, 1948. They remained at the railway godown at Naihati detained by the Customs Authorities till 18th March, 1950 when they were despatched by the All India Route. By the defendant's solicitor's letter of the 14th June, 1950 delivery of the goods was offered to the plaintiff's solicitor. It was stated in this letter that the goods arrived at the Manipur Road Station on the 7th April, 1950. In other words, the consignment took aoout a month to reach Naihati from Ahmedabad and about three weeks from Naihati to the Manipur Road Station by the All India Route. Amal Kumar Basu a tally clerk in 1948 at Naihati and now working as a guard has said that it takes about a month for goods to travel by parcel train from Naihati to Manipur but he frankly admits that he has no definite ideas about it (Questions 113 to 116). Sushil Gliamlra Kar the parcel checker says that goods by parcel train could be sent from Ahmedabad to Manipur Road Station through Pakistan in 15 to 20 days. Lalchand Chowdhury the plaintiff in his evidence has said that the twelve bales which were booked from Ahmedabad on the 17th April, 1948 reached Mauipur Road Station towards the end of May or the beginning of June, 1948 (Questions 10 to 13). In Question 30 he says that he has no perfect recollection but his impression was that these goods took 20 or 25 days. In Question 91 his evidence is that he expected the goods at the Manipur Road Station within 15 days of their despatch from Ahmedabad through Pakistan.

13. On the evidence available to me it appears that the consignments booked by parcel trains from Ahmedabad took about a month to reach the Naihati Station. From Naihati to the Manipur Road Station through Eastern Pakistan the time taken was about a fortnight. By the all India Route it took about three weeks from Naihati to the Manipur Road Station. In the instant case the reasonable period was about 45 days from the date of booking at Ahmedabad. There is no evidence that there was any unreasonable delay in the arrival of the goods at Naihati. The goods were detained at Naithati. It has not been proved that any intimation was sent to the consignee. As I have already stated intimation to the consignee was essential on the facts of the instant Case. The plaintiffs notice under Section 77 of the Indian Railways Act to the various Railway Administrations is dated the 20th October 1948. If the plaintiff had been informed by the Railways of the detention of goods by the Land Customs Authorities on receipt of this notice it would, I think, be reasonable to assume that within three weeks of the 20thOctober, 1948 the Plaintiff would have caused the goods to be released by the Customs. I am considering the time that would have normally been required by the General Manager ot the Railways concerned or the Chief Commercial Manager of the Assam Railway to make enquiries about the goods and to inlorm the plaintiff of their detention and by the plaintiit to get the consignments released. In that event the goods would have reached Manipur Road Station by the 24th or 25th of November, 1948. But the evidence is that they reached destination on the 7th April, 1950. On an analysis of the facts and circumstances of this case 1 have come to the conclusion that the consignments in suit ought to have been delivered to the plaintiit at the Manipur Road Station on the 25th November, 1948 at the latest. I arrive at this conclusion also taking into account the depositions of Amal Kumar Basu and Sushil Chandra Kar on behalf of the defendant that it was an abnormal period for movements of trains owing to the creation of the two Dominions of India and Pakistan.

14. It was urged by Mr. Ghosh that unreasonable delay in offering delivery of the goods is a new cause of action introduced by the plaintiff in paragraph 3 of the Additional Written Statement. No notice under Section 80 of the Code of Civil Procedure was served by the plaintiff stating this cause of action. The suit therefore for damages on this ground is not maintainable. I do not think there is any substance in this contention of Mr. Ghosh. When the suit was instituted the plaintiff did not know that the goods had been detained by the Customs Authorities at Naihati, Long after the institution of the suit the goods were released by the Land Customs and they met onward despatch to Bandel and thereafter to the Manipur Road Station on the 18th March 1950. The goods reached the destination on the 7th April, 1950 and delivery was offered to the plaintiff on the 14th June 1950. It was observed in Ezra v. Secy. of State, 1LR 30 Gal. 36 at p. 72 that Section 424 of the Code of Civil Procedure 1894 corresponding to Section 80 of the New Code of 1908 related to the institution of a suit against the Secretary of State for India in Council, There was nothing in the law to show that in the case of any amendment necessitated by the alleged discovery of facts previously unknown to the plaintiff, the Secretary of State should have a further notice of two months. In the present case the facts stated by the plaintiff in the Additional Written Statement mentioned above were not only unknown to him at the time of institution of the suit but had actually arisen subsequent to its institution. I am of opinion that if a plaint has to be amended owing to facts which have arisen subsequent to the institution of the suit a fresh notice under Section 80 of the Code of Civil Procedure need not be served by the plaintiff. The same principle applies to a plaintiff's Additional Written Statement necessitated by amendments introduced by the defendant. It is true that by this process the suit cannot be converted into a suit of a different character. In such a case a fresh suit must be brought after service of a fresh notice under Section 80: vide Mulla's Civil Procedure Code, 12th edition, page 310. In the instant case the relief claimed in the plaint was compensation for, inter alia, the failure or neglect of the Railways to carry the goods safely to the plaintiff within a reasonable time. The relief asked for and the basis thereof are not altered by the averments in the Additional Written Statement which only embody certain further materitals in support of the plaintiffs contention. No fresh notice under Section 80 was in my opinion, therefore necessary.

15. There is one other ground on which the contention of Mr. Ghosh has to be overruled. In paragraph 9 of the Written Statement the validity or sufficiency of the notice under Section 80 of the Code of Civil Procedure has been challenged, but no Issue was raised on behalf of the defendant on this point. It was held in Manindra Chandra Nandi v. Secy. of State 5 Cal LJ 143 that a notice under Section 424 of the Code was given for the benefit of the defendant and the intention of the legislature was that the Secretary of State should have an opportunity of investigating the alleged cause of complaint and of making amends, if he thought fit, before he was impleaded in the suit, & there was nothing to prevent the defendant from waiving the notice or from being estopped by his conduct from pleading want of notice at the trial. It the provisions of law were waived in the course of a trial, they cannot afterwards be set up by way of objection to any step taken or about to be taken upon the tooting of waiver. When the litigant had, without mistake induced by the opposite party, taken a particular position in the course of litigation, he must act consistently with it, especially, it to allow him to do otherwise would prejudice the opponent. If Mr. Ghosh therefore wanted to rely on the invalidity or in sufficiency of the notice under Section 80 of the Code of Civil Procedure it was for him to raise a specific issue on this question.

16. The next point that arises for my consideration is whether the plaintiff wrongfully refused to take delivery of the goods. On the condition of the goods when delivery was offered Ladu Ram Jalan a cousin of the plaintiff was called on his behalt. He went to inspect the goods at the Manipur Road Station. The 'Mal Babu' pointed out the goods to him. He noticed that hoops of the bales were broken, the covers had become worn out and portions of the contents were lying on the floor. He picked up a small quantity of the goods lying on the floor and found that it had become wet and discoloured. When he pulled it, it snapped. He took samples of these goods and went to the market with the samples. He went round the market, shewed the samples to different traders and came, to know that none of them would be prepared to buy these goods. He has named some of the dealers to whom the samples were shown. He spent the night at Manipur and relumed to Calcutta on the following day and reported to the plaintiff that the condition of the goods was very bad and they were unsaleable in the market (Questions 16 to 28). The evidenee of the plaintiff is obviously based on information furnished to him by Ladhu Ram. Ladhu Ram told him that the goods had become bad and useless. His description of the condition of the goods substantially tallies with that of Ladhu Ram (Questions 73 to 7).

17. Learned Counsel for the defendant has urged that Ladhu Ram should be disbelieved. The entire Additional Written Statement in which allegations have been made with regard to the condition of the goods has been verified as submissions to this Court. No allegation in it is based on information received from Ladhu Ram. Secondly, Ladhu Ram knew that the plaintiff had instituted a suit but did not make any report to the plaintiff in writing nor did the plaintiff ask for a written report. Thirdly, Ladhu Ram gave after nine years the names of the different dealers in the market to whom the goods were shown. Fourthly, according to Ladhu Ram the plaintiff gave him only the numbers of the railway receipts before he went to inspect the goods at Manipur. He also gave him the description of the goods and certain other particulars of the railway receipts (Questions 57 to 83). It is difficult to believe that Ladhu Ram was allowed inspection of the goods without production of the P. W. Bills. Fifthly, Ladhu Ram's going to Manipur was not put to any of the plaintiff's witnesses. And lastly, Ladhu Ram is a witness of untruth when he says in Questions 66 to88 that he did not have any discussions with the plaintiff about his evidence in this Court nor did he make any statements to the plaintiff's solicitors.

18. I would have certainly given due weight to Mr. Ghosh's criticisms of Ladhu Ram's evidence, had there been a single witness on behalf of the Railways to tell me about the condition of the goods when delivery was offered or their condition today. It has been alleged in paragraph 4 of the written statement that subsequent to the release by the Land Customs Authorities the goods were despatched in good condition by the East Indian Railway from the Naihati Station and met onward despatch therefrom for the destination. But none on behalf of the defendant has come forward to prove this allegation. 1 suggested to Mr. Ghosh during the hearing that samples of the goods might be brought in Court so that I could get an opportunity of examining them but that was not done. I shall in the circumstances be justified in accepting the uncontradicted testimony of Ladhu Ram.

19. Jotindra Bijoy Chowdhury an Assistant clerk in April, 1950 of the Manipur Road Station had made certain entries in the brake-van unloading book on (he 7th April, 1950 marked Ext. l(a). He had also made entries in the Inward Delivery book marked Ext. 2(a) and kept the goods in the parcel godown (Questions 6 to 18). He made remarks in Ext. 1(a) that the goods 'were very badly damaged'. In Questions 47 and 48 he says that his remarks apply to the coverings and not to the contents. He has no clear recollection about the condition of the goods; usually the contents are not examined (Questions 49 to 67). Mr. Mitter for the plaintiff has invited me to hold that it would appear from the railway's own documents that the goods were very badly damaged when they reached destination. On this point I do not agree with him. I am inclined to accept the evidence of Jotindra Bijoy Chowdhury that he did not examine the contents of these bales and the remarks which he made were referable to the coverings and not the contents.

20. There is one other aspect of the matter. From the record for 3 of P. W. Bills with textile permit dated the 7th May, 1948, it appears that the weight of 5 bales was 5 mds. 5 srs; the weight of another 5 bales was 5 mds. 9 or 10 srs; and the weight of the remaining one bale was 1 md. 5 srs. So far as one bale is concerned, the defendant has not been able to trace it and is : repared to pay the value thereof but with regard to the other lots of 5 bales each I find from other documents that the weights had become reduced. In the L.P.O., Despatch Register of the Manipur Road Station the weights of these two lots have been shown to be 4 mds. 20 srs. and 4 mds. 65 srs. on the 7th November, 1950. That was the date of the receipt of these lots at the Lost Property Office. The same weights, namely, 4 mds. 20 srs. and 4 mds. 35 srs. have also been shown in the inventory of goods sent to Dibrugarh Lost Property Office by the Manipur Road Station; in the tally book of the Lost Property Office, Dibrugarh, from the 11th January, 1956; and in the Register of Booked Coaching Consignment maintained in the office at Dibrugarh commencing from the 13th January 1956. In the Delivery Register of Manipur Road, entries have been made on the 5th August 1950 showing the weights of these two lots to be 5 mds. 5 srs. and 5 mds. 9 srs. It appears, therefore, that the goods had not only deteriorated in quality but the weights also of the various lots got considerably reduced. There is no evidence that the plaintiff refused to accept the goods on account of reduction in weight, But the loss of weight throws some light, in my opinion, on the truth of Ladhu Ram's statements.

21. Then, again, under Section 56 of the Indian Railways Act, the Railway Administration has power to sell unclaimed goods. In the instant case tin's power was not exercised. The reason for not doing so has not been explained.

22. Mr. Ghosh relied on two decisions of the Lahore High Court in support of his proposition that the plaintiff was bound to accept delivery of the goods. In E.I. Rly. Co. v. Beharilal AIR 1926 Lah 512 it was held that property in the goods entrusted to a carrier remained with the owner and he was bound to take delivery of the goods even if they were damaged; his remedy being in that case to claim compensation. The plaintiffs respondents in this appeal conceded that the consignee of goods sent by rail was not entitled to refuse delivery on the ground of late arrival or damage, to the goods. A similar view was adopted in Secretary of State v. Harkishan Das AIR 1926 Lah 575(2). In this case some of the bags of atta which were carried by Railways got wet and damaged after arrival at the destination.

23. It was held that the duty of the Railway as a carrier was discharged on the arrival of goods at their destination. It was not in the line of the Railway Administration to keep the goods after that as a warehouseman or a bailee for hire. The consignor, on the other hand, was expected to take delivery within the time fixed by the Railways, and if he neglected to do so, the Railway Administration could claim demurrage and not hire. That being so, its liability to the consignee after the arrival of the goods was not the same as that of a warehouseman or a bailee for hire. There was no evidence in this case of the extent of the injury caused to the goods and the Court came to the conclusion that granting that the Railway Administration was liable to compensate the consignee no compensation could be awarded in the absence of evidence. It is obvious that the facts of this case were entirely different from the facts before me. In Union of India v. Serazuddin, : AIR1953Pat206 Sinha J. considered and distinguished the view in AIR 1926 Lah 512 and was of the opinion that the position of the Railway Administration as a carrier is the same as that of a bailee. Where, therefore, the consignee although he was not entitled to claim open delivery, did ask for it and the Railway Company granted the request, whereupon it was found that most of the goods were badly damaged, and in the suit for damages brought by the consignee against the Railway Administration it was found that the Railway Company had kept the consignments of cigarettes absolutely to the winds in the months of the monsoon, it was held that the Railway Administration failed entirely to take the care that they should have taken and that there was no other place where the goods could have been kept was no answer to shift the liability. The plaintiffs in this case refused to take delivery of some of the goods on the ground that they were rotten and unfit for human consumption. In the present case there was no question of delivery when the suit was instituted. There was unreasonable delay in the carriage of the goods to their destination. The plaintiffs agent found upon inspection that the goods were badly damaged. He tried to ascertain whether there was any possibility of selling them in the local market. He discovered that there was no purchaser for the goods in that condition. In these circumstances the plaintiff, in my opinion, was justified in refusing delivery and can claim compensation from the Railway Administration.

24. I shall now deal with the issue of jurisdiction. Leave under Clause 12 of the Letters Patent has been obtained by the plaintiff on the ground that notice under Section 80 of the Code of Civil Procedure wasserved within the jurisdiction of this Court. There is a conflict of judicial opinion in this Court as to whether service of notice under Section 80 is a part or the cause of action or not. The reported cases have been collected in the judgment of A. N. Ray J. in Jaharlal Pagalia v. Union of India : AIR1959Cal273 . My attention was drawn by Mr. Ghose to the unreported decision of Das Gupta and Debabrata Mookerjee JJ., in Civil Rule No. 1295 of 1953, Union of India v. Kazi Siddiq Ahmed. In this case the learned Judges came to the conclusion that it was only those facts taken in their entirety which the plaintiff had to prove as a matter of substantive law in order that he might succeed in his claim, for remedy that formed part of the cause of action and facts which had to be established as a matter or procedural law before a plaintiff could succeed did not form part of the cause of action. The necessary consequence was that service of notice under Section 80 of the Code of Civil Procedure was not a part of the cause of action whether for determining a question of jurisdiction or for any other matter. As a different view had been taken by a Division Bench in the case of Dominion of India v. Jagadish Prosad Pannalal, 84 Cal L] 175: (AIR 1949 Cat 622) this matter was referred to a Full Bench for a decision. I suggested to learned counsel for the parties at the outset that the hearing 6f this suit might be postponed till the decision of the Full Bench was available. But learned Counsel for the plaintiff submitted to me that his client had already waited for nearly 10 years as the suit was instituted on 21-11-1949; the decision of Das Gupta and Debabrata Mookerjee JJ., was given on 7-7-1954; and it is not yet known when the Full Bench is likely to go into this question. If the judgment of the Full Bench ultimately supported the view taken by Das Gupta and Debabrata Mookerjee JJ., the plaintiff was prepared to take the risk. So far as I am concerned the decisions of this Court in 84 Cal LJ 175: (AIR 1949 Cal 622) and Dunlop Rubber Co. (India) Ltd. v. Governor-General in Council ILR (1950) 2 Cal 551 are binding on me. These decisions were followed by Bachawat J. in Raj Kumar Shaw v. Dominion of India, : AIR1953Cal235 and Nailin: Ranjan Guha v. Union of India 93 Cal LJ 373. In Hindusthan Housing and Land Development Trust Ltd. v. State of West Bengal, 59 Cal WN 405, Bose J., also held that service of notice under Section 80 of the Code was a part of cause of action. In the case of Dunlop Rubber Co. (India) Ltd., ILR (1950) 2 Cal 551, S.B. Sinha J., relied on the judgment of Rankin C. J., in Engineering Supplies Ltd. v. Dhandania and Co. : AIR1931Cal659 for the meaning of the phrase 'cause of action'. Rankin C. J. was of the view that the only definition that would work if it had to be applied to cases of all kinds, was the entire state of facts that gave rise to an enforceable claim. In the words of Fry L. J. :

'Everything which if not proved gives the defendant an immediate right to judgment. Every fact which is material to be proved to entitle the plaintiff to succeed, every fact which the defendant could have a right to traverse'.

S. B. Sinha J. then proceeded to observe as follows: 'It is beyond doubt that the plaintiff, in order to succeed must prove that notice was given in compliance with the provisions of Section 80 of the Code. Section 80 prohibits the institition of any suit against the Crown or against a public officer without a notice being served, and a statement that such a notice has been delivered has to be stated in the plaint itself. If the definition of the cause of action appearing in Clause 12 of the Letters Patent is as was stated by Rankin C. J. in the said case, I do not see how it can be said that notice under Section 80 is not a part of the cause of action. The issue and service of notice is fact material to be proved to entitle the plaintiff to succeed and the defendant has a right to traverse the allegation that notice was given. In my opinion, therefore, notice under Section 80 is a part of the cause of action within the meaning of that phrase in Clause 12 of the Letters Patent'.

25. In the circumstances I hold that service of notice under Section 80 of the Code of Civil Procedure is a part of the cause of action, and this Court has jurisdiction to try this suit.

26. On the issue of limitation the argument of Mr. Ghose, learned Counsel for the defendant, is that the plaintiff has made conflicting statements as to the time that was required for carriage of goods from Ahmedabad to the Manipur Road Station. The maximum time that he has mentioned is about a month and a half. The goods were booked at Ahmedabad on 7-5-1948. Even if the maximum period mentioned by the plaintiff be taken into consideration, they should have reached the Manipur Road Station on 23-6-1948. The plaintiff would get a further period of two months in respect of notice under Section 80 of the Code of Civil Procedure. The suit, in that case, should have been instituted on or before the 23rd August, 1949. But the present suit was filed on 18-11-1949. The suit is, therefore, barred by limitation under Article 31 of the Limitation Act. In Radha Sham v. Secy, of State, 20 Cal WN 790 at p. 795: (AIR 1917 Cal 640 at p. 643) Digambar Chatterjee J. observed that in a suit to which Article 31 applied it would be for the carrier to show when the goods ought to have been delivered that fact being presumably within its knowledge. There is no satisfactory evidence on this point on behalf of the defendant. Amal Kumar Basu has no definite idea about time taken for goods to travel by parcel trains from Naihati to Manipur. Susil Chandra Kar has said that through Pakistan it would have taken 15 to 20 days from Ahmedabad to Manipur. His statement is obviously erroneous because it took about a month to reach Naihati from Ahmedabad.

27. It seems that the question as to the date 'when the goods ought to have been delivered' tor purposes of Article 31 is essentially a question of fact. There is and can be no hard and fast rule that time must begin to run from the expiry of the ordinary or normal period of transit. Where there is no particular date specified for delivery, it has to be determined as a matter of fact as to what is reasonable having regard to the circumstances of the contract and the conduct of the parties. I respectfully agree with the observations of the Full Bench of the Allahabad High Court in Mutsaddi Lall v. Governor General-in-Council, : AIR1952All897 that, the phrase 'when the goods ought to be delivered' means the point of time at which the carrier undertakes to deliver the goods, or the date when the carrier informs the consignee that it would be delivered or when the carrier communicates to the consignee its inability to deliver the goods or on a reasonable date that may be fixed on a consideration of events subsequent to the handing over of the consignment to the carrier for carriage. In the instant case the goods which were booked at Ahmedabad on 7-5-1948 arrived at Naihati on 7-6-1948. They were thereafter seized by the Land Customs Authority and were lying in the Railway godown under orders of the Customs Officer. It was the duty of the Railway Administration to inform the consignor or the consignee to take steps for the release ot the goods for purposes of onward despatch from Naihati to the Manipur Road Station through the territory of Pakistan. I have therefore to see what was the reasonable date for the delivery of the goods at the Manipur Station upon consideration of the eventsthat had occurred subsequent to the making over of the consignments to the Railways for carriage. There is no evidence before me that any intimation was given to the consignor that the goods had been detained by the Land Customs Authority at Naihati. The consignor also was not perhaps interested in the fate of the goods having sold them already to the plaintiff. I have already said that the notice to the consignee was in the facts and circumstances of the case more vital than the notice to the consignor. On 20-10-1948 the plaintiff as the consignee of the goods served notice under Section 77 of the Indian Railways Act. The plaintiffs notice under Section 80 of the Code of Civil Procedure is dated 15-2-1949. On 30-6-1949 the Deputy Chief Commercial Manager, Assam Railway wrote to the plaintiff to send to him the original bills, bcejucks and Railway Receipts to enable him to test and verity the plaintiff's claim. On 5-7-1949 he wrote to the plaintiffs solicitor for documents to enable him to settle the plaintiffs claims. Apparently till 5-7-1949 he did not know where the goods were and what had happened to them. I have said earlier that if the plaintiff had been informed of detention of the goods by the Land Customs soon after the receipt of the notice under Section 77 the goods ought to have reached destination or ought to have been delivered at the latest on 25-11-1948. Assuming that the plaintiff was informed on the very day namely, 20-10-1948 of the detention of the goods and the plaintiff also caused the goods to be released by the Land Customs on that day, the goods would nave taken another fortnight to reach the Manipur Road Station through Pakistan. In other words, the consignments could have arrived on the 4th or 5th November. 1948. That would be the date when the goods ought to have been delivered to the plaintiff. Then the period of the notice under Section 80 has to be deducted in computing the period of limitation. And the suit could be instituted early in January. 1950. The present suit was instituted on 21-11-1949. If information had been sent to the plaintiff some time after the Deputy Chief Commercial Manager's letter of 5-7-1949 there could be no question of the suit being barred by limitation.

28. Mr. Mitter, learned Counsel for the plaintiff, has urged that Article 115 ought to be applied to this case. To my mind, as it is a suit, against a carrier for compensation for non-delivery of or delay in delivering goods Article 31 is the appropriate Article that governs this case. It is well settled that Article 31 provides for a suit for compensation for non-delivery i.e., a suit by a person who has suffered or sustained loss by reason of non-delivery. And that is exactly the case in paragraph 6 of the plaint in this suit. On the facts and in the circumstances here it seems to me for reasons aforesaid that the suit is not barred by limitation.

29. I have now to consider the quantum of damage suffered by the plaintiff. In G.A. Jolli v. Dominion of India AIR 1949 Cal 380 Chatterjee J. held that it was the general intention of the law that in giving damages for breach of contract the plaintiff should be placed in the same position as he would have been if the contract had been performed. For a breach of contract of carriage of goods the plaintiff is ordinarily entitled to recover as damages the value at the time when the goods should have been delivered to him. The plaintiff in this case has stated that he had paid Rs. 8,778/6/-in respect of the original beejucks and the three parcel Way bills for hard waste. This sum represented the price of the goods. The Beejuck is dated 7-5-1948. The original beejuck and the Parcel Way bills are in possession of the Railway Administration. (QQ. 55 to 61). Obviously the plaintiff purchased the goods for the purpose of making profit at Manipur. Mr. Chose contended that the plaintiff should be paid at the rate of Rs. 200/- per bale on the basis of the value of the previous consignment of 12 bales. In Union of India v. G.C. Das, : AIR1959Cal337 the plaintiff contended that the consignment of potatoes in suit was of a perishable character and there was gross negligence and misconduct on the part of the Railway Officers in not delivering the goods within a reasonable time and the loss occasioned to the plaintiff was caused by such negligence and misconduct. The plaintiff claimed Rs. 4,773/- by way of compensation for such losses. Renupada Mukherjee J. (sitting with Banerjee J.) observed, inter alia, as follows :

'As there was unusual and unreasonable delay in the arrival of the consignment and the delay was due to the misconduct of some Railway servants, the Court may very well presume that the delay was the cause of deterioration of the goods and that the deterioration would not have taken place if the goods had arrived in proper time'.

The entire claim of the plaintiff was allowed in this appeal.

30. In the present case due to the failure or neglect or misconduct of the Railway Administration to inform the consignor or the consignee that the goods had been seized by the Land Customs officer, there was unusual and unreasonable delay in the arrival of the goods at the destination with the result that the goods so much deteriorated in quality as to have become unmerchantable and were of no use to the plaintiff. In the premises it would be reasonable to bold that the plaintiff is entitled to recover the price that he had paid for these goods.

31. The result, therefore, is that there will bea decree for Rs. 8,778/6/-; for interest on judgmentat the rate of 6 per cent per annum and for costs.Certified for two counsel. The decree shall besatisfied within six months from date.


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