A.N. Ray, J.
1. The plaintiff instituted this suit for the recovery of Rs. 10,308.48 p. or in the alternative an enquiry as to damages suffered by the plaintiff and a decree for the sum found due on such enquiry.
2. The plaintiff alleges that on January 28, 1963 Surat Cotton Spinning and Weaving Private Ltd. delivered to the defendants' Western Railway Administration at Surat four cases of cotton piece goods, covered by invoice No. 94 to be safely and securely carried by Railway to Shalimar, a Railway station within the administration of South Eastern Railway and there to be delivered to the plaintiff as the consignee of the said goods. The further allegations are that the defendant duly issued a railway receipt bearing No. 53892 dated January 28, 1963 in respect thereof. In paragraph 4 of the plaint it is alleged that the railway receipt and the invoice were received by the plaintiff on or about February 15, 1963 from the Bank of Baroda upon payment of the value of the goods to the said bank at its branch at No. 172, Mahatma Gandhi Road, Calcutta and that by such payment the plaintiff became the owner of four cases of cotton piece goods covered by the railway receipt and the said invoice. It is also alleged that the Dank endorsed the railway receipt in favour of the plaintiff at its branch at Calcutta within the jurisdiction of this Court. The plaintiff alleges that the defendant failed and neglected to deliver the goods to the plaintiff. The plaintiff claims the value of the said goods and loss of profit calculated at 10% and further demurrage charges as alleged in paragraph 8 of the plaint. The further claim is interest at the rate of 6 per cent per annum as alleged in paragraphs 11 and 12 of the plaint.
3. The defendant is described in the cause title as Union of India carrying on business of, inter alia, the Eastern Railway Administration having its headquarters at No. 1 Fairlie Place at Calcutta within the aforesaid jurisdiction. The written statement is filed on behalf of Union of India representing the Eastern Railway Administration as the defendant. The defence is that Eastern Railway Administration of the Union of India representing the same was in no way concerned with the consignment in suit. The further defence is that Eastern Railway Administration has its headquarters at 17 Netaji Subhas Road, Calcutta and not at No. 1 Fairlie Place. It is also contended in the written statement that the Eastern Railway Administration did not and could not have any concern in the consignment and as such the Union of India representing the Eastern Railway has no liability. The further defence will appear from the issues framed at the trial. The following issues were framed at the trial :
1. Has this Hou'ble Court jurisdiction to try or to entertain this suit?
2. Has any part of the cause of action arisen within the jurisdiction of this Hon'ble Court as alleged in paragraph 4 of the plaint?
3. Has the plaintiff suffered any damages? If so, to what extent?
4. Was notice under Section 78B of the Railways Act served as alleged in paragraph 10 of the plaint? If so, was such notice valid and sufficient?
5. Was notice under Section 80 of the Code of Civil Procedure served on the defendant as alleged in paragraph 10 of the plaint? If so, was such notice valid and sufficient?
6. Is the plaintiff entitled to claim interest as alleged in paragraphs 11 and 12 of the plaint?
7. Does the plaint disclose any cause of action as against Union of India carrying on business of Eastern Railway Administration, having its Headquartes at No. 1, Fairlie Place in Calcutta as described in the cause title of the plaint?
8. Is the Eastern Railway Administration a separate legal entity as distinct from the other Railway Administrations for the purpose of filing the suit herein as alleged in paragraph 2 of the written statement? if so, to what effect?
9. To what relief, if any, is the plaintiff entitled?
4. On behalf of the plaintiff there is the oral evidence of Chiranjilal, Sitaram Sarogi, Trilok Chand Masuddi and Radha Ballav Chatterjee. On behalf of the defendant there is the oral evidence of Pran Krishna Chatterjee.
5. The plaintiff's witness Chiranjilal is in employment of the plaintiff firm for some years. His evidence is that the plaintiff entered into the transaction with Surat Cotton Spinning and Weaving Private Ltd. Chiranji Lal said that the Surat Company despatched the goods from Surat to Shalimar and the railway receipt was received from the bank along with the hundi. Chiranji Lal said that the sum of Rs. 17,320 was paid to the bank and he received the railway receipt. Trilok Chand Masuddi, a witness on behalf of the plaintiff said that the plaintiff received a bill in respect of the transaction and the bill was signed by the Manager of Surat Cotton Spinning and Weaving Private Ltd. Sitaram Sarogi another witness on behalf of the plaintiff spoke about the quality of the goods and proved certain transactions at certain rates. There was another witness on behalf of the plaintiff that is Radha Ballav Chatterjj. He is in employment of the plaintiff's solicitor. He proved the acknowledgments in respect of two notices served on the General Manager of South Eastern Railway and the Eastern Railway.
6. The defendant's witness Pran Krishna Chatterjee gave evidence and said that the head office of the Eastern Railway is at 17, Netaji Subhas Road and the building was situate at 1 Fairlie Place. He also said that Fairlie Place was the name of the Street which runs along side the building at 17 Netaji Subhas Road.
7. The important question in this suit is whether this Court has jurisdiction to receive, try and determine the suit. Counsel on behalf of the plaintiff contends that the defendant is the Union of India and the defendant carries on the business of Eastern Railway within the jurisdiction of this Court, and therefore it is said that within the meaning of Clause 12 of the Letters Patent if the defendant carries on business within the jurisdiction of this Court the defendant is liable to be sued here. In the next place it is contended on behalf of the plaintiff that the suit is constituted with leave under Clause 12 of the Letters Patent and the plaintiff attracts jurisdiction of the Court by alleging in paragraph 4 of the plaint that the plaintiff received the railway receipt and made payment to the plaintiff's banker and upon payment became owner of the goods, and all this happened within the jurisdiction of this Court as alleged in paragraph 4 of the plaint and therefore a part of the plaintiff's cause of action arose within the jurisdiction of this Court.
8. Counsel on behalf of the defendant contended that if the doctrine of the Union of India being amenable to the jurisdiction of this Court by reason of carrying on business were invoked it could not be said that the Union of India carried on business of either of the railway administrations or systems which represented the station from which the consignment was despatched or the station to which the consignment was despatched. It was secondly contended that in order to foist liability on the Union of India in respect of a railway administration a notice under Section 80 of the Code of Civil Procedure had to be delivered to the General Manager of that railway to which the suit against the Central Government related and that in the present case no notice having been delivered to the General Manager of the Eastern Railway no liability could be foisted on the Union of India in respect of that railway, In the third place it was contended on behalf of the defendant that Section 78-B of the Indian Railways Act contemplated that a person shall not be entitled to compensation for the loss, destruction, damage or non-delivery of goods unless his claim to compensation had been preferred in writing to the Railway administration to which the goods were delivered to be carried by railway or to the railway administration on whose railway the destination station lies or the loss, destruction, damage or deterioration occurred. It was said on behalf of the defendant that no notice under Section 78-B had been delivered to the Eastern Railway and therefore no claim for compensation could be preferred against the Union of India in respect of liability arising in relation to that railway administration. The fourth contention was that Section 80 of the Indian Railways Act regulated and determined the liability of the railway administration and Union of India had no liability in respect of railway administration otherwise than that laid down in the Railways Act. Section 80 of the Railways Act provides that a suit for compensation for loss of goods may be instituted if the goods were booked from one station to another on the railway of the same railway administration, against that rail-way administration or if the goods were booked through over two or more railway administrations, then the suit would lie against the railway administration from which the goods were delivered for carriage or against the railway administration where the loss occurred. It was said on behalf of the defendant that it was not the present case that the loss occurred in the Eastern Railway administration nor was it the case that there was any booking from the Eastern Railway station or to any station of the Eastern Railway administration and therefore no liability arose.
9. Counsel on behalf of the plaintiff on the other hand contended that Section 79 of the Code of Civil Procedure indicated that a suit would lie against the Central Government and Sec. 80 of the Code of Civil Procedure regulated that notice had to be given in the case where it related to Railways to the General Manager of the Railways and in the present case notice were given to the two railway administrations of South Eastern Railways and Western Railways and therefore the suit against the Union of India was competent by reason of combined effect of Sections 79 and 80 of the Code of Civil Procedure. As to Section 80 of the Railways Act counsel for the plaintiff relied on three decisions. These are Chandra Mohan v. Union of India, AIR 1953 Assam 193 (FB), Natwarlal v. Union of India : AIR1957MP157 and Narayanswami Iyer v. Union of India AIR 1980 Mad 58, Reliance was also placed on the Bench decision of this Court in Dominion of India v. Tagadish Prosad, AIR 1949 Gal 622. Jagadish Prosad's case was doubted in the Bench decision in 86 Cal LJ 98. In the Assam Case (AIR 1953 Assam 193) It was said that where the railway was administered by Government or State a suit under Section 80 of the Railways Act could be brought against the Government or the State concerned and where the railway administration to which the goods were consigned and the railway administration on which the loss occurred were both owned by the same Government a suit could be brought against the State or Government which owned both the railways. In the Assam case there is a discussion at page 195 of the report which indicates that a suit can be brought against the Union of India or the Government concerned which owns the offending railway or the railway administration liable for the loss or damage. But the plaint must clearly Indicate, the facts on which the liability is sought to be fastened on the Union of India. I am uname to accept the contention on behalf of the plaintiff that the Assam decision is an authority for the proposition that when there is liability in respect of a railway administration and no notice has been given to that railway administration a suit against the Union of India would lie to make the Union liable for loss arising in relation to that railway administration. In the Assam decision there does not appear to be any discussion of the liability of the Government by reason of the provisions contained in Section 80 of the Railways Act. The Assam decision shows that a suit against the Government will lie in respect of the railway administration to which the goods were consigned or the railway administration on which the loss occurred. There is no dispute with regard to either of these propositions. The Madhya Bharat decision follows the Assam case and there are no new reasons. The Madras decision, : AIR1960Mad58 holds that one notice under Section 77 to a General Manager of one Government railway concerned in the route over which through traffic passed will be sufficient because all the railways over which the traffic passed, are owned by the Central Government. In the Madras decision there is no discussion of liability being foisted on the Union of India in relation to a railway administration which does not fall within the ambit of Section 80 of the Railways Act. In paragraph 13 following the Madras judgment, : AIR1960Mad58 it is said that it cannot be said that the Central Government has created separate legal entities in regard to different railway systems. Section 80 of the Railways Act is intended to provide for liability for what is called through traffic. Madras decision further says that Section 80 of the Railways Act cannot be tacked on to Section 77 of that Act which contains a rule as to notice. In view of the provisions of Section 78-B of the Railways Act the effect of the Madras decision as to validity of one notice under Section 77 of the Railways Act is displaced by provisions of the statute. Further the Supreme Court held that notice under Section 77 of the Railways Act must be given to every railway administration against whom suit is filed. See : 2SCR832 .
10. Counsel for the Union on the other hand relied on the decision in Dominion of India v. Firm Museram Kishun Prasad, AIR 1950 Nag 85, Upion of India v. Durga Dutt Poddar, : AIR1957Cal202 , Kanyaka Pararneswari Cloth Stores v. Union of India, : AIR1960Ori154 , Darjeeling Himalayan Rly. Co. Ltd. v. Jetmull Bhojraj, : AIR1956Cal390 , Kondapalli Virraju v. Union of India : AIR1959AP594 , Governor General in Council v. Sukhdeo Ram, AIR 1949 Pat 329 in support of the proposition that the provisions of the Railways Act indicated that since different railway administrations were separate entities and the contract was only with the administration that received the goods that administration was the principal party liable to answer the claims or under the provisions of Section 80 of the Railways Act the injured party had the option to sue either the Railway administration with whom the contract was made or the railway administration on whose railway the loss occurred or the destination station lay. In the Nagpur case, AIR 1950 Nag 85 it was said that two consequences arose from Section 80 of the Railways Act. First, each railway administration is to be treated as separate entity and secondly the injured party has option to sue either the railway administration with whom the contract was made or the railway administration on whose railway the loss occurred. In the Madras decision, : AIR1960Mad58 there was reference to the Nagpur decision and it was observed that since the independence of our country all railways were owned by the Union and therefore it could not be said that railway administration were separate entities. The recent changes embodied in Section 78-B of the Railways Act indicate that railway administrations are contemplated as separate units of administration for placing restrictions on preferment of claims against separate railway administrations. In the Nagpur decision it was said that if the Governor General were sued as representing the entire State-owned Railways it would not be a proper form of suit because that would render Section 80 of the Hallways Act otiose and meaningless. The reason given in that decision is that suing the Governor General would not make the Railway Administration a party and it was not only contrary to the scheme of the Railways Act but it would also make Section 80 of the Railways Act inoperative.
11. In the Calcutta decision, : AIR1957Cal202 it was held that Section 80 of the Railways Act and Section 80 of the Code of Civil Procedure contemplated that for the purpose of a suit the different Railways of India must he treated as separate legal entities and there is no warrant for the proposition that it is sufficient to serve one notice under Section 77 against the Union of India as representing all the Railways. It was also said that Section 80 of the Railways Act provided that the suit for compensation might be brought either against the Railway Administration to which goods were delivered or against the Railway Administration on whose Railway the loss occurred and Section 80 of the Code of Civil Procedure provided in the case of a suit against the Central Government where it related to a Railway, a notice to the General Manager of that Railway, and the combined effect of these two sections was that the different railways were to be treated as separate legal entities, The other Bench decision of this Court reported in : AIR1956Cal390 also holds that Section 80 of the Railways Act regulates as to how liability will arise in respect of Railway administrations.
12. The Patna decision. AIR 1949 Pal 329 held that Section 80 of the Railways Act gave the plaintiff the choice of claiming his remedy either against Railway Administration to which the goods were consigned or against the Railway Adminitration on which the loss occurred and that the remedy was alternative and not cumulative. With regard to Sec. 80 of the Railways Act it was said in the Patna decision that the Railway has been made responsible by the statute because the consignor entered into direct contract with that Railway for safe carriage and delivery of the goods and as far as loss on the Railway administration other than the railway administration with which booking was made the liability would arise not on the theory of agency but because of the statutory provisions and Section 80 of the Railways Act being a specific provision effect was to be given to that section irrespective of any other consideration. In other words, the liability is created, determined and regulated by the statute,
13. These rival contentions and the decisions which were cited in support thereof indicate that Section 80 of the Railways Act creates the statutory liability of railway administration and in respect of loss occurring in relation to goods the liability would be of the Union owning the Railway Administration to which the goods were delivered for carriage or the Union owning the Railway Administration where the loss occurred or the Union owning the Railway Administration where the destination station was situated. It is not necessary for me to go into the question as to whether there is any conflict between the decisions cited by counsel for the plaintiff on the one hand and the decisions cited by counsel for the defendant on the other hand. I am inclined to accept the views expressed in the Calcutta, Patna and Nagpur decisions. As far as Section 80 of the Indian Railways Act is concerned the decisions of this Court and of Nag-pur and Patna on which Counsel for the defendant relied establish that liability against the Union of India in respect of Railway Administration would arise if, first a notice under Section 80 of the Code of Civil Procedure is served on the Railway Administration in relation to which the suit is to be filed, and secondly the Union of India can be made liable where goods are booked for carriage over more than one Railway Administration only in accordance with the provisions of Section 80 of the Railways Act, In the present case it is indisputable that the loss did not occur on the Eastern Railway for there is no evidence to that effect nor is that the case of the plaintiff. It is also indisputable that the destination station of the goods was not on the Eastern Railway. It is also an admitted feature of the case that no notice under Section 80 of the Code of Civil Procedure, or under Section 78-B of the Railways Act was served on the Eastern Railway. These statutory infirmities provide immunity to the Union of India in relation to liability being foisted on the Union of India. What the statute does on the one hand is to protect the litigant by creating liability of the Railway Administrations and on the other hand to protect the Government bygiving it immunity from liability if the litigant does not comply with the requirements of the statute. The non-compliance with statutory provisions is the shield as far as the Union of India is concerned in meeting any liability which is the sword with which the litigant will pursue his remedy under Section 80 of the Railways Act. I am of opinion that the plaintiff is unable to succeed by reason of the several obstacles in the way of the plaintiff to which I have already referred. They are to sum up, the absence of notice under Section 80 of the Code of Civil Procedure in relation to the Eastern Railway, absence of notice under Section 78-B in relation to Eastern Railway, immunity of the Union of India in relation to Eastern Railway under Section 80 of the Code of Civil Procedure.
14. The next question is, whether this Court has any jurisdiction by reason of the Union of India carrying on business. Reliance was placed by Counsel for the plaintiff on the decision of the Supreme Court in Union of India v. Ladulal Jain, : 3SCR624 and on the observation appearing at p. 1685 of the Report that if the Union of India carries on business of running railways it can be sued at a place within whose territorial jurisdiction the headquarters of any of the Railway administrations run by the Union is situated. I am unable to accept the contention on behalf of the plaintiff that the Supreme Court has laid down the proposition in that form. In the case before the Supreme Court the consignment was booked from Kal-yanganj, a station on Northern Frontier Railway, for carriage to Kanki, a Station of the same railway. Kalyanganj is situated in West Bengal, Kanki is situated in the State of Bihar. Gauhati was the Headquarters of Northern Frontier Railway. The suit was instituted at Gauhati. The Supreme Court decided that the Government carried on business of Railways and therefore the suit could be instituted at Gauhati where the headquarters of the Railways was situated. To accede to the contention of the Counsel for the plaintiff that since the Union owns several Railways the suit would lie at any place where the Union carries on any railway administration would be to render Section 80 of the Code of Civil Procedure and Section 80 of the Railways Act ineffective and nugatory. The Supreme Court decision has introduced the new concept of the Union of India carrying on business in respect of Railway Administration. That doctrine has been introduced by reason of the profit element arising in Railway Administration. It must be understood that the Union of India will be liable as carrying on business of Railway Administration provided the Railway Administration in respect whereof the liability arose is the Railway Administration to which liability can be fastened by virtue of the provisions of the Railways Act. In the present case if the Eastern Railway were either the despatching station or the destination station or a Railway on which loss occurred and if such loss occurred at any place outside the jurisdiction of the Court or if the stations were outside the jurisdiction of the Court, liability could still be fastened upon the Union of India by virtue of its carrying on the business of running the Eastern Railway Administration within the jurisdiction of this Court. In the present case, us I have already indicated, there is no liability of the Union of India in relation to the Eastern Railway. Therefore the fact that the Union carries on business of the Eastern Railway is of no relevance in attracting the jurisdiction of this Court. If the Union of India had carried on the business of other Railway administrations where the despatching or the destination station were situated or the Railway Administration on which Railway the loss occurred the suit could be filed by contending that the Union carried on the business of those Railway Administrations. If it be said that the Union is liable to be sued at any place where any Railway Administration is carried on the Union will be liable to be sued at Calcutta for carriage of goods from Bom to Delhi. The phrase carrying on business is annexed to the business of that Railway Administration whose liability arises on the statute or on the facts constituting the cause of action against that particular Railway Administration. There was an argument advanced that Fairlie Place is not the head office of Eastern Railway. In my opinion that is a trifle and is always curable by the doctrine of de minimisnon curat lex.
15. As far as allegations in paragraph 4 of the plaint are concerned Counsel for the plaintiff relied on the Bench decision in Commissioner for the Port of Calcutta v. General Trading Corporation Ltd., : AIR1964Cal290 and Alliance Assurance Co. v. Union of India, : AIR1959Cal563 in support of the contention that endorsement would clothe the plaintiff with title to the goods and such endorsement in the present case arose within the jurisdiction. In the Alliance Assurance Co's case, : AIR1959Cal563 Goodyear Tyre and Rubber Co. made an assignment, to the Assurance Company and by virtue of that assignment the Assurance Company sued. In the other Bench decision reported in : AIR1964Cal290 on which reliance was placed by counsel for the plaintiff there are observations as to when a consignor can sue and when a consignee can sue. There are no rigid and abstract propositions. A consignee can sue if it appears that property in the goods passed to the consignee at the time of the delivery of the goods to the Railway. Again the consignee would have the right to sue where the consignor acts as an agent of the consignee and the contract is actually entered into on behalf of the consignor. There may be cases where the consignor puts the goods on rail at the direction of the consignee and in such a case the property is vested in the latter at the time of consignment and the consignee has a right of action. There may also be cases where the consignee named in the Railway Receipt has a proprietary interest in the goods and as such may sue the Railway Administration. In the Bench decision reported in : AIR1964Cal290 , the plaintiff was a mere consignee and it was the plaintiff's case that the plaintiff was not owner or the goods. In the present case it is alleged in paragraph 2 of the plaint that the goods were delivered by Surat Cotton Spinning and Weaving Private Ltd. for carriage to Shalimar and to be delivered to the plaintiff as a consignee of the goods. Counsel for the defendant relied on the decision in Fushraj Thanmull v. Union of India, : AIR1960Cal458 in support of the contention that the contract of carriage was complete and nothing more remained to be done in the present case by way of investing the plaintiff with title of the goods. There is no oral evidence to hold that the title to goods passed to the plaintiff only upon payment or that the term of the contract between the plaintiff and the Surat Cotton Spinning and Weaving Private Ltd. was such that the title to the goods was not to pass until payment or that property in the goods was not to pass until payment or that the consignment was made by file consignor and the consignee had no proprietary interest. These are all matters within the realm of conjectures. In the present case the Railway Receipt shows that the plaintiff was the consignee. Irrespective of that consideration the question arises as to whether mere allegations of endorsement or payment by the plaintiff to the plaintiff's bankers would attract jurisdiction of this Court. These are the voluntary acts of the plaintiff and these are not causes of action. As I have already indicated that if the Union of India carried on the business of either of the Railway Administration to which the goods were delivered for carriage or at which the goods were to be delivered by the Railway to the consignee, the plaintiffs suit would have been competent. In the present case the allegations of payment or of endorsement and the oral evidence of payment and of endorsement, do not, in my opinion, have the effect of clothing the plaintiff with title to the goods or of conferring on the plaintiff property in the goods for there is no evidence to warrant that the title was not complete prior to such payment nor is, there any evidence that the property was not to pass until such payment.
16. If the plaintiff had succeeded on the question of jurisdiction, on behalf of the defendant it was contended that the plaintiff would not be entitled to claim 10 per cent profit. Reliance was placed on the decision in G.A. Jolli v. Dominion of India, AIR 1949 Cal 380, and on the observations appearing at page 389 of the report that when the goods are lost and in consequence the plaintiff loses the profit, the value of the lost goods can be recovered but not profits and the authority for that proposition is British Columbia v. Nettleship (1868) 3 C.P. 499. The loss of profits would be special damages and unless and until notice was given to that effect such damages would not be recoverable. If the plaintiff had succeeded on the issue of jurisdiction, the plaintiff would not in my opinion be entitled to the claim of loss of profit.
17. It was also contended on behalf of the defendant that if the plaintiff had succeeded on jurisdiction the plaintiff would not be entitled to claim interest because no such notice of interest was given to the Union of India in relation to Eastern Railway. The liability is not of Eastern Railway and if the plaintiff had succeeded the liability would have been of the Union of India in relation to other Railways. If the plaintiff would have succeeded the plaintiff might have agitated this question, but I am of opinion that it is not of any relevance in the present case. The result is that the plaintiff is not entitled to succeed. The suit is dismissed with costs.