Decided on August 24,1973

SANKAR STORE Respondents


- (1.) THE appellant is the defendant in a suit for recovery of Rs. 2904. 50 p. on the following averments:-Plaintiff no. 2 carries on business in cloth at Nayasark, Cuttack in the name and style of Sankar Store, which is plain-tiff No. 1. Plaintiff No. 1 is neither a partnership firm nor a company. Plaintiff No. 2 on behalf of plaintiff No. 1 placed orders with Shewdayal Mohanlal of 15, Noormal lohia Lane, Calcutta for one bale of cloth price of which has been stated in the Schedule of the plaint as amounting to Rs. 2887. 50 p. The goods were sent by the seller through the South Eastern Railway by booking the same at Howrah Railway Station under P. W. B. (Parcel Way Bill) No. 156923 dated 19-7-63 (Ex. 2), for delivery at Cuttack. This Ex. 2 shows the seller, Shewdayal Mohanlal of Calcutta, to be the sender and plaintiff no. 1, to be the consignee. The entire bale of cloth was lost in transit and could not be delivered to the plaintiffs. It is alleged by the plaintiffs that this non-delivery was on account of gross negligence and misconduct of the employees of the defendant. The plaintiff served notice on the defendant under Section 80, C. P. C. and under Section 78b of the Indian Railways Act on 9-10-63 demanding payment of the amount in claim in the suit. As the notices were not complied with by the defendant, the present suit has been filed.
(2.) THE main defence contentions, inter alia, are that the suit is not maintainable as there was no proper and valid notice under Section 80, C. P. C. and further, that the plaintiffs as mere consignees, have no right of suit specially when title to the consignment has not passed to them.
(3.) THE trial court dismissed the suit holding that title in the goods had not passed to the plaintiffs by the time of consignment of the same to the Railways and, as such, they could not maintain the suit as mere consignees. He, however, found that the loss of the consignment was on account of negligence and misconduct of the Railway servants.;

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