Decided on June 17,1970

Shree Shyam Stores Appellant


P.K. Goswami, J. - (1.) This second appeal is directed against the judgment and decree of the learned Subordinate Judge, Tezpur, reversing those earlier of the learned Munsiff.
(2.) The material facts which are necessary for the purpose of deciding this second appeal are as follows: Messrs Sarita Oil Mills booked a consignment of one tank linseed oil at Indore station of Western Railway under Railway Receipt No. 77904 dated 30/31 -3 -52 (Ext. 1) for carriage and delivery to self at Tezpur. The railway receipt was first endorsed to Messrs Bhojumal Sons who again endorsed, the same in favour of Messrs Hiranand Rajaram. Messrs Hiranand Rajaram endorsed it in favour of the Bank of Bikaner who again endorsed it in favour of the State Bank of India and the State Bank of India endorsed it in favour of the Plaintiff, Messrs Shree Shyam Stores. Messrs Hiranand Rajaram issued a demand draft (Hundi. Ext. 2) on the Plaintiff for the sum of Rs. 2C5v\77.25 being the value of the R. R. No. 77904 through the State Bank of Bikaner to be paid on demand to the order of the State Bank of Bikaner and the Plaintiff released the R.R. by paying the said amount plus other, bank charges from the State Bank of India, Tezpur, in whose favour the State Bank of Bikaner endorsed the R. R. The Plaintiff took delivery of the consignment which arrived in damaged condition at Tezpur sometime in May 1962 and he received 803 Kgs. linseed oil short as per certificate of shortage dated 9 -6 -62 (Ext. 4), It appears that the consignment from the original tank wagon, which was found damaged at Katihar due to mechanical defects, was transshipped into another tank wagon in which it arrived at the destination station.
(3.) The Plaintiff claims in the suit a sum of Rs. 1700/ - as compensation for short delivery of the oil. The trial court decreed the suit, but the learned Subordinate Judge dismissed it on three grounds: firstly, that the Plaintiff being a firm has not proved the Certificate of Registration - a point which has not been pressed here by the Respondent as indeed a Certificate of Registration was filed in the trial court; secondly, and this is the main ground, that the Plaintiff has no right to sue as he has not established that the consignor has endorsed the R.R. for valuable consideration to him or to any of the endorsees from whom he has claimed: thirdly, the Plaintiff has not proved the short delivery. The third ground may not be of importance if the Plaintiff fails on the second ground We will, therefore, take this first.;

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