- (1.) THIS second appeal filed on behalf of Union of India arises out of a suit filed by the plaintiff-respondent for recovery of Rupees 19731- along with interest and costs of the suit.
(2.) THE facts as alleged by the plain tiff were that the defendant respondent No. 4 who is a dealer in cloth in Assam State had purchased some cloth from the plaintiff-res pondent on credit and in order to pay its price sent currency notes worth Rs. 1973.00 in an insured cover from Assam addressed to the plaintiff at Tanda in District Faizabad. The delivery of this insured cover was taken at the post office Tanda by the plaintiff's man after signing a receipt to the effect that the insured cover had been received by him with its seals intact. But after opening the envelope he found that instead of currency notes it contained only waste paper pieces. He, therefore, made a complaint to the post office. He suspected that the currency notes had been taken out from the envelope by some postal employee by adopting some subtle device so as not to tamper with the seals and yet replace the currency notes by waste papers. The plaintiff, therefore, filed a suit against the Union of India, the Director Gene ral of Post and Telegraph Department and the purchaser of goods in Assam who had sent this insured cover to him. He prayed for a decree either against the defendants 1 and 2, if it was found that the defendant No. 3 had put the currency notes in that enve lope and the same had been excreted by the postal employees' during transit or a decree, for that amount against the defendant No, 3 if it was found that this defendant had failed to put the currency notes in the envelope. The trial court held that the defendant No. 3 had put the currency notes in the envelope which was sent under insur ed cover to the plaintiff but the plaintiff on reopening the cover found only waste pander in it instead of currency notes. He, however, held that the Government was not liable for the loss of the currency notes from this enve lope in view if Sec. 33 of the Indian Post Office Act read with R. 175 of the Indian Post Office Rules. The suit was not decreed against the defendant No. 3 also because it was found that there was an implied agree ment between the parties to send the money by the defendant to the plaintiff by this mode and the money was actually sent by that mode by the defendant No. 3. The suit was accordingly dismissed.
(3.) ON an appeal filed by the plain tiff the lower appellate court agreed with the finding of the trial court that the defendant No. 3 had put the currency notes in the envelope addressed to the plaintiff and that the defendant No. 3 had the implied autho rity of the plaintiff to send the money by that mode and as such the defendant No. 3 was not liable. The learned appellate Judge also agreed with the finding of the trial court that the envelope when it was deliver ed to the plaintiff's man was apparently in a sound condition with its seals intact but he found that the currency notes had been taken out from this envelope by some postal employee during transit by adopting some subtle device without tampering with the seals put on the envelope. He was of the opinion that this wrongful act was done by some employee of the post office in the course of his employment for which Government was liable and that Section 33 read with Rule 175 did not afford any protection to the postal department. The suit was accord ingly decreed against the Union of India and the Director General, Post and Telegraph Department, who feeling dissatisfied with this decree filed this second appeal.;