- (1.) THIS is a plaintiffs appeal against the decree of the First Additional Civil Judge, Banaras, whereby out of a claim of Rs. 6,436-14-0 only a sum of Rs. 2,939 was decreed and the rest was dismissed. The plaintiff has, therefore, filed the instant appeal about the balance of its claim.
(2.) THERE is no controversy about the facts in this case. The plaintiff-firm Deokishan Srigopal carried on whole-sale cloth business at Banaras and was also appointed as importer of cloth for the district of Banaras and in that capacity used to import cloth from places outside the Uttar Pradesh. The dispute relates to ten items of consignment which were booked from four places situate in the Bombay Presidency, which were served by the Great Indian Peninsula Railway and Bombay Baroda and Central India Railway, hereinafter called the G. I. P. R. and B. B. and C. I. R., respectively. Admittedly the destination station was Banaras situate on the East Indian Railway. There is also no dispute about non-delivery or short delivery of the ten consignments which are as follows :- 1 . Short delivery valued at Rs. 563-7-0. 2. (a) Non-delivery valued at Rs. 1,088-8-0. 2. (b) Short delivery valued at Rs. 82-8-9. 3. Short delivery valued at Rs. 2,648-2-0. 4. Short delivery valued at Rs. 290-14-0. 5. Short delivery valued at Rs. 57-13-6. 6. Short delivery valued at Rs. 82-14-9. 7. Short delivery valued at Rs. 38-11-0. 8. Short delivery valued at Rs. 794-7-0. 9. Short delivery valued at Rs. 128-2-0. 10. Short delivery valued at Rs. 377-5-8. 2a. The case of the plaintiff was that the non-delivery in one consignment and shortage in other consignments were due to misconduct and negligence on the part of the defendant Railway Administration, The claim under S. 77 of the Railways Act in respect of the above items was made by the plaintiff to the Chief Commercial Manager. East Indian Railway, herein-after called E. I. R. But similar claims were not lodged with the authorities concerned of the G. T. P. R. or B. B. and C. I. R. Later on the plaintiff gave notices under S. 80 of the Code of Civil Procedure on 23rd November 1948 to all the General Managers of the three Railway Administrations namely, E. I. R., G. I. P. R. and B. B. and C. I. R. calling upon them to make good the loss suffered by the plaintiff together with interest at 6 per cent per annum. However, the Railway Administrations did not pay any heed to the claim of the plaintiff; it was, therefore, obliged to file Suit No. 21 of 1949 for the recovery of Rs. 6,436 against the Dominion of India as well as the General Managers, E. I. R., G. I. P. R. and B. B. and C. I. R. .In the aforesaid suit the plaintiff did not claim damages in respect of item No. 1, containing shortage of Rs. 563-7-0. The Court below was, therefore, no longer concerned with the claim relating to item No. 1 and had only to deal with the remaining nine items. The suit was resisted by the Dominion of India on its own behalf and on behalf of G. I. P. R. and B. B. and C. T. R., who had been arrayed as defendants Nos. 3 and 4, respectively. Inter alia, the defence pleas were that valid notices under S. 77 of the Railways Act and under S. 80 of the Code of Civil Procedure were not served; the defendants were protected under S. 80 of the Railways Act; and that the suit was barred by time. There were certain other pleas also with which we are no longer concerned.
(3.) THE Court below decreed the plaintiffs suit for items Nos. 3 and 4 only awarding Rs. 2,939 by way of damages for the loss sustained by the plaintiff on account of short delivery of the two consignments in question. The defendants did not file any appeal or cross-objection in respect of this part of the decree, with the result that it has become final between the parties.;