S.C.Ghosh, C.J. - (1.) This is an appeal directed against a judgment and decree passed by Mr. Justice A. N. Ray on July 19, 20 and 21, 1966. By and under the said decree, the learned Judge passed a decree in favour of the plaintiff respondents for the sum of Rupees 50,437.80 P. In view of the fact that the Great American Insurance Company had paid the amount already to the respondent No. 1, decree was made payable to the Great American Insurance Company. The respondent No. 1 carries on business under the name and style of 'Duffs Mills Agency'. The appellant carries on business under the name and style of Great India Trading Company. The appellant was and is a common carrier of goods by inland navigation. On or about Oct. 5, 1961, the appellant as such common carrier received and accepted at Gauhati in the State of Assam 377 bales of raw jute each bale weighing 150 kilograms the property of respondent No. 1 on board. The appellant's barge bearing No. A/ 5214? was to be towed by a steamer to be safely and securely carried to Calcutta and there to be delivered to the respondent No. 1 in its said business or order. As and by way of evidence of the said contract of carriage the appellant duly issued bill of lading bearing No. R/7226 dt Oct. 5, 1961. The respondent No. 1 subsequently ordered the appellant to deliver the said goods to Titagarh Jute Mills No. 1. At all material times, the respondent No. 1 in its said business was the owner of the said goods. In breach of its duties as such common carrier and or its duties as carrier for reward, the appellant failed and/ or neglected to safely and securely carry the said goods or to deliver the same or any of them to the said Titagarh Jute Mills No. 1 or to the respondent No. 1. The respondent No. 2 by a marine insurance policy dt. 6th Oct., 1961 insured the said goods against risks mentioned in the policy. The respondent No. 2 paid to the respondent No. 1 in terms of the policy the sum of Rs. 82,674/- being the loss suffered by the respondent No. 1 by reason of the aforesaid non-delivery. The respondent No. 1's case is that it has been deprived of the goods, lost their value and suffered damages for the sum of Rs. 82,674/- being the value of the said goods. The appellant in the written statement alleged that the bill of lading was at owner's risk and that the appellant in the forwarding note dt. 29th Sept., 1961 made no admission regarding the weight, quality, quantity, contents and value of the goods shipped and in the bill of lading the shipper's weight and declaration was accepted by the appellant without prejudice.
(2.) The appellant's further defence is that the goods were carried under 3 special contract namely that the appellant was not responsible for the loss or of any damage to goods arising from an act of God, strandings, grounding, collision, snags or accident or dangers of the rivers, canals, locks or navigation or for any Joss or damage however occurring to any property towed to the appellant for carriage except such as notwithstanding any contract to the contrary the appellant would be liable for under the express provision of any act in force for the time being. The third defence is that under a special contract dt. 29th Sept. 1961 no claim in respect of the contract shall be valid unless in writing and delivered at the office of the appellant in Calcutta within 4 weeks from the date of any default, loss or damage in respect of which such claim arises. The 4th defence is that the forwarding note dt 29th Sept., 1961 provided that in event of any of the terms of the forwarding note conflicting or appearing to conflict with the terms of any other agreement between the shippers and the appellant, the terms of the forwarding note or such agreement would prevail at option of the defendant. In to far as there may be no conflict or appearance of conflict between either of the said two terms mentioned hereinabove and any of the terms of the said bill of lading, the appellant has exercised the option in favour of the said two terms being paramount. The next defence is that the goods were lost in the circumstances alleged in para 7 of the written statement and that the loss arises from an act of God and or grounding or collision or snags or accident or dangers of the rivers or navigation. The next defence is that the towing vessel Rampuria was under the supervision and control of the pilot appointed by the Government of Pakistan and/or appropriate authorities controlling the rivers and that the appellant is not responsible or liable for the loss of the goods or damages to the respondent No. 1. The further defence is that if and in so far as the sinking of the boat was caused by any error or judgment on the part of the pilot Sarang or any other person controlling or directing man oeuvre of the towing vessel or the boat, the appellant is not responsible for the loss of the goods. Finally it is alleged that inasmuch as neither of the respondents delivered any claim in writing at the office of the appellant at Calcutta within 4 weeks of 10th Oct., 1961 being (the) date when the boat or the carriage sank at Khulna, the suit is not maintainable and the claims are not valid under the terms or condition of the forwarding note on which the appellant opted and opts to rely. Various issues were raised at the trial. The main contention raised by the appellant was that the respondent No. 1 was not the owner of the goods at all material times. Punam Chand Jain deposes about the ownership of goods. According to his evidence respondent No. 1 was the owner of the goods at all material times. Reference may be made to the question 17 to 50 (in chief) pages 14 to 17 of the Paper Book, questions 127 to 136, questions 205 to 215 and questions 250 to 258 fin cross-examination), pages 26 and 27, 34-35 and 40 of the Paper Book. There was no cross-examination on the point of ownership by the appellant's counsel.
(3.) Then Brajmohan Mantri of the firm of Jute Distributors who are the purchasing agent of Duffs Mills Agency deposes about the ownership of the goods. He says in questions 24 and 25 (in chief) page 59 that the Duffs Mills Agencies are the owners of the goods. In question 31 at page 60 he says that in the bill of lading the jute was diverted to Tilagarh Jute Mill, In cross-examination in answer to questions 124 to 150 he says about the direction for diversion of the goods. Again in cross-examination questions 215 to 220 page 82-83 he says Titagarh Jute Mills No. 1 is a name of a jetty. Reference also may be made to the questions 224 to 234 at pages 83-35. The appellant's counsel is merely fishing for information. The appellant's witness Chandraj Kochar contends about change of ownership on the basis of the diversion note in Ext. C. It is the common case that the plaintiff No. 1 was not the owner of the goods when the same was despatched on board the ship M. V. Rampuria and or the barges attached to it belonging to the appellant The bill of lading also says that the respondent No. 1 consigned the goods to self or to its agent at Calcutta. The respondent No. 1 thereby regained the possession and reserved the right of disposal of the goods the the completion of the voyage. In the circumstances aforesaid, the burden of proving that the respondent No. 1 is not the owner is on the appellant. See Section 110 of the Evidence Act. Sukul Brothers v. H. K. Kavrana, AIR 1958 Cal 730 Commissioner for the Port of Calcutta v. General Trading Corporation Ltd. The appellant's contention that the property in the goods did pass to Titagarh Jute Factory Company Limited during transit is erroneous because of the following reasons: (a) There is no endorsement on the bill of lading to such effect (see Ext. C, page 324) See Scrutton on Charter Party and Bill of Lading, 18th Edn., Article 91 page 181. (b) Words of the alleged endorsement not sufficient to pass property. (Kochar questions 89 to 91 page 102 Questions 129 to 131 page 107). Reference in this connection may be made to Lewis v. Mkee (1868) 4 Ex Ch 58, where it was held that the words in the endorsement "Delivered to W and K or order looking to them for all freight, dead freight and demurrage without recourse to us" considered to be not endorsement to pass property. (c) Further there is no legal entity called Titagarh Jute Mill Company No. 1. (Brajomohan Mantri Questions 215 to 220 page 82-83). (d) The bill of lading is not transferable on the face of it because the goods are to be delivered to the respondent No. 1 or his agent at Calcutta. If bill of lading does not appear to be transferable where it requires the goods to be specified, therein to be delivered to a named person ordering to a reference to his order or assignees (sic). (e) The respondent No. 1 shipped the goods and by the bill of lading the goods are deliverable to self or to the respondent No. 1's agent. The respondent No. 1 is prima facie deemed to have reserved the right of disposal of the goods. (Section 25 of the Sale of Goods Act). (f) The appellant has not tendered any contract between the plaintiff and the Titagarh Jute Factory Company Limited or any other reliable piece of evidence to show that there was a valid contract for sale between the respondent No. 1 and the Titagarh Jute Factory Company Limited or that property in the goods passed to the latter company.;