A.K.Mukherjea, J. - (1.) This is an appeal against two judgments dated April 4, 1957 and February 6, 1959 respectively as well as a decree dated February 6, 1959 passed by Mallick, J. The suit was filed by a company called the General Trading Corporation, hereinafter called the plaintiff company, against the Union of India and the Commissioners for the Port of Calcutta. The present appeal is by the defendant No. 2, viz., the Commissioners for the Port of Calcutta who will be hereinafter referred to as the Port Commissioners.
(2.) The facts on which the plaintiff Company have founded their claims against the defendants are shortly as follows: The General Trading Corporation Ltd. hereinafter referred to as the plaintiff Company were the consignee in respect of three consignments of woollen carpets consigned by Messrs. Obetee Ltd. On January 27, 1951, February 3, 1951 and February 5, 1951, respectively, 33 bales, 19 bales and 16 bales of woollen carpets were delivered by the said Messrs. Obetee Ltd., to the East India Railway Administration at Mirzapur Station of the said Railway for carriage to Kidderpore Docks, a station on the railway system belonging to the Port Commissioners. Another consignment of woollen carpets was consigned by Messrs. Rahamatulla and Bros., on January 1, 1951. This consignment consisted of 9 bales and 8 rolls of woollen carpets and was also delivered at the same station viz., Mirzapur station for carriage to Kidderpore Docks. Messrs. Rahamatulla and Bros. were also the consignees in respect of this consignment and they endorsed the railway receipt relating thereto in favour of the plaintiff. The said goods not having been delivered to the plaintiff the plaintiff Company filed this suit against the Union of India as the owner of the East India Railway Administration and the Port Commissioners as the owner of the railway system to which Kidderpore Docks belonged. The particulars of the plaintiffs' claims are set out in paragraph 5 of the plaint. They have claimed Rs. 2,83,527-9-8 pies as the value of the carpets forming the contents of the four consignments and Rs. 28,352-11-11 pies as loss of profits and also a sum of Rs. 1,405-11-0 pies as freight.
(3.) The defendant Union of India alleged that all the four consignments delivered to them by either Messrs. Obetee Ltd. or Messrs. Rahamatulla and Bros, were duly handed over by them to the Port Commissioners and that the goods were burnt or destroyed in the fire that broke out in No. 1 Garden Reach Jetty on or about February 17, 1951 under circumstances beyond the control of either of the defendants. The defendant Port Commissioners have also filed a written statement. They do not admit any of the facts alleged in the plaint. Alternatively, they state that the goods covered by the railway receipts mentioned in the plaint were all stored in No. 1 Garden Reach Jetty on various dates in February, 1951. They claim to have taken as much care of the said goods as a man of ordinary prudence would under similar circumstances take of the goods throughout the time they were in their possession. The goods were lost or destroyed by reason of the fire of February 17, 1951. In spite of their best efforts the defendants could not extinguish the fire of the goods forming the subject-matter of the plaintiff's claims in this suit. The defendant Port Commissioners have also taken the plea that the plaintiff has no cause of action and also that the suit is barred by limitation by virtue of the provisions of the Calcutta Port Act, 1890. On these pleadings, the following issues were settled by Mallick, J. for determination: 1. (a) Did Obetee Ltd. deliver bales of Woollen Carpets to E. I. Rly. administration at Mirzapore as alleged? (b) Was the plaintiff consignee of the goods mentioned in paragraph 1 of the plaint? (c) Are the particulars of the goods set out in paragraph 1 of the plaint correct? 2. (a) Did Rahamatullah and Brothers deliver bales of rolls of woollen carpets to E. I. Railway administration at Mirzapore as alleged or at all? (b) Were Rahamatullah and Brothers Consignee in respect of the said consignment? (c) Are the particulars of the goods mentioned in paragraph 2 of the plaint correct? 3. Has the plaintiff any claim for delivery of the goods as against these defendants? 4. Were the goods lost by reason of misconduct and/or negligence of these defendants or of their servants or agents? 5. Did these defendants convert any of the goods ? 6. Did the plaintiff suffer any damages as alleged in paragraph 5 of the plaint? If yes, what damages did the plaintiff suffer? 7. Are the notices mentioned in paragraph 7 of the plaint valid and sufficient? 8. Were the goods landed and stored in No. 1, Garden Reach Jetty belonging to these defendants on various dates in February, 1951? 9. Did these defendants take care of the goods in the manner stated in paragraph 8 of the written statement? 10. Were the goods lost by reason of a fire in No. 1 Garden Reach Jetty on 17th February 1951 from some unknown cause? 11. Has the plaintiff any cause of action against these defendants? 12. Did the plaintiff without any fault of these defendants failed to remove the goods from the said premises of these defendants within 3 working days from the said landing? 13. Is No. 1 Garden Reach Jetty a warehouse licensed under Section 16 of the Sea Customs Act, 1878 ? 14. Did the goods at the time of the alleged loss or damage on February 17, 1951 remain on the premises of these defendants at the sole risk and expense of the plaintiff by and under the provisions of section 113, Sub-section (2) of the Calcutta Port Act, 1890? Are the defendants liable in respect of the said loss or damage? 15. Is the suit barred by limitation by virtue of the provision of Section 142 of the Calcutta Port Act, 1890? 16. Is the suit maintainable against defendant No. 1? 17. Has the Court jurisdiction to entertain the suit against defendant No. 1? 18. To what relief, if any, is the plaintiff entitled ?;