A.N.RAY, J. - (1.) THIS is a suit for the recovery of Rs. 11,375/ - being the value of 65 bales of Mesta Special Tops Jute, On or about 21 January, 1949, Messrs. Kodamull Nahata made over to the East Indian Railway at Dhuliangunge 65 bales of Mesta Special top for consigning same from Dhuliangunge to Cossipur Road as per contract contained in or evidenced by invoice No. 335 and Railway Receipt No. 10132 dated 21st January, 1949. In paragraph 3 of the plaint it is alleged that the Railway Receipt was endorsed and/or made over to the plaintiff at Calcutta within the jurisdiction aforesaid for valuable consideration. The plaintiff applied for the delivery of the goods but the goods were not delivered. The plaintiff alleges mat such non -delivery was due to the negligence or mis -conduct of the agents and servants of the East Indian Railway.
(2.) IN the written statement it is denied that there was any negligence or misconduct on the part of the Railway Administration or that the Railway Administration failed to take proper care of the goods while they were in the possession of the railway. In paragraph 5 of the written statement it is further alleged that in due course of transit while the train was standing at Salar station the wagon containing consignment accidentally caught fire on 23rd January 1949 without any fault or negligence on the part of the Railway Administration and the whole of the consignment of jute was destroyed in spite of due diligence and all efforts of the Railway Administration to extinguish the fire. In paragraph 6 of the written statement it is alleged that at about 11 -35 a.m. on 23 -1 -1949 while the train was standing at a railway siding at Salar Station a fire was noticedin the wagon which was the fifth one from the engine. To prevent the fire spreading to other wagons and to avoid the fire in the wagon the wagon was immediately detached and placed in the goods shed. The door of the wagon was opened and the wagon was found to be full of smoke and the bales of jute were found to be on fire. In spite of best efforts by the railway staff to extinguish the fire by means of fire extinguisher and continuous spray of water over the burning bales incessantly for four hours the fire went beyond control and the whole of the consignment was burnt and destroyed. The following issues were framed at the trial: 1. Was the railway receipt No. 101332 dated 21st January 1949 endorsed or made over to the plaintiff for valuable consideration as alleged in paragraph 3 of the plaint? If so. (a) what is the effect thereof? (b) has the plaintiff as such endorsee or holder any cause of action against the defendant? 2. What goods were booked under Invoice No. 835 - Railway receipt No. 101332 dated 21st January, 1949? 3. What was the value of the goods booked under Invoice No. 335, Railway receipt No. 101332 dated the 21st January, 1949? 4(a). Did the consignment covered by the said Railway receipt No. 101332 dated 21st January, 1949, catch fire on the 23rd January 1949 as alleged in paragraph 5 of the written statement? (b). Was the whole consignment destroyed as a result of the said fire in spite of due diligence and efforts made by the railway administration? (c). Did the fire break out due to any negligence or misconduct on the part of the servants or agents of the railway authorities? (d). Did the railway authorities take as much care of the consignment both before and after the fire as a man of ordinary prudence would have taken of Ms own goods? 5. Is the plaintiff's alleged claim barred by the law of limitation? 6. Is the notice under Section 80 of the Code of Civil Procedure valid and sufficient? 7. Has any part of the alleged cause of action of the plaintiff arisen within the jurisdiction of this Hon 'ble Court? 8. To what relief, if any, is the plaintiff entitled?
(3.) ON behalf of the plaintiff. Thanmull Bapna, a partner of the plaintiff firm, was examined. He stated that he met Kodamull Nahata on the 15th January, 1949 at the plaintiffs guddy at Calcutta. The plaintiff firm had purchased the goods from Kodamull Nahata and the money was paid on 15th January 1949. All this happened on 15th January 1949. The plaintiff firm received the railway receipt on or about the 22nd or 23rd January, 1949. There was some cross -examination as to the books of the plaintiff firm as to whether the transaction between the plaintiff and Kodamull Nahata was recorded in the books. In Q. 68 the plaintiff stated that there was no such entry. The plaintiff's witness stated that a hundi was drawn in respect of the goods and that was paid. The witness referred to certain books of account, like Roj Namcha Book. In question 90 following, the witness referred to such entries in the books.;