D.K. Mahajan, J. - (1.) THIS second appeal is directed against the concurrent decision of the Courts below dismissing 'the Plaintiff 's suit for recovery of Rs. 5,000/ - against Defendant No. 1. The suit was decreed 'against Defendant No. 2 who has not appealed. The present appeal is by the Plaintiff. The claim in appeal is that the suit should have been decreed against Defendant No. 1 as well.
(2.) THE Plaintiff is a firm of commission agent and cloth dealers running business in Maliwara, Delhi, under the name and style of Mussadi Lal -Phool Chand. This firm sent a consignment of cloth vide PWB No. 892150 to Defendant No. 2 at Meerut. Defendant No. 2 is Messrs. Bhiwani Dass Narsingh Dass, Cloth Merchants, Meerut City. The Railway Receipt was sent through Bank and was only to be delivered to the consignee Defendant No. 2 on payment of Rs. 4814/7/6 together with bank charges and interest up to the date of payment. The amount, on the payment of which the Railway Receipt was to be delivered, was the price of the goods. The Plaintiff also sent a letter under registered cover to the Station Master, Meerut, to the effect that the goods covered by the aforesaid P.W.B. be not delivered to the consignee without the production of the P.W.B. This letter specifically prohibited the delivery of goods to the consignee on his furnishing an indemnity bond. This letter reached the Station Master on the llth July 1952. The letter is dated the 9th July, 1952, and is Exhibit P. 1/1. In spite of this letter the Railway authorities delivered the goods to the consignee after receiving from him an indemnity bond on the 12th July, 1952. When the Railway Receipt was returned to the Plaintiff -consignor, the Plaintiff demanded the goods from the Railway authorities and was told that they had already been delivered to the consignee. This led to the present suit for recovery of the price of the goods. The suit was filed against the Union of India through the General Manager, Northern Railway, Delhi, and Defendant No. 2, the consignee. Defendant No. 2 did not contest the suit. The suit has been contested by Defendant No. 1, the Union of India. A large number of pleas were raised and it is not now necessary to notice all of them. The principal plea taken was that the property in goods had passed to the consignee and, therefore, the direction of the Plaintiff in the letter, Exhibit P. 1. was of no consequence and would not fasten any liability on the Union of India for having disregarded the same. It may also be mentioned that a false plea was raised by the Union of India that the letter Exhibit P -1/1 reached the Railway authorities after the goods had been delivered, to Defendant No. 2, Both the Courts below have found as a fact that the letter reached the Railway authorities a day before the goods were delivered to the consignee. The trial Court held that the property in the goods had passed to the Defendant -consignee and, therefore, the Plaintiff had no right of lien over them. It was also held that the Plaintiff had no right of stoppage of goods in transit. On these findings it was held that the railway administration was not liable. This finding of the trial Court was affirmed in appeal by the Additional District Judge. He, however, also held that the railway officials concerned acted in a bona fide manner in making over the goods to the consignee on his furnishing an indemnity bond in spite of the letter Exhibit P. 1/1 which specifically prohibited them from doing so except on the production of the P.W.B. The sole question that arises for determination is whether the property in goods had passed to the consignee. It is not disputed by the learned; counsel for the Union of India that if it is held that the property in goods did not pass to the consignee, the Plaintiff would be entitled to a decree against the Union of India. Though he lays stress on the finding in favour of the Union of India to the effect that the delivery of goods against the directions of P.W.B. was bona fide yet he maintains that on the admitted and proved facts, the only finding which can be arrived in the goods had passed to the consignee.
(3.) IT is not disputed and indeed it could not be that the following facts stand proved on the record: (1) The goods were booked at the Delhi station for Meerut by the Plaintiff in the name of Defendant No. 2. The P.W.B. was also drawn in the name of Defendant No. 2. (2) The P.W.B. was not sent to Defendant No. 2 but was sent to the Punjab National Bank Limited, Meerut, for delivery to the Defendant on payment of the price of goods, bank charges and interest up to the elate of payment. (3) That, a registered letter was sent by the Plaintiff to Defendant No. 1 not to deliver the goods to Defendant No. 2 without the production of the P.W.B. It was specifically made cleat in the letter that the goods are not to be delivered on furnishing of an indemnity bond by Defendant No. 2. This letter reached the Station Master a day before the Railway authorities delivered the goods to Defendant No. 2. On the basis of these facts it has to be determined whether the property in the goods was intended to pass to Defendant No. 2 and that it did actually pass? If it is held to the contrary, the railway must be held to be liable for the price of the goods as they flouted the clear instructions of the owner in the letter Exhibit P. 1/1.;