- (1.) THIS is an appeal by the defendants Union of India through the General manager, Northern and Western Railways, against the judgment and decree of the district Judge, Alwar, dated the 4th July, 1955, decreeing the plaintiffrespondent's suit for an amount of Rs. 48,349/11/3 with proportionate costs and allowing two months time within which the defendants should pay the decretal amount.
(2.) THE plaintiff-respondents instituted a suit on the 6th July, 1951 in the Court of district Judge, Alwar, against the Union of India, represented through the General manager, East India Railway, Calcutta and the General Manager, B. B. and C. I. Railway, Bombay , predecessors-in-interest of the present railways. The plaintiffs put forward their case in the plaint as follows: they described themselves as partners of a firm known as Laxminarain harnarain, registered under the provisions of the Partnership Act. Their firm used to carry on business at Kedalganj, Alwar. Their case was that on 13th October, 1950 they despatched from Alwar Station 270 bags of rape-seeds weighing 610 maunds and 35 seers through Invoice No. 1, R. R. No. 80597 for Allahabad Station through B. B. and C. I. Railway. The goods were consigned in favour of self. Similarly, on 14th October, 1950, the plaintiffs booked another consignment from Alwar Station of 300 bags of rapeseeds weighing 678 maunds and 30 seers through invoice No. 3, R. R. No. 80614 dated 14th October, 1950 for Allahabad station. These bags were also consigned in favour of self. The plaintiffs sent the railway receipts through the United Commercial Bank Ltd. , alwar Branch, to the said bank at Allahabad, with instructions to hand over them to Nand Kishore on payment of the full price of the goods consigned. Although the plaint does not contain the necessary allegations, it appears that Nandkishore did not pay the price of the goods to the bank and did not obtain the railway receipts from the bank with the result that the railway receipts were sent back to the plaintiffs, but these allegations are not in dispute and have been mentioned here to give a correct picture of the case. The plaintiff's case further is that their representative went to Allahabad Station to obtain delivery of the consignments through these railway receipts on 1st November, 1950 and several times thereafter, but the defendant, the East India Railway, did not give delivery of the goods nor did it make any note of production of these railway receipts or of refusal of delivery of goods on these railway receipts. The plaintiffs thereupon served the railways initially with a notice under Section 77 of the Indian Railways Act and thereafter with another notice under Section 80 of the Code of Civil Procedure and then filed the present suit. The plaintiffs claimed compensation as under: (a) Rs. 48,345/12/3 being the cost of 570 bags of rape-seeds pertaining to R/r Nos. 80597 and 80614; (b) Rs. 4,834/9/- being the probable profits at approximate rate of 10% on the cost of goods which the plaintiffs would have earned; (c) Rs. 2,864/8/- being the interest by way of compensation on the cost of goods as the plaintiffs' money was blocked due to non-delivery of the goods; and (d) Rs. 3/15/- as expenses of notices.
(3.) THE total amount thus claimed was Rs. 56,048/12/3. Both the railways as defendants filed separate written statements. They admitted that the goods as mentioned by the plaintiffs were consigned by the plaintiffs from Alwar to allahabad in their own favour. They also did not dispute the fact that the goods could not be delivered to the plaintiffs. They, however, denied their liability for compensation. Their main plea for escaping the liability was fully described in their additional pleas as follows: "that enquiries made by the railway administration so far reveal that a gang of cheats, one of whom represented himself as Seth Nand Kishore, proprietor of a bogus firm styled as "brijlal Nandkishore", the other as pannalal, Manager of the said firm and so on, visited Alwar and asked the plaintiffs to purchase a big lot of rapeseeds on their behalf. They paid a sum of Rs. 501/- or so to the plaintiffs and requested them to despatch 570 bags of rapeseeds out of the lot purchased to Allahabad and present the Railway Receipts and hundis to them there through bank. " Their further case was that the plaintiffs acting on the representations of the said cheats booked the suit consignment. The cheats, according to the defendants, got booked six bags of oil cakes under five different railway receipts under the name of Messrs. Pannalal Ramlal, Suchit House, Seshdham Road, Alwar, as senders to self as detailed in para 16 of the written statement. The defendants' further case was that after obtaining the railway receipts pertaining to the consignment of oil cakes, the culprits erased numbers and some other particulars of two of the railway receipt numbers 80606 and 80610 dated 13th October, 1950 relating to consignments booked to Phaphund and Mirzapur respectively and forged the particulars of railway receipt numbers 80597 dated 13-10-50 and 80614 dated 1410-50 into the said railway receipts. The consignments arrived at Allahabad on 2110-50. The same day one Gangaprasad, a representative of Messrs. Rameshwar oil Mills, Allahabad, presented Railway Receipt No. 80597 dated 13-10-50 (which subsequently turned out to be a forged Railway Receipt) to the goods clerk, allahabad and demanded delivery of the consignment. Since Messrs. Rameshwar oil Mills were a well-known party and their representative Gangaprasad had been visting the railway and taking delivery of consignments on behalf of his employers every now and then for a number of years and an examination of the Railway receipt by the naked eye did not create any suspicion, the delivery clerk granted delivery of the consignment unsuspectingly in the ordinary routine in good faith. Similarly, on 22-10-50 one Panalal accompanied by the said Gangaprasad, representative of Messrs. Rameshwar Oil Mills, presented Railway Receipt No. 80614 dated 14-10-50 (which subsequently turned out to be a forged one) to the goods clerk, Allahabad and demanded delivery of the consignment. The said gangaprasad also represented to the goods clerk that the goods relating to the railway Receipt had been purchased by Messrs. Rameshwar Oil Mills and that the said Panalal was the manager of the consignor firm Messrs. Laxminarain harnarain. In this case also an examination of the Railway Receipt by the naked eye did not create any suspicion and consequently the delivery clerk granted delivery of the consignment unsuspectingly in the ordinary routine in good faith. Thus the defendants pleaded loss of goods in spite of all reasonable care. The defendants also disputed the plaintiffs' ownership of the consigned goods and pleaded that the suit at their instance was not maintainable. The defendants did not admit the amount of compensation and tried to shift the burden on the plaintiffs to prove all that.;