Shiv Nath Katju, J. - (1.)This is a plaintiff's cross -appeal arising out of a suit for recovery of Rs. 15,680/ - together with pendente lite and future interest. Plaintiff's firm Puttu Lal Sheo Ram Das was a joint Hindu family firm with Ram Prasad Gupta as the Karta and manager of the same. The firm carried on business in cotton and woolen goods at Kahu Kothi Kanpur. According to the plaintiff, its agent tendered to the East Indian Railway Administration, Kanpur at Central Railway Station on 25 -10 -48 a consignment consisting of 8 bales of woolen hosiery for delivery to the plaintiff at Shahjahanpur. The railway administration failed to deliver the consignment to the plaintiff at Shahjahanpur. The plaintiff claimed Rs. 14,255/ - as the price of the goods and further claimed profit at the rate of 10 per cent amounting to Rs. 1,425/ -. Thus the plaintiff claimed Rs. 15,680/ - as damages from the defendant -respondent on account of the non -delivery of the consignment. Notices u/S. 77 of the Indian Railways Act and S. 80 of the CPC were served on the respondent. The defendant -respondent contended inter alia that the plaintiff had no cause of action and he was not entitled to sue; that the notices u/S. 77 of the Indian Railways Act and S. 80 of the CPC were invalid and had not been served on the respondent and the plaintiff -appellant had played a fraud on the railway administration. The trial court found that the plaintiff's suit was maintainable and it was not bad on account of non -service of the aforesaid notices and the appellant had not exercised any fraud on the railway administration. It held that the non -delivery of the goods in the case had been due to the misconduct of the servants of the railway administration. It found that the appellant was entitled to the recovery of Rs. 14,255/ - as the value of the consignment but it refused the appellant's claim for profit at the rate of 10 per cent on the aforesaid value of the goods. It decreed the suit for Rs. 14, 255/ - only with costs.
(2.)The respondent's appeal against the decree of the court below (F.A. No. 142 of 1960) was dismissed on 20 -10 -70 u/Ch. 13 R. 10 of the Rules of this Court and the present cross -appeal has been preferred by the plaintiff. The decree of the court below for Rs. 14,255/ - and costs has now become final. The only questions for consideration before me are whether the appellants are entitled to the amount of 10 per cent as claimed on account of profit and pendente lite and future interest on the decretal amount.
(3.)Learned counsel for the appellant was unable to show that the appellant would have made the profit as claimed by it on the consigned goods. The court below has observed that the possibility of loss also cannot be ruled out and it is "not possible to infer that the plaintiff would have necessarily gained some profit had he received the consignment at the destination in time." I agree with the court below that the plaintiff is not entitled to the profit of Rs. 1,425/ - which has been claimed by it.