DOMINION OF INDIA Vs. BAICHU RAMIAH CHETTY AND SONS

JUDGEMENT

(1.) This petn. is to revise the judgment & decree in S. C. No. 83 of 1948-49 on the file of the learned Dist. J Civil Station, Bangalore. The facts of the case in brief ate as under : Six cases alleged to contain 'Aspro' bundles were booked on 1-8-1947 with M. S. & M. Rys. owned & managed by the petnr-deft. under invoice No 4165 Ex Salt Gotaurs Madras to Bangalore Cantonment with Bisk Note Form A, by Messrs. J. L. Morrison Jones, India, Ltd., Madras to the pltf. When the goods were offered for delivery on 6-8-1947 to the pltf. one case was found damaged & when all the cases were opened, the contents of the consignment were said to have been short by Hi bundles of 'Aspro' of the value of Rs. 31-7-0 according to the pltf. The pltf. thereupon appears to have insisted on obtaining open delivery of the goods & the defts. agreed to do so without prejudice to their legal position, which reservation, it is averred, was not accepted by the pltf. Ultimately, when the goods were, in fact, taken delivery by the pltf., i.e. on 20 11-1947, delivery being without prejudice to the legal position of either party it was claimed by the pltf. that there was further shortage by 241/2 bundles of 'Aspro' The pltf. has, therefore, claimed Rs. 102 4 0, the value of 39 bundles of 'Aspro' together with Rs. 82 8 0 towards loss of interest on the amount invested on the goods. The deft, denied his liability for the condition in which the cases were received & delivered & for the shortage of 141/2 bundles of 'Aspro' as the pltf. was bound by the terms of Risk Note A as under the said Note, the deft. was not liable except on proof of the loss being due to the misconduct of the deft. co. The deft. did not admit any liability in respect of the further shortage of 241/2 bundles of 'Aspro' on the ground that it. was occasioned by the untenable attitude of the pltf who it is averred could have taken open delivery of the goods & accepted the offer of payment of Rs. 34-7-0 towards the shortage of 141/2 bundles of 'Aspro', without prejudice to the legal position of the deft. It was also asserted that the pltf's. claim for interest was untenable. The learned Dist. J. however, decreed the suit in respect of the value of 39 bundles of 'Aspro' with proportionate costs. This revn. petn. is against the said judgment & decree.

(2.) The point for consideration in this petn. is as to whether the deft. is liable for the shortage of goods discovered on 6-9-1947 & 20 11-1947 respectively. In regard to the shortage of 141/2 bundles of 'Aspro' found on 5-9.1947, the Rly. Administration offered to pay its value & sent a cash order for Rs. 84-7-0; the offer which was not withdrawn till the filing of the suit, amounted to an acknowledgment of the liability under Section 19, Limitation Act, on the part of the deft. & I am inclined to agree with the finding of the learned Dist. J. & held that the decree to that extent cannot be disturbed.

(3.) In regard to the claim foe the loss of 241/2 bundles, of 'Aspro' found on 20.11.1947 the question is whether it was due to the misconduct of the deft, or his servants in which case, the terms in the Risk Note A would be enforceable & the liability for the loss would be fixed on the deft. or whether it was occasioned by the unreasonable attitude of the pltf. in refusing to take delivery of the goods on 6-8-1947 in which case the suit would be barred by time Admittedly, the goods were received on 5-8-1947, & on 6-8-1947 when the pltf. went to take delivery of the goods he found that the planks of some of the cases of 'Aspro' had been broken & on 7-8-1947 he wrote to the Chief Commercial Manager of the deft. co. intimating the above fact & requesting him to issue instructions for open delivery of the goods. The pltf. is unable to show that he was entitled to insist on or get an open delivery of the goods whether by reason of any established principle of law or terms of contract; the deft, however, agreed to do so & gave necessary instructions for giving an open delivery of the goods. On 5 9 1947, the pltf. went to take delivery of the goods in accordance with the instructions but refused to do as on the ground that the Rly. authorities aaked him to note in the delivery book without prejudice to the Rly's, legal position'. The conduct of the pltf. in refusing to take deli-very of the articles without prejudice to the Rly's legal position cannot by any means be said to be justifiable or reasonable, as it was in any event open to him to prefer his claim in a Ct. of law. It is admitted that the contract is covered by Risk Note A which is prescribed when the goods tendered for carriage are defectively packed as to render them liable to damage, & one of the terms therein is that the consignor holds the Rly. administration free from all responsibility for the condition in which the aforesaid goods may be delivered to the consignes at the destination & for any loss arising from the same except on proof that such loss arose from the misconduct on the part of the Rly. administration. There is no liability cast on the Rly. administration under Risk Note A to account for the loss, if any, but on the other hand, it throws the entire onus on the pltf. to prove misconduct on the part of the Rly. administration.