CHATURBHAI BHAILALBHAI PATEL Vs. UNION OF INDIA REPRESENTING E R AND W R

JUDGEMENT

(1.) This is an appeal on behalf of the plaintiffs who are a firm carrying on business in Calcutta. They were the endorsee of a railway receipt No. 7996, dated the 6th January, 1948, under which 75 bags of biri tobacco weighing 80 maunds 2 1/2 seers, of the value of Rs. 16,015/-, consigned from Bocha-son railway station, at the Gaekwad Baroda State Railway, to Nathnagar, at the East Indian Railway, were not delivered to the plaintiffs. The plaintiffs pleaded that the goods were duly despatched but due to the negligence and/or misconduct of the servants of the defendant, the Union of India in the Railway Department, were lost and, accordingly, they failed to deliver the same to the plaintiffs in spite of demands. The goods were booked at Bochason station, as mentioned before, at the Gaekwad Baroda State Railway (at present under the Western Railway) and passed through the B.B.C.I. and G.I.P. Railways (at present classified as Western and Central Railways) and were to be delivered at Nathnagar at the East Indian Railway (at present the Eastern Railway). The consignment was booked on the 6th of January, 1948, and notice under Section 77 of the Indian Railways Act and under Section 80 of the Code of Civil Procedure, which was a combined notice, was served on the authorities concerned on the 1st of May, 1948. The suit was at first filed on the original side of the Calcutta High Court, but on the 26th of August, 1952, the High Court decided that it had no jurisdiction and dismissed the suit (Ext. 8). The present suit was accordingly filed in the Court of the Subordinate Judge at Bhagalpur. The plaint was amended by a petition filed on the 26th of September, 1953, and it was mentioned that as a result of the written statement filed by the Union of India in the Calcutta High Court, saying that no consignment of the date and number referred to in the plaint could be traced at Bochason, the plaintiffs sent their men to Bochason for enquiry. They learnt thereafter that the booking station was Bhaili which was misread as Bochason due to indistinct carbonising in the railway receipt. Accordingly, it was stated that after the word "Bochason" in paragraph 2 of the plaint the word "Bhaili" might be added.

(2.) The defendant pleaded that no such consignment as was mentioned in the plaint could be traced at Bochason. As the consignment could not be ascertained to have been made over at Bochason, the delivery to the other railways also could not be verified. It was also alleged that the Gaekwad Baroda State Railway was not a juristic person but was owned by His Highness the Gaekwad of Baroda who was not made a party and, as such, the suit could not be maintained. An additional written statement was filed on the 26th of February, 1954, pleading the bar of limitation as also the fact that no notice under Section 77 of the Indian Railways Act or Section 80 of the Code of Civil Procedure relating to the consignment covered by the particulars as given in the petition for amendment of the plaint was in existence, and on this ground also the suit was not maintainable. Bhaili railway station was one of the stations under the Gaekwad Baroda State Railway which had since passed under the management of the Western Railway, and due to this change of management and lapse of about five years, the defendant was not in a position to make any definite statement regarding the alleged consignment. Since the Gaekwad of Baroda was a necessary party to the suit, as Gaekwad Baroda State Railway was not a juristic person, who was not sued before the High Court of Calcutta, the forwarding railway was never properly sued. There was no privity of contract between the defendant and the plaintiffs and the suit was not maintainable even in that view of the matter. The claim of the plaintiffs was also characterised as excessive and unfounded and, accordingly, the suit was fit to be dismissed.

(3.) The learned Additional Subordinate Judge, who tried the suit, framed a number of issues. The Court came to the conclusion that the suit as framed could not succeed as it was barred by limitation. It was also held that the suit also suffered from the defect of parties. The Court below further held that the notice under Section 80 of the Code of Civil Procedure was not properly served although, in the circumstances of the present case, there was no necessity for service of notice under Section 77 of the Indian Railways Act. The Court also held that there was no doubt that the goods were booked from Bhaili but they were not received at Nathnagar, On the quantum of compensation claimed, the Court found that if a decree could be passed in favour of the plaintiffs, the amount of Rs. 16,015/- would have to be decreed in its entirety.