T V MUHAMED Vs. UNION OF INDIA

JUDGEMENT

(1.) The revision petitioner despatched four bundles of dry fish by the Southern Railway represented by the respondent, on the 18th December, 1960, from Vallikkunnu, a railway station in the State of Kerala, to Sagara, a railway station in the State of Mysore, under Way bill, Ext. A-1. By mistake, the petitioner despatched the Way bill to a wrong address in Shimoga and it was returned to him unserved. The petitioner then directed his agent at Sagara to take delivery of the goods; but in the meantime, the Station Master at Sagara, had sold the goods in public auction on the 19th January, 1961, and the petitioner's agent could not take delivery. The petitioner thereupon instituted this suit against the respondent for damages for conversion. The suit was dismissed by the Munsiff, who held that the goods have been validly sold by the Station Master, Sagara, under R.7(e) of the 'Rules for warehousing and retention of goods' framed under S.47(1)(f) of the Indian Railways Act, 1890. The contention of the petitioner in revision is, that the sale was unauthorised and invalid and therefore the respondent is liable.

(2.) The goods consigned being dry fish, are of course perishable goods. Exts. B-3 and B-4 are two communications dated the 11th January, 1961 and the 17th January, 1961 addressed by the Station Master, Sagara to the Station Master, Vallikunnu, which described the condition of the goods at the time by the code word 'Kismet' meaning, as DW. 2 has stated, "emitting foul smell". DW. 2 has also sworn that water was oozing from the bundles which is clearly indicative of an advanced state of decay and deterioration. R.7(e) which was applied by the Munsiff reads as follows:

(3.) What was contended for the petitioner by learned counsel was, that the above rule has no validity, because the power of sale is conferred by S.56 of the Act, and this case does not fall within its ambit. That section consists of two parts and reads as follows: