IBRAHIM ISABHAI Vs. UNION OF INDIA

JUDGEMENT

(1.) Civil Revision Application No. 826 of 1960 is made under sec. 25 of the Provincial Small Causes Courts Act and is directed against the decree passed by the learned Civil Judge ( Senior Division ) at Broach in Small Cause Suit No. 370 of 1958. That suit was brought by petitioner herein for recovery of a sum of Rs. 1099-74 nP. on the allegation that the opponent Union of India which was at the relevant time the owner of the Western and the Central Railways had failed to discharge its duty as a bailee in respect of a part of a consignment booked from Bhopal to Broach. The Union of India contested the suit on a number of grounds The ground material to be mentioned for the purposes of this revision petition is that the petitioner was not entitled to sue on the facts and circumstances of the case. It is not necessary to mention the other defences of the Union because it is conceded by Mr. Majmudar that those other defences would fall to be considered only if a finding is recorded in favour of petitioner that he was entitled to sue. The learned Judge upheld the contention of the opponent that petitioner was not entitled to sue. It is this finding which is challenged in the revision petition. We shall mention presently the various grounds on which the finding is challenged by Mr. Majmudar. The same point also arises for determination in Civil Revision Application No. 1132 of 1960. That petition has been also fixed for hearing along with the present petition. We heard Mr. Rawal in support of that petition. The additional arguments which Mr. Rawal advanced will be considered in this petition.

(2.) Before we mention the various submissions on which the Civil Revision Application No. 826 of 1960 was sought to be supported we may briefly state the facts of that case. On the 8th June 1957. Bhopal Pharmaceuticals Company Ltd. ( hereafter called pharmaceuticals) consigned nine drums of French Polish to self to the railway authorities at Bhopal railway station under a goods invoice bearing No. 3 and railway receipt bearing No. G-6368/28 for being carried to the railway station at Broach. This Railway Receipt ex. 15 was endorsed by the pharmaceuticals to the order of M/s. New Era Trading Co That company endorsed the Railway Receipt to the order of the Central Bank of India. The latter endorsed it to the order of one Mohanlal Tribhovandas. This Mohanlal made the last endorsement on the railway receipt which reads as follows:-The goods of this railway receipt have been sold to Ebrahim Isapbhai (petitioner). On the 1st July 1957 petitioner went to the Broach railway station for taking delivery of the goods. At that time he found six drums cut and crushed. Three of those drums were completely empty. The remaining three drums were partially empty. Thereafter petitioner made a claim for compensation from the Railways for breach of their duty as bailees. He gave the usual notices. When his claim was refused he instituted the present suit from which this revision petition arises claiming Rs. 1 14 nP. for short delivery Rs. 55/as railway freight Its. 30 as interest on the amount of the price upto the date of the suit and the costs of the suit. The opponent contested the suit inter alia on the ground that petitioner had no right to file the suit. From the Judgment of the learned Judge it appears that petitioner had claimed a decree on the basis that he was the owner of the goods represented by the railway receipt. The learned Judge found that petitioner had failed to establish that he was the owner of the goods. In this revision petition petitioner has contended that that finding was perverse. We are unable to agree with this contention. Petitioner has examined one Thakorlal Ambalal in support of his claim that he was the owner of the goods aforesaid. Prom the evidence of Thakorlal it appears that petitioners case was that he had sent Thakorlal to Bhopal for purchase of drums that Thakorlal contacted M/s. New Era Trading Company and offered to purchase nine drums of French Polish from them that the New Era Trading Company had no drums to sell that therefore that company purchased drums from the pharmaceuticals that Thakorlal paid a part of the purchase money to the pharmaceuticals through New Era Trading Company that thereafter Thakorlal requested the pharmaceuticals through New Era Trading Company to forward the goods to Broach that the pharmaceuticals then consigned the goods to the railway company and got the railway receipt issued to self that the railway receipt was endorsed by the New Era Trading Company to the Central Bank of India Ltd. that the latter endorsed the railway receipt in favour of Mohanlal that Mohanlal was a servant of petitioner and that Mohanlal ultimately made the aforesaid final endorsement. Now all this evidence has been disbelieved by the learned Judge and having regard to the facts and circumstances of the case we do not think it proper to interfere with that finding. In any case having regard to the facts and circumstances of the case it is impossible for us to record a finding that the conclusions arrived at by the learned Judge were perverse. In the first instance the account-books of petitioner did not support the claim made by Thakorlal that he had visited Bhopal or that he had made part payment there or that the balance of the price was paid by petitioner to the Central Bank of India through Mohanlal. In fact if the ultimate endorsement was made under the circumstances as deposed to by Thakorlal it is difficult to understand as to how Mohanlal could have made the last endorsement in the form in which he has done. That endorsement implies that Mohanlal was the ultimate owner of the goods and that he had sold them to petitioner. Under the circumstances in our judgment the claim made by petitioner on the basis that he was the owner of the goods must necessarily be rejected.

(3.) Mr. Majmudar however contended that even if petitioner was not held to be the owner of the goods petitioner had acquired an interest in the goods by the mere fact of his being the ultimate endorsee and that that interest was sufficient in law to entitle petitioner to sue the railway administration for the loss or the damage to the goods represented by the railway receipt. Now in order to understand this plea of petitioner it is necessary first of all to understand the basis of the claim on the strength of which ultimately the decree was being claimed by petitioner. In the first instance we will presume that when the consignment was booked at Bhopal and the railway receipt was issued by the railway administration to the consignor a contract of bailment took place between the railway administration ant the consignor as a result of which the railway administration undertook the liability as enunciated in sec. 72 of the Indian Railways Act as it stood prior to its amendment by the Amending Act 39 of 1961 which came into force on the 1st of January 1962 We may at once mention that having regard to the fact that the consignor himself was the consignee and that therefore the consignor had reserved the right of disposal of goods to himself the consignor had not constituted himself as the agent of the buyer and that therefore the transaction did not fall within the purview of sec. 23 sub-sec. (2) of the Indian Sale of goods Act. Therefore any rights or liabilities of the parties which would arise in the present case would not be governed by the law as laid down in sec. 23 sub-sec. (2) of the Indian Sale of goods Act. A single Judge of the Bombay High Court has taken the view that the consignor is always entitled to institute a suit for recovering compensation from the railway administration for the loss or deterioration of goods even though the property in the goods in the meantime may have been transferred to another individual. This view was taken in the case of Shamji Bhanji and Co. v. North Western Rly. Co. reported in A.I.R. 1947 Bombay 169. We are not concerned with this aspect of the matter in the present case. We are not so concerned because the suit in the present case has not been instituted by the consignor. At the fag-end of his arguments Mr. Majmudar contended that petitioner was entitled to sue under the contract of bailment entered into between the consignor and the railway administration. We will discuss this aspect of the matter after we have disposed off the main contentions of Mr. Majmudar. A Division Bench of the Bombay High Court has taken the view that besides the person who is a party to the contract of bailment the owner of the goods represented by the railway receipt is also entitled to institute a suit against the railway administration for recovery of damages arising out of non-delivery or short delivery of goods. This decision was given in The Union of India v. Taherali Isaji reported in 58 Bombay Law Reporter 650. We have already rejected the claim of petitioner based on the ground that he was the owner of the goods. Therefore that decision has also no application to the facts of the present case.