JUGALKISHORE DEVIDEEN Vs. MURUGAN GHEE SUPPLY CO.

JUDGEMENT

(1.) THESE two appeals arise out of O. S. No. 114 of 1958 on the file of the Subordinate Judge of Erode. The third defendant is the appellant in A. S. 558 of 1964 and the plaintiff is the appellant in A. S. 199 of 1965. The suit is for recovery of Rs. 16715 -31 from defendants 1 to 3. The plaintiff is a firm registered under the Indian Partnership Act, 1932, carrying on business in ghee, oil and oil seeds at Dharapuram. Defendants 1 and 2 are the Union of India, represented by the General Managers, Central Railway and the Southern Railway. The third defendant is a firm carrying on similar business at Itarsi in Madhya Pradesh. The plaintiff firm and the third defendant firm were having dealings for some time past. The fourth defendant and his son fifth defendant are brokers and commission agents. In the first week of February, 1958, the third defendant sold through these brokers a wagon load of tilly seeds at Rs. 59 per bag of two imperial maunds each. The third defendant agreed to deliver the goods by rail at Erode railway station and receive the value of the consignment less the advance of Rs. 1000 paid, through the bank. In pursuance of the contract, the third defendant sent the R. R. for one wagon load of 251 bags of tilly seeds to the State Bank of India at Erode. The plaintiff cleared the railway receipt by payment of the balance of Rs. 13430 -66 into the State Bank of India at Erode and obtained the railway receipt duly endorsed.

(2.) THE case of the plaintiff is that he entered into the transaction of sale believing bona fide that the third defendant is the owner of the 251 bags of tilly seeds, which were sent by the railway wagon and which were covered by the railway receipt, a document of title in favor of the third defendant, that under such bona fide impression he cleared the railway receipt, that the wagon arrived at Erode on 16 -3 -1958, and when he presented the railway receipt, the railway authorities informed him that the wagon contained only 54 bags and added that as per the instructions from their superiors, they would not deliver even those 54 bags. The further case of the plaintiff is that the railway receipt shows that the goods were booked under railway risk, that defendants 1 and 2 were responsible for the safe delivery of all the 251 bags to the person who lawfully produced the railway receipt, that defendants 1 and 2 failed to give delivery to the plaintiff and consequently defendants 1 and 2 are liable to pay compensation for the loss of the goods and that if the goods had been delivered, the plaintiff would have realized Rupees 17570 at the market rate prevailing on 16 -3 -1958, namely, Rs. 70 per bag, after deducting Rs. 1141 -30 towards freight due to the railways at the destination, the plaintiff would have got a sum of Rs. 16428 -81. After issue of the suit notice on 31 -3 -1958 to the Central Railways, the present suit is filed for recovery of the said amount.

(3.) THE second defendant filed a written statement contending that one Lakshminarayanan alias Kalooram loaded on behalf of the Consignor (Motilal) 54 bags of tilly goods, that the said goods were consigned under invoice No.1, dated 21 -2 -1958 at Khirkhiya station on the Central railways to be delivered 'to self' at Erode, that the consignment was booked subject to the condition that the goods should be loaded and unloaded by the owner, that the wagon was checked at Ajni transhipment shed on the Central railways and was found to contain only 54 bags, that the plaintiff, as endorsee of the railway receipt, cannot have better rights than the owner himself and that when the consignor had fraudulently obtained railway receipt by making willful misrepresentation, it is not open to the plaintiff, the endorsee, to claim higher rights, that the plaintiff, can claim only 54 bags actually loaded, that the negligence or misconduct attributed to the railway officials was denied, and that the railway administration was not vicariously liable for the malfeasance, if any, on the part of its officials, when the consignor himself was guilty of fraud and willful misrepresentation, that the negligence and misconduct, if any, on the part of the railway employees was not the proximate cause of the alleged loss sustained by the plaintiff, that the requisite notice was not issued, and that the plaintiff has no cause of action. The first defendant adopted the written statement filed by the second defendant.