SARADA MILLS LTD Vs. UNION OF INDIA

JUDGEMENT

(1.) (1) THE plaintiff, Sri Sarada Mills Ltd. , whose suit for damages against the Union of india, as owning and representing the Central and Southern Railways, was dismissed by the court below, is the appellant. They had consigned through their agents Ranjit Ginning and Pressing Factory Ltd. , 100 bales of R. P. Cotton from nagpur to Podanur under a railway receipt issued by the Central Railway (the first defendant). The goods had to pass through several stations along the two railways, Central and Southern, before it arrived at Podanur, and when it arrived 87 bales out of 100 were burnt and charred and 13 bales were found loose and short. The plaintiff applied for open delivery and the railway authorities at Podanur got the damage surveyed, and issued a certificate of damage and shortage. But when the plaintiffs made a claim for damages the Chief Commercial superintendent, Southern Railways, informed them that the consignment was involved in a fire accident at Sirpur Nagaznagar on the Central Railway, that the cause of the fire was unknown and that the railways were not liable for the damages caused to the goods as there was no negligence or misconduct on their part. The plaintiff, on the other hand, had alleged that the damage and shortage were occasioned only by the acts and negligence on the part of the Administration and misconduct of the employees and they were bound in law to indemnity for the loss sustained by the plaintiff. The plaintiff, therefore, instituted the suit on the above allegations when the second defendant-railway in its written statement (which was adopted by the first defendant railway) further stated that a Committee of enquiry, constituted for the purpose of finding out the cause of the fire was unknown, that the certificate of damage and shortage was not final or conclusive or exempted the plaintiff from proving the extent of damages suffered by the mills and that the plaintiff, having realised damages from the Insurance company, had no right to claim any amount from the defendants.

(2.) THE contentions raised by the defendants gave rise to as many as seven issues. The learned Subordinate Judge, who tried the suit had before him the evidence of two witnesses examined on the side of the plaintiff, one on commission at Nagpur and the other before the court, and the testimony of as many as 25 witnesses, 18 examined on commission, 15 at Nagpur, 3 at Hyderabad and 7 before the court. A number of documents were also before the court marked before the Commissioners and before it. On a consideration of the entire evidence in the light of the case law, the learned Subordinate Judge was inclined to hold, on issue 2, that the fire which caused loss to the goods of the plaintiff was not due to any cause beyond the control of the defendants and, on issue 3, that the damage was due to the negligence of the defendants. He further found that the damages caused to the plaintiff by the fire accident was only to the tune of Rs. 15534 but the plaintiff had no right to file the suit since it had already realised a sum of Rs. 32254-6-9 from the Indian Globe Insurance Co. , with whom the goods in question had been insured, on executing a letter of subrogation, with the result he dismissed the suit directing the parties to bear their respective costs.

(3.) SRI Gopalaswami Aiyangar, however, relied on Chandrasekaralingam v. Nagabhushanam, 53 Mad LJ 342: (AIR 1927 Mad 817) wherein Ramesam J. held that the transfer of a claim to past mesne profits is invalid under Section 6 (e) of the Transfer of Property Act. That was a case where a person who was the owner of the property, at the time it was trespassed upon and to whom the trespasser became liable for its mesne profits, filed suits to recover mesne profits after such profits were intended to be transferred by the sale deed in favour of the vendee. The vendee did not sue for these profits and as per the understanding between the vendor and the vendee, the vendor was to sue for these profits. Actually, it was the reversioner who brought the suits and Ramesam J. on a consideration of the case law, held that he was entitled to maintain the suit even after a valid assignment of the claim to such profits, observing that such a suit may be for the benefit of the assignee and he may be made to hand over the amount when collected to the assignee. The learned judge followed this court's ruling in Seetamma v. Venkataramanayya, ILR 38 Mad 308: (AIR 1916 Mad 473 (1)) and was not inclined to share the doubts of Seshagiri Aiyar J. in Venkatarama Iyer v. Ramaswami Iyer, ILR 44 Mad 539: (AIR 1921 Mad 56). At page 344 (of Mad LJ): (at p. 818 of AIR), Ramesam J. observed:"the defendants having incurred an obligation in favour of the present plaintiff, the fact that the plaintiff's right was transferred to some transferee ought not to make the obligation any the less. It may be that in such a case, the defendants ought to be protected from a double action. Of that there is no fear in the present litigation. It seems to me that even if the assignment is valid, the right of action originally residing in the assignor has not ceased. It is true that Section 130 of the Transfer of Property Act says that where an actionable claim is transferred, all the rights and remedies of the transferor are transferred. I do not deny this. All that I say is that the transferor may maintain an action and afterwards hand over the amount when collected to the transferee. The whole of Ch. VIII of the Transferees of actionable claims to maintain actions on the assignments and to get rid of the difficulties in the English law where, for some time, assignees could not maintain an action at all and afterwards they were allowed to maintain action in the name of the assignor but I do not think this chapter is intended to lay down that the transferor himself cannot maintain an action for the benefit of the transferee. . . . . . . . . . . . . . . . . . . . . "We share this view and consider that on a similar principle, it cannot be said that the plaintiff is not entitled or competent to institute the suit though in our view the insurance company could also well have been added as a plaintiff.