FIRM LAXMI DUTT ROOP CHAND Vs. UNION OFINDIA

JUDGEMENT

(1.) THIS is an appeal against the judgment and decree passed by the II Additional District Judge, Allahabad, dismissing the appeal filed by the plaintiff-appellant against the judgment and decree passed by the Ad ditional Civil Judge, Mirzapur, decree ing the suit for the recovery of certain amount against Jhanak Lal, defendant No. 2 and dismissing the plaintiff's claim against the Union of India, defendant No. 1.

(2.) THE facts giving rise to this appeal are as follows: 35 bags of brass scraps were book ed from Sindi Railway Station to Mirza pur. Jhanak Lal was the consignor and the consignee of the goods. The plain tiff firm contended that it was the pur chaser for value of the consignment and as such was entitled to 35 bags of brass scraps booked by Jhanak Lal at Sindi on 11-1-1956. According to the plaintiff, the goods should have reached Mirza pur within four or five days and as the goods had been diverted and converted by the negligence of the Railway Ad ministration, therefore, the plaintiff suffered the loss. After notices under Section 77, Railways Act and Sec. 80, Civil P. C., the suit was filed against the Union of India. Subsequently, Jha nak Lal the consignor, was made a party and damages were claimed from him. The defence of the contesting defendant 1. e., the Union of India was that the goods were suspected by the police to be stolen property and, as soon as the goods reached at Sindi, the Railway Ad ministration received information from the police station that the good_s should not be allowed to proceed to its destination and on the next day, the Hoods were seized by the police. Jhanak Lal was then challaned under Section 379/411, I. P. C. in Case No. 1 of 1957. Jhanak Lal was acquitted on 27-6-1957 and the aforesaid 35 bags of brass scraps were released in favour of Jhanak Lal, The trial court ordered that the pro perty be released in favour of Jhanak Lal after the expiry of the period of appeal.

(3.) THE trial court and the ap pellate court relied on Section 56 of the Contract Act holding that the agree ment to transport the goods from Sindi to Mirzapur became impossible to per form on account of the seizure and, therefore, it had become impossible to fulfil the contract. The learned coun sel for the appellant contended that the goods had been seized from the custody of the Railway Administration whose position was that of a bailee and, there fore, it was for the Railway Administra tion to have filed an objection under Section 517, Criminal P. C. to get the goods released in their favour so that the same may be delivered to the plain tiff who was the "purchaser for the value of the same. In this very con nection, it was argued that the con tract had not completely become impos sible to perform and the seizure of the goods being a temporary phase, the con tract by the bailee to transport the goods from Sindi to Mirzapur could be performed after getting the property from the custody of the court and, therefore, the provision of Section 56 of the Contract Act would not attract the facts of this case.