SOUTH EASTERN RAILWAY ADMINISTRATIONCALCUTTA Vs. GOVINDLAL GOPIKISAN MUNDRA

JUDGEMENT

(1.) In this second appeal the original defendants Nos 1(A) and 1 (B) have challenged the decree of the Courts below directing the appellants to pay an amount of Rs. 3632.25 and proportionate costs of the suit with interest at 6 per annum of Rs. 36,000|- from the date of suit till realisation to the plaintiffs the present respondents plaintiffs by the appellant-railways as carries on account of non-delivery and short delivery and short delivery for of the goods consigned to the railways for carriage. The main contention of the appellants in this second appeal is that the trial Court at Gondia had no jurisdiction to entertaian the suit as against the appellants.

(2.) The plaintiffs who are real brohter and grain dealers Gondia, carry on grain business in the name and style "mathuradas Kaluram Mundra" at Gondai in Bhandra district. On 2-6-1996 respondent No.3 M|s. Nathuran Chandulal, GEneral Merchants at Katabhanji in Orissa STate, entered into a contract with the respondents Nos. 1 and 2 to sell 2220 bags, of gram-dal. Out of these 220 bags were to slod at Rs. 125|-per bag weighing 100 Kgs. Each and the remaining 120 bags each weighing 100Kgs. Were to be sold at Rs. 122|-per bag. These bags were to be laded by respondent NO. 3 M|s. Nathuram Chandulal at his own expenses at Katabhanji with the railways for carrying and delivering the same to the plaintifif at Dhulia. The respondent No.3 M|s Nathuram Chandulal was to present the railway reeceipt to theplaintiffs at Gondia for the quantity of goods loaded at Katabhanji railway station. Accordingly on 4-6-1966 one Rameshwar on behals of respondent No. 3 came to Gondia at Plaintiffs shop and informed the plaintiffs that out of the contracted 220 bags of gram-dal the respondent No.3 had loaded 155 bags at Katabhanji railway station to be carried and delivered to the plaintiffs at Dhulia railway station. Rameshwar had brough the railway receipt for the consignment and delivering the same he received on behalf of respondent No.3 from the plaintiffs, the price thereof i.e. Rs. 19,415.25. Under the railway receipt the respondent No.3 was the consignor and he had consigned the consignement to self. This railway receipt was endorsed in favour of the plaintiffs by Rmeshwar at Gondia after the payment was received . Accordingly the plaintiffs became the owners and consignees of the consignment. The plaintiffs despatched the railway receipt to their commission agent Bherumal Nandkishor at Dhulia to accept the consignment on behalf of the plaintiffs. On or about 25-6-1966 the plaintiffs received an intimaion that though the railway receipt was ... consignemtn actually contained 139 bags and 16 bags of gram-dal were short and were not there in the consignment. Out of the 139 bags which (were) received at Dhulia , 14 bags which loose and cut. The plaintiffs got open delivery on 25-6-1996 and the railway authorities at Dhulia isued short delivery certificate after actually ascertaining and re-weighing the bags. According to this certificate 16 bags were missing and out of 139 bags, were missing found tampered with and cout and the quantity of gram-dal delivered in these 14 bags was only 4.95 quintals and thus there was shorted that they suffered a total loss of Rs.3758|- ,Rs. 3632-25 being the price of 16 bags non-delivered and short delivery of 9,05 quintal the in 14 bags short which were tampered with, Rs. 100.75 were clamed as expenditure incurred by the plaintiffs and Rs. 25|- as notice and posting charges. These were the main allegations in the plaint.

(3.) so far the as question of jurisdiction and cause of action is concerned, paras 5 and 6 of the plaint are very material, and relevant portions thereof are extracted below: "5. It appears that the defendant No. 2 in conspicacy with the servants under the defendants No. 1 (A) and 1 (B) caused losses as stated above to the plaintiffs and committed fraud causing wrongful loss to the plaintiff as mentioned aboved. It further appearps that the railways servants who handled the said consignment during trasit might have tampered with 14 bags and might have removed 16 bags which were short and prepared a fraudulent railway receipt in question in collusion with the defendant No.2 and if the railway authority of the defendant 1 (A) got booked 155 bags and 1(B) might have removed those 16 bags completely and caused tampering with 14 bags and ultimately caused the above mentioned and shortage and losses to the plaintiffs with their misconduct and negligencne in handling the said consignment during trnsit...... 6.That the cause of action for the subject under question in this suit arose at Gondia within thejurisdiction of this Court on 4-6-1966, when the defendant No.2 received the payments for 155 bagss from the plaintiff under the above mentioned ......... was endorsed in favour of the plaintiffs at Gondia by the defendant No. 2. Thus plaintiffs was ultimately finalized at Gondia on 4-6-1966 when the defendant No..2 got full payment of 155 bags as price as agreed under the above mentioned agreement and shown in the railway receipt which was fraudulently prepared by the defendants to put the plaintfss to wrongful losses. The plaintiffs are bringing this suit againat the defendants who are parties to the said fraudelent act. There is a joint cause of action against the defendants which cannot be separated. Although this Court apparently has no jurisdiction against the defendants 1 and A and 1 B, yet for reasons stated above, the plaintiffs are moving to seek leave of this Court to bring this suit against the defendants 1-A and 1B as they are joint tortfeasors along with the defendant No.2 to avoid multifariousness of suits their different places." The defendants filed their written statement denying these allegaions and the appellants original defendants Noss. 1(A) and 1(B) also took a plea of want of jurisdiction in Gondia Court.