UNION OF INDIA Vs. FIRM DAMODARDAS NARAYANDAS

JUDGEMENT

(1.) THIS is an application for revision by the defendants in a suit the Union of India representing the Central and Northern Railway Administrations.

(2.) THE non-applicant (plaintiff) firm had consigned to themselves 381 kattas of gur from Meerut to Itwari Station, Nagpur. When delivery was asked, the Railway delivered only 361 kattas and was unable to deliver the balance of 20 kattas of gur. This was on 8-1-1954. The plaintiff then served the usual notices and filed the suit on 3-3-1955. The trial Court passed a decree against the defendants for Rs. 440/- and costs.

(3.) THE trial Court came to the conclusion that the non-delivery was due to negligence and misconduct on the part of the servants of the Northern and Central Railways. This finding was not challenged before me. But on behalf of the Railways Mr. Bhave has urged two points. His first point was that the Railway Administrations managed to find the missing consignment of 20 kattas and therefore made an offer to the plaintiff to deliver the goods in specie on 25-3-1955. According to counsel, the plaintiff was bound to accept this offer and even though the goods may be in a damaged condition the only remedy of the plaintiff, was to sue the Railway Administration for damage to the goods but not for non-delivery. He relies upon two cases of the Nagpur High Court, which are: Fazalbhai v. Dominion of India, AIR 1951 Nag 245 (A); and Jusaf and Ismail Co. v. Governor-General, ILR. 1947 Nag 335: (AIR 1948 Nag 65) (B ).