DOMINION OF INDIA Vs. NETAI CHANDRA HALDAR

JUDGEMENT

(1.) This appeal by the Dominion of India as the owner of the East Indian Railway Administration arises out of a suit instituted by the plaintiff respondent for recovery of a sum of Rs. 1145-12-0 as damages for goods not delivered. Two consignments of soft coke in two different wagons were booked from Kusander Railway Station to Chatra Railway Station under two Invoices, the first consignment being under Invoice No. 1 and the second consignment being booked under Invoice No. 2. By the 2nd consignment 23 tons of soft coal were sent. When this 2nd consignment reached Chatra Railway Station the plaintiff sent a claim under Section 77, Indian Railways Act to the General Manager, East Indian Railway. Thereupon an intimation was sent to him by the Railway Authorities that the consignment was available for delivery at Chatra Station. Suspecting shortage, however, owing to certain circumstances the plaintiff demanded delivery after reweighment. The Coal Area Superintendent directed delivery of the goods to the plaintiff on reweighment as a special case if the plaintiff was prepared to pay costs of such reweighment. The plaintiff was not, however, prepared to pay such costs and claimed the reweighment free of charge. Ultimately the Railway Company refused to give delivery of the goods after reweighment as claimed by the plaintiff. Accordingly the present suit has been instituted. The price of the goods covered by Invoice No. 2 is Rs. 471-13-0. The present appeal is in respect of this amount only, liability for Invoice No. 1 being accepted. The suit was decreed in full in the trial Court but in the lower appellate Court the plaintiff obtained a partial decree only.

(2.) As has been observed before the present appeal is confined only to the liability in respect of Invoice No. 2. It is contended by Mr. Bose on behalf of the Railway Administration that in respect of the goods covered by this Invoice i. e. No. 2 the plaintiff is not entitled to any relief at all in the circumstances of the present case inasmuch as refusal on the part of the Railway Administration to reweigh does not amount to a refusal on their part to deliver the goods. It has been argued by him that it was up to the plaintiff to take delivery of the goods without claiming the reweighment either free of costs or on payment of costs and later on if the plaintiff found upon reweighment that there was shortage in the amount of goods originally consigned to him it was for him to claim damages for such shortage in weight. The lower appellate Court held that the plaintiff was justified in demanding delivery of the consignment after reweighment and that he was within his rights when he refused to take delivery on the refusal of the Railway Company to give delivery of the consignment after reweighment free of costs. It has been urged before me on behalf of the appellant that these findings of the lower appellate Court are based upon a totally erroneous conception of the relevant law on the point as enunciated in a series of decisions of various High Courts including this Court. Mr. Bose argues that it is not the case that the plaintiff challenged the identity of the goods that arrived at Chatra Station. He argued that had that been the case different considerations would have arisen. His argument further is that the Railway Administration was under no obligation whatsoever to reweigh the goods nor could the plaintiff claim as a matter of right that the goods must be reweigh-ed before he agreed to take delivery of the same. In other words, according to Mr. Bose's contention, the plaintiff is to thank only himself for not taking delivery of the goods and as he failed to to take delivery he is not entitled to claim damages from the Railway Administration. In support of his contention Mr. Bose has drawn my attention to a number of rulings of different High Courts e. g. Janki Das v. Bengal Nagpur Rly. Co., 16 Cal.W.N. 356, East Indian Ely. Co. v. Sispal Lal, 16 Cal. W. N. 329, Bamjash Agarwalla v. India General Navigation and Rly. Co. Ltd., 22 Cal. W. N. 310, Jaganath Manuari v. East Indian Ely. Co., 22 Cal. W. N. 902, Surajmal Marwari v. Agent, Bengal Nagpur Ely. Co., 58 Ind. Cas. 200 (pat.) East Indian Ely. Co. v. Behari Lal Bulaqi Earn, A. I. R. 1926 Lah. 512, Bengal North-Western Ely. Co. v. Firm Dassundhi Malbishambar Das, A. I. R. 1928 Lah. 166 as also to certain observations in Lalji Raja & Sons Firm v. Governor General of India in Council representing Bengal Nagpur Ely., 54 Cal. W. N. 902. It seems to me that the principle of law deducible from the above cases has been correctly summarised in the case of Surajmal Marwari v. Agent, Bengal Nagpur Ely., 58 Ind. Cas. 200 (Pat.). I may quote the following passage from the judgment in that case:

(3.) On behalf of the respondent it has been argued before me that there are special features in this case, viz., the goods reached the Chatra Railway Station not by ordinary route but via Naini junction, that the wagon carrying the goods of the consignment reached Naini junction station without any label of destination, and that the goods were unloaded there and lay there for 2 or 3 months and reloaded in another wagon. On behalf of the respondent it has been argued that these special circumstances take this case out of the line of cases referred to by Mr. Bose and, as such, the broad principle upon which Mr. Bose has taken his stand cannot be applied in the circumstances of the present case. It is hardly to be expected that the facts of this case will be quite similar to those of another case but so far as the principle deducible from these cases is concerned I think that it is capable of general enunciation and, as I have observed before, the principle has been summarised correctly in the Patna case referred to above.