(1.) This appeal has been filed by the plaintiff. It arises out of a suit instituted by the plaintiff for realisation of the value of a consignment of salt booked from Kandala to Raxaul. That suit has been dismissed by trial court and the decree has been affirmed by the lower appellate Court.
(2.) The facts are as follows; The plaintiff alleged that a consignment of 300 bags of salt was booked at Kandala on the 17th April, 1958 for despatch to Raxaul by M/s U. S. W. and India to M/s J. S. P. Ltd, A portion of the consignment reached Raxaul on the 11th May, 1958 in a damaged condition and the plaintiff as endorsee of the railway receipt claimed open and assessment delivery on weighment. It was alleged that the District Traffic Superintendent, Samastipur had ordered the Station Master, Raxaul and the Claims Officer, Janakpur to give open and assessment delivery on weighment, but the subordinate Railway servants concerned did not make any delivery at all. It was alleged that the non-delivery was due to negligence and misconduct on the part of the Railway employees and, therefore, the plaintiff was entitled to the value of the goods. The plaintiff alleged that notices under Section 77 of the Indian Railways Act and Section 80 of the Code of Civil Procedure had been properly given and as no compensation had been paid, this suit had to be instituted. The defendants made out a case, amongst others, that proper notices under Section 77 of the Indian Railways Act and Section 80 of the Code of Civil Procedure had not been given. It was also contended that the plaintiff had refused to pay wharfage charges and take delivery of the consignment and, therefore, the suit was likely to fall. Misconduct and negligence on the part of the Railway servants alleged by the plaintiff were denied.
(3.) The points which arise for determination in this appeal are covered by issues No. 4 and 5 framed by the trial court, which were to the following effect:-- Issue No. 4--Were notices under Sections 77 Indian Railways Act and 80 C.P.C served on the defendants? Issue No. 5--Was the non-delivery of the consignment in question due to the negligence and misconduct on the part of the Railway servants ? For the determination of issue No. 4, it appears, no copy of the notice under Section 77 of the Indian Railways Act was produced, but it was held by the trial court that as the plaintiff had claimed compensation on account of non-delivery, notice under Section 77 of the Act was not necessary. The learned Munsif also mentioned that the lawyer for the defendants did not press the contention regarding Section 77 of the Railways Act. It was held that notice under Section 80 of the Code of Civil Procedure had been served. Under issue No. 5, the trial court held that as the plaintiff was bound to take delivery of the consignment in whatever condition it had arrived, the defendants are not liable, as the plaintiff had failed to take delivery of the consignment The learned Munsif held that the plaintiff was bound to pay demurrage or wharfage, and as the plaintiff was not ready to pay, the defendants were not liable for the plaintiff's action in not taking delivery. It was held by the trial court that the plaintiff had failed to prove that non-delivery of the consignment, on which the cause of action was based, was due to negligence and misconduct on the part of the Railway servants. In appeal in the court of appeal below, the main points formulated for consideration were:-- (1) Whether the suit, as framed, is maintainable? (2) Whether the plaintiff has got any cause of action? The question of notice under Section 77 of the Indian Railways Act was considered under point No. (1). The learned Judge on appeal allowed the counsel for the defendants to raise the question as to whether a valid notice under Section 77 had been given or not. It was held that notice under Section 77 was necessary in cases of non-delivery of a consignment also. Reliance was placed on a decision of the Supreme Court reported in 1961 B. L. J. R. 380. On behalf of the plaintiff-appellant, it was urged that for this point, a letter marked as Exhibit A, dated the 21st November, 1958, should be held to be a sufficient notice under Section 77; but this contention was rejected. It was held that even if Exhibit A be taken into consideration, no notice had been given to the other Railways through which the goods had passed. Exhibit A having been written to the Chief Commercial Superintendent of the North Eastern Railway. Thus, point No. (1) was decided against the plaintiff-appellant. Under point No. (2) it has been held that the plaintiff had no right to refuse to pay wharfage on the ground that the station staff at Raxaul had not given the plaintiff open delivery after weighment, Thus, this point has also been decided against the plaintiff.