MOHAMMAD EKRAM Vs. UNION OF INDIA

JUDGEMENT

(1.) This is an appeal from the judgment of the Subordinate Judge of Bhagalpur. The plaintiffs are the appellants. Their suit was for recovery of Rs. 10325/4/6, being the price of cotton and silk cloth consigned by them to the Eastern Railway (respondent's railways) for being carried from Nathnagar Railway station to Nawadip Dham Railway station, which had not been delivered to them, and also for Rs. 174/- is compensation for non-delivery. The total amount claimed was, therefore, Rs. 10499/ 4/0. This suit has been dismissed by the learned Subordinate Judge on the findings that there was no misconduct on the part of the railway servants resulting in the non-delivery of the goods to the appellants and, therefore, the respondent was not liable for any amount.

(2.) The facts of the case briefly stated arc as follows: The plaintiff No. 1 and his brother one Muhammad Idris deceased had a partnership business under the name of the firm "Muhammad Idris Brothers" dealing in handloom cloth, silk as well as cotton, at Bhagalpur, Muhammad Idris died on 12-12-1949 leaving behind plaintiffs 2 to 8 as his heirs, being his widow, son and daughters. The original partnership business came to an end on the death of Muhammad Idris but these plaintiffs again entered into a fresh partnership business very soon after the death of Md. Idris. The plaintiffs have however, preferred their claim in this suit on the basis of the transaction with the previous firm. On 6-1-1949, Muhammad Idris Brothers had despatched four bales of silken goods, the value of each bundle having been declared under Section 75 of the Indian Railways Act, 1890 at Rs. 1000/-, and six bundles of handloom cloth in one package worth Rs. 6325/4/6 from Nathnagar railway station by passenger train under five railway receipts. In the railway receipts they were mentioned as can signors and consignees, but the transaction had actually taken place between this firm and one B. K. Roy, who had approached the firm for the supply of the aforesaid cloth on behalf of another firm, which, he represented, was known as "Roy Karim and Co, of Srirampur" in West Bengal. B.K. Roy had come to Bhagalpur to make purchases but was not known at all to the partners of the firm. Nevertheless, they entered into this transaction, believing his representation. After B.K. Roy had selected the cloth, it was sent, as mentioned above, by the passenger train, and was due to reach the destination, Nawadip Dham railway station, next day where the packages were to be delivered to the consignees. The railway receipts had been taken in favour of Muhammad Idris and "Brothers, because B.K. Roy had not paid the price which he had promised to pay next day, and was then to take delivery of those railway receipts. On the morning of 7-1-1949 (next day) he came to the plaintiffs, but expressed his inability to pay the price, because he had spent all his money. The railway receipts, therefore, remained in the custody of the plaintiffs. B.K. Roy promised to send the money immediately after his return to Srirampur. For several days nothing was known of B.K. Roy by the plaintiffs, except, as they alleged, that they had received one letter and one telegram from him to the effect that he had not sent the money because he had fallen ill, promising to send it as soon as possible. For about three weeks from the date of the despatch of the goods the plaintiffs waited, but neither the money came nor did they receive any further information from B. K. Roy. They became suspicious and sent P.W. Salam, another brother of Ekram and Idris, and P.W. Motilal to ascertain as to what was the matter. These people first went to Srirampur but could find no trace either of B.K. Roy or the firm Roy Karim and Co. They then came to Nawadip Railway station and presented the railway receipts to the railway authorities there, but the parcel clerk, one K.C. Das Gupta, who is since dead, suspecting that these persons had cheated the railway, lodged a complaint with the police, which arrested them, took charge of the railway receipts, and started a case under Section 420, Indian Penal Code. After completing the investigation, the police submitted final report in that case. The plaintiffs, thereafter, gave notice to the Railway authorities under Section 77 of the Indian Railways Act, and later, under Section 80 of the Code of Civil Procedure. After the expiry of tire prescribed period, they filed the suit, alleging that they were always holding the original railway receipts with which they had never parted in favour of anybody, and that the railway authorities had absolutely no authority to deliver the goods to any other person.

(3.) In order to appreciate the case of the plaintiffs it is necessary at this place to state some more facts. What happened after 6-1-1949 was that on 8-1-1949 forged railway receipts (Exhibits B series) were presented by B.K. Roy before the railway authorities at Nawadip Dham with an endorsement purporting to be signed by Muhammad Idris on each receipt to the effect that the goods should be delivered to the bearer Mr. B. K. Roy. The words "Mr. B.K. Roy and Muhammad Idris" are in ink, while the words "Please deliver to the bearer" appear to have been stamped on the railway receipts. There are also the words "Idris Brothers" stamped under the signatures in ink. On the presentation of the railway receipts, the consignments were delivered to B.K. Roy, but he did not take actual delivery of the goods. What he did was that a petition was filed by him for and on behalf of Idris Brothers addressed to the Station Master of Nawadip Dham railway station, mentioning the railway receipt numbers and other details of the consignments, and requesting him to rebook the consignments, saying, further, that all the consignments were to be shown to be uninsured, although originally four of them containing silk goods had been shown in the railway receipts issued at Nathnagar railway station, as insured. In the petition (Exhibit D) it was not mentioned where the goods were to be rebooked, the only request made was to rebook the consignments. On the strength of this petition the goods were however, rebooked under five railway receipts showing Idris Brothers as consignors and consignees, to How rah. The goods arrived at Howrah next day, i.e. 11-1-49, and were delivered on the same day to a person named Gaontia or Shaolia. The railway receipts issued at Nawadip Dham railway station after rebooking are Exhibits E series. They also contained similar endorsements purporting to have been made by Muhammad Idris, as on the railway receipts produced by B.K. Roy at Nawadip Dharn railway station, except that in these endorsements Muhammad Idris purported to authorise delivery to one Nandy or order. There are then endorsements by Nandy on these railway receipts to the effect that the consignments were to be delivered to a person whose name can be read, as the writings go, both as Gaontia as well as Shaolia.