UNION OF INDIA Vs. FIRM LAXMINARAIN HARNARAIN

JUDGEMENT

(1.) THIS is an appeal by the defendants Union of India through the General manager, Northern and Western Railways, against the judgment and decree of the district Judge, Alwar, dated the 4th July, 1955, decreeing the plaintiffrespondent's suit for an amount of Rs. 48,349/11/3 with proportionate costs and allowing two months time within which the defendants should pay the decretal amount.

(2.) THE plaintiff-respondents instituted a suit on the 6th July, 1951 in the Court of district Judge, Alwar, against the Union of India, represented through the General manager, East India Railway, Calcutta and the General Manager, B. B. and C. I. Railway, Bombay , predecessors-in-interest of the present railways. The plaintiffs put forward their case in the plaint as follows: they described themselves as partners of a firm known as Laxminarain harnarain, registered under the provisions of the Partnership Act. Their firm used to carry on business at Kedalganj, Alwar. Their case was that on 13th October, 1950 they despatched from Alwar Station 270 bags of rape-seeds weighing 610 maunds and 35 seers through Invoice No. 1, R. R. No. 80597 for Allahabad Station through B. B. and C. I. Railway. The goods were consigned in favour of self. Similarly, on 14th October, 1950, the plaintiffs booked another consignment from Alwar Station of 300 bags of rapeseeds weighing 678 maunds and 30 seers through invoice No. 3, R. R. No. 80614 dated 14th October, 1950 for Allahabad station. These bags were also consigned in favour of self. The plaintiffs sent the railway receipts through the United Commercial Bank Ltd. , alwar Branch, to the said bank at Allahabad, with instructions to hand over them to Nand Kishore on payment of the full price of the goods consigned. Although the plaint does not contain the necessary allegations, it appears that Nandkishore did not pay the price of the goods to the bank and did not obtain the railway receipts from the bank with the result that the railway receipts were sent back to the plaintiffs, but these allegations are not in dispute and have been mentioned here to give a correct picture of the case. The plaintiff's case further is that their representative went to Allahabad Station to obtain delivery of the consignments through these railway receipts on 1st November, 1950 and several times thereafter, but the defendant, the East India Railway, did not give delivery of the goods nor did it make any note of production of these railway receipts or of refusal of delivery of goods on these railway receipts. The plaintiffs thereupon served the railways initially with a notice under Section 77 of the Indian Railways Act and thereafter with another notice under Section 80 of the Code of Civil Procedure and then filed the present suit. The plaintiffs claimed compensation as under:

(3.) THE total amount thus claimed was Rs. 56,048/12/3. Both the railways as defendants filed separate written statements. They admitted that the goods as mentioned by the plaintiffs were consigned by the plaintiffs from Alwar to allahabad in their own favour. They also did not dispute the fact that the goods could not be delivered to the plaintiffs. They, however, denied their liability for compensation. Their main plea for escaping the liability was fully described in their additional pleas as follows: