FIRM RAGHUNANDAN RAM-GOPI RAM Vs. GIPRAILWAY

JUDGEMENT

(1.) This appeal arises out of a claim by the plaintiff against the G.I.P. Railway for the value of two bales of cloth sent by that Railway from Bombay to Rasra and not delivered. Three bales were consigned of which only one was delivered. The Railway pleaded in defence that they were protected by a Risk Note in form B under which the goods were consigned. The plaintiff denied the execution of the Risk Note. The Trial Court decreed the suit on a finding that execution of the Risk Note was not proved. The Risk Note form was signed on behalf of the plaint-iff by one Shankar Balaji. It appears that this man signs a very large number of Risk Notes and his evidence is that when the details are being agreed upon he sometimes signs the printed from and leaves the details to be filled in by the Railway clerk afterwards. These details include the number of the rail receipt, the nature of the goods and the Stations from which and to which the goods are consigned. The Trial Court also held that loss of the goods was not proved and if there was loss it was due to the negligence of the Company and its servants.

(2.) The learned District Judge agreed with the Court below in holding that it was not proved that the form had been filled in when signed by Shankar Balaji. He held, however, that the parties certainly intended to eater into an agreement in the form or Exhibit B, the Risk Note in question and that on the strength of this agreement the Railway accepted the goods and conveyed them at the owner's risk rate. He held that, under these circumstances it was not open to the plaintiff to dispute the agreement. The issues which arise for decision in second appeal are: 1. Whether on the finding of the District Judge it can be held that the Risk Note was executed by Shankar Balaji. 2. If not, whether the plaintiff is estopped from denying the agreement.

(3.) Whether the agreement is invalid because it was not attested by two witnesses in presence of Shankar Balaji. 3. The learned Counsel for the appellant has also attempted to challenge the findings of the Court below that loss of the goods is proved and that loss was due to theft from a running train, but these are findings of fact and we do not see our way to go behind them.