SECY OF STATE Vs. SURJYAMAL HARIBAKSH

JUDGEMENT

(1.) In this case the facts, which are not disputed, are that the plaintiff is a dealer in Assam silk, endind muga, and other silk cloths and yarns at Gauhati. On 3 May 1927, four conspirators, intending to cheat him, came to his shop paid him an advance of Rs. 20-4 as and bought goods worth Rs. 710-4 as., leaving Rs. 690 to be paid, when the railway receipt would be sent to them by value payable post to an address in the municipal market in Calcutta. The plaintiff believing their story, sent the goods by railway parcel from Gauhati to Ranaghat and sent the railway receipt by value payable post to the address in the municipal market. The address in the municipal market being a bogus address, the receipt, after a time, was returned to the plaintiff. He then took steps and asked the station master at Ranaghat to return the parcel to him. But, long before that date, the conspirators had appeared at Ranaghat with a forged telegram purporting to be from the plaintiff at Gauhati and a forged letter posted at Gauhati, written on the plaintiff's printed note-paper addressed to the station master at Ranaghat and a bogus indemnity bond. These documents induced the station master at Ranaghat to make over the parcel to them. Afterwards, when the facts became known, the police were informed and they arrested Jateendranath Mukherji, one of the conspirators, and he was sent up for cheating, and was convicted.

(2.) The plaintiff has sued the railway administration for the sum of Rs. 690, which he lost by the loss of the parcel. The trial Court found that the parcel was delivered by the station master and the parcel clerk at Ranaghat to Jateendranath Mukherji and another person, who produced certain forged documents, and that in doing so, the railway officers were guilty of negligence and carelessness, but that as the plaintiff who sent the consignment of Assam silk to the value of Rs. 710 did not declare the value of the same, he was hit by Section 75, Railways Act, and, accordingly, the trial Court dismissed the suit. In appeal, the learned Subordinate Judge found that a fraud was intended to be practised on the plaintiff firm by a bogus customer and that a well-planned case of cheating had been laid out and it was successfully carried out either with the connivance of the station staff at Ranaghat or through their gross and deliberate carelessness. The learned Subordinate Judge further found that, in his view, the wrong delivery of the parcel did not amount to a loss within the meaning of Section 75 and therefore Section 75 did not apply, to the case. He allowed the appeal and decreed the suit.

(3.) In this Court, the only question is whether Section 75, Railways Act, is a bar to the plaintiff's success of the suit. The learned Subordinate Judge has found and Dr. Pal on behalf of the plaintiff-respondent, has urged that, having regard to the decision in the case in 1924 Cal 725 East Indian Railway Co. V/s. Jogpat Singh, 1924 Cal 725, it should be held that misdelivery, such as in this case, does not amount to a loss within the meaning of Section 75. We observe that in the case of 1924 Cal. 725 East Indian Railway Co. V/s. Jogpat Singh, 1924 Cal 725, the dispute with the railway company was as to the application of risk note form B. Under that risk note, the railway company would be responsible for wilful negligence of theft by railway servants. It was held by Page, J., that the onus was on the railway company to show that the goods were lost by inadvertence or involuntarily. In that case, if the railway company had admitted that the goods were lost by theft committed by railway servants, they would have lost the suit. The learned Subordinate Judge was, in our opinion, in error in thinking that the loss of the goods by the railway could only occur if the goods had been lost through inadvertence or involuntarily. Loss by theft or by means of fraud is, in our opinion, clearly a loss within the meaning of Section 75. This view will appear clear from the observation of Page, J., in the case of 1924 Cal. 725 East Indian Railway Co. V/s. Jogpat Singh, 1924 Cal 725. There the learned Judge observes thus: It appears to me that it is equally inaccurate to affirm that goods which are not duly delivered, or have been, misdelivered, are lost, as to assert that they are not lost. The true view would seem to be that in either case the goods may or may not be lost, and that proof of nondelivery is by no means conclusive evidence as [to whether or not a loss has occurred.