SUNDARJI SHIVJI Vs. SECRETARY OF STATE

JUDGEMENT

(1.) These are two applications in Civil Revision against the judgment of the learned Subordinate Judge of Dhanbad sitting as a Small Cause Court. The petition is by the plaintiff whose suits were dismissed. The facts are similar in so far as they are material for our decision. The plaintiff is a coal merchant at Jharia, the defendant is the Secretary of State for India in Council on behalf of the Railway Administration. The suit in each case is a suit for damages for the conversion of certain truck loads of coal of which the plaintiff was the proprietor. The defence was that the acts alleged by the plaintiff to be acts of conversion are in fact protected by statutory enactments, that is to say, by Section 55, Railways Act.

(2.) The plaintiff through certain colliery proprietors (in the first place Messrs. Villiers, Limited) ordered certain consignments of coal to be pent to his customers in different parts of the country. In the first case the customers were a firm known as Sikri Brothers of Adampur and Messrs. Villiers, Limited, made arrangements with the Railway Company for the moving of this quantity of coal by the Railway Company to Sikri Brothers but owing to some mistake on the part of the plaintiff in directing Messrs. Villiers, Ltd., as to where the coal was to be sent, it was sent to a wrong destination. The plaintiff made efforts to arrange with another customer at the place where the goods ultimately arrived to take delivery of the coal and they offered to the Railway Company to take the coal provided that the Railway Company would remit the charges for wharfage. This proposed arrangement, however, was not carried out. The ultimate result was that the Railway Company were in the position of having at one of their stations a truck load of coal for which the wharfage and freight were not forthcoming Thereupon they communicated with Messrs. Villiers, Limited, demanding the wharfage and freight and naming a considerable sum amounting in all to something over Rs. 1,100 as their charges in respect of this truck load of coal but they stated, however, that if a considerably reduced sum were paid promptly it would be accepted. They also informed Messrs. Villiers, Limited, that the consignment of coal had actually been sold under a. 55, Railways Act, realising a sum of Rs. 205 odd and that the balance of the charges amounted to Rs. 126 odd. They reduced their demand from the consignor from something about Rs. 1,100 down to a sum of Rs. 327. This offer was contained in a letter dated September 15, 1930 (Ex. A-I) which is as follows: Dear Sir,

(3.) The above consignment having been sold for Rs. 20 : a sum of Rs 1,170-4-0 is still due to the Railway on account of freight, wharfage and advertisement charges. This is to advise you that I am agreeable strictly without prejudice to our claim for the entire amount, to forgo the amount of wharfage and shall look to you to make good the loss in freight Rs. 123-1-0 and the out-of- pocket advertisement cost, viz., Rs. 3. (total Rs. 126-1-0) if the consignee do not pay