MAHIM CHANDRA SARKAR Vs. EIRYCO

JUDGEMENT

(1.) In this case I am of opinion that the appeal must be allowed. The judgments of the Courts below are singularly deficient in dates of the material transactions, but the facts appear to be as follows : Dana Premji & Co. consigned a wagon of coal from Pathardihi station to Sahebganj station on the E.I. Ry. This coal was consigned to the Loco Foreman of the E.I. Ry. Co., and was intended for use by the R.I. Ry. That consignment was on 9 February 1922, and there was a consignment note. The next thing which happened, so far as Dana Premji & Co. are concerned, is that they received a notice from the R.I. Ry. Co., stating that that coal was unsuitable for their purposes and that it was rejected. The date of that notice is not given in the judgments. The next thing that happened was that they resold that wagon of coal to defendant 3. Defendant 3, at some date before 13 March 1922, sold it again to the plaintiff, the plaintiff being a person at Kushtia on the E.B. Ry. The exact dates of the contracts between Dana Premji & Co and Biswas, defendant 3, and between Biswas and the plaintiff are not given, but they must have taken place before the 13 March 1922.

(2.) It now appears, according to the ease of the R.I. Ry., that although the wagon of coal was rejected, the Railway Company nevertheless retained it and were proposing to use it. They say that the rejection was a mistake; but I need not point out that however much the Railway Company might have been mistaken, their refusal addressed to Dana Premji & Co. to accept this wagon of coal put Dana Premji & Co. in the position of being revested with the ownership of the coal and entitled to resell it. The property in that coal would pass upon such a resale. It is said for the Railway Company that the coal came to Sahebganj and was immediately sent on to Jamalpur in order to be used. When it was used, by whom it was used and when it ceased to be in existence, there is no evidence at all. It may have been about a week or a month on one of the Railway Company's sidings or it may have been immediately consumed. On this point there appears to be no evidence at all, to which the learned advocates on either side are able to point, nor is there any mention of any finding as to this matter or any details about it given in the judgments.

(3.) What happened was this: that, in these circumstances, the Railway Company issued a new railway receipt at Sahebganj. It is a railway receipt or fresh invoice issued in supersession of old invoice No. 44 of 9 February 1912 to Sahebganj, and on that invoice the senders are Dama v Premji & Co. and the consignee is S.C. Biswas. The address for carriage is Kushtia. This railway receipt was endorsed on the back by S.C. Biswas to the plaintiff. Plaintiff says that he has paid Biswas for this coal and there is no finding to the contrary, nor does it matter.