SECRETARY OF STATE Vs. SUNDERJI SHIVJI AND CO

JUDGEMENT

(1.) These are two consolidated appeals against the decrees of the High Court of Judicature of Patna dated 4 July 1934. The first appeal relates to a suit brought in the Subordinate Court of Dhanbad exercising Small Cause Court jurisdiction in which Sunderji Shivji and Co. sued the Secretary of State for India in Council representing the East Indian Railway and North Western Railway for damages for the conversion of certain coal, of which the plaintiffs claimed to be the proprietors. The other appeal relates to a suit brought by Deoji Shivji and Co. against the Secretary of State representing the East Indian Railway and the Bengal and North Western Railway Company in the above-mentioned Court in which a claim of a similar nature was made in respect of certain coal which the plaintiffs alleged had been sold by the Railway administration in a manner which was illegal, irregular and ultra vires. The Small Cause Court Judge dismissed both suits with costs. The plaintiffs in both suits applied to the High Court under S. 25, Provincial Small Cause Courts Act for revision. The applications were disposed of in one judgment, by which the High Court held that the plaintiffs in both suits were entitled to succeed and decreed the suits for the amounts claimed with costs. Leave to appeal to His Majesty in Council was granted to the Secretary of State and the Bengal and North Western Railway Co. Ltd. for although the amount claimed in each suit was small, the learned Judges of the High Court held that the cases were fit for appeal under S.109 (c) of Act 5 of 1908 as substantial questions of law were involved. The plaintiffs in the two suits were not represented at the hearing of the appeals before their Lordships. The same important question arose in both cases, and related to Ss. 55 and 56, Indian Railways Act (9 of 1890). They are as follows : 55.-(1) If a person fails to pay on demand made by or on behalf of a railway administration any rate, terminal or other charge due from him in respect of any animals or goods, the railway administration may detain the whole or any of the animals or goods or, if they have been removed from the railway, any other animals or goods of such person then being in or thereafter coming into its possession ; (2) When any animals or goods have been detained under sub-s. (1), the railway administration may sell by public auction, in the case of perishable goods at once, and in the case of other goods or of animals on the expiration of at least 15 days' notice of the intended auction, published in one or more of the local newspapers, or, where there are no such newspapers, in such manner as the Governor General in Council may prescribe, sufficient of such animals or goods to produce a sum equal to the charge, and all expenses of such detention, notice and sale, including in the case of animals, the expenses of the feeding, watering and tending thereof; (3) ...; (4)... ; (5) .... 56.-(1) When any animals or goods have come into the possession of a railway administration for carriage or otherwise and are not claimed by the owner or other person appearing to the railway administration to be entitled thereto, the railway administration shall, if such owner or person is known, cause a notice to be served upon him, requiring him to remove the animals or goods ; (3) If such owner or person is not known, or the notice cannot be served upon him, or he does not comply with the requisition in the notice, the railway administration may, within a reasonable time, subject to the provisions of any other enactment for the time being in force, sell the animals or goods as nearly as may be under the provisions of the last foregoing section, rendering the surplus, if any, of the proceeds of the sale to any person entitled thereto.

(2.) In both suits the Secretary of State relied upon the provisions of the abovementioned sections as protecting him from any liability in respect of the acts of which the plaintiffs complained. The learned Judges of the High Court in their judgment dealt with the applications for revision upon the facts which were proved in the first of the above-mentioned suits, stating that the facts in the two cases were similar in so far as they were material for their decision. Their Lordships propose to adopt the same course. The material facts in the first suit are as follows : The plaintiffs are coal merchants carrying on business at Jharia. On 8 March 1929, Messrs. Villiers, Ltd., who were the managing agents of Bagdiji Colliery, acting on behalf of the plaintiffs, consigned a wagon of coal to Sikri Brothers : the destination, described in the declaration note of the East India Railway, was Doaba : this was a mistake. The wagon should have been sent to Adampur. The wagon of coal was received at Doaba on 26 March 1929, and it appears that on 15 April 1929, a letter in the following terms was sent by the Railway Company's agent at Lahore to the consignees, viz. Sikri Coal Merchants at Lahore : DEAR SIRS, Please take notice that the following consignment of coal booked to your address is lying undelivered at the station named below and that the wharfage is due to the railway on it up to date. You are now given this final notice and warning that if within 15 days from date the consignment of coal is not taken delivery of and coal removed from railway premises on payment of full wharfage and all other charges due, we reserve to ourselves the right to take civil action against you for recovery of all charges including wharfage. If the consignment is not removed within 15 days from date, it will be sold by public auction under Ss. 55 and 56, Railways Act (9 of 1890) at your risk. The coal is being advertised for sale. Invoice No.1. Railway Receipt No. 27940. Station from Pathardih. Station to Doaba. Weight in tons 21 cwts. 13. Dated 18 March 1929. Coal Wagon No. 14714 Railway freight Rupees 342-3-0.

(3.) On 22 April, a letter was sent to the consignors, Messrs. Villiers Ltd. at the Bagdiji Colliery, asking for instructions regarding the disposal of the coal, and stating that if delivery was not effected within a week of the receipt of the letter and all charges due thereon paid, arrangements would be made to dispose of the same under Ss. 55 and 56, Railways Act (9 of 1890). On 26 April 1929, Messrs. Villiers Ltd. sent to the plaintiffs a copy of the letter which they had received from the railway company and asked for instructions. On the same date Messrs. Deoji Shivji and Co., the plaintiffs in the second suit, wrote to the Railway Company's Agent at Lahore the following letter: P.O. Jharia. (Manbhum). Dated the 26 April 1929. Devji Shivji and Co., Colliery Agents. Best Bengal Coal Suppliers and Contractors. The Agent, North-Western Railway, Lahore DEAR SIR, Pathardih to Doaba Bagdigi Slack Wagon No.14714 Con. Sikri Bros.