JUGESHWAR MAHTON Vs. M AND SMRAILWAY

JUDGEMENT

(1.) This is a second appeal by the plaintiff from a decision of the learned Additional District Judge of Darbhanga, dated 4-6-1945, whereby the learned District Judge has reversed the decision of the learned Munsif of Samastipur with regard to the plaintiff's claim against one of the defendants, namely, the Madras and Southern Mahratta Railway Company and modified the decree as against the other, defendant, namely, Messrs. K.A.G. Naraina Chetty and sons their after to be called the Chetty for the sake of brevity.

(2.) The plaintiff had brought the suit claiming a sum of Rs. 1956-6-5 as the price of 189 bags of garlic plus a sum of Rs. 500 as damages. The plaintiff is the proprietor of a firm styled Bhagwal Mahton and Jugeshwar Mahton in the town of Rosera within the Samastipur subdivision. On 21-6-1942, the plaintiff had received a telegraphic money, order from the Chettys for a sum of Rs. 200 only for purchasing garlic and for despatch of the same to two places named Guntur and Bangalore. On receipt of the telegraphic money order, the plaintiff purchased the required quantity of garlic, but was unable to despatch the same to Guntur and Bangalore as booking for those stations was closed at the time. The plaintiff thereupon wrote to the Chettys intimating to them that the garlic could not be despatched to Bangalore or Guntur and enquired if it could be sent to Hindupur, another place in the Madras Presidency where the Chettys resided and carried on their business. On receipt of a reply from the Chettys, the plaintiffs sent 189 bags of garlic in two wagons on 13-7-1942. The consignor of the garlic was stated to be one Chulhai Naik, who, however, had nothing to do with the plaintiff's firm. The name of Chulhai Naik was given as the consignor, because the wagons in which the garlic was loaded were allotted in the name of Chulhai Naik. The consignee of the goods was mentioned as Bhagwan Mahton and Jugeshwar Mahton. The railway Receipt along with in invoice was sent to the Chettys through the Imperial Bank of Bangalore. The goods were received at Hindupur Railway Station on the 1-8-1942. On the next day, that is, 2-8-1942, the plaintiff received a telegram from the Chettys to the effect that the garlic was not of the required quality and, therefore, the Chettys were not prepared to take delivery of the same. The plaintiff does not appear to have done anything further, on receipt of the said telegram from the Chettys. The officers of the Madras and Southern Mabaratta Railway Company found that nobody claimed the consignment in question. They sent telegraphic enquiries to the Station Master of Rosera to find out if consignor wished to claim the goods. These telegraphic enquiries did not, however, bear any fruit. Due to the civil disturbances which took place in the mon August, 1942, the telegrams which, the railway officers sent to Rosera and Samastipur did not reach those places till sometime in September 1942. After waiting for sometime, the railway company sold the 189 bags of garlic by auction on 9-9-1942. A sum of Rs. 1000 only was realised as the sale proceeds of the garlic. There was then some correspondence between the plaintiff and the railway company, the latter offering to the former a sum of Rs. 181 and odd annas only as being the surplus sale proceeds in favour of the owner of the goods, exclusive of wharfage charges which the railway company said that they were entitled to get. Thereafter, the plaintiff brought the present suit against the Chettys and the railway company. It was alleged that they had been guilty of illegal conversion of the goods and were, therefore, liable to reimburse the plaintiff for the loss sustained. The plaintiff wanted a joint decree against both the railway Company and the Chettys.

(3.) The learned Munsif who tried the suit in the first instance gave a decree to the plaintiff both against the railway company and the Chettys for the total sum claimed by the plaintiff including damages. Then, there was an appeal to the learned District Judge and the learned Additional District Judge who heard the appeal came to the finding that the railway company was not liable at all and that the Chettys were liable not to the extent claimed by the plaintiff, but to a lesser extent. The learned Additional District Judge deducted from the price of the garlic the sum of Rs. 200 which had already been sent by the Chettys by means of the telegraphic money order referred to above. He also deducted from the price certain small amounts which the plaintiff bad charged on account of "gosala", "thakurbari", etc. The learned Additional District Judge found that these items did not properly form part of the price of garlic and could not be charged by way of business custom or usage. He further deducted the sum of Rs. 181.5-0 which represented the surplus sale proceeds and was lying with the railway company. The learned District Judge accordingly gave a modified decree to the plaintiff.