GOVERNOR-GENERAL IN COUNCIL Vs. KABIR RAM

JUDGEMENT

(1.) In the suit which is subject of this appeal the plaintiff sued the defendants for damages for breach of contract. Plaintiff alleged that on 6-8-1942 Rameshar Lal Raut Mal had booked 337 bags of rice from Kishanganj to Giridih. Defendants 2 to 6 purchased these bags of rice which were covered by the railway receipt Ex. 5. On 30-8-1942 defendants 2 to 6 sold the goods in their turn to plaintiff for payment of Rs. 5,897 in cash. It was agreed that the plaintiff would pay railway freight and take delivery of consignment. It was a term of the contract that if the goods were not actually delivered to the plaintiff, the defendants 2nd party would refund the money paid and compensate the plaintiff. The plaintiff next alleged that the Railway Administration (defendant 1) did not make delivery of the bags of rice. On enquiry the railway administration informed the plaintiffs that the goods had been looted from two stationery wagons at Kiul Railway Junction by a mob of rioters on 14-8-1942. The plaintiff alleged that the loss was due to the negligence of railway administration who as bailee was responsible for displaying proper amount of care. In case defendant 1 was held not liable, the plaintiff asked for an alternative decree against the defendant 2nd party who were liable to recoup the Ioss according to the stipulation of the contract.

(2.) The railway administration resisted the claim on the ground that there was no negligence on their part and the loss or destruction of the consignment was due to an extraordinary event which could not be prevented or foreseen. The defendants 2nd party denied that there was any oral stipulation that they would refund the money to plaintiff in case the goods were not delivered to the latter. They alleged that the loss of consignment was due to the negligence of the railway company who alone was liable.

(3.) The trial Judge found that the loss of consignment was due to the negligence of the railway administration. He also held that there was a special term of the contract that defendants 2nd party would refund the money in case the goods were not received by the plaintiff. But in accordance with the first finding the trial Judge granted a decree only against the railway administration for Rs. 5897 odd.