KAJORA COAL CO LTD Vs. SECYOF STATE

JUDGEMENT

(1.) This rule was granted at the instances of the petitioner, the Kajora Coal Company, to show cause why a decree of the Small Cause Court Judge of Sealdah, directing payment by the said company of a sum Rs. 708-15-0, with costs to opposite party 1, the Secretary of State for India, being the amount of freight alleged to be due on account of certain consignments of coal, should not be set aside. The facts shortly stated are as follows:

(2.) The Kajora Coal Company was in the habit of sending consignments of coal to the New Eastern Coal Agency, Ltd., at the latter's depot No. 20 at Sealdah Railway Station. It was not apparently disputed at the trial that nine such consignments were despatched, nor does it seem to have been seriously disputed that the freight was not paid. Where the parties joined issue was that the petitioner the Kajora Coal Company claimed that the coal was despatched under "to pay" invoices, and that the freight was payable, not by that company, but by the consignee, the New Eastern Coal Agency, upon delivery to them. It was further claimed that, although under the said system the railway company was bound to realize the freight from the consignee before delivery, the railway staff, through negligence, omitted to do so, and that that being so, they had no claim to recover the freight from the Kajora Coal Company. The railway company pleaded, on the other hand, that they were entitled to recover the freight from one or both of the defendants. The learned Subordinate Judge found that the coal was actually delivered to the agents of the New Eastern Coal Agency, at their depot at Sealdah, without realizing the freight, and that it did not appear that there was any agreement that the consignee was to pay the freight on delivery. He further held that the person primarily liable to pay the freight was the person with whom the carrier company had contracted, and, in that view of the matter, gave a decree against the consignor, the Kajora Coal Company.

(3.) On behalf of the petitioner that decision is assailed as being erroneous in law and the argument has been repeated that the freight ought to have been realized from the Eastern Coal Agency Company, as it was payable on delivery of the coal to them, and that the railway company ought not to have parted with the coal until its charges had been paid. This defence however is demolished by the finding of fact arrived at by the . learned Subordinate Judge to the effect that it did not appear that the consignee was to pay on delivery, and that, that being so, the Kajora Coal Company, having contracted with the plaintiff for the carriage of the coal, must be held liable to pay the freight. To this it is replied, on behalf of the petitioner, that the learned Subordinate Judge, in so finding, has gone contra to the admission of the Secretary of State in his plaint, and, in support thereof, reference was made to para. 5 of the plaint. The plaint however must be read as a whole, and in para. 4 it is distinctly stated that the consignors stipulated to pay the freight at the time of delivery, but did not do so.