Bajranglal Agarwala vs Dominion of India

G.K. Mitter, J.—This is a suit for recovery of Rs. 13,0-36-9, claimed as damages suffered for non-delivery and/or loss of 308 mds. of jute booked from Poradah to Naihati under a railway receipt No. 299256, dated the 30th October, 1948.

The Plaintiff bases his claim on an endorsement and transfer of the railway receipt for valuable consideration effected at Calcutta within the jurisdiction of this Court. One Rajani Kanta Haider was the consignor of the goods. the consignee named in the railway receipt being Hukumchand Jute Mills Ltd. It is the common case of both the parties that the goods virtually perished as the result of a fire while in transit, the portion salvaged being of little value. The claim of the Plaintiff is made up of two sums, viz., Rs. 12,936 as the price of 308 mds. of jute and Rs. 100-9 as the freight paid thereon. The Plaintiff contends that non-delivery of the goods and/or loss of the same was due to the negligence and/or default of the railway administration, its servants and agents. Reliance is placed on a letter written by his pleader Bijoy Krishna Chatterjee on the 9th February, 1949, to the General Manager of the railway administration at Calcutta as the requisite notice u/s 80 of the Code of Civil Procedure. The jurisdiction of this Court is sought to be attracted on two grounds, viz., the transfer of the railway receipt and the service of the notice mentioned above within the judisdiction of this Court.

The Defendant takes the following pleas by way of defence: (a) that in terms of risk note ''C executed in respect of the consignment the railway administration was exonerated from any responsibility for destruction or deterioration or damage to the goods by reason of their being conveyed in open wagons, cars or boats during transit, (b) that the consignment which was conveyed in open truck No. BN 27039 was involved in fire along with two other open trucks while in transit en route Chandmari station on the East Indian Railway and that the outbreak of the fire was an accident beyond the control of the railway administration, (c) that the Plaintiff wrongfully refused to take delivery of the jute which was salvaged after extinction of the fire and the same was sold by public auction, (d) there was no negligence or misconduct on the part of the Defendant, (e) that the Plaintiff was not a transferee or endorsee of the railway receipt as alleged in the plaint, (f) that no sufficient notice u/s 80 of the CPC had been served, (g) that this Court has no jurisdiction to try this suit as both the forwarding and destination stations were outside the jurisdiction of this Court.

In the original railway receipt Rajani Kanta Haider is shown as the sender and the manager Hukumchand Jute Mills as the consignee of the goods consisting of 88 bales of jute weighing 3 1/2 mds. each sent at owner''s risk. It acknowledges the receipt of Rs. 100-9-0 as the freight paid. The receipt also bears an endorsement reading-"Booked in open trucks as per request of "sender-R/N "C" held-Booked under service No. 35 of "30-10-48." The number of the forwarding note mentioned in this receipt is No. 56 and in the space provided for "risk note "form used" the word "C" has been put in. A number of printed terms and conditions are to be found on this receipt,-Clause 3, being the only clause relied on, is set out below:

That the railway receipt given by the railway administration for the articles delivered for conveyance must be given up at destination by the consignee to the railway administration or the railway may refuse to deliver and that the signature of consignee or his agent in the delivery book at destination shall be evidence of complete delivery.

If the consignee does not himself attend to take delivery, he must endorse on the receipt a request for delivery to the person to whom he wishes it to be made, and if the receipt is not produced the delivery of the goods may, at the discretion of the railway administration, be withheld until the person entitled in its opinion, to receive them has given an indemnity to the satisfaction of the railway administration."

The receipt also contains various endorsements which must have been made after the issue of the document at Poradah. At the top there are two endorsements, one reading-"Account "Bajranglal Agarwala", the next being a signature of somebody "for Hukumchand Jute Mills Ltd." There is another endorsement at the bottom, being the impression of a rubber stamp reading "Sew Narayan Kesardeo". It will be noticed that there does not appear any endorsement by Rajani Kanta Haider on the receipt.

The next document in point of time, disclosed by the affidavit of documents and exhibited only after the suit had been heard in part in December, 1956, purports to have been executed by Rajani Kanta Haider on the 31st October, 1948. The text of it is as follows: "Received from Bajranglal Agarwala of 122, Harrison Road, Calcutta, price of 88 bales jute 308 mds. at Rs. 42 per maund with Pakistan Export Duty under railway receipt No. 299256 of 30-10-48 Ex. Poradah to Naihati for Hukumchand Jute Mills amounting to Rs. 12,936 and/or freight paid Rs. 100-9 total Rs. 13,036-9 money received in cash at 122, Harrison Road, Calcutta, on 31-10-48". Below this appears the signature of Rajani Kanta Haider on a revenue stamp of one-anna. The document thus purports to record the payment of Rs. 13,036-9. On the 5th November, 194S, one N. Sarougi acting on behalf of Haider wrote a letter to the Officer-in-charge, G.R.P., Ranaghat, Eastern Railway, lodging information to the effect that the consignment had been burnt at Chandmari station and requesting the said officer to institute necessary enquiries regarding the cause of fire. On the 25th November, 1948, the Chief Commercial Manager wrote to the Plaintiff disclaiming liability for loss or damage to the consignment which was covered by risk note ''C. The Plaintiff was requested to take delivery of the consignment under a clear receipt without delay, failing which action was proposed to be taken under Sections 55 and 56 of the Indian Railways Act. By his reply dated the 29th November, 1948, the Plaintiff contended that the goods had been agreed to be carried safely to destination and that, therefore, liability for loss or destruction thereof must be accepted by the railway. On the 30th November, 1948, Bijoy Krishna Chatterjee sent a notice to the Chief Commercial Manager demanding Rs. 13,000 as the price of the consignment with freight paid thereon and the same pleader addressed another letter to the General Manager formulating the same claim. On the 7th January, 1949, the Chief Commercial Manager wrote to the Plaintiff to the effect that he was agreeable to deliver the jute bales on assessment without prejudice to the claim of the railway. On the 18th January, 1949, the Plaintiff addressed a letter to the Chief Commercial Manager stating that on inspection it had transpired that the entire jute had been reduced to ashes and rendered useless and in the circumstances the Plaintiff was not agreeable to accept it or any part of it on any assessment whatever. On the 9th February, 1949, the pleader Bijoy Krishna Chatterjee. sent a notice addressed to the Dominion of India through the General Manager making a claim for Rs. 12-936 and Rs. 109 as already mentioned.

A brief containing documents relied on by both sides was tendered as an exhibit marked H and all the documents therein excepting Defendant''s documents Nos. 1, 4 and 8 were proved at the trial.

The issues settled were as follows:

Is the Plaintiff entitled to sue?

Was there any default or negligence on the part of the railway administration as alleged by the Plaintiff?

3(a) Was the consignment booked subject to the terms and conditions in Risk Note ''C''?

(b) If so, can the Defendant be liable for any damages that might have arisen from the consignment being carried in an open wagon?

Was the Plaintiff''s refusal to take delivery of the goods wrongful?

What is the quantum of damage, if any, suffered by the Plaintiff?

Has this Court jurisdiction to try the suit?

Was a proper notice u/s 80, Code of Civil Procedure, served on the Defendant?

To what relief is the Plaintiff entitled?

The Plaintiff examined three witnesses including himself. He stated that he had on the 31st October, 1948, purchased one wagon of jute consisting of 88 bales weighing 300 mds. from Rajani Kanta Haider at the rate of Rs. 42 per maund and that the railway receipt had been handed over to him at 122, Harrison Road, Calcutta. He said that payment had been made against the railway receipt on the same date at Calcutta. He produced the document signed by Rajani Kanta Haider on the 31st October, 1948, and said that it had been executed in his presence. He then referred to the letters of the 5th November, 15th November, 24th November, 25th November already mentioned. He said that he had no books of account of his own from which he could prove payment of Rs. 13,036-9 to Rajani Kanta Haider but an employee of Rajani Kanta Haider who was present on the occasion, would be coming and giving evidence in support of his case. He admitted that the railway receipt had not been endorsed in his favour. He spoke of having transferred this document to Sew Narayan Keshardeo, his commission agents, on receipt of Rs. 9,000 from them but on their failure to get the goods lie had to take back the document and refund the money, Counsel examining him asked him whether he had sold the goods to any one to which his answer was "''Tea, to "Hukumchand Jute Mills." In reply to further questions he stated that the railway receipt had been sent to Hukumchand Jute Mills through Sew Narayan Keshardeo. In answer to my question as to how he could part with the railway receipt in favour of Sew Narayan Keshardeo having sold the goods to Hukumchand Jute Mills Ltd. the witness made a confusing statement the substance of which seemed to be that the goods were sold to Hukumchand Jute Mills and Sew Narayan Keshardeo was a mere broker in the transaction. The cross-examination of this witness was mainly directed to showing that the document Ext. B which was not mentioned either in the affidavit of documents or disclosed before the trial was not a genuine document and had been set up for the purpose of this case. The Plaintiff admitted that he had not shown the document to his solicitor at the time when he had affirmed his affidavit of documents. Exhibit B, according to the Plaintiff, had been lying with his sister''s husband and had been made over to his lawyers only after a conference with them just before the trial. He stated further that he had known Rajani Kanta Haider for about 10 years before the partition of India and that negotiations between himself and Haider had taken place a week or two before the 31st October, 1948. Motilal Sarougi, the next witness, said that he was the nephew of Bajranglal and that he had gone to Naihati and viewed the goods himself and found them reduced to ashes. Srikanta Saha, an employee of Rajani Kanta Haider, was examined next. He said that he was working under Haider in Kusthia in Eastern Pakistan. Rajani Kanta Haider, according to this witness, was 85 or 86 years of age and was not keeping good health. The witness said that the document of October 31, 1948, had been executed in his presence and that jute had been sold against the railway receipt Ex. A. He did not know who had actually put the goods on rail and booked them but he remembered that he himself had brought the receipt to Calcutta. He had made the journey to Calcutta on October 30 and on the day following the transaction with the Plaintiff had been put through and the money received by Rajani Kanta Haider.

Bhupendra Nath Basu, the first witness called on behalf of the Defendant, said that he had been the Station Master at Chandmari in October 1948. Shown the railway receipt Ex. A, he said that risk note in Form C had been executed in respect of the consignment as was apparent from the endorsement on the receipt itself. In course of cross-examination he said that he remembered that the goods had been burnt and that the Assistant Station Master at Chandmari, who was on duty at the relevant time, had made an entry in his diary to that effect. He spoke of having made a report himself. No question was put to this witness about the cause of the fire or about the detection of the fire. The second witness on behalf of the Defendant was one Phanindra Nath Mustafl who proved a letter from one M. Hossain attached to the office of the Chief Traffic Manager, Chittagong, dated May 31, 1951. This letter shows that the original risk note C was not available and the Station Master who had got it executed, was dead and it was not therefore possible to send a true copy of the original risk note C but the original forwarding note was available and it was being sent to the addressee. The forwarding note tallies with the railway receipt Ex. A and shows that the goods had been loaded in open truck at the request of the owner and that risk note C was held by the railway. This note bears the signature of some one reading R.K. Haider. The forwarding note also shows that it was signed by one K. Paul for Rajani Kanta Haider. This note was put in as Ex. 1. The forwarding note corroborates "the endorsement contained in the railway receipt but so far as the letter of May 31, 1951, is concerned, the statements contained therein have not been proved.

The evidence of the Plaintiff, to say the least, is far from satisfactory. He has produced no books of account, he is not the holder of the railway receipt by virtue of any endorsement as laid down in the notice u/s 80 of the CPC and it is difficult to trace the title to the goods as deposed to by him. He stated at first that he had purchased them on October 31, 1948, from R. K. Haider who had executed a document in his favour, namely, Ex. B. This document merely purports to record the sale of the goods to the Plaintiff. It does not pretend to transfer or assign the benefit of the contract of R.K. Haider to the Plaintiff. If the Plaintiff''s version be true, he had sold the goods to Hukumchand Jute Mills. That the mills had come into possession of the railway receipt is clear from an endorsement which appears on the document itself although the attendant circumstances are not in evidence. Having secured the railway receipt from R.K. Haider the Plaintiff gave it to his commission agent Sew Narain Kesordeo on receipt of Rs. 9,000 from them but when the latter failed to collect the goods the railway receipt was handed back to the Plaintiff by Sewnarain Keserde''o and refund of Rs. 9,000 obtained. If the title to the goods had passed to Hukumchand Jute Mills the Plaintiff can only be described as an unpaid seller with such rights as the Sales of Goods Act gave him. If he had never transferred the goods to Hukumchand Jute Mills he was the owner thereof having purchased the same from R.K. Haider and in possession of the railway receipt. In any case he was not the endorsee either from the consignor or the consignee and his claim in this suit must rest on his title to the goods. It is not therefore necessary to consider the rights of the Plaintiff as if he was the endorsee of the railway receipt. The position of such an endorsee has been considered, at great length by Bhagwati J. in Shamji Bhanji''s case to which I shall presently refer. His Lordship pointed out that an endorsement by itself is not enough to constitute the endorsee either a bona fide pledgee or a bona fide transferee for value of the goods represented by the railway receipt and that without anything more it. only constituted the endorsee the agent of the consignee for the purpose of taking delivery.

It was argued on behalf of the Defendant that only the consignee named in the railway receipt or an endorsee from the consignee could sue for loss of or damage to the goods while it was urged by learned Counsel for the Plaintiff that only the owner of the goods could bring such a suit. Counsel for the Defendant relied on the cases of Sri Ram Krishna Mills, Ltd. Vs. Governor-General in Council, , M.S.M. Railway Company, Ltd. v. Rangaswamy Chetty AIR (1924) Mad. 517, Ramdas Vithaldas v. S. Amerchand Company (1916) L.R. 43 IndAp 164 and Mercantile Bank of India v. Central Bank of India (1937) L.R. 65 I.A. 75. While on behalf of the Plaintiff reliance was placed on a passage in Halsbury''s Laws of England, 3rd Edition, Vol. 4, page 196, Article 482 and the cases of Sargent v. Morris (1820 )106 E.R. 665 : (1820) 3B & Aid. 277 and Dunlop v. Lambert (1838) 6 C&F 600. Both parties relied on certain passages in the judgment of Bhagwati, J. in AIR 1947 169 (Bom.) . 169. It appears to be that without qualification neither of the contentions is correct. When A books goods by fail and makes B the consignee, there is clearly a mandate to deliver the goods to B and the mandate is fulfilled by delivery to B. When such a contract contains a term like condition (3) above mentioned the railway receipt must be given up at destination by the consignee to the railway or the railway may refuse to deliver the goods; if the consignee does not himself attend to take delivery he must endorse on the receipt a request to deliver to a third person and if the railway receipt is not produced the railway may withhold delivery of the goods until it is satisfied that the person applying for delivery is the person entitled to the goods and even then may require such person to indemnify the railway against claims of others. It is clearly indicated by this condition that the consignee is the person entitled to receive the goods and he must either produce the railway receipt himself at the time of taking delivery or endorse it over to someone with a request that delivery be given to him. When the consignor and the consignee are the same no difficulty arises. Vexed questions have to be considered when they are different. Apart from any authorities and subject to the provisions of Section 187 of the Transfer of Property Act it would appear that the liability of the railway company for breach of a contract to deliver the goods safely and without injury must be to the party who enters into the contract. Where the consignor is the owner of the goods at the time of consignment and names another person as the consignee, the latter is merely an agent of the consignor to receive the goods from the railway and failure to deliver them to the named consignee will not give the latter a right of action. If the consignor puts the goods on rail at the direction of the consignee the property in them being vested in the latter at the time of consignment, it is clearly the consignee who has the right of action against the railway. It is open to the consignor or the consignee, while the property in the goods is still vested in him to transfer the benefit of the contract to a third person and in such a case the transferee may sue the railway company. Such a contract can, however, be assigned only before a breach has taken place.

The respective rights of the consignor and the consignee of goods were considered by the House of Lords in the case of Dunlop v. Lambert Supra. The Appellant was a wine merchant who had shipped on board the Ardincaple belonging to the rsepondent a cask of spirits to be delivered to one Robson. The ship met with heavy seas and the crew, in order to save them selves and the ship, jettisoned the heavy cargo including the said cask of wine. The vendor had paid the freight and informed the vendee of the shipment and transmitted an invoice along with the bill of lading which made the goods deliverable to Robson or his assigns. The Lord President who tried the action with a jury held that the Appellant was not entitled to maintain it as he was not the rightful owner of the goods at the time of shipment. In appeal this judgment was set aside and the case remitted. Delivering judgment Lord Cottenham L.C. observed (at pp. 620-621). "It is no doubt true as a general rule, that the delivery by the consignor to the carrier is a delivery to the consignee, and that the risk is after such delivery the risk of the consignee And again, though in general the following the directions of the consignee, and delivering the goods to a particular carrier, will relieve the consignor from the risk he may make such a special contract, that, the risk may remain with him; and the consignor may, by a contract with the carrier, make the carrier liable to himself."

His Lordship referred to various authorities including Devis and Anr. v. James (1770) 5 Bur. 2680, where Lord Mansfield had negatived the objection that the consignee was alone entitled to maintain an action to recover the value of the goods lost and said "There is "neither law nor conscience in the objection. The vesting of "the property may differ according to the circumstances of cases, "but it does not enter into the present question. This is an "action upon the agreement between the Plaintiffs and the "carrier. The Plaintiffs were to pay him. The action is "properly brought by the person who agreed with him and who "were to pay him". In this case Davis had made over some cloth to the Defendant James, a common carrier, for delivery to one Elizabeth Bowman for consideration paid by the Plaintiff. Objection was taken by the Defendant that the consignor had parted with the property in the goods. In Sargent v. Morris See Supra the question arose whether a consignee, who had no property in the goods at the time of shipment, could bring an action for damage to the goods against the shipowner. The goods were shipped by Bays and Son and by the bill of lading the Captain of the ship undertook to deliver the same to Bays & Son and in their name according to custom and usage, to Mr. Sargent or his assigns, paying freight, etc. Sargent had effected an insurance and advanced the premiums and claimed damages for negligent handling of the goods by the Defendant shipowner. Abbott, C.J. found that although the bill of lading did not show on the face of it whether the contract was made by Bays and Son on their own behalf or as the agents of Sargent but the fact, later ascertained, was that the shipment had been made on account of Bays and Son at their risk for their benefit. The learned Chief Justice observed that a transfer of property was very different from a transfer of a contract and that on the facts'' Sargent would have had a lien on the goods for the advances made once they are delivered to him and in the absence of delivery, would be entitled to proceed against Bays and Son for such advances. Bayley, J. held that at the time of shipment the right of action vested in the party to whom the goods belonged and what was done subsequently did not affect the point. Best, J. observed that unless the Plaintiff was one of the original contracting parties he could not maintain the action. Lord Chancellor Cottenham also referred to the cases of Brown v. Hodgson (1799) 8 D & E 330, Dawes v. Peck (1813) 3 Cam 320 and Joseph v. Knox I.L.R.(1913) Bom. 255. In Brown v. Hodgson (1809) 2 Campbell 36 where the goods were "shipped by order "and on account of the consignee", the latter alone was held to be entitled to maintain an action fornon-delivery. In Dawes v. Peck Supra one Odey of Warwickshire had given the Plaintiff Dawes, a dealer in London, an order for goods to be sent by the Defendant Peck''s Wagon. The goods were seized as the permit for their removal had expired. Dawes brought the action against Peck the carrier for not carrying the goods safely. As to the person who could bring the action, Lord Kenyon, C.J. observed "This question must be governed by the consideration, "in whom the legal right was vested; for he is the person who "has sustained the loss, if any, by the negligence of the "carrier; and whoever has sustained the loss is the proper party "to call for compensation from the person by whom he has been "injured." On the facts of the case his Lordship held that after delivery to the carrier "the vendee must stand to the risk." According to Grose, J. "while the goods remained in the hands "of the carrier, there was a latent right in the Plaintiff to stop "them in transit... But the legal right was, by the"delivery to the carrier, vested in the consignee by whose order "they were so delivered". About the cases on special contracts cited at the Bar Lawrence, J. observed, "It is true that in some "special cases a man may make himself liable to either of two "persons on account of the same interest but that is not usual; "and it is more consonant to the general principle of law to "refer all transactions of agents to the principal on whose "account they were entered into. Now here I consider that "what was done by the consignor in respect of the booking was "as the agent of the consignee, at whose risk the goods were "sent." In Joseph Knox Supra the Plaintiffs, agents of. consignors had shipped the goods which were deliverable to Davids at Surinam. The bill of lading showed that the Plaintiff had paid the freight and shipped the goods. On objection being taken that the Plaintiffs had no interest in the goods Lord Ellenborough held that the contract being established by the bill of lading the Plaintiffs from whom the consideration had moved and to whom the promise had been made, could maintain the action. As a result of the above authorities the Lord Chancellor came to the conclusion that "Although, generally "speaking, where there is a delivery to a carrier to deliver to a "consignee, he is the proper person to bring the action against "the carrier should the goods be lost; yet that if the consignor "made a special contract with the carrier, and the carrier agreed "to take the goods from him, and to deliver them to any "particular person at any particular place, the special contract "supersedes the necessity of showing the ownership in the goods; "and that, by the authority of the cases of Davis v. James Supra "and Joseph v. Knox Supra the consignor, the person making the "contract with the carrier, may maintain the action though the "goods may be the goods of the consignee." The authorities seem to me to establish that the consignor is entitled to maintain the action where there is a special contract with him to deliver at a particular place provided he has some interest in the goods. The circumstance of paying the freight or the insurance premium is not in itself conclusive on the question of property nor is it conclusive on the right to sue.

The position is thus summarised by Disney in "Carriage by "Railway" 8th edition page 94, "where a railway Company is "liable to be sued for the default in the carriage of goods, the "owner of the goods is the proper person to sue. In most cases this "is the consignee, because, when goods are sold and delivered to a "railway company for carriage to the buyer, such delivery "usually makes the consignee the owner of the property. The "contract in such a case is usually in fact made by the consignor "with the railway company, but it is considered in law as "having been made by the consignor on behalf of and as agent "for, the consignee. But delivery to the company does not "affect the ownership of the goods, as where goods are sent on "approval, or where the consignor is under contract to deliver "safely to the consignee) or otherwise where the goods are at the "''consignor''s risk till delivery the consignor is the proper "Plaintiff."

I now turn to the Indian authorities which were cited at the Bar and to some of the decisions on which these authorities rest. In S. Amerchand and Company v. Vithaldas Durbar ILR (1914) Bom. 659, Ramdas Yithaldas were the consignors and Chhagandas Kalidas were the consignees who had purchased cotton from Ramdas Vithaldas. The consignors made over the railway receipts to the consignees in exchange for hundis for the value of the goods. The Appellants were the endorsees from Chhagandas Kalidas who had "become insolvent. The hundis being dishonoured Ramdas Vithaldas purported to stop the goods in transit and gave instructions to the Bombay Steam Navigation Company, who were in possession, to deliver the goods to Gangaram Chhabildas and not to Chhagandas Kalidas. The Steam Navigation Company filed inter pleader suits and Ramdas Vithaldas carried them on as if they had been the Plaintiffs. McLeod, J. held that Ramdas Vithaldas Durbar was entitled to stop the consignments as against the consignees. The railway receipts had conditions printed on them identical with those of the railway receipt before me. The judgment of the trial judge was upset in appeal. Scott, C.J. held that the railway receipts were documents of title to goods and that the Appellants were entitled to the benefit of Section 103 of the Contract Act against the unpaid vendor. In Dolatram Dwarkadas v. B.B.C.I. Rly. Co, I. L. R. (1924) All. 691 the above decision of Scott, C.J. was followed. The court held that the endorsee of a railway receipt had sufficient interest in the goods to recover damages in respect thereof. In this case the consignor and the consignee were the same. The consignor had endorsed the railway receipt to Naraindas Luxmidas who in their turn had endorsed it to the Plaintiff. Dwarkadas who took delivery of a portion of the goods and claimed damages in respect of the balance of 19 bags of wheat which were torn and empty. The railway company''s contention was that being a mere commission agent the Plaintiffs were not entitled to sue.

In The M.S.M. Ry. Co. Ltd. Vs. K. Rangaswamy Chetty and Another, the above decisions were followed. The Allahabad High Court held that an endorsee of a railway receipt from a consignor could sue the railway company. The facts as reported, however, do not make it clear whether the consignee was a person different from the consignor. In Sri Ram Krishna Mills, Ltd. Vs. Governor-General in Council, Phillips, J. of the Madras High Court merely followed the case of Dawes v. Peak Supra and observed that the consignee was the proper person to sue. In Sri Ram Krishna Mills Ltd. v. Governor-General-in-Council AIR (1925) Cal. 915 Beevor, J. of the Patna High Court was content to accept the above Madras judgment as good law. Raimdas Bithaldas''s Supra case went up on appeal to the Judicial Committee. Before the Judicial Committee the main question argued was whether the railway receipt was an instrument of title within the meaning of Section 103 of the Indian Contract Act, 1872. Their Lordships held that it was so and that the sellers were therefore not entitled to stop the goods except upon payment or tender to the pledgees of the advance made.

Mr. Mookerjee, learned Counsel for the Defendant, also relied on the observation of the Judicial Committee in Mercantile Bank of India Ltd. v. Central Bank of India Supra and in particular to a passage at page 81 reading "In all the consignments in question "in these proceedings the merchants were entitled to obtain "delivery of the goods under the railway receipt, either because "they were named as consignees or because if they were not so "named, the document had been endorsed by the named "consignee." The railway receipt contained a condition to the effect that they must be given up at destination by the consignee failing which the railway might refuse delivery and that the signature of the consignee or his agent in the delivery book at destination would be evidence of complete delivery. The question before the Judicial Committee was altogether different from that before me. The dispute there arose out of a series of frauds committed by a firm of merchants named C.K. Narain Ayer and Sons who were in the habit of purchasing ground-nuts from up-country growers and despatching the same by rail to Madras. In respect of each consignment the railway receipt: issued contained particulars of the goods and the names of the consignor and the consignee. There was no dispute in that case that the consignee was the owner of the goods and therefore the'' person who could sue on the railway receipt and the above observation of the Judicial Committee merely shows that the consignee as the owner of the goods was entitled to take delivery of them from the railway company.

In Shamji Bhanji''s case Supra, the Plaintiff, a Bombay firm had sold chlorate of potash to one Hakim of Kabul. The goods were consigned under a special declaration applicable to explosives, by the Plaintiffs, who also paid the railway charges. The railway receipt was obtained by the Plaintiffs as the consignors in favour of "selves" as consignee and endorsed by the Plaintiffs in favour of National Trading Company with a direction on them not to part with the railway receipt to Hakim except upon payment. In spite of such direction the railway receipt was endorsed over to Hakim who, in circumstances not material for the purpose of this suit, re-endorsed it to the Plaintiff. Bhagwati, J'', who dealt with the English cases in detail came to the conclusion that the endorsements made were no more than mere authorities and conferred on successive endorsees only, a right to obtain the goods from the railway company. His Lordship held that the property in the goods had never passed" to Hakim and it was the Plaintiffs alone who were entitled to sue the railway company for the loss of the goods. According to his Lordship the relevant date for ascertaining who could sue the railway for loss of the goods is the date when the goods are entrusted to the railway company for carriage. "If the property "in the goods had not passed to the consignee at the time of'' "consignment it would be the consignor alone who would be "entering into the contract of carriage with the railway "company and any subsequent dealing by the consignor with the "document of title to the goods or anything that happened "between the consignor and the consignee which would have the "effect of passing the property in the goods represented by the "railway receipt to the consignee would have no effect whatever "on the incidents of the contract which had been entered into "between the consignor and the railway company."

The result, therefore, is that if the property in the goods had passed to the consignee at the time of the consignment the consignee alone is the person to sue. If the goods while in transit were at the risk of the consignor it is for the consignor to bring the action. It is not necessary that the consignor should be the owner of the goods in order to be able to institute a suit. A person who has a special property in the goods and who has entered into the contract of carriage with the railway company can sue for the non-delivery thereof although he is not "the full or absolute owner. A person who enters into a special contract with the railway company is also entitled to sue on the -contract and as observed by Lord Cottenham in Dunlop v. Lambert Supra it is possible for a railway company or a carrier to make itself liable not only to the consignee but to the consignor as well. But it is not correct to say that whoever owned the goods at the time of the loss is the proper person to bring a suit against the carrier when liability is for breach of a contract.

In this case there is no evidence that the property in the goods had passed to Hukumchand Jute Mills, the consignee named in the railway receipt at the time of the consignment. If the Plaintiff is to be believed the goods were sold to the mills much later. After putting the goods on rail the consignor had Bold them to the Plaintiff without transferring the benefit of the contract to him or even endorsing the railway receipt to him. The consignor, it would appear, had entered into a special contract with the railway company by agreeing to take the risk of transit in open wagon, executing risk note C and paying the railway freight. The consignor, therefore, was the only person who could sue on the contract evidenced by the railway receipt.

The only other question which was canvassed at some length before me was whether risk note C had been executed. The original risk note was not produced in this case. The Defendant relied on the endorsement on the railway receipt and the forwarding note for showing that it should be held that such a risk note had been executed coupled with the fact that the Plaintiff had never taken any objection to the statement made on behalf of the railway in the correspondence that risk note C had been executed by the consignor. On the other hand it was urged by the Plaintiff that it was for the railway company to produce the risk note and as the risk note purports to cut down the rights of the consignor substantially, non-production of the risk note would be fatal to the Defendant''s contention. On this point also there seems to be a large number of decided cases and I shall refer only to some of those which were relied upon by learned Counsel on both sides. In the case of East Indian Railway Company v. Bam Chabila Prosad AIR (1929) Lah. 698, 915, Chotzner, observed that "the Plaintiff''s case was upon the railway receipt "which referred to the risk note and it was clear that the goods "had been carried at a much reduced rate on account of the "execution of such risk note." According to his lordship if the Plaintiff had to rely on the railway receipt he must also abide by the endorsement therein to the effect that the risk note had been executed and it was not open to him to ignore the endorsement and rely on the railway receipt.

In Kundanmal Barumull v. Secretary of State AIR (1929) Lah. 887 a Division Bench of the Lahore High Court held that the Appellant was debarred from taking the plea that no risk note had been executed. This judgment seems to go a step further than the judgment of Chotzner, J. The same conclusion was arrived at in the case of B.N. Ry. Co. Vs. Moolji Sicka and Co., . In the case of Bengal and North Western Railway Co. Ltd. Vs. Sobrati Mia and Others, . 50 Suhrawardy and Patterson, JJ. held that the Plaintiff who sued upon the railway receipt but denied the authority of the executant of the forwarding note to sign the risk note should be non-suited. The learned Judges held "it was not reasonable to "hold that the Plaintiff an retain to himself the advantage of the "reduced rate but repudiate the consideration for it, the risk "note executed by the person who delivered the goods to the "railway as being unauthorised". In Bengal N.W. Railway v. Sobrati Mia AIR (1950) Pat. 215, the document not being produced the trial Judge was not satisfied that the consignments were covered by a risk note. According to Henderson, J. it was a matter of evidence and that "it would have to be proved that the consignor ''''knew the meaning of hieroglyphic ''H'' and that he accepted it "as part of the contract." D.D. Jaishi Ram Co. Vs. Dominion of India, . 83 it was held that the endorsement of the letter ''B'' against column "Bisk Note Form" did not prove the execution of a special agreement as contemplated by Sub-section (2) of Section 72 of the Indian Railways Act. In Union of India (UOI) Vs. Ganesh Lal, Kapur and Soni, JJ. took the view that if it was shown that the railway receipt referred to risk notes the goods must be taken to have been despatched under those risk notes unless the contrary was proved. In Union of India v. Ganeshlal Mookerjee J. was of the opinion that when the railway relied on the risk note it was for them to produce it.

In my opinion the true view to take is that the endorsement on the railway receipt itself tending to show the execution of a risk note would only raise a presumption in favour of the railway company, but the Court must arrive at its finding on the entire evidence adduced, and normally the railway company which should have the custody of the risk note must give satisfactory explanation of its absence. In the present case the absence of the risk note makes little difference because there is a clear endorsement on the railway receipt that the goods were loaded in an open truck at the request of the consignor. Risk note ''C'' merely exempts the railway company from liability for carriage of the goods in open wagon. Such a risk note would not exempt the railway from liability in respect of damage caused by misconduct unconnected with carriage in an open wagon.

On the evidence adduced I come to the conclusion that risk note ''C had been executed. Not only was there an endorsement on the railway receipt itself but there was a corresponding endorsement on the forwarding note. The railway company all along maintained in the correspondence that such a risk note had been executed and the railway receipt itself contains in clear terms a clause to the effect that the goods had been loaded in open trucks at the request of the sender. It is true that the railway company has not been able to produce the original risk note but one must not lose sight of the fact that the Defendant in this case cannot be charged with suppression of the risk note. If the risk note is in existence it is lying somewhere in Pakistan. The absence of the risk note makes no difference because the liability from which the Defendant could have excused itself under risk note ''C, is already covered by a clause in the contract and it is not open to the Plaintiff to contend that the goods were not sent in open trucks at the request of the sender.

In view of the above the answers to the issues raised are as follows:

The Plaintiff is not the proper person to bring this suit. 2. No evidence has been adduced in this case and it is not possible to come to any conclusion on this.

3(a) "Was the consignment booked subject to the terms and conditions in the Risk Note ''C''?"-The answer is in the affirmative.

3(b) "If so, can the Defendant be liable for any damages "that might have arisen from the consignment being "carried in open wagon?"-On the evidence adduced I cannot hold that the railway company must be exempted from liability because of the execution of the risk note ''C. It is true that the goods were loaded in open trucks and that jute goods which are easily combustible would be lost through fire caused by sparks from engine. But there is no evidence that the fire was caused as a result of such sparks and therefore I cannot hold that the Defendant must be exempted from liability merely because risk note ''C was executed.

Issues 4 and 6 were not pressed.

As regards issue 5 if I had held in favour of the Plaintiff I would have awarded him damages to the extent of Rs. 13,026-9.

Issue No. 7. "Was a proper notice u/s 80, CPC served on the Defendant?"-Mr. Mukherjee took the point that the cause of action as mentioned in the notice u/s 80 was that of an endorsee. He also took the point that the notice was addressed not to the General Manager but to the Dominion of India through the General Manager. I think that the latter point has no substance because it was served on the General Manager. As regards the former point it is certainly not without substance. In the result the suit must be dismissed with costs.