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Judgment
Deb, J.—On November 29, 1951, this suit was instituted after serving notice u/s 77 of the Railways Act and notice u/s 80 of the Code of Civil Procedure'' with leave "under Clause 12 of the Letters Patent against the Defendant representing the East Indian Railway and East Punjab Railway Administration for recovery of Rs. 3,871 as loss and damages suffered by the Plaintiff in respect of 182 bags of gram out of 200 bags consigned under Invoice No. 38, Railway Receipt No. 183986, dated September 19, 1950, from Patiala to Howrah. In the plaint it is, inter alia, alleged that the Plaintiff is the indorsee and consignee of the said Railway receipt and purchased the goods covered thereunder, and on their arrival at Howrah it was found that the contents of 182 bags were damaged and deteriorated and were mixed up with barley, husk of gram and other dirty articles by rats and stray cattle and the seals of the bags were also removed although the goods were sent in good condition, properly packed and sealed. The Plaintiff alleged that the said goods were unfit for human consumption or for any useful purpose and the Railway authorities surveyed the said damages and issued an assessment report dated December 4, 1950, in which they falsely stated that the said consignment was sent in the same condition in which they were found at Howrah. The Plaintiff further alleged that due to gross negligence of the Railway Administration and its servants and agents those goods were damaged and he assessed the said damages at Rs. 3,871 alleging the same to be the fair market value of the said goods in October and November 1950.
In the written statement execution of the Railway receipt was admitted but endorsement in favour of the Plaintiff was denied. It was alleged that one Kastur Chand was the consignee of the said goods and the said 200 bags said to contain gram were carried from Patiala to Howrah in the same condition in which they were delivered at Patiala and those identical goods were consigned under the Railway receipt. The Defendant denied all other allegations made in the plaint including the charges of negligence and misconduct and disputed the validity of the notice u/s 80 of the Code.
Following issues were settled by me:
(1) Was the business carried on under the name and style of Sagarmal Matadin, a sole proprietary business of the Plaintiff ?
(2) Was the Railway receipt No. 183986 dated September 19, 1950, endorsed or assigned to the Plaintiff for valuable consideration as alleged in para. 2 of the plaint ?
(3) What goods were booked under the Railway receipt No. 183986 dated September 19, 1950 ?
(4) (a) Did the goods arrive in the conditions as alleged in para. 3 of the plaint ? -w (b) If so, did the Plaintiff suffer any loss or damage due to any negligence or misconduct on the part of the Railway as alleged in para. 5 of the plaint ?
(5) What damages, if any, the Plaintiff is entitled to ?
(6) Is the notice u/s 80 of the CPC valid and sufficient.
(7) To what relief, if any, is the Plaintiff entitled ?
The goods mentioned in the Railway receipt were consigned by one Kostur Chand of Patiala to ''self at Howrah. He used to work as a commission agent in grains and used to sell them through M/s. Ramji Das Girdhari Lal of Bhatinda. Kastur Chand, who was examined on commission, said that through M/s. Ramji Das Girdhari Lal he sold 200 bags of gram to M/s. Dilla Ram Balmukund and a representative of that firm went with him from Bhatinda to Patiala for inspecting the goods- This representative of M/s. Dilla Ram Balmukund was one Misri Lai and he was examined on commission. Misri Lai said that he went with Kastur Chand to Patiala on September 18, 1950, and Kastur Chand took him to the Railway godown where 200 bags of gram were separately stacked. Both of them said that Misri Lai with the help of a parkhi (bamboo) drew samples from the bags which were of superior quality and Misri Lai approved them. Thereupon, Kastur Chand directed the Railway goods clerk, who was present at the time of such inspection to dispatch those 200 bags to Howrah. The Railway goods clerk asked some money for making payments to the porters who would load those bags into the wagons and Kastur Chand paid some money to him. Thereafter, Kastur Chand and Misri Lai came back to the town and after sometime Misri Lal went back to Bhatinda in the afternoon and informed Balmukund, a partner of M/s. Dilla Ram Balmukund, that he had approved the goods which were of superior quality. Balmukund, who was examined on commission, said that the aforesaid transaction was entered into by them by and as commission agent of the Plaintiff.
Kastur Chand said that after 4 or 5 days he came back from Patiala with the Railway receipt and on September 27, 1950, he handed over the said Railway receipt to M/s. Ramji Lai Girdhari Lal. and received Rs. 6,800 from them being the price of the said goods. Gopi Ram, a minim of M/s. Ramji Das Girdhari Lal and examined On commission, said that he gave that Railway receipt to M/s. Dilla Ram Balmukund and received Rs. 6,800 being the price of those goods from them. Balmukund said that on September 27 he paid Rs. 6,800 and received the Railway receipt from M/s. Ramji Das Girdhari Lal and on the same day he sent the Railway receipt and on invoice to the Plaintiff. Balmukund further said that he was later on informed by the Plaintiff on telephone that the goods were of bad quality and was requested by the Plaintiff to sent the representative who inspected the said goods. Accordingly, Balmukund sent Misri Lal to Calcutta.
I am unable to accept the evidence of Kastur Chand and Misri Lal to the effect that the said Railway goods clerk was present at the time of inspection of the said 200 bags or any sample was drawn in his presence or he was paid any money for making payment to the porters or he was instructed by Kastur Chand to dispatch those 200 bags to Howrah for the reasons given hereunder.
In his examination-in-chief Kastur Chand said that he used to sell ''ready Railway receipts'' to parties, but in cross-examination he said that he never sold any Railway receipt to anyone. He further said that he did not know from whom he purchased those 200 bags or on which day those� bags were purchased by him or what price he paid for those goods. He further said that he did not see the contents of those 200 bags and immediately those bags were purchased he sent them to the Railway godown at Patiala and he did not accompany the vehicle which carried those bags. He further said that he was not present when the goods were loaded into the wagons for being dispatched to Howrah and the broker employed by him might have seen the loading as he had instructed the broker to issue necessary ''slip'' after seeing the loading of the goods. He further said that the said transaction was made through the broker on September 18, 1950/ and Gopi Ram said that this broker was one Badri Prosad, but this Badri Prosad was not called to give evidence in this suit. Kastur Chand and Misri Lai could not say what was the name of this Railway goods clerk and merely described him as a Hindu gentleman. Misri Lai further said that he took samples weighing about 2 or 3 seers and kept them in a bag and he could not bring those samples to Calcutta for comparing with the goods as the cook of the firm consumed them. Immediately on arrival of the goods at Howrah the Plaintiff informed Balmukund about the condition of the contents of those bags and Balmukund sent Misri Lai to Calcutta solely for the purpose of inspecting those goods. If Misri Lai had drawn sample and in my opinion, he should have brought them to Calcutta to compare them with the goods at Calcutta, and as he did not draw any such sample he invented the story of eating up of those samples by the cook. I also do not believe the story of payment of any money to that Hindu gentleman for making payments to the porters for it is, highly improbable for Kastur Chand to do so specially because he entrusted the broker to see the loading of the goods into the wagons and thereafter to issue necessary ''slip''. Moreover, it is unthinkable that any money could have been paid to the said Railway goods clerk by Kastur Chand on September 18 inasmuch as the Railway receipt was issued on September 19, and before the goods could be loaded they had to be weighed for determining the freight payable on them. The person who was present at the time the Railway receipt was issued and in whose presence the goods were weighed for determining the freight payable on them was not even called as witness! In the Railway receipt the total weight of the bags was mentioned and on the basis of such weight freight was paid. The person who paid such Railway freight at the time the Railway receipt was issued and received the Railway receipt, was not even called to give evidence although Kastur Chand and Misri Lai did not say that any freight was paid to that Hindu gentleman.
As this Hindu gentleman was not called by the Defendant to give evidence, learned Advocate Mrs. Banerjee contended that whatever Kastur Chand and Misri Lai had said which took place in the presence of this gentleman should be accepted. She further contended that the goods which were inspected and approved by Misri Lai were the goods which were entrusted to the said Railway goods clerk for dispatch. In my opinion, as these two witnesses could not give the name of this Railway goods clerk and merely described him as a Hindu gentleman it is not possible for the Defendant to call all the Hindu gentlemen had acted as goods clerks at Patiala to contradict the evidence of these two witnesses and I am Unable to accept this contention of Mrs. Banerjee.
Assuming, however, that it was possible for the Defendant to call such Hindu gentleman and as he was not called drawing adverse presumptions against the Defendant to the effect that the said goods were inspected in his presence and he was paid some money for making payments to the porters for the purpose of loading them into the wagons, as contended by Mrs. Banerjee, still the Plaintiff cannot succeed on this point as, in my opinion, this gentleman did not act in his capacity of a Railway employee when he agreed to do those works for Kastur Chand. Mrs. Banerjee did not draw my attention to any Rule nor I could find any Rule which authorizes a Railway goods clerk to receive any money from the consignor for making payments to the porters. Moreover, evidence on record do not show, that he had any authority from the Defendant to receive any money for making such payments to the porters. Instead of paying directly to the porters Kastur Chand had paid them through this gentleman and he should be deemed to be the agent of Kastur Chand for the purpose of doing those works and in receiving some money for making payment to the porters he was not acting in his capacity of a Railway "goods clerk. Moreover, the Railway receipt in suit was issued on September 19, 1950, and on that day the contract of carriage came into existence. All acts of the Hindu gentleman relating to those 200 bags prior to September 19 must be deemed to have been done by him in his capacity as an agent of Kastur Chand and not as an employee of the Defendant.
The responsibility of the Railway Administration started with the issuing of the Railway receipt which acknowledged the receipt of the goods, but no one had come forward on behalf of the Plaintiff to prove that those 200 bags which were inspected by Misri Lai were in fact booked for carriage or were actually delivered to the Defendant for such carriage. None of the witnesses had said that they saw the actual loading of the goods. Apart from those 200 bags there were about 1,000 bags of goods lying in that godown and nobody had seen the contents of those 1,000 bags. Misri Lai admitted that he was not present when the Plaintiff took delivery of those 200 bags and he did not compare those goods with the samples. He further admitted that 182 bags of goods were changed and they were not the goods which he inspected. None of the witnesses had said that those 200 bags were sealed, and Misri Lai had further admitted that those 200 bags did not bear any mark of Kastur Chand nor they had any mark of any other party at the time he inspected them at Patiala. No complain was made by anyone regarding the original sewing of those bags. In the assessment report it is stated�
Out of those 182 bags found 107 bags with original sewing intact (mouth) more or less in repaired condition being disturbed by rats and stray cattle.
Kastur Chand and Misri Lai did not complain about this type of sewing and they did not say that this kind of sewing was not the original sewing of those bags. It has not been proved that 200 bags which were inspected by Misri Lai were in fact booked or dispatched under the Railway receipt in suit and not the 200 bags out of those 1,000 bags. No one has proved the contents of those 200 bags at the time the contract of carriage came into existence. There is no evidence to show that the broker Badri Prasad dispatched those 200 bags which were inspected by Misri Lai, and, moreover, Misri Lai said that the broker was not at all present when he inspected those goods at Patiala. There is no evidence on record to show that the goods which were inspected by Misri Lai were delivered to the Defendant for carriage or those 200 bags were actually booked by Kastur Chand under the Railway receipt in suit. Kastur Chand expressly admitted that none of those 200 bags were opened at the time of inspection, and I have already disbelieved their story about drawing of samples. For all these reasons I hold that the Plaintiff had failed to prove that 200 bags of gram, even if they were inspected by Misri Lai at Patiala, were in fact booked or dispatched by Kastur Chand under the Railway receipt in suit.
The Railway receipt does not contain any endorsement of Kastur Chand. None of the witnesses has said anything with regard to any of the endorsements or the writings in ink on the reverse of the Railway receipt excepting that Asman Singh had proved the endorsement made by Imperial Bank of India in favour of the Plaintiff. Asman Singh could not prove the other endorsements nor he could prove the writings in ink appearing on the reverse of the Rail-way receipt. In the notice u/s 80 of the CPC it is, inter alia, stated that Kastur Chand consigned those goods in favour of himself and the said Railway receipt was assigned by Kastur Chand to the Imperial Bank for valuable consideration. No one was called from the Imperial Bank to prove that they had paid any consideration to Kastur Chand for such assignment. The Railway receipt was not all endorsed in favour of Imperial Bank and in any event no one has proved any of the blank endorsements and /or the writings in ink appearing on the reverse of the Railway receipt. As Kastur Chand did not endorse the said Railway receipt at all in favour of any one or in blank, Mrs. Banerjee submitted that one of the writings in ink appearing on the reverse of the Railway receipt was the writing of M/s. Ramji Das Girdhari Lai, and by those writings M/''s. Ramji Das Girdhari Lai had endorsed the said Railway receipt in favour of M/s. Dilla Ram Balmukund, and these endorsements made by M/s. Ramji Das Girdhari Lai should be treated as the endorsements made by Kastur Chand as M/s. Ramji Das Girdhari Lai was the commission agent of Kastur Chand. I am unable to accept these contentions of Mrs. Banerjee as no one has proved the alleged writings of M/s. Ramji Das Girdhari Lai. Similarly, nobody has proved that M/s. Ramji Das Girdhari Lai had any authority to endorse the said Railway receipt on behalf of Kastur Chand. It is also to be noted that no one has made any endorsement in favour of the Imperial Bank. Asman Singh admitted that M/s. Dilla Ram Balmukund did not endorse the Railway receipt in favour of any one. Under these circumstances, the Imperial Bank did not become the assignee of those goods for valuable consideration, and by mere delivery of the Railway receipt to the Imperial Bank, in my opinion, the property in goods did not pass to the Imperial Bank and the Imperial Bank on its turn could not pass on any title, as it has none, to the Plaintiff by endorsing the Railway receipt and giving it to the Plaintiff. It is also to be noted that who was the consignor and who was the consignee of the goods under the Railway receipt and who endorsed or assigned the said Railway receipt in favour of the Plaintiff were not even stated in the plaint nor there is any pleading that the Plaintiff had paid any consideration for such assignment or endorsement in his favour.
Faced with the above difficulties Mrs. Banerjee contended that the Plaintiff became the owner of the goods on September 18, 1950, as the goods were kept separately and were inspected and approved by Misri Lai and Kastur Chand directed the goods clerk to dispatch them to Howrah. Mrs. Banerjee further contended that the suit is maintainable by the Plaintiff inasmuch as he is the owner of the goods although Kastur Chand had not endorsed the said Railway receipt at all. The Plaintiff was the owner of the goods, at the time the Railway receipt was issued is not the cause of action stated in the notice u/s 80 of the Code nor is the cause of action pleaded in the plaint and, in my opinion, Mrs. Banerjee is precluded from making these contentions. It is well-settled that the nature of the cause of action must be stated in the notice u/s 80 and such notice should be liberally construed. It is also well-settled that the Court cannot try a cause of action which is not stated in the notice u/s 80 and the Court can only try the cause of action which is stated in the notice. It is also well-settled that the Court cannot try a cause of action which is not pleaded in the plaint and the evidence must be confined to the cause of action pleaded in the plaint.
Although, in my opinion, Mrs. Banerjee is precluded from making the above contentions still I will discuss them as they were agitated before me. Relying on a Division Bench judgment of the Hyderabad High Court in Dookan K. M. M. Narsayya and Sons v. Shuhodara (Delhi) Saharanpur Light Railway AIR 1955 Hyd. 193 she contended that the Plaintiff as owner of the goods can maintain the suit even in the absence of endorsement of the Railway receipt in his favour which I am unable to accept. The Railway receipt in suit expressly provides that the consignee must come to take delivery of the goods and if he does not personally come for taking delivery he must endorse the Railway receipt in favour of some person to enable that person to take delivery of the goods, and if the Railway receipt is not so endorsed the Railway Administration will not give delivery but at its option may give such delivery upon execution of an indemnity bond by that person. If the consignor is the agent of the consignee and the consignee is the owner of the goods under the Railway receipt, a suit is maintainable by the consignee for damages. Similarly, the indorse of the Railway receipt can maintain a suit on the basis of such endorsements provided that he is the indorse for value. The goods covered, by the Railway receipt can also be sold without endorsing the Railway receipt in favour of the purchaser but in that case the purchasers unless he is named either as consignor or as consignee in the Railway receipt cannot maintain a suit against the Railway Administration on the Railway receipt inasmuch as he cannot enforce the contract of carriage contained in the Railway receipt to which he is-not a party. It is well-settled that a contract of carriage contained in the Railway receipt ''is not annexed to the goods and does not run with it: Bachawat J. in Commissioners for the Port of Calcutta v. General Trading Corporation AIR 1964 Qal. 290 (320). The learned Judges of the Hyderabad High Court did not get any opportunity to consider this aspect of the case at all and without giving any cogent reasons dissented from a judgment of the Patna High Court in Sri Ram Krishna Mills, Ltd. Vs. Governor-General in Council, where it was expressly held that such a suit cannot lie, and I am unable to accept as good law the views expressed by the learned Judges of the Hyderabad High Court so far as they held that a purchaser of the goods covered under the Railway receipt although not named as consignor or consignee can still maintain a suit against the Railway Administration on the Railway receipt without an endorsement of the Railway receipt in his favour. Section 27 of the Sale of Goods Act, relied on by the learned Judges of the Hyderabad High Court, in my opinion, cannot be taken into consideration to determine the rights and liabilities of the Railway Administration under the carriage contained in the Railway receipt.
13.1 Next question is whether the Plaintiff has paid any consideration for the endorsements made by the Imperial Bank in his favour, Asman Singh said that M/s. Dilla Ram Balmukund were in need of money and sent a hundi dated September 1, 1950, for Rs. 7,600 and caused it to be presented to the Plaintiff through the Imperial Bank. Asman Singh proved this hundi and said that this hundi was honored by the Plaintiff by making payments to the Imperial Bank. Asman Singh also proved the said payments which is corroborated by entries in the books of accounts proved by him. Moreover, the Imperial Bank had also acknowledged the receipt of such payment on the reverse of this hundi. Asman Singh further said that this sum of Rs. 7,600 was paid to M/s. Dilla Ram Balmukund as advance payment of price in respect of the goods in suit. It is to be noted that these payments were made by the Plaintiff on September 9, 1950, to the Imperial Bank. The witnesses examined on commission said that the transaction in suit was entered into on September 18, 1950, at Bhatinda and the Railway receipt was made over to M/s. Dilla Ram Balmukund on September 27, 1950. Balmukund said that on September 27 he sent the Railway receipt and an invoice to the Plaintiff and debited the Plaintiff with the sum of Rs. 6,800. Balmukund did not say anything about advance payment of price towards the goods nor did he say that this sum of Rs. 7,600 was adjusted with the price of the goods in suit. It was suggested to Asman Singh that this payment to the Imperial Bank was not in respect of the goods in suit which was of course denied by him. It is to be noted that the invoice sent by M/s. Dilla Ram Balmukund to the Plaintiff was not disclosed nor proved. It is also to be noted that the correspondence between the Plaintiff and M/s. Dilla Ram Balmukund were neither disclosed nor proved. Balmukund further said that M/s. Dilla Ram Balmukund was the commission agent of the Plaintiff and as such commission agent they purchased those goods on behalf of the Plaintiff but on the other hand Asman Singh (sic).
In the notice u/s 80 of the Code the Plaintiff, inter alia, stated as follows:
Causes of Actions
On or about the 19th day of September 1950 one Mr. Kastur Chand (hereinafter referred to as the said consignor) consigned two hundred bags of gram weighing 500 mds. from Patiala to Howrah in favour of himself and the Railway authorities at Patiala received the said goods for reward and issued a Railway receipt bearing No. 183986 dated the 19th September 1950 in favour of the said consignor.
The aforesaid Railway receipt was for Valuable consideration assigned by the said Mr. Kastur Chand to the Imperial Bank of India, who in its part assigned the same for valuable consideration to the Plaintiff above-named and the Plaintiff is thus entitled to the rights title and interest in the aforesaid consignment.
In the plaint on the other hand it is pleaded as follows:
200 bags of Punjab gram weighing about 500 mds. were consigned from Patiala, a Railway station on the East Punjab Railway, to be carried at the risk of the Railway Administration to Howrah, a station on the East Indian Railway, and the employee and/or clerk "of the said Railway station at Patiala" accepted the said goods for such carriage on payment of freight aforesaid and granted invoice being invoice No. 38 and a Railway receipt being receipt No. 183986 dated 19th September 1950.
The Plaintiff is the indorse and/or assignee of the said Railway receipt and invoice and purchased the goods covered thereunder. The said Railway receipt was endorsed and/or assigned and delivered to the Plaintiff in Calcutta within the aforesaid jurisdiction.
From the above quotations it is clear that the cause of action stated in the notice u/s 80 is not pleaded in the plaint at all. The Plaintiff and his witnesses have not also proved the cause of action stated in the notice u/s 80 nor they have proved the cause of action pleaded in the� plaint. In my opinion, the notice u/s 80 is defective and is bad in law.
After considering all the submissions of Mrs. Banerjee my answers to the issues are as follows:
Re: Issue No. (1): In view of the evidence on record, the learned Counsel Mr. Dhar appearing for the Plaintiff rightly conceded that the Plaintiff was the sole proprietor of M/s Sagarmull Matadin and, accordingly, this issue is answered in the affirmative.
Re: Issue No. (2): In the negative.
Re: Issue No. (3): The Plaintiff has failed to prove the It is to be noted that he did not produce those books of accounts in which those entries were entered and no attempt was made to prove them by re-examining him. Notification under which the Government of West Bengal fixed such rate was also not produced. Mrs. Banerjee drew my attention to the Gazette of India, Extraordinary, pt. II, Section 3, dated August 17, 1950, which shows that the Central Government had fixed Rs. 16 to be the ''maximum'' price of gram in the State of West Bengal with effect from August 17, 1950, but that does not mean that Rs. 16 was the market price inasmuch as gram could be sold at a lessor price. It is well-settled that in the case of loss or damages to the goods compensation can only be awarded on the basis of market rate prevailing on the day on which the goods ought to be delivered: See Union of India (UOI) Vs. West Punjab Factories Ltd., and such rate must be the market rate of the place where the goods ought to be delivered: See Murlidhar Chiranjilal Vs. Harishchandra Dwarkadas and Another, . Here is no proof of such market rate on the relevant day and I am unable to accept the evidence of Asman Singh on this point in the absence of production of the books of accounts of the Plaintiff. Moreover, no independent witness was called to prove such market rate by the Plaintiff.
Faced with these difficulties Mrs. Banerjee relied on the judgment of S.P. Mitra J. in Gambhirmull Mahabirprasad Vs. The Indian Bank Ltd. and Another, where his Lordship held that if the Plaintiff suffers loss or damages for which the Defendant is liable and if there is no available market and the Court is unable to assess damages due to such difficulties it will not be proper for the Court to award nominal damages only and the Court should award such damages as it can assess even on the basis of insufficient materials placed before it. In my opinion, this principle of law laid down by his Lordship has no application to the facts and circumstances of the case before me as it has not been proved that there was no available market for similar goods in Howrah or in Calcutta. Moreover, Asman Singh expressly admitted that similar goods were purchased and sold by the Plaintiff himself but no attempt was made by the Plaintiff to prove those transactions at all. The Plaintiff did not even make any attempt to prove such market rate at all. In my opinion, in laying down the above principle, his Lordship did not mean that even where the Plaintiff makes no attempt to prove the market rate as enjoined by law he can still ask the Court to award damages on the basis of materials which are not at all relevant for the purpose of assessing such damages. Under these circumstances, I hold that the Plaintiff has failed to prove any damages and no damages can be awarded to the Plaintiff even if he had succeeded on merits.
In the notice u/s 80 of the Code the Plaintiff, inter alia, stated as follows:
Causes of Actions
On or about the 19th day of September 1950 one Mr. Kastur Chand (hereinafter referred to as the said consignor) consigned two hundred bags of gram weighing 500 mds. from Patiala to Howrah in favour of himself and the Railway authorities at Patiala received the said goods for reward and issued a Railway receipt bearing No. 183986 dated the 19th September 1950 in favour bf the said consignor.
The aforesaid Railway receipt was for valuable consideration assigned by the said Mr. Kastur Chand to the Imperial Bank of India, who in its part assigned the same for valuable consideration to the Plaintiff above-named and the Plaintiff is thus entitled to the rights title and interest in the aforesaid consignment.
In the plaint on the other hand it is pleaded as follows:
200 bags of Punjab gram weighing about 500 mds. were consigned from Patiala, a Railway station on the East Punjab Railway, to be carried at the risk of the Railway Administration to Howrah, a station on the East Indian Railway, and the employee and/or clerk" of the said Railway station at Patiala " accepted the said goods for such carriage on payment of freight aforesaid and granted invoice being invoice No. 38 and a Railway receipt being receipt No. 183986 dated 19th September 1950.
The Plaintiff is the indorse and/or assignee of the said Railway receipt and invoice and purchased the goods covered thereunder. The said Railway receipt was endorsed and/or assigned and delivered to the Plaintiff in Calcutta within the aforesaid jurisdiction.
From the above quotations it is clear that the cause of action stated in the notice u/s 80 is not pleaded in the plaint at all. The Plaintiff and his witnesses have not also proved the cause of action stated in the notice, u/s 80 nor they have proved the cause of action pleaded in the plaint. In my opinion, the notice u/s 80 is defective and is bad in law.
After considering all the submissions of Mrs. Banerjee my answers to the issues are as follows:
Re: Issue No. (1): In view of the evidence on record, the learned Counsel Mr. Dhar appearing for the Plaintiff rightly conceded that the Plaintiff was the sole proprietor of M/s Sagarmull Matadin and, accordingly, this issue is answered in the affirmative.
Re: Issue No. (2): In the negative.
Re: Issue No. (3): The Plaintiff has failed to prove the contents of the bags in suit at the time they were delivered to the Defendant for carriage and booked under the Railway receipt in suit.
Re: Issue No. (4)(a): 182 bags of goods arrived in the condition as stated in the assessment report which is an exhibit in this suit.
Re: Issue No. (4)(b): In the negative.
Re: Issue No. (5): Nothing.
Re: Issue No. (6): In the negative.
Re: Issue No. (7): The Plaintiff is not entitled to any relief.
This action fails and the suit is dismissed. Each party will pay and bear his and its own costs. Certified for two counsel.