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Judgment
P.C. Pandit, J.—This is a Defendant''s appeal against the decree passed by the Senior Subordinate Judge, Ludhiana, reversing that of the trial Court.
The facts briefly are these. The Plaintiff firm carried on hosiery business at Ludhiana. According to their allegations, they despatched three sacks containing hosiery goods (banyans) of the value of Rs. 788.53 nP. to Delhi through the Defendant,, which is a Transport Company, on ,21-4-1960. The consignee was the sender itself. The original bilti was endorsed in favour of the Allahabad Bank Limited, Delhi, and a hundi for Rs. 758.53 nP. was also, sent through the same Bank with a direction that after realising this amount, the biliti be delivered to Messrs. Mathura Stores, Darya Ganj, Delhi, in order to enable them, to collect the goods from the Defendant-Company-Messrs. Mathura Stores did not make any payment to the Bank and consequently, did not take delivery of the goods, which remained with the Head Office of the Defendant-Company at Delhi for about 1 1/2 months. Thereafter, the Plaintiff-firm asked them to re-book the goods, to Ludhiana. On 15-6-1960 a representative of the Plaintiff-firm went to the Ludhiana Branch Office of the Defendant-company and found that the three sacks were lying open and instead of the hosiery goods, there were waste papers and card-boards etc., stuffed therein. This fact was reported to the Plaintiff-firm, who then demanded an open delivery from the Defendant-Company, which they refused. Thereupon, a claim was sent to Claims Officer of the Defendant-Company. Later on a registered notice was also sent. Since the Defendant-Company refused to do anything, the Plaintiff-firm instituted the present suit for the recovery of Rs. 788.53 nP. On account of the price of the goods by way of damages.
The suit was resisted by the Defendant-Company on a number of pleas, which gave rise to the following issues:
Whether the Plaintiff-firm is registered under the Indian Parternship Act, 1932, and Labhu Ram is entered as one of its partners?
What is the price of the goods booked by the Plaintiff with the Defendant?
Whether the Defendant is not liable for the damages for the price of the goods on account of not accepting the delivery, or goods at Delhi within 3 days of its arrival'' there?
To what amount, if any, is the Plaintiff entitled?
Whether the goods in question were not booked as represented in Exhibit P.I?
Relief.
The trial Judge held that the Plaintiff-firm was registered under the Indian Partnership Act, 1932, and Labhu Ram was entered as one of its partners; that the price of the goods booked by the Plaintiff as alleged in the plaint, viz., Rs. 758.53 nP., was correct; that the Defendant'' was not liable for the damages or for the price of the goods because the consignee failed to take the delivery of goods at Delhi within 3 days of their arrival there; and that the goods were not booked as represented in the goods receipt. On these findings, the Plaintiff''s suit was dismissed.
When the matter went in appeal before the learned Senior Subordinate Judge, he reversed the findings of the trial Court on issues 3 and 5. Since the value of the goods, as given in the hundi was Rs. 758.53 nP., that learned Judge held that the Plaintiff was entitled to this amount only, and not to Rs. 30/- as incidental charges, which were also claimed by the Plaintiff-firm. The appeal was, consequently, accepted and the Plaintiff''s suit was decreed for Rs. 758.53 nP. Against this decree, the present second appeal has been filed by the Defendant-Company.
Learned Counsel for the Appellant has challenged the decision of the lower appellate Court on issues 3 and 5.
As regards issue No. 5, he submitted that it had been proved on the record that no hosiery goods were booked by the Plaintiff and there was no consignee by the name of "Messrs. Mathura Stores, Darya Ganj, New Delhi." The Plaintiff should have produced the original order placed by this firm with the Plaintiff. No document of any kind signed by Messrs. Mathura Stores had been placed on the record, which clearly showed that this was a fictitious firm. The original receipt issued by the Defendant-Company at the time of the booking of the goods also did not mention the name of the consignee. Two or three letters were sent by the Plaintiff to the firm, Mathura Stores, but the same were returned to the Plaintiff undelivered. In one of these letters, Exhibit P. 9, the Plaintiff had admitted the receipt of a letter from the firm, Messrs. Mathura Stores, but the same also had not been produced. All these things showed that from the very start, the intention of the Plaintiff was to cheat the Defendant-Company.
After hearing the counsel for-the parties, I find that there is no force in this contention. The goods receipt, Exhibit P.I, was issued by the Defendant-Company. It is clearly mentioned therein that three sacks of hosiery goods, weighing 2 maunds, were being booked. That shows that the booking clerk must have satisfied himself about the contents of these sacks. In view of this, a very heavy onus lay on the Defendant-Company to show that the goods originally booked were not hosiery goods, but, something else. It is true that the Plaintiff has not placed the original order received from Messrs. Mathura Stores on the record and it is further true that no document signed by this firm has been produced on the file, but that does not absolve the Defendant-Company from its liability as a common carrier. It may be that, in fact, there was no such firm by the name of Messrs. Mathura Stores and somebody in Delhi was trying to cheat the Plaintiff-firm. But this circumstance cannot, in any way, show that the Defendant-Company was not to hand over the goods that-were booked through them, to the consigner.
The suggestion thrown by the Defendant-Company that either from the very start hosiery goods were not booked or that they were later pilfered exchangeged by the Plaintiff''s own men is based on pure conjectures. It is not in evidence that at the time of the booking of the goods any doubt had arisen about the contents of the sacks. Besides, the weight of the waste papers could not be the same as that of the hosiery goods. If the sacks had contained waste papers and cardboards, then their weight would not have been two maunda as mentioned in the goods receipt. Moreover, it was not the case of the Defendant in the written statement that the firm, Messrs. Mathura Stores, was a fictitious firm and everything had been dona by the Plaintiff right from the start to cheat the Defendant-Company, which is now their case. Under all these circumstances, it is difficult to disturb the finding of fact given by the lower appellate Court that the Defendant had failed to discharge the onus placed on them to prove that the goods in question were not booked as represented in Exhibit P.I.
Coming to issue No. 3, the contention of the learned Counsel for the Appellant was that the liability of the Defendant for the damages or for the price of the goods came to an end after three days of the arrival of the goods in Delhi. For this he placed his reliance on condition No. 5, given" at the back of Exhibit P.I. That condition runs-thus:
The delivery of the goods shall be taken by the consignee within three days of its arrival at the destination, failing which the same will be-liable to demurrage at the rate of one anna permaund per day and will be stored at the owner''s risk. If the delivery is not taken within three-months of the destination, the company reserves its right to put the same to public auction. The consignor will be responsible for the arrears due to the company remaining after deducting the sale-proceeds of the goods.
According to the learned Counsel, since admittedly, no delivery was taken either by the consignee or by the consignor within 3 days of the arrival of the goods in Delhi, the liability of the Defendant-Company ceased. According to condition No. 5, after that date, the goods were stored with the-Defendant-Company at the owner''s risk. The argument proceeded that after the said three days, the-Defendant-Company was not responsible for any damage to the goods.
There is no force in this submission as well, because the duty of the common carrier in the present case did not cease after three days of the arrival of the goods in Delhi, because, according to this condition after three days they could claim demurrage at the rate of one anna per manud per day for the storing of the goods. It did not mean that they could neglect those, goods. A common carrier is liable to the owner for loss or damage to any property delivered to such carrier to be carried, whether such loss or damage has arisen from the negligence of the carrier or any of his agents or servants. The term ''at the owner''s risk" used in condition No. 5 only means, that the owner would be liable for any loss or damage to the goods, which are lying with the Company if such loss or damage was not caused by any negligence on the part of the carrier. It is also mentioned in this condition that if the delivery was not taken within three months of the arrival of the goods, the Company was entitled to put the goods to public auction. In that case, the consignor would be responsible for the arrears due to the Company after deducting the sale proceeds of such goods. This also shows that the Company has to take care of the goods for three months. The onus of issue No. 3 placed on the Defendant-Company has mot been discharged by it and therefore, it is not possible in this case to reverse the finding of the power appellate Court on this issue as well.
No other point was urged before me.
In view of what I have said above, I will dismiss this appeal. In the peculiar circumstances of this case, however, I will leave the parties to bear their own costs throughout.