Syam Sundar Jugal Kishore and Company vs Union of India (UOI)

P.N. Mookerjee, J.—This Rule raises a question of interpretation of Section 80 and Section 74E of the Indian Railways Act, On this question the courts below have differed and, ultimately, the Plaintiff''s suit has been dismissed. The unsuccessful Plaintiff has obtained the present Rule.

The Plaintiff company as the endorsee of the relevant railway receipt for valuable consideration claimed from the East Indian Railway seven bales of, powerloom cloth and obtained delivery of five bales but failed to obtain delivery of the remaining two. The bales had been consigned from Bombay by the consignor Messrs. Vithalji and Co. Ltd., to self as consignee but subsequently the Railway receipt was duly endorsed in favour of the Plaintiff company Messrs. Syam Sundar Jugal Kishore and Co. and ownership, of the goods was transferred on payment and receipt of price. The usual short certificate was issued by the Railway authorities and, hereafter, having failed to get any redress from the Railway administration the Plaintiff, served, the statutory notice u/s 77 of the Indian Railways. Act. and Section 80 of the CPC and, eventually, brought the present suit for recovery of the loss which was assessed in the plaint at Rs. 2,000 (Rupees two thousand).

The consignment in the case was booked with the Great Indian Peninsular Railway, Bombay, and it had to pass through the Bengal Nagpur Railway before reaching the East Indian Railway administration. The suit, however, was brought only against the Union of India representing the East Indian Railway and the statutory notices u/s 77 of the Railways Act and Section 80, CPC also appear to have been served only on this Railway administration.

The learned trial judge found that the loss had occurred on the Bengal Nagpur Railway but, as he was of the opinion that the liability was really the liability of the Union of India which was the owner of all the above Railways, he decreed the suit although as I have already said, the Union had been made the party Defendant only as representing the East Indian Railway and the requisite statutory notices also had been served only on this Railway administration, he being of the view that the different Railway administration owned by the Union of India, were not separate legal entities and, accordingly, the impleading of the Union of India even as representing one of the Railway and the service of the statutory notices on that one alone were enough to fasten the liability upon it for the claim and for a decree even though this particular Railway was neither the contracting Railway nor the Railway on which the loss had occurred. In particular, the learned judge relied on the new Section 74E of the Indian Railways Act. With this view the Full Bench of the Court of Small Causes, Calcutta, which heard the Defendant''s application u/s 38 of the Presidency Small Cause Courts Act against the learned trial Judge''s decree did not agree and, as in their view, u/s 80 of the Indian Railways Act either the contracting Railway or the Railway on which the loss had occurred, and no other Railway administration, would be liable and as neither of these two Railways was really a party to the suit, the Plaintiff''s suit was dismissed by the learned Judges of the Full Bench. The Full Bench held inter alia that Section 74E of the Indian Railways Act did not control Section 80 and that the different Railway administrations, though owned by the same Union of India, were in law separate legal entities. They accordingly, dismissed the Plaintiff''s suit. Hence, this Rule at the instance of the Plaintiff company.

In my opinion, this Rule ought to fail. Section 74E to which reference has been made above and which was relied on by the learned trial Judge and was also, to some extent, discussed by the Full Bench, has really nothing to do with this matter. The case is governed by Section 80 of the Indian Railways Act pure and simple. Section 74E is really for the benefit of the Railway administration. It extends to each of the Railway administration concerned the benefits of the provisions of Sections 73, 74A, 74B, 74C, 74D, and 75 which are, generally speaking, designed to limit the liability of the Railway administration. It has nothing to do with the imposition of any liability on the Railways and it does not make a Railway administration liable where it is not so otherwise. It is also strictly speaking, not a charging or liability section at all. So far as the contracting Railway is concerned, Section 72 is the charging or the liability section and, so far as any other Railway, concerned in the matter, the liability, if any, is to be found in Section 80. This latter section no doubt increases the burden or the liability of the contracting Railway by making it liable for the loss, destruction or deterioration wherever that is, on whichever of the Railways concerned,-the same may have occurred and, this notwithstanding any contract to the contrary, but, as to any of the other Railways concerned it, at the most, makes it liable only if the loss, etc., had occurred on it. Section 74E, therefore, would be altogether irrelevant for our present purpose, and Section 80 also cannot make the East Indian Railway liable as it is neither the contracting Railway nor the Railway on which the loss has occurred, the former being the Great Indian Peninsular Railway and the latter, as concurrently found by the two courts below, the Bengal Nagpur Railway and, as the Union of India, representing the East Indian Railway alone was made the Defendant, the present suit must fail. Whether, if the Union of India not with any limited representation, e.g., as representing the East Indian Railway, as here, had been made the Defendant, the position would have been different, does not arise for consideration but I may just add that, on no conceivable principle -and there is nothing in the Indian Railways Act or any other law to the contrary-can the Union of India, representing the East Indian Railway may be made answerable for the liabilities, if any, of the Bengal Nagpur Railway or the Great Indian Peninsular Railway. The Railways Act clearly makes a distinction between the different Railway administrations and treats them as separate or different legal entities, although the Union of India may be the owner of all of them, except for certain purposes, e.g., Section 74E, as interpreted above, which section, as already stated, is not relevant here. My view is well supported by the decision of Roxburgh, J. in Civil Rule No. 767 of 1949 which, though prior to the introduction of the new group of Sections 74A to 74E, is fully relevant on Section 80 as the new sections or rather the nearest amongst them, viz., Section 74E, does not apply, as seen above. I may also incidently refer to the decision of Mack, J. of the Madras High Court in Kishanlal Roopchand and Co. v. Indian Dominion and Anr. AIR (1955) Mad. 151, and to the decision of Chunder, J. in Civil Revision Case No. 3070 of 1953, which is correct in its conclusion though if I may say with respect, not in its interpretation of Section 74E.

This Rule, accordingly, must fail and it is discharged.

The parties, however, will bear their own costs throughout.

Before concluding I deem it necessary to add that, although I have referred above to the service of the statutory notices upon the East Indian Railway alone, such reference was made merely by way of statement of fact and it should not be misunderstood or given any greater significance as, obviously enough, if the East Indian Railway be in law liable for the Plaintiff''s claim or for any part thereof, service of (sic)tory notices upon it alone would be quite sufficient for (sic) of a decree in this suit. As, however, the said Ra(sic) liability in law for any part of the Plaintiff''s cl(sic)of the statutory notices upon it would be of no material consequence and of no avail to the Plaintiff.

As already stated the Rule fails and it is discharged but the parties will bear their own costs throughout.