Tejendra Nath Das vs Union of India (UOI)

Bose, J.—This is a suit for recovery of a sum of Rs. 14,120 being compensation in respect of snort delivery of a certain consignment of goods which was entrusted to the East Bengal Bailway in Pakistan for carriage from Dohazari Station to the Ballygunge Railway Station which was on the then East Indian. Railway owned by the then Dominion of India, and for certain other incidental reliefs.

The case of the Plaintiff as laid in the plaint is that on or about 6th February 1948, one H.P. Majumdar consigned under invoice No. 3 and railway receipt bearing No. 651871, 1,728 pieces of motor parts to be carried from Dohazari to Ballygunge. The goods had been consigned by the said H.P. Majumdar to self but it is alleged that the railway receipt was endorsed for valuable consideration in favour of the Plaintiff in Calcutta within the jurisdiction of this Court. The East Indian Railway delivered 1,444 pieces only to the Plaintiff at the Ballygunge Station but failed and neglected to deliver the balance of 284 pieces and this non-delivery was due to the negligence and/or misconduct of the said railway administration and/or its servants. The Plaintiff, however, is unable to give particulars of such negligence until full disclosures were made by the Defendant as to how the consignment was dealt with throughout. In the circumstances, the Plaintiff claims Rs. 13,711 as the value of the said 284 pieces of goods, the particulars whereof are set out in para. 6 of the plaint and the Plaintiff also claims a further sum of Rs. 409 as the loading and other charges incurred in connection with the said consignment. On the 2nd June, 1948, the Plaintiff preferred a claim in writing u/s 77 of the Railways Act and on or about the 19th November, 1948, notice u/s 80 of the Code is alleged to have been given to the General Manager of the East Indian Railway at the head office in Calcutta.

In the written statement filed by the Defendant it is admitted that the consignment was booked at Dohazari Station for carriage over the Eastern Bengal Railway and the East Indian Railway, to Ballygunge Station, but it is pointed out that the Eastern Bengal Railway was owned by the Dominion of Pakistan and the East Indian Railway was owned by the Dominion of India. It is also admitted that the consignment that was despatched from Dohazari Station arrived in due course of transit at Ballygunge Station on the 17th February, 1948 and on that date the East Indian Railway Administration duly delivered the said consignment under clear receipt in the same manner, condition and quantity as they received the same from the Eastern Bengal Railway; but assuming that there was any shortage, which the Defendant does not however admit, such shortage or loss did not occur on the line of the East Indian Railway owned by the Defendant. It is further alleged that the East Indian Railway took all reasonable and proper care for the security, transit and delivery of the "aid consignment, which was made over to the East Indian Railway by the Eastern Bengal Railway for carriage up to the Ballygunge Station. The charge of negligence and misconduct is denied and it is also denied that the Plaintiff has suffered any damages. It is further submitted that in any event the claim for damages is grossly inflated, exaggerated and too remote. The validity and sufficiency of the alleged notice u/s 80 of the Code is also disputed and it is denied that the alleged notice was served on the appropriate authorities as required by law. The jurisdiction of this Court to entertain the suit is also disputed on the ground that no part of the cause of action arose within the jurisdiction of this Court.

The following issues were raised at the hearing:

(1) Did the consignment consist of 1728 old motor parts as alleged?

(2) Was the alleged endorsement of the railway receipt in favour of the Plaintiff for valuable consideration and/or made within the jurisdiction?

(3) Was the entire consignment delivered to the Plaintiff? If there was any shortage did it occur on the line owned by the Defendant?

(4) Was there any negligence or misconduct on the part of the Defendant''s railway?

(5) If there was short delivery, what was the loss and damage suffered by the Plaintiff in respect thereof ?

(6) Was the alleged notice u/s 80 of the CPC valid and/or sufficient and/or served on the appropriate authorities and/or in manner required by law?

(7) Is this suit maintainable?

(8.) Does the plaint disclose any cause of action against the Defendant ?

(9) Has this Hon''ble Court jurisdiction to entertain and to try this suit?

(10) To what relief, if any, is the Plaintiff entitled ?

The parties have adduced oral and documentary evidence. The Plaintiff has deposed before this Court and he has stated that he knows Hari Prosad Majumdar, the consignor of the goods, as both he and Majumdar belong to Chittagong. He has a place of business at 11D Ram Sevak Mallick Lane and at the time that he negotiated for the purchase of the consignment in suit from Hariprosad Majumdar one Jagadish Bhattacharjee and Ramesh Chandra Chowdhury, employees of Majumdar, were present. It was after continuous negotiation for two days that the transaction, was put through and he purchased the railway receipt from Majumdar at 11D Ram Sevak Mallick Lane and the price that was settled was Rs. 58,000 and odd. Some portion of this amount was his own money and the rest of it was taken as advance from a party to whom some goods were to be supplied by the Plaintiff. He and Hariprosad calculated and settled the price and a list of goods was prepared by Ramesh Chandra Chowdhury. The letter of assignment, dated 13th February, 1948, was written out by Majumdar in his own hand and this was annexed to the list of goods which was prepared by Ramesh Chowdhury. His evidence is that the wagon containing the consignment was unlocked by the guard and some coolies brought out the goods in his presence. The guard was counting the goods and he was also counting the goods when a Goods Clerk arrived at the spot. It was found that there was a shortage of 284 pieces out of 1,728 pieces and the goods clerk noted down the complaint in a book which is maintained in the office and is known as the Siding Register or something like that. The witness was reminded by Mr. Hazra, his counsel, whether he was referring to the unloading register and the answer of the witness was that he was not definite as to what that book was called. The goods clerk had asked the witness to wait and see whether the missing goods had arrived in a different wagon. Thereafter the witness went several times to the Ballygunge Railway Station for finding out whether the balance of the goods had arrived or not but no further goods were delivered to him. The witness has proved the notice, dated the 19th November, 1948, which was given u/s 80 of the Code and the acknowledgment receipt which has been tendered as Ex. C. In the course of cross-examination the witness has admitted that he had taken delivery of other consignments from the railway at Ballygunge Station before and after the consignment in-suit and on each such occasion his signature was obtained before he was given delivery. With regard to the sum of Rs. 58,132-8 which is alleged to have been paid by the witness to Hariprosad Majumdar as the price of the consignment, his evidence is that he procured some portion of this money the day before and some on the same day and he had with him about eight to ten thousand rupees. He has also admitted in course of cross-examination that he did not compare the description of the goods in the list with the description given in the railway receipt at the time the list of goods was prepared by Ramesh Chowdhury. He has also admitted that the description given in the railway receipt and in the list of goods do not tally in all respects. His attention was drawn to the railway receipt where the remark "loaded by sender" appears and he has admitted that he engaged some of his men to unload the consignment in order to expedite the unloading as his lorry was waiting outside. The attention of this witness was also drawn to the Foreign Delivery Book which has been produced by the Defendant in this case and certain entries at pages 7, 8, 11 and 17 of this book were placed before him. It appears from the entry at page 7 that on 5th February, 1948 he took delivery of a particular consignment and in respect of that 104 pieces were short delivered and the witness has in his own handwriting put down the remark against that entry to the effect "104 pieces short". But his evidence is that he made this endorsement about shortage sometime he took delivery. Similarly, the entry at page 8 also shows that on 6th February 1948 the witness took delivery of another consignment and as 12 pieces were found short, he in his own hand wrote out the remark that 12 pieces were short. With regard to the entries at pages 11 and 17 of the book in respect of consignments which were taken delivery of on the 10th of February, 1948 and 23rd of February. -1948, respectively, no remark as to any shortage appears. Similarly, with regard to the entry in the book relating to the goods in suit at page 14 of the book, no remark as to shortage is to be found. The witness has also stated in cross-examination that an unloading register is maintained by the railway employee and it is the railway employee alone who makes notes in it about shortages of any consignment and no one alse is allowed to make any entry in this book.

The next witness who has deposed on behalf of the Plaintiff is Hariprosad Majumdar. His evidence is that he is a dealer in old motor parts and second hand hardware goods. His place of business is at Rahamatgunge in Chittagong. On the 6th of February, 1948, he purchased goods from the Military Salvage Depot of the Government and consigned some of these goods from Dohazari Railway Station to Ballygunge Railway Station. The price that he paid for the entire lot of goods purchased from the Military Salvage Depot was Rs. 1,65,000 and he booked part of the goods at Dohazari out of the goods so purchased. He had the goods loaded by his own men and the railway staff did the tallying. The consignment consisted of 1,728 pieces; the railway staff counted the goods and then the witness wrote out a forwarding note. Thereafter a railway receipt was granted to the witness. This railway receipt has been tendered in evidence and is marked as Ex. A. The witness only had a glance at the railway receipt but he did not check the individual items which are set out in the railway receipt. The next day the witness left for Calcutta and reached Calcutta on the 8th February, 1948. He was accompanied by Ramesh Chowdhury, Jagadish Bhattacharjee, Harekrishna Dutta and one Sona Chakravarty. After reaching Calcutta he put up with a relation of his at Bowbazar and after two days he went to stay with the Plaintiff. He had been to the Ballygunge Station on the 10th February, 1948 and also on the 11th February, 1948 but the goods had not arrived till then. Thereafter he saw the Plaintiff, settled the price with him on the 12th February, 1948 and on the 13th February, 1948 he sold the goods to the Plaintiff. The price settled was Rs. 58,000 and odd and Ramesh Chowdhury made out a list of goods and the witness wrote out the letter of the 13th February, 1948 in his own hand. Thereafter the letter and the list of goods were made over to the Plaintiff. All this happened at 11 Ram Sevak Mallick Lane. The price that was settled was less than the market rate prevailing and the list of goods was prepared at Calcutta with reference to the list which the witness had prepared at Chittagong at the time of booking the consignments The witness received the entire consideration money from the Plaintiff at Burra Bazar and he left for Chittagong that very day-Later on he was informed by the Plaintiff that the latter had got delivery of the consignment but 284 pieces were short delivered. Upon that he advised the Plaintiff to take necessary steps against the railway. In course of his cross-examination the witness has stated that before he came into the box to give evidence, he looked up the books and records which are at present at Chittagong. The books have not been brought by him for production before the Court as he was not asked to do so. He has suggested that the particulars of the list of goods which was made over to the Plaintiff are also to be found in a book which is maintained by him at Chittagong known as goods sales book and he also maintained stock book at Chittagong, but it is to be noted that none of these books have been produced before the Court. The witness cannot say whether the Plaintiff had any business at Chittagong at any time.

In answer to Q. 90 the witness has stated that the description of goods "old and unserviceable" as given in the railway receipt is a correct description but later on in answer to Q. 126, he modifies the statement and says that the description "unserviceable" is not correct. He has also stated in course of his cross-examination that he took this entire sum of Rs. 58,000 and odd along with other sums which he had collected at Calcutta, with him, to Chittagong and he deposited some portion of this money in his banking account at Chittagong, but he cannot recollect what exact amount he deposited in the bank after going back to Chittagong. It is to be pointed out that the pass book has not been produced before the Court to show that in fact he had deposited any money in the bank on that day. He has also stated that the original rough list of goods which was prepared at the time of booking of the consignment at Chittagong is there at Chittagong but he has not brought it. It is also his evidence that when the Plaintiff complained to him about short delivery, some correspondence passed between him and the Plaintiff on the subject but all this correspondence is at Chittagong and the same has not been produced before the Court. The witness was put certain questions as to what a flywheel of a motor car is, but he has stated that he has no precise idea about the thing. The witness has admitted also that Dohazari Railway Station is in the metre gauge line.

The other witness called on behalf of the Plaintiff is one Gopi Krishna Pal. He is an employee of Ananda Mohan Mukherjee. who was a pleader, but now an Advocate, practising at Calcutta. This witness has been working under the Advocate since 1947 and his evidence is that he posted two registered letters on 20th November, 1948 from the General Post Office. The address on the envelope was written out by one Lakshmi Babu and he remembers that a copy of a notice u/s 80 was sent to the General Manager, East Indian Railway. Both the acknowledgment receipts came back but the acknowledgment receipt of the General Manager cannot be traced now. He has stated that the receipts given to him at the time of registration of the two letters despatched are also missing. It is also admitted by him in his evidence that he used to post 5 or 6 letters a day and no despatch register or any record is kept about the letters which are posted by him under the instructions of his master. It is to be pointed out that the Advocate himself has not come forward to give evidence in this case and it is difficult to understand how it is possible for this witness to remember an incident about posting of a particular letter which took place nine years ago.

On behalf of the Defendant one Kshirode Gopal Ghakravarty has deposed. He is a goods clerk at Kalighat Station and in 1948 he was holding the same post at the Ballygunge Stations He has related the procedure for giving delivery of goods consigned from Pakistan. According to him, after consignments arrive at the destination station, the seal of the wagon is first examined to find out whether it is in tact. Then when the party comes with the railway receipt, the amount of railway freight is checked and if any amount is payable in respect of such freight, the same is realised from the party and the signature of the party is obtained in a book known as delivery book. The railway receipt is then copied in the delivery book and after that, permission is given to the party to open the wagon and if it is a full loaded wagon, it is the responsibility of the party to unload the wagon. Upon such unloading if any shortage is discovered, the party complains at the office about such shortage and then a goods clerk is deputed to check the shortage. The party is then asked to enter his complaint in the foreign delivery book.

This witness was shown some entries in the foreign delivery book which covers the period from 26th January, 1948 to 4th February, 1949. With regard to entry at p. 14 of this book, this witness has stated that he had made the entry himself from the railway receipt. There is another entry at p. 7 of this book. This entry was also made by the witness. There is a remark to the effect "104 pieces short" against this entry and the evidence of the witness is that the Plaintiff had himself put his remark down in writing after unloading and counting the goods. With regard to an entry at p. 8 of this book, the witness has stated that the entry was made in his handwriting and the remark "12 pieces short" against the entry was in the handwriting of the Plaintiff. The witness has denied that these remarks about shortage were put some time after the date of taking actual delivery. His evidence is that these remarks were made on the same date that delivery was taken in respect of these consignments. Another entry at p. 11 of this book is also in the handwriting of this witness, but there is no remark about shortage. The entry at p. 17 of this book to which the attention of the witness was drawn is however not in his handwriting. This entry was made by one A. Bose who was also a goods clerk at Ballygunge Station at the material time. There is no remark about shortage as against this entry. The attention of the witness was also drawn to the remark in the railway receipt-"loaded by sender" and his evidence is that such remark means that the whole wagon was loaded by the consignor and in such a case the consignee is to unload the goods at the destination station and in fact, in the present case, the person coining forward to take delivery had unloaded the goods. Although in the course of his examination-in-chief the witness stated that there is no such book as "unloading register" maintained by the railway, in course of his cross-examination he has been constrained to admit that there is a book called "unloading register". He was confronted with his previous deposition that he gave before the Fourth Court before the Munsif at Alipore in suit between the present Plaintiff Tejendra Lal Das v. East Indian Railway where he had stated that there is a register called the unloading register and short delivery or damages of articles are entered in that book. The evidence of the witness before this Court is that no endorsement or remark as to shortage is made in the unloading register and he did not make any such statement before the Alipore Court and what is stated in the certified copy of the deposition is not correct. He has stated further that he did not make the statement, that remark as to shortage is to be found in the unloading register, but he must have been misunderstood about the evidence that he gave before that Court and that is why this mistake has crept into the evidence that was recorded by the presiding officer of the Alipore Court. He has also gone to the length of suggesting that before signing such deposition before the Munsifs Court at Alipore no opportunity is given to read the deposition as recorded. The witness has further stated before this Court that the unloading register relating to the consignment in suit cannot be traced, but his positive evidence is that the remark about shortage is to he found only in the foreign delivery book which has been produced before the Court and not in the unloading register which is maintained by the railway and which is otherwise known as Wagon under Demurrage Book. This witness has also stated that Dohajari Station was on the metre gauge system and in respect of goods consigned to Ballygunge, transhipment takes place at Santahar from where the broad gauge begins. In course of his cross-examination the witness has admitted that an invoice is usually sent from the despatching station but in the present case no such invoice was received. The junction station also did not send any invoice to Ballygunge Station. He was further asked whether there is a book known as sealed register book and he has stated that such a book is maintained by the Watch and Ward Department wherein remarks about the condition of the seal of the wagons are entered. Such register is kept at the Sealdah Station. He was also cross-examined on the point whether a register is maintained at the junction station and his answer has been that although he has heard that such a register is to be kept at a junction station, he does not know as a fact, whether any such register was maintained at the junction station through which this consignment had to pass.

The evidence on record thus makes it clear that a consignment was sent from Dohazari to Ballygunge Station on the 6th February 1948 and it is also established that the consignment did arrive at Ballygunge, but whether the entire quantity of goods covered by the consignment was delivered to the Plaintiff, or 284 pieces were short delivered, is the question about which there is dispute.

The first written complaint about non-delivery of the part of the consignment was in June, 1948, that is, four months after the taking of the delivery on the 17th February, 1948. The list of goods which has been tendered in evidence is alleged to have been prepared with reference to a rough list which was prepared at Chittagong at the time when the consignment was booked from Dohazari. It is also alleged by Hari Prosad Majumdar that the particulars of the goods were also entered in a book known as goods sales book maintained by him at Chittagong, but neither this rough list nor the goods sales book is produced before this Court. In fact, no book or document nor any scrap of paper is produced to corroborate the oral testimony as to the alleged list of goods. The description of the goods as given in the list and the description as given in the railway receipt as I have pointed out already, do not tally in all respects. Some of the discrepancies have been pointed out in the cross-examination of the Plaintiff. It appears from the railway receipt that 1,723 pieces of goods were covered by the consignment, but in the list of goods the number of the items is given as 1,728, but what was the nature of the individual items and what was the worth of the individual items have not been satisfactorily established before the Court. The railway receipt shows that goods were loaded by the sender at the despatching station and the foreign delivery book produced by the Defendant shows that goods were unloaded by the Plaintiff at the Ballygunge Station. It is to be noted that the list of goods alleged to have been prepared at Calcutta and handed over to the Plaintiff on the 13th February, 1948, curiously enough, bears the dated 6th February, 1948. This date is given at the end of the second sheet of the original. It also appears from the railway receipt that old unserviceable motor parts had been sent. There is no satisfactory evidence to show that the goods are worth Rs. 58,000 odd or that the Plaintiff paid this value. The books and documents of Hari Prosad Majumdar are kept away from the Court. The Plaintiff does not produce a scrap of paper to prove what value he actually paid for the goods. The entire sum of Rs. 58,000 and odd is alleged to have been paid in cash to Hari Prosad Majumdar who goes away with this cash to Chittagong. I am inclined to think, however, that some consideration did pass from the Plaintiff to Hari Prosad Majumdar inasmuch as no one else other than the Plaintiff has come forward to claim the goods covered by this consignment. But what is the extent of that consideration has not been established satisfactorily before the Court. In the plaint the case made is that the sale of the goods by Hari Prosad in favour of the Plaintiff took place by endorsing the railway receipt. It is also the case made in the notice u/s 80 of the Code of Civil Procedure, but no endorsement appears at all on the railway receipt. Instead a separate letter of assignment is produced to prove the sale. So the case made at the hearing is different from the case made in the notice u/s 80 and in the plaint. The foreign delivery book entry suggests that the entire consignment had been taken delivery of on the 17th February, 1948. Although the witness Kshirode Gopal Chakravarty lias deposed before this Court that besides the foreign delivery book no other delivery book is maintained by the railway, wherein fact of any short delivery of the consignment is noted, it appears that this witness, as I have pointed out already, stated before the Munsif at Alipore that there is a book known as unloading register and the fact of short delivery or damage, is noted in such book. It is true that the witness has attempted before this Court to explain this previous statement of his as a mistake, but the fact remains that his evidence was recorded in the manner in which it has been done. This unloading register is, however, not forthcoming and it may be that if this register had been produced, it might have shown some entry about short, delivery. But it is also clear from the foreign delivery hook which has been exhibited in this case that the fact of short delivery is also noted in this book in respect of consignments which are received from a foreign railway. In fact, as I have pointed out already, in some cases when the Plaintiff took delivery, the remark about shortage in respect of particular consignments had been duly entered in this foreign delivery book in the handwriting of the Plaintiff himself but in respect of that consignment in suit there is no such remark noted in this delivery book. It is. also to be pointed out that as soon as the Plaintiff made a written complaint about non-delivery of 284 pieces on the 2nd of June, 1948, the Chief Commercial Manager''s office, on the 29th June, 1948, replied to that letter stating that the entire consignment had been delivered to the consignee under the clear signature on the 17th February, 1948. Although Hariprosad Majumdar has suggested that the Plaintiff wrote to him about short delivery and he also replied to such a letter advising the Plaintiff to take steps, no such correspondence is produced before the Court, although all such documents are alleged to be at Chittagong and they could have been produced if the Plaintiff or his witness Hariprosad wanted to establish their case to the satisfaction of the Court. I am not satisfied on the materials before me as to the genuineness of the claim.

It has been argued by Mr. Majumdar on behalf of the Defendant that the Plaintiff cannot succeed in this case as there was no privity of contract between the Plaintiff and the Defendant Union and as the Plaintiff has failed to prove that the goods were made over to the East Indian Railway by the Eastern Bengal Railway and the loss occurred when the goods were on the line of the East Indian Railway. I am unable to accept this contention of Mr. Majumdar. It appears from the Railway Receipt that the consignor Hariprosad Majumdar did not pay the entire freight when he booked and delivered the goods at the Dohazari Railway Station but some freight was to be paid at the destination station at the time of taking delivery from the East Indian Railway at the Ballygunge Station. So the contract with the Eastern Bengal Railway at Dohazari was one entire contract for carriage of the goods for the whole distance and either the Pakistan Railway was acting as the agent of the East Indian Railway in making the contract or the Pakistan Railway Administration acted as agent for. the consignor in making the contract, with East Indian Railway for carriage of the goods to the Ballygunge Station. It is reasonable to presume in the circumstances of this case that under an arrangement between the Eastern Bengal Railway and the East Indian Railway, one railway acted as agent in entering into the contract of carriage and so the act of one is binding on the other; see Chattumull v. Union of India (1954) 59 C.W.N. 504.

Mr. Majumdar has strongly relied on the case of Dekhari Tea Co. v. Assam, Bengal Railway (1919) ILR 47 Cal. 6 in support of his argument that there was no privity of contract between the Plaintiff and the then East Indian Railway owned by the Union of India. But it is to be pointed out that in this case the facts were that the line of Assam Bengal Railway ran from Assam to Chittagong and consignments of tea from Assam for shipment at the port of Ghittagong ordinarily used to be carried over this line by the Railway Company without recourse to any other companies or systems of transport. There was breakdown in a; particular-section of this line known as the Hill Section with the result that the Railway Company entered into a temporary and emergency arrangement with a Steamship Company for carrying the goods by river from Gauhati to Chandpur and then hand them back again to the Railway Company who would transport them by rail to Ghittagong. Upon these facts Rankin, J. held that there was no privity of contract between the Plaintiff and the Steamship Company but there was one single contract with the Railway Company that the goods should be carried all the way to Chittagong in consideration of one single and entire reward to the Railway Company in that behalf. The arrangement of carriage by the river from Gauhati to Chandpur was an emergency arrangement. The railway receipt given was the "local booking''" form of receipt which would be given in normal times for the all-land transport from the booking station to Chittagong Station. The freight was not split up as in "through invoice" from among the different carriers. Accordingly Rankin, J. came to" the conclusion that the Steamship Company was merely a sub-contractor of the Railway Company and there was no privity of contract between the Plaintiffs in that case and the Steamship Company But the learned Judge in the course of reasonings recognised the principle that in case of "through booking" transaction the sender makes each carrier excepting the last his agent to make a further contract treating him as the next carrier''s agent to make a further contract with the sender. Rankin, J. has referred to some of the relevant English cases and other cases on the point.

Mr. Majumdar referred to certain decisions reported in Chunilal v. The Nijam''s Guaranteed State Rly. Co. Ltd. (1906) ILR 29 All. 228 M. and S.M. Rly. v. Padmanabhdni China Nagiah and Co. AIR (1946) (Mad.) 227 and M.A.P Palaniclami Nadar v. Governor-General in Council AIR (1946) (Mal.) 133 and also in support of his argument that there was no privity of contract between the Plaintiff and the Defendant. But as the principles reiterated in these cases have been considered in Rankin, J.''s judgment to which I have made reference, it is not necessary to deal with these cases at length in this judgment.

It is conceded by both parties that as two independent railways belonging to two different Governments are concerned, Section 80 of the Railways Act has no application. So the liability of the railway administration will be that of a bailee and the contract of carriage was a contract of bailment. Now the law is clear that when goods have not been delivered at the place of destination, the Plaintiff need not prove how the loss occurred but the onus is upon the bailee to prove the circumstances which exonerate him from liability for loss. [See Surendra v. Secretary of State (1916) 21 C.W.N. 1125]; In Pollock and bulla''s Indian Contract Act, 8th Edition (1957) the following statement of the law occurs at p. 576:

In cases governed by the provisions of Sections 151 and 152 the loss or damage of goods entrusted to a bailee is prima facie evidence of negligence and burden of proof therefore to disprove negligence lies on the bailee. The same rule applies by reason of Section 72 of the Indian Railways Act to a railway administration unless the goods are consigned under a risk note under which the railway company arc absolved from all liability for loss or damage except that due to wilful negligence on the part of their servants, in which case the burden lies in the first instance upon the company to prove that the loss was such as was contemplated by the contract and when this has been done it shifts to the Plaintiff to show that the loss was due to the wilful neglect of the company or its servants.

So it is for the Defendant to place all the materials before the court and if the Defendant fails to do so. the Plaintiff may ask the court to presume that if produced the materials would have gone against the Defendant. Kshirode Gopal Chakravarty has deposed that at the junction or border station a register is usually required to be kept, though he cannot say whether in this particular case any such register was kept or not. But no such register has been produced before the court, nor any witness from the junction station is called to prove that the goods were not received by the East Indian Railway. Mr. Majumdar has argued that the production of the register would have been useless as it would have only proved the negative, i.e., absence of any entry. But it appears to me that the railway is under an obligation to satisfy the court upon production of all relevant materials that the goods did not reach their hands at all and so they cannot be made liable. The facts as to how the consignment was dealt with during transit are facts within the special knowledge of the railway administration and the railway is under a duty to disclose these facts, (Section 106 of the Evidence Act). If I had not been satisfied on the other materials which have been placed before me in this case that the claim of the. Plaintiff has not been satisfactorily established to be a genuine one, the withholding of the relevant documents and registers from the court would have led me to make an adverse presumption against the Defendant.

It was next argued by Mr. Majumdar that the notice u/s 80 of the CPC is insufficient and defective and that the service of the notice on the appropriate authority, namely, the General Manager, has not been satisfactorily proved. Now, by the amendment of Section 80 of the Code of Civil Procedure, which came into force on the 21st of February, 1948, it was incumbent upon the Plaintiff to serve notice on the General Manager of the railway concerned. In the present case, one notice, dated 17th of November, 1948, was served on the Governor-General of the Dominion of India representing the East Indian Railway, New Delhi, and the notice was addressed also to the Governor-General. The acknowledgment of this notice which was sent by registered" post has been tendered in evidence and it is marked as Ex. C. It is alleged that a copy of this notice was also sent to the General Manager. The fact that a copy of the notice was forwarded to the General Manager is endorsed on the copy of the notice, dated 17th November, 1948, which has been disclosed and tendered in evidence in this case (Ex. C) and to prove that such a copy was forwarded, one Gopi Krishna Pal, to whose evidence I have referred in an earlier part of this judgment has been called. The Advocate himself, Mr. Mukherjee, who had drafted and sent the notice under his signature has not stepped into the box. As I have indicated already, I find it difficult to accept the evidence of this Gopi Krishna Pal for the reasons which I have already given and especially as this oral testimony is not corroborated by any documentary evidence such as a despatch register or some such book where records of despatch of letters sent to clients are kept. It was quite clear when this witness was giving evidence that he was not frank and straightforward in his statements that he made from the witness box. The acknowledgement receipt for the letter which was sent to the Governor-General was received back in due course and the same has been produced in Court, but the acknowledgment receipt of the letter alleged to have been forwarded to the General Manager is not forthcoming. When these two letters were posted at the same time, one would expect that the documents relating to these two letters would be kept at the same place and it is therefore difficult to follow how one receipt got mislaid and the other is forthcoming. Curiously enough, even the receipts which are granted at the time registered letters are posted from a particular post office, are also missing in this case. In my view, the service of notice on the General Manager has not been satisfactorily proved.

Mr. Majumdar has also pointed out that the notice u/s 80 is defective inasmuch as it does not contain any allegation of negligence which is an essential fact forming part of the cause of action of the Plaintiff in this case and the learned Counsel has drawn the attention of the Court to a decision reported in Dwarkanath v. The River Steam Navigation Ltd. (1917) 27 C.L.J. As has been pointed out repeatedly, notice u/s 80 need not be a verbatim copy of the plaint. The object of giving such a notice u/s 80 is to apprise the Government of the nature of the Plaintiff''s claim in order to enable them to settle the claim of the Plaintiff outside the Court, if they want to do so. In my view, therefore, this defect in the notice does not invalidate the notice but as I have pointed already, the case of the railway receipt being endorsed in favour of the Plaintiff as stated in the notice has not been proved at the hearing. The case proved at the hearing is that there was a letter of assignment by virture of which the Plaintiff had acquired title to these goods covered by the consignment in suit.

For all these reasons this suit cannot succeed and it is accordingly dismissed with costs as of a defended suit.