ORDER:- In Small Cause case No.348 of 1958, a decree was passed in favour of the plaintiff firm, a consignee of goods, against the Union of India owning the Western Railway for damages in respect of deterioration of goods booked Bilimora to Rajkot. The consignor did not file the suit, but the consignee, in whose name the railway receipt was prepared, filed a suit for damages. Admittedly, damage was caused to the goods.

2. The only point urged in revision is that the lower Court has erred in passing a decree in favour of a bare consignee and that as the suit was not filed by the consignor who was a party to the contract of consignment, the suit should have been dismissed, as it was a suit filed by a bare consignee against the Railway. The contention is well founded. This is a case of bailment of goods to the Railway. The word "bailment" is thus defined in section 148 of the Indian Contract Act:-

"A "bailment" is the delivery of goods by one person to another for some purpose, upon a contract that they shall, when the purpose is accomplished, be returned or disposed of according to the directions of the person delivering them."

Sub-section (1) of section 72 of the Indian Railways Act reads as follows:-

"The responsibility of a railway administration for the loss, destruction or deterioration of animals or goods delivered to the administration to be carried by railway shall, subject to the other provisions of the Act, be that of a bailee under sections 151, 152 and 161 of the Indian Contract Act 1872 (9 of 1872)."

Section 161 of the Contract Act reads as under:-

"If by the default of the bailee, the goods are not returned, delivered or tendered at the proper time, he is responsible to the bailor for any loss, destruction or deterioration of the goods from that time."

Under this section, therefore, if the conditions are satisfied, the Railway is responsible to the bailor, i.e the consignor for any loss, destruction or deterioration of the goods. Under Order 7, Rule 5, Civil Procedure Code, the plaint shall show that the defendant is or claims to be interested in the subject matter, and that he is liable to be called upon to answer the plaintiffs demand. The plaint must show how the defendant is liable to be called upon to answer the plaintiffs demand. In the instant case, the consignor or the bailor has not filed the suit, but the suit has been filed by the consignee. Under section 161 of the Contract Act, in the case of bailment the bailee is responsible only to the bailor, and if a person, who is not a bailor, files a suit against the bailee for any loss, destruction or deteriorateion of goods, it is for him to show how he is entitled to sue when he is not in the position of a bailor.

3. In the instant case, in his evidence the plaintiff did not say how he was in a position to sue the Railway for the loss or deterioration of the goods bailed to the railway by someone else. But the plaintiff merely relies on the railway receipt where his name is shown as consignee. The Small Cause Court, however, relied on a Full Bench ruling in Dominion of India v. Messrs. Gaya Pershad Gopal Narain, (S) AIR 1956 All 338 (FB), where it was held as follows:

"A consignee who is not the owner of the goods but to whom the goods are consigned for the purpose of sale on commission basis, is entitled to maintain the suit for loss in respect of damage caused to the goods in transit."

But the principle laid down in the Allahabad case cannot be applied to the present case, because there is no evidence to show that the goods had been consigned to the plaintiff for the purpose of sale on commission basis. Ordinarily, it is only a party to a contract who can sue upon the contract. But there are provisions in the law whereby persons who are rot parties to the contract can sue upon the contract. For instance, section 226 of the Contract Act provides that contracts entered into through an agent, and obligations arising from acts done by an agent, may be enforced in the sa

Click Here to Read the rest of this document