An endorsee of a railway receipt, by virtue of the endorsement alone, is not entitled to maintain a suit for the loss against the railway.

A. MISRA, J.

( 1 ) PLAINTIFF is the appellant. Defendant No. 1 is the Union of India representing four different Railways, the South Eastern Railway, the Eastern Railway, the Northern railway and the North Eastern Railway who have been described as defendant nos. 1/a. to 1/d. Defendant No. 2 is the proprietor of the Tara Oil and Ginning mills of Hapur in U. P.

( 2 ) THE facts on which the plaintiff has founded his claim, in brief, are as follows: a tank load of mustard oil containing 528 maunds was consigned by defendant No. 2 at Hapur junction in Northern Railway on 19-9-1960 under R/r No. 217968 invoice No. 15 for delivery to self at the destination Cuttack on the South Eastern Railway. The railway receipt along with the bill amounting to Rs. 39,323. 32 was sent through the punjab National Bank, Hapur to the plaintiff to enable him to take delivery of the consignment. When the consignment reached Cuttack on 22-10-1960, the tank was found to be leaking. The plaintiff took delivery of the goods on protest after dip measurement. On actual weighing, the contents were found to be 424 maunds. 37 seers and 8 chhataks of oil. Thus, there was a short delivery of more than 103 maunds of oil the value of which is assessed at Rs. 8,694. 22. Alleging that this loss occurred due to the gross negligence and misconduct of the Railway administrations and their servants, plaintiff filed the suit to recover the value of the shortage together with interest after issuing notices under section 77 of the Indian Railways Act and Section 80, Civil Procedure code.

( 3 ) AS per the terms of the award dated 18-1-1961, defendant No. 2, the consignor paid Rs. 4,000/- to the plaintiff and undertook to file a suit against the Railway administration for realisation of the balance of the loss and pay the same to the plaintiff, Therefore, the plaintiff impleaded defendant No. 2 making an alternative claim for recovery of Rs. 5,000/-odd from him in case his claim against the railway administration is not decreed.

( 4 ) DEFENDANT No. 1/a the South' Eastern Railway filed one written statement and defendant Nos. 1/c and 1/d the Northern Railway and the North Eastern Railway filed another written statement resisting the plaintiff's claim. They challenge the locus standi of the plaintiff to institute the suit and deny service and validity of the notices issued by or on behalf of the plaintiff both under Section 77 of the Indian railways Act and Section 80, Civil Procedure Code. According to them, the consignment was a whole load wagon under L/u condition and there was no inherent defect in the wagon. They deny leakage or shortage of the contents and state the weight mentioned in the railway receipt and the forwarding note does not represent the actual Weight of the quantity of the goods consigned. Altenatively, they plead that in case there was any shortage, the loss was not due to any negligence or misconduct of the Railway administrations or their servants, and as such, none of the Railways is liable for the amount claimed. Defendant No. 2 filed a separate written statement. According to him, the price of the oil which was found short of the quantity consigned was Rs. 7. 840. 66 and not Rs. 8,000/-odd as claimed by the plaintiff. Under the terms of the award given by the Chamber of commerce, a suit against defendant No. 1 claiming the price of the oil found short was to be filed by defendant No. 2 at the place which was convenient to him. The railway receipt having already been endorsed in favour of the plaintiff, defendant no. 2 sought for his authority to institute the suit and also sent him a draft plaint. The plaintiff, however did not comply with this request and instituted the present suit though defendant No. 2 had already filed M. S. No. 538 of 1961 in the Court of Munsif. Havali in Meerut. On these allegations, he alleged that the present suit should be stayed and in any view of the matter, plaintiff's claim is barred by principles of res judicata an