Back
1987 Supreme(Ori) 71
High Court Of Orissa
H. L. AGRAWAL, S. C. MOHAPATRA
UNION OF INDIA - Appellant
Versus
ASHOK KUMAR RASIKLAL - Respondent
First Appeal 185 Of 1976
Decided On : 05/12/1987
B.B.DAS GUPTA, B.Pal, G.RATH
The measure of damages for the illegal delivery of goods by a railway administration is the market price at the time of the damage.
Headnote:
RAILWAYS ACT - SECTION 78-B - WRONG DELIVERY OF CONSIGNMENTS - MEASURE OF DAMAGES - RIGHT TO SUE - MISDESCRIPTION OF PARTIES - LIMITATION - MISJOINDER OF CAUSES OF ACTION - INTERPRETATION AND APPLICATION.
Fact of the Case:
The plaintiff, a consignor, dispatched nine consignments of Mohua flower to a buyer under separate railway receipts. The railway administration, however, delivered all the consignments to the buyer on the basis of indemnity bonds without presentation of the railway receipts. The plaintiff claimed damages from the railway administration for the illegal delivery.
Finding of the Court:
The court held that the plaintiff had the right to sue as the ownership in the goods continued with him. The court also held that the measure of damages was the market price at the time of the damage and that the plaintiff was entitled to join the causes of action in question as the nature of the allegation was similar and the parties were the same.
Issues: 1. Whether the plaintiff had the right to sue for damages for the illegal delivery of the consignments. 2. Whether the measure of damages was the market price at the time of the damage. 3. Whether the plaintiff was entitled to join the causes of action in question in a single suit.
Ratio Decidendi: 1. The court held that the plaintiff had the right to sue as the ownership in the goods continued with him. The court relied on the evidence that the buyer had not paid any consideration to the plaintiff for the consignments and that the endorsements on the railway receipts had been cancelled. 2. The court held that the measure of damages was the market price at the time of the damage. The court relied on the Supreme Court decision in Union of India v. The West Punjab Factories, Ltd. (AIR 1966 SC 395). 3. The court held that the plaintiff was entitled to join the causes of action in question in a single suit. The court relied on Order 2, Rule 3 of the Civil Procedure Code, which entitles the plaintiff to unite in a same suit several causes of action against the same defendant.
Final Decision: The court dismissed the appeal and relieved the appellant from the burden of costs.
H. L. AGRAWAL, C. J.
( 1 ) THIS is an appeal by the defendant, Union of India representing the South Eastern Railway, against the decree of the trial court for a sum of Rs. 79,556. 40 passed as damages for non-delivery of certain Mohua flower consignments, raising some interesting questions of law.
( 2 ) THE facts : the plaintiff despatched nine consignments of Mohua flower from Khariar Road Railway Station to Seoni under nine separate railway receipts in the month of May, 1970. Each consignment was loaded in one full wagonload consisting of 321 bags, each weighing 224. 70 quintals. The consignments were booked to 'self' and, according to the plaintiff's case, they were despatched under sale orders to M/s. Jaiswal Trading Corporation, Seoni, subsequently added as defendant No. 2, @ Rs. 8,839. 60 p. per wagon. The relative documents including the railway receipts were accordingly sent through the Bank for collection of the money from the concerned party. The defendant-Railway Administration, however, delivered all the consignments to defendant No. 2 on the basis of indemnity bonds without presentation of the railway receipts. Since defendant No. 2 did not retire the documents from the Bank, the Bank returned them to the plaintiff. The plaintiff claimed damages from the defendant-Railway Administration on the ground that the delivery of the consignments to defendant No. 2 was entirely illegal and, therefore, the defendant was liable to compensate the loss in question to the plaintiff. It may be mentioned that originally the suit was filed only against the General Manager, S. E. Railway. But after filing of the written statement, the plaint was a amended impleading defendant No. 2 and also amending the description of defendant No. 1 by adding "union of India through" before the description of the original defendant.
( 3 ) SINCE long arguments have been made regarding the effect of the amendment, I shall discuss the same at the appropriate stage, but the order allowing the amendment which was passed on 27-2-1974 stated that "as the amendment is a formal one, and as no objection is raised from the other side, it is allowed".
( 4 ) THE suit was contested only by defendant No. 1 and although the basic facts that the plaintiff was the consigner and the delivery of the consignments was given to defendant No. 2 on the basis of the indemnity bonds were not disputed, the main pleas of defence which were also urged in this Court on behalf of the appellant were as follows :- (1) The plaintiff having already sold the goods before the delivery was effected to defendant No. 2, it had no right to sue. (2) The suit was barred by limitation. (3) The plaintiff must satisfactorily prove the particulars of the consignments and in any event the claim of the plaintiff was highly exaggerated.
( 5 ) IN support of its case, the plaintiff examined four witnesses and two witnesses were examined on behalf of the defendants. P. W. 1 was the Goods Clerk of the Booking Station who proved the fact of the consignments in question being loaded after proper checking and weighment. He stated that the weights in the railway receipts were mentioned thereafter. P. W. 2 is a partner of the plaintiff's firm. He was the main witness examined by the plaintiff to prove the entire case of the plaintiff. He stated that the consignments in question were loaded in the wagons in the presence of the Goods Clerk after proper weighment and verification and that the purchaser of the consignments (defendant No. 2) was to retire the documents from the bank on full payment of the amount mentioned in the Hundies. He also denied the suggestion put to him in the cross-examination, that a sum of Rs. 50,000/- paid by defendant No. 2 to the plaintiff was on account of the consignments in question. According to his evidence, this payment was towards some other transactions. He further stated that the railway receipts in question were endorsed in favour of M/s. Laxmi Chand Paramananda an
