Back
High Court Of Madhya Pradesh
G. P. Bhutt and P. K. Tare, JJ.
UNION OF INDIA - Appellant
Versus
IMPERIAL TOBACCO COMPANY OF INDIA LTD. - Respondents
First Appeal 76 Of 1955
Decided On : 11/03/1958
RAILWAYS ACT, 1890 - SECTIONS 77, 80 - NOTICE - VALIDITY - DESCRIPTION OF PLAINTIFF - VARIANCE - DAMAGES - ASSESSMENT - THEFT IN RUNNING TRAIN - LIABILITY OF RAILWAY ADMINISTRATION.
Fact of the Case:
The plaintiff, a consignee, filed a suit against the defendants, two railway administrations, for the price of six undelivered cigarette cases and the value of the loss in a damaged case. The defendants contended that the plaint was not properly presented, the notice under Section 77 of the Railways Act was invalid, the notices under Section 80 of the Civil Procedure Code were invalid, and the decree should not have been passed against the G.I.P. Railway.
Finding of the Court:
The court held that the plaint was properly presented, the notice under Section 77 of the Railways Act was valid, the notices under Section 80 of the Civil Procedure Code were valid, and the decree should not have been passed against the G.I.P. Railway. The court also held that the trial court had correctly assessed the damages and that the defendants were liable for the loss.
Issues: 1. Whether the plaint was properly presented? 2. Whether the notice under Section 77 of the Railways Act was valid? 3. Whether the notices under Section 80 of the Civil Procedure Code were valid? 4. Whether the decree should have been passed against the G.I.P. Railway? 5. Whether the trial court had correctly assessed the damages? 6. Whether the defendants were liable for the loss?
Ratio Decidendi: 1. The power of attorney executed by the company's directors in favor of its Calcutta Manager took effect from the date of its execution, even though the Manager signed the plaint on an earlier date. 2. The notice under Section 77 of the Railways Act was valid, as it substantially complied with the requirements of the Act and the railway administration was fully aware of the plaintiff's claim. 3. The notices under Section 80 of the Civil Procedure Code were valid, even though they were addressed to the Union of India instead of the General Managers of the Railways concerned, as they were actually received by the General Managers. 4. The description of the plaintiff in the notices under Section 80 of the Civil Procedure Code and the plaint was not materially different, as both referred to the Imperial Tobacco Company of India Ltd. 5. The trial court had correctly assessed the damages on the basis of the plaintiff's price list, as the price prevalent at the station of delivery would have been the retail prices, which were higher than the wholesale prices mentioned in the price list. 6. The defendants were liable for the loss, as there was nothing on record to indicate that the theft, if any, took place in spite of proper precautions on their part.
Final Decision: The appeal was dismissed with costs, except as to the first appellant, against whom the appeal was allowed, but without any order as to costs.
( 1 ) THIS is an appeal by the defendants against the judgment and decree or Shri D. M. Aney, Second Civil Judge, First Class, Jabalpur in Civil Suit No. 21-B of 1952 decided on 7-2-1955.
( 2 ) THE respondent was the consignee of 751 cigarette cases booked from chandisthan Railway Siding on 1-5-1950 to be delivered at Jabalpur at 'railway risk', On 18-5-1950, 68 cases were delivered to the plaintiff. One case was subsequently delivered on 9-4-1951 in a partly damaged condition. The parties mutually assessed the damage of the said case at Rs. 966-7-0. The respondent filed this suit on 2-7-1951 claiming an amount of Rs. 9,314-13-0 on account of the price of the six un-delivered cases and the value of the loss in the damaged case. In addition, the plaintiff claimed interest at Rs. 639-6-0. The trial Court decreed the principal claim and disallowed the claim for interest.
( 3 ) IN the present appeal we ore not concerned with the pleas raised in defence. The learned counsel for the appellants gave up other grounds and concentrated his arguments on the grounds which are herewith dealt with.
( 4 ) IT was urged by the learned counsel for the appellants that the plaint was not properly presented and, therefore, the suit was not tenable. The Directors of the company had executed a power of attorney dated 30-11-1950 in favour of its calcutta Manager Shri Blaikie as per Ex. P. 34, who in his turn executed a power of attorney dated 3-7-19511 (Ex. P. 24) in favour of the acting Depot Manager of the company at Jabalpur, Shri Santhanu Ray. Shri Santhanu Ray signed the plaint on 2-7-1951 which was presented on the same day by Shri T. M. B. Pillai, who was appointed as a pleader by Shri Santhanu Ray by a power-of-attorney dated 2-71951. It was contended that Shri T. M. B. Pillai had no legal authority to present the plaint. Since Shri Santhanu Ray had no power to engage him as a pleader on 2-7-1951, and acquired the requisite authority from Shri Blaikie only on 6-7-1951. While it is true that Santhanu Ray derived his authority to engage a counsel on 3-7-1951, the power of attorney, although executed by him on 2-7-1951 in favour of Shri T. M. B. Pillai, took effect from 3-7-1951 as it was not withdrawn. Therefore, when shri T. M. B. Pillai was present in Court on 9-7-1951, he would, at the most be deemed to have presented the plaint on that date, This would not affect the suit, as even on that date, it was within limitation. We, therefore, uphold the finding of the trial Judge on this point.
( 5 ) THE second point that the learned counsel for the appellants raised was about the invalidity of the notice dated 19-6-1950 (Ex. P. 12) served under Section 77 of the Railways Act. The learned counsel pointed out that the notice was addressed to "the Manager of both the railways" and a copy was sent to the Superintendent of Claims, of the then G. I. P. Railway, Bombay. It was argued that under Section 3 (6) of the Railways Act, the word railway administration has been defined and all notices required by the Act to be given to the railway administration ought to be served upon the General Manager in the manner provided by Section 140 of the railways Act. It was further pointed out that the plaintiff had failed to prove that the notice under Section 77 had actually been served on the managers of the two Railways and, therefore, the notice was invalid. Reliance was placed upon Cawnpore Cotton mills Co. , Ltd. v. G. I. P. Rly. , AIR 1923 All 301, G. I. P. Rly. Co. , Ltd. v. Chandulal sheopratap, ILR 50 Bom 84: (AIR 1926 Bom 138) and D. B. Jiwandas v. Agent, E. I. Ry. Co. , 19 Nag LR 139: (AIR 1923 Nag 314 ).
( 6 ) IN our opinion this contention has no force. It is true that the plaintiff did not file the acknow-ledgments addressed to the managers of the two railways. But there is a postal acknowledgment dated 21-6-1950 (Ex. P. 14) on record which is signed by the Chief Traffic Manager, G. I. P. Railway Bombay. The correspondence on record sho
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
