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High Court Of Madhya Pradesh
G. P. Bhutt, C. J. and T. P. Naik, J.
SAMRATHMAL - Appellant
Versus
UNION OF INDIA - Respondents
First Appeal 63 Of 1959
Decided On : 01/30/1959
RAILWAYS ACT - SECTION 77 - INDIAN RAILWAYS ACT - SECTION 80 - CODE OF CIVIL PROCEDURE - NOTICE - SUFFICIENCY - DAMAGES - LATE DELIVERY - DETERIORATED CONDITION - JOINT HINDU FAMILY FIRM - SUIT BY - PARTNERSHIP ACT, SECTION 69 - APPLICABILITY.
Fact of the Case:
Plaintiff, a joint Hindu family firm, sued the defendants, railway companies, for damages for late delivery and delivery of goods in a deteriorated condition. The plaintiff had served notices on the defendants under Section 77 of the Indian Railways Act and Section 80 of the Code of Civil Procedure. The trial court dismissed the suit on the ground that the notices were not valid and legal.
Finding of the Court:
The court held that the notices served by the plaintiff under Section 77 of the Indian Railways Act and Section 80 of the Code of Civil Procedure were valid and legal. It also held that the plaintiff was entitled to sue as the assignee of the consignor and that the suit was not hit by the provisions of Section 69 of the Indian Partnership Act.
Issues: 1. Whether the notices served by the plaintiff under Section 77 of the Indian Railways Act and Section 80 of the Code of Civil Procedure were valid and legal? 2. Whether the plaintiff was entitled to sue as the assignee of the consignor? 3. Whether the suit was hit by the provisions of Section 69 of the Indian Partnership Act?
Ratio Decidendi: 1. The court held that the notices served by the plaintiff under Section 77 of the Indian Railways Act and Section 80 of the Code of Civil Procedure were valid and legal. It held that the notices substantially complied with the requirements of the law and that their purpose of preventing stale and possibly dishonest claims and of putting the railway administrations on enquiry had been served. 2. The court held that the plaintiff was entitled to sue as the assignee of the consignor. It held that the intention of the consignor to transfer his rights under the railway receipt to the plaintiff firm was amply established by the evidence on record. 3. The court held that the suit was not hit by the provisions of Section 69 of the Indian Partnership Act. It held that there was nothing on record to show that the plaintiff was a partnership firm and that consequently Section 69 of the Act had no application.
Final Decision: The court allowed the appeal and decreed the suit of the plaintiff-appellant for Rs. 10,090/9/- with proportionate costs throughout.
( 1 ) THIS is a first appeal by the plaintiff, a joint Hindu family firm, whose suit for equivalent Citation: damages, amounting to Rs. 11,301-3-6, for the lass suffered by it on account of late delivery of goods as also their deli-very in a deteriorated condition has been dismissed by the Additional District Judge, Balaghat, on the sole ground that the notices served by it on the respondent railway companies under Section 77 of the indian Railways Act and under Section 80 of the Code of Civil Procedure were not legal and valid for the purposes. of the claim in suit.
( 2 ) SETH Samrathmal and Seth Ratanchand are real brothers and they constitute the plaintiff joint Hindu family firm which is carrying on business at Balaghat under the name and style of 'firm Dhanraj Samrathmal, Balaghat'.
( 3 ) ON 3-3-1950, one Maganlal Sualal booked a consignment of 123 bags of chillies, weighing 85 maunds, at Mandsaur, a railway station on what is now known as the Western Railway (then known as the Bombay Baroda and Central india Railway) under invoice No. 1, and railway receipt No. Q/1-32496, to Lamta, a railway station on what is now known as the Eastern Railway (then the Bengal nag-pur Railway ). The consignment was booked to self, but the railway receipt was sent to the plaintiff firm, through a bank. The plaintiff firm duly got possession of the receipt on making the required payment to the bank. The railway receipt also contained on it an unsigned endorsement, 'please deliver to Dhanraj samavthmalji, Balaghat' (see Ex. D-1 ). Out of the aforesaid consignment, 11 bags of chillies arrived at Lamta railway station on or about 3-4-1950. The remaining 112 bags were missent to Allahabad from Ujjain, and those bags ultimately arrived at Lamta railway station on or about 16-9-1950. The defendant-respondent railways did not adduce any evidence of the circumstances under which the 112 bags of chillies were missent to Allahabad - while under transhipment at Ujjain.
( 4 ) ON the strength of the railway receipt in its possession, the plaintiff firm claimed delivery of the consignment from the railway authorities at Lamta railway station, but, as the consignment on inspection was found to be considerably damaged, and as the contents of all the 123 bags were found by the plaintiff firm to be partly caked, discoloured, powdered and wet, it insisted on an open delivery. On on about 5-11-1950, the Chief Commercial Inspector, Calcutta, gave an open delivery of the whole consignment to the plaintiff firm on collection from it of the freight and wharfage charges due on the consignment. As per copy of the Inward Foreign delivery Rook of Lamta (Ex. P-28), the Chief Commercial Inspector certified that, on the basis of percentage, 11 bags were damaged to the extent of 85 per cent and 112 bags to the extent of 72 per cent. It was further stated that the certificate was 'without prejudice'. ( 5 ) BEFORE receiving the aforesaid delivery, the plaintiff firm, on the basis of its estimate that the consignment should have arrived at Lamta railway station within fifteen days of its despatch from Mandsaur railway station, had demanded delivery of the consignment from the railway authorities at Lamta railway station on 18-31950 and onwards, but it was informed that the goods had not arrived. As regards the 11 bags, which, according to the written statement of the defendantsrespondents had reached Lamta railway station in the month of April 1950, gendmal (P. W. 1) states that he had gone to the railway station Lamta for the purpose of taking delivery of the goods in April 1950, but was not informed that the 11 bags had already arrived. He, however, admits that no endorsement of non-arrival was obtained on the railway receipt in the month of April 1950. A. perusal of the railway receipt (Ex. D-1), however, shows that an endorsement 'not received' was made on it by the railway authorities at Lamta on 1-5-50) and again on 25-8-50.
( 6 ) ON 28-6-1950, the plaintiff f
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