TMI Blog1979 (7) TMI 252X X X X Extracts X X X X X X X X Extracts X X X X ..... iness in coconut oil at Alwaye in the State of Kerala, Defendants 4 to 6 are the partners of this firm and they are brothers. Defendants 7 and 8 are two banks. 3. In March 1963, the plaintiff placed an order with the defendant No. 3 Firm for supply of 650 tins of coconut oil at the rate of ₹ 47 pertin, each tin containing 17 Kgs. of oil. The defendant No. 3 firm alleging to have despatched two consignments, each containing 330 tins of coconut oil ex-Chalakudi railway station on the Southern Railway to Jabalpur on the Central Railway against two railway receipts (Exs. P-3 and P-4) dated 3-4-1963, handed over these railway receipts together with two Hundis, each for ₹ 15,510, drawn on the plaintiff, to the defendant No. 7 Bank at Alwaye, The documents were then sent to the defendant No. 8 Bank from which the plaintiff collected the two railway receipts on payment of ₹ 31,308. The plaintiff, as the last endorsee of these railway receipts, claimed delivery of the goods at the destination station, but being unable to get the goods shown in the railway receipts to have been booked, he gave notice under Section 78B of the Railways Act and Section 80 of the Code of Civ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration; that the railway receipts were obtained fraudulently by defendants 3 to 6 from the railway servants at the forwarding station; and that a sum of ₹ 31,308 was paid on 18-5-1963 by the plaintiff through the Bank to defendants 3 to 6 against the two railway receipts lots. Accordingly, it held that the two railway administrations are not liable to the plaintiff and that the plaintiff is entitled to recover in all ₹ 33,955.50 Paise with interest from defendants 3 to 6 only. Plaintiff's claim against other defendants was found untenable and dismissed. 7. The contention of Shri Y.S. Dharmadhikari, learned counsel for the plaintiff-appellant, is that the plaintiff as the transferee of the railway receipts which are documents of title to the goods is entitled to get the goods or its value from the railway administrations under the contract of carriage. He argues that a presumption of delivery of goods for carriage at the forwarding station arises from these railway receipts which has not been rebutted by the railway administrations. Finally he contends that even assuming there was no delivery of goods for carriage to the railway administration by the consignor, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y on 26-3-1963. However, he admits that he had not himself gone to the railway station on that day. There is no explanation why the railway receipts were issued much later on 3-4-1963, if the goods had actually been delivered and forwarding notes filled by the consignor on 26-3-1963. The fact that defendant No. 3 Firm was a leading coconut oil merchant at Alwaye and the railway servants had without authority extended the irregular facility to it of getting railway receipts in anticipation of delivery of goods, is proved beyond doubt. This witness himself admits that he also had the facility of getting payments against demand drafts without railway receipts from the Bank, which was unusual for others. In this very case, even though the railway receipts were issued on 3-4-1963 and delivery of goods to railway is alleged on 26-3-1963, yet the defendant firm had been able to get money from the Bank against those consignments much earlier on 26-3-1963. The witness has further admitted that even though he was in possession of documents to prove purchase by the defendant firm of these goods earlier and then its delivery for carriage to the railway administration at the forwarding station, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... railway receipts and a wrong entry was made in the loading register at the forwarding station by Rajappa Menon (D. W. 2) to cover up his lapse. From the positive facts proved in this case and the circumstances emerging from the evidence, we are satisfied that the railway administrations have discharged the burden, which was on them and they have shown that there was actually no delivery of goods by the consignor to the railway administration at Chalakudi as claimed by the plaintiff against these railway receipts Exs. P-3 and P-4 and that these railway receipts were fictitious. It is obvious that the goods not having been delivered to the railway administration for carriage, even though railway receipts were issued, there was no occasion to return the same after carrying it to the destination station under the alleged contract of carriage. 10. The question now is whether the railway administrations can be held liable only on the basis of these fictitious railway receipts when the consignor sever delivered the goods to it for carriage under the alleged contract of carriage. For this purpose, we have to consider the provisions and principles which apply to determine the railway ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... railway administration for commencement of its liability as carrier. This conclusion finds support from the authorities mentioned hereafter. 12. For the reasons given earlier, the authorities in which the expression 'goods delivered to the administration to be carried by railway' occurring in the old Section 72 was construed to determine the starting point of railway administration's liability continue to apply even now for this purpose, In Ramchandra Natha v. G.I.P, Railway Co. ILR (1915) Bom 485 it was held, relying on some earlier decisions, that the real question to be determined on the facts of each case was whether actual physical delivery of the goods had been made by the consignor to the railway administration to commence the responsibility of the railway administration and that the issuance or non-issuance of a railway receipt was not decisive of the question, it being merely of evidentiary value. The learned Judges constituting the Division Bench delivered concurring, though separate judgments. The relevant extracts from the judgments are as follows :--Heaton, J.:-- A 'delivery to be carried by railway' means something more than a mere depositi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sue of a railway receipt which provides the starting point for commencement of the responsibility of the railway administration as carrier of the goods. (See Chhogalal v. Secretary of State, AIR 1933 Nag 261 : 29 Nag LR 333; Jalim Singh v. Secretary of State ILR (1904) Cal 951; Hardayal v. B. N. W. Ry. Co., AIR 1929 Pat 296; Sohanlal Munnalal v. E. I. Railway, AIR 1922 All 9 (FB); Secretary of State v. (Firm) Sheo Bhagwan, AIR 1936 All 69; Laxmi Narain Brahma Narain v. Governor-General in Council AIR 1950 P H 87; Ardeshir v. Agent, G.I.P. Ry. Co. AIR 1928 PC 24 and Mariappa v. G. G. in Council AIR 1950 Mad 700. 14. In Morvi Mercantile Bank Ltd. v. Union of India, AIR 1965 SC 1954, it was held, relying on earlier privy Council decisions, that a railway receipt is a document of title to the goods covered by it and transfer of the said document for consideration effects a constructive delivery of the goods with the result that the endorsee of the railway receipt will have the same remedies as owner of the goods would have for deprivation of the said goods or injury to them. It follows from this decision that the endorsee of the railway receipt, therefore, steps into the shoes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (b) A, the captain of B's ship, signs bills of lading without having received on board the goods mentioned therein. The bills of lading are void as between B and the pretended consignor. 17. The illustration is based on an earlier English decision in Grant v. Norway (1851) 10 CB 665. That decision was given in an action brought by the endorsees of a bill of lading against the owners of a vessel to recover the amount of advances made by the former upon the bills of lading, the goods never in fact having been shipped. It was held that the master of a ship signing the bill of lading for goods which had never been shipped is not to be considered as the agent of the owner in that behalf, so as to make the latter responsible to one who has made advances upon the faith of the bills of lading so signed. The action was therefore, dismissed against owners of the ship. It is evident from illustration (b) to Section 238 that the principle laid down in this decision has been embodied in the Indian Contract Act. There can thus be no doubt that the railway administration cannot be held liable for the act of its servants in issuing a railway receipt without delivery of the goods for ca ..... X X X X Extracts X X X X X X X X Extracts X X X X
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