East Indian Ry. Co. and G.I.P. Ry. Co. Ltd. vs Firm Sukhdeo Das and Another

Foster, J.—This is an application u/s 25 of the Provincial Small Cause Courts Act. The plaintiff''s suit has been decreed for Rs. 490 being compensation for non-delivery of a bale of cotton consigned to the plaintiff at Gaya from Bombay through the defendant Railway Companies. Each of the defendants has filed a written statement. In the plaint it is asserted that out of 16 bales only 15 bales were delivered to the plaintiff''s firm under open delivery and one bale was not delivered and was found to be wanting. In the written statement there is no assertion from which it can be gathered even by implication that the bale of cotton has been lost, nor is there on the record any correspondence between the parties which would show that the railway has ever asserted that the goods have been lost or destroyed. When the case came into the Court the defendant Railway Company offered to produce evidence to show that the goods have been lost. But the learned Subordinate Judge held that such evidence could not be then admitted. In my opinion, he was right in this decision. The plaintiff had expressly described his claim as one of compensation for non-delivery and the defendant had not pleaded that the goods had been ost. So in my opinion, the plaintiffs'' caase would rest upon the presumption that the goods were still in the possession of the railway company, a presumption which may be raised, I think, under the terms of Section 114 (Illustration D) of the Evidence Act. The reason why it is so necessary to lay stress on the pleadings in such $ case is this that the plaintiff has already a very heavy burden indeed find that it would not be just to increase that burden by excusing the defendant from the necessity of pleading ''loss'' or destruction''. It may be loss in the ordinary sense of the word or it may be destruction by fire or water or vermin, but the plaintiff should at least have some knowledge that the goods are no longer in the Company''s possession. This is nor a mere technicality as will be seen by giving careful attention to the terms of Section 72 of the Indian Railways Act. The scheme of that Section is that there is a general Rule at the commencement imposing a general liability of a considerable extent upon the Indian Railways and then follows a particular Rule as to exemption from the extensive provisions of the first Sub-section. Applying the facts of the present case to that Section we see that the plaintiff''s firm would ordinarily have the advantage of the terms of Section 152 of the Contract Act and he also has the benefit of calling the bailee to account, u/s 161 of the same Act. The Jarge liability of the defendant indicated in the first Sub-section must apply to the present case unless the defendants plead and show that their responsibility has been limited by lawful agreement. The necessity for pleading and showing the special fasts is only in accordance with the principles, of Sections 103 and 106 of the Evidence Act. From this it follows that it is necessary expressly to plead loss and the execution of a risk note, if the defendant wishes to escape the ordinary liabilities of a bailee. The special facts of this case distinguish them from the case which has been quoted to me, (G.I.P. Railway v. Jitan Ram Nirmal Ram 1923 Pat. 285. The facts correspond rather to those of the Irish case reported in 2 Ir. Rep. 186] which was discussed and distinguished in H. C, Smith Ltd. v. G. W. R. and Co. (2). Lord Buckmaster shows that the case then decided was treated as one in which ''loss;'' had been eaded and shown and the Irish case was distinguished by Lord Buckmaster and Lord Wrenbury in this very respect.

In my opinion, there has been no mis-application of the law in the trial of this case in so far as it has been confined to the question of compensation for non-delivery by a bailee of property bailed.

Holding this opinion it follows that I must find also that the risk-note has no bearing upon the case inasmuch as it could only be pertinent if ''loss'' had been pleaded. But I must refer to the risk note in connection with one question, which was raised on behalf of the applicants, the Railway Company. The learned Subordinate Judge held chat the liability of the plaintiff to the stipulation of the risk-note had not been established inasmuch as it was not shown that the broker Balaji, when he signed the risk note, signed under the authority of the plaintiff. This cannot be regarded merely as a question of fact, for it is obvious that if a conclusion of fact is arrived at by construction of law, the conclusion must involve a question of law. Now, in this case it may be accepted that the plaintiff had not expressly author-rised Balaji to sign for him in Bombay, but the question still remains whether the plaintiff is bound by Balaji''s signature. Balaji made the whole contract of bailment which included promises as to carriage, payment of consideration and so on. The plaintiff has adopted for the purposes of the suit a large part of this contract of bailment but wishes to discard the portion which is inconvenient to his case. He has> in fact adopted the whole contract of bailment and he has in fact ratified the action of Balaji in contracting on his behalf. It is for this reason that the law constructively fixes him, on the principle of Section 196 Contract Act, with the same liability as if he had given his authority before the contract. But, as I have said before, this question does not, in my opinion, arise in the present case. The application is dismissed with costs. Hearing fee three gold mohurs.