Jugeshwar Mahton vs M and S.M. Railway and Others

Das, J.—This is a second appeal by the plaintiff from a decision of the learned Additional District Judge of Darbhanga, dated 4-6-1945, whereby the learned District Judge has reversed the decision of the learned Munsif of Samastipur with regard to the plaintiff''s claim against one of the defendants, namely, the Madras and Southern Mahratta Railway Company and modified the decree as against the other, defendant, namely, Messrs. K.A.G. Naraina Chetty and sons their after to be called the Chetty for the sake of brevity.

The plaintiff had brought the suit claiming a sum of Rs. 1956-6-5 as the price of 189 bags of garlic plus a sum of Rs. 500 as damages. The plaintiff is the proprietor of a firm styled Bhagwal Mahton and Jugeshwar Mahton in the town of Rosera within the Samastipur subdivision. On 21-6-1942, the plaintiff had received a telegraphic money, order from the Chettys for a sum of Rs. 200 only for purchasing garlic and for despatch of the same to two places named Guntur and Bangalore. On receipt of the telegraphic money order, the plaintiff purchased the required quantity of garlic, but was unable to despatch the same to Guntur and Bangalore as booking for those stations was closed at the time. The plaintiff thereupon wrote to the Chettys intimating to them that the garlic could not be despatched to Bangalore or Guntur and enquired if it could be sent to Hindupur, another place in the Madras Presidency where the Chettys resided and carried on their business. On receipt of a reply from the Chettys, the plaintiffs sent 189 bags of garlic in two wagons on 13-7-1942. The consignor of the garlic was stated to be one Chulhai Naik, who, however, had nothing to do with the plaintiff''s firm. The name of Chulhai Naik was given as the consignor, because the wagons in which the garlic was loaded were allotted in the name of Chulhai Naik. The consignee of the goods was mentioned as Bhagwan Mahton and Jugeshwar Mahton. The railway Receipt along with in invoice was sent to the Chettys through the Imperial Bank of Bangalore. The goods were received at Hindupur Railway Station on the 1-8-1942. On the next day, that is, 2-8-1942, the plaintiff received a telegram from the Chettys to the effect that the garlic was not of the required quality and, therefore, the Chettys were not prepared to take delivery of the same. The plaintiff does not appear to have done anything further, on receipt of the said telegram from the Chettys. The officers of the Madras and Southern Mabaratta Railway Company found that nobody claimed the consignment in question. They sent telegraphic enquiries to the Station Master of Rosera to find out if consignor wished to claim the goods. These telegraphic enquiries did not, however, bear any fruit. Due to the civil disturbances which took place in the month of August 1942, the telegrams which, the railway officers sent to Rosera and Samastipur did not reach those places till sometime in September 1942. After waiting for sometime, the railway company sold the 189 bags of garlic by auction on 9-9-1942. A sum of Rs. 1000 only was realised as the sale proceeds of the garlic. There was then some correspondence between the plaintiff and the railway company, the latter offering to the former a sum of Rs. 181 and odd annas only as being the surplus sale proceeds in favour of the owner of the goods, exclusive of wharfage charges which the railway company said that they were entitled to get. Thereafter, the plaintiff brought the present suit against the Chettys and the railway company. It was alleged that they had been guilty of illegal conversion of the goods and were, therefore, liable to reimburse the plaintiff for the loss sustained. The plaintiff wanted a joint decree against both the railway Company and the Chettys.

The learned Munsif who tried the suit in the first instance gave a decree to the plaintiff both against the railway company and the Chettys for the total sum claimed by the plaintiff including damages. Then, there was an appeal to the learned District Judge and the learned Additional District Judge who heard the appeal came to the finding that the railway company was not liable at all and that the Chettys were liable not to the extent claimed by the plaintiff, but to a lesser extent. The learned Additional District Judge deducted from the price of the garlic the sum of Rs. 200 which had already been sent by the Chettys by means of the telegraphic money order referred to above. He also deducted from the price certain small amounts which the plaintiff bad charged on account of "gosala", "thakurbari", etc. The learned Additional District Judge found that these items did not properly form part of the price of garlic and could not be charged by way of business custom or usage. He further deducted the sum of Rs. 181.5-0 which represented the surplus sale proceeds and was lying with the railway company. The learned District Judge accordingly gave a modified decree to the plaintiff.

Dr. D.N. Mitter appearing for the appellant has contended before us that the finding of the learned Additional District Jude regarding the liability of the railway company is wrong and that the railway company is liable to reimburse the plaintiff for the loss that he had sustained. The question raised on behalf of the appellant has to be considered with reference to certain sections of the Railways Act under which the railway company claimed protection in the present case. It will also be necessary to refer to certain rules made u/s 47, Railways Act. But before I do so, it is necessary to clear the ground by stating the findings of fact which have been arrived at by the final Court of fact. One of-the questions which is important in the present case is if the goods in question were perishable or not. Different legal consequences will arise according as the goods were perishable or not. The learned Munsif had found that the goods were not perishable, because the railway company had not sold the garlic at once or within 24 hours. He held that the railway company had treated the goods as not perishable and, therefore, the protection which the railway company could claim was such protection as was available to the railway company in respect of the goods which are not perishable. The learned Additional District. Judge has, however, come to the finding that the goods were in fact perishable, the railway company was entitled to such protection as was available to them in respect of perishable goods. The learned Additional District Judge has carefully considered the evidence in the record and has come to the finding that the evidence shows beyond any doubt that the garlic was not merely perishable, but was actually perishing from before the time when it was sold. The learned District Judge has particularly referred to the evidence of Mr. Nair, Assistant Traffic Superintendent, who supervised the sale of the garlic by auction. This officer had stated that he found that the garlic had already been damaged to a great extent when the sale took place. The finding arrived at by the final Court of fact on the nature of the goods is a (finding of fact and is binding on us in second appeal. Furthermore, I am of the opinion that the learned Munsif approached the case from a wrong point of view. He held that the goods were not perishable merely because the railway company had not sold the goods at once or within a very short time. I have already stated that the goods were received at Hindupur on l-8-1942, and, were sold on 9-9-1942. The mere fact that the railway company did not sell the goods at-once or within a very short time does not necessarily change the nature of the goods. Whether the goods are perishable or not depends on the nature and character of the goods, and perishability may be one of degree; some goods may perish very soon and others may take a little-longer time, though perishable by its nature means subject to speedy decay. The nature of the goods does not depend on the time the railway company took in disposing them of. For example fresh fruits like mangoes and lichis are undoubtedly perishable goods. The nature does not undergo a change merely because the railway company does not sell them at once or within 24 hours. For these reasons, I am of the view that the learned Additional District Judge has rightly found that the goods in question-were perishable goods.

I now come to the other question, namely, what protection is available to the railway company in respect of these perishable goods. Reference has been made to Rules 55 and 56 Indian Railways Act. I do not propose to give in detail the terms of Section 55, Railways Act, as, in my opinion, the present case, is governed by "Section 56. That section relates to disposal of unclaimed things on a railway. Sub-section (i) says, among other things, that

when goods have borne into the possession of a railway administration for carriage or otherwise and are hot claimed by the owner or other person appearing to the railway administration to be entitled thereto, the railway administration shall, if such owner or person is known, cause a notice to be served upon him, requiring him to remove the goods,

Sub-section (2) says that

if such owner or person is not known or the notice cannot be served upon him or he does not comply with, the requisition in the notice the railway administration may, within a reasonable time, subject to the provisions of any other enactment for the time being in force, sell the goods as nearly as may be under the provisions of the last foregoing section, rendering the surplus, if any, of the proceeds of the said to any person entitled-thereto.

In the case before us, the railway company knew only that Chulhai Naik was the consignor and Bhagwan Mahton and Jugeshwar Mahton were the consignee. The address of these persons was not known to the railway company. It has been found by the final Court of fact that railway receipt which the plaintiff obtained was not produced before the railway company this railway receipt had certain endorsements in favour of the Chettys. But the railway company was not in a position to know that" the Chettys were entitled to receive the goods. Not knowing the address of either the consignor or the consignee the railway company made enquiries from the despatching station, namely, Rosera, in order to find out the address of the the consignor. These enquiries, however, did not yield any result, because the telegrams sent were not received due to the civil disturbances which were taking place in the district of Darbhanga at the time. That being the position, the railway company was not in a position to know who the owner or person entitled to the goods was; nor was the railway company in a position to serve any notice on such owner or person. In these circumstances, Sub-section (2) of Section. 56, Railways Act, came into play and the railway company was entitled to sell the goods within a reasonable time, subject, however, to two conditions namely, (1) subject to the provisions of any other enactment for the time being in force and (2) complying as nearly may be with the provisions of the preceding section, namely, Section 55, Railways Act. In respect of perishable goods Section 55 allows the railway administration to sell them by public auction at once. No notice either to the owner or to the consignee is necessary in respect of perishable goods; nor is it necessary to publish a notice of the intended auction in any local newspaper. Sub-section (2) of Section 55 says in clear terms that when the goods detained under that section are perishable goods, the railway administration may sell them at once. In the case before us the railway company did not sell the goods at once; they tried to find out the address of the consignor and the consignee and they also waited for sometime to see if anybody turned up to take delivery of the goods. When the railway company found that nobody was claiming the goods, and the goods were already suffering damage and deterioration and were likely to perish completely, they took steps to get them sold by public auction. Before doing so, a notice of the intended auction was circulated to all local merchants. All these steps were taken at the end of the first week of August. At the first attempt no merchants turned up to buy the goods. It was only at the second attempt that the goods were sold for a sum of Rs. 1000 even then on the undertaking that the railway company would supply a wagon to the buyer to take the goods away from Hindupur. Reference may also be made in this connection to certain rules made u/s 47, Railway Act. Rule 13 of the said rules says that subject to the exception mentioned in Rule 18 unclaimed goods shall be kept on hand at the station to which invoiced for a period of not less than one month during which time the notice prescribed in Section 56, Sub-section (1), Railways Act, will, if possible, be served upon the person appearing entitled thereto. The exception contained in Rule 18 relates to perishable articles. That rule lays down that unclaimed perishable articles may be disposed of by the station master of the station at which they may be left after the expiry of 24 hours or earlier if they are, or are likely to become, offensive. Then, there is Rule 21 which says that public sales by auction shall be held from time to time of all unclaimed or lost property which has remained in the possession of the railway administration for over six months. At least 15 days'' previous notice of each auction shall be given by advertisement in a newspaper. Learned Counsel for the appellant has very strongly contended before us that the railway company had not complied with these rules inasmuch as no advertisement in a local newspaper was published regarding the intended auction. The Court of appeal below has found that there is no local newspaper which is published in Hindupur. The matter can, however, be looked at from another point of view. With regard to perishable goods the relevant rule is Rule 18. It is an exceptional rule, which relates only to articles of a perishable nature. That rule says that the station master is entitled to sell by auction such goods after the expiry of 24 hours; he may even sell them earlier if they are likely to become offensive. The railway company was, therefore, entitled in the present case to sell the goods by auction without any advertisement of the intended auction in a local newspaper. The railway company did, however, take the precaution of giving wide publicity to the intended auction by circularizing a notice to the local merchants). In my opinion, the railway company is protected u/s 56, Railways Act, and there has been no breach of the "rules made u/s 47, Railways Act.

The railway company are not, therefore, liable, and the appeal so far as the railway company are concerned must be dismissed with costs.

Then remains the question of the liability of the Chettys. There has been no appearance on behalf of the Chettys before us, and learned Counsel for the appellant has frankly conceded that he does not challenge the finding of the learned Additional Judge with regard to the deduction of the sum of Rs. 200 which the Chettys had sent to the present appellant by telegraphic money order; nor does he challenge the small items regarding "gosala" "thakurbari" etc., which the learned Additional District Judge has found did not properly form part of the price of the garlic. Learned Counsel has, however, contended that the learned Additional District Judge was wrong in giving a deduction for the sum of Rs. 181-5-0 which is lying in deposit with the railway company. He has also contended that the appellant should have been given damages which he had claimed, particularly when the Chettys did not appear to contest the claim of the appellant. As to the sum of Rs. 181-5-0, the contention of learned Counsel for the appellant is that the railway company was demanding charges for wharfage and the sum of Es. 181-5-0 was not a sum which was payable to the appellant irrespective of the question of the payment of wharf age charges, In my opinion, the contention of learned Counsel for the appellant with regard to this sum of Rs. 181-5 0 is correct. The Chettys had agreed to purchase the 189 bags of garlic. Their plea that the garlic was not of the required quality has not at all been substantiated. As a matter of fact, the Chettys did not appear to contest the claim of the appellant. They are, therefore, liable for the full price of the garlic which they had contracted to buy, and no deduction in respect of Rs. 181-5-0 lying with the railway company can be given in favour of the Chettys. I am saying nothing here about the right of any of the parties to the said sum of Rs. 181-5-0 which is lying in deposit with the railway company. As to the claim for damages, the learned Additional District Judge has rightly pointed out that the appellant did not explain what further loss or damage he had sustained apart from the price of the garlic. He has further pointed out that no damages by way of interest were claimed by the appellant.

In the result I would allow the appeal against the Chettys only to the extent that the deduction directed to be made by the learned Additional District Judge in respect of the sum of Rs. 181-5-0 should be set aside. The final result, therefore, is that the appeal against the railway company is dismissed with costs, and the appeal as against the Chettys is allowed to the extent indicated above. As against the Chettys there will be no order for costs.

Ray J.

I agree.