Authored By : Ernest Edward Fletcher, Nalini RanjanChatterjee

Ernest Edward Fletcher, J.

1. This Rule was obtained by the Plaintiff in a suit in theCourt of Small Causes at Howrah calling upon the Opposite Party, the EastIndian Railway Co., to show cause why the decree of the Court below should notbe set aside as prayed in the petition. The suit was brought by the Plaintiffagainst the East Indian Railway Co. to recover damages for not having deliveredten bags of mustard seed which formed part of a parcel that had been consignedto Howrah on account of the Plaintiff. The case set up, as far as we have beentold, was that the East Indian Railway Co. offered to the Plaintiff ten bagswhich they believed formed a portion of the consignment of the Plaintiffsgoods but that the Plaintiff refused to take delivery thereof stating that theywere not 1 is goods. The case came on for trial before the learned Judge andthe case put forward by the Plaintiff was that these goods were not his and, inthe evidence before the Judge, he come to the conclusion that the ten bags weremissing or lost. If there is evidence to justify that finding, we cannotinterfere with it. We have heard from the learned Vakil for the Applicant whatcan be said against that and in our opinion, there was evidence which justifiedthe learned Sub-Judge in coming to the conclusion that the goods were lost ormissing. If the goods were lost or missing, then sec. 77 of the Indian RailwaysAct (IX of 1890) would apply and the Plaintiff was bound to serve notice asprovided by that section and the notice that the statute requires is notice onthe Railway Administration or, in the case of a Railway administered by aRailway Company, on the Agent in India of the Company. The Agent in India doesnot mean any person employed by the Railway Company; it means the particularperson who holds the title and office of the Agent of the Railway Company inIndia. There is no doubt that in this country everybody knows who the Agent isof such a big Railway Company as the East Indian Railway Company" which isincorporated in England. In the present case, the notice--according to thelearned. Sub-Judge and that finding is not quarrelled with--was served on theGoods Superintendent, a person holding a comparatively subordinate position andit was also found as a fact that there was no evidence to show that the noticeever reached the Agent of the Company. On those findings, in my opinion, thedecision in the case of Janaki Das v. The Bengal Nagpur Railway. Company 16C.W.N. 356 (1912), is, conclusive upon this matter.. That is a decision of thelearned Chief Justice and my learned brother who is now sitting with me. Itseems to me impossible to distinguish this case from the part of that casewhich had reference to the two lost bags. Then, it is said that the notice wasproperly served on the strength of a decision in V. Woods v. Meher Ali Bepari13 C.W.N. 24 (1908), which is a decision of Mr. Justice Holmwood and Mr.Justice Sharfuddin. Speaking for myself, I prefer the decision of Mr. JusticeHarington and Mr. Justice Carnduff in the case of East Indian Railway Co. v.Babu Madho Lal 17 C. W. N. 1134 (1913), and I may point out in passing that thedecision of Mr. Justice Holmwood and Mr. Justice Sharfuddin in V. Woods v.Meher Ali Bepari 13 C.W.N. 24 (1908) is not consistent with the decision of thelearned Chief Justice and my learned brother who is now sitting with me in thecase in Janaki Das v. The Bengal-Nagpur Railway Company 16 C.W.N. 356 (1912).But even if we are bound by the decision in V. Woods v. Meher Ali Bepari 13C.W.N. 24 (1908), the facts in this case are not sufficient to bring it withinthe decision of Mr. Justice Holmwood and Mr. Justice Sharfuddin, because thelearned Judges in that case came to the conclusion that the notice which hadbeen served upon the Traffic Manager did, in fact, find its way into the handsof the Agent. The learned Sub-Judge in this case has found that there isnothing to show that the notice served on the Goods Superintendent ever foundits way into the hands of the Agent. Then, there was another point that wasfaintly suggested, namely, that the Goods Superintendent promised to pay aliquidated sum to the Applicant as the value of the ten bags. There is nothingto show that the Goods Superintendent is a proper person to bind the EastIndian Railway Company with such a promise, nor is it suggested that it evercame to the knowledge of the Agent. It seems to me quite impossible to holdthat the East Indian Railway Company should be bound by an admission orstatement made by any person employed by them. I am of opinion that, on thefindings made by the learned Judge of the Court below, the present Rule mustfail. The Rule is accordingly discharged with costs, one gold mohur.

Nalini Ranjan Chatterjee, J.

I agree.

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Radha Kishen Chooni Lalvs. The East Indian Railway Co.(28.11.1913 - CALHC)