Union of India v. C. L. Vareed Company — 1969 DIGILAW 9 (KER)

ORDER V.R. Krishna Iyer, J. 1. While the revision petition relates only to a sum of Rs. 100 odd, claimed in a small cause suit, the point of law involved i.e., of the liability of the Railway Administration for loss, to an endorsee or consignee of a Railway Receipt is one on which there is much diversity of thought and divergence of views expressed by the Judges of the superior courts. Where the law is lost in a maze of conflicting precedents and the subject matter is one which affects the common people in their ordinary life, the situation is ripe for the legislature to speak, re-state and simplify the rule of law that must apply uncertainty and abstruseness being besetting sins of which all legislation in a democratic society must be purged. But, till the legislature has the time to do this, Courts have to endeavour to state and apply what they regard to be the correct law. I proceed to do so, conscious of the fact that case-law on the subject has reached the point of diminishing returns. 2. A consignment of Kesari, dhal despatched from Furwah to Trichur arrived in a damaged state and the plaintiff, the endorsee of the Railway Receipt from the consignor who was 'also the consignee, as the consignee was shown as ' self claimed Rs. 116.36 as damages. The defendant, the Union of India, representing the Railway Administration, offered Rs. 49.39 and, on refusal by the plaintiff to receive that sum, the latter was driven to a suit whereupon the Union of India, not only disputed the quantum of damages but also the competency of the plaintiff to maintain the action. There is now no quarrel about the quantum of compensation and so the only issue surviving for decision is the right of the endorsee who, in this case, is admittedly only a commission agent, to institute the suit for damages. 3. The case of the Railway Administration is that, a commission agent cannot sue to recover the loss caused to goods carried by the Railway even though he be the endorsee of the Railway Receipt. According to it, only the owner of the goods has the right to claim damages because the loss is sustained only by him. 3. The case of the Railway Administration is that, a commission agent cannot sue to recover the loss caused to goods carried by the Railway even though he be the endorsee of the Railway Receipt. According to it, only the owner of the goods has the right to claim damages because the loss is sustained only by him. The plaintiff-respondent, on the other hand, urges that the endorsement of the Railway Receipt by itself gives him the right to claim the goods and, in default, damages and the question as to whether he is the owner of the goods or only the agent if the owner is immaterial. 4. It is curious that the Union of India has contested the competency of the plaintiff to institute the suit, thus taking a stand contrary to what is implied in the offer to pay Rs. 49.39 in full quittance of the plaintiff's claim. Nor has the owner claimed damages till now from it. Of course, this is a feature found in other reported cases, possibly because the Railway's sense of consistency sometimes gets subordinated to the call of expediency. Be that as it may, it is still open to the defendant to challenge the right of the plaintiff to sue. A fairly exhaustive treatment of the legal question we are concerned with is found in J. K. M. Yacob Rowther Sons, Mettupalayam v. Union of India A.I.R. 1965 Madras 162, Shah Mulji Deoji v. Union of India A.I.R. 1957 Nagpur 31, Commissioners for the Port of Calcutta v. General Traaing Company, Ltd. A.I.R. 1964 Calcutta 290, Ibrahim Isaphai v. Union of India A.I.R. 1966 Gujarat 6, Thakur Prasad v. Union of India A.I.R. 1960 Patna 419, Dominion of India v. Messrs. Gay a Perishad Gopi Narain A.I.R. 1956 Allahabad 538, Union of India v. Therali lsaji Bohari I.L.R. 1956 Bombay 600, Morvi Mercantile Bank Ltd. v. Union of India A.I.R. 1965 S.C. 1954, and The Union of India v. The West Punjab Factories Ltd A.I.R. 1966 S.C. 395, not to speak of the numerous earlier cases. Not infrequently the same High Court has struck contradictory notes and different High Courts have expressed opinions running counter to one another. Of course, the Supreme Court has spoken on the subject, although not covering all the various facets, in relation to a claim put forward by a consignee or endorsee of a Railway Receipt. Not infrequently the same High Court has struck contradictory notes and different High Courts have expressed opinions running counter to one another. Of course, the Supreme Court has spoken on the subject, although not covering all the various facets, in relation to a claim put forward by a consignee or endorsee of a Railway Receipt. Nevertheless, the guiding principles can be gleaned from the Supreme Court judgments; and nuances of thought and semantic refinements expressed in other decisions can no longer prevail to the extent they conflict with them, even though in one such case it is in a minority judgment. I have only to rest my judgment on these two Supreme Court rulings although I shall advert, also to some of the decisions of the High Courts. But before all that, the basic principles involved in the law on the subject need to be stated briefly. The responsibility of the Railway Administration for damage to goods, delivered to it to be carried to a specified destination, has been statutorily settled by section 72 of the Indian Railways Act as that of a bailee under sections 151, 152 and 161 of the Indian Contract Act. A bailee is, of course, responsible to the bailor for loss or damage and has' the obligation to deliver the goods to the bailee according to the bailor directions. (See section 160 of the Contract Act.), The bailee in all these cases is the Railway Administration; but who is the bailor vis-a-vis this bailee? Section 39 of the Sale of Goods Act lays down a rule of presumption, relevant in this context: ''Where in pursuance of a contract of sale the seller is authorised or required to send the goods to the buyer, delivery of the goods to a carrier whether named by the buyer or not, for the purpose of transmission to the buyer is prima facie deemed to be a delivery of the goods to the buyer. " This accords with the ordinary rule that where a person chooses another for doing any work he constitutes the latter as his agent and when the seller, by legal fiction, puts the carrier nominated by the buyer in charge of the transmission of the goods the carrier becomes the agent of the buyer for this purpose and actual delivery to the carrier is constructive delivery to the buyer. The common carrier's liability, as stated by Benjamin on Sales (8th Edition page 737) also is to the effect that delivery to a common carrier, and a fortiori to one specially designated by the buyer, would be delivery to the buyer himself; the carrier being, in contemplation of the law, the bailee of the person to whom, and not of the person by whom, the goods are sent. It follows, therefore that where property in the goods has passed to the buyer on or anterior to delivery to the Railway, the latter has ordinarily to be regarded as the bailee of the buyer who has become the owner. But there are cases where such delivery to a carrier may not involve transfer of property and cannot constitute the Railway the bailee of any one other than the consignor, because he continues to be the bailor. Where, for instance, a seller delivers goods for conveyance to 'self' the buyer is not in the picture so far as the contract of bailment is concerned and delivery to the carrier cannot imply delivery to the buyer; even if there has been an agreement to buy anteriorly except perhaps where the consignor merely acts as the buyer's agent. Again, where the despatch of goods is to a commission agent it is not the same as a regular purchase and therefore cannot constitute the Railway the bailee of the commission agent. The Administration continues to be responsible to the consignor-owner. Let us take a third case where the consignee is 'self' and subsequent to the loading a sale transaction takes place; delivery to the buyer can be effected by endorsement of the Railway Receipt, because a Railway Receipt is also a document of title to goods [section 2 (4) of the Sale of Goods Act] and endorsement thereof has, between them, the effect of giving delivery of the goods, for it clothes him with the right to claim goods from the bailee. Who can, then enforce the liability for loss? Other possibilities where the sale occurs even prior to the booking can be envisaged and then also the right to recover damages may raise some not-so-easy questions. Who can, then enforce the liability for loss? Other possibilities where the sale occurs even prior to the booking can be envisaged and then also the right to recover damages may raise some not-so-easy questions. Again, what is the legal position as against the bailee, if the name of the buyer is not shown as the consignee in the original Railway Receipt or if there is no sale at all connected with the goods carried? If it is to 'self' to start with, the contract with the Railway is only to deliver to the consignor at the destination; and, without the bailee agreeing to deliver to the endorsee, is the Railway Administration obliged to deliver to the latter? Yes because the conditions of the contract printed on the Railway Receipt as also the obligations of the bailee under the law of bailment to deliver according to the bailor's directions include a promise to give delivery to the agent of the consignee, and the endorsee can be treated at least as an agent authorised to claim delivery and give full discharge from liability on such delivery. The following clause in the conditions of the Railway Receipt may be usefully reproduced: "That the Railway receipt, given by the Railway Administration, for the articles delivered for conveyance must be given up at destination by 'the consignee to the Railway Administration or the Railway may refuse to deliver, and the signature of consignee or his agent in the delivery book at destination shall be evidence of complete delivery. If the consignee does not himself attend to take delivery, he must endorse on the receipt a request for the delivery to the person to whom he wishes it made and if the receipt is not produced the delivery of the goods may at the discretion of the Railway Administration be withheld until the person entitled in its opinion to receive them has given an indemnity to the satisfaction of the Railway Administration." But if the right of the endorsee to demand delivery is by, virtue of such limited authority, does it extend to claiming damages for loss or damage to the goods or, in such an event, should the principal, that is the consignor himself, step in to bring the suit to enforce the contract? Kausalendra Rao, J. in his minority judgment in Shaft Mulji Deoji v. Union of India A.I.R. 1957 Ngapur 31 held the view that the endorsee as such, had no more right than to claim delivery as agent and that he was not entitled to sue the Railway for enforcing the contract. The Allahabad High Court, in A.I.R. 1954 Allahabad 747 appears to have taken the same view. The Madras High Court has also ruled that an endorsee, without more, of a Railway Receipt can maintain an action against the Railway for loss caused to the goods only if he is able to show that there has been in his favour a transfer of title to the goods, which the said Railway Receipt represents, and that He is holding the receipt, which is considered to be a document of title, as owner and not as agent. [The Union of India v. G. V. Parthasarathy Chetty 1967 (1) M.L.J. 453 and J. K. M. Yacob Rowther Sons, Mettupalayam v. Union of India A.I.R. 1965 Madras 162.] An opposite view has been taken by a number of Judges. The trouble, in my humble view, arises because there has been a mixing up of the various aspects of rights and obligations packed into a Railway Receipt. A Railway Receipt has many legal facets in law and life. Of course, primarily, it denotes a document evidencing receipt of the goods accepted for transmission and thus creates a bailment; but it is also a repository of a contract of carriage of goods and here the emphasis is upon the contractual rights and liabilities undertaken by the carrier. Lastly, it has been treated, by statutory attribution, as a document of title to goods and endorsement thereof may, under certain circumstances, effectuate transfer of title to goods and the consequent right to claim damages in the event of loss, destruction or deterioration of the goods concerned. 5. A bailee is liable only to the bailor. A contract can be enforced only by a party to the contract except in special cases. An owner may claim damages for loss of his goods, but his agent authorised to take delivery only cannot. Rights under a contract, as distinguished from obligations, can be assigned although a mere claim for damages, being but a right to sue, cannot be assigned. An owner may claim damages for loss of his goods, but his agent authorised to take delivery only cannot. Rights under a contract, as distinguished from obligations, can be assigned although a mere claim for damages, being but a right to sue, cannot be assigned. The consignee and the endorsee of the Railway Receipt may be able, in law, to sue on the contract if we can spell out an assignment of the rights under the contract in their favour. Ordinarily, the consignee (and also the endorsee) is entitled to claim delivery as per the terms of the contract itself which obliges the Railway to deliver the goods to the consignee or to any one else who is authorised to take delivery on behalf of the consignee. However, in the event of default, who is the person competent to sue? Going by the contract and the obligations thereunder, read in the light of sections 151, 152 and 161 of the Indian Contract Act and section 72 of the Indian Railways Act, as also the right of an owner of goods to claim damages for loss, we reach the conclusion that such consignee or endorsee of the Railway Receipt as is the transferee of the title to the goods or the rights under the contract can sue the Railway in his own right. Conversely, a consignee or endorsee, who does not acquire the property in the goods or the rights under the contract (often means the same thing), cannot maintain an action for damages in the event of loss or deterioration of the goods. This conclusion is reinforced by the ruling reported in Union of India v. G. V. Parthasarathy Chetty 1967 (1) M.L.J. 453 which, in turn, relies on a ruling of the Supreme Court reported in Union of India v. The West Bengal Factories Ltd. A.I.R. 1966 S.C. 395. The Patna High Court in Thakkur Prasad v. Union of India A.I.R. 1960 Patna 419 also has held that where the consignee is merely a commission agent of the consignor, the latter alone can sue. The Patna High Court in Thakkur Prasad v. Union of India A.I.R. 1960 Patna 419 also has held that where the consignee is merely a commission agent of the consignor, the latter alone can sue. The Madras view, if I may use that handy expression, is clear from the following excerpts: "A railway receipt will no doubt entitle the person who is named in it as the consignee or an endorsee to receive the goods; by the terms of the contract of bailment such a person could even relieve the railway of all liability. But where he has not so done and where the question of suing for loss arises, the principle must be that he who sustains the loss must sue. By way of example, we may cite the case of an agent duly authorised who can give a discharge of a liability due to his principal; but the person to enforce the liability will be the principal only." Again, Their Lordships observed: "Except in cases where the consignor (sic) is named, a consignor ordinarily can be regarded as the owner of the goods. Even if the railway receipt is issued or endorsed in favour of another, the consignor can show that title to the goods continues to vest in him. In such a case, he would be the person incurring the loss and as the bailor and a party to the contract, could institute the suit. But where under a contract of sale, the property in the goods has passed on delivery to the railway, the latter receives it as the agent of the buyer. The bailor will then be deemed to be the buyer himself. The fact that the contract of carriage had been entered into by the sellor or consignor, would not in that case disentitle the consignee to sue, as in this country a third party for whose benefit the contract had been made, could sue on it." Still later, the Court observed: "It can be inferred from the nature of the liability cast on the railway by section 72, that it will only be answerable to the bailor, except in cases where they have been made to deliver over to a paramount claim. Only one among them, consignor and consignee can be the bailor. 'The question in each case, therefore, will be as to who has title to the goods. Only one among them, consignor and consignee can be the bailor. 'The question in each case, therefore, will be as to who has title to the goods. In this connection, we are of opinion that the decision of Phillips, J. in A.I.R. 1924 Mad. 517 lays down the correct rule. If the consignor who had parted with the title to the goods is held nevertheless to be entitled to sue for damages caused to the goods, it would mean that he having obtained the full price for the goods sold to the buyer, would still be enabled to obtain further amount by way of damage from the railway an amount to which he would not be legitimately entitled." 6. The Gujarat High Court has fallen in line with the view that a consignee and a fortiori, an endorsee who is not the owner of the goods but to whom the goods are consigned for sale, cannot maintain a suit for loss in respect of damages caused to the goods in transit. Of course, the opposite view point has been powerfully presented by the Allahabad High Court in the ruling reported in Dominion of India v. Messrs. Gay a Parishad Gopi Narain A.I.R. 1956 Allahabad 338. Other rulings taking the same view like the one reported in Governor-General in Council v. Jaynarain Riotila A.I.R. 1948 Patna 36 and Bhayyalal Ramratnam Jaiswal v. Agent and General Manager, B.N. Railway A.I.R. 1944 Nagpur 362, also have been referred to by the Allahabad High Court in support. According to the Full Bench of the Allahabad High Court, a consignee who is not the owner of the goods but to whom the goods have been consigned for the purpose of sale on commission basis is entitled to maintain a suit for loss in respect of damage caused to the goods in transit, based upon the ground that there is nothing to prevent the consignor and the Railway Administration from entering into a contract for the benefit of a third person .Of course, in all these cases, the Railway undertakes to deliver the goods to any other person directed by the consignee. But the question is, does the obligation so undertaken by the Railway Administration operate in favour of the prospective consignee or endorsee or only in favour of the consignor, the contracting party? But the question is, does the obligation so undertaken by the Railway Administration operate in favour of the prospective consignee or endorsee or only in favour of the consignor, the contracting party? It may well be that the consignor or consignee may havejiie right to transfer the benefit of the fight to take delivery of the goods at the destination. But, is it the same thing to say that a person acquires such a right and that he acquires the totally different right to sue for breach of contract of bailment? Of course in Bhayyalal Ramratnam Jaiswal v. Agent and General Manager, B.N. Railway A.I.R. 1944 Nagpur it was held that the endorsement on the back of the Railway receipt entitles the endorsee to claim delivery and in default to bring a suit. 7. In Morvi Mercantile Bank Ltd. v. Union of India A.I.R. 1965 S.C. 1954, the real question that fell for determination was as to whether a valid pledge of goods could be made by its owner by transferring the Railway Receipt representing the said goods. The owner-consignor consigned the goods to 'self and endorsed the relevant Railway Receipt in favour of a Bank against an advance of Rs. 20,000 made by the Bank to the owner-firm. As the Railway failed to deliver the goods, the Bank, as the endorsee of the said Railway Receipt for valuable consideration, filed a suit for damages. The Civil Judge, while finding the Railway in default, held that the Bank as endorsee of the Railway Receipt was not entitled to sue for the loss of the consignments. In appeal, a Division Bench of the Bombay High Court held that the Bank as endorsee of the Railway Receipt was a pledgee of the goods and suffered loss to the extent of the loss of its security and was, therefore, entitled to sue for compensation for the loss suffered by it by reason of the loss of the consignments, but the decree was only for a sum equal to the advance made by the Bank. The Supreme Court considered the following points pressed by the appellant: "(1) In law the endorsement of a railway receipt does not constitute a pledge; (2) an endorsement of a railway receipt for consideration constitutes at the most a pledge of the railway receipt and not the goods covered by it, and, therefore, in the present case the Bank acquired only a right to receive the goods covered by the relevant receipts from the railway; and (3) if the endorsement of the railway receipts does not constitute in law a pledge of the goods, the Bank has no right to sue for compensation, as, though the proprietary right in the goods was transferred to it, the right to sue under the contracts did not pass to it. " Their Lordships held that the delivery of goods by one person to another as security for payment of a debt is a pledge and therefore, ordinarily, delivery of tangible property is essential to a true pledge, but in law symbolical possession may take the place of physical possession; and so Subba Rao, J. (as he then was) speaking for the majority, considered whether the Indian law equates the Railway Receipt with the goods covered by it for the purpose of constituting delivery of goods within the meaning of the Contract Act and observed that, "A careful scrutiny of section 178 of the Contract Act and the other relevant provisions thereof indicates that the section assumes the power of an owner to pledge goods by transferring documents of title thereto and extends the power even to a mercantile agent. If a railway receipt is a document of title to the goods covered by it, transfer of the said document for consideration effects a constructive delivery of the goods."t In the end the majority expressed itself as follows: "An owner of goods can make a valid pledge of them by transferring the railway receipt representing the said goods." 8. If a railway receipt is a document of title to the goods covered by it, transfer of the said document for consideration effects a constructive delivery of the goods."t In the end the majority expressed itself as follows: "An owner of goods can make a valid pledge of them by transferring the railway receipt representing the said goods." 8. In the course of the argument it would appear that another point was touched upon and this is reflected in the observations of Their Lordship in the following paragraph: "The Indian decisions cited at the Bar do not deal with the question whether a valid pledge of goods can be effected by transfer of documents of title, such as a railway receipt, representing the goods; they were mainly concerned with the question whether an endorsee of a railway receipt for consideration could maintain an action on the basis of the contract embodied in the said receipt: See Firm of Dolatram Dwarkadas v. Bombay Baroda and Central India Railway Co. (I.L.R. 38 Bom. 659; A.I.R. 1914 Bom. 178); Shah Mulji Deoji v. Union of India (A.I.R. 1957 Nag. 31); (A.I.R. 1964 Cal. 290) and Union of India v. Takerali, (58 Bom. L.R. 650). These raise a larger question on which there is a conflict of opinion. In the view we have taken on the question of pledge, it is not necessary to express our opinion thereon in these appeals. " 9. It is thus clear that the majority did not deal with the question which concerns us in the revision petition. However, Ramaswami, J., speaking for himself, and Mudholkar, J., came to a contrary conclusion on the question as to whether a pledge could be created, in law, of the goods merely by transferring the Railway Receipt because, according to Their Lordships, "the legal position with regard to the pledge of railway receipts is exactly the same in Indian law as it is in English law and consequently the owner of the goods cannot pledge the goods represented by the railway receipts in the present case unless the railway authorities are notified of the transfer and they agree to hold the goods as bailee for the pledgee." 10. After expressing this opinion that there is no valid pledge in favour of the plaintiff-Bank, the 'minority' Judges proceeded to deal with the question "whether the plaintiff can sue on the contract of bailment even though there is no valid pledge of the goods in favour of the plaintiff". The appellants apparently pressed the contention that the plaintiff-Bank being the endorsee of the railway receipt was entitled to sue the defendant for compensation for loss of the goods. "We are unable to accept this agrument as correct" is the pithy answer of the minority Judges. Dealing with negotiability of the railway receipts Their Lordships pointed out that while such documents are transferable, they are not negotiable instruments unless there be a trade usage to that effect. They are promises by the seller to deliver or authorise the buyer to receive possession but not negotiable, in the sense that the transferee can in his own right maintain an action: "It is manifest that there are no rights created merely by reason of the endorsement of a Railway Receipt between the endorsee and the railway company ..the only remedy of the endorsee being against the endorser. The endorsee may bring an action as an assignee of the contract of carriage but then the assignment has to be proved as in every other case. It is true that by reason of section 137 of the Transfer of Property Act, the provisions relating to the transfer of an actionable claim do not apply to a railway receipt, and the assignment need not be according to any particular form, but a railway receipt is not like a negotiable instrument [See Mercantile Bank of India Ltd. v. Central Bank of India Ltd., (65 Ind. App. 75 at p. 91, A.I.R. 1938 P.C. 52 at p. 58).] It is also apparent that subject to the exceptions mentioned in sections 30 and 53 of the Indian Sale of Goods Act, 1930 and section 178 of the Contract Act, 1872, its possessor cannot give a better title to the goods than he has. The negotiation of the railway receipt may pass the property in the goods, but it does not transfer the contract contained in the receipt or the statutory contract under section 74-E of the Indian Railways Act. Negotiability is a creature of statute or mercantile usage, not of judicial decisions apart from either. The negotiation of the railway receipt may pass the property in the goods, but it does not transfer the contract contained in the receipt or the statutory contract under section 74-E of the Indian Railways Act. Negotiability is a creature of statute or mercantile usage, not of judicial decisions apart from either. So, in the absence of any usage of trade or any statutory provision to that effect, a railway receipt cannot be accorded the benefits which flow from negotiability under the Negotiable Instruments Act, so as to entitle the endorsee as the holder for the time being of the document of title to sue the carrier the railway authorities in his own name. If the claim of the plaintiff is as an ordinary assignee of the contract of carriage, then the plaintiff has to prove the assignment in his favour." This view of the minority Judges of the Supreme Court certainly upholds the contention of the Railway that an endorsee as such, without being an assignee of the rights under the contract, is not entitled to maintain an action for loss of goods. Where the majority has not spoken on a proposition of law which has been expressly dealt with by the minority, the High Court is bound by the observations of the minority of the Supreme Court or at least must bow to it out of great deference. The rulings reported in Padrnanahha Ravi Varma Raja v. Dy. Tahsildar, Chittur 1963 K.L.T. 15 Para 170 and Ranjit Kumar Chakravarty v. State of West Bengal A.I.R. 1958 Calcutta 551, take this view and I agree. 11. The ruling reported in Shamji Bhanji and Co. v. North-Western Railway Co. A.I.R. 1946 Bombay has been approved by Ramaswamy, J., in the above said minority judgment. Bhagwati, J., as he then was, had to deal, in the Bombay case, with an action by the plaintiff, a firm carrying on business in salt-petre, etc., which sold some chemicals to S agreeing to supply the Goods at Peshwar. They booked the goods by rail but the Railway Receipt obtained by P as consignor was drawn in favour of 'selves'. Thereafter, it underwent a number of endorsements and the clause at the back of the Railway Receipt itself obliged the railway to deliver the goods to the consignee or to the endorsee. The last endorsee could not take delivery, because the goods had been destroyed. Thereafter, it underwent a number of endorsements and the clause at the back of the Railway Receipt itself obliged the railway to deliver the goods to the consignee or to the endorsee. The last endorsee could not take delivery, because the goods had been destroyed. Thereafter the Railway Receipt was further endorsed in favour of P. The effect of all the endorsements made on the Railway Receipt was thus to constitute the plaintiff, who were the consignees of the railway receipt, the ultimate endorsee of the same, thus entitled on the face of the railway receipt to obtain delivery of the goods. In the suit the Railway disputed the right of the plaintiffs to sue. On the points in controversy the learned Judge ruled that (1) Even though a railway receipt was a document of title to goods, a mere, endorsement thereof was not by itself enough to transfer the property in the goods. Without anything more the endorsement only constituted the endorsee the agent of the consignee for the purpose of taking delivery. (2) The endorsement created rights, if any, between the endorsor and endorsee inter se, but created no rights between the endorsee and the Railway; the only remedy of the endorsee being against the endorsor. (3) That on the facts of the particular case, the property in the goods did not pass from P by the endorsements and so P alone was entitled to sue the Railway, although if the buyer had been shown as the consignee and the property in the goods had passed to him under section 23 of the Sale of Goods Act, at the time of the consignment, such buyer would be deemed to be the person who had entered into the contract of carriage with the Railway through his agent, the consignor and would be the proper party to sue the Railway for the loss. (4) A person not a party to the contract could not sue on the contract, unless the case came within the recognised exceptions; example; a person not a party to the contract could sue on it if he was claiming through a party to the contract or was in the position of a cestui que trust or of a principal suing through an agent or if he claimed under a family settlement. Other propositions with which we are not concerned at all were also dealt with in that case. 12. The Supreme Court spoke on the subject again in the decision in A.I.R. 1966 S.C. 395. Damages were claimed for loss of goods, which were destroyed by fire while in Railway custody. The consignments, five of them, were consigned to J. C. Mills, while in one it was consigned to 'selves' but endorsed to one Iswara Nand. Thus in the first suit, relating to five consignments, the consignor was the plaintiff while in the second suit the endorsee was the plaintiff. In the first suit, the Railway, inter alia, pleaded that only the consignee could sue. Mr. Justice Wanchoo, speaking for a unanimous Court observed: "Ordinarily, it is the consignor who can sue if there is damage to the consignment, for the contract of carriage is between the consignor and the railway administration. Where the property in the goods carried has passed from the consignor to some-one-else, that other person, may be able to sue. Whether in such a case the consignor can also sue does not arise on the facts in the present case and as to that we say nothing. The argument on behalf of the appellant is that the railway receipt is a document of title to goods [see section 2 (4) of the Indian Sate of Goods Act, No. 3 of 1930], and as such it is the consignee who has title to the goods where the consignor and consignee are different. It is true that a railway receipt is a document of title to goods covered by it but from that alone it does not follow, where the consignor and consignee are different, that the consignee is necessarily the owner of goods and the consignor in such circumstances can never be the owner of the goods. The mere fact that the consignee is different from the consignor does not necessarily pass title to the goods from the consignor to the consignee, and the question whether title to goods has passed to the consignee will have to be decided on other evidence. It is quite possible for the consignor to retain title in the goods himself while the consignment is booked in the name of another person. It is quite possible for the consignor to retain title in the goods himself while the consignment is booked in the name of another person. Take a simple case where a consignment is booked by the owner and the consignee is the owner's servant, the intention being that the servant will take delivery at the place of destination. In such a case the title to the goods would not pass from the owner to the consignee and would still remain with the owner, the consignee being merely a servant or agent of the owner or consignor for purposes of taking delivery at the place of destination. It cannot therefore be accepted simply because a consignee in a railway receipt is different from a consignor that the consignee must be held to be the owner of the goods and he alone can sue and not the consignor. As we have said, already, ordinarily, the consignor is the person who has contracted with the railway for the carriage of goods and he can sue; and it is only where title to the goods has passed that the consignee may be able to sue. Whether title to goods has passed from the consignor to the consignee will depend upon the facts of each case and so we have to look at the evidence produced in this case" On the facts of that case Their Lordships held that the consignor in the first case continued to be the owner of the goods even though the consignments had been booked in the name of J. C. Mills. That turned upon the special facts of that case. On this basis the Court held: "This being the nature of the contract between the consignor and the consignee in the present case we have no hesitation in agreeing with the Courts below that the property in the goods was still with the factory (Plaintiff) when the fire broke out on March 8, 1943. Therefore, the ordinary rule that it is the consignor who can sue will prevail here because it is not proved that the consignor had parted with the property in the goods, even though the consignments were booked in the name of the J. C. Mills. Therefore, the ordinary rule that it is the consignor who can sue will prevail here because it is not proved that the consignor had parted with the property in the goods, even though the consignments were booked in the name of the J. C. Mills. " In the second case although Ishwara Nand was only an endorsee, he contended that he was the owner of the goods and that was why the railway receipt was endorsed in his favour by the consignor though it was booked to 'selves In the second place it was contended that as an endorsee of a document of title he was in any case entitled to maintain the suit. The trial Court and the High Court upheld his right to sue on both the points. If he was the owner of the goods, he could sue, but if he was a mere endorsee without title to the suit, could he? The High Court seems to have held that he could, for they said " it was also pointed out that Ishwara Nand was the endorsed consignee and in that capacity he had in any case aright to bring the suit. The correctness of this statement was not challenged before us". Thus the right of an endorsee simpliciter to sue had not been disputed in the Bombay High Court. But in the Supreme Court nothing was mentioned about this aspect and Their Lordships chose to uphold the right to maintain the suit in Ishwara Nand because he was the owner of the goods. Please see the significant omission of the second ground in para 13 of the judgment which runs as follows: ''Thus there are concurrent findings of the Two Courts below that Ishwara Nand was the owner of the goods and that was why the railway receipt was endorsed in his favour. In these circumstances he is certainly entitled to maintain the suit. The contention that the plaintiffs in the two suits could not maintain them must, therefore, be rejected ". My conclusion drawn largely from the Supreme Court dicta is that an endorsee of a railway receipt while he can claim delivery and give discharge on behalf of the consignor or in his own right cannot sue in his own name except where he has the property or sufficient interest in the goods transferred to him by the endorsement. My conclusion drawn largely from the Supreme Court dicta is that an endorsee of a railway receipt while he can claim delivery and give discharge on behalf of the consignor or in his own right cannot sue in his own name except where he has the property or sufficient interest in the goods transferred to him by the endorsement. In short, there can be endorsements and endorsements and only such endorsements as vest a right to the goods that enables an action at his instance. 13. In the present case, there is no evidence to show that the endorsee is either the buyer or the pledgee or the acquirer of any interest in the goods, on the contrary, he is stated to be only a commission agent. If the owner of the goods i.e., the consignor, assigns either the property in the goods or the contract or the chose in action flowing out of the breach of the contract, it is another matter. In the present case, the suit is brought by the endorsee qua endorsee and he is otherwise only a commission agent. 14. However, the way the court below has addressed itself to the question at issue suggests to me that no investigation has been made as to whether the plaintiff has, at any time, acquired either the ownership or any other enforceable interest in the goods which are covered by the railway receipt. If he has acquired such interest or right he may be entitled to maintain the action. On this particular aspect there has been no consideration by the trial court. 15. Ordinarily, therefore, I should have remanded this case for investigation as to whether the endorsee of the railway receipt i.e., the plaintiff, had acquired a right in the goods covered by the document. However, I do not propose to do so because the interference of this Court under section 115 of the Civil Procedure Code, even where the lower court has acted illegally or with material irregularity, should be confined to cases where the illegality or irregularity is such as has occasioned or might Occasion substantial failure of justice. If substantial justice has been done between the parties, it is better to leave the matter there instead of setting aside the decree of the lower court and directing a fresh trial. If substantial justice has been done between the parties, it is better to leave the matter there instead of setting aside the decree of the lower court and directing a fresh trial. Such limitation can be imposed on the exercise of the revisional power and section 25 of the Provincial Small Cause Courts Act, and more so, upon the powers under section 115 C.P.C. A ruling of this Court reported in Salt Nagjee Purushotam and Co. Ltd. v. Chathukutty Rarukutty 1958 K.L.T. 573 supports this proposition and Mulla (C.P.C. Vol. 1, page 517) also takes this view and cites decisions in support thereof. In this case, undoubtedly, the Railway is liable and the only question is to whom they should pay the damages for the loss. Ordinarily, it has to be to the owner of the goods i.e., the consignor. Counsel for the revision-petitioner fairly conceded that the consignor-owner had not put forward any claim. Probably, he does not want to make a claim, now that his agent i.e., the endorsee of the railway receipt, has sued for damages. Therefore, the Railway Administration is called upon to pay damages only to one person although he happens to be the endorsee and there is no injustice in that. On the other hand, it would be unjust for the Administration to escape payment of damages to the endorsee because he is not the owner, and to the owner because he has not brought the suit. 16. In the circumstances, I decline to exercise my revisional power and leave the decree of the court below as it is. The Civil Revision Petition is dismissed, but without costs.