Nanagram Bhikamchand Rice and Oil Mills v. Union of India, Represented By (a) The General Manager, N. F. Railway, Gauhati-21 (b) The General Manager, Northern Railway, Lucknow
1981-10-01
K.LAHIRI, K.N.SAIKIA
body1981
DigiLaw.ai
Saikia, J.:- This plaintiff's first appeal is from the judgment and decree of the District Judge, Goalpara at Dhubri partly disallowing the plaintiff's claim. The plaintiff, M/s. Nanagram Bhikarnchand Rice & Oil Mills, is a firm registered under the Indian Partnership Act and carrying on business at Bongaigaon under Abhayapuri Police Station, District Goalpara and is also known as N. B. Rice & Oil Mills. On 5.9.68 a consignment of 60 bags of Gram Dal and 100 bags of Gram were booked at Sirsa per R/R 471304 for being carried to and delivered at Bongaigaon, the consignor and consignee being Suganchand Bhuramal. The said R/R was endorsed in favour of the plaintiff for valuable consideration. The consignment reached its destination in a damaged condition. Out of 100 bags of Gram 33 bags were not delivered and 11 bags found short, while out of 60 bags of Gram Dal 11 bags were not delivered and 15 bags found short. A short certificate was granted by the Railways the shortage value being Rs. 6,199.95 p. as mentioned in Schedule 'A' to the plaint. On 28.4.70 a consignment of 160 bags of mustard seeds was booked at Hathras City per R/R 188267 for being carried, to and delivered at Bongaigaon. Shivsankar & Co. was the consignor and consignee and the R/R endorsed in favour of the plaintiff. The consignment reached in damaged condition. Seven bags were found in cut and loose condition and 40ft Kg. was found short and a short certificate was granted by the Railways. The total claim on this account amounts for Rs. 700/- out of which only Rs. 554/- was paid on claim. The plaintiff served a notice under Section 80, Civil Procedure Code. On 21.5.70, 150 bags of mustard seeds were booked ats Hathras City per R/R 081936 for being carried to and -delivered at Bongaigaon. Ratanchand Hazarimall was the consignor and consignee and the R/R was endorsed in favour of the plaintiff. The consignment reached in damaged condition. Out of 150 bags 20 bags found in loose and torn condition resulting in shortage of 904 Kgs worth Rs. 1808/- which was claimed and a notice under Sec. 80. C. P. C. issued. On 28.5.70 a consignment of 250 bags of Atta was booked at Chandigarh per R/R 711820 for being carried to and delivered at Bongaigaon. Hanuman Trading Co. was the consignor and consignee.
1808/- which was claimed and a notice under Sec. 80. C. P. C. issued. On 28.5.70 a consignment of 250 bags of Atta was booked at Chandigarh per R/R 711820 for being carried to and delivered at Bongaigaon. Hanuman Trading Co. was the consignor and consignee. The R/R was endorsed in favour of the plaintiff. The consignment reached in damaged condition, the shortage being valued at Rs. 402.50 p- which was claimed and a notice under Section 80 C-P-C. issued. The plaintiff firm sued for the following shortages as givea in Schedule 'B' to the plaint : Consignment Price Interest Total 1. R/R 471304 dt. 5.9.68 2. R/R 188267 3. R/R 081936 4. R/R 711820 Rs. 6,199,95 Rs. 1,850,00 Rs. 8,059.95 Rs. Rs. Rs. 146.00 1,808.00 402.50 Rs. Rs. Rs. 19.45 226.00 50.30 Rs. Rs. Rs. 165.45 2,034.00 452.80 Rs. 8,556.45 Rs. 2155.75 Rs. 10,712.20- The defendants in their written statement pleaded absence of cause of action, want of right to sue limitation, and nonjoinder and also decided service of notices. The defendants further contended that they paid Rs. 554/- only in full and final settlement of the plaintiff's claim in respect of R/R 081936. On the pleadings the following issues were framed : "(1) Is there any cause of action for the suit ? (2) Whether the suit is barred by limitation ? (3) Whether the notice under Section 80 C.P.C and Section 78B of Indian Railways Act were duly and properly served on the defendants ? (4) Whether the employees of the defendant Railway to concerned are guilty of gross misconduct/negligence in dealing with the consignments during transit? (5) To what" relief, if any, the plaintiff is entitled ?" At the trial the plaintiff examined one witness and exhibited several documents, while the defendants examined none. It was submitted for the plaintiff that the firm was also known as N. B. Rice and Oil Mills. Ext. 1 is the Short Certificate in respect of consignment covered by R/R 471304 wherein the name of the endorsee is shown as Nanagram Bhikamchand. Neither the short certificate nor the Hundi shows the plaintiff as Nanagram Bhikamchand Rice & Oil Mills as the consignee. The delivery was taken for Nanagram Bhikamchand. It was accordingly contended that the plaintiff had no right to sue in respect of that consignment. Ext.
Neither the short certificate nor the Hundi shows the plaintiff as Nanagram Bhikamchand Rice & Oil Mills as the consignee. The delivery was taken for Nanagram Bhikamchand. It was accordingly contended that the plaintiff had no right to sue in respect of that consignment. Ext. 21 is the short certificate for the consignment covered by R/R 711820 endorsed to N. B. Rice & Oil Mills as shown by the short certificate. The delivery was also taken for N. B. Rice and Oil Mills. Ext. 22 is the Hundi for this consignment which was addressed to Nanagram Bhikamchand. Ext. 24 in the Bijuk which was also addressed to Nanagram Bhikamchand. Thus it was held that Exts. 22 and 24 went to show that the plaintiff was not the endorsee of the consignment and was not entitled to any compensation in respect thereof. Accordingly the learned District Judge disallowed the claim in respect of the two consignments covered by R/R 471304 (Rs. 8,059.95 p) and R/R 711”20 " (Rs.452.80 p). Hence this First Appeal. Mr. S.S. Sarma, the learned counsel appearing for the appellant, submits that the learned court below erred in rejecting the plaintiff's claim in respect of the two consignments on the ground that the names of the endorsee in the endorsements on the R/Rs were different from that of the plaintiff; inasmuch as the plaintiff's firm was sometimes written in the abbreviated form as Nanagram Bhikamchand for M/s. Nanagram Bhikamchand Rice & Oil Mills. Mr. P.P. Duara, the learned counsel for the Railways, submits that the plaintiff firm could be entirely different from Nanagram Bhikamchand, the endorsee, and, therefore, the claim in respect of the two consignments was rightly rejected. No other point having been raised before us the only question requiring judicial determination, is whether the rejection of the plaintiff's claim in respect of the two consignments has been in Accordance with law. It is not disputed that the plaintiff firm received the R/Rs from the respective consignors who were also the consignees. It is also not disputed that the Short Certificates in respect of the two consignments were issued by the Railways themselves and the goods delivered to the plaintiff firm. The question of entitlement of the plaintiff was not otherwise disputed. Mr.
It is also not disputed that the Short Certificates in respect of the two consignments were issued by the Railways themselves and the goods delivered to the plaintiff firm. The question of entitlement of the plaintiff was not otherwise disputed. Mr. Duara, while submitting that there was material difference between the name of the plaintiff firm, Nanagram Bhikamchand Rice & Oil Mills and the endorsee Nanagram Bbikamchand, has not submitted that the Railways have received any claim or demand from another firm of Nanagram Bhikamchand or with any similar name, nor has he mentioned about any such firm actually existing at Bongaigaon. Under such circumstances the objection appears to be only on a technical ground not related to any facts in existence. As against this Mr. Sarma submits that the business community often write the name of firms in abbreviated form and the Court of law should take notice of such practice unless something is shown to the contrary or prejudice of the parties concerned. In the instant case the R/Rs in respect of the two consignments have admittedly been handed over to the Railways at the time of taking delivery of the goods and the Short Certificates were issued on the basis of the particulars there of. The R/Rs themselves were not produced before the Court. Assuming that the name of the endorsee appeared as Nanagram Bhikamchand on the R/Rs as indicated by the Court certificates, Hundis and the Bijuk (Ext- 24), the only question will be whether the discrepancy will disentitle the holder of the R/Rs from claiming the value of the shortage. The Railway Receipt comes under the category of a ''document of title to goods" as defined in Sale of Goods Act. la Mercantile Bank of India Ltd, vs. Central Bank of India Ltd. (65 I.A.75 : 42 C.W.N. 32), the Privy Council observed: "The railway receipt, though a document of title was in form merely an authority to Jake delivery of the goods and the possession of such document contained no representation that the holder had any implied authority of disposing of the goods. It is at best an ambiguous document.
It is at best an ambiguous document. It is not like a negotiable instrument; the possession of the Railway Receipt is no more significant for this purpose than the possession of the goods would have been its possession no more conveys a representation that its possessor or holder is entitled to dispose of the property than the actual possession of the goods themselves would have conveyed any such representation." In Hari Mohon vs. Dominion of India, 57 CWN 167, it has been observed that a railway receipt is not in the same position, although by trade usage it might assume some of the attributes of a negotiable instrument. Mere endorsement of a railway receipt either by the consignor or by the consignee without valuable consideration would not convey the property in the goods to the endorsee. If, however, there is an endorsement of a railway receipt for valuable consideration property passes to the endorsee. An endorsement made by the consignor on the face of the railway receipt requesting the railway company to deliver the goods to the endorsee merely conveys to the railway company that the person in whose favour the endorsement is made by the consignor is constituted by him a person to whom he wishes that delivery of the goods should be made on his behalf, he not being able himself to attend to take delivery of the same. If any further right is claimed by the endorsee he has to establish it on facts. Without anything more, it only constitutes the endorsee the agent of the consignee for the purpose of taking delivery of the goods represented by the railway receipt from the railway company. However, the High Court of Bombay (38 Bom. 225, 38 Bom, 659), Nagpur (1957) Nag. 31), and Allahabad (1954 All. 747; 1956 All, 738 (F.B.) have taken the view that the railway receipts are negotiable instruments. The Gujarat High Court in 1966 Guj. 6 held that the railway receipts are not negotiable instruments or even quasi-negotiable instruments. In the Union of India vs. G. V, Parthasarathy, (1967) I M.L.J. 453, it has been held by the Madras High Court that an endorsement by itself will not pass title to the endorsee.
The Gujarat High Court in 1966 Guj. 6 held that the railway receipts are not negotiable instruments or even quasi-negotiable instruments. In the Union of India vs. G. V, Parthasarathy, (1967) I M.L.J. 453, it has been held by the Madras High Court that an endorsement by itself will not pass title to the endorsee. But it is open to the endorsee to prove that by such endorsement the consignor intended to Joinery title to the goods in favour of the consignee in which case the railway receipt will be a quasi-negotiable instrument. [n Union of India vs. West Punjab Factories, AIR 1966 SC 395 , trie1 Supreme Court has/observed that mere endorsement of a railway receipt by a consignor in favour of another will not by itself pass title in the goods to the consignee. In AIR 1965 SC 1954 : Morvi Mercantile Bank vs. Union of India, it has been held that the negotiation of the railway receipt may pass the property in the goods, it does not, however, transfer the contract contained in the receipt or the statutory contract under Section 74-E of the railways Act (now, Sec, 76-D). Negotiability is a creature of statute or mercantile usage, not of judicial decisions apart from either. Therefore, 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 where the claim of the plaintiff is as an ordinary assignee of the contract of carriage, the plaintiff has to prove the assignment in his favour. (AIR 1947 Bombay 169 was approved. In the instant case that the endorsements were made by the consignors of the two consignments for valuable consideration, has been proved. The goods have also been delivered to them. The objection is being raised only at the time of claim on account of shortages on the ground of discrepancy.
(AIR 1947 Bombay 169 was approved. In the instant case that the endorsements were made by the consignors of the two consignments for valuable consideration, has been proved. The goods have also been delivered to them. The objection is being raised only at the time of claim on account of shortages on the ground of discrepancy. It is to be noted that the name of the endorsee, as fouui in the Short Certificates, Hundis and the Bijuk, and as given in the plaint are not different in the sense that they are entirely different but in the sense that in one there is full description whereas in the other the description is insufficient. Even taking the R/Rs to be negotiable instruments and the strict rules as to endorsement applies then also we find that insufficient description in the name of a firm may not be entirely illegal so as to disentitle it altogether. In Law of Banking by Lord Chorley, Fourth Edition, page 74, it is stated : "Every partner has prima facie authority to bind his firm within the ordinary scope of the business, and it is considered that in mordent business conditions this includes the endorsing of cheques. In the case of other joint payees there is no such presumption of agency. Thus a cheque made payable to a firm, e. g. Dash Blank & Co., may be properly endorsed in the name of the firm as Dash Blank & Co., or Dash & Blank or P. Dash, K. Blank, or P. P, Dash Blank & Co. by one or other of the partners, or possibly even by individual partners such as "P. Dash" or "K. Blank" though this must be regarded as doubtful since there is no indication of the authority of the endorser". What is applicable in case of endorsement by a partner to bind firm may also be applicable for the purpose of binding or entitling the firm by an endorjement made in its favour. Therefore, the endorsements in the instant case as Nanagram Bhikamchand instead of M/s. Nanagram Bhikamchand Rice & Oil Mills may not be entirely illegal so as to deprive the endorsee of the entitlement to receive the goods.
Therefore, the endorsements in the instant case as Nanagram Bhikamchand instead of M/s. Nanagram Bhikamchand Rice & Oil Mills may not be entirely illegal so as to deprive the endorsee of the entitlement to receive the goods. Even if it is assumed that the endorsement constituted the plaintiff firm only an agent of consignor-endorser to receive the goods, it would be entitled to receive the same and in fact had received those goods. Having received endorsement in its favour for valuable consideration it would also be entitled to receive the goods of its own. Then again the goods have already been delivered to the plaintiff firm as indicated by the production of the Short Certificates, Hundi and the Bijuk by it. Having done so it would not be proper on the part of the Railways to refuse to satisfy the claim on account of shortage of the goods. No other point having been raised before us we find force in this appeal and accordingly allow it with costs.