USHA MEHRA ( 1 ) THE Bank of Baroda has sought recovery of Rs. 12,63,989. 42 against M/s Jailaxmi Road Services Pvt. Ltd. and others. Brief facts as given in the plaint are that defendant No. 2 M/s Stitch Art Exports (P) Ltd. sought for credit facilities from the plaintiff bank. The same was granted on 15th February, 1978 in the nature of packing credit limit, demand loan and inland letters of credit facilities for Rs. 8 lakhs. Letter of credit in favour of Bombay Dying and Manufacturing Co. Ltd. , Bombay (in short the Company) was also opened to enable defendant No. 2 to make their purchases of cloth from the Company in order to manufacture the garments for export. Defendant No. 2 asked for enhancement of these limits and credit facilities from time to time which were acceded to by the plaintiff bank. On the request of the said defendant, plaintiff opened both clean and documentary letters of credit. Some of the letters of credit were in the name of Company, others were in the name of Loyal Textile Mills Ltd. , Kovilapatti and Madura Coats Ltd. Ambasamudram. These beneficiaries were authorised and empowered to negotiate their bills for the goods sold to defendant No. 2 upto the amount secured under letter of credit- Bills could be negotiated on their presentation of invoices/ bills or the original Motor transport receipts (in short lorry receipt ). These consignments by the beneficiaries were to be despatched through the approved motor transport agency. The defendant No. 1 was one of the said approved transport agency authorised to transport goods and issue lorry receipts for the goods entrusted to it. It is further the case of the plaintiff that defendant No. l was bound to deliver the goods only against production of such original lorry receipts issued by it. On receipt of lorry receipt and documents of title, the same used to be presented to defendant No. 2 by the plaintiff. The defendant No. 2 after retiring the documents against payment and on presentation of original lorry receipt would become entitle to receive the goods from defendant No. l. ( 2 ) DEFENDANT No. 2, however, did not retire some of such documents and the original lorry receipts remained with the plaintiff. The defendant No. 2 after retiring the documents against payment and on presentation of original lorry receipt would become entitle to receive the goods from defendant No. l. ( 2 ) DEFENDANT No. 2, however, did not retire some of such documents and the original lorry receipts remained with the plaintiff. The plaintiff holder of the documents of title of goods was entitled to take delivery of goods under the lorry receipts from defendant No. 1, who being approved carrier transported the goods for reward from place to place. Defendant No. 1 had undertaken to deliver the goods to consignee-plaintiff bank or on its order to its assignees and endorsee only on presentation of original lorry receipts. Defendant No. 1 was under obligation to deliver the goods only on production of original lorry receipts and not otherwise. But the said defendant failed to discharge his obligation. Hence legal notice was served on defendant No. 1 on 20th February, 1985. In its reply the said defendant confirmed the factum of entrustment of goods for transportation and also admitted that the goods had been wrongly and without presentation of original lorry receipts were delivered to defendant No. 2. In fact, defendant No. l and 2 conspired with each other thereby the defendant No. l fraudulently delivered the goods even without original lorry receipt to defendant No. 2. Defendant No. l admitted that the consignment was not available with him and had been delivered to defendant No. 2. Hence defendant No. l, the carrier having committed breach of trust is liable to pay the value of the goods lost to the plaintiff. Defendants 3 to 5 being guarantors of defendant No. 2 are jointly and severally liable for the loss caused to the plaintiff. Hence the suit. ( 3 ) DEFENDANTS contested the suit by filing their written statements. Defendant No. 1 beside contesting the suit on merits took the plea that this Court has no territorial jurisdiction to entertain the suit because entrustment of the goods for transportation took place at Bombay. The lorry receipts were also issued at Bombay. The registered office and principal place of business of defendant No. l is also at Bombay. Moreover, the consignments were to be delivered at Calcutta and Madras. This Court has no jurisdiction to try this suit because no cause of action accrued within the territorial jurisdiction of this Court. The lorry receipts were also issued at Bombay. The registered office and principal place of business of defendant No. l is also at Bombay. Moreover, the consignments were to be delivered at Calcutta and Madras. This Court has no jurisdiction to try this suit because no cause of action accrued within the territorial jurisdiction of this Court. Secondly, no legal and valid notice under Section 10 of the Carriers Act (in short Act) has been served on the defendant No. l. In the absence of this statutory notice suit is liable to be dismissed. Alleged notice dated 20th February, 1985 is beyond the statutory period of six months hence not valid. The suit is barred by time in respect of the consignments booked against serial No. 1 to 19. These consignments were despatched immediately and arrived at the destination within a week, but the intended consignees failed to retire the documents and consequently delivery of the goods was not taken. Consignees should have taken delivery within 10 days of the booking but he did not do so, hence the defendant was not responsible for the non-delivery or for loss of goods to the plaintiff. The goods reached the destination in June, 1982 itself whereas beneficiaries requested the defendant to revalid all the said G. C. notes in order to represent the same to the plaintiff bank. Against the original G. C. notes, the defendant issued fresh G. C. notes bearing the same serial numbers in lieu of the original. On merits it has been pleaded that since the goods covered by G. C. notes No. 29031 and 29203 were received at destination in Calcutta and were not taken delivery of by the consignee therefore. the goods started incurring demurrages/ storage charges. The defendant No. 2 approached the defendant No. 1 s Calcutta office and requested to hand over the goods for storage, on behalf of the defendant No. 1 till the original "for delivery/ consignee" copies of G. C. notes/ LRs were surrendered. Defendant No. 1 in order to save the goods from damage in the store of the defendant No. 1 agreed to the suggestion given by defendant No. l. Defendant No. 2 offered to retain and store the goods carefully at his risk, cost and responsibility. Defendant No. 1 in order to save the goods from damage in the store of the defendant No. 1 agreed to the suggestion given by defendant No. l. Defendant No. 2 offered to retain and store the goods carefully at his risk, cost and responsibility. Defendant No. 2 offered to act as defendant No. l s trustee and bailee and undertook not to use, deal with or dispose of the same untill original G. C. notes were surrendered. Defendant No. l had carrier s lien over the said consignments and was within his right to0 remove those goods at any time. In the event of any loss defendant No. 2 was liable. It was on this assurance and undertaking given by defendant No. 2 that Calcutta office of defendant No. 1 handed over the consignment to defendant No. 2 for storage as bailee/ trustee on 10th July, 1982. Similar arrangements were made with defendant No. 2 regarding consignment of G. C. noteNo. 29173, 29578 at Calcutta and 010385 at N. Delhi. Remaining consignments were neither claimed by plaintiff nor by defendant No. 2. Those consignments were lying with defendant No. l at their respective destinations. In reply to plaintiffs notice this fact was informed to plaintiff alongwith undertakings furnished by defendant No. 2. Defendant No. 1 offered to deliver the subject consignments to the plaintiff, on plaintiffs surrendering the original documents and paying the charges of the defendant No. l. But the plaintiff did not do so. Hence defendant No. 1 was not liable for any amount. It has been denied that plaintiff paid Rs. 9,50,403. 67p to the beneficiaries. In fact plaintiff has already recovered Rs. 1,26,569. 35p from defendants 2 to 5. ( 4 ) DEFENDANTS 2 to 5 have also filed their written statements wherein defendant No. 2 denied having obtained any facility of packing credit limit, demand loan or inland letter of credit of Rs. 8 lakhs from the plaintiff banki. Defendant No. 2 denied having requested the plaintiff for enhancement of any limit/ credit facilities nor the said defendant received any goods from defendant No. l as alleged. Other defendants also denied their liability in any manner. ( 5 ) ON the pleadings of the parties following issuer were framed:- 1. 8 lakhs from the plaintiff banki. Defendant No. 2 denied having requested the plaintiff for enhancement of any limit/ credit facilities nor the said defendant received any goods from defendant No. l as alleged. Other defendants also denied their liability in any manner. ( 5 ) ON the pleadings of the parties following issuer were framed:- 1. Whether this Court has no territorial jurisdiction to entertain the present suit against defendant No. l as alleged in para No. l of the written statement filed by defendant No. l (Preliminary Objections) ? OPD 2. Whether the suit against defendant No. l is maintainable in the absence of a notice as required under Section 10 of the Carriers Act, 1865 ? 3. Whether the suit is barred by time as alleged in para No. 3 of the written statement filed by the defendant No. l ? 4. Whether the plaintiff is entitled to recover the sum of Rs. 12,63,889. 47 paise from defendant No. l alongwith defendants 2 to 5 for the reasons given in the plaint ? 5. Whether the plaintiff is not entitled to recover any - amount from the defendant No. 1 for the reasons stated in para 11 (written statement filed by defendant No. 1) and in additional pleas of the written statement filed by defendant No. l ? 6. Whether the plaintiff is entitled to interest. If so, at what rate and from which of the defendants ? 7. Whether the defendant No. l is entitled to any adjustment on account of transport charges and storage charges as alleged in para. 11 sub para (a) to (f) of the additional pleas taken in his written statement by defendant No. 1 ? 8. Whether Shri S. K. Verma is competent to file the present suit and sign and verify the plaint as alleged in para 2 of the plaint ? 9. To what amount, if any, is the plaintiff entitled and from which of the defendants ? 10. Relief, if any ? ( 6 ) VIDE order dated 28th February, 1992, it was decided that issue No. 1 and 2 which are purely legal issues and go to the root of the juridiction of this Court, be treated as preliminary issues and be decided after hearing arguments. 10. Relief, if any ? ( 6 ) VIDE order dated 28th February, 1992, it was decided that issue No. 1 and 2 which are purely legal issues and go to the root of the juridiction of this Court, be treated as preliminary issues and be decided after hearing arguments. I have perused the record and have heard the learned counsel for the parties on these preliminary issues No. l and 2. My decision on these two preliminary issues is as follows:- ( 7 ) ISSUE NO. 1 In Order to appreciate the legal submissions made by the counsel for the parties, some of the relevant and admitted facts on record have to be recapitulated. The consignments against lorry receipts Ex.-1 to P-12 except P-6 were neither booked from Delhi nor were to be delivered at Delhi. Only consignment against lorry receipt Ex. P-6 was to be delivered at Delhi. The defendant No. l has its registered office and principal place of business at Bombay. Goods against lorry receipts Ex. P-1 to P-5 were entrusted to defendant No. l at Bombay. These consignments were to be delivered at Calcutta. Consignment against Ex. P-6 was booked from Kovilpatti to New Delhi, whereas against Ex. P- 7 it was booked from Kovilpatti to Madras and other consignments against Ex. P-8 to P.-12 were booked from Ambasamundram to Madras. Therefore, Mr. S. L. Watel, Sr. Advocate, appearing for defendant No. l contended that as regards consignments booked against exhibit P. l to P. 5 and P. 7 to P. 12 no cause of action accrued within the territorial jurisdiction of this Court, hence Delhi Courts have no jurisdiction. Even otherwise the said lorry receipts contained an ouster clause which provides that the disputes will be subject to Bombay jurisdiction only. These consignments booked against exhibit P. I to P. 5 and P. 7 to P. 12 neither touched nor passed through Delhi, nor goods were lost at Delhi, therefore, so far as consignments booked against Ex. P-1 to P-5 and P- 7 to P-12 are concerned, this Court has no. territorial jurisdiction. In the absence of any cause of action having arisen at Delhi, suit is not maintainable. As regards consignment booked against lorry receipt Ex. P-6, the suit is not maintainable by virtue of the ouster clause. P-1 to P-5 and P- 7 to P-12 are concerned, this Court has no. territorial jurisdiction. In the absence of any cause of action having arisen at Delhi, suit is not maintainable. As regards consignment booked against lorry receipt Ex. P-6, the suit is not maintainable by virtue of the ouster clause. Moreover the defendant No. l s registered office is situated at Bombay, hence this Court cannot try this suit against him at Delhi. A party by incorporating ouster clause can oust the jurisdiction of other Courts. This is permissible in law and does not contravene Section 28 of the Contract nor it is against public policy. In this regard he placed reliance on the following decisions namely Hakam Singh V. M/. s Gammon (India) Ltd. AIR 1971 SC 740 , A. B. C. Laminart Pvt. Ltd. , V. A. P. Agencies, Salem AIR 1989 SC 1239 and M/s Patel Roadways Limited, Bombay V. M/s Prasad Trading Company AIR 1992 SC page 1514. ( 8 ) MR. PRAMOD Aggarwal on the other hand appearing for the plaintiff contended that it is not necessary to sue the plaintiff only at a place where it has its principal office nor the parties by incorporating ouster clause cart confer jurisdiction on a Court which otherwise has no jurisdiction. In this regard he placed reliance on the decision of M/s Patel Roadways Ltd. Vs. M/s Prasad Trading Company, AIR 1992 SC 1514 wherein it has been held that "where the defendant does not have a sole office but has a principal office at one place and has also a subordinate office at another place, it is not that Court within whose jurisdiction the principal office of the defendant is situated but the Court within whose jurisdiction it has a subordinate office which alone shall have jurisdiction". Relying on these observations, Mr. Aggarwal contended that since defendant No. 1 has its branch or subordinate office at Delhi hence this Court will have jurisdiction to try this suit against defendant No. l. Moreover, part of the cause of action also arose at Delhi. Consignment against lorry receipt Ex. P-6 was delivered at Delhi. According toMr. Aggarwal, the transaction against Ex. P-1 to P-12 being one transaction and part of it having been delivered at Delhi, therefore also this Court will have the jurisdiction. Consignment against lorry receipt Ex. P-6 was delivered at Delhi. According toMr. Aggarwal, the transaction against Ex. P-1 to P-12 being one transaction and part of it having been delivered at Delhi, therefore also this Court will have the jurisdiction. The approved transporter cannot by issuing lorry receipt restrict the jurisdiction to Bombay Court because some of the goods were neither booked at Bombay nor were to be delivered at Bombay. For example, the consignment booked against Ex. P-7isfrom Kovilpatti to Madras, against Ex. P-8 it is Ambasamudaram to Madras . Therefore, the restriction of jurisdiction imposed in lorry receipts is against the public policy and not binding on the parties. Lastly all the defendants except defendant No. 1 are carrying on their business at Delhi, their Head Office and Branch Offices are also situated at Delhi. Since part of the cause of action arose at Delhi, therefore, relying on the principle laid down in Section 20. (b), C. P. C. , suit against defendant No. l would also lie at Delhi. In order to avoid multiplicity of proceedings he had sought permission of this Court to sue defendant No. l at Delhi alongwith other defendants. ( 9 ) MR. AGGARWAL in order to prove that this Court has the territorial jurisdiction took up three pleas, namely, that the suit against defendant No. l would lie because it has its branch office at Delhi. The other defendants arc also having their offices at Delhi. Since the suit against other defendants lies at Delhi, hence against defendant No. l, plaintiff cannot be asked to file a suit at Bombay or at any other place, because that would lead to multiplicity of proceedings. Mr. Aggarwal further contended that leave to sue the defendant No. l at Delhi be granted. In this regard Mr. Aggarwal drew my attention to an application filed by him under Section 20 C. P. C. seeking permission to sue defendant No. l at Delhi. The said application was listed as IA. No. 1994/87. The same is still pending. He, therefore, contended that once the permission is granted by this Court to sue defendant No. 1 alongwith other defendants then this Court gets jurisdiction to try this suit. ( 10 ) REBUTTING these arguments of Mr. Aggarwal, Mr. The said application was listed as IA. No. 1994/87. The same is still pending. He, therefore, contended that once the permission is granted by this Court to sue defendant No. 1 alongwith other defendants then this Court gets jurisdiction to try this suit. ( 10 ) REBUTTING these arguments of Mr. Aggarwal, Mr. Watel, counsel for defendant No. l contended that even if the permission is granted as sought, it would only mean institution of suit against defendant No. l. The reading of Section 20 (b) C. P. C. shows that no suit can proceed without the leave of the court. In the present case the suit had been proceeding without such leave. At best even if this Court grants the permission to sue defendant No. 1 at Delhi that by itself would not mean conferring the jurisdiction on this Court. ( 11 ) BEFORE permission can be granted under Section 20 (b) C. P. C. we have to keep in mind that it is not only necessary that the defendants must have their place of business at Delhi but also the cause of action must arise at Delhi. In this case, in view of the submissions made which I am going to discuss hereinafter, it can be said that no cause of action accrued at Delhi except against Exhibit P. 6. Relying on the observation of the Supreme Court in the case of M/s Patel Roadways Ltd. as quoted above, it is clear that the defendant No. 1 can be sued even where it has its branch Office. But then the plaintiff has to satisfy that cause of action also accrued at Delhi or the contract was entered into at Delhi. In the words of the Supreme Court "the linking together of the place where the cause of action arises with the place where a subordinate office is located clearly shows that the intention of the legislature was that, in the case of a Corporation, for the purposes of clause (a), the location of the subordinate office, within the local limits of which a cause of action. arises, is to be the relevant place for the filing of a suit and not the principal place of business. " Therefore, it is not sufficient for the plaintiff to point out that defendant No. l has branch office at Delhi or other defendants reside at Delhi hence this Court has jurisdiction. arises, is to be the relevant place for the filing of a suit and not the principal place of business. " Therefore, it is not sufficient for the plaintiff to point out that defendant No. l has branch office at Delhi or other defendants reside at Delhi hence this Court has jurisdiction. Plaintiff was also required to prove that cause of action accrued at Delhi. But from the narration of facts stated above the only irresistable conclusion which can be drawn is that no cause of action accrued at Delhi qua exhibits P. I to P. 5 and P. 7 to P. 12. ( 12 ) THE second limb of Mr. Aggarwals arguments was that this is one transaction though different lorry receipts were issued. Since consignment against exhibit P. 6 was to be delivered at Delhi, hence part of cause of action accrued at Delhi. Hence Courts at Delhi will have the jurisdiction. I am afraid this argument has no force. Different lorry receipts represent different transactions and different contracts. Consignments against Exhibits P-l to P-5 were booked at Bombay and were to be delivered at Calcutta. These goods neither passed through Delhi nor any loss took place at Delhi, nor contract of carriage was entered at Delhi. Since no cause of ation accrued at Delhi hence Delhi Court will have no jurisdiction. Same is the case regarding consignments booked vide Exhibits P-7 to P-12. To have territorial jurisdiction, the relevant consideration is whether the cause of action arose at Delhi. In M/s Patel Roadways case the defendant M/s Prasad Trading Co. entrusted the consignment to the plaintiff at its subordinate office in Tamilnadu to be delivered at Delhi. The goods which were kept in a godown at Delhi got destroyed and damaged in a fire, as a result of which the consignee refused to take delivery. M/s Prasad Trading Co. institued a suit in the court of Subordinate Judge at Periakulam where defendant had its subordinate office and where the goods were entrusted for transport (underlining is mine ). Because the goods were entrusted for transport at Periakulam therefore Supreme Court held that the linking together of the place where the cause of action arose and place where the subordinate office was located would have the jurisdiction. Because the goods were entrusted for transport at Periakulam therefore Supreme Court held that the linking together of the place where the cause of action arose and place where the subordinate office was located would have the jurisdiction. The relevant factor for deciding the territorial jurisdiction is not only where the subordinate or Branch Office of the defendant is located but. where the cause of action arose. In the case in hand, admittedly neither the consignment vide Ex. P-1 to P-5 and P-7 to P-12 were booked at Delhi, nor those were to be delivered at Delhi, nor they were lost at Delhi. Therefore, merely because defendant No. l has a Branch Office at Delhi, will not give jurisdiction to this Court to try the suit against defendant No. 1 regarding consignments booked vide Exhibit P. 1 to P. 5 and P. 7 to P. 12. Defendant No. 2 as per the plaintiffs own showing executed the loan documents at Calcutta, loans were obtained at Calcutta as is apparent from the letter exchanged between the parties dated 15th February, 1978. Defendants 3 to 5 executed guarantee documents at Calcutta, therefore, qua them also the cause of action arose at Calcutta where the contract was entered into. Plaintiff is conspicuously silent in the plaint about the place where loan facilities were applied and sanctioned and the guarantees were furnished. Reference therefore had to be made to documents filed by the plaintiff in this regard and the bear reading of those documents indicate that the loan facility was provided at Calcutta, documents were executed at Calcutta, guarantees were also signed at Calcutta. ( 13 ) SO far as defendant No. l is concerned, it was approached by defendant No. 2 at Bombay. The beneficiaries booked the consignment either from Bombay, Madras or Kovilpatti. Hence, even against other defendants no cause of action arose within the territorial jurisdiction of this Court. It is not disputed by the plaintiff that the contract with defendant No. l was entered into at Bombay. The jurisdiction of the Court in matter of contract will depend on the situs of the Contract and the cause of action arising through connecting factors. In the matter of a contract there may arise causes of action of various kinds. It is not disputed by the plaintiff that the contract with defendant No. l was entered into at Bombay. The jurisdiction of the Court in matter of contract will depend on the situs of the Contract and the cause of action arising through connecting factors. In the matter of a contract there may arise causes of action of various kinds. In a suit for damages for breach of contract the cause of action consists of the making of the contract, and of its breach, so that the suit may be filed either at the place where the contract was made or at the place where it should have been performed and the breach occurred. The making of the contract is part of the cause of action. A suit on a contract, therefore, can be filed at the place where it was made. The performance of a contract is part of cause of action and a suit in respect of the breach can always be filed at the place where the contract should have been performed or its performance completed. As observed above in the case in hand neither contract was entered at Delhi nor performance completed at Delhi. Hence Delhi Courts will have no territorial jurisdiction to try the suit regarding consignments booked vide exhibit P. I to P. 5 and P. 7 to P. 12. ( 14 ) IN view of my above observation," the reference to ouster clause in the lorry receipt by Mr. Watel is irrelevant. Admittedly, the parties can incorporate ouster clause in the agreement when more than one Court has the jurisdiction. It is not against public policy. But reliance on the ouster clause is immaterial and irrelevant so far as consignment against exhibit P. 6. By incorporating ouster clause the jurisdiction of Delhi Court cannot be taken away. Nor by agreement the parties could confer exclusive jurisdiction to Bombay Court, particularly when neither the consignment was booked at Bombay nor was to be delivered at Bombay. Contention of Mr. Watel that even if the consignment was not booked at Bombay still the parties could by agreement give exclusive jurisdiction to that Court and placed reliance on the decision of M/s A. B. C. Laminart Pvt. Ltd. (supra ). Contention of Mr. Watel that even if the consignment was not booked at Bombay still the parties could by agreement give exclusive jurisdiction to that Court and placed reliance on the decision of M/s A. B. C. Laminart Pvt. Ltd. (supra ). I am affraid that decision is of no help to him because in that case the contract entered into between the parties contained ouster clause restricting the jurisdiction to Civil Court Kaira. The aggrieved party filed the suit before the Subordinate Judge at Salem; Relying on the ouster clause it was contended that the Court at Salem had no jurisdiction only the Court at Kaira had the jurisdiction. The Court while interpreting Section 20 of the C. P. C. held that where there are more than two competent Courts which can entertain a suit consequent upon a part of the cause of action having arisen there, if the parties to the contract agreed to vest jurisdiction in one such Court to try the dispute which might arise between themselves, the agreement would be valid. But that is not the case in hand. No cause of action arose within the jurisdiction of the Bombay Court regarding exhibit P. 6. Therefore by virtue of ouster clause the jurisdiction of this Court, where the consignment was to be delivered and actually arrived, cannot be taken away. This Court would have jurisdiction to entertain this suit qua exhibit P. 6 and to that extent leave to sut at Delhi against defendant No. 1 is granted. ( 15 ) IN view of my above discussion it is held that this Court will have no territorial jurisdiction regarding the consignment booked against Ex. P-1 to P-5 and Ex. P-7 to P-12. The suit would only lie against consignment booked against Lorry Receipt Ex. P-6. Issue No. 2 ( 16 ) A very interesting point has been raised as to what does the expression "loss of appearing in Section 10 of the Carriers Act, 1865 (hereinafter called the Act) means. In order to appreciate the legal submission some relevant facts are reproduced. Facts are simple and brief. The consignment was delivered to the defendant No. l, approved transporter, for carrying it to the destination. According to defendant No. l, the transporter, the consignee did not take the delivery of the goods when those reached the destination. In order to appreciate the legal submission some relevant facts are reproduced. Facts are simple and brief. The consignment was delivered to the defendant No. l, approved transporter, for carrying it to the destination. According to defendant No. l, the transporter, the consignee did not take the delivery of the goods when those reached the destination. The consignee also failed to retire the documents, therefore, defendant No. 2 offered to retain and store the same carefully as bailee and trustee for and on behalf of defendant No. l, on his own risk, responsibility and cost. Defendant No. 2 undertook not to use, deal with or dispose of the same until! relative original G. C. notes were surrendered to defendant No. 1 duly discharged or retired from the bank, on their presentation to the second defendant. ( 17 ) IT was further agreed by defendant No. 2 that the defendant No. 1 would have a carrier lien over the said consignment and would be at liberty to collect and remove the same from the custody or the premises of defendant No. 2. After surrender of the relative G. C. notes and payment to defendant No. l of freight, octroi/ truck retention charges and other incidental charges and the cost incurred in respect of the said consignment, the consignments could be taken delivery of. It was also agreed by defendant No. 2 that in the event of loss or damage to the consignment, said defendant would indemnify the defendant No. l. ( 18 ) MR. WATEL contended that since consignment was not taken delivery by the consignee hence the same was delivered to defendant No. 2. It amounted loss to the plaintiff as defined under Section 10 of the Act. The said Section require notice to be served in case of loss. Having not served the defendant with No. l with notice as envisaged under Section 10 of the Act within six months the suit be dismissed for want of statutory notice. ( 19 ) ON the other hand Mr. Aggarwal contended that this is not a case of loss of goods as stipulated under Section 10 of the Act. Carrier s liability to compensate for the loss of the goods is absolute. ( 19 ) ON the other hand Mr. Aggarwal contended that this is not a case of loss of goods as stipulated under Section 10 of the Act. Carrier s liability to compensate for the loss of the goods is absolute. "loss" as per Concise Oxford Dictionary would mean the act or an instance of losing, the state of being lost or a person, thing, or amount lost particularly the detriment or disadvantage resulting from losing but the non-delivery is not a loss. Non-delivery is specifically mentioned under Section 9 of the Act. What is therefore mentioned in Section 9 can have very little relevance while considering the ambit of Section 10 of the Act. The Legislature deliberately ommitted the words non-delivery in Section 10. Therefore, the requirement of giving notice in a case of non-delivery under Section 10 is done away by the Legislature. Moreover, fraudulant delivery to third person is not covered under the definition of "loss of appearing under Section 10 of the Act. ( 20 ) SECTION 10 lays emphasis on the expression "loss of or injury" to the goods and not to the carrier or consignee or the consignee as the case may be. The intention to issue notice under Section 10 is to enable the carrier to trace out the goods and, therefore, the legislature deliberately omitted the word "non delivery" in Section 10. The carrier acts as bailee of the goods and when he looses, notice is given and not when he is already aware as to where he has delivered the goods. Defendant No. l as per his own showing admits that he delivered the goods to defendant No. 2 as his bailee and trustee. Therefore, it neither amounts to loss of goods to defendant No. l nor to defendant No. 2 and, therefore, the provisions of Section 10 cannot be attracted in the facts and circumstances of this case. Moreover, the plaintiff acquired the knowledge ofnondelivery of goods to the consignee only in 1985. Within six months notice was given. It is in fact a case of fraud committed by defendants by fraudulantly delivering the goods to defendant No. 2 without original documents and thus committed breach of entrustment as bailee and committed fraud. By no stretch of imagination, this can be called "loss of as appearing under Section 10 of the Act. Within six months notice was given. It is in fact a case of fraud committed by defendants by fraudulantly delivering the goods to defendant No. 2 without original documents and thus committed breach of entrustment as bailee and committed fraud. By no stretch of imagination, this can be called "loss of as appearing under Section 10 of the Act. He drew my attention to annexure a-l dated 10th July 1982 which indicates that the carrier was keeping the goods for and on behalf of the bank and would not deliver the same without the written consent of the bank. But the defendant No. l flouted the same and thus committed a breach of the entrustment and committed fraud by delivering the goods to defendant No. 2 without knowledge and permission of the plaintiff. Mr. Aggarwal to support this contention placed reliance on the decision of the Supreme Court in the case of Governor General in Council (Now Union of India) Vs. Musaddi Lal AIR 1961 SC 725 and contended that Section 77 of the Railways Act is materially different from Section 10 of the Carriers Act. Under Section 77 of the Railways Act, the legislature provided that failure to deliver is the consequences of loss or destruction of goods. By the use of expression loss , destruction or deterioration what was contemplated under the Railways Act is the loss to the owner of the goods. But that is not the case under Section 10 of this Act. Therefore, reliance by Mr. Watel on the observation of the Supreme Court in this case is of no help to him. Under the Act, notice within six months would be given by the plaintiff on his acquiring such a knowledge i. e. from the date of knowledge. Plaintiff has served the notice within six months from the date of knowledge. Even otherwise this being a case of fraud, the question of loss or consequential non-delivery does not arise. It is a case of deliberately committing fraud and breach of entrustment hence notice was not required to be served under Section 10 of the Act. In this regard he placed reliance on the observation of Allahabad High Court in the case of Ram Narainvs. Dominian of India, AIR 1953 All. 463 and AIR 1952 All. 891 . ( 21 ) REFUTING these arguments, Mr. In this regard he placed reliance on the observation of Allahabad High Court in the case of Ram Narainvs. Dominian of India, AIR 1953 All. 463 and AIR 1952 All. 891 . ( 21 ) REFUTING these arguments, Mr. Watel urged that even though the expression non-delivery is not appearing in Section 10, but still it cannot be said that since the reference to non-delivery is made in Section 9 and deliberately ommitted in Section 10, therefore, requirement of giving a notice under Section 10 is done away in the case where there was non-delivery. Rather the words loss is comprehensive enough to cover the cases of non-delivery. This being a case of non-delivery, notice ought. to have been served. He placed reliance on the decision of the Bombay High Court in the Sharma Goods Transport, Wardha, Vs. Vidarbha Wavers Central Co-operative Socy. Ltd. , Nagpur AIR 1988 Bombay 269. In that case the Court interpreted Section 9 as well as Section 10 of the Act and opined that the requirement of giving notice under Section 10 has not been done away by the Legislature even where there is a case of non-delivery. It is obligatory on the part of the plaintiff in a suit for compensation for loss of goods to give a prior notice as required under Section 10 of the Act, even in the event of non-delivery of goods. ( 22 ) FROM the above submissions, it becomes clear that even though Section 10 does not speak of non-delivery, short delivery or mis-delivery, still the cases on account of loss due to short delivery and non-delivery would be covered under the expression "loss of appearing in Section 10 of the Act. Mis-delivery may occur on account of advertence or by negligence. If notice is given it will put the carrier on enquiry and he may be able to trace or retrieve the case and to effect delivery of the goods to the person entitled to the delivery thereof. But no notice is required to be served, to my mind, when there has been loss; non-delivery, short delivery or mis-delivery due to the criminal act of the carrier, his agent or servant. The case cited by Mr. But no notice is required to be served, to my mind, when there has been loss; non-delivery, short delivery or mis-delivery due to the criminal act of the carrier, his agent or servant. The case cited by Mr. Watel of Bombay High Court Sharma Goods Transport (supra) was in respect of simple non-delivery, therefore, the Court after analysing the provision of Section 77 of the Railways Act came to the conclusion that the expression non-delivery though ommitted by Legislature under Section 10 still notice would have to be given under Section 10 in a case of non-delivery. But in the present case, defendant No. 1 admits that he delivered, the consignments to defendant No. 2 on certain assurances and undertaking given by him. Hence, it cannot be said that it was a case of non-delivery, short delivery or misdelivery. The defendant No. l delivered the goods to defendant No. 2 without the consent of the plaintiff. The G. C. Note specifically provided that the delivery of the goods would not be made without the original documents being presented. Defendant No. l inspite of instructions from the plaintiff bank delivered the consignments to defendant No. 2. The delivery of the goods to defendant No. 2 without insisting for the original lorry receipts, to my mind, will not amount to non-delivery, short delivery or mis-delivery and hence cannot be covered under the expression loss of as used under Section 10. Notice under Section 10 is required to be given in order to enable the carrier to trace out the goods. The essence of the notice appears to be that it should reach the person to enable him to make good the loss. But when the defendant No. l delivered the goods to the defendant No. 2 in order to protect his interest and without the knowledge of the plaintiff it cannot be called a case of loss of goods. It amounts to intentionally handing over the goods. ( 23 ) FOR criminal, fraudulant or mischievous acts of a party, notice under Section 10 is not required to be served as held by the Allahabad High Court. Mr. Watel s reliance on the decision of the Supreme Court in, the case of St. Joseph Textiles Vs. It amounts to intentionally handing over the goods. ( 23 ) FOR criminal, fraudulant or mischievous acts of a party, notice under Section 10 is not required to be served as held by the Allahabad High Court. Mr. Watel s reliance on the decision of the Supreme Court in, the case of St. Joseph Textiles Vs. Union of India and another 1993 Supp (3) SCC 469 is of no help to him becausein that case Supreme Court was dealing with the liability of the Railways for having delivered the consignment to a wrong person against non-genuine railway receipt after more than seven days of the termination of the transit. Section 77 (2) of the Railways Act, 1890 provides the period of seven days for removal of the goods from the railway premises without payment of warfage under rules of Warehousing and Retaining of Goods made under the Railways Act, the free time was of three days including the date of arrival of the goods. In that case the alleged wrong delivery was effected after the 20 days of the reaching of the goods at the destination and 11 days after the expiry of 7 days as provided under Section 77 (2) i. e. after termination of the transit of goods. Therefore, the Supreme Court opined that there was a absolute bar created under Section 77 (2) for claiming damages against the Railways as the period of 7 days had already come into operation. However, the appellant therein ought to have taken precaution to see that the goods were lifted by it or its agents or its consignees during the said period. After expiry of the said period when the appellant could have learned that the goods were not lifted by the consignee it was its duty to take prompt steps to remove the goods itself or through its agents. But the appellant firm moved into the matter only after two months after the expiry of the period of liability of the Railways. Therefore, the appeal of the appellant was dismissed. ( 24 ) BUT in the case in hand, I am not discussing the liability of defendant No. 1. I am called upon to decide whether this suit should fail for not serving the statutory notice within six months. Supreme Court was not dealing with such a proposition in the above said case. ( 24 ) BUT in the case in hand, I am not discussing the liability of defendant No. 1. I am called upon to decide whether this suit should fail for not serving the statutory notice within six months. Supreme Court was not dealing with such a proposition in the above said case. Hence, its ratio is of no help to Mr. Watel. ( 25 ) SIMILARLY the decision of the Supreme Court in the case of M/s M. G. Brothers, Lorry Service Vs. , M/s Prasad Textiles AIR 1984 SC 15 is p111. 4 also of no help to him. Supreme Court in that case was dealing with the liability of a carrier and the question whether it could be limited by agreement under the provision of Sections 6 and 8 of the Carriers Act. After discussing various provisions, it came to the conclusion that there was neither any extinguishment of liability or contracting out of liability by virtue of Clause 15 of the Way Bill which restricts the liability of the party. Therefore, declared the condition of Clause 15 of the Way Bill to be void in view of Section 23 of the Contract Act because its object was to defeat the provisions of Section 10 of the Carriers Act. The observations in that case again are not applicable to the facts of this case. Therefore, keeping in view the facts and circumstances of the case it will not be difficult to hold that this is not a case of "loss of" or non-delivery, misdelivery or short delivery. It is a case of intentional delivery to defendant No. 2 without the consent of the plaintiff hence notice under Section 10 was not required to be served by the plaintiff to defendant No. 1. With these observations, this issue is decided against the said defendant. ( 26 ) NOW to come up for further proceedings on.