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Rajasthan High Court · body

2006 DIGILAW 2439 (RAJ)

Union of India (UOI) v. Dhariwal & Co.

2006-08-08

N.P.GUPTA

body2006
Judgment N.P. Gupta, J.-This appeal has been filed by the defendant, against the impugned Judgment and decree of the learned District Judge, Bikaner dated 23.04.1987, decreeing the plaintiff’s suit for Rs. 19,229.49, alongwith interest from the date of the suit, being 19.01.1982, till recovery, alongwith cost. 2. Facts of the case are, that the plaintiffs, being a partnership firm, and the partners of the firm, filed a suit against the defendants, alleging interalia, that the Plaintiff No. 1 is a registered partnership firm, while the Plaintiff No. 2 to 5 are its partners. According to the plaintiff , the Defendant No. 3 supplied certain goods to the plaintiff , pursuant to the order of the plaintiff , and the said goods were sent to the plaintiff by being booked with the Railways Administration vide Railway Receipt No. 14833 invoice No. 15 dated 24/26.01.1981, from Mithapur to Bikaner, freight amounting to Rs. 2637/-was to be paid by the consignee. The goods were to be delivered by the Railway Administration being Defendants No. 1 and 2. The Defendant No. 3 sent the documents, and the railway receipt to the plaintiff through State Bank of India, whereupon the plaintiff paid Rs. 30,463.16 paisa, being price of 200 bags of Soda Ash, and Rs. 2099.13 paisa, being the price of packing material, and the railway receipt was got released. Then, on production of the railway receipt with the railway, it was informed that the goods have not been received. When a longer time elapsed, the plaintiff wrote a letter to Divisional Commercial Superintendent (Claims), and lodged his claim that too to no good, whereupon on 26.05.1981 the plaintiff got served a notice under Section 80 Civil Procedure Code, read with Section 78 of the Indian Railways Act, 1890, hereafter referred to as ‘the Act’. It is thereafter only, that on 12.06.1981, the railway authorities of the Goods Shed Bikaner delivered only 84 bags of Soda Ash to the plaintiff , thereupon the plaintiff vide letter dated 04.07.1981 laid a claim for the price of shortage of the goods amounting to Rs. 20,674.82 paisa, mentioning therein that 16 bags had torn away, therefore, delivery thereof was not taken, though on being told by plaintiff , the defendant provided new bags, but then it lost its efficacy, and loss of quality of the goods was assessed at 30%. 20,674.82 paisa, mentioning therein that 16 bags had torn away, therefore, delivery thereof was not taken, though on being told by plaintiff , the defendant provided new bags, but then it lost its efficacy, and loss of quality of the goods was assessed at 30%. Thus, deducting the price of the goods in damaged condition, the amount of Rs. 18,381.56 were said to be payable to the plaintiff . However, the plaintiff , adding the cost of 30% of the goods having been damaged, and the cost of bags, laid the claim for Rs. 19,339.49 paisa. Then, claiming interest for different amounts, for different period, a total claim of Rs. 23,899.49 paisa was lodged, which was denied, and thereupon the suit was filed, claiming the decree for Rs. 23,899.49 paisa alongwith interest at the rate of 20.5%. 3. The Defendants No. 1 and 2 filed a joint written statement, denying the firm to be registered, and other plaintiffs to be the partners, for want of knowledge. The allegation of the Defendant No. 3 having received the price of the goods was denied. Then, sending of the goods by Defendant No. 3, vide receipt No. 148331 on 24/26.01.1981, from Mithapur to Bikaner, through railway, and the fare amount to Rs. 2627/-to be paid by the consignee, was not disputed. The price of the total goods being Rs. 32,561.29/-was denied. Then the allegation about the plaintiff’s writing the letters to the Divisional Commercial Superintendent was denied being vague. However receipt of notice of the Advocate was admitted. It was admitted that 84 bags were delivered. However, the loss of efficacy, or quality of 16 bags, was denied, assessment of loss at the rate of 30% by supervisor was admitted, however, the claim was denied. In additional pleas, it was interalia pleaded, that the plaintiff has claimed some of the amounts twice over, that the other Railway, on whose account the goods were damaged, had not been impleaded, in whose absence the suit cannot be maintained, the train, wherein the goods were loaded, met with an accident in between Okha Mandi and Kuranga Station by getting derailed, and some carriages were run over by other carriages, which accident was an act of nature, and is not attributable to any negligence of the railway authority, therefore, the plaintiffs are not entitled to claim any damages. It was also pleaded, that out of 200 bags, only 100 bags were received, rest were damaged in the accident, therefore, the plaintiffs are not entitled to cost of those bags. Interalia with these pleadings, it was contended that the suit be dismissed. 4. The learned trial Court framed as many as six issues. First issue was as to whether the Plaintiff No. 1 is a registered partnership firm, and the other plaintiffs are its partners. Issue No. 2 related to the question as to whether the plaintiff paid a sum of Rs. 32,561.29/-to State Bank of India, Bikaner to be paid to the Defendant No. 3, and thereby the plaintiff become owner of the goods consigned. Then, Issue No. 3 related about the question as to whether the plaintiff is entitled to Rs. 223,899.48 paisa alongwith interest. Issue No. 4 was as to whether no cause of action accrues to the plaintiffs against the Defendants No. 1 and 2. Then, Issue No. 5 was about maintainability of the suit in view of the pleadings taken in Paras 21, 22, 23 and 26 of the written statement. Then, Issue No. 6 related to relief only. 5. These Paras 21, 22, 23 and 26 of the written statement comprehended the objections about effect of non impleadment of other officers of the railway administration, the plaintiffs being not entitled to any compensation, as the damage caused was on account of derailment of railway carriage, being an act of God, and unforeseen risks, and about the plaintiff being not entitled to maintain the suit, as the plaintiffs were either consignor, nor consignee, and the person making endorsement was not a person authorised by the consignor. 6. The plaintiff produced four witnesses in its evidence while the defendants examined 11 witnesses. The plaintiff alongwith the plaint produced duplicate copy of the certificate from the office of the Registrar of Firms, Rajasthan being Exh. 1, about the plaintiff firm being registered under the Partnership Act. However, since the plaintiff did not produce the list of partners, to show, that the names of other plaintiffs were entered in the register of Firms, as partners of the firm, during trial the plaintiff filed an application under Order 13 Rule 2, Civil Procedure Code, on 23.08.1986 alongwith affidavit, seeking to produce the copy of the relevant entry of the register. This application was replied by the defendant. This application was replied by the defendant. However, on 09.01.1987, the plaintiff chose to get the application dismissed, as not pressed. Accordingly, the documents were not taken on record. Then on 10.04.1987, the Defendants No. 1 and 2 filed an application, to the effect, that the documents filed by the plaintiff be not returned to the plaintiff . As this application was filed before the date of hearing, already fixed, it was ordered to be put to on 15.04.1987. On 15.04.1987 the lawyers did not appear on account of strike, and even on the next date, being 22.04.1987 also, none of the lawyer appeared, and therefore, that application for not returning the documents to the plaintiff was dismissed. 7. After completing the trial, the learned trial Court decreed the suit as above. Deciding Issue No. 1, it was interalia held, that the defendants have not specifically denied the averment of the plaintiff , about the Plaintiff No. 1 being a registered partnership firm, and the other plaintiffs being the partners of the firm, and since the plaintiffs have produced the registration certificate, and have deposed about the other plaintiffs being partners of the firm, in view of the Judgment of Hon’ble the Supreme Court in Jahuri Sah vs. Dwarika Prasad Jhunjhunwala, AIR 1967 SC 109 , and from the evidence led on the side of the plaintiff , it was found, that it is established, that the firm is registered and the other plaintiffs were the partners, and, therefore, the bar of Section 69(2) no more comes in the plaintiff’s way. Reliance was also placed on the Judgment of Andhr Pradesh High Court, in M.J. Velu Mudaliar vs. Sri Venkateshwara Finance Corporation, AIR 1971 AP 63 . Then, the Judgment of Madras High Court, in N.A. Munavar Hussain Sahib vs. E.R. Narayanan, AIR 1984 Mad 47 , was relied upon to hold, that the plea based on the provisions of Section 69 having not been raised in the written statement, cannot be allowed to be raised at a later stage. Then, the Judgment of Madras High Court, in N.A. Munavar Hussain Sahib vs. E.R. Narayanan, AIR 1984 Mad 47 , was relied upon to hold, that the plea based on the provisions of Section 69 having not been raised in the written statement, cannot be allowed to be raised at a later stage. Then, apart from finding the plaintiffs to have proved the firm to be registered, and other plaintiffs to be partners, it was also considered, that since the defendant Railways are common carrier, they are under obligation under the Indian Carriers Act to reach the goods to destination safely, and within a reasonable time, and if the goods get damaged, or get destroyed, is required to compensate as a tortuous liability, for enforcement of which, the bar of Section 69(2) is not attracted, as the claim is not a claim arising from the contract, between the firm and the defendants. In this regard reliance was placed on the Judgment in, Smt. Umarani Sen vs. Sudhir Kumar Datta, AIR 1984 Cal 330 . Thus, Issue No. 1 was decided in favour of the plaintiff . 8. Regarding Issue No. 2, after appreciating the evidence, comprising of the plaintiff’s own statement, and of the various authorities of the Bank, and the various documents of the Bank, as were produced, and proved, it was found, that the consignor had sent the papers through the Bank, which documents were presented to the State Bank of India through Bank of Baroda, where the payment was made, and thus the plaintiffs became the owners of the goods. Thus, Issue No. 2 was also decided in favour of the plaintiff . Deciding Issue No. 3, relating to quantum of compensation, it was found, that the plaintiffs have been able to establish the loss caused to them, to be to the extent of 19,229.49. However, in view of the Judgment of Hon’ ble the Supreme Court, in Mahabir Prasad Rungta vs. Durga Datta, AIR 1961 SC 990 , it was found, that the plaintiffs are not entitled to interest prior to the date of the suit. However, in view of the Judgment of Hon’ ble the Supreme Court, in Mahabir Prasad Rungta vs. Durga Datta, AIR 1961 SC 990 , it was found, that the plaintiffs are not entitled to interest prior to the date of the suit. Then, deciding Issue No. 4 it was found, that all the Railways belong to the Union of India, and when the goods are entrusted to common carrier, the suit can be filed at the destination place also, and since the defendants did not settle the claim of the plaintiff , the plaintiff is entitled to maintain the suit. Thus, Issue No. 4 was decided in favour of the plaintiffs. Deciding Issue No. 5, being a crucial issue, after appreciating the evidence led on the side of the defendant, about the cause of happening of accident, including the report of enquiry, and the findings recorded therein, it was considered, that Ultra Sonic Testing was not undertaken, and it is not established, that the railway track was examined, as no certificate about checking of the track, said to have been done on 15 and 16.01.1981, and 29.01.1981, have been produced on record, and that since replacement of the rails was going on, it required greater care and attention. It was also found, that the rails were having cracks, which increased by and by, resulting into breakage of rail, resulting into accident, which was on account of want of proper maintenance of the railway track. Thus, the railway was found liable to pay compensation for the damages suffered by the plaintiff . It was also found, that the goods were booked on 24/26.01.1981, the accident occurred on 30.01.1981, while the goods were not removed from the site of the accident till 31.05.1981, and thus the goods, being Soda Ash, got damaged by moisture, and the railway authorities did not take requisite care and caution, even in minimising the loss. Then, also considering the provisions of Section 76 of the Indian Railways Act, it was held, that the defendants have failed to show any satisfactory reason, as to why goods were not rescued from the place of accident for about 3 months and 21 days. Then, also considering the provisions of Section 76 of the Indian Railways Act, it was held, that the defendants have failed to show any satisfactory reason, as to why goods were not rescued from the place of accident for about 3 months and 21 days. Likewise, even after collecting the goods from the accident site, the delivery was not given to the plaintiff till after three weeks, while the delivery was to be affected within a period of seven days from the date of booking. Then, it was found, that the loss occurred to the plaintiffs was, on account of negligence of the railway authorities. Thus, this issue was also decided against the railway authorities. In view of the above findings the plaintiff’s suit was decreed. 9. Arguing the appeal it was contended, firstly, that the learned trial Court was in error in deciding Issue No. 1, as it is not established on record that the plaintiff firm is registered partnership firm, and unless it is so registered, the suit is not maintainable. The other submission made is, that the accident was an act of God, as it happened on account of some fault in the railway track, and, therefore, in view of the provisions of Section 74(3) of the Act, the Railways are not liable. It was also contended, that the learned trial Court has applied double standards, inasmuch as, on the one hand adverse inference has been drawn against the defendants for non production of certificates, as against which, no interference was drawn against the plaintiff for non production of relevant entry of the register of the Firms. The next arguments made was, that in absence of the railway administration, with whom the goods were booked, being arrayed as party defendant, the suit cannot be maintained, against the destination railway authorities only, and the same is, therefore, not maintainable, and the suit has been wrongly decreed. .10. Elaborating the arguments, it was contended, that Section 69(2) of the Partnership Act enacts two fold requirements; the first being, about the firm being registered, and the second being, about the plaintiffs being required to be show as partners in the register of the Firms. In the present case, though Exh. 1 establishes first requirement, but the second requirement is missing. In the present case, though Exh. 1 establishes first requirement, but the second requirement is missing. It was contended that the constitution of the firm was changed w.e.f. 01.04.1980, notice whereof was given to the Registrar on 20.08.1986, while the present suit had been filed on 19.01.1982 itself , i.e., even before sending notice of change to the Registrar of .Firms, as required to by Section 63 of the Partnership Act. As such, it cannot be said, that as on the date of filing of the suit, the names of the plaintiffs, other than the firm, were entered in the register of Firms as partners, and, therefore, the suit could not be maintained. Reliance in this regard was placed on the Judgment , in M/s. Shreeram Finance Corporation vs. Yasin Khan, AIR 1989 SC 1769 . The other submission made in this regard was, that irrespective of the fact, as to whatever was the pleadings in the written statement, since the issue had been framed, it was required to be proved by the plaintiff , and the learned trial Court was in error in finding the fact to have been proved by the plaintiffs by oral evidence, inasmuch as, it is settled law, that the fact, about the names of the plaintiffs being shown as partners in the register, can be proved only by production of copy of the entry in the register, and by no other evidence, rather the other evidence is not even admissible. It was also contended, that since it is legal bar, even taking of pleading in this regard in written statement is not necessary. Reliance was also placed on the Judgment of this Court, in M/s. Sohan Lal Basant Kumar vs. Umrao Mal Chopra, 1985 RLR 997, specially Paras 44 and 46, and on another Judgment of this Court, in M/s. Chandrabhan Bansilal Ramratan Das, Bikaner vs. The Municipal Council, Bikaner, 1974 WLN 133. Then elaborating other submissions, it was contended, that since more than two railway administrations are involved in the transportation of goods, suit against destination Railway administration alone could not be maintained without impleading other railway administration. It may be observed that no legal authority was cited to substantiate this contention. Then elaborating other submissions, it was contended, that since more than two railway administrations are involved in the transportation of goods, suit against destination Railway administration alone could not be maintained without impleading other railway administration. It may be observed that no legal authority was cited to substantiate this contention. Then it was also submitted, that there is no privity of contract between the plaintiff , and the defendant railways, as the plaintiffs are neither consignor, nor consignee, therefore, the suit is not maintainable. In this regard also no legal authority was cited to substantiate the contention. Then, it was contended, that the accident was not the result of negligence or fault of the railway administration, but was an act of God, plain and simple. On the face of language of Section 74, read with Section 76 of the act, since in the present case the goods were booked on owner’s risk rate of freight, no claim can be laid against the railways, except upon proof , that such loss, destruction, damage deterioration or non delivery was due to “negligence or misconduct” on the part of the railway administration, or of any of its servants. Since in the present case, in the entire plaint, there is not even a pleading, much less has it been established, that such loss, destruction, damage, deterioration or non delivery was due to “negligence or misconduct” on the part of the railway administration, or of any of its servants, the plaintiff could not be held liable for any amount. It was also contended, that in deciding the suit, the learned trial Court has not acted in proper manner, inasmuch as, even though the Counsels of both the sides were not present, still the suit has been decided, and even the application filed by the appellant, for non returning the documents, filed by the plaintiff , under Order 13 Rule 2, Civil Procedure Code, which application was not pressed, had also been decided, and has been dismissed. A contention was also sought to be raised, to the effect, that the learned trial Court has not framed Issue No. 5 in an appropriate manner, inasmuch as, in view of the language of Section 74 of the Act, it is for the plaintiff to prove, that the accident was on account of negligence or misconduct on the part of the railway administration or any of its servant. Thus, burden of proving this issue was wrongly placed on the defendant, and, therefore, since the plaintiff has not led any evidence, in view of the provisions of Section 74(3) of the Act, the suit was required to be dismissed. .11. On the other hand, learned Counsel for the respondent supported the impugned Judgment . Placing reliance on the Judgment of Hon’ble the Supreme Court, in Jahuri Sah’s case, it was contended, that since there was no specific denial on the side of the defendant, about the Plaintiff No. 1, not being registered partnership firm, and the other plaintiffs being shown as partners in the certificate issued by Registrar of Firms, showing them to be partners, and, therefore, the learned trial Court has rightly appreciated the evidence of the plaintiff , and found it to have been proved, that the firm is registered, and the other plaintiffs are shown to the partners of the firm. Then, an alternative submission was made, that for the sake of arguments even if it is assumed, that the plaintiff has failed to prove to be registered partnership firm, and has also failed to prove, that the other plaintiffs are shown to be partners in the register, still the bar of Section 69(2) is not attracted, for the simple reason, that for attracting the bar of Section 69(2), not only the suit should have been filed on behalf of the firm, but suit should be for enforcement of ‘right arising from a contract’, while in the present case the suit is not for enforcement of any of the ‘right arising from contract’, but is a suit for claiming damages for tortuous liability of the defendant, and the liability arises under the Indian Carriers Act, being a common law duty of the carrier, and that the learned trial Court has rightly found this aspect in favour of the plaintiff , by relying upon the Judgment of Hon’ble Calcutta High Court, in Umarani’s case. Reliance was also placed on the Judgment of Hon’ble the Supreme Court, in M/s. Haldiram Bhujiwala vs. M/s. Anand Kumar Deepak Kumar, AIR 2000 SC 1287 . Then, reference to the provisions of Section 80(b) of the Act was made, and it was submitted, that it is not necessary for the plaintiff to implead all the railway administration, other than the destination railway. Then, reference to the provisions of Section 80(b) of the Act was made, and it was submitted, that it is not necessary for the plaintiff to implead all the railway administration, other than the destination railway. Then regarding right of the plaintiff to maintain the suit, despite not being shown as consignor, or consignee, in railway receipt, reliance was placed on the Judgment of Allahabad High Court, in Dominion of India vs. Messers Gaya Pershad Gopal Narain, AIR 1956 Allahabad 338, and that of .the Judgment of Hon’ble the Supreme Court, in the Union of India vs. Ishwarnand Saraswat, AIR 1966 SC 395 . Then, it was lastly contended, that the appellant has failed to establish, that the accident was not on account of negligence or misconduct on the part of the railway administration. It was the duty of the defendant to show, as to what maintenance was required in respect of the track, as well as carriages, in order to avoid accidents, and to prove it, to have been undertaken. On the other hand, rather from the defendant’s evidence it is clear, that the track was having cracks, which cracks aggravated, and resulted into breakage of railway line, and the accident occurred. Thus, it is clear, that the defendant had not taken due care and caution to avoid accident, which by itself amounts to negligence. That apart, even after happening of the accident, no steps were taken by the railway to mitigate the damages, inasmuch as the goods were allowed to remain lying at the accident site for good long period of practically four months, exposing them to the vagaries of weather, and therefore, on the plaintiff proving the quantum of damages suffered by him, he is entitled to be granted decree for the said amount, and in the present case, the plaintiff has satisfactorily established the quantum, and therefore, no interference is required to be made in the impugned decree. 12. I have considered the submissions, and have closely gone through the record, the relevant provisions of law, and various Judgment s cited at the bar. 13. At the outset it may be observed, that so far as the quantum of damages, said to have been suffered, as has been assessed by the learned trial Court is concerned, it has not been challenged on the side of the appellant, inasmuch as no submissions were made in that regard. 13. At the outset it may be observed, that so far as the quantum of damages, said to have been suffered, as has been assessed by the learned trial Court is concerned, it has not been challenged on the side of the appellant, inasmuch as no submissions were made in that regard. Therefore, I need not detain on that. .14. Then taking up the contention about maintainability of the suit without impleading the other railway administration as party defendant, in my view, apart from the fact, that as noticed above, no legal authority was pointed out by the learned Counsel for the appellant to substantiate the contention, the contention stands sufficiently answered by the express provisions of Section 80(b) of the Act, which reads as under :- .“(b) if the passenger was, or the animals or goods were, booked through over the railway or two or mote railway administrations, against the railway administration from which the passenger obtained his pass or purchased his ticket or to which the animals or goods were delivered for carriage, as the case may be, or against the railway administration on whose railway the destination station lies, or the loss, injury, destruction, damage or deterioration occurred”. 15. A perusal of the above language does show, that it clearly prescribes and confers right on the plaintiff to file suit on any one or more of the railway administration, in cases where the goods are to be transported through more than one railway administration. 16. Then, I take up the contention about the plaintiff’s right to file a suit, despite not being consignor or consignee. In this regard, on factual aspects from perusal of the Judgment of learned trial Court, and from reading of the statement of the witnesses produced by the plaintiff , including PW. 2 Ratanlal, and PW. 3 C.C. Malu, and that of the plaintiff Jhanwarlal, read with the documents, including Exhs. 2 to 6, and Exh. 17, it is clearly established, that the plaintiff had paid the price of the goods, to the consignor, and had thereby acquired the ownership of the goods. What is significant to note is, that of this entire evidence of the plaintiff , there is no rebuttal whatever, even worth the name. Even during course of arguments, this factual aspect was not contested, by contending that the title in the goods did not pass to the plaintiff . What is significant to note is, that of this entire evidence of the plaintiff , there is no rebuttal whatever, even worth the name. Even during course of arguments, this factual aspect was not contested, by contending that the title in the goods did not pass to the plaintiff . In that view of the matter, I am at one with the finding of the learned trial Court, recorded on Issue No. 2, about the plaintiffs having become owner of the goods by having paid the price, and that being the position, in my view, the plaintiffs were clearly entitled to maintain the present suit. Learned Counsel for the respondent has rightly placed reliance on the Judgment s, in Gaya Prashad’s case, and Ishwarnand’s case. In Ishwarnand’s case, of course, the suit were filed for damages to the goods against the railway, and those suits were decreed upto the High Court, and before Hon’ble the Supreme Court the contention was raised by the railway, to the effect, that the factory being consignor could not maintain the suit, as consignee only could maintain the suit, and Hon’ble the Supreme Court observed in Para 10 as under :- “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”. 17. It was further observed as under :-“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 to decide whether in the case of five consignments booked to the J.C. Mills, the title to the goods had passed to the Mills before the fire broke out on 08.03.1943”. 18. In that case it was found by the learned Courts below, that the title to goods had passed to J.C. Mill till that date, and it was still with the consignor. Thereafter Hon’ble the Supreme Court affirmed the concurrent findings recorded by the two learned Courts below, and decree was upheld. 18. In that case it was found by the learned Courts below, that the title to goods had passed to J.C. Mill till that date, and it was still with the consignor. Thereafter Hon’ble the Supreme Court affirmed the concurrent findings recorded by the two learned Courts below, and decree was upheld. Thus, the principle propounded in Ishwarnand’s case is, that out of the consignor and consignee, or any body else for that matter it is the person, in whom title to the goods rests, is entitled to maintain the suit, in case of damage to the goods, while they are with the railway authority in transit. Likewise in Gaya Prasad’s case, the full bench of the Allahabad High Court was referred the precise question, as to whether the consignee, who is not the owner of the goods, but to whom the goods are 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. In that case, four different persons booked wagons of oranges, each of them consigned it to the plaintiff , the plaintiff took delivery, and found the goods to be deteriorated, and thus refused to take delivery, and found the goods to be deteriorated, and thus refused to take delivery of the other three wagons, and took delivery of one wagon only. Thereupon the consignee filed suit, and the contention raised before the Full Bench was, that the commission agent does not suffer any loss by reason of deterioration of the goods, and therefore, he cannot sue, while the plaintiff’s contention was, that he was holder of the title, and was entitled to receive delivery of goods, therefore, he had sufficient interest in the goods, to sue for the damages. Considering this controversy, it was held, that it is well established in India, that not only can parties to a contract sue upon it, but also persons who are entitled to a benefit under it, or to whom the rights created by it have been transferred. Then, referring to the Judgment of Privy Council in Mercantile Bank of India Ltd. vs. Central Bank of India Ltd., AIR 1938 PC 52, wherein the person in whose favour the railway receipt was endorsed was held to be the consignee. Then, referring to the Judgment of Privy Council in Mercantile Bank of India Ltd. vs. Central Bank of India Ltd., AIR 1938 PC 52, wherein the person in whose favour the railway receipt was endorsed was held to be the consignee. Then, referring to various other Judgment s, it was ultimately held in Para 26 that if the goods have deteriorated to such an extent that delivery cannot be properly made, their equivalent, which is their cash value, must be delivered to the consignee, and it is the consignee, who can enforce payment of this cash value, which is, after all what the suit for damages is. Thus, in view of the above two Judgment s, I have no hesitation in holding, that the consignee is entitled to maintain the present suit, in view of his having proved to have acquired title in the goods, by making payment of the price thereof to the consignor, through Bank. 19. I may now take up the contention raised about the manner in deciding the suit, i.e., dismissing the application filed by the defendant on 10.04.1987, for not returning the document to the plaintiff , and then deciding the suit. In this regard it may be observed, that the sequence of things is, that on 23.08.1986 the plaintiff filed an application under Order 13 Rule 2, Civil Procedure Code, seeking to produce copy of the entry of register of firms. This application was opposed, by filing a reply on 010.1986, and that application was dismissed by the learned trial Court, vide order dated 02.01.1987, as on that date it was not pressed by the plaintiff . Thereafter the defendant filed the above application on 10.04.1987, praying that the document be not returned to the plaintiff , and since by then the case was already fixed on 15.04.1987, the application was taken up on that day, on which date since nobody appeared as the lawyers were on strike, the case was adjourned to 22.04.1987, on which date again the strike continued, and the learned trial Court considered the case on merits, and observed regarding application, that as and when it is found necessary, appropriate orders will be passed on the application. However, that very day the Judgment was given, and the application was dismissed. However, that very day the Judgment was given, and the application was dismissed. In my view, in the totality of circumstances, this dismissal of the application, has no bearing whatever, on the decision of the case on merits. Even at the cost of repetition it may be observed, that by the application under Order 13 Rule 2, the plaintiff sought to produce certified copy of the list of partners, obtained from the Registrar of Firms, and that application was got dismissed as not pressed; obviously, with the result, that the document was not taken on record. In the application dated 10.04.1987, it was not the case of defenda