1. The petitioner brought a Small Cause Court suit against the Oudh and Tirhut Railway and the East Indian Railway Administration both of which now vest in the Governor-General in Council for damages for failure to deliver a Consignment of five tins of ghee which were despatched by a firm Messrs. Baijnath Ramkisun from Begusarai Station on 3rd August 1942, to Dhanbad Station. The former station was then on the B. & N.W Railway which was at that time owned by the B. & N.W Railway Company, Limited, but has subsequently been acquired by the Governor-General in Council and is now run under the name, Oudh and Tirhut Railway. The latter station is on the East Indian Railway Company which at all material times belonged to the Secretary of State for India in Council or the Governor-General in Council. The main defence to the case was on three heads: first that the present petitioner had no right to sue; secondly that the Oudh and Tirhut Railway Administration were not liable for any default of the B. & N.W Railway Company, Limited, and thirdly that the goods were lost by mob violence at Mokamah Junction Railway Station on the East Indian Railway Company premises between the 13th and 17th August 1942. The trial Court decided point I against the petitioner and the other two points in his favour. It is conceded that the petitioner was not named in the railway receipt as the consignee. Actually the consignee is shown in the railway receipt as self i.e, the same as the consignor Messrs. Baijnath Ramkisun. Nor was any endorsement made by that firm in favour of the petitioner. On these grounds the trial Court held that the petitioner was not entitled to sue on the contract. Now it was contended before me that the pleadings really contained an admission that the petitioner was the consignee. I cannot agree with this view of the pleadings. Paragraph 2 of the plaint certainly stated that the goods were despatched by Messrs. Baijnath Ramkisun ex Begusarai Railway Station for the plaintiff at Dhanbad and in para. 2 of the written statement on behalf of the East Indian Railway Administration it was stated that this defendant believed that the statements contained in para. 2 of the plaint were substantially correct. I cannot treat this as an admission that the plaintiff was the consignee of the goods or the endorsee of the railway receipt. At most it can be treated as an admission that the consignment was despatched for the benefit of the plaintiff.
2. There are a number of decisions which show that a person to whom a railway receipt has been endorsed has an interest which entitles him to sue for non-delivery of the goods: vide 38 Bom. 255,1 38 Bom. 6592 and 46 ALL. 691.3 This view was also followed in A.I.R 1924 Mad. 5174 where Philips, J., held that a consignee alone could sue for non-delivery of the goods after the goods had been delivered to the railway company for consignment. That decision is against the petitioner's contention in the present case. It was urged before me that the petitioner was admittedly the owner of the goods and that therefore he had a right to sue in respect of the loss. In this connexion I was referred to the decision of the Judicial Committee of the Privy Council in 65 I.A 75.5 That was a case of a dispute between two banks both of which had advanced money on the security of goods covered by a railway receipt. It appears, however, that the receipt was never endorsed in favour of either bank and no question then arose of any right to sue the railway administration because it appears that delivery was actually taken from the railway on production of the railway receipt without objection. In the course of their Lordships' judgment at page 81 of the report appears the following sentence:
“In all the consignments in question in these proceedings the merchants were entitled to obtain delivery of the goods under the railway receipts either because they were named as the consignees or because if they were not so named the document had been endorsed by the named consignee.”
3. This suggests that the right to sue vests either in the consignee or in the person to whom the railway receipt has been endorsed and I do not think in these circumstances the present petitioner had any right to bring a suit. The petition is therefore rejected with costs.
4. Hearing fee one gold mohur.
G.N
5. Petition rejected.
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