On June, 7, 1946, 169 bales were delivered to the appellant to whom the Railway Receipt had been endorsed.
By a letter dated July 9, 1946, the appellant companyfirmed the telegram and requested the General Manager to see that the remaining bales reached the destination immediately.
At that time the damage done to the goods was assessed by agreement between the appellant, the B. A. Railway and the H. Railway at Rs.
Out of these bales 169 reached the destination on or about June 7, 1946.
The damage was jointly assessed by the Commercial Inspector, D. H. Railway, and the Claims Inspector, Bengal Assam Railway, at Rs.
As the appellants claim was number settled, he instituted a suit in the companyrt of Subordinate Judge, Darjeeling, on April 9, 1948, To that suit the Dominion of India, presumably as representing the I. P. Railway, E. 1.
Railway and the B. A. Railway was made defendant No.
Appeal from the judgment and decree dated March 15, 1956 of the Calcutta High Court in Appeal from Original Decree No.
The admitted fact are briefly these.
The suit was decreed against the D.H. Railway way only by the trial Court for Rs.
31 of the Limitation Act was barred by time.
The appellant, therefore.,
34,192 for damage suffered by it as a result of the negligence of the railways in carrying the goods.
236 of 1949.
It may be mentioned that the companysignment had to pass over the railway systems of G. I. P. Railway, East Indian Railway, Bengal Assam Railway, and Darjeeling Himalayan Railway.
The D. H. Railway preferred an appeal against the judgment of the trial Court to the High Court at Calcutta.
26, 92013 6 against the second defendant and dismissed the suit against the first defendant.
The goods had been booked through to be carried over all these railways.
27,920 13 6.
The appellant thereafter on January 29, 1948, sent a numberice under s. 80 of the Code of Civil Procedure to the Secretary of the Railway Department, Government of India, making a demand of Rs.
Open delivery was given to the appellants assistant manager, Tulsi Ram, P.W. 1, on February 12, 1947, by the Commercial inspector, D.H. Railway.
The appellant had companysigned 259 bales of cloth from Wadi Bunder.,
About September 1946, the wagon companytaining the 90 bales Was traced at a station called Gadkhali on the A. Railway.
On the same day Mr. Chatterjee sent a similar letter to the G. I. P. Railway administration.
Thereupon the liquidators were added as appellants.
a station on the Great Indian Peninsular Railway number the Central Railway to Giellekhola, a station on the Darjeeling Himalayan Railway number in liquidation on May 10, 1946.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
Two written statements were, however, filed by the Dominion of India, one as representing the G. I. P. Railway and the other as representing the E. I. Railway.
N. Mukherjee and D. Gupta, for respondent No.
On this finding the learned Subordinate Judge passed for a decree Rs.
Railway.
At some stage of the litigation the D. H. Railway Company went into liquidation and the liquidators were brought on the record.
It does number appear that any numberice was given to the E. 1.
The main companytesting defendant was the D. H. Railway.
The second defendant preferred an appeal before the High Court but shortly thereafter went into liquidation.
In order to reach Giellekhola the goods had to be carried over four railways, namely, the G. P. Railway, East Indian Railway, hereafter Called the I. Railway, the Bengal Assam Railway, hereafter called the A. Railway and the D. H. Railway.
Rameshwar Nath, for the respondent Nos.
402 of 1959.
was delivered by Mudholkar, J. SARKAR.,
1 to 3.
This sum was made up of the aforesaid ,sum of Rs.
The following judgment were delivered.
May 2.
34,192 against the Manager of the B. A. Railway, the General Manager of the D. H. Railway and Messrs. Gillander Arbuthnot Co., Managing Agents for H. Railway.
This demand was repudiated by the railways.
It is, however,, number necessary to refer to this companyrespondence and to certain other companyrespondence which has been referred to in the statement of the case except to the letter dated December 21, 1946, addressed by the appellant to the D. H. Railway stating that they have companye to know that the companysignment had arrived at Giellekhola in a very damaged companydition and requesting that open delivery of the companysignment be given immediately.
But the Superintendent of Claims of that Administration at Bombay repudiated the claim on the ground that it had number been preferred within six months from the date of booking as required by s. 77 of the Indian Railways Act, 1890 Act IX of 1890 .
J. This appeal arises out of a suit for recovery of damages in respect of 90 bales out of 259 bales of cloth delivered on May 10, 1946, at Wadi Bunder station on the Great Indian Peninsula Railway, hereafter called the G. I. Railway, to be carried from there to Giellekhola a station on the Darjeeling Himalayan Railway, hereafter called the D. H. Railway.
By a letter dated June 26, 1947, Mr. A. C. Chatterjee, Advocate, made a claim of Rs.
27,920 13 6 and the assessment list was signed by them as well as by Tulsi Ram.
The appellant also filed across objection companytending that the suit should have been decreed against all the railways and the decree should have been for the full amount claimed by it.,
The judgment of Subba Rao and Mudholkar, JJ.,
B. Aggarwala and Sukumar Ghose, for the appellant.
on April 9, 1948, filed the suit for damages.
Eventually the plaintiff amended the cross objection and sought a decree in the alternative against the G. I. P. Railway or the E. 1.
1, the second defendant being the D. H. Railway.
The appellants claim was denied by both the defendants.
A demand for a similar sum was made on the D. H. Railway.
27,920 13 6 and certain other sums on account of the difference between the ex mill price and the retail price of the goods and of the refund of the railway freight.
At all material times the railways other than the D. H. Railway, were owned by the Government of India, the D. H. Railway being owned by a private companypany.
27,920 13 6.
Various companyrespondence thereafter ensued as to the remaining 90 bales with which alone the present litigation is companycerned.
Thereafter on February 12, 1947 , open delivery of the companytents of the 90 bales was given to the appellant.
Railway.
Further companyrespondence ensued and the 90 bales actually arrived at Giellekhola shortly prior to December 21, 1946, on which date, having found the companysignment in a very damaged companydition, the appellant requested the D. H. Railway to give open delivery.
Hence the present appeal.
As the remaining bales had number reached the destination the appellant sent a telegram on July 1,1946, to the General Manager of the D. H. Railway requesting him to give early delivery of those bales.
Thereafter some companyrespondence followed between the appellant and the Political Officer, Sikkim, to whom the bales were to be delivered by the appellant, and also between the Political Officer and the D. Railway administration.
