# West Bengal Sarkar]. I959 October 28 I959 Union of India v. A1nar Siiigh

- **Citation:** [1960] 2 S.C.R. 75
- **Court:** Supreme Court of India
- **Decided:** 1960
- **Case number:** Civil Appeal No. 478 of 1957
- **Bench:** P. B. Gajendragadkar, K. SuBBA RAo, J. c. SHAH
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/west-bengal-sarkar-i959-october-28-i959-union-of-india-v-a1nar-siiigh-1775
- **Pages:** 15

## Headnote

-
Contract-bnplied contract of bailment--Goods entrusted to
Pakistan Railway for delivery in India-Pakistan Railway handing
over goods to Indian Railway-Loss of goods-Liability of Indian
Railway to consignor-Limitation for suit for compensation for loss
.:_Indian Contract Act, r872 (IX of r872), ss. r48 and r94-lndian
Limitation Act, r908 (IX of r908) Schedule I, arts. 30 and 3r.
The respondent booked certain goods on September 4, 1947,
with the N. W. Railway at Quetta in Pakistan to New Delhi.
The wagon containing the goods was received at the Indian
border station of Khem Karan on November l, 1947, duly sealed
and labelled indicating its destination as New Delhi. It reached
New Delhi on February 13, 1948,
and was unloaded on
February 20, lQ48, but no immediate information was sent to the
respondent. On June 7, 1948, the respondent was asked by the
E. P. Railway to take delivery of the goods lying at New Delhi
station but when the respondent went there the goods were not
traceable. Again, on July 24, 1948, .the respondent was asked to
take delivery of the goods when only a small portion of the goods
I959
N. R. Ghose.
.v.
The State of
West Bengal
Sarkar].
I959
October 28
I959
Union of India
v.
A1nar Siiigh
76
SUPREME COURT REPORTS tl960(2)]
were offered to him subject to the payment of Rs. r,067-8-0 as
freight but the respondent refused to take delivery. On August 4,
r949, the respondent filed a suit for Rs. l,62,123 with interest as
compensation for non-delivery of goods against the Dominion o1
India. The trial court found that the E. P. Railway was guilty
of negligence in handling the goods and decreed the suit for
Rs. 80,000, and on appeal the High Court confirmed the decree.
The appellant contended that there \Vas no privity of contract
between the respondent and the E. P. l~ailway and he could only
have a claim against the N. W. Railway in Pakistan, and that the
suit was barred by limitation.
Held, that there was an implied contract of bailment between
the respondent and the E. P. Railway and that Railway was
liable for the loss.
The conduct of the parties indicated that the
respondent delivered the goods to the N. W. Railway with an
authority to create the E. P. Railway as his immediate bailee
from the point the wagon was put on its rails.
The N. W. Railway must be deemed to have had implied authority to appoint
the E. P. Railway to act for the consignor during the journey of
goods by the E. P. Railway and by force of s. 194 of the Indian
Contract Act, the E. P. Railway became an agent of the consignor. The N. W. Railway left the wagon with the E. P. Railway
and the latter consciously took over the responsibility of the
bailee, carried the wagon to New Delhi and offered to deliver the
goods to the respondent. The respondent also accepted this
relationship.
From these facts, even if an agency could not be
implied, a t~cit agreement between the t\VO Railways to carry
the respondents goods to New Delhi could be implied resultirg in
a contract of bailment between the E. P. Railway and respondent.
J{ulu Ram Maigraj v. The Madras Railway Company, l.L.R.
3 Mad. 240, G.I.P. Railway Co. v. Radhakisan Kushaldas, I.L.R.
5 Born. 371, Bristol and Exeter Railway v. Collins, VII H.L.C. 194
and De Busschc v. Alt, (1878) L.R. 8 Ch. D. 386, referred to.
Held, further that the suit was not barred by limitation.
Even if art. 30 of the Indian Limitation Act applied, as contended
for by the appellant, the burden was on the appellant, who
sought to non-suit the respondent, to establish that the loss
occurred beyond one year from the date of the suit. Thus the
appellant had failed to establish by any clear evidence.
CIVIL
APPELLATE
JURISDICTION:
Civil Appeal
No. 478 of 1957.
Appeal from the judgment and
decree dated
August 17, 1954, of the Punjab High Court, Circuit
Bench at Delhi, in Regular ]'irst Appeal No. 76of1952,
arismg
out of the judgment and decree dated
December 15, 1951, of the Court of Sub-Judge, 1st
Class, Delhi in Suit No. 169of1

## Text

.,
-
SUPREME COURT REPORTS
75
· As the appellant cannot contend that his acquittal
by Mr. Dutta Gupta was an acquittal by a court of
competent. jurisdiction, he cannot plead s. 403· in
support of this appeal. I appreciate that the view
that I- have taken is hard on the appellant. But it
does not seem to me that he was entirely without a
remedy. I would have been prepared to give relief to
the appellant if he had appealed from the judgment
of Chm:ider J. and for that purpose I would have felt
no difficulty in extending the time to appeal. As it is,
I feel that the appeal must be dismissed.
ORDER OF COURT.
In accordance with the opinion of the majority ·the
appeal is allowed; the order of the Calcutta High
Court directing the complaint to be proceeded within the Court of the Sub-Divisional Magistrate is set
aside, and the proceedings against the appellant are
quashed.
UNION OE' INDIA
v.
AMAR SINGH
(P. B. GAJENDRAGADKAR, K. SuBBA RAo and
J. c. SHAH, JJ.)
-
Contract-bnplied contract of bailment--Goods entrusted to
Pakistan Railway for delivery in India-Pakistan Railway handing
over goods to Indian Railway-Loss of goods-Liability of Indian
Railway to consignor-Limitation for suit for compensation for loss
.:_Indian Contract Act, r872 (IX of r872), ss. r48 and r94-lndian
Limitation Act, r908 (IX of r908) Schedule I, arts. 30 and 3r.
The respondent booked certain goods on September 4, 1947,
with the N. W. Railway at Quetta in Pakistan to New Delhi.
The wagon containing the goods was received at the Indian
border station of Khem Karan on November l, 1947, duly sealed
and labelled indicating its destination as New Delhi. It reached
New Delhi on February 13, 1948,
and was unloaded on
February 20, lQ48, but no immediate information was sent to the
respondent. On June 7, 1948, the respondent was asked by the
E. P. Railway to take delivery of the goods lying at New Delhi
station but when the respondent went there the goods were not
traceable. Again, on July 24, 1948, .the respondent was asked to
take delivery of the goods when only a small portion of the goods
I959
N. R. Ghose.
.v.
The State of
West Bengal
Sarkar].
I959
October 28
I959
Union of India
v.
A1nar Siiigh
76
SUPREME COURT REPORTS tl960(2)]
were offered to him subject to the payment of Rs. r,067-8-0 as
freight but the respondent refused to take delivery. On August 4,
r949, the respondent filed a suit for Rs. l,62,123 with interest as
compensation for non-delivery of goods against the Dominion o1
India. The trial court found that the E. P. Railway was guilty
of negligence in handling the goods and decreed the suit for
Rs. 80,000, and on appeal the High Court confirmed the decree.
The appellant contended that there \Vas no privity of contract
between the respondent and the E. P. l~ailway and he could only
have a claim against the N. W. Railway in Pakistan, and that the
suit was barred by limitation.
Held, that there was an implied contract of bailment between
the respondent and the E. P. Railway and that Railway was
liable for the loss.
The conduct of the parties indicated that the
respondent delivered the goods to the N. W. Railway with an
authority to create the E. P. Railway as his immediate bailee
from the point the wagon was put on its rails.
The N. W. Railway must be deemed to have had implied authority to appoint
the E. P. Railway to act for the consignor during the journey of
goods by the E. P. Railway and by force of s. 194 of the Indian
Contract Act, the E. P. Railway became an agent of the consignor. The N. W. Railway left the wagon with the E. P. Railway
and the latter consciously took over the responsibility of the
bailee, carried the wagon to New Delhi and offered to deliver the
goods to the respondent. The respondent also accepted this
relationship.
From these facts, even if an agency could not be
implied, a t~cit agreement between the t\VO Railways to carry
the respondents goods to New Delhi could be implied resultirg in
a contract of bailment between the E. P. Railway and respondent.
J{ulu Ram Maigraj v. The Madras Railway Company, l.L.R.
3 Mad. 240, G.I.P. Railway Co. v. Radhakisan Kushaldas, I.L.R.
5 Born. 371, Bristol and Exeter Railway v. Collins, VII H.L.C. 194
and De Busschc v. Alt, (1878) L.R. 8 Ch. D. 386, referred to.
Held, further that the suit was not barred by limitation.
Even if art. 30 of the Indian Limitation Act applied, as contended
for by the appellant, the burden was on the appellant, who
sought to non-suit the respondent, to establish that the loss
occurred beyond one year from the date of the suit. Thus the
appellant had failed to establish by any clear evidence.
CIVIL
APPELLATE
JURISDICTION:
Civil Appeal
No. 478 of 1957.
Appeal from the judgment and
decree dated
August 17, 1954, of the Punjab High Court, Circuit
Bench at Delhi, in Regular ]'irst Appeal No. 76of1952,
arismg
out of the judgment and decree dated
December 15, 1951, of the Court of Sub-Judge, 1st
Class, Delhi in Suit No. 169of1949/409 of 1950.
,_
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-
S.C.R.
SUPREME COURT REPORTS
I
77
•
Ga;napathy Iyer and D. Gupta, for the appellant.
. Gurbachan §ingh and Harbans Singh, for the respondent.
1959. October 28.
The Judgment of the Court was
delivered by
SuBBA RAO J.-This appeal on a certificate granted
by the High Court of J uq.icature for Punjab at
Chandigarh is directed against its judgment confirming
that of the Subordinate Judge, First Class, Delhi, in a
suit filed by the respondent against the appellant for
the recovery of compensation in respect of non-delivery
of goods entrusted by the former to the latter for
transit to New Delhi.
On August 15, 1947, India was constituted into two
Dominions, India and Pakistan; and soon thereafter
civil disturbances broke out in both the Dominions.
The respondent and others, who were in government
employment at Quetta, found themselves caught in the
disturbances and took refuge with their household
effects in a government camp. The respondent collected
the goods of himself and of sixteen other officers, and
on September .4, 1947, booked them at Quetta Railway
Station to New Delhi by a passenger train as per parcel
way bill No. 317909. Under the said bill the respondent was both the consignor and consignee. The
N. W. Railway (hereinafter called the Receiving
Railway) ends at the Pakistan frontier and the E. P.
Railway (hereinafter called the Forwarding Railway)
begins from the point where the other line ends; and
the first railway station at the frontier inside the
Indian territory is Khem Karan. The wagon containing the goods of the respondent and others, which was
du9-' sealed and labelled indicating its destination as
New Delhi, reached Khem Karan from Kasur, Pakistan,
before November 1, 1947, and the said wagon was
intact and the entries in the "inward summary "
tallied with the entries on the labels. Thereafter it
travelled on its onward march to Amritsar and reached
that place on November 1, 1947. There also the
wagon was found to be intact and the label showed
that it was bound to New Delhi from Quetta. On
November 2, 1947, it reached Ludhiana and remained
z959
Union of India
v.
Amar Singh
Subba Rao].
I959
Union of India
v.
Amar Singh
Subba Rao].
78
SUPRETuIE COURT REPORTS [1960(2)]
there between November 2, 1947 and January 14,
1948; and the "vehicle summary" showed that the
wagon had a label showing that it was going from
Lahore to some unknown destination. It is said that
the said wagon arrived in the unloading shed at New
Delhi on :February 13, 1948, and it was unloaded on
February 20, 1948; but no immediate information of
the said fact was given to the respondent. Indeed,
when the respondent made an anxious enquiry by his
letter dated February 23, 1948, the Chief Administrative Officer informed him that necessary action would
be taken and he would be addressed again on the
subject. After further correspondence, on June 7,
1949, the Chief Administrative Officer wrote to the
repondent to make arrangements to take delivery of
packages lying at New Delhi Station, but when the
respondent went there to take delivery of the goods,
he was told that the goods were not traceable. On
July 24, 1948, the respondent was asked to contact one
Mr. Krishan Lal, Assistant Claims Inspector, and take
delivery of the goods. Only a few articles, fifteen in
number and weighing about 6! maunds, were offered
to him subject to the condition of payment of
Rs. 1,067-8 0 on account of freight, and the respondent
refused to take delivery of them. After further correspondence, the respondent made a claim against the
Forwarding Railway in a sum of Rs. 1,62,123 with
interest as compensation for thP, non-delivery of the
goods entrusted to the said Railway, and, as the
demand was not complied with, he filed a suit against
the Dominion of India in the Court of the Senior Subordinate Judge, Delhi, for recovery of the said amount.
The defendant raised various pleas, both technical
and substantive to non-suit the plaintiff. The learned
Subordinate Judge raised as many as 15 issues on the
pleadings and held that the suit was within time, that
the notice issued com plied with the provisions of the
relevant statutes, that the respondent had locus standi
to file the suit and that the respondent had made out
his claim only to the extent of Rs. 80,000; in the result,
the suit was decreed for a sum of Rs. 80,000 with
proportionate costs.
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S.C.R.
. SUPREME COURT REPORTS
79.
The appellant carried the matter on appeal to the
High Court of Punjab, which practically accepted all the
findings arrived at by the learned Subordinate Judge
and di'Smissed the appeal.
In this Court the appellant questions the correctness
·of the said decree. Learned Counsel for the appellant
raised before' us the following points: (1) there was no
privity of contract between the respondent and the
Forwarding Railway, and· if he had any claim it was
only against the Receiving Railway; (2) the. suit was
barred by limitation both under Art. 30. and Art 31 of
the Indian Limitation Act and it was not saved by
any acknowledgement or acknowledgements of the
claim made within s. 19 of the Limitation Act ; and
(3) the notice given by the respondent under s. 77 of
th.e Indian Railways Act, 1890, did not comply with
the provisions qf the said section inasmuch as the
claim for compensation made thereunder was not preferred within six months from the date of the delivery
of the goods for carriage by the Railway.
1The third point may be taken up first and disposed
of shortly. Before the learned Subordinate Judge it
was conceded by the learned Counsel for the defendant
that the notice, Ex. P-32, fully satisfied the requirements of s. 77 of the Indian Railways Act, and on
that concession it was held that a valid notice under
s. 77 of the said Act had been given by the respondent.
In the High Court no attempt was made to question
the factum of this concession; nor was it questioned
by the appellant in its application for special leave.
As the question was a mixed one of fact and law,
we would not be justified to allow the appellant at
this very late stage to reopen the' closed matter. We,
therefore, reject this contention.
The learned Counsel for the appellant elaborates
his first point thus:. The Receiving Railway, •he
argument, proceeds, entered into an agreement ""1th
the respondent to carry the goods for consideration to
their destination i.e., New Delhi, and in carrying out
the terms of the contract it might have employed the
agency of the Forwarding Railway, but the consignor
was not in any way concerned with it and if loss was
I959
Union of lndia
v •.
Amar Singh
Subba Rao].
z959
lfnion of lnd1'a
v.
Amar Singh
Subba Rao].
80
SUPREME COURT REPORTS [1960 (2)J
caused to him by the default or neligence of the
Receiving Railway, he could only look to it for
compensation and he had no cause of action against
the Forwarding Railway.
•
This argument is not a new one but one raised
before and the Courts offered different solutions based
on the peculiar facts of each case. The decided cases
were based upon one or other of the following principles: (i) the Receiving Railway is the agent of the
Forwarding Railway; (ii) both the Railways constitute a partnership and each acts as the agent of the
other; (iii) the Receiving Railway is the agent of the
consignor in entrusting the goods to the Forwarding
Railway: an instructive and exhaustive discussion on
the said three principles in their application to varying
situations is found in Kulu Ram Maigraj v. The
Madras Railway Company('), G. I. P. Railway Co. v.
Radhakisan Khushaldas ('), and Bristol And Exeter
Railway v. Collins (3); (iv) the Heceiving Railway,
which is the bailee of the goods, is authorized by the
consignor to appoint the Forwarding Railway as a
sub-bailee, and, after such appointment, direct relationship of bailment is constituted between the consignor
and the sub-bailee ; and ( v) in the case of through
booked traffic the consignor of the goods is given an
option under s. 80 of the Indian Railways Act to
recover
compensation either from the Railway
Administration to which the goods are delivered or
from the Railway Administration in whose jurisdiction
the loss, injury, destruction or deterioration occurs.
Some of the aforesaid principles cannot obviously be
applied to the present case.
The statutory liability
under s. 80 of the Indian Railways Act cannot be
invoked, as that section applies only to a case of
through booked traffic involving two or more Railway
Administration in India; whereas in the present case
the Receiving Railway is situated in Pakistan and the
Forwarding liailway in the Indian territory. India
and Pakistan are two independent sovereign powers,
and by the doctrine of lex loci contractus, s. 80, cannot
(1) I.L.R. 3 Mad. 240,
(2) I.L.R. 5 Born. 371
(3) VII H L.C. 194.
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S.C.R.
SUPREME COURT REPORTS
81
apply beyond the territories of India; nor can the
respondent rely upon the first two principles.. There
is no allegation, much less proof, that there was any
treaty arrangement between these two states governing
the rights inter se in the matter of through booked
traffic.
This process of eliminati"on leads us to the considera-
.tion of the applicability of principles (iii) and (iv) to
the facts of the preseat case.
The problem presented
can only be solved by invoking the correct principle
of law to mould the relief on the basis of the facts
found.
We shall first consider the scope of the fourth
principle and its applicability to the facts of this case.
Section 72 of the Indian Railways Act says that the
responsibility of a railway administration for the loss,
destruction or deterioration of .animals or goods delivered to the administration to be carried by railway
shall, subject to the other provisions of the Act, be
that of a bailee under ss. 151, 152 and 161 of the
Indian Contract Act, 1872. Section 148 of the Indian
Contract Act defines "bailment " thus :
" A 'bailmeilt' is the delivery of goods by one
person to another for some purpose, upon a contract
that they shall, when the purpose is accomplished,
be returned or otherwise disposed of according to the
directions of the person delivering them."
G. W. Patson in the book "Bailment in the Common
Law" says, at p. 42, thus:
"If a bailee of a res sub-bails it ·by' authority,
then according to the intention of the parties, the
third person may become the immediate bailee of
the owner, or he may become a sub-bailee of the
original bailee".
·
At p. 44 the learned author illustrates the principle by
giving as an example a carrier of goods entrusting
them to another carrier for .part of the journey. One
of the illustrations given by Byles J. in Bristol And
Exeter Railway v. Collins (1) is r&ther instructive and it
(1) VII H.L.C. 194. 212,
H
Union of India
v.
Amar Singh
Subba Rao].
19$9
Union of India
v.
Amar Singh
Subba Rao j.
82
SUPREME COUl{T REPORTS [1960(2)]
visualises a situation which may be approximated to
the pres'ent one and it is as follows :
"The carrier receiving the goods may, therefore,
for the convenience of the public or his customers,
adopt a third species of contract. He may say,
"We do not choose to undertake responsibilities for
negligence and accidents beyond our limits of
carriage, where we have no means of preventing
such negligence or accident; and we will not, therefore, undertake the carriage of your goods from A. to
B., but we will be carriers as far as our line extends,
or our vehicles go, and we will be carriers no further; but to protect you against the inconveniences
and· trouble to which you might be exposed if we
only undertook to carry to the end of our line of
carriage, we will undertake to forward the goods by
the next carriers, and on so doing our liability shall
cease, and our character of carriers shall be at an
end; and for the purpose of so forwarding and of
saving the trouble of two payments, we will take
the whole fare, or you may pay as one charge at the
end; but if we receive it_ we will receive it only as
'
your agents for the purpose of ultimately paying
the next carriers."
We may add to the illustration the further fact that
the Forwarding Railway is in India, a foreign country
in relation to the country in which the Receiving
Railway is situate.
Relying upon the said passages, an argument is
advanced to ~he effect that the consignor i.e .. , the respondent, authorised his bailee, namely, the Receiving
Railway, to entrust the goods to the Forwarding
Railway during their transit through India to their
destination and the facts disclosed in the case sustain
in the said plea.
There is no document executed
between the respondent and the Receiving Railway
whereunder the Receiv.ing Railway was expressly
authorized to create the Forwarding Railway the
immediate bailee of the owner of the goods. Ex. P-50,
the railway receipt dated September 4, 1947, does n0t
expressly confer any such power.
But the facts found
in th(;) ca,se irresistibly lead to that conclusion, Ther\l
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SUPREME COURT REPORTS
83
was no treaty between the tw_o countries in the matter
of through booked traffic; at any rate, none has been
placed before us.
What we find is only that the
Receiving Railway received the goods of the respondent and delivered the wagon containing the said
goods to the care of the Forwarding Railway, and the
latter took over charge of the wagon, carried it to .
New Delhi and offered to deliver the goods not lost
to the respondent on payment of .the railway freight.
In the absence of any . contract between the two
Governments or the Railways, the legal basis on which
the conduct of the respondent and the Railways can be
sustained is that of the respondent delivered the goods
to the Receiving Railway with an authority to create
the Forwarding Railway as his immediate bailee from
the point the wagon was put on its rails.
.
The same result could be achieved by approaching
the case from a different perspective. Section 194 of
the Indian Contract Act says :
"Where an agent, holding an express or implied
authority to name another person to act for the
principal in the business of tire agency, has named
another person accordingly, such person is not a
Rub-agent, but an agent of the principal for such
part of the business of the agency as is entrusted to_
, ,him."
The principle embodied in this section is clearly stated
·by Thesiger L. J. in De Buasche v. Alt (1) at p. 310
thus:
,
" But the exigencies of business do from time to
time render necessary the carrying out of the instructions ·of l principal by a person other than the agent
originally instructed for the purpose, and where that
is the case, the reason of the thing requires that the
rule should be relaxed, so as, on the one hand, to
enable the agent to appoint what has been termed
" a sub-agent" or " substitute " ; and, on the other
hand, to constitute, in the interests and' for the
protection of the principal, a direct privity of
contract between him and such substitute."
.
The aforesaid facts clearly indicate that the respon- ·
dent appointed the Receiving Railway as his agent to
+-
r. (1878) L.R. 8 Ch. D. 286, 310.
r959
Union of India
v.
Amar Singh
Subba Rao].
'959
Union of India
v.
Amar Singh
'.subba Rao].
84
SUPREME COURT REPORTS (196012)]
carry his goods on the railway to a place in India
with whom Pakistan had no treaty arrangement in the
matter of through booked traffic. In that situation the
authority in the agent must necessarily be implied to
appoint the Forwarding Railway to act for the consignor during that part of the journey of the goods by
the Indian Railway; and, if so, by force of the said
section, the Forwarding Railway would be an agent of
the consignor.
·
If no such agency can be implied, in our view, a
tacit agreement between the Receiving Railway and
the Forwarding Railway to carry the respondent's
goods to their destination may be implied from the
facts found ·and the conduct of all the parties concerned. If the Receiving Railway was not an agent of the
Forwarding Railway, and if there was no arrangement
between the two Governments, the position in law
would be that the foreign railway administration,
having regard to the exigencies of the situation obtaining during those critical days, brought the wagon
containiug the goods of the respondent and left it with
the Forwarding Railway, and the latter consciously
took over the responsibility of the bailee, carried the
wagon to New Delhi and offered to deliver the goods
to the respondent. The respondent also accepted that
·relationship and sought to make the Forwarding Railway responsible for the loss as his bailee. On these
facts and also on the basis of the course of conduct of
the parties, we have no difficulty in implying a contract
of bailment between the respondent and the Forwarding Railway.
We may also state thats. 71 of the Indi~n Contract
Act permits the recognition of a contract of bailment
implied by law under circumstances which are oflesser
significancij than those present in this case. The said
section reads :
" A J>erson who finds goods belonging to another
and tali:es them into his custody, is subject to the
same responsiblity as a bailee."
If a finder of goods, therefore, accepts the responsibility
of the goods, he is placed vis-a-vis the owner of the
goods in the same position as a bailee. If it be held
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SUPREME COUR'l' REPORTS
85
that the Railway Administration in Pakistan for
reasons of policy or otherwise left the wagon containing the goods within the borders of India and that the
Forwarding Railway Administration took them into
their custody, it cannot be denied that their responsibility in regard to the said goods would be that of a
bailee. It is true there is an essential distinction
between a contract established from the conduct of the
parties and a quasi-contract implied by law; the
former, though not one expressed in words, is implied
from the conduct and particular facts and.the latter is
only implied by law, a statutory fiction recognized by
law. The fiction cannot be eμlarged by analogy or
otherwise. As we have held that the Iteceiving Railway was authorized by the respondent to engage the
:Forwarding Railway as his agent or as his bailee, this
section need not be invoked. But we would have had
no difficulty to rely upon it if the Forwarding Railway
was equated to a finder of goods within the meaning
of the section.
If so, the next question that arises is what is the
extent of the liability of the appellant in respect of
the goods of the respoQdent entrusted to it for transit
to New Delhi.
We have held that, in the circumstances of the present case, the application of the
provisions of s. 80 of the Indian Railways Act is
excluded. If so, the liability of the ]forwarding Railway is governed by s. 72 of the said Act. Under that
section the responsibility of a railway administration
for the loss, destruction or deterioration of animals .or
goods delivered to the administration to be carried by
railway shall, subject to the other provisions of the
Act, be that of a bailee under ss. 151. 152 and 161 of
the Indian Contract Act, 1872. Under s. 151 of the
Indian Contract Act, the bailee is bound to take such
care of the goods bailed to him as a man of ordinarJ
prudence would under similar circumstances take of
his own goods of the same bulk, quality and value of
the goods bailed; and under s. 152 thereof, in the
absence of any special contract, he is not responsible for the loss, destruction or deterioration of
the thing bailed, if he has taken such amount
I959
Union of India
v.
Amar Singh
SubbaRao ].
z959
lfnion of India
v.
Arnar Singh
.'·iubba Rao J.
86
SUPREME COURT REPORTS [1960(2))
of care of it as described in s. 151.
In other
words, the liability under these sections is one for
negligence only in the absence of a special contract.
Generally goods are consigned under a risk note under
which the Railway Company is absolved of all liability
or its liability is modified.
No such risk note is forthcoming in the present case. The question, therefore,
reduces itself to an enquiry whether, on the facts, the
:Forwarding Railway observed the standard of diligence required of an average prudent men. The facts
found by the High Court as well as by the Subordinate
Judge leave no room to doubt that the Forwarding
Railway was guilty of negligence in handling the
goods entrusted to its care. The wagon reached Khem
Karan intact. D. W. 4_deposed that he received from
the guard of the train that brought the wagon to the
station the inward summary and that on checking the
train with the aid of that summary he found that the
wagon was intact according to the summary. He
also found the seals and labels of the wagon intact
and that the 'inward summary' tallied with the entries
on the labels. It may, therefore, be taken that when
the ]forwarding Railway took over charge of the
goods they were intact. The evidenc!l of P. W. 1, ·
Thakar Das, establishes that e".en at Amritsar the
wn.gon was intact.
But, thereafter in its onward
march towards New Delhi it does not appear on the
evidence that the necessary care was bestowed by the
railway authorities in respect of the said wagon. The
said wagon remained in the yard of Ludhiana Station
between November 2, 1947, and January 14, 1948 and
also it appears from the evidence that when it reached
that place the label showed that its destination was
unknown. What happened during these months is
shrouded in mystery. It is said that the said wagon
-arrived at New Delhi on :February 13, 1948, and that
the Goods Clerk, Ram Chander, unloaded the goods in
the presence of the head watchman, Ramji Lal and
head constable, Niranjan Singh, when it was discovered
that only 15 packages were in the wagon and the
rest were lost.
The Goods Clerk, Ram Chander
(D.W, 4), the head watchman, Rarnji Lal (D. W. 7),
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SUPREME COURT REPORTS
87
the Assistant Train Clerk, Krishan Lal (D. W. 8), and
the head constable, Niranjan Singh (D. W. 16), speak
to the said facts, but curiously no contemporaneous
relevant record disclosing the said facts was filed in
the present case.
We cannot act upon the oral evidence of these interested witnesses in the absence of
such record. No information was given to the respondent about the arrival at New Delhi of the said
wagon.
Only on June 7, 1948, i.e., -nearly four
months after the alleged arrival of the wagon, the
respondent received a letter from the Chief Administrative Officer asking him to effect delivery of the
packages lying in New Delhi Station ; but to his
surprise, when the respondent went to take delivery
no goods were to be- found there. Only on August 18,
1948 the appellant offered to the respondent a negligible part of the goods in a damaged condition subject
to the payment of the railway freight, a.nd the respondent refuse to take delivery of the same. From
the said facts it is not possible to hold that the railway
administration bestowed such care on the goods as is
expected of an average prudent man. We, therefore, hold that the Forwarding Railway was guilty
of negligence.
-
Then remains the question of limitation. The relevant articles are arts. 30 and 31 of the Indian Limitation Act. They read :
·
Description of suit
30.
Against a
carrier
for compensation for
losing or i n j u r i n g
goods.
31.
Against
a
carrier
-
for compensation for
non-delivery
of,
or
delay
in
delivering
goods.
Period
I
of
limitation.
·
One year
One year
Time from ·
which period begins
\to run. ·
When the loss or injury
occurs.
When the goods ought
to be delivered.
Article 30 applies to a suit by a person claiming compensation against the railway for \ts losing or injuring
his goods; and art. 31 for compensation for nondelivery or delay in delivering the goods.
The learned Counsel for the appellant argued that
a.rt, 30 would apply to the suit claim? whereas the
1959
Union of India
v.
Amar Singh
Subba Rao J.
r959
flnion of India
v.
·Amar Singh'
Subba Rao J.
88
SUPREME COURT REPORTS [1960(2)]
learned Counsel for the respondent contended that
art. 31 would be more appropriate to the suit claim.
We shall assume that art. 30 governed the suit claim
and proceed to consider the question,on that basis.
The question now is, when does the period of limitation under art. 30 start to run against the claimant ?
The third column against art. 30 mentions that the
said claim should be made within one year from the
date when the loss or injury occurs. The burden is
upon the defendant who seeks to non-suit the plaintiff
on the ground of limitation to establish that the loss
occurred beyond one year from the date of the suit.
The proposition is self-evident and no citation is
called for.
Has the defendant, therefore, on whom the burden
rests to prove that the loss occurred beyond the prescribed period, established that fact in this case ? The
suit was filed on August 4, 1949. In the plaint the
plaintiff has stated that loss to the goods has taken
place on the _defendant-railway, and, therefore, delivery has not been effected. Though in the written
statement there was a vague denial of this fact the
evidence already noticed by us established beyond any
reasonable doubt that the goods were lost by the Forwarding Railway when they were in its custody. But
there is no clear evidence adduced by the defendant to
prove when the goods were lost. It is argued that the
goods must have been lost by the said Railway at the
latest on February 20, 1948, when the goods are alleged
to have been unloaded from the wagon at the New
Delhi Station; but we have already discussed the
relevant evidence on that question-and we have held
that the defendant did not place before the Court any
contemporaneous record to prove when the goods were
taken out of the wagon.
Indeed, the learned Subordinate Judge in a considered judgment held that it
had not been established by the Forwarding l'tailway
that the goods were lost beyond the period of limitation. The correctness of this finding was not canvassed in the High Court, and.. for the reasons already
mentioned, on this material produced, there was every
justification for the findings. If so, it follows that th\J
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S.C.R.
SUPHEME COURT REPORTS
89
suit was well within time. In this view it is not
necessary to express our opinion on the question
whether there was a subsequent acknowledgment of
the appAllant's liability within the meaning of art. 19
of the Indian Limitation Act.
In the result, the appeal fails and.is dismissed with
costs.
Appeal dismissed.
K. SATW ANT SINGH
v.
THE STATE OF PUNJAB
(and connected petition)
(B. P. SINHA, C.J., JAFER IMAM, J. L. KAPUR,
K. N. W ANCHOO and K. 0. DAS GUPTA, JJ.)
Criminal Trial-J oinder of charges and persons in a single trial
-Person charged with three ojf ences of cheating tried jointly with
abettor-Legality-Place of trial-Sanction to prosecute public
servant, requirement of-Minimum fine prescribed by s·ubsequent
Ordinance, if violates constitutional protection-Code of Criminal
Procedure (Act V of I898), ss. I79. I8o, I97• 234, 239(b)-Indian
Penal Code (Act X LV of I86o), s. 420-Criminal Law Amendment
l Ordinance, I943 (XXIX of I94J), as amended by the Criminal Law
• (I943 Amendment) Amending Ordinance, I9.!J.5 (XII of I945), s. IO
-Constitution of India, Art. 20(I).
The appellant, who had been a contractor in Bnrma, in
response to an advertisement issued in August, 1942, by the
evacuee Government of Burma, then functioning at Simla, invit_ing claims from contractors for works of construction and repairs
executed by them, submitted claims aggregating to several lacs of
rupees. The Government of Burma sent these claims. for verification to Major Henderson at Jhansi in March and May, 1943· as
he was the officer who had knowledge of these matters. He
certified many of these claims to be correct and on his certification
the Government of Burma sanctioned the claims and directed the
Controller of Military ciaims at Kolhapur to pay the amounts.
On the request of the appellant cheques drawn on the Imperial
Bank of India at Lahore were posted to him from Kolhapur and
they were encashed at Lahore. The largeness of such claims
aroused the suspicions of the Government and it was discovered
that the claims made by the appellant were false.
He was tried
in several trials under s. 420 of the Indian Penal Code along with
Henderson, charged under s. 420/109 of the Code for abetment of
those offences, before a special Tribunal at Lahore, functioning
ri
I959
Union of India
v.
Amar Singh
Subba Rao].
z959
October 28