1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.613 OF 1996 Union of India, ..Appellant represented by the General Managers of Central and Northen Railways, Bombay V. T. V/s. Maharashtra State Co-operative ..Respondent Marketing Federation Limited, Bombay Mr.A.N.Samant, Advocate, for the appellant None for the respondent CORAM : C. L. PANGARKAR, J. DATE : 11TH FEBRUARY, 2010 JUDGMENT . This is an Appeal by Union of India against the Judgment and Decree passed by the Railway Claims Tribunal, Bombay against it. 2. The respondent/original plaintiff is Maharashtra State Co-operative Marketing Federation Limited, Bombay. The Government of Maharashtra has a major institute in the membership of the original plaintiff  2 Federation and played the role of sponsering the Organization. Marketing is one of the functions of the plaintiff  Organization. The Government of Maharashtra called upon the plaintiff to make purchase of onions produced by the Agriculturists in the year 1983-84 and to sale them at places out of Maharashtra. The plaintiff was directed to prepare Scheme for the same. The plaintiff, therefore, set up Onion Purchase Centres in the State of Maharashtra and under the supervision of the plaintiff purchased Onions. The plaintiff even appointed Commission Agents for the sale out of the State of Maharashtra. The plaintiff decided to despatch 575 bags to its Commission Agent at Jalandar, State of Punjab. Accordingly, the plaintiff loaded 575 bags carefully in the wagon belonging to the appellants. It was expected that the wagon should reach at Jalandar within reasonable time. The Railway Authorities i.e. the Appellants issued a Railway Receipt in favour 3 of the respondent/original plaintiff. It is the contention of the plaintiff that wagon in which the goods were loaded did not at all arrive at destination station. Therefore, the Commission Agent was required to send back the Railway Receipts to the plaintiff. The plaintiff addressed notices to the appellants/original defendants. The appellants/original defendants did not settle the claim. The plaintiffs, therefore, sought to recover the price of the goods despatched and damages suffered by it. 3. The appellants/original defendants contested the Suit. The main contention of the appellants/original defendants was that the plaintiff was not owner of the goods and had no title to the goods and was not therefore entitled to institute the Suit for recovery of price and damages. Further, it is the contention of the appellants/original defendants that the Suit could have been 4 instituted only against one Railway and not against two Railways. However, it is contended that the consignment had reached destination on 29th June, 1984 but nobody came to take delivery of the goods and therefore, the goods were sold by public auction. The plaintiff also contends that when the wagon reached Jalandar on 29th June, 1984, 33 bags were found in partly good condition, 17 bags were in partly damaged condition and 525 bags were in partially damaged condition. 4. The learned Member of the Tribunal framed issues and after recording the evidence passed a Decree against the present appellants. Feeling aggrieved thereby, this Appeal has been preferred by the present Appellants. 5. I have heard the learned counsel for the Appellants and the learned counsel for the respondents. 5 6. The learned counsel for the Appellants mainly urged four grounds before me in support of the Appeal. First ground is that plaintiff does not have title to the goods and therefore, has no locus-standi to file the Suit. Second ground is that the receipt bears an endorsement of said to contain and therefore, exact quantity loaded cannot be said to be proved. Third ground is that no Decree can be passed against both the Railways. Fourth ground is that the consignee did not take delivery of the goods after the consignment reached destination. 7. I, shall, deal with each submission one by one. As regards the first submission, the pleadings need to be looked into. It is specifically pleaded by plaintiff that upon direction of the State Government it purchased the goods. Thus, it is clear that plaintiff itself purchased the goods but upon direction 6 and policy of the State Government. Thus, in fact, to my mind in any case, plaintiff is the consignor. The consignor certainly has a right to claim the damages for loss caused to the goods and in respect of the goods not delivered at all. The Tribunal has rightly dealt with this contention and I do not find anything wrong with it. The Railway Receipt does show an endorsement said to contain as well as Loading not supervised . The Railway Receipt shows that 575 bags were loaded and the charges of Transporation were accordingly charged. The Appellant/Railway cannot advance an argument about there being no proof of loading of 575 bags in the wagon. The Written Statement of Appellant/Railway itself is eloquent in this regard. The Appellant/Railway in paragraph seven of the Written Statement admits that 33 bags were partially in a good condition, 17 bags were partially in damaged conditon and rest of the 525 bags were partially in damaged condition. 7 This pleading itself shows that 575 bags were found in the wagon at the time of unloading at destination station. The argument therefore, has to be rejected and a fact, admitted need not be proved. The third contention is regarding requirement to institute Suit against only one Railway is however correct in view of the provisions of the Railways Act and also a decision in the First Appeal No.1136 of 1992 decided on 6th May, 2005. 8. The final contention that was raised is that though, the goods reached destination nobody had come forwarded to take delivery of the goods and therefore, the Railway was justified in selling the goods in auction. The negligence on the part of the Railways in this case in handling the consignment is writ large. Hence, to my mind no blame can be put at the door of the consignee in not taking the delivery. The consignment was booked on 26th May, 1984, and it reached destination on 8 29th June, 1984. Obviously, it reached the destination after more than a month. It ought to reach the destination at the most in week's time. The Railway did not tender any evidence about normal time of delivery and also in respect of handling of consignment. It must, therefore, be said that it was Railway administration, who was negligent in handling the consignment. If the goods reached the destination after more than one month they are bound to be damaged in transit being perishable. There is nothing on record to suggest that the consignor was informed of arrival of consignment. The consignee is not supposed to make an enquiry about consignment for weeks together particularly, when the goods are perishable. Therefore, if, after 15 days the consignee did not make enquiry about delivery the blame cannot be put at his door. He is not expected to visit the Office of the Railway for months together to find out if the consignment has arrived. The pleadings show 9 that almost entire consignment was in damaged condition. The damage to the consignment is the result of delay in transit. This is certainly a case of non-delivery. The Railway is squarely liable to make the good the loss. 9. In the circumstances, I pass the following Order. (i) The Appeal is partly allowed. (ii) The Order passed by the Tribunal is modified to the extent that the Decree shall be executed only against Central Railway. (iii) No order as to costs. (C.L.PANGARKAR, J.)