Union Of India (Uoi) vs Mohan Behari Jasod Kumari And Ors.
2004 Latest Caselaw 828 Del

JUDGMENT

Gita Mittal, J.

1. The present appeal has been preferred against the judgment and decree dated 3rd May, 1980 passed by the learned Additional District Judge in civil suit no. 117/1979 entitled Mohan Behari Jasod Kumari Versus Union of India and M/s Oswal Stores by the Union of India, defendant no. 1 in the suit.

2. M/s Mohan Behari Jasod Kumari, plaintiff, arrayed as respondent no. 1 herein, had brought the civil suit no. 117/1979 on the plea that it lodged two consignments with the Railway Administration at New Delhi for carriage and delivery to itself at Aluabari Road. These two consignments were duly accepted and booked at one rate which was the railway risk rate prescribed by the Railways for the booking of such consignments. It was contended that these suit consignments were clubbed with other two consignments which had been booked on 11th September, 1977. All four consignments were in perfectly sound condition at the forwarding station and were loaded and packed as per the railway rules. It was also contended that sufficient grass and husk dunnage were provided by M/s. Mohan Behari Jasod Kumari and that the containers in which the packing was done were brand new. The plaintiff further contended that the requisite conditions of P3 were fully complied with in all the four consignments.

3. On the averment that consignments of oil were prohibited from loose/hump and rough shunting and alleging gross negligence and misconduct on the part of the Railway Administration/its servants, it was stated by the plaintiff that the consignments were handled roughly enroute. As a result the tins burst. There was also pitching and denting of the tins and heavy leakage of the oil. Layers were badly disturbed and signs of oil leakage were appearing on the roof of the wagon. The suit consignments were received at the destination station in a badly leaking condition.

4. The plaintiff contended that this fact was brought to the notice of the authorities before the delivery and removal of the consignment from the Railway premises. As a result the plaintiff was granted open delivery of the suit consignments. A shortage certificate was also issued by the Railway authorities to the plaintiff. On assessment, though the actual loss was much more, the plaintiff was able to compute the following losses :

Consignment No. I : 120 tins were delivered in a badly burst, pitched and dented condition and contents were short by 1349.9 Kgs.

Consignment No. 2 : 105 tins were delivered in a badly burst, pitched and dented condition and contents were short by 1392 Kgs.

5. The plaintiff claimed that on account of the aforesaid leakage and damage suffered, it lodged its claim for compensation and served the defendant no. 1 with a composite notice dated 26th November, 1977 under Section 78(B) of the Indian Railways Act of 1961 as well as Section 80 of the Code of Civil Procedure. The defendant no. 1 acknowledged the receipt of the said notice but the claim of the plaintiff was repudiated by the Railway Administration on baseless and flimsy grounds. The plaintiff contended in its plaint that there was presumptive proof of the railway's negligence and misconduct on account of the leakage in the suit consignment and that the defendant no. 1 was liable to compensate the plaintiff with a sum of Rs. 28,424/- The plaintiff abandoned the claim to the extent of Rs.424/- and claimed recovery of Rs. 28,000/- only in the suit.

6. The plaintiff claimed that it sold the suit consignment to M/s Oswal Stores who was arrayed as defendant no. 2 in the plaint (respondent no. 2 in the present appeal). The consignment was sold with the terms and conditions that the loss in transit was to be borne by the plaintiff.

7. The plaintiff also claimed that it had sent all the four railway receipts of the clubbed consignment through the bank against payment of the Hundi for the value of the goods to defendant no. 2. On learning of the heavy leakage in the suit consignments, the defendant no. 2 refused to honor the Hundi amount and refused to retire the railway receipts from the bank. The defendant no. 2 refused to take delivery unless the plaintiff agreed to compensate him for the leakage received by them and consequent losses. As such, the plaintiff asked the bank to release the railway receipts of both the suit consignments free of charges to the defendant no. 2.

8. The plaintiff claimed that in view of the foregoing, the proprietary interest in the suit goods remained vested with the plaintiff who remained the legal owners of the suit goods and as such are the rightful claimant of the suit amount. It was also stated that the defendant no. 2 took delivery of the suit consignments on behalf of the plaintiff and sent the shortage certificate to the plaintiff for preferring the claim with the Railway Administration.

9. As the plaintiffs remained the rightful owners of the suit goods and have actually suffered the loss, the defendant no. 2 was imp leaded as a party merely to avoid any technical objection being raised by defendant no. 1(appellant herein). The defendant no. 2 was merely the 'endorsed consignee' and further the cause of action had accrued in favor of the plaintiff as the appellant had failed to disclose to the plaintiff as to the manner in which the suit consignments were dealt with in transit and had also failed to account for their leakage at the destination station. Therefore, the plaintiff was entitled to the amount claimed. The defendant no. 1 finally having failed to comply with the notice demand made by the plaintiff, the suit in question praying for a decree of Rs. 28,000/- together with litigation costs and interest pendente lite in future at the rate of 12% was brought against the defendants.

10. In the written statement filed by the defendant no. 1 several technical and other objections were taken including the plea that the plaintiff was not a registered partnership firm and that the plaint had not been signed, verified nor the suit instituted by one of the registered partners. It was also averred that loading and unloading of the suit consignments was the responsibility of the consignor who had not comply with the prescribed packing conditions set out in form P3. It was averred that though the tins appeared to be new but these were apparently defective, their soldering and joints were weak. The defendant no. 1 stated that remarks to this effect were made by the consignor on the original forwarding note. It had also been observed thereon that the contents of the tins were liable to leak in transit. The defendant no. 1 contended that it had taken requisite precautions by posting labels on the consignment to the effect that it was " not to be loose shunted". The defendant no. 1 sought to absolve its liability by stating that the wagon had reached the destination station in reasonable time without undue detention enroute. The consignments were clubbed, booked and received in wagon no. WRC 34415. Strong objection was taken that though the plaintiff was the consignor of the goods but the delivery was taken by the endorsed consignee i.e.M/s.Oswal Store and title as such passed on to M/s.Oswal Stores. It was contended that the plaintiff had no title to the goods and it was not the owner of the goods. Hence, it was stated, that the plaintiff did not have any locus standi to bring or maintain the suit. The receipt of the legal notice was denied as also all averments of negligence and misconduct. The defendant no. 1 had stated that the plaintiff had no cause of action for bringing or maintaining the suit or against the plaintiff and that the claim was false to their knowledge.

11. All pleas raised by the defendant no. 1 were repudiated by the plaintiff in its replication.

12. On the pleas of the parties, vide its order dated 28th August, 1979 the trial court framed the following seven issues :-

1.      Whether the plaintiff is a registered                   partnership firm and the plaint has been                        signed and verified by a duly authorised                        person?OPP
 

        2.      Whether the plaintiffs have any locus standi                             to file the present suit?OPP
    

     3.      Whether the plaintiff got the goods                     mentioned in para no. 2 of the plaint booked            at Railway risk rate, if not, to what                   effect?OP Parties.
       

  4.      Whether the defendants were not negligent                       in the carriage of the goods?OPD(onus                   objected to).
         

5.      Whether a valid and legal notice under                  Section 80 CPC and Section 78(B) of the                         Indian Railways Act was served on the                   defendant?OPP
         

6.      To what amount, if any, is the plaintiff                        entitled?OPP
         

7.      Relief.
 

13. In support of its case the plaintiff examined Sh. Prabhu Bhatia, Claim Recoverer as PW1 and Sh. Devi Dayal, its Manager, as PW2. Detailed evidence was recorded and the witnesses were put to extensive cross examination. The defendants however failed to produce any evidence. Consequently a detailed order was made by the learned trial judge on 14th April, 1980 closing the evidence of the defendants and the matter proceeded to judgment. Upon a detailed consideration of the entire material on record including pleadings of the parties and oral and documentary evidence, the learned trial judge returned findings on all the issues in favor of the plaintiff and passed a judgment and decree dated 3rd May, 1980 for a sum of Rs. 28,000/- with costs.

14. The judgment and decree dated 3rd May, 1980 has been impugned by the defendant no. 1 in this court inter alia on the ground that the learned trial judge ought to have permitted it to produce its evidence and it cannot be made to suffer for default of its counsel. It has been contended that the order closing the evidence of the defendant no. 1 is contrary to law and amounts to denial of reasonable opportunity. On behalf of the defendant no. 1 it is vehemently contended that the plaintiff had no locus standi to file the suit. It is contended that the learned trial judge failed to appreciate that the delivery was taken by the endorsed consignee and that as such title in the consignment had passed on to M/s. Oswal Store, the defendant no. 2. The submission is that in this view of the matter issue no. 2 ought to have been decided in favor of the defendant no. 1. It has also been contended that there was no material or evidence for holding that the defendant no. 1 was negligent in the carriage of the consignment in any manner as loading and unloading of the consignment was the responsibility of the consignor who failed to comply with the prescribed conditions. It has been urged that the learned trial judge erred in not noticing that the wagons had reached the destination in time and were not lose anywhere en-route and that it was the fault of the plaintiff consignor who had failed to properly pack the oil in its tins without any proper joltings and strings and that there was inherent weakness in the case of the plaintiff and the plaintiff had failed to prove its case. According to the appellant, the learned trial judge had also erred in placing the onus of issue no. 1 & 4 upon the defendant no. 1 and not granting it reasonable opportunity for proving its case. It has been contended that there is no basis for recording the findings in the manner they have been recorded by the learned trial judge in the impugned judgment and decree and that the same was liable to be set aside and quashed.

15. We have given our thoughtful consideration to the submissions made on behalf of the appellant and perused the record of the trial court.

16. The appellant has not challenged the findings of the learned trial judge on issue no. 1 and as such the same does not require further discussion. However the findings returned by the learned trial judge on issue no. 2, 3, 4 & 5 have been seriously challenged.

17. Issue no. 2 raises the question of locus standi of the plaintiff to institute the present suit. The plaintiff has proved on record a letter dated 19th December, 1977 as ExP17 wherein M/s. Oswal Store(defendant no. 2 before the trial court) notified the Chief Commercial Superintendent - Claims that it had taken delivery of the suit consignments for and on behalf of M/s. Mohan Behari Jasod Kumari who are the consignors and owners of the consignments. They also notified the concerned authority of the appellant that they had no objections if the claim arising out of the consignments was paid to plaintiff directly. The delivery of the goods was also taken by M/s. Oswal Stores for and on behalf of the plaintiff. The trial court has placed reliance on the evidence of PW2 wherein during course of his cross examination he had repeated that the defendant no. 2 had notified the plaintiff vide a letter dated 24th September, 1977 that he would not retire the railway receipts inasmuch as the goods were in a damaged condition. It is noteworthy that the appellant also treated the plaintiff as the owner of the goods. The shortage certificate was also issued by the defendant no. 1 to the plaintiff for this reason.

18. Reliance had been placed on an unreported decision dated 27th January, 1977 of this court in CR No. 401/1973 entitled Union of India Vs M/s Chand & Co wherein a similar issue had been answered in favor of the consignor. In this behalf, reference could be made to the Division Bench decision reported at AIR 1971 Assam & Nagaland 59 relied upon by the trial court. The Division Bench held as hereunder :-

"In our opinion, the railway receipt is not negotiable in the sense that the bill of lading is under the Indian Bills of Lading Act, 1856, or a negotiable instrument is under the provisions of the 'Negotiable Instruments Act, 1881, according to the rules of the Law Merchant. The railway receipt cannot, therefore, confer on the endorsee such rights as are available under the provisions of the above two Acts. We may in passing note the provisions of Section 1 of the Indian Bills of Lading Act, which read as follows :-

"Every consignee of goods named in a bill of lading, and every endorsee of a bill of lading, to whom the property in the goods therein mentioned shall pass, upon or by reason of such consignment or endorsement shall have transferred to and vested in him all rights of suit, and be subject to the same liabilities in respect of such goods as if the contract contained in the bill of lading had been made with himself."

The definition in Section 2(4) of the Sale of Goods Act and the provisions of Section 137 of the Transfer of Property Act do not lead to the vesting of a right of suit on a plaintiff by mere endorsement of the railway receipt in his favor. The endorsee, apart from the endorsement, must establish that right to property in the goods has also passed in his favor and that he is the owner of the goods to enable him to institute a suit against the railway which is founded on the basis of the original contract, breach of which is only claimed. The consignor has always the right to sue as he was a party to the original contract with the railway. The plaintiff, in order to institute a suit against the railway, must implead the consignor or the goods, which are consigned, deriving his title from the original consignor. Transfer of the contract in favor of the plaintiff has also to be proved in the ordinary course under the Law of Contract. We are unable to find any custom or any provisions of law entitling the endorsee, by virtue of the mere endorsement, to institute the suit against the railway. It is interesting that even though the problem has been there and with the above conflict of judicial decisions, the Legislature has left the matter untouched even in the recent amendments of the Indian Railways Act. In our judgment, the plaintiff-endorsee of a railway receipt must establish his title to the goods represented by the railway receipt and no hard and fast rule can be laid down as to what sort of evidence may be sufficient to establish that claim. The Court will have to judge in each case whether the plaintiff has established such claim in the light of the pleadings and the evidence, oral or documentary, produced before it".

19. The question as to whether title in the consignment passes in favor of an endorsee of the consignment from the consignor was urged before the Hon'ble Supreme Court of India in entitled Commissioner of Income Tax Vs Bhopal Textiles Ltd., Bhopal, entitled Morvi Markentile Bank Vs Union of India, entitled Union of India Vs Sood Factories. In all these matters, the Supreme Court was of the view that the question as to whether title of goods as passed would be dependent on evidence other than mere endorsement.

20. In the instant case, the endorsee M/s. Oswal Store has not only notified the railway authorities that the plaintiff continued to remain owner of the goods but it has also been established in the evidence on behalf of the plaintiff that it continued to retain title and ownership in the consignments in question. The defendant no. 1 also has accepted this fact.

21. Learned counsel for the appellant was unable to point out any material to the contrary or to show as to how the plaintiff ceased to be the owner of the consignment by the mere endorsement on the railway receipt. As such the plaintiff remained the owner. The plaintiff therefore had every right to seek its remedy and the locus standi to file the suit. In this view of the matter, the finding recorded by the learned trial judge deserves to be affirmed and it is to be held that the issue has been rightly decided in favor of the plaintiff and against the defendant no 1.

22. The matters raised in issues no. 3, 4 & 5 are intermingled. There is no real dispute to the facts established on record. Detailed oral evidence corroborated by supporting documentary evidence in the nature of Railway receipts etc. has been proved on record. The nature of consignments and their damaged condition is not disputed by the appellant. The appellant failed to lead any evidence in support of its case. The clear and cogent evidence of the plaintiff in this behalf remains unrebutted. The appellant has contended that loading and unloading was the responsibility of the consignor. In our view nothing turns on this inasmuch as the allegations of negligence and resulting damage to the goods relate to the transit of the consignment from one point to another. The case of the plaintiff is not that the defendant no. 1 - appellant and its officials were negligent while loading or unloading the consignments but that the defendant no. 1 - appellant failed to exercise due care and carried the consignments negligently from the point at which it was loaded to the point where it was unloaded.

23. There is no material whatsoever on record to show that due care was taken. The learned trial judge has disbelieved the endorsement by the officials of the Railway to the effect that the tin soldering was defective or joints weak on the Railway receipts. There was no warrant for the railways taking responsibility for carriage of a consignment in such condition. The person who endorsed these remarks has not been produced in the witness box. There is no material to support such endorsement.

24. On the contrary, the plaintiffs have examined Sh. Devi Dayal, Manager of the plaintiff firm as PW2 who has categorically stated that all the tins were new and packing was done by placing groundnut husk on the floor of the wagon in between the layers and in between the tins and walls of the wagon. His testimony to this effect and further that the tins were duly tied with strings could not be shaken even in cross examination. It is also duly established that the goods were received at the destination in a totally damaged and dented condition. Sh. Devi Dayal Taneja in his cross examination had stated that he had raised an objection against the endorsement made by the Recording Clerk with regard to the nature of the tins and their having defective soldering and weak joints but the booking clerk had insisted on recording those remarks as according to the clerk it was their usual practice. No evidence to the contrary is forthcoming on record.

25. The remarks endorsed on the Railway receipts are also suspect in view of the fact that the forwarding note which was in the power in possession of the defendant no. 1 - appellant ought to have contained the same remarks. The plaintiff summoned this forwarding note from the defendant no. 1 but the appellant has failed to produce the same.

26. The learned trial court has further placed reliance on the judgment of a learned single judge of this court reported at 1997 RLR Note 29 entitled Avtar Singh Harbans Singh Vs Union of India. We are in respectful agreement with the ratio of this decision. In view of the clear and cogent evidence on behalf of the plaintiff that it had duly packed the consignment as was required under the applicable guidelines as well as due care had been exercised by it in loading the consignment, the onus of proving that the packing was defective was clearly on the Railways and the least it could have done was to produce the forwarding note issued at the time of taking the consignment into custody which was to be the case of the Railways.

27. It is a settled principle of law that irrespective of the burden of proof, the party in possession of the best evidence is bound to produce the same. In this behalf regard be made to the judgment of the Supreme Court of India . The forwarding note was in the power and possession of the defendant no. 1. It is not disputed that the same was material contemporaneous documentary evidence which was not produced. Adverse inference is, therefore, to be drawn against the defendant no. 1 for failure to produce the documents.

28. It has been mentioned on the Railway receipts ExP7 & P8 that the consignments were prohibited from loose/hunp and rough shunting. Admittedly the condition of the tins which was taken on delivery at the destination station would show that the consignment was roughly handled. The Railway authorities issued a shortage certificate at the time of delivery of the consignment. Merely because the train reached the destination on time would not militate against negligence on the part of the Railway administration in handling the consignments.

29. The provisions of the Section 77 of the Indian Railways Act may also appropriately be referred to at this stage. The provision reads as hereunder :-

"Section 77. (I) A railway administration shall be responsible as a bailee under Sections 151, 152 and 161 of the Indian Contract Act, 1872(IX of 1872), for the loss, destruction, damage, deterioration or non-delivery of goods carried by railway within a period of thirty days after the termination of transit :

Provided that where the goods are carried at owner's risk rate, the railway administration shall not be responsible for such loss, destruction, damage, deterioration or non-delivery except on proof of negligence or misconduct on the part of the railway administration or of any of its servants.

(2) The railway administration shall not be responsible in any case for the loss, destruction, damage, deterioration or non-delivery of goods carried by railway, arising after the expiry of the period of thirty days after the termination of transit.

(3) Notwithstanding anything contained in the foregoing provisions of this section, a railway administration shall not be responsible for the loss, destruction, damage, deterioration or non-delivery of the goods mentioned in the Second Schedule, animals and explosives and other dangerous goods carried by railway, after the termination of transit.

(4) Nothing in the foregoing provisions of this section shall relieve the owner of animals or goods from liability to any demurrage or wharfage for so long as the animals or goods are not unloaded from the railway wagons or removed from the railway premises.

(5) For the purposes of this Chapter, --

(a) unless otherwise previously determined, transit terminates on the expiry of the free time allowed(after the arrival of animals or goods at destination) for their unloading from railway wagons without payment of demurrage, and where such unloading has been completed within the free time so allowed, transit terminates on the expiry of the free time allowed for the removal of the animals or goods from railway premises without payment of wharfage ;

(b) 'demurrage' and 'wharfage' have the meanings respectively assigned to them in clause (d) and clause (h) of section 46C.

30. Therefore the statute places the responsibility on the Railways for any loss, destruction, damage, deterioration of non-delivery of goods carried by Railways within the period of 30 days after termination of transit provided that the goods had been carried at the owner's risk rate.

31. It is apparent that the onus of proving that the packing was defective was clearly on the railways. It was found to have produced the forwarding note. Additionally, it was essential to prove that the tins were defective and that packing was insufficient was on the railways. No evidence to this effect was led by the appellant - defendant no. 1. The forwarding note was also not produced. In these circumstances, the burden of negligence on the part of the defendant no.1 did not shift to the plaintiff. The plaintiff was thus entitled to the value of the oil which had leaked having dispatched the material in sound condition as per the claim of the plaintiff and the defendant no. 1 is clearly liable for the damage resulting on account of its negligence.

32. There is no other rate except the Railway risk rate under which the present consignments could have been taken delivery of. We therefore have no hesitation in holding that the consignment was roughly handled due to negligence on the part of the appellant resulting in damage to the consignment and the findings recorded by the trial court in this regard are justified. In this view of the matter, the appellant has rightly been held responsible for the damage done to the consignment. The findings of the trial court recorded on issue nos. 3 & 4 are also deserved to be upheld.

33. There was a laconic challenge to the service of a notice by the plaintiff. The challenge is wholly untenable. The learned trial court has returned a finding in favor of the plaintiff on issue no. 5 to this effect. The plaintiff has examined PW1 Sh. Prabhu Bhatia, a Claim Recoverer in this behalf. PW1 has proved copy of the notice served on 26th November, 1977. The evidence of this witness in this regard remains unrebutted on record. The witness has proved personal delivery of the notice in the Office of the General Manager, Northern Railway, New Delhi as well as service by registered acknowledgment due post. Copy of the notice, postal receipts and acknowledgment due cards have been proved as ExP1, P2, P3 & P4 respectively. Perusal of the notice shows that it is a composite notice under Section 78B of the Indian Railways Acts and under Section 80 of the Code of Civil Procedure. The appellant has lead no evidence to the contrary and was not able to even shake the testimony of this witness in the witness box. Perusal of the notice would show that it satisfies all his requirements of the statutes and was duly served on the appellant. We see no reason to disturb the finding recorded by the learned trial court on this issue.

34. So far as the relief which the plaintiff would be entitled is concerned, the extent of shortage is stated on the certificate issued by the defendant no. 1. This fact is admitted in its written statement also. The rates at which the plaintiff effected sales of the rapeseed oil, which was the subject matter of the consignment, is concerned was proved by the plaintiff by placing reliance on its accounts as well as through oral testimony. Neither the oral testimony of the witnesses nor the documents relied upon and proved by the plaintiff could be challenged by the defendant no. 1 in any manner. The plaintiff had effected purchase of the consignments vide bills which were exhibited on record as ExP18 - P20 which was duly entered in the accounts of the plaintiff. The relevant entries made in the accounts of the plaintiff were proved on record as Exhibits P21 - P23.

35. It had come in the evidence of the plaintiff that it had suffered shortage in the weight of the oil consignments to the tune of 1349.9 Kgs. And 1392.5 Kgs. respectively. This shortage was even mentioned in the shortage certificate issued to the plaintiff by the defendant no. 1. The plaintiff also proved on record that during the relevant period the market rate of refined rapeseed oil was Rs.137.45 p to Rs.143.45 p per tin and that of unrefined oil was Rs.130.50 p per tin. The net weight of one ton of refined oil was 15 Kg and of unrefined oil was 16 Kgs per ton. The learned trial judge assessed the loss suffered by the plaintiff on account of the short supply of Rs.1349.9 Kgs. of unrefined rapeseed oil at the rate of Rs.10/- per kilogram and short supply of Rs. 1392.5 kgs of refined rapeseed oil @ Rs.10.60 per kilo. The value of the total short supply comes to Rs.28,424/- However, the plaintiff has claimed only Rs.28,000/- which amount has been awarded by the trial court.

36. Though the appellant would persuade us to say that the order recorded for closing its evidence was not justified, however learned counsel for the appellant - defendant no. 1 has been unable to justify its conduct in non-filing of any list of witnesses and for non-production of its witness on the dates fixed for its evidence before the trial court. The defendant no. 1 - appellant was bound to produce its evidence on the first occasion itself keeping in view the nature of the controversy. As no witness was produced by the defendant no. 1 on 10th January, 1980, the learned trial court had fixed the defendant's evidence on 3rd & 4th March, 1980. On the 3rd March, 1980 the learned trial court has noticed in its order that though the case was fixed for recording of defendant's evidence, no witness had been summoned nor anyone on behalf of the defendant was present. Statement of learned counsel for the defendant no. 1 was recorded to the effect that they had only to examine officers of the Railways who were absent despite requests. The learned trial court noticed that issues were framed and plaintiff had closed its evidence on 10th January, 1980, yet no steps had been taken by the defendant for summoning its witness despite opportunity having been given and that there was no reasonable explanation from the appellant/defendant no. 1 for failure of the witnesses. Even though the negligence was inexplicable still the learned trial court was pleased to adjourn the case for defendant's evidence to 14th April, 1980 subject to cost of Rs. 75/-

37. Despite another opportunity having been given, the defendant no. 1/appellant failed to produce any evidence even on 14th April, 1980. Costs imposed on the last date were not tendered. The defendant no. 1 failed to produce its evidence despite grant of sufficient opportunity. In these circumstances there was no option for the trial court but to close the evidence of the appellant/defendant no. 1. The case was set down for arguments and proceeded to judgment. Learned counsel for the appellant has been unable to show any unreasonableness or illegality in the order recorded by the trial court closing the evidence of the appellant.

38. In our view, the plaintiff had succeeded in fully establishing its claim and case. We see no merit in the appeal. In our considered view, the judgment and decree is liable to be sustained. The appeal is, therefore, dismissed.

39. We make no order as to the costs of the present proceedings.