{"id":231855,"date":"1965-03-03T00:00:00","date_gmt":"1965-03-02T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/the-morvi-mercantile-bank-ltd-and-vs-union-of-india-through-the-on-3-march-1965"},"modified":"2016-10-23T04:39:28","modified_gmt":"2016-10-22T23:09:28","slug":"the-morvi-mercantile-bank-ltd-and-vs-union-of-india-through-the-on-3-march-1965","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/the-morvi-mercantile-bank-ltd-and-vs-union-of-india-through-the-on-3-march-1965","title":{"rendered":"The Morvi Mercantile Bank Ltd. And … vs Union Of India, Through The … on 3 March, 1965"},"content":{"rendered":"
Supreme Court of India<\/div>\n
The Morvi Mercantile Bank Ltd. And … vs Union Of India, Through The … on 3 March, 1965<\/div>\n
Equivalent citations: 1965 AIR 1954, \t\t 1965 SCR (3) 254<\/div>\n
Author: K Subbarao<\/div>\n
Bench: Subbarao, K., Dayal, Raghubar, Mudholkar, J.R., Bachawat, R.S., Ramaswami, V.<\/div>\n
           PETITIONER:\nTHE MORVI MERCANTILE BANK LTD. AND ANR.\n\n\tVs.\n\nRESPONDENT:\nUNION OF INDIA, THROUGH THE GENERAL MANAGER,CENTRAL RAILWAY,\n\nDATE OF JUDGMENT:\n03\/03\/1965\n\nBENCH:\nSUBBARAO, K.\nBENCH:\nSUBBARAO, K.\nDAYAL, RAGHUBAR\nMUDHOLKAR, J.R.\nBACHAWAT, R.S.\nRAMASWAMI, V.\n\nCITATION:\n 1965 AIR 1954\t\t  1965 SCR  (3) 254\n CITATOR INFO :\n RF\t    1978 SC 389\t (9)\n\n\nACT:\n   Indian  Contract  Act (9 of 1872), s.  178,\tTransfer  of\nProperty  Act (4 of 1882). ss. 4 and 137 and Indian Sale  of\nGoods  Act (3 of 1930), ss. 30 and 53--Endorsel\t of  Railway\nreceipt--If pledgee of goods covered by receipt.\n\n\n\nHEADNOTE:\nA  firm doing business in Bombay entrusted goods  worth\t Rs.\n35,500\tthe  Railway for delivery in Delhi. The\t goods\twere\nconsigned  to  \"self\"  and the\tfirm  endorsed\tthe  railway\nreceipts to a Bank against an advance of Rs. 20,000 made  by\nthe  Bank to the firm. The firm also executed  a  promissory\nnote  in favour of the Bank for that amount. When the  goods\nreached the destination, the Bank refused to take  delivery,\non the ground that they were not the goods consigned by\t the\nfirm. The Bank, thereafter filed a suit for the\t recovery of\nthe value of the goods. The trial court dismissed the  suit.\nOn appeal by the Bank, the High Court allowed the appeal and\ndecreed\t the  claim  for Rs. 20,000 on the  ground  that  as\npledgee\t of  the goods, the Bank suffered loss only  to\t the\nextent\tof the loss of its security. Both the Bank  and\t the\nRailway\t appealed  to this Court, and it  was  contended  on\nbehalf\tof the Railway that the endorsement of\tthe  railway\nreceipt\t in favour of the Bank, did not constitute a  pledge\nof the goods covered by the receipt and that the Bank had no\nright to sue for compensation.\n    HELD: (Per Subba Rao, Raghubar Dayal and Bachawat, J J):\nThe firm by endorsing the railway receipts in favour of\t the\nBank,  for consideration. pledged the goods covered  by\t the\nsaid  receipts, to the Bank, and the Bank being the  pledgee\ncould  maintain the suit for the recovery of the full  value\nof consignment amounting to Rs. 35,500. [264 H; 265 D-E]\nOn a reasonable construction of s. 178 of the Contract\tAct,\n1872,  ss. 4 and 137 of the Transfer of Property Act,  1882,\nand ss. 30 and 53    of the Indian Sale of Goods Act,  1930,\nan  owner  of  goods, can make a valid\tpledge\tof  them  by\ntransferring  the  railway  receipt  representing  the\tsaid\ngoods.\tTo the general rule  expressed\tby the\t Maxim\tnemo\ndat  quod non habet (no one can convey a better\t title\tthan\nwhat  he  had), to facilitate mercantile  transactions.\t the\nIndian\tLaw  has  grafted  some\t exceptions,  in  favour  of\nbonafide pledgees by transfer\t  of documents of title from\npersons. whether owners of goods who do not possess the full\nbundle\tof rights of ownership at the time the\tpledges\t are\nmade,  or  their  mercantile agents. To confer\ta  right  to\neffect\ta  valid  pledge by transfer of\t document  of  title\nrelating to goods     on persons with defects in their title\nto  the goods. and on mercantile agents, and to deny  it  to\nthe full owners thereof, is to introduce an incongruity into\nthe  Act.  On  the other hand, the  real  intention  of\t the\nlegislature  will  be  carried\tout if\tthe  said  right  is\nconceded  to  the  Full\t owner\tof  goods  and\textended  by\nconstruction  to persons with defects in their title to\t the\ngoods or to mercantile agents. A pledge being a bailment  of\ngoods  under s. 172 of the Contract Act, the pledgee,  as  a\nbailee.\t will  have the same remedies as the  owner  of\t the\ngoods  would have against a third person for deprivation  of\nthe  said goods or injury to them under s. 180 of  the\tAct.\n[264 A-C, H]\n\t\t255\n    Ramdas  Vithaldas Durbar v.S. Amarchand and Co.,  (1916)\nL.R. 43 I.A. 164 and The Official Assignee of Madras v.\t The\nMercantile  Bank  of India, Ltd. (1934) L.R.  61  I.A.\t416,\nreferred to.\n    Per Mudholkar and Ramaswami JJ. (dissenting): There\t was\nno valid pledge of the consignments of goods represented  by\nthe  railway receipt in favour of the Bank and the Bank\t was\nnot  entitled  to sue the Railway for compensation  for\t the\nloss of goods, relying upon the endorsements of the  railway\nreceipts in its favour. [272 G-H]\n    After  the\tpassing of the Indian  Contract\t (Amendment)\nAct,  1930, the legal position with regard to the pledge  of\nrailway receipts, is exactly the same in Indian Law as it is\nin  English  Law, and consequently, the owner of  the  goods\ncannot pledge the goods represented by a railway receipt, by\nendorsing   the\t   railway  receipt,  unless   the   railway\nAuthorities  were notified of the transfer, and they  agreed\nto  hold  the  goods as bailee of  the\tpledgee.  Under\t the\namended\t law a valid pledge can no longer be made by  ever.v\nperson\t\"in possession\" of goods. It can only be made  by  a\nmercantile  agent as provided in s. 178 of the Contract\t Act\n(after\tamendment in 2930) or by a person who  has  obtained\npossession of goods under a contract voidable under s. 19 or\ns. 19A of the Contract Act, as provided by s. 178 0 the Act.\nor by a seller or buyer in possession of goods, after  sale.\nas  provided in s. 30 of the Indian Sale of Goods Act.\t[271\nF-G; 272 C-D]\nFurther, though a railway  receipt and all  other  documents\nenumerated  in\ts.  2(4)  of  the  Sale\t of  Goods  Act\t are\nassimilated  to\t bills\t  of lading for the purpose  of\t the\nright  to stoppage in transit and a pledge under s.  178  of\nthe  Contract  Act,  its legal position is the\tsame  as  in\nEnglish\t law,  so  that, no rights are\tcreated,  merely  by\nreason\tof  the\t endorsement of a  railway  receipt  by\t the\nconsignee between the endorses and the railway company which\nhad issued the receipt\t   to the consignee the only  remedy\nof the endorsee being against the endorser. The\t negotiation\nof  the\t receipt may pass the property m the goods,  but  it\ndoes  not transfer the contract contained in the receipt  or\nthe statutory contract under s. 74E of the Indian   Railways\nAct. Negotiability is a creature of a statute or  mercantile\nusage,\tnot of Judicial decisions apart from either. So,  in\nthe  absence  of  any usage    of  trade  or  any  statutory\nprovision  to  that  effect, a\trailway\t receipt  cannot  be\naccorded  the benefits which flow from\tnegotiability  under\nthe  Negotiable\t Instruments  Act,  so\tas  to\tentitle\t the\nendorsee,  as the holder for the time being of the  document\nof title, to sue the carrier --the railway authority--in his\nown  name.  If\tthe claim of the Bank  was  as\tan  ordinary\nassignee  of  the contract of carriage, then  it  had\t  to\nprove  the  assignment.\t In the absence\t of  proof  of\tsuch\nassignment, or of the existence of any practice of merchants\ntreating  a  railway receipt as a symbol of goods  making  a\npledge of the receipt a pledge of goods, and in view of\t cl.\n(3) of the notice printed at the back of the receipt that an\nendorsement made on the face of the receipt by the consignee\nwas only meant to indicate the person to whom the  consignee\nwished\tdelivery of goods to be made if he himself  did\t not\nattend\tto take delivery, the Bank  had no right to sue\t the\nRailway.  [273 E-G; 274 D-G]\n    Since  the\tlanguage of s. 178 of the  Contract  Act  is\nclear  and  explicit, if any hardship and  inconvenience  is\nfelt  because such a practice of treating the receipt  as  a\nsymbol of goods were not recognised. it is for Parliament to\ntake  appropriate steps to amend the law and it is  not\t for\ncourts to legislate under the guise of interpretation.\t[275\nG]\n256\n\n\n\nJUDGMENT:\n<\/pre>\n
    CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 474 and
\n475 of 62.\n<\/p>\n
    Appeal  from the judgment and decree dated\tJanuary\t 10.
\n1958, of the Bombay High Court in Appeal No. 375 of 1953.
\n    J.C.  Bhatt,  B.R.Agarwala\tand  H.K.   Puri,  for\t‘the
\nappellants (in C.A. No. 474 of 1962) and respondent (in C.A.
\nNo. 475 of 1962).\n<\/p>\n
    Niren    De,    Additional\t  Solicitor-General,\tN.D.
\nKarkhanis, B.R.G.K. Achar, for R.N. Sachthey, for Respondent
\n(in C.A. No. 474 of 1962) and appellant (in C.A. Nos. 475 of
\n1962).\n<\/p>\n
    The\t judgment of SUBBA RAO, DAYAL and BACHAWAT  JJ.\t was
\ndelivered  by  SUBBA  RAO,  J.\tThe  dissenting\t Opinion  of
\nMUDHOLKAR and RAMASWAMI JJ. was delivered by RAMASWAMI J.
\n    Subba  Rao,\t J.  On October\t 4.  1949,  M\/s.  Harshadrai
\nMohanlal  &  Co.. a firm doing business\t at  Thana,  Bombay.
\nhereinafter  called the firm, entrusted 4 boxes alleged\t  to
\nhave  contained\t menthol crystals to the then G.LP.  Railway
\nfor carriage from Thana\t to Okhla near Delhi under a railway
\nreceipt\t bearing No. 233\/27. On October 11, 1949,  the\tfirm
\nconsigned  2  more such boxes to Okhla from  Thana  under  2
\nrailway\t receipts  bearing Nos.\t 233\/35 and 233\/36. All\t the
\nsaid 6 boxes were marked with  the name of the said firm and
\nwere  consigned\t to  “self”.  The  said\t firm  endorsed\t the
\nrelevant  railway  receipts in favour of  Morvi\t ‘Mercantile
\nBank  Ltd., hereinafter called the Bank, against an  advance
\nof  Rs.\t 20,000\t made  by the Bank to  the  firm.  The\tsaid
\nconsignments  did  not\treach  Okhla.  The  railway  company
\noffered\t to  deliver  certain  parcels to the Bank, but\t the
\nBank refused to take delivery of the same on the ground that
\nthey  were  not\t the goods consigned by\t the  firm.  As\t the
\nrailway\t failed\t to  deliver the boxes,\t the  Bank,  as\t the
\nendorsee   of  the  said  railway  receipts   for   valuable
\nconsideration, filed Civil Suit No. 50 of 1950 in the  Court
\nof  the\t Civil Judge, Senior Devision.\tThana,\tagainst\t the
\nUnion of India through the General Manager, Central Railway,
\nBombay,\t for the recovery of Rs. 35,500, being the value  of
\nthe  goods  contained in the said consignments\tas  damages.
\nThe  defendant\tin  the written-statement  averred  that  on
\nFebruary 1. 1950, the railway company offered to deliver all
\nthe  consignments  to the Bank, but  the  latter  wrongfully
\nrefused to take delivery of the same on the ground that\t the
\nconsignments  were not identical to the ones consigned\tfrom
\nThana;\tit  put\t the  plaintiff\t to  strict  proof  of\t the
\nallegation that the consignments contained menthol  crystals
\nas  alleged  or\t that  the  aggregate  value  of  the\tsaid
\nconsignments  was Rs. 35,500. or that the  railway  receipts
\nwere  endorsed\tin  favour of  the  plaintiff  for  valuable
\nconsideration.\n<\/p>\n
    The learned Civil Judge found as follows: (1) The  boxes
\nconsigned by the firm contained menthol crystals and by\t the
\nwrongful      conduct  of  the\temployees  of  the   railway
\nadministration the contents of the boxes were lost; (2)\t the
\nsaid consignments were not offered
\n257<\/span>
\nfor  delivery  to  the\tBank,  but  what  was  offered\twere
\ndifferent  consignments\t containing caustic  soda;  (3)\t the
\nrelevant  railway  receipts  were endorsed by  the  firm  in
\nfavour\tof the Bank for valuable consideration; and (4)\t the
\nBank,  as endorsee of the railway recepts, was not  entitled
\nto sue the railway company on the railway receipts for\tloss
\nof the consignments. On those findings the suit filed by the
\nBank was dismissed with costs. The Bank preferred’ an appeal
\nto the High Court against the decision of the  learned Civil
\nJudge, being First Appeal No. 375 of 1953.\n<\/p>\n
    The appeal was heard by a Division\tBench of the  Bombay
\nHigh  Court,  consisting of J.C. Shah and Gokhale,  JJ.\t The
\nlearned\t Judges agreed with the learned Civil Judge  on\t the
\nfirst  3  findings;  but  on the 4th  finding  they  took  a
\ndifferent view. They held that the Bank, as endorsee of\t the
\nsaid railway receipts, was entitled to sue for\tcompensation
\nfor  the  loss suffered by it by reason of the loss  of\t the
\nconsignments, but. as pledgees of the goods, it suffered the
\nloss only to the extent of the loss of its security. On that
\nview, the learned Judges gave a decree to the Bank for a sum
\nof Rs. 20,000 advanced by it with interest and proportionate
\ncosts  in  both\t the Courts. The plaintiff as  well  as\t the
\ndefendant  preferred, by certificate, cross appeals to\tthis
\nCourt.\n<\/p>\n
    Learned  Additional Solicitor  General raised before  us
\nthe  following\tpoints:\t (1) In law  the  endorsement  of  a
\nrailway\t receipt  does\tnot  constitute\t a  pledge;  (2)  an
\nendorsement   of   a  railway  receipt\t for   consideration
\nconstitutes at the most a pledge of the railway receipt\t and
\nnot the goods covered by it. and, therefore, in the  present
\ncase  the  Bank acquired only a right to receive  the  goods
\ncovered\t by the relevant receipts from the railway; and\t (3)
\nif  the\t endorsement  of  the  railway\treceipts  does\t not
\nconstitute  in law a pledge of the goods, the Bank   has  no
\nright to  sue for  compensation, as, though the\t proprietary
\nright  in the goods was transferred to it, the right to\t sue
\ntrader the contracts did not pass to it.\n<\/p>\n
    The\t decision on the first point depends upon the  scope
\nof the legal requirements to constitute a  pledge under\t the
\nIndian\tlaw.  That calls for a careful scrutiny of  all\t the
\nrelevant provisions  of the Indian Contract Act, the  Indian
\nSale  of  Goods Act and the Transfer of\t Property  Act.\t for
\ntheir  combined\t consideration\tyields\tthe  answer  to\t the
\nproblem raised.\n<\/p>\n
    Under the Contract Act, delivery of goods by one  person
\nto  another  under a contract as security for payment  of  a
\ndebt  is a pledge. Ordinarily delivery of tangible  property
\nis essential to a true pledge; but where the law  recognizes
\nthat  delivery\tof tangible symbol involves  a\ttransfer  of
\npossession  of\tthe  property symbolized,  such\t a  symbolic
\npossession  takes the place of physical delivery. The  short
\nbut difficult question, therefore. is whether the Indian law
\nequates the railway receipts with the goods covered by\tthem
\nfor the purpose of constituting delivery of goods within the
\nmeaning
\n258<\/span>
\nof  the Contract Act. Before the amendment of s. 178 of\t the
\nContract Act and the passing of the Sale of Goods Act, 1930,
\nthe scope of railway receipts vis-a-vis the goods covered by
\nthem came up for consideration before the Judicial Committee
\nin  Ramdas  Vithaldas Durbar v.S.Amarchand &  Co.,  C).\t The
\nhead-note of that case succinctly gives the following facts:
\nSellers\t of cotton consigned it to the buyer in Bombay,\t and
\nforwarded  to  him receipts issued by  the  railway  company
\nwhich  had  undertaken the  carriage. The receipts  provided
\nthat  they  should  be given up at the\tdestination  by\t the
\nconsignee,  and\t that if he did not himself attend  to\ttake
\ndelivery  he  must  endorse on the  receipt  a\trequest\t for
\ndelivery  to  whom  he wished it to be\tmade.  The  evidence
\nshowed\tthat  similar receipts for cotton were used  in\t the
\nordinary  course  of  business in Bombay  as  proof  of\t the
\npossession  and control of the goods therein referred to  or
\nas authorising the holder to receive or transfer the  goods.
\nThe  consignee\tendorsed  and  delivered  the  receipts\t  as
\nsecurity  for advances made specifically upon them  in\tgood
\nfaith. The sellers sought to stop the cotton in transit. The
\nJudicial  Committee  held  that the  railway  receipts\twere
\ninstruments  of\t title\twithin the  meaning  of\t the  Indian
\nContract  Act,\t1872,  s.103,  and  that  the  sellers\twere
\ntherefore not entitled to stop the goods except upon payment
\nor tender to the pledgees of the advances made by them. This
\ndecision  lays down 3 propositions, namely, (i) the  railway
\nreceipts in question in that case were used in the  ordinary
\ncourse of business in Bombay\t  as proof of possession and
\ncontrol of the goods therein referred to, or as\t authorising
\nthe  holder  to\t receive or transfer the  goods;  (ii)\tsuch
\nrailway receipts were documents of title and a valid  pledge
\nof the goods covered by the receipts could be made under the
\nContract Act before it was amended in 1930. by endorsing and
\ndelivering  the same as security for advances made.  to\t the
\nowner of the goods.\tIt may be noticed at this stage that
\nunder  the Contract Act before it was amended in 1930  there
\nwas  no definition of the expression “documents\t of  title”,
\nbut  there.  was one in the Indian Factors  Act\t     (XX  of
\n1844) which. with certain modifications, made the provisions
\nof  the\t English Factors Act. 1842,  applicable\t to  British
\nIndia.\tThe  last  mentioned  Acts  defined  the  expression
\n“documents  of\ttitle  to goods as  including  any  bill  of
\nlading,\t dock-warrant. ware-housekeeper\t certificate,  whar-
\nfinger’s  certificate. warrant or order for the delivery  of
\ngoods and any other document used in the ordinary course  of
\nbusiness as proof of the possession or control of goods.  or
\nauthorising   or   purporting  to   authorise,\t either\t  by
\nendorsement or by  delivery the possessor of the document to
\ntransfer  or  receive goods  thereby  represented’.  Railway
\nreceipt\t was so nominee not included in the detinition.\t But
\nthe  Privy Council, on the basis of the evidence adduced  in
\nthat  case, brought the railway receipts under that part  of
\nthe  definition\t describing  generally\t the   documents  of
\ntitle  to  goods. It may also be noticed that  the  Judicial
\nCommittee. though
\n(1) [1910] T  R. 45 T.\tA. 164.\n<\/p>\n
259<\/span><\/p>\n
its attention was called to the provisions of ss. 4 and\t 137
\nof  the Transfer of Property Act, preferred to\tdecide\tthat
\ncase  decors the said provisions. In the Explanation  to  s.
\n137  of\t the  Transfer\tof Property  Act,  1882,  which\t was
\nintroduced by the Amending Act 2 of 1900, the definition  of
\nthe  expression\t “mercantitle document” is  practically\t the
\nsame as that found in the Indian Factors Act noticed by\t the
\nJudicial  Committee  in the decision cited supra,  with\t the
\ndifference  that  it  expressly\t includes  therein   railway
\nreceipt.  Under s.4 thereof the Chapter and the sections  of
\nthe  Act shall be taken as part of the Indian Contract\tAct,
\n1872.  In  1930 Parliament  in enacting the Indian  Sale  of
\nGoods  Act,  1930,  presumably borrowed\t the  definition  of
\n“documents  of title to goods” from the Indian\tFactors\t Act
\nand  the  English  Factors  Act\t noticed  by  the   Judicial
\nCommittee,  but\t expressly included in the   definition\t the
\nrailway receipt. This indicates the legislative intention to
\naccept the mercantile usage found by the Judicial  Committee
\nin  Ramdas  Vithaldas Durbar v. S. Amerchand &\tCo.(1).\t The
\nsame  definition  was  incorporated  by\t reference  in\t the
\nExplanation  to s.178 of the Contract Act as amended in\t the
\nyear  1930.  This  definition is also  in  accord  with\t the
\ndefinition of “mercantile document of title to goods” in the
\nExplanation  to s.137 of the Transfer of Property  Act.\t The
\nJudicial  Committee  had another occasion  to  consider\t the
\nquestion  of pledge of railway receipt in Official  Assignee
\nof Madras v. Mercantile Bank of India. Ltd.(2). The facts in
\nthat  case  were  as follows: The  insolvents  did  a  large
\nbusiness  in groundnuts, which they purchased from  the\t up-
\ncountry\t growers; the nuts were then dispatched by rail\t and
\narrived\t in Madras by one or other of the two railways,\t the
\nMadras\t&  Southern Maharatta Railway or the   South  Indian
\nRailway. Under an arrangement between the said Railways\t and
\nthe  Madras  Port  Trust, the  consignments  of\t nuts\twhen
\nreceived  were deposited in the go downs of the Madras\tPort
\nTrust.\t The  general  course  of  business  was   for\t the
\ninsolvents  to obtain from the railway companies in  respect
\nof  each  consignment or wagon had a  railway  receipt.\t The
\ninsolvents  obtained  loans from the respondent\t Bank  after
\nsending to the said Bank the railway receipts duly  endorsed
\nin blank and also after executing a promissory note for\t the
\namount a letter of hypothecation. When the goods arrived  at
\nthe port, delivery was taken from the Port Trust against the
\nrailway\t  receipts.   At  the  time  the   insolvents\twere
\nadjudicated the bags of ground-nuts in question in that case
\nwere  either  in transit on the railway or  in\tthe  transit
\nsheds  or  godowns of the Port Trust.  On those\t facts.\t the
\nmain question was whether the pledge of the railway  receipt
\nwas  a pledge of the goods represented by them or  merely  a
\npledge of the actual documents. If there was a\tvalid pledge
\nbefore the insolvency, the Bank would be entitled to receive
\nthe  amount realised by the sale of the goods; if  not,\t the
\nOfficial  Assignee  would be entitled to  it.  The  Judicial
\nCommittee, after considering
\n(1) (1916) L.R. 43 LA. 164.\n<\/p>\n
(1) (1934) L.R. 51 I.A. 416, 423.\n<\/p>\n
260<\/span><\/p>\n
its  earlier decision in Ramdas Vithaldas Durbar’s case\t (1)
\nand  all  the  relevant provisions  which  we  have  noticed
\nearlier,  came\tto  the conclusion that there  was  a  valid
\npledge\tof the goods represented by the receipts. It may  be
\nnoticed\t that  this decision also turned upon  the  relevant
\nprovisions of the Contract Act before its amendment in 1930,
\nthough at the time the decision was made the amendment\tcame
\ninto  force. On the question whether a pledge of a  document
\nis a pledge of the goods as distinct from the document,\t the
\nJudicial Committee observed:\n<\/p>\n
\t\t    “Their Lordships likewise in the present
\n\t      case  see\t no reason for\tgiving\ta  different
\n\t      meaning  to  the term (documents of  title  to
\n\t      goods) in s.178  from that given to the  terms
\n\t      in  ss.  102 and 103; in\taddition  a  railway
\n\t      receipt  is  specifically\t included’  in\t the
\n\t      definition of mercantile document of title  to
\n\t      goods  by s. 137 of the Transfer\tof  Property
\n\t      Act, 1882, which, in virtue of s.4 of the Act,
\n\t      is to be taken as part of the Contract Act  as
\n\t      being  a\tsection\t relating  to  contracts.  A
\n\t      railway\treceipt\t is  now  included  in\t the
\n\t      definition  of documents of title to goods  in
\n\t      s.  2, sub-s. 4, of the Indian Sale  of  Goods
\n\t      Act, 1930.”\n<\/p><\/blockquote>\n
\t      On   the\tconstruction  of   the\t  expression
\n\t      “person” in s. 178 of the Contract Act, it was
\n\t      argued that the said expression took in only a
\n\t      mercantile  agent and that the law  in   India
\n\t      was  the\tsame as in England.  Rejecting\tthat
\n\t      plea,  the Judicial Committee remarked  at  p.
\n\t      426 thus:<\/p><\/blockquote>\n
\t\t     “Their  Lordships did not in that\tcase
\n\t      see   any\t  improbability\t  in   the    Indian
\n\t      Legislature  having taken the lead in a  legal
\n\t      reform.\n<\/p><\/blockquote>\n
\t\t     It\t  may well have seemed that  it\t was
\n\t      impossible ‘to justify a\trestriction on\t the
\n\t      owner’s power  to pledge which was not imposed
\n\t      on  the like powers of the  mercantile  agent.
\n\t      The same observation may well be true m regard
\n\t      to   the\twords  now  being  considered.\t The
\n\t      reasonableness  of any such change in the\t law
\n\t      is  well\tillustrated  by\t the  facts  of\t the
\n\t      present case, where it was clearly intended to
\n\t      pledge  the  goods,  not\tmerely\tthe  railway
\n\t      receipts,\t and  the respondents have  paid  in
\n\t      cash  the advances they made on that  footing.
\n\t      In  these circumstances, it would be indeed  a
\n\t      hardship\t that\tthey   should\tlose   their
\n\t      security.”\n<\/p><\/blockquote>\n
These\tpregnant   observations\t show  that  there   is\t  no
\njustification  to the distinction that is being\t  maintained
\nin   England   between pledge of a bill of  lading  and\t the
\npledge\tof documents of title of the than a bill of  lading.
\nThe  Judicial Committee in this decision clearly laid  down,
\nafter  noticing all the relevant provisions of the  Contract
\nAct, the Transfer of Property Act and the Sale of Goods\t Act
\nthat railway receipts were documents of title and the  goods
\ncover
\n(1)(1916) L.R. 43 I.A. 164.\n<\/p>\n
ed  by\tthe documents could be pledged by  transferring\t the
\ndocuments.  This  decision  is\tin  accord  with  the\tview
\nexpressed by us on a fair reading of the said provisions.
\n    Even so, it is contended that by the amendment of s. 178
\nof the Contract Act in 1930, the Legislature has taken\taway
\nthe  right  of an owner of goods to pledge the same  by\t the
\ntransfer of documents of title to the said goods. Under\t the
\nold  section “a person” who was in possession of  any  goods
\netc. might make a valid pledge of such goods, whereas  under
\nthe  present  section “a mercantile agent”, subject  to\t the
\nconditions mentioned therein, is authorized to make a pledge
\nof  the\t goods\tby  transferring  the  documents  of  title.
\nTherefore,  the argument  proceeds, a  person  other than  a
\nmercantile  agent  cannot make a valid pledge  of  goods  by
\ntransferring the documents representing the said goods. This
\nargument  appears to be plausible and even attractive;\tbut,
\nif accepted, it will lead to anomalous results. It means  an
\nowner  of goods cannot pledge the goods by transferring\t the
\ndocuments  of  title, whereas his agent can do\tso.  As\t the
\nPrivy  Council\tpointed out it is impossible  to  justify  a
\nrestriction on the owner’s power to pledge when there is  no
\nsuch restriction imposed on the like powers of a  mercantile
\nagent. A careful scrutiny of s. 178 of the Contract Act\t and
\nthe  other  relevant provision thereof\tindicates  that\t the
\nsection\t assumes  the power of an owner to pledge  goods  by
\ntransferring  documents\t of title thereto  and\textends\t the
\npower  even to a mercantile agent. A pledge is\tdelivery  of
\ngoods  as  security  for payment of a  debt.  If  a  railway
\nreceipt\t is a document of title to the goods covered by\t it,
\ntransfer  of the said document for consideration  effects  a
\nconstructive delivery of the goods. On that assumption if we
\nlook  at s. 178 of the Contract Act, the legal\tposition  is
\napparent.  The\tmaterial  part s. 178 of  the  Contract\t Act
\nreads:\n<\/p>\n
\t\t     “Where a mercantile agent is, with\t the
\n\t      consent  of the owner. in possession of  goods
\n\t      or the documents of title to goods, any pledge
\n\t      made  by\thim,  when acting  in  the  ordinary
\n\t      course  of  business of  a  mercantile  agent,
\n\t      shall  be\t as valid as if\t he  were  expressly
\n\t      authorised  by the owner of the goods to\tmake
\n\t      the  same;  provided that the Pawnee  acts  in
\n\t      good  faith  and has not at the  time  of\t the
\n\t\t\t    pledge notice that the pawner has not
\nauthority
\n\t      to pledge.”\n<\/p><\/blockquote>\n
The  section emphasizes that a mercantile agent shall be  in
\npossession  of\tdocuments of title with the consent  of\t the
\nowner  thereof; if he is in such possession and pledges\t the
\ngoods  by  transferring the documents of title to  the\tsaid
\ngoods, by fiction, he is deemed to have expressly authorized
\nby the owner of the goods to make the same. The condition of
\nconsent\t and the fiction  of authorization indicate that  he
\nis doing what the owner could have done. So too.\n<\/p>\n
262<\/span><\/p>\n
s.  30\tof  the\t Indian Sale  of  Goods\t Act  discloses\t the
\nlegislative  mind.  The relevant part of the  said’  section
\nreads:\n<\/p>\n
\t\t    “Where  a  person,\thaving\tsold  goods,
\n\t      continues or is in possession of the goods  or
\n\t      of  the documents of title to the\t goods,\t the
\n\t      delivery\tor transfer by that person or  by  a
\n\t      mercantile agent acting for him, of the  goods
\n\t      or  documents of title under any sale,  pledge
\n\t      or  other\t disposition thereof to\t any  person
\n\t      receiving\t the same in good faith and  without
\n\t      notice  of  the previous sale shall  have\t the
\n\t      same  effect  as\tif  the\t person\t making\t the
\n\t      delivery or transfer were expressly authorised
\n\t      by the owner of the goods to make the same.”\n<\/p><\/blockquote>\n
This  sub-section shows that a person who sold the goods  as
\nwell  as a mercantile agent acting for him can make a  valid
\npledge\tin the circumstances mentioned therein. If an  owner
\nof  goods or his mercantile agent after the owner  has\tsold
\nthe  goods,  can  make a valid pledge  by  transferring\t the
\ndocuments  of  title  to  the goods, it\t would\tlead  to  an
\ninconsistent  position if we were to hold that an owner\t who
\nhas  not  sold\tthe  goods  cannot  pledge   the   goods  by
\ntransferring the documents of title. Sub-s. (2) of s. 30  of
\nthe Indian Sale of Goods Act relevant to the present enquiry
\nreads:\n<\/p>\n
\t\t     “Where a person. having bought or agreed
\n\t      to buy goods. obtains, with the consent of the
\n\t      seller,\tpossession  of\tthe  goods  or\t the
\n\t      documents of title to the goods. the  delivery
\n\t      or transfer by that person or by a  mercantile
\n\t      agent   acting  for  him.\t of  the  goods\t  or
\n\t      documents\t of title under any sale, pledge  or
\n\t      other   disposition  thereof  to\tany   person
\n\t      receiving\t the same in good faith and  without
\n\t      notice  of  any  lien or other  right  of\t the
\n\t      original seller in respect of the goods  shall
\n\t      have  effect as if such lien or right did\t not
\n\t      exist.”\n<\/p><\/blockquote>\n
This  sub-section  clearly recognizes that a  buyer  or\t his
\nmercantile  agent  can\tpledge goods  by   transferring\t the
\ndocuments of  title thereto: it protects a bona fide pledgee
\nfrom the buyer against any claim by the original owner based
\non  the\t lien or any other right still left in him.  If\t the
\nowner–the  purchaser  becomes the owner-cannot\t pledge\t the
\ngoods  at  all\tby  transfer  of  documents  of\t title.\t the
\nprotection  given under sub-s. (2) of s. 30 of the  Sale  of
\nGoods  Act  to\ta bona fide purchaser  is  unnecessary.\t The
\nmaterial part of s. 53(1) of the Sale of Goods Act reads:\n<\/p>\n
\t\t    “Subject to the provisions of this\tAct,
\n\t      the unpaid seller’s right of lien or  stoppage
\n\t      in  transit  is not affected by  any  sale  or
\n\t      other disposition of the goods which the buyer
\n\t      may have made, unless the seller has  assented
\n\t      thereto:\n<\/p><\/blockquote>\n
\t\t    Provided that where a document of  title
\n\t      to   goods   has\tbeen  issued   or   lawfully
\n\t      transferred to any person as buyer or owner of
\n\t      the  goods,  and\tthat  person  transfers\t the
\n\t      document to a person who takes the document
\n\t      in good faith
\n\t      263<\/span>
\n\t      and  for\tconsideration, then,  if  such\tlast
\n\t      mentioned\t transfer  was by way of  sale,\t the
\n\t      unpaid  seller’s right of lien or stoppage  in
\n\t      transit\tis  defeated,  and,  if\t such\tlast
\n\t      mentioned\t transfer  was by way of  pledge  or
\n\t      other   disposition  for\tvalue,\tthe   unpaid
\n\t      seller’s right of lien or stoppage in  transit
\n\t      can only be exercised subject to the rights of
\n\t      the transferee.”\n<\/p><\/blockquote>\n
 This sub-section protects a bona fide pledgee from an owner
\nagainst\t any rights still subs sting in his  predecessor-in-
\ninterest.  This assumes that the owner can pledge the  goods
\nby  transfer  of the relevant documents of title.  The\tsaid
\nsections  embody  statutory exceptions to the  general\trule
\nthat  a person cannot confer on another a higher title\tthan
\nhe possesses.\n<\/p>\n
    The argument that s. 178 of the Contract Act, as amended
\nin  1930.  restricts the scope of the  earlier\tsection\t and
\nconfines  it only to a mercantile agent was noticed  by\t the
\nJudicial   Committee  in  Official  Assignee  of  Madras  v.
\nMercantile Bank of India, Ltd. (1) and it observed therein:\n<\/p>\n
\t\t    “The  Indian Legislature may  well\thave
\n\t      appreciated   in\t 1872  the   exigencies\t  of
\n\t      business,\t even though in 1930 they  recanted.
\n\t      Or perhaps they did not appreciate  fully\t the
\n\t      effect of the actual words of the section.”\n<\/p><\/blockquote>\n
These observations indicate that the Judicial Committee\t did
\nnot  express  any final opinion on the construction  of\t the
\namended\t s. 178 of the Contract Act as the question  in\t the
\nappeal before it related to the unamended section.  Further,
\nit  did\t not notice the other sections referred\t to  earlier
\nwhich  throw  a flood of light on the true  meaning  of\t the
\nterms of s. 178 of the Contract Act, as it now stands.\tThis
\nconclusion also accords with the view expressed by Bachawat.
\nJ..  in\t Commissioner  for the Port  Trust  of\tCalcutta  v.
\nGeneral Trading Corporation Ltd.(2).\n<\/p>\n
    The Indian decisions cited at the Bar do  not deal\twith
\nthe question whether a valid pledge of goods can be effected
\nby  transfer  of  documents  of title,\tsuch  as  a  railway
\nreceipt,  representing the goods; they were mainly concerned
\nwith  the question whether an endorsee of a railway  receipt
\nfor  consideration could maintain an action on the basis  of
\nthe  contract embodied in the said receipt: see the firm  of
\nDolatram  Dwarakdas v. The Bombay Baroda and  Central  India
\nRailway\t Co.  C);  Shah\t Muji Deoii  v.\t Union\tof  India(4)
\nCommissioner  for  the\tPort Trust of  Calcutta\t v.  General
\nTrading\t Corporation  Ltd.  (2);  and  Union  of   India  v.
\nTaherali (2).  These raise a larger question on which  there
\nis  a conflict of opinion. In the view we have taken on\t the
\nquestion  of  pledge,  it is not necessary  to\texpress\t our
\nopinion thereon in these appeals.\n<\/p>\n
  (1) (1934) L.R. 61 LA. 416, 423. A.I.R. 1964 cal. 290.
\n  (3) (1914) I.L.R,. 38 .Rom. 659.\n<\/p>\n
  (4) A.I.R. 1957 Nag. :31.\n<\/p>\n
  (5) (1956) 58 Born. L.R. 650.\n<\/p>\n
264<\/span><\/p>\n
    The law on the subject, as we conceive it, may be stated
\nthus:  An owner of goods can make a valid pledge of them  by
\ntransferring  the  railway  receipt  representing  the\tsaid
\ngoods.\tThe general rule is expressed by the maxim nemo\t dat
\nquod non habet, i.e., no one can convey a better title\tthan
\nwhat  he  had.\tTo  this  maxim,  to  facilitate  mercantile
\ntransactions, the Indian law has grafted some exceptions, in
\nfavour\tbona  fide pledgees by\ttransfer of   documents\t .of
\ntitle  from  persons,  whether\towners\tof  goods  or  their
\nmercantile  agents  who do not possess the  full  bundle  of
\nrights\tof  ownership at the time the pledges are  made.  To
\nconfer\ta  right  to effect a valid pledge  by\ttransfer  of
\ndocuments  of title relating to goods on owners\t     of\t the
\ngoods  with  defects in title and mercantile agents  and  to
\ndeny  it  to  the full owners thereof  is  to  introduce  an
\nincongruity into the Act by construction. On the other hand,
\nthe real intention of the Legislature will be carried out if
\nthe  said right is conceded to the full owner of  goods\t and
\nextended by construction to owners with defects in title  or
\ntheir mercantile agents.\n<\/p>\n
    We\tare glad that, on a reasonable construction  of\t the
\nmaterial provisions of the relevant Acts, we have been\table
\nto  reach this conclusion- To accept the contentions of\t the
\nrespondents to\tthe contrary would be a retrograde step\t and
\nwould  paralyse\t the  entire mechanism\tof  finance  of\t our
\ninternal trade. In this vast country where goods are carried
\nby  railway  over long distances and remain in\ttransit\t for
\nlong  periods of time, the railway receipt is regarded as  a
\nsymbol\tof  the goods for all purposes for which a  bill  of
\nlading is so regarded in England.\n<\/p>\n
The next question is whether the plaintiff would be entitled
\nto recover the full value of the  consignments amounting  to
\nRs. 35,500\/- or, as the High Court held,  only\tthe   amount
\nof  Rs.\t 20,000\/- with interest, i.e.,\tthe  amount  secured
\nunder the pledges. The answer to this question depends\tupon
\nthe construction of s. 180 of the Contract Act, it reads:\n<\/p>\n
\t\t    “If\t a third person wrongfully  deprives
\n\t      the  bailee  of the use or possession  of\t the
\n\t      goods  bailed,  or does them any\tinjury,\t the
\n\t      bailee is entitled to use such remedies as the
\n\t      owner  might have used in the like case if  no
\n\t      bailment had been made; and either the  bailor
\n\t      or the bailee may bring a suit against a third
\n\t      person for such deprivation or injury ”\n<\/p><\/blockquote>\n
Under  this section, a pledge being a bailment of  goods  as
\nsecurity  for payment of a debt, the pledgee will  have\t the
\nsame remedies as the owner of the goods would have against a
\nthird  person for deprivation of the said goods or injury to
\nthem.  If so, it follows that the Bank, being  the  pledgee,
\ncan  maintain the present suit for the recovery of the\tfull
\nvalue of the consignments amounting to Rs. 35,500\/-.\n<\/p>\n
265<\/span><\/p>\n
    The last question is whether the Bank was the pledgee of
\nthe goods or was only the pledgee of the documents of  title
\nwhereunder  they  could\t only  keep  the  documents  against
\npayment\t by  the  consignee as contended on  behalf  of\t the
\nRailway.  The firm borrowed a sum of Rs. 20,000\/-  from\t the
\nBank and executed a promissory note, Ex. 104, dated  October
\n6,  1949,  in  its favour.  It\talso  endorsed\tthe  railway
\nreceipts  Nos. 233\/27, 233\/35 and 233\/36 in  favour  of\t the
\nBank.  The Accountant of the Bank deposed that\tthe  railway
\nreceipts  were\tendorsed  in  favour  of  the  Bank,   which
\nhad.advanced the said amount to the firm on the security  of
\nthe said railway receipts. The evidence of this witness\t was
\nnot  challenged in the High Court. The Bank.advanced  alarge
\namount\tof  money    to the firm.  The\tthree  transactions,
\nnamely the advancing of loan the execution of the promissory
\nnote  and the endorsement of the railway receipts,  together
\nform  one  transaction.\t Their combined effect is  that\t the
\nBank  would  be in control of the goods till  the  debt\t was
\ndischarged.  This  is  a well  known  practice\tfollowed  by
\nBanks.The  Judicial  Committee both  in\t  Ramdas   Vithaldas
\nDurbar\tv. S. Amerchand & Co.(1), and the Official  Assignee
\nof Madras v. The Mercantile Bank of India, Ltd.(2) heId that
\nsuch a transaction was a pledge. We, therefore, hold on\t the
\nfacts  of this case that the firm  by endorsing the  railway
\nreceipts in favour of the Bank for consideration pledged the
\ngoods covered by the said  receipts to the Bank.
\nIn  this view it is not necessary to express our opinion  on
\nthe question whether if the transaction was not a pledge  of
\nthe goods,the Bank would be entitled to sue on the basis  of
\nthe contract entered into between the firm and the Railway.
\nNo  other question was raised. In the result,  Civil  Appeal
\nNo.  474  of 1962 filed by the Bank is\tallowed;  and  Civil
\nAppeal No. 475 of 1962 filed by the Railway is dimissed. The
\nplaintiff’s  suit is decreed with costs throughout.
\nRamaswami,  J.\t We regret we are unable to agree  with\t the
\njudgment pronounced by our learned brother Subba Rao J.
\n   On  October\t4,  1949, M\/s. Harshadrai  Mohanlal  &\tCo.,
\n(hereinafter  referred\tto as the firm)\t entrusted  4  boxes
\ncontaining “menthol crystal” to the then G.I.P. Railway\t for
\ncarriage from  Thana railway station to Okhla near Delhi. On
\nOctober\t 11,  1949,  the firm consigned 2  more\t boxes\talso
\nalleged\t to have contained “menthol crystal” to\t Okhla\tfrom
\nThana  railway\tstation. The Railway  Receipts\tissued\twere
\nnumbered 233\/27, 233\/35 and 233\/36.  All the six boxes\twere
\nconsigned  to  “self”.\tIt  is alleged\tthat  the  Rail\t way
\nReceipts  with\tregard to these six boxes were\tendorsed  in
\nfavour\tof Morvi Mercantile Bank Ltd. (hereinafter  referred
\nto as the plaintiff-bank) against an advance  of Rs.  20,000
\nby  the plaintiff-bank on security of the Railway  Receipts.
\nThe  G.I.P.  Railway offered to deliver the boxes  at  Okhla
\nrai1way\t station but the plaintiff-bank declined  to  accept
\nthe same alleging that the boxes were not those
\n   (1) (1916) L.R. 43 I.A. 164.\n<\/p>\n
   (2) (1934) L.R. 61 I.A. 416, 423.\n<\/p>\n
266<\/span><\/p>\n
  which\t were consigned from Thana station.  The  plaintiff-
\nbank filed   Civil, Suit No. 50 of 1950 in the Court of\t the
\nCivil Judge, Senior   Division, Thana, claiming a sum of Rs.
\n35,000\tas  damages for\t  breach of contract. The  suit\t was
\ncontested by the defendants  on\t  the ground that  identical
\nboxes  which  were  consigned by the firm    at\t Thana\twere
\noffered\t to the plaintiff-bank who declined to accept\t the
\nsame  and the Railway Administration had, not  committed  an
\nbreach\tof contract and, therefore, the Union of  India\t was
\nnot  liable   to pay any damages. The trial Judge held\tthat
\nthe boxes Consigned by the firm contained “menthol crystals”
\nand  by\t the  unlawful\t conduct of  the  employees  of\t the
\nrailway administration the contents of the boxes were  lost,
\nbut he took the view that the plaintiff bank. as endorsee of
\nthe   railway  receipts,  was  not  entitled  to   sue\t for
\ncompensation  for loss of the consignments. In\ttaking\tthat
\nview\tthe learned Civil Judge followed a decision  of\t the
\nBombay High   Court in Shamji Bhanji & Co. v. North  western
\nRailway\t Company(1). The Civil Judge  accordingly  dismissed
\nthe  suit by a judgment and decree dated January  15,  1953.
\nAgainst that decision the plaintiff-bank preferred an appeal
\nto the Bombay High Court which continued the findings of the
\nCivil  Judge that tile Railway failed’ to deliver the  boxes
\nat Okhla and the  boxes\t contained  “menthol crystals”.\t The
\nHigh  Court also held that  the plaintiff-bank assignees  of
\nthe railway receipt was entitled to bring a suit for damages
\nfor breach of contract against the Union of India though the
\ndamages\t would\tbe limited to the loss of its  security.  In
\ntaking\tthis  view  the Bombay High Court  relied  upon\t its
\nprevious  decision  in\t The  Union  of\t India\tv.  Taherali
\nIsaji(2).\n<\/p>\n
  The  first  question\tfor determination in  this  case  is
\nwhether\t there\twas  a valid pledge  of\t boxes\tof  “menthol
\ncrystals”   in\tfavour\t       of  the\t plaintiff-bank\t  by
\nendorsement on the railway receipts by the firm.
\n  In English Law a pledge arises when goods are delivered by
\none person called the ‘pledgor’ to another person called the
\n‘pledgee”  to be held as security for the payment of a\tdebt
\nor  for discharge of some other obligation upon the  express
\nor  implied  understanding that the  subject-matter  of\t the
\npledge is to be restored to the pledgor as soon as the\tdebt
\nor  other obligation is discharged. It is essential for\t the
\ncreation of a pledge that there should be a delivery of\t the
\ngoods comprised therein. In other words, a pledge cannot  be
\ncreated\t except by delivery of the possession of  the  thing
\npledged,  either  actual  or  constructive.  It\t involved  a
\nbailment.  If ‘the pledgor had actual goods in his  physical
\npossession,  he could effect the pledge by actual  delivery;
\nbut in other cases he could give possession by some symbolic
\nact, such as handing over the key of the store in which they
\nwere.  If.  however, the goods were in the  actual  physical
\npossession  of\ta third person, who held for the  bailor  so
\nthat  in  law his possession was that of  the  bailor,\tthis
\npledge\tcould’ be effected by a change of the  character  of
\nthe possession of the
\n(1) A.I.R. 1947 Bomb.169.\n<\/p>\n
 (2)(1956)58 Bomb L.R. 650.\n<\/p>\n
\t      267<\/span><\/p>\n
third party, that is by an order to him from the pledgor  to
\nhold  for  the pledgee, the change being  perfected  by\t the
\nthird  party  attorning to the pledgee,\t thus  acknowledging
\nthat  he  thereupon held for’ the latter. There was  thus  a
\nchange of possession and a constructive delivery; the  goods
\nin  the\t hands\tof the third party  came   by  this  process
\nconstructively in the  possession of the pledge.  But. where
\ngoods  were  represented by documents the  transfer  of\t the
\ndocuments  did not change the possession of the goods,\tsave
\nfor’   one  exception,\tunless\tthe   custodian\t   (carrier,
\nwarehouseman  or’  such) was notified of  the  transfer\t and
\nagreed to hold in future as bailee for the piedgee. The\t one
\nexception  was the case of bills of lading, the transfer  of
\nwhich  by  the law merchant operated as a  transfer  of\t the
\npossession of, as well as the property in, the goods.,\tThis
\nexception  has\tbeen  explained\t on  the  ground  that\t the
\ngoodsbeing at sea the master could not be notified; the true
\nexplanation  was  perhaps  that it was a  rule\tof  the\t law
\nmerchant,  developed  in  order\t to  facilitate\t  mercantile
\ntransactions, whereas the process of  pledging goods on land
\nwas regulated by the narrower rule of the common law.
\n    The position in English Law, therefore, was that in\t the
\ncase  of delivery of documents of title other than bills  of
\nlading, a pled of the documents is merely a page of the ipsa
\ncorpora\t of  them, for the transfer of\tdocuments  does\t not
\nchange\tthe  possession of the goods  unless  the  custodian
\n(carrier,   warehouseman  or  such) was\t not  filed  of\t the
\ntransfer  and  agreed to hold in future as  bailee  for\t the
\npledgee.  In Inglis v. Robertson and Baxter(1). It was\theld
\nby  the\t House\tof  Lords that where  goods  are  lodged  in
\nwarehouses in Scotland a pledgee of the goods must, to\tmake
\neffective  all real rights which depend on the\tconstructive
\ndelivery  of  the goods, give notice of the  pledge  to\t the
\nwarehouse-keeper. The Factors Act 1889 enacts:\n<\/p>\n
\t\t  “S.3.\t A pledge of the documents of  title
\n\t      to goods shall be deemed to be a pledge of the
\n\t      goods.”;\tand s. 1: ‘For the purposes of\tthis
\n\t      Act’ (sub-s. 5). The expression ‘pledge’ shall
\n\t      include  any contract, pledging, or  giving  a
\n\t      lien   or\t security  on,\tgoods,\twhether\t  in
\n\t      consideration of an original advance or of any
\n\t      further  or  continuing  advance\tor  of\t any
\n\t      pecuniary liability’. Sect. 9 prescribes\tthat
\n\t      the  effect  of delivery or  transfer  of\t the
\n\t      documents\t of  title of the  goods  under\t any
\n\t      pledge &c., by a person who having bought\t the
\n\t      goods  obtains with the consent of the  seller
\n\t      possession of the goods or documents of title,
\n\t      shall  have the same effect as if\t the  person
\n\t      making   the  delivery  or  transfer  were   a
\n\t      mercantile agent in possession of the goods or
\n\t      documents\t of  title with the consent  of\t the
\n\t      owner.”\n<\/p><\/blockquote>\n
Goods were stored by G, a domiciled Englishman, in a  bonded
\nwarehouse  in  Glasgow, transferred into the name  of  G  as
\nowner; and the Warehouse-keeper issued to G delivery  orders
\nshowing that
\n(1) (1898) A.C. 616.\n<\/p>\n
268<\/span><\/p>\n
the  goods were held to G’s order or assigns by\t endorsement
\n‘hereon’. G obtained a loan from I an English merchant,\t and
\ndelivered  to  him  in England\ta  letter  of  hypothecation
\nstating\t that he deposited a part of the goods with  him  in
\nsecurity, with power of sale, and G endorsed and handed to I
\nthe delivery warrants. I did not intimate or give notice  of
\nthe right he had acquired to the warehouse-keeper. R. &\t B.,
\nclaiming as personal creditors of G, .arrested the goods  in
\nthe hands of the warehouse-keeper and then raised an  action
\nagainst\t him  in  the Scottish Court  claiming\tthrough\t the
\narrestment  a preferable right thereto. It was held  by\t the
\nHouse  of  Lords  that s. 3 of the Factors  Act,  1889,\t was
\nmerely\tintended to define the full effect of the pledge  of
\nthe documents of title made by a mercantile agent, and\tthat
\nit  had\t no application to the case .of the  pledge  of\t the
\ndocuments of title by one in the position of G, ‘who was not
\na mercantile agent within the meaning of the Act; nor was  G
\na  pledgor within s. 9 of the same Act. At pages 625 to\t 627
\nLord Watson states:\n<\/p>\n
\t\t    I  can see no reason to doubt  that,  by
\n\t      Scottish\t law  as  ‘well\t as   English,\t the
\n\t      endorsement  and\thanding\t over  of   delivery
\n\t      orders  in  security of a loan, along  with  a
\n\t      letter  professing  to hypothecate  the  goods
\n\t      themselves,   is\t sufficient  in\t  law,\t and
\n\t      according\t   to\tmercantile   practice,\t  to
\n\t      constitute a pledge of the documents of title,
\n\t      whatever\tmay be the value and effect  of\t the
\n\t      right so constituted. In my opinion, the right
\n\t      so created, whether in England or in Scotland,
\n\t      will  give the pledgee a right to\t retain\t the
\n\t      ipso  corpora of the documents of title  until
\n\t      his advance is repaid. The crucial question in
\n\t      this  case is whether the right goes  farther,
\n\t      and vests in the pledgee of the documents, not
\n\t      a\t jus ad rein merely, but a real interest  in
\n\t      the goods\t to which these documents relates.
\n\t\t    It\twas not disputed by the\t appellant’s
\n\t      counsel, and it is hardly necessary to repeat,
\n\t      that  by\tthe   common  law  of  Scotland\t the
\n\t      indorsation     and      hypothecation\t  of
\n\t      delivery\t.orders,  although it may  give\t the
\n\t      pledgee a right to retain the documents,\tdoes
\n\t      not give him any real right in the goods which
\n\t      they  represent.\tHe can only attain  to\tthat
\n\t      right by presenting the delivery orders to the
\n\t      custodier\t by  whom  they\t were  granted,\t and
\n\t      obtaining\t delivery of the goods from him,  or
\n\t      by making such intimation of his right to\t the
\n\t      custodier\t as will make it the legal  duty  of
\n\t      the  latter  to hold the goods  for  him.\t His
\n\t      right, which in so far as it   relates to\t the
\n\t      goods is in the nature of jus ad rem,  will be
\n\t      defeated\tif,  before he has  either  obtained
\n\t      delivery\tor given such intimation, the  goods
\n\t      are validly attached in\t    the hands of the
\n\t      custodier by a creditor of the person for whom
\n\t      the custodier holds them.”\n<\/p><\/blockquote>\n
\t      269<\/span><\/p>\n
The principle is reiterated by the House of Lords in  Dublin
\nCity  Distillery Ltd. v. Doherty(1). in which the  plaintiff
\nadvanced  moneys to a distillery company on the security  of
\nmanufactured  whisky of the company stored in a\t ware-house.
\nNeither\t the  company nor the excise  officer  could  obtain
\naccess to the warehouse without the assistance of the other,
\nand   the    whisky   could  only  be\tdelivered   out\t  on
\npresentation  to the  excise officer  of a special form\t  of
\nwarrant\t supplied  by  the Crown. On the  occasion  of\teach
\nadvance\t the  company entered the name of the  plaintiff  in
\npencil\tin their stock-book opposite the particulars of\t the
\nwhisky\tintended  to be pledged\t and   delivered    to\t the
\nplaintiff    (1)   an\tordinary trade\tinvoice\t and  (2)  a
\ndocument  called a warrant, which described the\t particulars
\nof  the\t whisky and stated that it was\tdeliverable  to\t the
\nplaintiff or his assigns. It was held by the House of  Lords
\nthat the plaintiff was not entitled to a valid pledge on the
\nwhisky\tcomprised in the warrants. At pages 843 and  847  of
\nthe  Report  Lord Atkinson states the law on  the  point  as
\nfollows:\n<\/p>\n
\t\t    “As\t to the second question, it was\t not
\n\t      disputed\t that,\taccording  to  the  law\t  of
\n\t      England, and indeed of Scotland. a contract to
\n\t      pledge  a specific chattel, even though  money
\n\t      be  advanced  on the faith of it,\t is  not  in
\n\t      itself sufficient to pass any special property
\n\t      in the chattel to the pledgee. Delivery is, in
\n\t      addition, absolutely necessary to complete the
\n\t      pledge;  but  of course it is  enough  if\t the
\n\t      delivery be constructive, or symbolical, as it
\n\t      is called,  instead  of actual.\n<\/p><\/blockquote>\n
\t\t    The\t example  of  constructive  delivery
\n\t      frequently given is the delivery of the key of
\n\t      the  store  or house in which the\t goods\thave
\n\t      been placed; but that is because, in the words
\n\t      of Lord Hardwicke, ‘it is the way of coming at
\n\t      the possession, or to make use of the  thing’,
\n\t      Ward  v. Turner (1751) 2 Ves. Sen. 431  at  P.\n<\/p><\/blockquote>\n
\t      443).\n<\/p><\/blockquote>\n
\t\t     The  giving by the owner of goods of  a
\n\t      delivery order to the warehouse man does\tnot,
\n\t      unless  some  positive act be done  under\t it,
\n\t      operate  as  a constructive  delivery  of\t the
\n\t      goods  to which it relates: Mc Ewan v.   Smith
\n\t      (1849)  2 H.L.C. 309). And the delivery  of  a
\n\t      warrant\tsuch  as  those\t delivered  to\t the
\n\t      respondent  in  the present case\tis,  in\t the
\n\t      ordinary case, according to Parke B., no\tmore
\n\t      than  an acknowledgment by the  warehouse\t man
\n\t      that  the goods are deliverable to the  person
\n\t      named  therein or to any one he  may  appoint.
\n\t      The warehouseman holds the goods as the  agent
\n\t      of the owner until he has attorney in some way
\n\t      to  this person, and agreed to hold the  goods
\n\t      for  him;\t then, and not till then,  does\t the
\n\t      warehouseman.become  a bailee for the  latter;
\n\t      and  then,  and  not till\t then,\tis  there  a
\n\t      constructive   delivery  of  the\tgoods.\t The
\n\t      delivery and’
\n\t      (1) (1914) A.C. 823.\n<\/p><\/blockquote>\n
\t      270<\/span><\/p>\n
\t      receipt of the warrant does not per se  amount
\n\t      to a delivery and receipt of the goods: Farina
\n\t      v.  Home\t(16 M. & W. 119);  Bentall  v.\tBurn
\n\t      ((1824) 3 B.&C. 423).”\n<\/p><\/blockquote>\n
 In  our  opinion,  the position  in   Indian\tLaw  is\t not
\ndifferent  Section 172 of the Contract Act which  defines  a
\n‘pledge’ affirms the English Common Law. Section 172  states
\nthat  “the  bailment of goods as security for payment  of  a
\ndebt or performance of a promise” is called’ a “pledge”. The
\nbailor is in this case called the “pawnor” and the bailee is
\ncalled the “pawnee”. According to s. |48 of the Contract Act
\n“a  bailment  is  the delivery of goods by  one\t .person  to
\nanother for some purpose, upon a contract that\tthey  shall,
\nwhen  the purpose is accomplished, be returned or  otherwise
\ndisposed  of  according\t to the\t directions  of\t the  person
\ndelivering  them. The person delivering the goods is  called
\nthe  ‘bailor’.\tThe  person to whom they  are  delivered  is
\ncalled the ‘bailee’. Section 149 states that the delivery to
\nthe  bailee  may  be made by doing anything  which  has\t the
\neffect\tof  putting  the  goods in  the\t possession  of\t the
\nintended bailee or of any person authorised to hold them  on
\nhis  behalf. Reference should also be made to s. 178 of\t the
\nContract  Act,\tas  it\tstood  before  the  Indian  Contract
\n(Amendment) Act, 1930. The original s. 178 states:\n<\/p>\n
\t\t    “A\tperson who is in possession  of\t any
\n\t      goods, or of any biII of lading, dock-warrant,
\n\t      warehouse-keeper’s  certificate\twharfinger’s
\n\t      certificate, or warrant or order for delivery,
\n\t      or  any other document of title to goods,\t may
\n\t      make   a\tvalid  pledge  of  such\t  goods\t  or
\n\t      documents:  Provided that the pawnee  acts  in
\n\t      good  faith and under circumstances which\t are
\n\t      not such as to raise a reasonable\t presumption
\n\t      that the pawnor is acting improper
\n\t\t  Provided also that such goods or documents
\n\t      have not been .obtained from the lawful owner,
\n\t      or from any person in lawful custody of  them,
\n\t      by means of an offence or fraud.”\n<\/p><\/blockquote>\n
  By  the Indian Contract (Amendment) Act, 1930 the  section
\nwas  repealed and the subject-matter of that section is\t now
\nspread over the present ss. 178 and 178A of the Contract Act
\nand  s. 30 of the Indian Sale of Goods Act. The new  section
\n178 of the Contract Act states:\n<\/p>\n
\t\t    “Where  a mercantile agent is, with\t the
\n\t      consent  of the owner, in possession of  goods
\n\t      or the documents of title to goods, any pledge
\n\t      made  by\thim,  when acting  in  the  ordinary
\n\t      course  of  business of  a  mercantile  agent,
\n\t      shall  be\t as valid as if\t he  were  expressly
\n\t      authorised  by the owner of the goods to\tmake
\n\t      the  same; provided* that the pawnee  acts  in
\n\t      good  faith  and has not at the  time  of\t the
\n\t      pledge notice that the pawnor has no authority
\n\t      to pledge.\n<\/p><\/blockquote>\n
\t       Explanation–in this section the\t expressions
\n\t      mercantile    agent’   and    ‘documents\t  of
\n\t      title shall have the meanings assigned to them
\n\t      in the Indian Sale of Goods Act, 1930.”\n<\/p><\/blockquote>\n
\t      271<\/span><\/p>\n
\t      Section  30  of the Indian Sale of  Goods\t Act
\n\t      provides as follows:\n<\/p><\/blockquote>\n
\t\t     “30(1)  Where  a  person,\thaving\tsold
\n\t      goods,  continues or is in possession  of\t the
\n\t      goods  or\t of the documents of  title  to\t the
\n\t      goods, the delivery or transfer by that person
\n\t      or  by a mercantile agent acting for  him,  of
\n\t      the  goods  or documents of  title  under\t any
\n\t      sale,  pledge or other disposition thereof  to
\n\t      any  person receiving the same in\t good  faith
\n\t      and without notice of the previous sale  shall
\n\t      have  the same effect as if the person  making
\n\t      the   delivery  or  transfer  were   expressly
\n\t      authorised  by the owner of the goods to\tmake
\n\t      the same
\n\t\t     Where a person, having bought or agreed
\n\t      to buy goods, obtains, with the consent of the
\n\t      seller.\tpossession  cf\tthe  goods  or\t the
\n\t      documents of title to the goods, the  delivery
\n\t      or   transfer   by  that\tperson\tor    by   a
\n\t      mercantile agent acting for him. of the .goods
\n\t      or  documents of title under any sale,  pledge
\n\t      of’  other  disposition the  thereof   to\t any
\n\t      person  receiving the same in good  faith\t and
\n\t      without  notice of any\/ten or other  right  of
\n\t      the  original seller in respect of  the  goods
\n\t      shall have effect as if such lien or right did
\n\t      not
\n\t      exist.”  Section\t178A  of  the  Contract\t Act
\n\t      states:\n<\/p><\/blockquote>\n
\t\t  “178A.   When\t the  pawnor  has   obtained
\n\t      possession of the goods pledged by him  trader
\n\t      a\t contract  voidable  under  section  19\t  or
\n\t      section  19A,  but the contract has  not\tbeen
\n\t      rescinded\t at  the  time of  the\tpledge,\t the
\n\t      pawnee  acquires a good’ title to\t the  goods.
\n\t      provided\the  acts in good faith\tand  without
\n\t      notice of the pawnor’s defect of title.”\n<\/p><\/blockquote>\n
After  the passing of the Indian Contract  (Amendment)\tAct,
\n1930 the legal position with regard to the pledge of railway
\nreceipts  is  exactly  the same in Indian law as  it  is  in
\nEnglish law and consequently the owner of the goods  cannot,
\npledge the goods represented by the railway receipts in\t the
\npresent case unless the railway authorities are notified  of
\nthe transfer and they agree to hold the goods as bailee\t for
\nthe piedgee.\n<\/p>\n
    On\tbehalf\tof the appellants Mr.  Bhatt  placed  strong
\nreliance  upon\tthe decision of the  Judicial  Committee  in
\nOfficial  Assignee  of Madras v. Mercantile Bank  of  India,
\nLimited\t (1) in which it  was held that a  railway  receipt,
\nproviding that delivery of the consigned goods is to be made
\nupon  the  receipt being given up by the consignee or  by  a
\nperson\twhom he names by endorsement thereon, is a  document
\nof  title  within the meaning of the  Indian  Contract\tAct,
\n1872,  (s. 178 for which a new section was  substituted.  by
\nthe  amending  Act IV of 1930), and a pledge  of  a  railway
\nreceipt\t operated under the repealed section as a pledge  of
\nthe  goods. But this decision is not of much  assistance  to
\nthe   appellants,   because  it\t was  concerned\t  with\t the
\ninterpretation\tand legal effect of s. 178 of  the  Contract
\nAct as it stood before the Indian Contract (Amending)
\n(1) (1934) 61 I.A. 416.\n<\/p>\n
272<\/span><\/p>\n
Act  (Amending Act IV of 1930). It was held by the  Judicial
\nCommittee  in that case that under the repealed s.  178\t the
\nowner  of  the goods could obtain a loan on  security  of  a
\npledge of the goods by the pledge of the documents of title.
\nBut  it is significant to note that s. 178 has been  amended
\nby  the\t Amending Act, 1930 and under  the  present  section
\nstatutory  power  to pledge goods or documents of  title  is
\nexpressly confined to mercantile agents while acting in\t the
\ncustomary  course  of  the business.  There  are  two  other
\ninstances  in  which a person other than the  owner  of\t the
\ngoods  may  make a valid pledge of the goods and  these\t two
\ninstances are dealt with in s. 178A of the Contract Act\t and
\ns.  30\t of  the   Indian Sale of  Goods  Act.\tThe  result,
\ntherefore, under the amended law is that a valid pledge\t can
\nno longer be made by every person “in possession” of  goods.
\nIt can only be made by a mercantile agent as provided in the
\nnew  s.\t 178  of the Contract Act or by\t a  person  who\t has
\nobtained  possession of the goods under a contract  voidable
\nunder s. 19 or s. 19A of the Contract Act as provided in  s.
\n178A,  or by a seller or by a buyer in possession  of  goods
\nafter sale  as provided in s. 30 of the Indian Sale of Goods
\nAct. Learned Counsel for the appellants also referred to the
\ndecision  of  the  Judicial Committee  in  Ramdas  Vithaldas
\nDurbar\tv.S.  Amerchand\t &  Co.(1)  in\twhich  the  Judicial
\nCommittee  explained  the  legal effect of  s.\t103  of\t the
\nContract  Act, as it originally stood. It was held by\tLord
\nParker\tthat the railway receipts are instruments  of  title
\nwithin the meaning of the Indian Contract Act. 1872, s. 103,
\nand  that  the sellers were therefore not entitled  to\tstop
\nthe  good’s in transit except upon payment or tender to\t the
\npledgees  of the advances made by them. It is manifest\tthat
\nthe  decision  cannot afford assistance to  the\t appellants.
\nbecause, in the first place, it related to the\tconstruction
\nof old s. 103 of the Contract Act in regard to the right  of
\nstoppage  of  goods in transit, and, in\t the  second  place,
\nthere  has been a significant change in the law in  view  of
\nthe  legislative amendment of s. 178 of the Contract Act  by
\nthe Indian Contract (Amendment) Act. 1930.
\n    In the present case, therefore, our concluded opinion is
\nthat there is no valid pledge of the consignments of menthol
\ncrystals  represented by the railway receipts in  favour  of
\nthe plaintiff-bank and the finding of the High Court on this
\npoint is  erroneous in law
\n    We\tshall  next  deal  with\t the  question\twhether\t the
\nplaintiff  can sue on the contract of bailment\teven  though
\nthere  is  no  valid pledge of the goods in  favour  of\t the
\nplaintiff. It was contended on behalf of the appellants that
\nthe plaintiff-bank was the endorse of railway receipts\tand,
\ntherefore,  it\twas  entitled to  sue  the  defendants\t for
\ncompensation  for  the loss of the goods. We are  unable  to
\naccept\tthis argument as  correct.  At Common law a bill  of
\nlading\twas not negotiable like a bill of exchange so as  to
\nenable the endorsee to maharaja an action upon it in his own
\nname, the effect of the
\n(1914) 43 I.A. 164.\n<\/p>\n
273<\/span><\/p>\n
of  the endorsement being only to transfer the\tproperty  in
\nthe  goods but not the contract itself. It was\tobserved  by
\nAlderson,  B. in Thompson v. Dominy (1) as follows:\n<\/p>\n
\t\t    “This   is\tanother\t instance   of\t the
\n\t      confusion, as  Lord Ellenborough in Waring  v.
\n\t      Cox  expresses  it,  which  ‘has\tarisen\tfrom
\n\t      similitude      reasoning\t     upon\tthis
\n\t      subject  Because,\t in Lickbarrow v.  Mason,  a
\n\t      bill  of lading was held to be negotiable,  it
\n\t      has  been contended that instrument  possesses
\n\t      all the properties of a bill of exchange;\t but
\n\t      it  would\t lead  to  absurdity  to  carry\t the
\n\t      doctrine to that length. The word ‘negotiable’
\n\t      was not used in the sense in which it is\tused
\n\t      as  applicable to a bill of exchange,  but  as
\n\t      passing the property in the goods only.”<\/p><\/blockquote>\n
    Delivery  orders,  warrants,  written  engagements\t  to
\ndeliver goods and similar documents are in the same position
\nas the bills of lading were before the Bills of Lading\tAct,
\n1855  (18 & 19 Vic. c. 111 ). They are mere promises by\t the
\nseller,\t being\tthe  issuer or transferor,  to\tdeliver,  or
\nauthorise  the\tbuyer to receive possession. It is  only  by
\nreason of the enactment of the Bills of Lading Act, 1855 (18
\n&  19 Vic. c. 111) that the issue or transfer of a  bill  of
\nlading\toperates  as a delivery to the buyer  of  the  goods
\nshipped, and the consignee of the bill of lading is entitled
\nto  sue\t upon the contract contained in the same.  The\tsame
\nprovisions are contained in the Bills of Lading Act (Act IX)
\nof  1856 in India. It is true that the railway\treceipt\t and
\nall other documents enumerated in s. 2, sub-s. (4), Sale  of
\nGoods  Act,  are  assimilated to bills\tof  lading  for\t the
\npurposes  of the right of stoppage in transit under s.\t103,
\nContract  Act  and  a pledge under s. 178, Contract  Act  as
\nexplained by  the  Judicial Committee  in  Ramdas  Vithaldas
\nv.  S.\tAmerchand& Co.(2) and Official assignee of Madras v.
\nMercantile  Bank  of  India(1).\t But  the  effect  of  these
\ndecisions is not to assimilate the railway receipt to a biIl
\nof lading for all purposes whatsoever. The legal position of
\nthe railway receipt is the same as it was in English law and
\nthat position is not affected at all by the enactment of  s.
\n2,  sub. s. (4) of’ the Sale of Goods Act, or the  enactment
\nof  provisions analogous to ss. 103 and 178 of the  Contract
\nAct.  As  stated in Halsbury’s. Laws  of  England,  Hailsham
\nEdition, Vol. 29, at p. 143, Art. 179:\n<\/p>\n
\t\t  “Such documents, although they may purport
\n\t      to   be,\tor  may\t commonly  be  treated\t as,
\n\t      transferable, are not negotiable\tinstruments,
\n\t      unless there be a trade usage to\tthat effect.
\n\t      Accordingly, subject to the provisions of\t the
\n\t      Factors  Act  1889, the  owner  cannot   claim
\n\t      delivery\tof the goods except from the  seller
\n\t      who  is the issuer or immediate transferor  of
\n\t      the document.”\n<\/p><\/blockquote>\n
It  is manifest that there are no rights created  merely  by
\nreason\tof the endorsement of a Railway Receipt between\t the
\nendorsee and
\n  (1) 153 E.R. 53x.\n<\/p>\n
  (2) (1916) LIt. 43 I.A. 164.\n<\/p>\n
  (3) (1934) L.R. 61 I.A. 416, 423.\n<\/p>\n
274<\/span><\/p>\n
the railway company which has issued the railway receipt  to
\nthe  .consignee,  the  only remedy  of\tthe  endorsee  being
\nagainst the endorser. This was the position in English\tlaw,
\nexcept in the case of .bills of lading the transfer of which
\nby the Law Merchant operated as a transfer of the possession
\nof as well as the property in ‘the goods as observed by Lord
\nWright in Official Assignee of Madras v. Mercantile Bank  of
\nIndia,\tLimited(1)  at page 422. The endorsee may  bring  an
\naction\tas an assignee of the contract of carriage but\tthen
\nthe  assignment has to be proved as in every other case.  It
\nis true that by reason of s. 137 of the Transfer of Property
\nAct,   the  provisions\trelating  to  the  transfer  of\t  an
\nactionable claim do not apply to a railway receipt, and\t the
\nassignment need not be according to any particular form, but
\na  railway receipt is not like d negotiable instrument\t(See
\nMercantile  Bank  of India Ltd. v.  Centarl  Bank  of  India
\nLtd.(2). It is also apparent that subject to the  exceptions
\nmentioned in ss. 30 and 53 of the Indian Sale of Goods\tAct.
\n1930, and s  178  of  the Contract Act, 1872. its  possessor
\ncannot\tgive  a better title to the goods than he  has.\t The
\nnegotiation of the railway receipt may pass the property  in
\nthe  goods. but it does not transfer the contract  contained
\nin  the receipt or the statutory contract under s.  74-E  of
\nthe  Indian  Railways Act. Negotiability is  a\tcreature  of
\nstatute or mercantile usage, not of judicial decisions apart
\nfrom either. So, in the absence of any usage of trade or any
\nstatutory provision to that effect, d railway receipt cannot
\nbe  accorded  the benefits which flow\tfrom   negotiability
\nunder  the Negotiable Instruments Act. so as 10 entitle\t the
\nendorsee as the holder for the time being of the document of
\ntitle to sue the carrier-the railway authorities–in his own
\nname.  If file claim of the  plaintiff\tis  as\tan  ordinary
\nassignee of the contract of carriage, then the plaintiff has
\nto  prove the assignment ‘in his favour. In the present case
\nthe plaintiff-bank has furnished no such proof of assignment
\nin  its favour. In view of cl. (3) of the notice printed  at
\nthe  back  of  the  railway receipt  it\t is  clear  that  an
\nendorsement  made on the face of the railway receipt by\t the
\nconsignee  is  meant  to indicate the  person  to  whom\t the
\nconsignee  wishes  delivery of the goods to be\tmade  if  he
\nhimself\t does  not attend to take delivery.  An\t endorsement
\nmade  by  the consignee on the face of the  railway  receipt
\nrequesting  the railway company to deliver the goods to\t the
\nendorsee  merely  conveys to the railway  company  that\t the
\nperson\tin  whose  favour the endorsement  is  made  by\t the
\nconsignee  is constituted by him a person to whom he  wishes
\nthat  delivery\tof the goods should be made on\this  behalf.
\nClause (3) of the notice printed at the back of the  railway
\nreceipt states:\n<\/p>\n
\t\t     “That the railway receipt given by\t the
\n\t      railway company for the articles delivered for
\n\t      conveyance, must be given up at destination by
\n\t      the   consignee  to  the\t  railway   company,
\n\t      otherwise\t the railway may refuse\t to  deliver
\n\t      and that the signature of the consignee or his
\n\t      agent in the delivery
\n\t      (1) (1934) L.R. 61 I ,A. 416.. .(2) (1937)  65
\n\t      I.A. 75.\n<\/p><\/blockquote>\n
\t      275<\/span><\/p>\n
\t      book  at\tdestination  shall  be\tevidence  of
\n\t      complete delivery.\n<\/p><\/blockquote>\n
\t      If  the consignee does not himself  attend  to
\n\t      take delivery   he must endorse on the receipt
\n\t      a request for delivery to\t  the person to whom
\n\t      he wishes it made, and if the receipt   is not
\n\t      produced,\t the delivery of the goods  may,  at
\n\t      the  discretion  of the  railway\tcompany,  be
\n\t      withheld\tuntil  the person  entitled  in\t its
\n\t      opinion\tto   receive  them  has\t  given\t  an
\n\t      indemnity\t to the satisfaction of the  railway
\n\t      company.”\n<\/p><\/blockquote>\n
In  the present case the plaintiff has not proved by  proper
\nevidence  an assignment of the Contract of Carriage. In\t our
\nopinion,  the law on the point has been correctly stated  by
\nBhagwati,  J. in Shamji Bhanji & Co. v. North  Western\tRly.
\nCo.(1).\t It  follows, therefore, that the plaintiff  has  no
\nright to bring the present suit against the Union of India.
\n  Counsel  for\tappellant has referred to  the\tpractice  of
\nmerchants in treating a railway receipt as a symbol of goods
\nand in making pledge of goods by pledge of railway receipts,
\nbut no such practice or custom has been alleged or proved on
\nbehalf of the plaintiff in the present case. In the  absence
\nof  such allegation or proof it is not open to the Court  to
\ntake  any judicial notice of any such practice. Counsel\t for
\nappellant  also\t referred  to  possible\t inconvenience\t and
\nhardship  to merchants if such a practice is not  judicially
\nrecognised, but the argument from inconvenience and hardship
\nis  a dangerous one and is only admissible  in\tconstruction
\nwhere the meaning of the statute is obscure.  In Sutters  v.
\nBriggs(2). Lord Birkenhead stated:\n<\/p>\n
“The consequences of this view of s. 2 of the Gaming\tAct,
\n1835  will  no\tdoubt be extremely  inconvenient  to\tmany
\npersons. But this is not a matter proper to influence\t the
\nHouse  unless  in  a doubtful case  affording  foothold\t for
\nbalanced  speculation  as to the probable intention  of\t the
\nlegislature.”\n<\/p>\n
In  the present case the language of s. 178 of the  Contract
\nAct  is\t clear\tand  explicit  and  if\tany  hardship\tand’
\ninconvenience\tis  felt  it  is  for  Parliament  to\ttake
\nappropriate steps to amend the law and not for the courts to
\nlegislate under the guise of interpretation.
\nFor the reasons expressed, we hold-that Civil Appeal 474  of
\n1962  brought by the plaintiff-bank should be dismissed\t and
\nCivil  Appeal  475  of 1962 brought by the  Union  of  India
\nthrough\t the  General  Manager, Central\t Railway  should  be
\nallowed\t with  costs  and’ the suit  of\t the  plaintiff-bank
\nshould be dismissed with costs\t throughout.\n<\/p>\n
\t\t      ORDER BY COURT
\nIn accordance with the majority Judgment. Civil Appeal\t 474
\nof  1962  is  allowed  and  Civil  Appeal  475\tof  1962  is
\ndismissed,plaitiff’s suit is decreed with costs throughout.
\n(1) A.I.R. 1947 Bom. 169. I.A.C. 1.\n<\/p>\n
(2) [1922] I.A.C.1.\n<\/p>\n
N)3SCI–5
\n276<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India The Morvi Mercantile Bank Ltd. And … vs Union Of India, Through The … on 3 March, 1965 Equivalent citations: 1965 AIR 1954, 1965 SCR (3) 254 Author: K Subbarao Bench: Subbarao, K., Dayal, Raghubar, Mudholkar, J.R., Bachawat, R.S., Ramaswami, V. PETITIONER: THE MORVI MERCANTILE BANK LTD. AND ANR. Vs. RESPONDENT: […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-231855","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nThe Morvi Mercantile Bank Ltd. 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