Mack, J. -
(1.) Appellant is the South Indian Railway impleaded in the suit filed in 1945 as the Governor General in Council, New Delhi, represented by the General Manager. There has been much evolutionary change since, with all the Railways in the Union nationalised and today the appellant is the Dominion of India. The original plaintiff was Adam Haji Pir Muhammad Esack and he too is now represented by the Custodian of Evacuee Property. He will however, be referred to in this judgment for convenience as the plaintiff. He sued to recover Rs. 5600 from the South Indian Railway in respect of a consignment of 200 bags of Bengal gram, which were booked at Cawnpore on the G.I.P. Railway on 1-111944 to Cuddalore on the South Indian Railway. The learned Subordinate Judge decreed his suit in full.
(2.) The relevant facts are these: Plaintiff, a wholesale dealer in grains, groceries and so on had business ramifications throughout what was then British India. He had a branch at Cawnpore and another at Cuddalore. The 200 bags of Bengal gram were, according to invoice No. 6 of 1944 Ex. P. 1, dated 1-111944, consigned in the name of someone by name R.F.C. to one M. Bagavandas. Subsequent to the consignment, Bagawsndas endorsed Ex. P. 1 to the plaintiff, who appears to have purchased it after it was consigned for transit. It is common ground that the bags arrived at Arko-nam in a full sealed wagon on the broad gauge railway and were there transhipped into two meter "gauge wagons M.C. 413 and M.C. 60 each containing 100 bags. These two wagons with seal cards with No. "8" on them instead of the correct invoice No. 6 reached Cuddalore on 16-11-1944. It is common ground that the invoices were prepared in triplicate and that one copy had to be carried by the guard. The copy, which should have been in the guard's possession, was not forthcoming and had got mislaid somewhere. The result was that when plaintiff's agent at Cuddalore (P.W. 1) went to the goods station and asked for delivery on 17-11-1944 on the strength of Ex. P. 1, the Goods Station Master, D.W. 3 declined to deliver without instructions, for which he wired. His main difficulty appears to have been that the seal cards on the wagons showed invoice No. 8 and as the guard was unable to produce the copy of the invoice, which should have been in his possession, he was not sure whether these bags related to Ex. P. 1. On 23-11-1944, an Inspector (D.W. 1) was sent to Cuddalore and he opened the-: wagons to see if the bags had marks. He found no identifying marks and further more that the seal card did not show the date of the invoice. The hags were unloaded on 13-12-1944 from the wagons and stacked in a covered shed. Despite the South Indian Railway writing to the G.I.P. Railway that there was only one person claiming under invoice No. 6, it was not till 24-1-1945 that the G.I.P. Railway authorised delivery. The station master, Cuddalore, then sent word to the plaintiff's branch there to take delivery. They declined. Registered notices, (see Ex. D. 31 dated 30-1-1945) were sent both to the plaintiff and to Bagavandas calling upon them to take delivery in the following terms:
"Legally you cannot refuse delivery of a consignment or part thereof in whatever condition it may be available for delivery. The railway is prepared to allow delivery on remarks for actual condition and weight. The consignment is lying undelivered solely at your risk according wharfage. The delay in delivery is due to you and the railway is not responsible." Plaintiff replied by letter Ex. D. 33 dated 4-2-1945 declining to take delivery on various grounds, that the goods had become deteriorated and damaged while lying in a state of exposure in the goods shed, and that after the arrival of the goods at Cuddalore, there had been a fall in price of Rs. 8 a bag. At the same time, this letter appreciated the fairness of the railway offer of delivery with remarks on actual condition and weight, meaning that the plaintiff would be compensated for loss sustained by them. It was not till 29-5-45 that the railway company sold the 200 bags in public auction for Rs. 3625 under Section 56(2) of the Railways Act. The delay is satisfactorily explained as, grain being a controlled commodity, the collector's permission had to be obtained for sale. Deducting freight of Rs. 432 and demurrage of Rs. 1052, there was a balance of Rs. 2140-9-8 available to the plaintiff, who however sued to recover the full value of the grain according to the invoice.
(3.) The first point taken by Mr. Ramachanra Aiyar for the appellant is that the suit against the South Indian Railway is not maintainable and that the plaintiff should have sued the contracting railway, i.e., the G.I.P. Railway. He relied on - 'Chunnilal v. Nizam's Guaranteed State Railway Co.', 29 All. 228 a Full Bench decision of the Allahabad High Court followed by King J. in -- 'South Indian Railway v. Krishnaswami Naidu', 71 M. L. J. 325. The facts, of those cases were quite different and they were held to be not covered by Section 80, Railways Act, which enables a suit for compensation for injury to through booked traffic being brought either against the contracting railway administration or against the railway on which loss, injury, destruction or deterioration occurred. In the present case, 'there is clear and ample evidence to show that the deterioration occurred at Cuddalore, where the goods arrived in good time on 16-11-44. In 5 y the Governor General in Council, New Delhi, represe... Page 4 of 5 two letters Ex. D. 21 dated 17-1-45 and Ex. D. 25 dated 25-1-45 written by railway officials 'inter se', there is a clear reference to the deterioration of these bags, and a request for instructions by wire if delivery can be made to invoice No. 6- Quite apart from this positive evidence of deterioration, the main grievance of the plaintiff is that although these bags arrived in Cuddalore on 16-11-1944, his representative was refused delivery and delivery was only offered more than 2 months later not only after the bags had deteriorated, but also after there had been a substantial fall in price. There can be no doubt that there was a muddle and a mistake arising out of negligence, amounting to misconduct on the part of the railway servants, which resulted in the delivery of these bags being refused to the plaintiff immediately after their arrival.;