Thadani, C.J. - (1.)THIS is a first appeal from the judgment & decree of the Additional Subordinate Judge, Upper Assam Districts dated 23rd of December, 1949 by which he dismissed the plaintiff's suit with costs.
(2.)THE plaintiff, Chouthmal Agarwalla, brought a suit against the Governor -General of India in Council on 6th December, 1945 claiming a sum of rupees seven thousand odd as compensation for the value of potatoes which had become unfit for human consumption during their transportation from Shillong to Dibrugarh. As a result of the condition of the potatoes the plaintiff refused to take delivery and after complying with legal formalities he brought the present suit. The defendant Railway denied liability on various grounds.
On the pleadings the trial Court framed the following issues: - -

(1) Whether the plaintiff has any cause of action against the defendants?

(2) Is the suit maintainable in its present form?

(3) Has the plaintiff right to sue?

(4) Whether legal and valid notices under S. 77 , Indian Railways Act and under S. 80, Civil P.C. were served in this suit?

(5) Whether the consignor executed risk note "A" exonerating the Railway from liability for the condition in which the consignment might be delivered at destination and for any loss arising from the same except upon proof of misconduct on the part of the Railway Administration or their servants?

(6) Whether the consignor executed risk Note "B"?

(7) Is the defendant liable to pay any compensation to the plaintiff?

(8) If so, what amount the plaintiff can recover from the defendant?

(9) To what relief, if any the plaintiff is entitled to in this suit?

(3.)MR . Lahiri for the plaintiff -appellant has not argued any other questions before us than those involved in the 5th and 6th issues. The facts material to the determination of the 5th and 6th issues are these : -
The consignment in question was covered by risk notes "A" and "B". The question of the risk note "B" does not arise as the goods were tendered for delivery to the plaintiff who, however, refused to take delivery of the consignment. So far as risk note "A" is concerned, the consignment note at page 40 of the Paper -Book shows that the potatoes were in good condition when they were consigned. The short question therefore for determination is whether the Railway Administration is liable for the deterioration of the potatoes caused by the delay in the arrival of the consignment at Dibrugarh.