Mukerji, J. - (1.) These two special appeals have come up before us on leave granted by a learned Single Judge. The appeals raise the same point and we shall dispose them, as did the learned single Judge, by a common judgment.
(2.) The appellant, who was the plaintiff in both the suits out of which these appeals have arisen, booked two separate consignments of one bale of cloth each for carriage on the Bombay-Baroda route of the Central Indian Railway, as it then was; both the consignments were booked to 'Self'. The first consignment was booked at Ahmedabad on the 1st of May, 1943, for carriage to Basti. The second consignment was booked at Wadi Bunder on the 29th of May, 1943, for carriage to Basti.
(3.) The first consignment, which had been booked on the 1st of May, 1943, a rived at Basti on the 11th of May, 1943, while the second consignment, which had been booked on the 29th of May, 1943, arrived at Basti on the 11th of June, 1943. Both the consignments arrived in a "loose" and damaged condition. The plaintiff in both the cases claimed, what has been called, 'Open Delivery' of the. goods. The clerk in charge of the delivery section of the Railway at Basti stated that he could not give open delivery on his own initiative and that he had to get permission for it from his higher authorities and that the delivery, if permitted, could only be made in the presence of a Traffic Inspector. The plaintiff apparently felt satisfied with the conditions which were put out to him by the delivery clerk at Basti and, therefore, he did not take delivery of the goods at the time when delivery could have been given. In both the cases "open delivery" was given on the 20th August, 1943, i.e., after a good deal of delay, in the case of the consignment which reached on the 11th of May, 1943, there was a delay of more than three months, while in the case of the consignment which arrived on the ,11th of June, 1943, the delay was of more than two months. The plaintiff found that the goods had Suffered damage and deterioration, and further that there was shortage of goods in both the bails, for in one bale there were 12 dhotis found missing while in the other two thans of voile were found missing; it was also observed that some of the thans had suffered damage due to rain water.;