Desai, J. - (1.) This is a defendant's appeal from a decree of the Judge, Small Cause Court, Meerut, for Rs. 5,135/11/- on account of damages for loss of goods. On 10-8-1942 a consignment of 37 bales of gunny bags was booked from Jogbani railway station on the Bengal and Assam Railway to Ghaziabad on the East Indian Railway under railway risk note H by the Biratnagar Jute Mills Ltd. The consignee was the Jute Mills Ltd. itself and the railway receipt was assigned by it to the respondent, who thereupon became entitled to take delivery of the goods at Gaziabad. The consignment was placed in wagon No. 15317 and the train left Jogbani on the the same day and reached Katihar Junction on 11-8-1942. At Katihar the wagon was detached from the train and handed over to the appellant, which was then known as the Bengal North Western Railway, for conveyance to Bara Banki from where it was to be carried by the East Indian Railway to the destination, Ghaziabad. The appellant took charge of the wagon at Katihar on 11-8-1942 and attached it to 163-Up, which left Katihar for Bara Banki, in loaded condition as would appear from the guard's signature book. Between Katihar and Bara Banki is railway station Barauni under the appellant's administration; the train should have reached Barauni within 15-16 hours of its departure from Katihar. There were political disturbances in August, 1942, and the railway station at Barauni was looted by mobs; the looting started on night of 11-8-1942 and continued for 2-3 days with the result that the traffic through Barauni was suspended from 12-8-1942. It is said that 163-Up reached Baruni on or about 12-8-1942 and was looted there and the consignment in dispute was lost. The records maintained at the railway station were burnt by a mob and, therefore, nothing could be known when the train reached Barauni, how long it was detained there, what was the condition of the wagon containing the consignment, when it left etc. The consignment never reached Bara Banki, was never handed over to the East Indian Railway and has not been delivered to the respondent.
(2.) The respondent after waiting for the arrival of the consignment started correspondence with the railway administrations concerned. First it corresponded with the East Indian Railway. On 1-10-1942 it wrote to its Chief Commercial Manager informing him that the consignment had not reached Ghaziabad, that the price of the goods was rising and that if they were not delivered to it within a week, it would hold him responsible for "loss" and claim from him Rs. 6,150/-, the price, plus Rs. 2,000/- as the anticipated profits from sale of the goods and costs. A copy of it was endorsed by the respondent to the Bengal and Assam Railway, On 9-10-1942 it sent a telegram to the Chief Commercial Manager, East Indian Railway, informing him that the goods had not still reached Ghaziabad and that he should take necessary action. On 29-10-1942 the Chief Commercial Manager informed it, with reference to the telegram, that the matter was under telegraphic inquiries. On 3-11-1942 the Chief Commercial Manager, Bengal and Assam Railway, informed the respondent that the consignment had been handed over by his administration to the appellant at Katihar and had been despatched from there on 11-8-1942 and asked it to correspond direct with the Chief Commercial Manager, East Indian Railway. This was in reply to the copy of the respondent's letter dated 1-10-1942 endorsed to the Bengal and Assam Railway. On 17-11-1942 the respondent wrote again to the East Indian Railway and on 24-11-1942 it was informed that the mater was receiving attention. On 17-10-1942, it seems, the respondent wrote another letter to the Bengal and Assam Railway from which it had not received any reply to .its letter of 1-10-1942; that letter was answered by the Bengal and Assam Railway on 23-11-1942 it only said that the matter was receiving attention. On 17-11-1942 the respondent wrote a letter to the East Indian Railway and on 24-11-1942 it replied that the matter was receiving attention. On 25-11-1942 the respondent sent a telegram to the East Indian Railway and the latter replied on 9-12-1942 that the matter was under reference with the foreign railways, that urgent references were made to them and that unless they proved delivery of the consignment to it, it was unable to give any definite reply to the respondent. On 28-11-1942 the respondent wrote a letter to the East Indian Railway, which replied on 4-12-1942 that the matter was receiving attention. On 9-12-1942 the respondent, who had by then received the Bengal and Assam Railway's reply dated 3-11-1942, wrote to the East Indian Railway that the consignment had been handed over to the appellant at Katihar and had been despatched from there on 11-8-1942, that it. had not still reached Ghaziabad and that nothing was known about its where-abouts and asked it to arrange at once for its delivery or payment of Rs. 8,150/- as claimed previously. On 11-12-1942 it sent a telegram to the East Indian Railway asking for information about its consignment and confirmed it by a letter. On 14-12-1942 the respondent addressed the first letter to the appellant's Commercial Manager stating that the consignment ought to have reached the destination within a week in due course, that its whereabouts were not known, that the Bengal and Assam Railway had informed it that the consignment had been delivered to the appellant at Katihar and had been despatched from there on 11-8-1942 and that the East Indian Railway had informed it that the foreign railway had not proved delivery of the consignment to it and requesting the appellant to let it know by return post whether it had handed over the consignment to the East Indian Railway or not. The East Indian Railway on 23-12-1942 informed the respondent, with reference to its letter & telegram of 11-12-1942, that the matter was under telegraphic communication with the foreign railways. On 12-1-1943 it informed the respondent that the consignment had been looted by a mob during the political disturbances of August, 1942, and that the incident being beyond its control the claim preferred by it could not be entertained and the loss was regretted. This was the first information received by the respondent about the loss of the consignment. On 19-1-1943 the appellant also informed it with reference to its letter of 14-12-1942, that the consignment was reported to have been looted by a mob at Barauni railway station during the disturbances of August, 1942, that the matter was still under further investigation and that a further reply would be sent after the facts were satisfactorily ascertained. On 2-3-1943 the respondent wrote to the appellant, with reference to its letter of 19-1-1943, that it had heard that some of its goods were stored in its lost property office and requested that its representative might be permitted to see them in order to Identify them. The appellant replied on 6-3-1943, that it was impossible to connect loose bags bearing no marks with any consignment. On 31-3-1943. the respondent sent a letter (contents not known) to the appellant which on 20-4-1943 replied that one lot of gunny bags was received in its lost property office and sold by public auction, that several consignments of gunny bags were looted in the disturbances and that consequently it was not possible to say that any of its bags were in the lot. On 8-6-1943 the respondent wrote again to the appellant seeking some information about the lot and the appellant replied that it was for the respondent to give necessary information about its consignment so that it could say whether the lot contained any of its bags. The respondent on 13-8-1943 wrote that the total number of bags in its consignment was 12,300. No part of the consignment was delivered to the respondent and on 3-1-1944 it instituted the suit giving rise to this appeal against the appellant and the Governor-General as representing the East Indian Railway and the appellant.
(3.) It was alleged in the plaint that the consignment should have reached the destination within a week but never reached there and was not delivered to the respondent, that the whole of it was lost, that the loss was the result of misconduct on the part of the railway administration and its servants and they were liable to pay the price of the consignment together with damages for non-delivery in proper time, that notices of the claim and of the suit were served upon the railway administrations and the Governor-General-in-Council, that the East Indian Railway by its letter of 12-1-1943 finally refused to entertain its claim and that the appellant also refused to pay anything as per its letter of 20-4-1943, that the price of the consignment was Rs. 4,599/11/-, that the respondent was in addition entitled to interest at 9 per cent, per annum with effect from 10-8-1942 and that it had relinquished its claim for damages. Both the defendants contested the suit on similar written statements. The learned Judge has decreed the suit only against the appellant, and therefore, I shall ignore the defence of the Governor-General-in-Council. The appellant pleaded that no claim was made to it as required under Section 77 of the Railways Act within six months from the date of delivery of the consignment at Jogbani, that it was barred by "limitation under Section 80 of the Civil Procedure Code", that section 72 of the Railways Act ex empted the appellant from liability for loss of the goods, that the consignment was looted at Barauni by a riotous mob under circumstances absolutely beyond its control and that there was no misconduct or negligence on its part. The plea of the bar imposed by section 80, C. P. C., was abandoned later. The following is sues were framed and decided by the learned Judge:- ''1. Is the suit not maintainable as no claim under Section 77 of the Indian Railways Act (No. IX of 1890) was preferred by the plaintiffs within six months of the date of delivery of the goods for carriage by the railways? 2. * * * * * 3. Is the suit barred by limitation?;