SECRETARY OF STATE Vs. RAGHUBAR DAYAL-BABU RAM

JUDGEMENT

(1.) This is a second appeal by the Secretary of State for India in Council through the Agent of the East Indian Railway, Calcutta, against a decree of the learned Subordinate Judge of Cawnpore. The plaintiffs are merchants in Cawnpore, and there was a consignment of 200 bundles of steel rods despatched from Kidderpore Dock station on 22 August, 1929, for the plaintiffs as consignees to Lucknow. The consignment reached Lucknow on 30 August 1929, and at the instance of the plaintiffs the consignment was re-booked for Cawnpore on 11 September 1929, and reached Cawnpore on 15 September 1929. When the consignment arrived at Cawnpore the plaintiffs refused to take delivery of the consignment because they alleged that 9 bundles out of the 200 bundles of steel rods had been changed and did not bear the marks which were on the invoices of the shippers from Europe. There was also difference in the weight of some 12 maunds, 13 seers and 8 chhataks short. Now the plaintiffs in consigning the goods in Kidderpore had not put in their invoice for the railway the marks which were on the goods in the shippers invoices. Accordingly the Railway Company were apparently unable in the first instance to check the accuracy of the claim of the plaintiffs. The Railway Company therefore on 5 October through the goods Inspector asked the plaintiffs to take delivery on a clear receipt: as the number of bundles was correct, and they suggested that a refund of freight should be granted only on the shortage of 12 maunds odd in the weight. The plaintiffs on 7th October 1929, objected to this procedure, and alleged that "there was an exchange of the packages which are not in the invoice." Further correspondence followed between the parties and on 24 February 1930 the Commercial Manager wrote as follows: As 191 bundles of the- above consignment agree with the specifications in your Beejak there is no justification for your declining to effect delivery of them. Will you please arrange to remove these 191 bundles at an early date and then submit your claim for the rejected 9 bundles which will be considered,

(2.) In reply to this the plaintiffs wrote on 7 March 1930: We note that you admit that an exchange has taken place. It is too late to ask us to remove the bundles which we cannot sell as there will be a very heavy loss. But if you will promise to make good our loss we shall sell them for the sake of you.

(3.) As the plaintiffs refused the offer it was withdrawn. Eventually the plaintiffs brought the present suit. The Court of first instance granted the plaintiffs a decree for return of the 191 bundles and damages for the 9 bundles, less freight and wharfage at Lucknow, the decree in favour of the plaintiffs being for Rs. 52-1-7 with interest at 6 per cent, per annum on this amount from 16 September 1929, till date of payment. The plaintiffs appealed to the lower appellate Court, and that Court has granted a decree for the recovery of Rs. 1,320-13-6 and interest at 6 per cent, per annum from 16 September 1929, the date of the arrival of the consignment in Cawnpore. This decree is for the total value of the 200 bundles of steel rods. In second appeal before us it is admitted that the Railway Company has a liability for the 9 bundles of steel rods as if it was not contested that those bundles did not correspond to the bundles shown in the shippers invoices produced by the plaintiffs, but it is contended that this is the only sum for which, the Railway Company is liable. It is contended that in the first place the consignment was sent under Risk Note Form A on account of the steel rods being defectively packed, and under this Risk Note the Railway Company was only liable for loss arising from misconduct on the part of the railway administration's servants. It is further urged that under Rule 45 of the Goods Tariff Part 1-A rules, the following rule applies: A consignee must take delivery of goods forming part of a, consignment whenever they are available for delivery notwithstanding that the remaining goods are short or damaged or have not arrived at their destination or are otherwise not available for delivery ; and, if the consignee does not take delivery of such goods forming part of a consignment as are available for delivery, they will be subject to wharfage charges if not removed within the time allowed for removal.