SECY OF STATE Vs. SIMLA FOOTWEAR COMPANY

JUDGEMENT

(1.) This is a second appeal by a defendant against whom the lower Courts have passed a decree for Rs. 600 damages. The appellant is the Secretary of State for India-in-council representing the North-Western Railway and the G.I.P. Railway. The facts arc simple. The plaint sets out that the plaintiff, a firm in Agra, sent certain boxes of shoes from Agra Fort to Amritsar, The date of despatch was 26th January 1929, and the consignment arrived on 7 February 1929. Delivery was not taken at Amritsar and on 20 April 1929 the railway company sent a registered notice to the plaintiff stating that the goods (had been sent to the lost property office and that proceedings would be taken under Secs.55 and 56, Railways Act. On 24 April 1929 the plaintiff sent a very indefinite letter to the railways company asking the railway company to retain the goods and stating that delivery would be taken about 1 May. The railway company sent no reply to this letter and the plaintiff took no further action in the matter. On 1 September 1929 the railway company put up the consignment for sale along with other goods at a general sale and the consignment was sold for Rs. 400. After this the plaintiff states that in the first week of October 192.9 he was informed that the goods had been sent to the lost property office in Lahore, and on 22 October, 1929 he was informed that the consignment had been sold by public auction. The railway company offered to the plaintiff the proceeds Rs. 400 less Rs. 28-2-0, that is, Rupees 371-14-0 which the plaintiff did not accept. The plaintiff has brought a suit for the cost price of the goods Rupees 759-12-0 and various other sums amounting in all to Rs. 1,035-11-0. The lower Courts have awarded Rs. 600 as damages.

(2.) The first point which was argued in second appeal was that the lower appellate Court erred in holding that no notice under Section 77, Railways Act, was necessary. This section states: carried by railway or to compensation for the loss, destruction or deterioration of animals or goods delivered to be so carried, unless his claim to the refund or compensation has been preferred in writing by him or on his behalf to the railway administration within six months from the date of the delivery of the animals or goods for carriage by railway.

(3.) The appellant claims that the present suit is one which would come under this section. The section refers to a suit for compensation for loss, destruction or deterioration of goods. The argument is that in the present case loss has been caused to the plaintiff by the sale of the goods by the railway company or the non- delivery of the goods to the plaintiff by the railway company, therefore the notice is required under this section, and the notice should have been given within six months from the date of delivery of the goods, i.e., within six months from 26th January 1929. The notice therefore, according to the appellants, should have been given by 26 July 1929. It is obvious that the notice according to this theory should have been given before the goods were sold. It is difficult to see on what grounds it could have been alleged on 26 July 1929 that the goods had been lost. On that date the goods were in the lost property office of the railway and the railway had made no refusal to deliver them to the plaintiff. On the contrary the railway had issued a notice to the plaintiff on 20 April 1929 asking the plaintiff to take the goods. It is clear therefore that it could not be said that the goods were in any sense lost on 26 July 1929. Therefore if the contention of the appellant were correct, it would be impossible to bring this case at all. Learned Counsel for the appellant, referred to a large number of cases which he contended established or tended to establish his point. The earliest of these cases is G.I.P. Ry. Co. v. Ganpat Rai (1911) 33 All. 544. That was a case where the goods had actually been lost as they had not actually reached their destination. The case was therefore different from the present case where the goods had reached their destination and had never been lost from the possession of the railway company until sold. The next case is E.I. Ry. Co. V/s. Sheo Ratan Das (1913) 19 I.C. 370. In that case the railway company retained the goods on the lien under Section 55. Secy. of State V/s. Jivan 1923 All. 426 is a case where it was held that the word "loss" in Section 7 Railways Act, means the actual loss to the company and not a loss to the plaintiff in the sense that he does not receive the value of the goods. This was also held in E.R. Ry. Co. V/s. Tirkha Mal 1924 All. 7, and E.I. Ry. Co. V/s. Makhan Lal, Bindeshri Prasad 1923 All. 605. In Badri Prasad V/s. G.I.P.R. 1925 All. 144 it was held that a notice under Section 77 was only necessary where there was an actual loss of the goods by the railway company, and this ruling specifically dissented from certain rulings of Patna and Madras which held to the contrary. In E.I. Ry. Co. V/s. Fazal Ilahi 1925 All. 273 there was a case where the goods were actually lost and it was held that there was no distinction between a suit which was brought for damages for non-delivery and a suit which was brought for the loss of the goods. The expression "damages for non-delivery" was not intended in that ruling to apply to a case like the present. In Thakurdas Manrakhan Lal V/s. E.I. Ry. Co. 1926 All. 686 there was again a case where goods were actually lost by the railway company and it was held that a notice was necessary for a suit even though the suit was expressed as a suit for non-delivery. In the same volume on p. 698, Sheo Dayal Niranjan Lal V/s. G.I.P. Ry. Co. 1926 All. 698, there was a similar ruling in the case where there was a shortage found in the goods and it was held that notice was needed. In none of these cases were the facts similar to the present where the goods have all along been in the possession of the railway company until the railway company sold the goods. These rulings therefore are no authority for the proposition advanced by learned Counsel for the appellant. We may point out that Section 77 comes in Chapter 7. Railways Act, which is headed "Responsibility of Railway Administrations as Carriers." That chapter begins with Section 72 which lays down the responsibility of the railway administration for the loss, destruction or deterioration of animals or goods, and it is stated that the responsibility is that a bailee under Secs.151, 152 and 161, Contract Act. Those sections do not refer to the action of a bailee in selling the goods as in the present case, nor is a bailee entitled to do so. The right of a railway company as distinct from an ordinary bailee to sell goods depends on the statutory provisions in Secs.55 and 56, Ch. 6, Railways Act. Any claim which would arise from a railway company failing to act under those sections, although it purported to act under them, would, not come under Ch. 7. Accordingly the notice provided by Section 77, Ch. 7 clearly does not apply to the present case. Learned Counsel for appellant then argued that the suit was one to which Art. 31, Schedule 1, Limitation Act applied, that the period for that article was one year from the time when the goods ought to have been delivered, which was on arrival on 7 February 1929, that the period of one year expired on 7 February 1930, that the present suit was brought on 4 October 1930 and was therefore time-barred. Art. 31 is for a suit "against a carrier for compensation for non-delivery of, or delay in. delivering, goods."