1. The plaintiffs in this case are a firm of commission agents in Nandurbar. In March, 1928, they bought on behalf of the firm Raghunathmal Satyanarayan & Co. a quantity of castor seeds and sent them by rail from Nandurbar to Bombay for the purpose of delivery being eventually taken by Raghunathmal Satyanarayan & Co. The railway receipt was made out in the name of the plaintiffs themselves (in other words the goods were consigned to self) and was handed over by the plaintiffs to one Bansilal, who was an agent of Raghunathmal Satyanarayan & Co. According to the plaintiffs' the understanding between themselves and Bansilal was that Bansilal should forward the railway receipt to Raghunathmal Satyanarayan & Co., that Raghunathmal Satyanarayan & Co. should then remit the purchase price of the goods to the plaintiffs at Nandurbar along with the railway receipt, and that the railway receipt should then be re-transmitted from Nandurbar endorsed by the plaintiffs for delivery to Raghunathmal Satyanarayan & Co. It appears, however, that Bansilal himself sent the railway receipt to Raghunathmal Satyanarayan & Co., and they thereupon endorsed it to the Oza Agency; the Oza Agency endorsed it to Kalidas Narayandas, and Kalidas Narayandas finally endorsed it in favour of the carting agents, F. R. & Sons, who eventually took delivery of the goods from the railway in Bombay. The plaintiffs now sue the B. B. & C. I. Railway Company for the value of the consignment on the ground that the railway company was wrong in delivering the goods without an endorsement upon the railway receipt by the consignee himself. The defence in the main was that under rule 3 printed on the back of the railway receipt there was no obligation upon the defendant company to deliver only to the endorsee of the consignee and that the plaintiffs were well aware of the mercantile usage by which goods conveyed by rail are delivered in practice to a person other than the endorsee of the consignee provided that the railway company is satisfied that that person is entitled to receive them. The trial Court rejected the contentions of the defendant and held that the railway company was bound to deliver only to the consignee or his nominee. The lower appellate Court took a contrary view and held that by delivering the railway receipt to Bansilal the plaintiffs treated him as their agent and that by commercial usage it was open to the railway company to deliver the goods to persons other than the consignee or his endorsee provided that the company was satisfied that such persons were the proper persons to receive the goods. The plaintiffs now come in second appeal.
2. Put shortly, the argument on behalf of the plaintiffs-appellants is that under Section 72 of the Indian Railways Act the responsibility of a railway administration as regards the carriage of goods is that of a bailee, which responsibility can be limited only by an agreement in writing in an approved form; that such agreement in an approved form is to be found in condition No. 3 of the conditions printed on the back of the railway receipt; and that no considerations of agency or mercantile custom can be of any effect to modify the responsibility imposed upon the railway company by condition No. 3. That means that the plaintiffs stand or fall by condition No. 3 on the back of the railway receipt which they contend means that the railway company may deliver goods only upon the production of a railway receipt either by the consignee or by somebody nominated by the consignee himself to take delivery of the goods and endorsed as such upon the railway receipt.
3. Section 72 of the Indian Railways Act says that subject to the other provisions of the Indian Railways Act the responsibility of a railway as regards carriage of goods is that of a bailie under Sections 152 and 161 of the Indian Contract Act and is not that of a common carrier; and it further says that such responsibility can be limited only by special agreement in a proper form. The reference to the Indian Contract Act means that as a carrier of goods the railway is bound to take as much care of the goods committed to its care for delivery as a man of ordinary prudence would take of his own goods of similar value, and that if it has done so, it is not responsible for the loss or destruction or deterioration of the goods, and lastly that, if the railway company through its own fault fails to deliver the goods at the proper time, it is responsible for any loss or destruction or deterioration of the goods that may take place from that time. Thus under Section 72 there is no obligation thrown upon a railway company to deliver the goods to any particular person; and the question is whether condition No. 3 printed on the back of every railway receipt imposes such a liability upon the railway company. The conditions on the back of the railway receipt are headed ' Notice to consignors ', and they run as follows :
The company hereby give public notice
* * * * * * * * *(3) That the railway receipt given by the railway company for the articles delivered for conveyance must be given up at destination by the consignee to the railway company, or the Railway may refuse to deliver, and that the signature of the consignee or his agent in the delivery book at destination shall be evidence of complete delivery.
If the consignee does not himself attend to take delivery, he must endorse on the receipt a request for delivery to the person to whom he wishes it made, and if the receipt is not produced the delivery of the goods may, at the discretion of the railway company, be withheld until the person entitled in its opinion to receive them has given an indemnity to the satisfaction of the railway company.
On behalf of the appellants it is contended that this condition prescribes both the rights and the liabilities of the railway company. On behalf of the defendant company it is contended that it deals only with the rights of the company, and imposes no liability. In my opinion the contentions of the defendant company must prevail. To me it seems that the object of the rule is to protect the railway, and that what it imports is nothing more than a warning to the consignor that delivery may be refused by the railway company in the event of certain conditions imposed upon consignees not being observed. I am unable to see that it intends to import the converse, namely, that if those conditions are not observed the railway company will on no account deliver the goods. To interpret the rule in that way seems to me to lay too much stress upon the word 'must' appearing in the second part of the rule. When that word is used in the first half of the rule it clearly does not mean that failure to obey the rule will in every case, without exception, result in delivery being refused, because the rule runs ' railway receipt must be given up or the railway may refuse delivery'. Thus the word ' must' does not convey in the first half of the rule any peremptory obligation, and I do not know why it should be interpreted in a different sense in the second half of the rule. I take it that the rule means neither more nor less than it says, namely, that it is the duty of the consignee to endorse the receipt in favour of the person whom he wishes to take delivery. It is clear from the latter half of the rule, dealing with the situation arising when no railway receipt at all is produced, that the railway company reserves to itself a wide discretion, and it seems to me to be anomalous for the railway company to reserve to itself a wide discretion when no railway receipt at all is produced but to reserve no discretion at all when a railway receipt is produced by a person who is able to show to the company some claim to be the rightful person to take delivery.
4. Upon this interpretation of condition No. 3, on which alone the plaintiffs rely in their claim against the company, the other questions raised in the lower Courts regarding mercantile usage and the position of as an agent of the consignee no longer survive for consideration, since the plaintiffs' case must fail upon the ground on which they now base it. I therefore think it unnecessary to call upon the parties to argue the rest of the case, and I dismiss this appeal with costs.