The Jubilee Mills Limited (plaintiff) was a limited company who purchased cotton through the commission agency of Motabhai Gulabdas, a firm of commission agent in Surat. Out of the cotton thus purchased a quantity of 84 bales was to be consigned by mil from Kosamba railway station. Ono Chhatubhai Chaturbhai acted as the representative of Motabhai Gulabdas, and on 2nd April 1045, he approached the station master at Kosamba for the consignment of these bales. The station master at Kosamba asked Chhotubhai Chaturbhai to bring the bales within the station yard, and accordingly Chhotubhai Chaturbhai got the 84 bales weighed in the ginning factory of Motiram Raghavji and brought them within the station yard at about 10 a. m. on 3rd April 1945, and deposited them on the down platform at the instance of the station muster. Chhotubhai Chaturbhai also made an entry in the indent book asking for wagon or wagons to be allotted to him for the purpose of the consignment of these bales and he also filled in a consignment note and gave it to the station master who accepted it and kept it with himself. Chhotubhai Chaturbhai left for Surat on the evening of 3rd April 1945. He saw the station master on 4th April 1045, and on 5th April 1946, and inquired from him about the wagons, but the Station-master informed him that no wagons ware received. While this uncertainty about the obtaining of the wagons continued, the bales caught fire from a spark of the engine of the Saurashtra Mail running along the mils at the Kosamba station in the early morning of 6th April 1945, and these bales Were burnt by fire. Information of this fire was given by the station master, Kosamba, to the firm of Kasturchand Sobhngchand who had also deposited 104 bales of cotton alongside the 84 bales of the plaintiff, and the representatives of Motabhai Gulabdas and Kasturchand Sobhagchand ran up to Kosamba, all attempts were made by the station stall as also by these people to extinguish the fire which was done by about 10 a. m. on 6th April 1945. A panchnama was made on 14th April 1945, of the bales which were thus salvaged by several panchas who who were present there, but in the absence of any representatives of the railway authorities who absented themselves stating that they had no sufficient time to enable them to be present on the occasion. The salvago was thereafter sold by Motabhai Gulabdas to one Parbhubhai Chhitabhai for a sum of Rs. 4,200. Parbhubhai Chhitabhai got it repressed into bates through Motabhai Gulabdas and the salvage was thus repressed into 56 bales. Motabhai Gulabdas incurred charges in the aggregate sum of Rs. 958-10-0 which they debited to the account of 1'arbhubhai Chhitabhai and Parbhubhai Chhitabhai sold these 56 bales to the Victoria Mills for the sum of Rs. 4,200. The plaintiff claimed from the Governor General of India-in-Council (representing the B.B. & C.I. railway administration) (defendant) a sum of Rs. 18,499 on the basis of this sale to the Victoria Mills as damage sustained by them by reason of the gross negligence and misconduct of the mil-way administration, and on 25th October 1845, tiled the present suit to recover the sum against the defendant after giving due notice to it in that behalf.
The defendant contended inter alia that the said bales were not delivered to the railway administration for carriage, that the said bales were brought into the station yard by Chhotubhai Chaturbhai without the permission of the station-master, Kosamba, and that he was, therefore, not liable for damage caused to the bales by fire and denial his liability for the damages as claimed by the plaintiff or any part thereof.
The trial Judge held that the bales had been brought into the station yard by Chhotubhai Chaturbhai with the consent and authority of the station master at Kosamba, that they had been delivered by Chhotubhai Chaturbhai to the railway administration, that the defendant had failed and neglected to take proper care of the said bales as bailee under Section 72, Railways Act, and decreed the plaintiff's claim for Rs.. 17,920 on the basis of 80 per cent, loss having occurred in accordance with the contents of the panchnama dated 14th April 1945. The defendant appealed to the High Court.
1. Mr. Adarkar nest contended that even if these bales were stacked in this manner by Chhotubhai with the permission of the station master and at his instance, it did not amount to a 'delivery of goods for carriage' within the meaning of that expression as used in Section 72, Railways Act. It would only be if the goods were delivered to the administration to be carried by railway that the responsibility of the railway administration for loss, destruction or deterioration thereof would be that of a bailee under Sections 152 and 161, Contract Act, and having regard to that provision contained in Section 72, Railways Act, Mr. Adarkar contended that the goods were not delivered to the railway administration for carriage. Ho relied upon a decision of our appellate Court reported in Ramchandra Natha v. G. I. P. Rly. Co., 39 Bom. 485 in support of this contention of his.
In that case the plaintiffs had brought certain goods to the railway premises and handed a consignment note to the clerk of the railway company. No receipt was given as the goods were not weighed and loaded. In the meanwhile, a fire broke out on the premises and destroyed the goods. The plaintiffs sued the railway company for the loss of the goods, and the lower Court held that the company was not liable for the loss in absence of a railway receipt at provided for in Rule 2 framed under Section 47, Sub-section (1)(f), Railways Act. The plaintiffs applied under the extra-ordinary jurisdiction under Section 115, Civil P. C., and it was held by the High Court that the commencement of the liability of the company for goods delivered to be carried under Section 72 was in no way dependent upon the fact of a receipt having been granted, but must be determined on evidence quite independently of Rule 2 under Section 47 (1) (f), Railways Act. Rule 2 was also challenged by the plaintiffs and was held by the Court to be bad because it sought to define and by defining changed what would otherwise be the meaning of Section 72, Railways Act. In the course of the judgment Heaton J. remarked (p. 489) :
'A 'delivery to be carried by railway' (within the meaning of Section 72, Railways Act) means something more than a mere depositing of goods on the railway premises: it means some sort of acceptance by the railway, a taking as well as a giving. When that taking occurs is a matter which depends on the course of business and the facts of each particular case; but it certainly may be complete! before a railway receipt is granted.'
Shah J. also who was a member of the bench observed as under (p. 191) : .
'The delivery contemplated by Section 72 is an actual delivery and marks the beginning of the Company's responsibility. That delivery would no doubt involve not merely the bringing of the goods on the railway premises but acceptance thereof by the Company for the purpose o carrying the same by railway. Such acceptance may be expressed or implied in a variety of ways by the usual course of business, and may be quite independent of any receipt being granted by the Company. Of course, it will depend upon the circumstances of each case and the usual course of business of the railway administration as to whether the goods can be said to be delivered to be carried by railway under Section 72 of the Act.'
Mr. Adarkar laid great stress on these observations of Heaton and Shah JJ. and contended before us that what was done in the present case was that Chhotubhai merely brought the goods within the station yard and stacked the same on the down platform without anything more. If that was so, there would be considerable force in this contention of Mr. Adarkar. Mr. Adarkar, however, ignored the fact that according to the evidence of the station master himself no goods could be brought within the station yard without his consent. That was the normal course of affairs and it was sought to be established in the evidence of the station master that the goods in fact were brought by Chhotubhai without his permission and without his consent and authority. As we have observed before, this was a pure embellishment on the part of the station master. He had in fact given his permission to Chhotubhai to bring the goods within the station yard and Chhotubhai had brought the same within the station yard with the consent and authority of the station master. If the goods were thus brought within the station yard with the consent and authority of the station master, the bringing of the goods into the station yard and the stacking thereof on the down platform was not 'a mere bringing of the goods on the railway premises' or 'mere depositing of the goods on the railway premises' as contemplated in the above passages from the judgments of Heaton and Shah JJ. There was something more than that. There was the permission of the station master to bring the goods within the station yard and the goods were brought there with his consent and authority and stacked on the down platform at his instance. This circumstance makes all the difference in the present case. There was the acceptance of the goods by the station master who was the representative of the railway administration, and this taking in or acceptance of the goods was sufficient, in our opinion, to constitute the railway administration the bailee of these goods within the moaning of Section 72, Railways Act.
2. Mr. Adarkar then relied upon a decision of the Calcutta High Court reported in Jalim Singh v. Secretary of State, 31 cal, 951, where it was held that 'delivered' in Section 72, Railways Act refers merely to a physical event and is a word devoid of any legal significance. He particularly relied upon the observations at p. 959 where the contention of the company was dealt with by the learned Judge :
'I think it is not unreasonable that as long as the consignor's servant is seeing the goods through the process of booking, marking and weighing, the Railway Company should not be responsible ; but that the Company should become responsible, it the booking process is interrupted for any substantial time and the goods are left in their possession, as in such a case they practically must be.'
The ratio decidendi of this case was that the booking process should commence and until the booking process commenced, the goods would be in the possession of the consignor and would not be delivered to the railway administration for carriage. We have, therefore, got to see what is involved in the hooking process. The booking process consists of the bringing of the goods within the station yard, the weighment and marking thereof, the preparation of the consignment note and the handing over of the railway receipt by the railway administration to the consignor. All these would be the steps in the booking, process, but the booking process commences when the earliest act in this series is done by the consignor. In the case of the goods in question before us, the weighment had been done already by Chhotubhai in the ginning factory of Motiram Raghavji. and the necessary marking so far as the consignor himself was concerned was presumably done by him at that time. The permission of the station master was then sought to bring the goods within the station yard which having been given the goods were brought within the station yard by Chhotubhai. In our opinion the booking process thus commenced when the goods were brought within the station yard with the consent and authority of the station master and were stacked on the down platform by Chhotubhai at the instance of the station master. If the booking process was interrupted thereafter by reason of the non-availability of the wagons, it did not militate against the taking in or the acceptance of the goods by the station master and the goods could be said to have been delivered to the railway administration for carriage.
3. Mr. Adarkar next drew our attention to the decision of the Patna High Court reported in Hardayal Ram Dass v. B. and N. W. Rly. Co., 8 Pat. 808. The facts of that case were very peculiar. A certain number of bags of turmeric had boon left in a goods shed by the servant of the plaintiff in the absence of the railway servants and the bags were neither marked nor weighed but the consignment notes were handed over to the marker who was discharging the duties of the goods clerk. The matter came to the High Court in second appeal and the High Court had before it the finding recorded by the lower Court as a finding of fact that the more acceptance of the consignment notes was not equivalent to acceptance of the goods by the company and the goods had not been delivered to the railway company. This finding of fact could not be challenged in second appeal and it was on the basis of this finding of fact that the High Court came to the conclusion that the plaintiff was rightly non-suited. In the course of the judgment, however, Fazl Ali J., as he then was, referred to several authorities and deduced his conclusion from the same in the terms following (p. 816) :
'. . .the only general rule which may be deduced from these decisions is that, if there is something to show that the consignor has done all that is possible for him to put the goods in the possession of the Railway Company and that there is nothing left for him to do in that connection, and there is clear evidence, direct or circumstantial, that the Railway Company has accepted the custody of the goods, the liability of the Railway Company as a bailee will begin to operate.'
And the learned Judge then proceeded to quote the observations of Heaton J. in Ramchandra Natha. v. G. I. P. Rly. Co., 39 Bom. 485 which we have quoted above. Apart from the fact that these observations of the learned Judge were clearly obiter, we do not see any particular reason to quarrel with the same because in substance they were the same as the observations of Heaton J. in Ramchandra Natha v. G. I. P. Rly. Co., 39 Bom. 485. The consignor must have done all that was possible for him to do to put the goods in possession of the railway administration and there must be nothing left for him to do in that connection, i. e. in connection with the putting of the goods in the possession of the railway company. Having regard to the circumstances of the case before us at the time when these goods were brought into the station yard by Chhotubhai and stacked on the down platform at the instance of the station master, all that was possible for Chhotubhai to put the goods in the possession of the railway company was done by him. The goods had been weighed by him, and presumably marked by him, they were brought into the station yard and were stacked on the down platform for being loaded straight therefrom into the wagon when received at the Kosamba station. He also made the entry in the indent book for the supply of wagons by the railway administration and after that there was nothing more to be done by him until intimation was given to him that a wagon had actually been received at the Kosamba station. Even there the only thing which Ghbotubhai was expected to do was that he should go to the railway station and have the goods marked by the railway servants and obtain the railway receipt in connection with the goods from them. These acts were however to be done by him after the intimation of the arrival of the wagon was received by him. Until then nothing further was to be done by him and he had done all that was possible for him under the circumstances then obtaining to put the goods in the possession of the railway company. So far as the railway administration itself was concerned, there was clear evidence on the record that it had accepted the custody of the goods, the same having been brought in with the consent and authority of the station master and having been stacked on the down platform at his instance. All the conditions, therefore, were satisfied and the goods were in fact delivered to the railway administration for carriage within the moaning of Section 72, Railways Act, and the liability of the railway company as bailee of the goods came into existence.
4. These were the cases relied upon by Mr. Adarkar in support of his contention. Unfortunately, however, for the defendant, they do not help him. Curiously enough in this decision reported in Hardayal Ram Dass v. B. & N. -W. Rly. Co., 8 Pat. 808 we find at p. 815 mention of the case of Munna Lal v. E. I. Rly. Co., A. I. R. 1923 ALL. 71. The reference in Hardayal Ram Dass v. B. & N.-W. Rly. Co., 8 pat. 808 is given as (1924) 82 I. C. 772. But this case has been referred to in a later decision of the Allahabad High Court reported in Secretary of State v. Sheobhag-wan Chiranjilal, 58 ALL. 576 and the reference there is to Munna Lal v. E. I. Rly. Co., A. I. R. 1923 ALL. 71. The decision in this case as summarised at p. 813 in Hardayal Ram Dass v. B. & N. W. Rly. Co., is as follows :
'The foots which were found to have been proved were that certain goods had been delivered to the Station Master to be booked, but he being unable to book, on account of a stoppage of booking, kept the goods on the railway premises without definitely directing the plaintiff to remove the goods or telling him in unmistakable terms that the goods were being kept at his own risk, though at the same time not definitely accenting the goods at the railway risk. In these circumstances it was held that the conduct of the Station Master in retaining the gooda in the railway shed Afforded satisfactory evidence that he had accepted the bailment of the goods on behalf of the Railway Company.'
This case is very near to the one which we have before us. The booking of the goods had been stopped and the goods were retained by the station master on the railway premises without definitely directing the plaintiff to remove the goods or telling him that the goods were being kept at his own risk. Even in these circumstances the conduct of the station master was held by the Court to afford satisfactory evidence that the goods had been accepted on behalf of the railway administration. It is in evidence in the case lie-fore us that there was a difficulty about obtaining wagons. The goods had, however, been brought within the station yard with the consent and authority of the station master. The station master did not tell Chhotubhai to remove the goods nor did he tell him in any unmistakable terms that the goods were being kept on the down platform at his own risk. The conduct of the station master, therefore, afforded satisfactory evidence that these goods had been accepted by him from Chhotubhai and there was 'delivery of the goods to the railway administration for carriage' within the meaning of the expression as used in Section 72, Railways Act. This decision in Munna Lal v. E. I. Rly Co., was referred to by the Allahabad High Court in Secretary of State v. Sheobhagwan Chiranjilal.
The facts of that case were that a consignment of bales of hemp was taken to a railway station and tendered for despatch to another station. It appeared that no wagon was immediately available for the purpose; so the consignment was, with the consent and permission of an authorised servant of the railway, deposited in the railway goods shed and allowed to remain there pending the arrival of a suitable wagon. No forwarding note was tendered by the consignor, and no receipt was granted to him by the railway. The nest day a part of the consignment which was lying in the goods shed was destroyed by fire caused by sparks from an engine alighting on the hemp. It was held that in the circumstances, the goods had been delivered to the railway within the meaning of Section 149, Coutraot Act, and the railway had become a bailee in respect thereof although neither a receipt had been given nor a forwarding note tendered. It is not often that one comesacross an authority almost on all fours with the case which one has to deal with. It is, how. ever, very significant to observe that the facts of the case in Secretary of State v. Sheobhagwan Chiranjilal, were almost on all fours with the facts of the case before us.
The consignment of these 84 bales was taken to the Kosamba railway station and tendered for despatch to another station. No wagon was immediately available to the station master at Kosamba for the purpose and, therefore, the consignment was, with the consent and permission of the station master at Kosamba, who was an authorised servant of the railway administration, deposited in the station premises and stacked on the down platform and allowed to be left there pending the arrival of a suitable wagon. No for. warding note was tendered by Chhottubhai and no receipt was granted to him by the railway administration, and within three days of the delivery of the goods in the station yard, if not the next day as in the Allahabad case, the consignment which was lying in the goods shed was destroyed by fire by a spark from an engine. Having regard to all these circumstances, we are also of the opinion, as the learned Judges of the Allahabad High Court were, that the goods had been delivered to the railway administration for carriage within the meaning of Section 149, Contract Act, and the railway administration had become the bailee in respect thereof. This decision of the Allahabad High Court, therefore, considerably helps the contention of the plaintiff that the railway administration became the bailee of these 84 bales which were brought within the station yard by Chhotubhai with the consent and authority of the station master and were stacked on the down platform at his instance.
5. What is 'taking in' or 'acceptance of the goods' by the railway administration depends really on the facts and circumstances of each particular case, and no rigid and fast rule can be laid down in that behalf. Our attention was drawn by Mr. Adarkar to the notice which was put up by the station master at Kosamba, Exh. 94, in the terms following :
'All the merchants are hereby informed that no goods should be stacked in Railway Premises unless personally ordered by the Station Master. Failing this if any goods found stacked in railway premises without the knowledge of the station staff or station master they will be solely held responsible for any damage or loss occurring to these goods not only that but any other goods that are liable to be involved by such unauthorised stacking in railway premises.'
This notice is very suggestive. It assumes the responsibility of the railway administration where the goods are stacked on the railway premises under the personal orders of the station master, though it negatives that responsibility if the goods are found stacked in the railway premises without the knowledge of the station staff or the station master. If, as the case here was, the station master, Kosamba, gave Chhotubhai permission to bring these goods into the station yard and Chbotubhai brought the goods in the station yard with the consent and authority of the station master and stacked them on the down platform, at his instance, the very terms of this notice would support the plaintiff in its contention that the railway administration undertook the responsibility in connection with those goods as bailee under Section 72, Railways Act. Having regard to the observations made above, we have come to the conclusion that the learned Judge below was right in the decision which he reached, viz. that the said bales were delivered to the railway for carriage.
[The rest of the judgment is not material to the report ]
6. On the question of law, I have little to add. The question turns upon the meaning of the words 'goods delivered to be carried by railway' as used in Section 72, Railways Act. The words 'delivered to be carried' may be read literally, and if they are given their natural meaning, it seems to me that in this case the permission of the station master being proved, the goods were delivered to the railway authorities within the meaning of the section. As to what constitutes 'delivery' must depend on the facts of each case. It was pointed out by Heaton J. in Ramchandra Natha v. G. I. P. Rly. Co., 39 Bom. 485, that there must be something more than a mere depositing of goods on the railway premises and that there must be some sort of acceptance on the part of the railway for a taking as well as a giving. In the nature of things, when the goods are delivered to be carried, some interval of time must elapse between the receipt of the goods and their departure. Sometimes the period may bo considerable. It seems to me that in such cases when once the goods are given into the possession of the railway authorities, the delivery must be taken to be complete as the period of the transit may be preceded by the custody of the goods with the authorities. In this particular case, on the evidence, it is clear that the goods were brought on the down platform of the station with the permission of the station master, a consignment note was made, and an entry in the indent book was also made, wagons were sanctioned but the wagons were not immediately available. It seems to me, therefore, that on these facts, it is clear that the goods were 'delivered to be carried' within the meaning of Section 72, Railways Act. The view which I take seems to be in accord with the decision of this Court, in Narsinggirji Mafg. Co. v. G. I. P. Rly.,21 Bom. L. R. 406. In that case the goods were brought to the Sholapur railway station. The goods were taken into the goods yard, they were weighed and given marked numbers, and there was also a consignment note. It was argued that there was no delivery. But the Court rejected the argument. The only difference between the present case and the case just cited is that in that case the goods were weighed. In this particular case the evidence is that the goods had been already weighed in the premises of the ginning factory of Motiram Raghavji. It is possible that the station master was told that the goods had been weighed, and that fact may have been accepted by the station master.
Mr. Adarkar contended that unless there is something more than a mere possession of the goods by the railway authorities, the delivery can, not be said to be complete, but I am unable to accept this argument. As I said, it is possible to-read the words 'goods delivered to be carried' according to their natural meaning. If the natural meaning is given to these words, Mr. Adarkar has clearly no case. On the other hand, if something more must happen before the delivery can be legally constituted, then in that event, the evidence is clear in this case, I think, which goes to show that the goods were taken charge of by the railway authorities, that the consignment note was made, that an indent entry was made, that the wagons were sanctioned, but that the goods could not be despatched for want of wagons. It seems to me, therefore, that there was in this case a 'delivery' within the meaning of Section 72, Railways Act.
7. I agree, therefore, with the order proposed by my learned brother.
8. Order accordingly.