Chandrasekhara Sastry, J.
1. The petitioners are the Union of India represented by the General Manager, Nortben Railway and represented by the General Manager, Southern Railway. The plaintiff-respondent is a firm of merchants and commission agents. The plaintiff filed the suit against the defendants for the recovery of Rs. 677-22 being the price of 19 bags of gram dall and freight. The plaintiff stated that 201 bags of gram dall were booked at Mansa, Punjab, to Eluru on the southern railway at the risk of the railway under invoice No. 5 on 30-9-1956. The goods reached Eluru on 22-10-1956. When the plaintiffs wanted to take delivery on 23-10-1956, it was found that 19 bags were badly damaged, and became unfit for human consumption. The plaintiff took delivery of the remaining-182 bags on that day and asked for open delivery of 19 bags which were damaged. As the Claims Inspector was not available, intimation was sent to him by the railway to go to Eluru to give open delivery and meanwhile these 19 bags were kept in the custody of the railway. On 26-10-1956 before open delivery could be given to the plaintiff, the 19 baes were destroyed by fire. It is atlrefd that the destruction bv fire was due to the negligence of the railway administration. Theplaintiff's claim having been denied, the suit was filed.
The defence was that the fire was accidental and it was beyond the control of the railway administration to save the goods from being destroyed in spite of all necessary care and caution being taken, and therefore the defendants are not Liable. The defendants also are not liable for the goods being damaged as there was no delay caused in delivery. It was argued in the lower Court on behalf of the defendants that the plaintiff should have taken delivery of these 19 bags also on 23-10-,1956 though they are damaged instead of asking for open delivery and that the railway was not bound to give open delivery. Therefore, if the goods were subsequently burnt, though while in the custody of the railway, the defendants are not liable for the reasons that it was due to the default of the plaintiff in taking delivery that the damageoccurred.
The lower Court held that it was the duty otthe defendants delivering goods to make arrangements for the open delivery immediately, as admittedly, the 19 bags are found damaged giving bad smell and worms were coming out, which fact shows that the wagon was not water-tight. Since the defendants could not give open delivery as the Claims Inspector was not available, the plaintiff could not take delivery. Therefore, the lower Court held that the defendants are liable anddecreed the suit. Hence this petition.
It is argued by the learned Counsel for thepetitioners that the railway was not bound to give open delivery, though admittedly the goods are damaged. The plaintiff was bound to take delivery in the condition in which the goods were and only sue for damages afterwards if the damage was due to the negligence of the railway. But the iplaintiff cannot leave the goods with the railway and then claim damages, if subsequently the goods were lost or destroyed by fire.
In support of this, reliance is placed on Clause (2)of Rule 31 of the General Rules for Acceptance,Carriage and Delivery of Goods which is as follows:
'That in respect of goods not removed fromrailway premises at station of destination within a reasonable time, the railway is not liable in any respect for any loss, destruction, deterioration of or damage to such goods, arising from whatever cause notwithstanding that the railway may have ware-house or otherwise kept the goods and notwithstanding that the railway shall be entitled to be paid the authorised charges for goods so ieft on their premises. Normally, the free time allowed for demurrage and wharfage on vailway should be considered as reasonable time for this purpose.'
Under this rule, a consignee is bound to takedelivery within the lime indicated therein by this rule under normal circumstances, i.e., within reasonable time. The reasonable time may vary in indivitual and special cases. Normally, as per the rule, the reasonable time within which delivery should be taken would be the free time allowed for demurrage and wharfage on railways.
I am referred to the decision of Munikannaiah, J. in Union of India v. Radhikaran Satyanarayana, : AIR1959AP17 . In that case, a consignment of 225 bags of peas were despatched from Arrah to Kakinada pott. The goods arrived at Kakinada Port on 27-9-1953. but the plaintiff took delivery only on 2-11-1953 by which time, 30 bags of peas were damaged andbecame unfit for human consumption. Damageswere claimed by the consignee with respect to these 30 bags which were damaged. The learned Judge, after referring to Sections 47, 72 and 74A of the Indian Railways Act and Rule 31 of the General Rules, held that the plaintiff was bound to take delivery of the consigned goods within a reasonable time after the arrival at the destination. It was pointed out that by sub-rule (2) of Rule 31 of the General Rules, the railway administration seeks to limit ils responsibility as warehousemen to the period from the time of booking of the goods to the free time allowed for demurrage and wharfage to Ihe consignee before delivery of the goods lo him. The learned Judge expressed his view that what is sought to be achieved by framing this Rule is that though demurrage and wharfage is chargeable after the time within which the consignee is to take delivery of the goods, no responsibility thereafter exists for the Railway Administration to warehouse and retain the goods at the destination on behalf of the consignee or the owner. As in that case the plaintiff defaulted in taking delivery from 27-9-1953 to 2-11-1953 and as the plaintiff failed to prove that the goods were damaged not during that period but earlier during the transit, it was held that the plaintiff was not entitled to any relief.
2. Next, reliance is placed upon the decision of Sinha, J. in Firm Badridas, Purulia v. Governor General for India In Council, AIR 1947 Pat 118, where it is held that a consignee of goods is not entitled as of right to claim an open delivery. The learned Judge referred to an earlier decision in Sri Gangaji Cotton Mills Co., Ltd. v. East Indian Rly. Co., II,R 44 All 763: (AIR 1922 All 514), and observed that when a consignee insists on open delivery, he would be insisting upon something to which he is not, in law, entitled.
3. Next I am referred to the decision in Governor General In Council v. Firm Badri Das Gauri Dutt, : AIR1951All702 where it is held by Agar-wala, J. that the railway administration is not bound in law to give open delivery on the demand of a consignee, and that hence any delay in effecting open delivery in pursuance of Ihe wishes of the consignee cannot make the railwav administration loable for any loss on account of fall in the market price of the goods. This decision docs not really touch the question lhat arises in the present case, but is relied upon by the learned counsel only in support of his contention that the railway is not bound in law to give open delivery.
Next I am referred to the decision in Dominion of India v. Netai Chandra, : AIR1952Cal726 . In that case the plaintiff asked delivery of a consignment of soft coke after re-weighment because he suspected shortage and the railway agreed to do so provided the plaintiff was prepared to pay (he costs of such reweighment. But the plaintiff was not, however, prepared to pay such costs and claimed reweighment free of charge and the railway company refused to give delivery of the goods afler reweighment free of cost as claimed by the plaintiff. On that, tile plaintiff filed the suit to recover the price of the goods consigned. On those facts, in that context, it was held that the railway company is under no obligation to rcweigh the goods before delivery, where the identity of the goods is not in question, and, that, if the consignee refuses to accept delivery on that ground, he does so at his own risk, and is not entitled to claim damages for non-delivery. This decision has really no bearing on the present question.
4. I am also referred to the decision of Gopal Rao Ekbote, J. in C. R. P. No. 555 of 1959 (AP)-In that case, as the railway receipt was not accepted by the consignee at the delivery station, the goods were sent to the Lost Property Office and were there lost. The learned Judge found that the plaintiff did not take delivery of the goods for 31/2 months and had in fact defaulted in taking delivery of the goods within a reasonable time due to no fault of the railway and was therefore not entitled to any damages from the railway.
5. The learned Counsel for the petitioner relied also upon the decision of Seshachalapathi,' J. in Second Appeal No. 924 of 1955 (AP). In that case, the plaintiff was a consignee of 325 bags of slag dust. The destination was Vijayawada and the freight charges which were originally 'fixed at Rs. 464-5-0 were to be paid at Vijayawada, the destination. There, the Chief Goods Clerk found that the consignee has to pay a further sum of Rs. 493/- by way of under-charges and refused to deliver the goods unless the original charge of Rs. 464-5-0 and the additional charge of Rs. 493/-were paid. But the consignee refused to pay and eventually filed a suit for the recovery of the value of the goods and the possible profits. That suit was dismissed by the trial Court and on approval by the District Judge.
In the Second Appeal, the learned Judge pointed out that the railway company has stated clearly in the written statement that the goods have not, been soid and that they are intact and it was ever willing to give delivery of the goods. Therefore it was held that the normal course for the plaintiff should have been to pay the charges demanded, take delivery of the goods and then sue the railway compuny, if he was so advised, for the refund of the illegal collection. It was pointed out by the learned Judge thai the plaintiff had not even paid the admitted freight amount of Rs. 464-5-0. It was under those circumstances that the learned Judge held that the railway company cannot be made liable for unlawful or illegal detention of the goods belonging to the plaintiff. It does not appear from the judgment in that cafe that the additional demand of Rs. 493/- made by the railway was lawful or not. But the learned Judge seems to be of the view that, even if il was an illegal demand and the railway company refused to deliver the goods unless that demand was complied with, the plaintiff should have made the payment and taken delivery and then sued for refund of the amount illegally collected. That question does not really arise in the present case. But in my view, if the railway administration refuses to give delivery unless an amount which was not lawfully and legally due to it is paid, it may amount to an illegal or unlawful detention of the goods and the railway administration may become liable for unlawful or illegal detention of the plaintiff's goods. It could retain the goods only till anything that is lawfully due and payable is paid. Any how, it is not necessary to pursue this question further because it does not arise in this case.
6. On behalf of the respondent. Mr. Ramanuj-achari drew my attention to paras 161-1 and 161-11of the Rules relating to reporting of damagesdeficiencies or loss of goods, printed at pages 1274and 1275 of Sanjceva Row's Indian Railway ActVolume II, III Edition. Rule 161-11 provides:
'(I) When goods' or parcels are received in a damaged or pilfered condition, the Station Master or Goods clerk will communicate with the Claims inspector of the Section to come and give deliveryof the consignment and will meanwhile have ready for the Inspector, the original beejuck with a true copy of its translation in English, both bearing the full signature of the consignee and the translation, and attestation (witnessed by the Station Master) that it is a correct copy of the Original beejuck of the sender.'
Clause (2) of this Rule provides:
'Before an examination of contents is made, the Inspector will carefully reweigh the damaged or defective bags or packages, noting their weigh as also the weight of sound packages. The outward condition of the bags or packages will also be scrutinized and noted.'
Other detailed instructions are given as to that all the Claims Inspector had to do. But what is significant and important to note is, under the first clause, the Station Master or the Goods Clerk should communicate with the Claims Inspector of the section 'to come and give delivery'. in view of this, I am unable to accept the argument of the learned counsel for the petitioner that the railway is not bound to give open delivery in a case where goods are found to be damaged and in a case where there is no dispute that the goods are damaged. This Rule 161-11 also provides for cases in which open delivery is not justified and consignee declines to effect removal. Clause (5) of Rule 161-11 provides that such cases in which open delivery is not justified and the consignees decline to effect removal, should be specially reported to the Chief Commercial Manager, Calcutta, for orders. This Rule (161-11) proceeds on the basis that when goods appear to be damaged and the consignee asks for open delivery, the Claims Inspector has to come and give open delivery after following the instrucltions given in the Rule. Therefore, 1 am unable to accept the argument of the learned counsel for the petitioner that the railway is not bound to give open delivery when the goods are found damaged, and that the consignee is bound to take delivery and, if the goods are damaged, may then sue the railway for damages if so advised.
I am referred to Rule 47 of the General Rules by the learned counsel for the petitioner which is 3s follows:
'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 docs 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.'
It is contended that the consignee is bound to take delivery of the entire consignment even though part of it is found damaged. But a close scrutiny of this Rule makes it clear that the consignee is not bound to take delivery of that part of the goods which are found damaged. What this Rule says is that thy consignee must lake such of the goods forming part of the consignment whenever they are available for delivery notwithstanding that the remaining goods are short or damaged or have . rot arrived at their destination or arc otherwise not available for delivery. It further provides that if the consignee docs rot take delivery of such goods is are available for delivery, i.e.. which are not damaged and which can immediately be delivered without further enquiry, those goods will be subject to wharfage charges if not removed within thetime allowed. This Rule far from supporting the contention of the learned counsel for the petitioner really supports the contention of the respondent's learned, counsel that in a case like this the plaintiff is entitled to ask for open delivery and is not bound to take delivery of the goods unless open delivery is given.
7. Coming to the facts of the present case, it is admitted that 19 bags of dall out of the consignment are found damaged emitting bad smell and worms coming out of the bags. On 23-10-1953, the plaintiff asked for open delivery. It is clear from Exhibit B.3 the delivery book of Eluru station that the railway authority noted therein that 19 bags arc found damaged and that therefore open delivery is to be given. It is also clear from the evidence in this case referred to by the lower Court that a message was also sent asking the Claims Inspector to come and give open delivery. Therefore, in my view, the plaintiff was entitled to demand open delivery. But the railway could not give open delivery because the Claims Inspector was not available, and the open delivery could not be given till he arrived at Eluru. Before the Claims Inspector came, the goods were destroyed by fire, while in the custody of the railway administration The railway is, in my opinion, liable for the suit claim.
8. Even assuming for the sake of argument that the railway administration is not bound in law to give open delivery, it is clear from the facts of this case that the railway agreed to give open delivery and retained the goods in its custody. They sent a message to the Claims Inspector to come and give open delivery. That means, it agreed to keep the goods in its cusfody till it gives open delivery, whether or not, in law, it was bound to give open delivery. While so, the goods were destroyed by fire. Jt was the duly of the railway to taka every reasonable care to prevent such an accident while the goods are in its custody. The railway when it agreed to give open delivery continued to be a bailee and is bound to take all reasonable care with regard to the goods. For this reason also, I hold that the railway is liable and the decree passed against it by the Court below is correct.
9. The Civil Revision Petition fails and is dismissed with costs.