1. This is a civil revision by defendant 2, the Secretary of State for India in Council through the agent of the G.I.P. Railway, against a Small Cause Court decree for Rs. 191-8-0 damages in favour of the plaintiff for mis-delivery of certain steel sleepers. The facts are that on 19th July 1932 four narrow guage wagons were consigned by one consignor to the same consignee, the consignee being Fahimuddin, in Belaganj. The wagons were consigned from a narrow guage station called Ulindakonda on the Nizam's Guaranteed State Railway and the consignment was to Belaganj, a broad guage station on the G.I.P. Railway at Agra. Prom the narrow guage to the broad guage it was necessary that there should be transhipment at Secunderabad, and the four narrow guage wagons were put into two broad guage wagons. These two broad guage wagons arrived at Agra on the same date and a notice was issued to the consignee to take delivery. In accordance with that notice the consignee endorsed1 the four railway receipts with his name. He did not sign a transfer of the right to-receive the goods to any one else, such as-is mentioned in the Explanation to Section 137, T.P. Act, but it is claimed that by a. private arrangement he had transferred two of the wagons to the present plaintiff and two of the wagons to one Nemi Chand. The delivery of one wagon, E.I.R. wagon No. 28015, was taken by a delivery agent. Ram Chand on behalf of Nemi Chand. Now in this wagon there was rather more than the two narrow guage wagon consignments of 327 maunds of sleeper each. It is to be noted that the weight only of the sleepers appears on the railway receipts and not the number of steel sleepers. After this delivery the same transport agent Ram Chand on 25th October 1932 took delivery of the other wagon, G.I.P. wagon No. 9822. This contained slightly less than two narrow guage wagon loads of the sleepers. This delivery was taken by Ram Chand who made over these goods to the plaintiff. As the plaintiff received some 2 tons and 12 cwt. of steel sleepers less than two narrow guage wagon loads of 327 maunds each, the plaintiff has brought this suit for the difference. The case has been argued before us on various grounds. One of those grounds was limitation. It was admitted by learned Counsel on each side that the correct article of the Limitation Act to apply is Article 31 which is for suits against a carrier for compensation for non-delivery or delay in delivering goods and the period is one year from the time when the goods had to be delivered. Judging by this criterion however as the goods were actually delivered to the agent of the plaintiff on 25th October 1932 and the suit was brought within one year, on-24th October 1933, the suit is within time. We consider that it is correct to apply this Article and not Article 48 which allows a period of three years for specific moveable properties lost etc.
2. The next question which arises is in regard to notice. No notice was given in this case and the learned Government Advocate contended that notice was required. Under Section 77, Railways Act, 9 of 1890, notice is required in the case of a claim for compensation for loss, destruction or deterioration of goods. The present claim however is one for non-delivery or misdelivery and is not one for loss, and we are satisfied that no notice was necessary in the present case, although the rulings are somewhat conflicting on the point. The remaining question which is argued is whether on the facts found by the lower Court the lower Court was correct in granting a decree for damages to the plaintiff for non-delivery or misdelivery. Now the consignments were all made to the same consignee Fahimuddin and Fahimuddin signed the four railway receipts with his name. This signature indicates that he was the person to whom delivery was to be made. There was nothing whatever to indicate to the rail-way company that Fahimuddin had transferred his rights in two of the original wagon loads to one person and in two of the original wagon loads to another person. There is no finding that this matter was at all brought to the notice of the railway company and we cannot consider that the railway company was in any way negligent in handing over the whole of the two broad guage wagons on these four receipts bearing the endorsement of the name of the consignee Fahimuddin. We think that the lower Court was wrong in considering that it was necessary that the railway company should go into the question of whether any transfers had or had not been made. There was nothing to indicate this point and there was no negligence shown. For these reasons we allow this revision and we set aside the decree of the lower Court and we dismiss the suit of the plaintiff with costs in both Courts.