1. This is an application to revise a judgment of the Court of Small Causes at Cawnpore.
2. The respondent consigned goods in nine bags to Salamatpur from a railway station at Cawnpore. When the goods arrived at Salamatpur, it was found that two of the packages sent were not the same as had been consigned at Cawnpore. The person who wanted to take delivery on behalf of the consignees proposed that seven of the bags should be handed over to him and the two remaining bags which did not belong to the consignment, should be left there. The station master did not agree to this arrangement. Later on, higher railway officials wrote agreeing to this arrangement. Even then the station master at Salamatpur would not agree that the seven bags admitted to be a part of the consignment should be removed. Thereafter, there was some correspondence and the suit was brought. Several defences were taken, including a plea of limitation, and they have all been decided against the defendants; hence this petition in revision.
3. Three points Were urged, and I will consider them.
4. The question of limitation arises in this way. The goods were booked on the 21st of November 1922. On the 5th of December 1922 the consignees went to the railway station and wanted to take away seven of the packages, but the stationmaster refused. On the 3rd of December 1923 the suit was brought. Thus the suit was within one year of the failure of the Railway Company to deliver goods (vide Article 31 of the Limitation Act). It is said that as regards two of the packages Article 30 would apply. Even if Article 30 applied, there is nothing to show that the two packages which were missing on the 5th of December 1922 had really been lost earlier than that date. The matter was within the peculiar knowledge of the defendants and it was for the defendants to have proved when the actual loss took place. The point of limitation, therefore, fails.
5. The second question is whether the defendants were justified in selling the goods and offering the sale price to the plaintiff's after deducting the costs due to them. As already stated above, the plaintiffs or their men made two attempts to obtain delivery of their goods. On the second occasion they went to the spot at the request of the Railway Company themselves. It is true that on the third and fourth occasions, viz., on the 10th of April 1923 and the 20th of April 1923, the Railway Company again asked the plaintiffs to take delivery of the seven, packages. The question is whether the plaintiffs could very well say that they were not going to hear the Railway Company after two attempts of obtaining delivery had failed. No hard and fast rule can be laid down for all cases. But in this case it appears to me that the plaintiffs could very well say that they made two honest attempts to obtain delivery of goods, and if the Railway Company retained the goods at the time they did so at their own risk. I agree with the Court below that the plaintiffs are entitled to recover the market value of the goods consigned and are not bound to accept such price as was fetched by the sale held at the instance of the railway administration. I may mention here that I read Section 55 of the Railway Act. It applies to ordinary cases. It does not apply where the plaintiffs, at the request of the Railway Company themselves, wanted to remove the goods, but were not allowed to do so.
6. The last point urged is that the plaintiffs have no right to sue. This point was taken by way of an amendment of the written statement. The argument is based, in this Court, on the rule of law that a railway receipt is a mercantile document of title and it passes title in the goods to which it relates, on an endorsement. This does not appear to have been exactly the point raised in the Court below. Indeed, the judgment of the Court below does not bear any indication of any such argument having been brought forward before it. The fourth ground of appeal, which alone relates to the right to maintain the suit, does not cover the point. The question involves questions of fact and I decline to entertain it without proper findings.
7. The lower Court found that the plaintiffs consigned not only their own goods, but some goods which their customer purchased for himself and had asked them to consign with the plaintiffs own goods. An argument was based on this fact, viz., the plaintiffs were not the owners of the entire goods and that, therefore, they could not maintain the suit. To this argument the clear answer was that as between the Railway Company, on the one hand, and the plaintiffs, the consignors, on the other, the Railway Company could not dispute the title of the consignors to the goods.
8. The petition in revision in revision fails, and it is hereby dismissed with costs.