1. This is a second appeal. Both the subordinate Courts have held that the defendant Railway Company unlawfully converted the goods of the plaintiff, which were in its custody. A consignment of salt was despatched from Kharaghoda (Bombay Presidency) to Deoria in the Gorakhpur district. Out of seven wagon loads, four got damaged through wet, when the salt was received at Deoria. The finding is in the appellant's favour that the Company was not responsible for the damage. The plaintiff refused to take delivery and the salt was sold at auction by the Company in October 1921. The salt was booked in June so the Company kept custody of it for less than six months.
2. According to the lower appellate Court the Company acted unlawfully in selling the salt without giving to the plaintiff 15 days' clear notice as required by Section 55 of the Railways Act. In this Court the counsel for the appellant was prepared to satisfy us that proper notice was given. We did not accept this additional evidence because the appeal must fail on another ground. Section 55 does not apply because the Railway Company never presented a proper bill to the plaintiff. It did not come to any determination as to what should be charged for wharfage. At one time, it was willing to give up that charge; at another time it was desirous of coming to terms over damages. When the Company's demand was not a fixed sum, it cannot have a lien over goods under Section 55 and cannot sell to produce a sum equal to the demand. Moreover, the entire consignment cannot be sold under the provisions of that section, but only so much as would satisfy the demand.
3. Failing protection of Section 55, the Company ought to have kept custody of the goods for six months under Rule 12 of the rules framed under Section 47(f) of the Act. This was not done and the sale in contravention of that rule amounted to illegal conversion. It was argued on behalf of the appellant that the plaintiff had not set up a case of unlawful conversion. This is inaccurate. In para. 6 of the plaint the complaint is made that the goods were sold at auction contrary to law. It is true that the trial Court did not frame a specific issue on the subject but the omission has not prejudiced the appellant. It was not denied that the goods were sold within six months of arrival and even of booking.
4. The amount of damages has been rightly assessed and we would not interfere with a matter which under the circumstances of the present case does not arise in second appeal. It was argued half heartedly that salt was a perishable article and so the Company was authorized to sell it at once. In fact, the Company did not sell it at once but about three months after the arrival of the consignment. It is clear that the Company had no intention of treating salt as a perishable article.
5. We dismiss the appeal with costs, which shall be on the higher scale here.