G.K. Misra, J.
1. Defendants are the petitioners. The plaintiff brought a suit for recovery of Rs. 453-80 np. as 15 baskets of cabbages despatched from Mettupelaiyam to Cuttack were not delivered to the plaintiff. The consignment was despatched on 19-10-58 on payment of higher charges for quick delivery. They were due to arrive at Cuttack within 3 or 4 days. This consignment was sold on 26-10-58 at Vizianagram Railway Station by auction sale for Rs. 27/-. The plaintiff claims damages on the ground that the defendants ought to have got his instruction as to disposal, prior to the sale.
2. The defence contention is that the train service was suspended from 20-10-58 till 30-10-58 as the railway lines were submerged under flood. The consignment had to be sold along with other perishable articles in a lot under emergency. The articles being perishable in nature the defendants disposed of those articles and no intimation to the plaintiff was necessary in law before disposal.
3. The learned S. C. C. Judge found that the railway lines had been submerged under water due to flood and the train service was held up from 20-10-58 till 30-10-58 and that the consignment in question was unloaded at Vizianagram on 25-10-58 and sold on 26-10-58 for Rs. 27/-. He further held that there can be no room for doubt that on account of natural events over which the defendants had no control there was stoppage of train services rendering it impossible for the consignment in question to be delivered to the consignee in due time. He however came to the conclusion that the defendants were unable to prove that it was commercially impossible for them to communicate either with the consignor or the consignee, and as such the Railway authorities at Vizianagram were not justified in selling the consignment. The suit was accordingly decreed on 8-2-61. Against this order of the learned S. C. C. Judge this revision has been filed.
4. The particular section of the Indian Railways Act deals with the question in issue. The legal position is however clear that the Railways are agents to carry and not to sell. The law relating to perishable goods in such contingencies has been succinctly summarised in Sanjiwa Row's Indian Railways Act as follows :
'Where perishable goods are sent by Railway, the railway company are agents to carry, not to sell. To give them the right to sell, circumstances must exist, which put them in the position of agents of necessity for the owner to take that action which is necessary in the interests of the owner. These conditions do not arise if the carrier can communicate with the owner, and get his instructions. If the Railway Company can ask the owner what is to be done in the circumstances with any reasonable chance of getting an answer, they have no right to sell. They must give the owner the opportunity of deciding how he will deal with the goods. Therefore to justify a sale by a railway company they must first show that it was commercially impossible to communicate with the owner and receive instructions from him. If they show that, they must then show that a sale was in the circumstances the only reasonable business course to be taken'.
This summary is based on two leading decisions reported in Sims and Co. v. Midland Rly. Co., 1913 (1) K. 8. 103 and Springer v. Great Western Rly. Co., 1S21 (1) K. B. 257. The latter decision approves the dictum In the former. The emphasis is on the fact that a real necessity must exist for sale and it must be practically impossible to get the owner's instruction in time as to what shall be done. The object of the communication is to enable the cosingnee to give the carrier instructions as to whether the latter shall sell if he considers necessary. Mr. Pal cites Harkishen Singh v. National Bank of India Ltd. Amristsar AIR 1940 Lah 412 and Wazir Mohammad v. Bengal Nagpur Rly. Co., Ltd., AIR 1932 Cal 492 in support of the contention that no notice is necessary. AIR 1940 Lah 412 is clearly distinguishable on facts and has no application to cases of this nature. That was a case directly between the principal and the agent, and the principle with regard to agents of necessity was not considered in that decision. AIR 1932 Cal 492 does not also support the contention of Mr. Pal. It lays down that after the breach occurs in the railway line, despatching stations should be duly informed not to despatch consignment on the line where breach occurs. If there is dereliction of duty on the part of the railways not to to intimate, then the railways would be liable to pay damages. But in cases where consignments had already been despatched without knowledge of the breach, notice of the fact of sale must be given. In the particular case, however, their Lordships observed that it was not clear that failure to give intimation as regards the first two consignments had caused any loss to the plaintiffs. On that ground no damages were decreed in respect of the first two consignments. Their Lordships clearly laid down that notice to the consignee is essential before selling the consignments. This decision is in the line of the English decision cited above.
5. On the aforesaid principle and on the finding that the defendants were unable to prove that it was commercially impossible for them to communicate with the consignee or consignor, the plaintiff's case is bound to succeed.
6. In the result, the Civil Revision has no merit and it is accordingly dismissed with costs. Hearing fee of Rs. 50/-.