A. Misra, J.
1. Plaintiff is the appellant. Defendant No. 1 is the Union of India representing four different Railways, the South Eastern Railway, the Eastern Railway, the Northern Railway and the North Eastern Railway who have been described as defendant Nos. 1/a. to 1/d. Defendant No. 2 is the proprietor of the Tara Oil and Ginning Mills of Hapur in U. P.
2. The facts on which the plaintiff has founded his claim, in brief, are as follows:
A tank load of mustard oil containing 528 maunds was consigned by defendant No. 2 at Hapur junction in Northern Railway on 19-9-1960 under R/R No. 217968 invoice No. 15 for delivery to self at the destination Cuttack on the South Eastern Railway. The railway receipt along with the bill amounting to Rs. 39,323.32 was sent through the Punjab National Bank, Hapur to the plaintiff to enable him to take delivery of the consignment. When the consignment reached Cuttack on 22-10-1960, the tank was found to be leaking. The plaintiff took delivery of the goods on protest after dip measurement. On actual weighing, the contents were found to be 424 maunds. 37 seers and 8 chhataks of oil. Thus, there was a short delivery of more than 103 maunds of oil the value of which is assessed at Rs. 8,694.22. Alleging that this loss occurred due to the gross negligence and misconduct of the Railway Administrations and their servants, plaintiff filed the suit to recover the value of the shortage together with interest after issuing notices under Section 77 of the Indian Railways Act and Section 80, Civil Procedure Code.
3. As per the terms of the award dated 18-1-1961, defendant No. 2, the consignor paid Rs. 4,000/- to the plaintiff and undertook to file a suit against the Railway administration for realisation of the balance of the loss and pay the same to the plaintiff, Therefore, the plaintiff impleaded defendant No. 2 making an alternative claim for recovery of Rs. 5,000/- odd from him in case his claim against the Railway administration is not decreed.
4. Defendant No. 1/a the South' Eastern Railway filed one written statement and defendant Nos. 1/c and 1/d the Northern Railway and the North Eastern Railway filed another written statement resisting the plaintiff's claim. They challenge the locus standi of the plaintiff to institute the suit and deny service and validity of the notices issued by or on behalf of the plaintiff both under Section 77 of the Indian Railways Act and Section 80, Civil Procedure Code. According to them, the consignment was a whole load wagon under L/U condition and there was no inherent defect in the wagon. They deny leakage or shortage of the contents and state the weight mentioned in the railway receipt and the forwarding note does not represent the actual Weight of the quantity of the goods consigned. Altenatively, they plead that in case there was any shortage, the loss was not due to any negligence or misconduct of the Railway administrations or their servants, and as such, none of the Railways is liable for the amount claimed.Defendant No. 2 filed a separate written statement. According to him, the price of the oil which was found short of the quantity consigned was Rs. 7.840.66 and not Rs. 8,000/- odd as claimed by the plaintiff. Under the terms of the award given by the Chamber of Commerce, a suit against defendant No. 1 claiming the price of the oil found short was to be filed by defendant No. 2 at the place which was convenient to him. The railway receipt having already been endorsed in favour of the plaintiff, defendant No. 2 sought for his authority to institute the suit and also sent him a draft plaint. The plaintiff, however did not comply with this request and instituted the present suit though defendant No. 2 had already filed M. S. No. 538 of 1961 in the Court of Munsif. Havali in Meerut. On these allegations, he alleged that the present suit should be stayed and in any view of the matter, plaintiff's claim is barred by principles of res judicata and estoppel.
5. The trial court, on a consideration of the evidence, recorded the following findings: (1) The tank wagon which was consigned from Hapur junction by defendant No. 2 contained 528 maunds of oil; (2) at the destination station, when plaintiff took delivery of the consignment, there was a shortage of 103 maunds. 2 seers and 8 chhataks of oil; (3) there was leakage of oil from the tank wagon between Hapur junction and Sultanpur Railway station due to somebody tampering with the discharge cock of the wagon; (4) on detection of the leakage at Sultanpur, necessary steps were taken to effect repairs and prevent further leakage; (5) there was no leakage or loss of oil between Sultanpur and the destination Cuttack; (6) plaintiff has failed to prove any negligence or misconduct on the part of the Railway administrations or their employees which caused the leakage between Hapur and Sultanpur, and as such, the defendant-Railways are not liable for the loss, if any; (7) plaintiff has locus standi to institute the suit (8) the notices under Section 77 of the Indian Railways Act and Section 80, Civil Procedure Code were properly and legally served and (9) plaintiff's alternative claim for a decree against defendant No. 2 on the basis of the award dated 18-1-1961 is not maintainable. On the above findings, the suit was dismissed against the Railways as well as defendant No. 2.
6. The following points arise for determination in this appeal; (1) whether there was short delivery in the quantity of oil at the destination station, and if so, during transit on which of the Railways the loss occurred; (2) whether the loss, if any, was due to the negligence or misconduct on the part of the Railway administrations or their employees; (3) whether there has been valid service of notices under Section 77 of the Indian Railways Act and Section 80, Civil Procedure Code before institution of the suit and (4) has the plaintiff right to maintain the action to recover compensation for the alleged shortage.
7. There is no dispute that defendant No. 2 consigned a load wagon of mustard oil on 19-9-1960 at the Hapur Railway Station on the Northern Railway for being carried to the destination station at Cuttack. Ex. E is the railway receipt in which the actual weight is noted as 197.07 Kg. Ex. E/l, the forwarding note contains two parts. In the first part obviously filled by the sender, the weight of the oil is noted as 528 maunds and the other part which is filled up by the Railway staff, the actual weight has been mentioned as 197.07 Kg. According to learned counsel for the Railways, the weights noted in the Invoice and Ex. E/l only represent the weight given by the sender and the note of such weight cannot be accepted as correct or binding on the Railways. In this connection he has referred to Rule 15 of the Goods Tariff Rules which states that the weight, description and classification of goods and quotation of rates as given in the railway receipt and the forwarding note are merely inserted for the purpose of estimating the railway charges and that no admission is conveyed by the railway receipt that the weight as shown therein has been received or that the description of the goods as furnished by the consignor is correct. Therefore, it is argued that unless plaintiff adduces convincing proof that 528 maunds of oil were actually loaded in the wagon at Hapur and 424 maunds odd were received at Cuttack it will not be correct to hold that there was shortage in delivery. In the present case, apart from Exs. E and E/l. there is some oral evidence regarding the quantity of oil despatched from Hapur. D. W. 1 for defendant No. 2 is an employee of the latter. He has deposed that the entire consignment of oil was weighed in his presence. An employee of the Central Excise Department was also present there, as excise duty was payable on the quantity of oil sold, Exs. A/1 and A-l/1 are the receipts granted by the Inspector of Central Excise showing that duty was paid on a total of 528 maunds. Ex. B/l is the bijak showing that 528 maunds of oil was sent under the consignment. In cross-examination, it was elicited from D. W. 1 that the tank wagon was filled through a pipe from the consignor's tank, and therefore, it is argued that the evidence about actual measurement should not be accepted. D. W. 1 in explaining the process of loading the tank wagon has stated that oil is weighed at their mill and put into their tank from which through a pipe the tank wagon was filled. There is nothing to disbelieve the testimony of this witness as it finds support from the documentary evidence referred to. No doubt, Rule 15 referred to by learned Counsel for defendant No. 1 states that no admission is conveyed by an entry in the railway receipt that the weight as shown therein was actually received, but the said rule only reserves a right to the Railways to re-weigh or remeasure. In this case, at no stage the Railways seem to have doubted or disputed the weight of oil despatched nor thought it necessary to re-weigh or re-measure. On the evidence, therefore, I agree with the court below that it is proved that 528 maunds of mustard oil were despatched by the tank wagon from Hapur.
8. The next question for consideration is whether there was any shortage at the time of delivery of the consignment at the destination station. Exs. H and H/l are entries in the railway delivery book. The endorsement in the delivery book shows that weight of the oil was not taken, but only dip measurement recorded as 5'. Ex. 14 also shows that dip measurement was taken and found to be 5' against 197 odd quintal noted in the railway receipt and weight of 528 maunds mentioned in the bijak. P. W. 1 has deposed that he requested the Railway authorities for weighing the consignment at the way bridge, but this was not complied with. Therefore, after delivery, he weighed the contents in the presence of the railway staff and representatives of defendant No. 2 and found the shortage. The evidence of D. Ws. 2 and 3 for defendant No. 1 shows that by the time the tank wagon reached Sultanpur, it was leaking and D. W. 3 states that leakage had started somewhere after Lucknow. From this evidence, it is clear that in between Hapur and Sultanpur leakage of oil from the tank wagon in question started and such leakage must have caused some reduction in the total quantity of oil which had been loaded at Hapur. Thus, the evidence shows that 528 maunds of mustard oil was loaded at Hapur, some quantity of it was lost by leakage between Hapur and Sultanpur and at the destination in spite of plaintiff's request, the Railways did not agree to weigh the wagon, but only took measurement. In these circumstances, when plaintiff weighed and found it to be 424 odd maunds, there is no reason to disbelieve his testimony. Therefore, I agree with the finding of the trial court that there was a shortage at the time of delivery of the oil to the plaintiff.
9. The next point to be considered is during transit on which Railway the loss occurred. The tank wagon was despatched from Hapur junction on the Northern Railway and it had to travel over the North Eastern Railway. Eastern Railway and South Eastern Railway for reaching the destination station. The transit from Hapur to Sultanpur was admittedly on the Northern Railway. The evidence of D. W. 3 shows that when the tank wagon reached Sultanpur and was found leaking he took dip measurement which was found to be 5'-l'. He unloaded the oil to enable repairs to be effected and after such repairs, the oil was reloaded and on dip measurement being taken, it was found to be 5' in depth. On arrival at the destination, D. W. 4 took dip measurement and found it to be 5' in depth. The entry in the delivery book (Ex. H/l) also shows the same dip measurement. Thus, it is proved that after repair of the wagon and reloading of the oil at Sultanpur till arrival of the wagon at the destination, there was no further leakage as at both these termini, the same dip measurement was recorded. The loss of oil which ultimately was found to be short occurred during transit of the tank wagon between Hapur and Sultanpur over the Northern Railway and to some extent in the process of unloading and reloading at the latter station and not on any of the other three Railways which it had to cover before reaching the destination.
10. Point No. 2.-- There is no dispute and Ex. E also shows that the consignment was booked at Hapur at reduced rate of freight usually known as the owner's risk rate. Learned counsel for defendant No. 1 contends that where goods are booked to be carried at the reduced rate, the Railway is not responsible for any loss, destruction or deterioration, except to the extent as provided in Section 74-C of the Indian Railways Act (Act 9 of 1890). According to him even if the suit is otherwise found to be maintainable, plaintiff can succeed only on proving that the loss was due to negligence or misconduct on the part of the Railway administrations or their servants, In the present case, as plaintiff having failed to prove any such negligence or misconduct, none of the Railways can be held liable for the loss. On the other hand, for appellant, it is contended that once the consignment was entrusted to the Railway at Hapur, it is not possible for the plaintiff to adduce any evidence about particular acts of negligence or misconduct committed by the Railway administrations or their employees resulting in the loss and the duty rests on the Railways to prove the manner in which the consignment was dealt with while in their custody from the start to the destination to show that there was no negligence or misconduct on their part. In the present case, it is not necessary to consider the evidence regarding the manner in which the tank wagon was dealt with from the point of time it left Sultanpur after reloading till its arrival at Cuttack as no loss occurred during this part of the journey. According to learned Counsel for appellant, negligence of the Railways consisted firstly, in not making a proper check of the soundness of the wagon at Hapur; secondly, proper repairs were not effected at Sultanpur, thirdly, proper care was not taken in unloading and reloading the oil at Sultanpur and lastly, the seal was found broken when the wagon reached Cut-tack. For the reason that no loss occurred between Sultanpur and Cuttack, the presence of a broken seal when it reached the destination is not very material. The plaintiff was not present at the time of loading the tank at Hapur. The only evidence regarding the loading at Hapur is that of D. W. 1 for defendant No. 1 and D. W. 1 for defendant No. 2. The former is working as Train Examiner in the Northern Railway. He has deposed that he exmined the wagon in question on 18-9-60 being called by the Station Master, Hapur to do so. Ex. B. is the certificate given by him declaring the wagon to be fit. Nothing has been elicited to show that a proper check of the wagon was not made by D. W. 1. or any defect was detected when the tank was filled with oil after he de-dared it fit. The latter who is an employee of defendant No. 2 has stated that the wagon was examined by an employee of the Railway who certified It to be sound. Thereafter, the tank wagon was filled and sealed by the Railway staff. According to him, at the time of filling, there was no leakage in the tank. This being the evidence there is nothing to infer that the tank wagon was not properly checked at Hapur before it was filled or due to any defect the leakage occurred. D. W. 3 for defendant No. 1 was working as station Master at Sultanpur. By the time the wagon reached that station, he noticed leakage and learnt that it started somewhere after Lucknow. The leakage thus occurred only on the way from Hapur to Sultanpur. There is absolutely no evidence as to the cause of this leakage. From Exs. F and F/l, the notices issued under Section 77 of the Indian Railways Act and Section 80. Civil Procedure Code, it appears that the leakage was not attributed by the plaintiff to any defect in the wagon, but due to extraneous causes. In paragraph 6 of the notices, it is stated that leakage was not due to insufficient or defective packing, but definitely due to pilferage. This would indicate that the plaintiff suspected pilferage as the cause of the leakage which occurred on the way and not any defect in the wagon or improper check of the same made at Hapur. The evidence of D. Ws. 2 and 3 for defendant No. 1 shows that at Sultanpur the discharge cock was found to be leaking, and therefore steps were taken to unload the contents to prevent further loss. Nothing has been elicited or suggested to them that there was negligence in attending to the repairs or any misconduct in relation to the consignment. Doubtless their evidence shows that at the time of unloading, the depth of the oil by dip measurement was found to be 5'-l' and when it was reloaded, the measurement came to 5' only. In the process of unloading and reloading, all that occurred was a loss of 1.' Oil is a commodity which in the process of unloading and reloading is likely to result in some amount of loss, and in this case, the loss being only of a small quantity cannot be considered to be abnormal nor will justify an inference of negligence or misconduct. Thus, the evidence in this case shows that there was no defect in the tank wagon at the time it left Hapur and that it was checked before loading was done. The evidence also shows that at Sultanpur the Railway staff did all that was possible for a prudent person to do in the circumstances to prevent further loss. On a consideration of the evidence. I agree with the court below that leakage of oil between Hapur and Sultanpur was not due to any negligence or misconduct on the part of the Railway administration or its servants. In the absence of such proof, the plaintiff is not entitled to claim compensation for the short delivery from the Railway administration.
11. Point No. 3:-- Another ground on which the claim of the plaintiff is resisted by the Northern Railway and the North Eastern Railway (defendants Nos. 1/c and 1/d) in absence of notices under Section 77 of the Indian Railways Act and Section 80, Civil Procedure Code. In paragraph 3 of their written statement, it is averred as follows:
'These defendants do hereby specifically deny the allegations made in paragraph 9 of the plaint that the plaintiff served notices under Section 77 of the I. R. Act and Section 80. Civil Procedure Code on all the Railways as alleged therein.'
The reference to Paragraph 9 obviously is a typographical mistake for paragraph 12 of the plaint where the averment regarding service of notices has been made. In short, defendants Nos. 1/c and 1/d deny service of notices under Section 77 of the Indian Railways Act and Section 80, Civil Procedure Code. In view of this denial, it was incumbent on the plaintiff to prove service of notices on each of the Railway administrations impleaded as defendants and sought to be made liable. So far as defendant No. 1/a the South Eastern Railway, No. 1/b the Eastern Railway and No. 1/d the Northern Eastern Railway are concerned, the claim of the plaintiff is not tenable against any of them in view of the provisions contained in Section 80 of the Civil Procedure Code. Under this provision, the claim is enforceable either against the Railway administration to whom the goods were delivered or against the Railway administration on whose railway the loss, injury or destruction occurred. As already discussed, in the present case, it has been proved that the goods were delivered for carriage to defendant No. 1/c the Northern Railway at Hapur and the loss by leakage also occurred between Hapur and Sultanpur, while the wagon was in transit within the jurisdiction of that Railway. The loss not having occurred while the goods were on transit on the other Railways, the claim against them is not tenable. In these circumstances, and in view of the defence taken by defendant No. 1/c, the point for determination is whether there has been valid service of notices under Section 77 of the Indian Railways Act and Section 80 Civil Procedure Code on the said Railway. The trial Court under issue No. 7 has recorded a finding that the objection regarding notice is not tenable as the defendant-railways have themselves filed copies of the combined notices. This finding is not correct. Exs. F, F/l and F/2 are the notices filed on behalf of the defendant-railways. Ex. F/2 is the notice served on the South Eastern Railway by defendant No. 2 and the same is not material for the present purpose. Exs. F and F/l, are the two combined notices served by the present plaintiff. Though in both of them at the top, the names of all the Railways have been mentioned, tick marks have been given indicating issue of the same to the Chief Commercial Superintendent and General Manager of the South Eastern Railway. The document's list under which these documents were filed also describes them as notices issued to the South Eastern Railway. Thus, in this case, plaintiff has proved service of notices under Section 77 of the Indian Railways Act and Section 80, Civil P. C. on the South Eastern Railway and not against the other three defendant-railways including the Northern Railway which is sought to be saddled with liability. Mr. Rath, learned Counsel for appellant contends that the averment in the written statement amounts to denial of the validity and not facturn of the notices served. This contention, in my opinion; is not correct, in view of the specific averment quoted above. It was alternatively contended by him that when all these Railways are owned by the Union of India and the loss occurred, while on transit over a distance covered by all these Railways, service of notices on any one of the Railways is sufficient compliance with the requirements of law. In support of his contention, he has placed reliance on the decisions reported in AIR 1960 Mad 58; AIR 1962 Punj 262 (FB); AIR 1963 Punj 224, These decisions, no doubt lend support to his contention, but they cannot prevail, in view of a decision of this Court reported in AIR 1960 Orissa 154 taking a contrary view and the pronouncement of the Supreme Court reported in AIR 1962 SC 1879. In the decision reported in AIR 1960 Orissa 154, (K.P. Cloth Stores v. Union of India), it was held;
'In case of through booking of goods'where goods consigned are carried over several railway administrations, notice of claim for the loss or damage to the goods has to be given to each of the railways concerned, and notice to one railway administration is not sufficient notice to the other railways in order that they may be made liable for the alleged loss or damage.'
The following observations of the Supreme Court in the decision reported in AIR 1962 SC 1879, (Jetmull Bhojraj v. D. H. Rly. Co. Ltd.) seem to set the matter at rest:--
'Upon the language of Section 77 if would appear that a notice thereunder must be given to every railway administration against whom a suit is eventually filed. No such notice was given by the appellant to the G. I. P. railway administration or the E. I. railway administration or the B. A. railway administration within six months of booking the consignment, and therefore, in so far as they are concerned, the suit must be held to have been rightly dismissed.'
The, same view has been taken in the decision reported in AIR 1971 Madh Pra 131. In the present case, failure of proof of service of notices under Section 77 of the Indian Railways Act and Section 80, Civil P. C. is fatal, so far as the claim against the Northern Railway (defendant No. 1/c) is concerned. For reasons already discussed, the claim is not maintainable against the other three railways.
12. Point No. 4:-- The last question relates to a point of law. According to learned Counsel for respondent No. 1, the plaintiff who is an endorsee of the railway receipt under which the goods were consigned has no locus standi to sue for the shortage in delivery on account of any loss that might have occurred, while the goods were being carried by the Railways. The right to suerested only with the consignor who had entered into the contract with the Railways for the carriage of the goods. On the other hand, for appellant, it is argued that the railway receipt being a document of title to goods, by endorsement of the same and realisation of the value of the goods from the plaintiff through the Punjab National Bank, title to the goods passed to him. Therefore, the plaintiff is entitled to all the rights or benefits arising out of any contract relating to the goods.
13. I have already found that negligence or misconduct on the part of the Railway administrations or their employees causing loss of the oil has not been established in this case, and even otherwise, the suit has to fail in the absence of proof of service of the statutory notices on the Northern Railway. In this case, therefore, a decision on the right of the plaintiff as an endorsee of the railway receipt becomes more or less acade-mic. However, as both parties argued this point, I would record my views on the question.
14. The question shortly posed is whether an endorsee or a consignor of a railway receipt is entitled to sue the Railways for any loss or damage during transportation. In case of delivery of goods to the Railways for transportation contract is entered into between the consignor and the Railway, the forwarding note and the railway receipt evidencing and containing terms and conditions of the contract between the parties. Normally, therefore, only a contracting party can maintain a suit for breach of contract as a consequence of the doctrine of privity of contract. Different considerations, however, may arise where goods are delivered to the railway for transportation and the act of delivery itself constitutes transfer of ownership in the goods. So also, questions may arise where by virtue of endorsing the railway receipt transfer of title to goods from the consignor to the endorsee takes place. In the present case, the goods were consigned to self, but the consignor endorsed the railway receipt in favour of the plaintiff and sent it to the plaintiff through the Punjab National Bank together with the bill for the price of the goods. The plaintiff paid the price and released the railway receipt. Therefore, it is argued that title to the goods delivered to the carrier having passed to the plaintiff, he has the right to recover compensation from the carrier for the loss caused to him. On the other hand, it is contended by learned Counsel for respondent No. 1 that at the time of deliverey of the goods to the Railway at Hapur when the contract with the carrier was entered into, the ownership remained with the consignor and even though the railway receipt was endorsed, it was only to facilitate receipt of the goods at the destination and the plaintiff cannot maintain any action for breach of contract to which he was not a party.
15, No doubt, there has been some divergence of opinion on the question as to whether a bare endorsee of a railway receipt or a consignee has the right to sue to the Railways for loss, if any, during the transit, but the position of law is getting crystallised. In the decision reported in AIR 1961 SC 426, (I. T. Commr. v. Bhopal Textiles Ltd.) the question was left open with the following observation:
'A railway receipt is a document of title to goods, and, for all purposes, represents the goods. When the railway receipt is handed over to the consignee on payment, the property in the goods is transfered. In this case, it is a matter of considerable doubt whether the property in the goods can be said to have passed to the buyers by the mere fact of the railway receipts being in the name of the consignees, as has been held by the High Court. Since we are not deciding the question of accrual, we do not elaborate the point.'
In the decision reported in AIR 1965 SC 1954. (Morvi Mercantile Bank v. Union of India), the consignor consigned the goods for delivery to self at the destination station. He endorsed the railway receipt in favour of the mercantile bank against an advance of Rs. 20,000/-. There was failure of delivery at the destination. The question arose whether the bank as pledgee can maintain the suit against the Railway. It was observed:
'The Indian decisions cited at the Bar do not deal with the question whether a valid pledge of goods can be effected by transfer of documents of title, such as a railway receipt, representing the goods; they were mainly concerned with the question whether an endorsee of the railway receipt for consideration could maintain an action on the basis of the contract embodied in the said receipt. x x x x. These raise a larger question on which there is a conflict of opinion. In the view we take on the question of pledge, it is not necessary to express our opinion thereon in these appeals.'
In the decision reported in AIR 1966 SC 395. (Union of India v. W. P. Factories), the consignor consigned the goods in the name of the consignee, but there was a contract that delivery would be made by the seller at the godown of the consignee. Goods were destroyed by fire, while on the platform. Holding that the property in the goods still rested with the consignor and that he alone could sue. their Lordships observed:--
'It is true that a railway receipt is a document of title to goods covered by it but from that alone it does not follow, here the consignor and consignee are different, that the consignee is necessarily the owner of goods and the consignor in such circumstances can never be the owner of the goods. The mere fact that the consignee is different from the consignor does not necessarily pass title to the goods from the consignor to the consignee and the question whether title to goods has passed to the consignee will have to be decided on other evidence.'
In the decision reported in AIR 1962 Guj 266, (Union of India v. Dayabhai Lax-man), it was held that a bare consignee having a railway receipt in hand is not entitled to bring a suit against the Railway.
16. The following principles are deducible from the various decisions and observations of the Supreme Court; (1) A bare endorsee of a railway receipt by virtue of the endorsement alone is not entitled to maintain a suit for the loss against the railway; (2) the endorsement of the railway receipt only confers a right on the endorsee to receive the goods by delivering the railway receipt to the Railway who will get discharged from any liability after the goods are so delivered to such an endorsee; (3) any further right beyond the above, if claimed by the endorsee, i.e., a right to the ownership of the goods having passed to him to entitle him to sue the carrier for the loss will have to be established by other evidence, apart from the endorsement and (4) if by the act of delivering the goods to the carrier, ownership to the same can be found to have passed to the consignee or the endorsee of the railway receipt, the latter can maintain a suit for the loss, if any, that occurs during transportation.
17. In the present case, the question necessarily arises as to the point of time when title to the goods can be said to have passed to the plaintiff. The consignment at Hapur was made by defendant No. 2 to be delivered to self. This would indicate that the consignor retained ownership over the goods delivered to the Railway. In paragraph 2 of the plaint, the averment is that defendant No. 2, the consignor was to arrange delivery of the tank wagon to the plaintiff at Cuttack in the presence of their brokers and Calcutta representatives. This averment indicates that under the terms of the contract between the plaintiff and defendant No. 2, the delivery of the goods was to be made to the former by the latter after their arrival at the destination. This having been the contract between the parties, it will no,t be correct to say that title to the goods passed to the plaintiff when the same was made over to the carrier at Hapur, but passing of title was intended to be deferred till after arrival of the consignment at Cuttack. The loss having occurred before the goods reached Cuttack, i. e. before transfer of the ownership rights to the plaintiff, in my opinion the plaintiff has no right to maintain the suit against the Railways for the loss that occurred during transport. On this ground also, the suit must fail.
18. Plaintiff made an alternative claim against defendant No. 2 for Rupees 5,000/- odd, in case the suit against the Railways is not decreed. Admittedly, there was an arbitration between the plaintiff and defendant No. 2 and an award was passed. I agree with the reasons given by the court below and hold that this alternative claim against defendant No. 2 is not maintainable.
19. In the result, the appeal fails and is accordingly dismissed with one set of costs to be divided equally between respondents Nos. 1 and 2.