R.N. Misra, J.
1. Defendant No. 1, being the Union of India represented by the General Manager of the South Eastern Railway, is the appellant against a reversing judgment of the learned District Judge of Bolangir in suit for recovery of Rs. 3640 representing the price of 364 bags of Mudhi which, according to the plaintiff, had been delivered to the Railway at Kantabanjhi Railway Station on 16-7-59 for the purposes of onward transmission to Nasik.
2. By 1959 there was restriction on movement of Mudhi, a preparation from rice, out of the State of Orissa. The plaintiff-firm obtained necessary permit for exporting Mudhi out of the State of Orissa to the State of Maharashtra and indented two wagons for the purpose on 29-6-59. Two wagons being Nos. 69668 N. R. and 52789 C. R. were allotted to the plaintiff valid upto 16-7-59. The wagons were supplied at 5 p. m.on 16-7-59 at the relevant place for loading.864 bags were loaded in wagon No. 52789 and 316 in wagon No. 69668. This loading was completed by 6 P. M. on 16-7-59. The wagons were also duly sealed on that date. The railway staff at Kantabanjhi, however, instead of issuing the railway receipt to the plaintiff on 16-7-59 immediately after the loading was over, asked the plaintiff to come on the following day for the purpose. When the plaintiff approached for the Railway receipt on the next morning they demanded payment of illegal gratification as a condition precedent to issue of the railway receipts. The plaintiff intimated this fact to the Special Police Establishment on 18-7-59. The Station Master of the Kantabanjhi Railway Station called upon the plaintiff to unload the goods as the validity of the permit had already expired on 16-7-59. When the plaintiff did not unload the consignment the defendants unloaded the same on 18/7/59. They did not take due care of the stock and the plaintiff lost 364 bags of Mudhi. In the circumstances, he sued the Railway Administration for recovery of the price of the said 364 bags at the rate of Rs. 10 per bag.
3. The defence taken was that the wagons were supplied on 16-7-59, but they were not fully loaded by 6 P. M. that day. The plaintiff again commenced loading at 6 A. M. on 17-7-59 and by the time the loading was over it was found that the life of the permit held by the plaintiff had already expired. Immediately thereafter the plaintiff was called upon to unload the bags or have the permit immediately extended. As the plaintiff failed to obtain extension of the permit and also failed to take back the bags from the wagons, the unloading was done by the defendants. The Mudhi was not removed from the station premises in spite of notice, and was ultimately sold by auction on 16-11-59 for a price of Rs. 732, In the circumstances, it was contended by the defendants who happened to be the Railway Administration represented by the General Manager, the Assistant Goods Clerk, the Goods clerk and the Station Master respectively that the suit was liable to be dismissed.
4. The trial Court held that the loading was not complete on 16-7-59 but was completed in the early hours on 17-7-59 in spite of protest from the railway servants and that the defendants were justified for unloading the stock for want of a live permit to cover the despatch. On these findings, the suit was dismissed.
5. The learned appellate judge, however, came to hold that the loading had been completed on 16-7-59 at a time when the permit was still valid; the defendants were liable to compensate the plaintiff for the loss sustained by him and he assessed the loss at the amount claimed. He further found that the notice under Section 77 of the RailwaysAct was sufficient. It is against this appellate judgment decreeing the suit that defendant No. 1 Railway Administration has come up in appeal to this Court.
6. Mr. Pal accepted the finding of the lower appellate Court that the loading had been completed on 16-7-59 and he did not rightly challenge the finding that the officers of the Railway Administration had refused to issue the railway receipt soon after the loading was over. On these findings, however, he wanted to contend that the lower appellate Court should have held that the suit was liable to be dismissed for want of valid notice under Section 77 of the Railways Act. He further contended that the plaintiff was obliged to unload the goods from the railway, wagons and take away the same and sue for any loss sustained by him after he had taken the stock. Even if the demand for payment of wharfage was wrong and there was no basis for it, it was proper for the plaintiff to pay it and sue for recovery of such wharfage along with other damages which, according to the plaintiff, he became entitled to on account of the illegal acts of the Railway Administration.
7. The question that really arises in a case of this type is as to whether after the goods had been offered to the Railway Administration and a bailment was properly created and the liability of the Railway became that of a bailee in respect of such goods, was it open to the Railway Administration to call upon the consignor to take back the goods at the place of delivery in breach of the contract under which the delivery was meant to be at a different place, in the instant case at Nasik. I called upon the learned counsel for both the sides to place the law on the point, but a decision directly on the point has not been placed. Mr. Pal sought reliance on Mayne on Damages and referred to three decisions reported in AIR 1920 Pat 496, Gouri Dutt v. Gobind Singh, AIR 1952 Cal 726, Dominion of India v. Netai Ghandra and AIR 1960 Pal 393. Vishun Prasad v. Union of India. I have looked into these decisions as also the Commentary by Mayne, but ultimately I find that the basic question that arises for consideration in a case of this type is not answered in any of the aforesaid authorities. It is true that the liability of the Railways in India is statutory as has been held by their Lordships of the Supreme Court in AIR 1966 SC 395, Union of India v. W. P. Factories and the liability at the common law or as arising out of the provisions of the Indian Contract Act must be taken to have been modified to the extent the special provision is made under the Railways Act either limiting the liability or extending the same, as the case may be. As has been indicated above, the consignment had been properly booked on 16-7-59. There was no justification for the Railway Administration not to make it move to its destination, but to arrestits movement and call upon the plaintiff to take delivery of the same on a false plea that the permit had lapsed. Even if the defendants acted in breach of the contract or against the provisions of the Railways Act or the Code made thereunder, the plaintiff cannot become entitled to claim the price of the goods. There is no evidence that the consignment became damaged beyond use merely by the unloading of the stock. If the plaintiff had taken delivery of the stock there may not have been any damage to it. On the other hand, he contributed for its damage by not lifting it. He had reasonable opportunity of taking delivery of the same and even if wharfage had been illeglly demanded that should have been paid and a claim for recovery of the same could have successfully been made in case the action of the defendants was unjustified. The stand taken by the plaintiff in the instant case is neither business-like nor was it warranted even on the basis that the action of the Railway Administration was improper. On the aforesaid analysis, I would hold that the plaintiff was not entitled to recovery of the price of the consignment, but was entitled to damages, such as, loss of profits directly arising out of the conduct of the defendants and other damages which incidentally arose out of the matter, but were directly relatable to the breach. The plaintiff was also entitled to recover loss sustained by it. But as it appears the suit has not been framed on the basis and no evidence has been led to support any claim on any of the heads referred to above. In the circumstances, the plaintiff can only recover the amount of Rs. 732 which has been lying with the Railways after the consignment of Mudhi was sold by auction on 16-11-59.
8. On the finding that the default was of the Railway Administration, the defendant-Railway is not entitled to deduct any amount by way of wharfage or any claim of any type nor raise a counter claim against the plaintiff.
9. This leaves the question of want of notice under Section 77 of the Railways Act for consideration. The learned Appellate Judge came to hold, while dealing with this aspect of the matter, thus:--
'The plaintiff sent the notice (Ext. 2) to the General Manager, S. E. Railway and the Station Master, Goods Clerk, Asst. Goods Clerk, Kantabanji, on 5-9-59. It was within 6 months from the date of delivery. Of course, the plaintiff has not separately given any notice Under Section 77 of the Railways Act. The learned Advocate for the respondent contends that in the absence of any such notice the suit is liable to dismissal. But the learned--Advocate for the appellant relies on the case of Dharamsi Liladhar Vora v. Union of India, AIR 1952 Cal 439 where ft has been held that one notice Under Section 77 of the Railways Act is sufficient also to constitute notice Under Section 80,Civil P. C. although it was. not specifically mentioned to be a notice Under Section 80, Civil P. C. In the present case the notice (Ext. 2) must also be deemed to be Under Section 77 of the Railways Act and the suit is not liable to be dismissed for non-service of a separate notice Under Section 77, of the Railways Act.'
This view of the law seems to be wrong. Their Lordships of the Supreme Court have recently indicated that a notice under See-77 of the Railways Act is as much a condition precedent to the suit as one under section SO, Civil P. C. and an authority under the Railways Act is entitled to two notices as a condition precedent to a suit under such authority. I think, the conclusions of the learned Appellate Judge on that score cannot be sustained. But I would not proceed to give any finding on that aspect of the matter in view of the fact that this is a case where the decree which I propose to pass is only for refund of the amount which the Railway Administration has been holding for the plaintiff and Mr. Pal also agreed during the hearing that the said amount is payable to the plaintiff by the Railway Administration.
10. In the circumstances, I would conclude that the plaintiff is entitled to a recovery of Rs. 732 only from the defendants. If the defendants had offered the amount in the trial court, there would have been probably no occasion for the litigation. On account of a false and untenable stand taken in the suit the case came to be contested upto this stage. In the circumstances I would direct that the plaintiff will be given a decree for recovery of Rs. 732 with full costs on Rs. 3640 for the trial court only, and the costs of the two appellate courts would not be given. The Second Appeal is allowed, the judgment and decree of the lower appellate court are reversed and a decree to the extent indicated above is directed to be passed.