1. This appeal by the Dominion of India as the owner of the East Indian Railway Administration arises out of a suit instituted by the plaintiff respondent for recovery of a sum of Rs. 1145-12-0 as damages for goods not delivered.
Two consignments of soft coke in two different wagons were booked from Kusander Railway Station to Chatra Railway Station under two Invoices, the first consignment being under Invoice No. 1 and the second consignment being booked under Invoice No. 2. By the 2nd consignment 23 tons of soft coal were sent. When this 2nd consignment reached Chatra Railway Station the plaintiff sent a claim under Section 77, Indian Railways Act to the General Manager, East Indian Railway. Thereupon an intimation was sent to him by the Railway Authorities that the consignment was available for delivery at Chatra Station. Suspecting shortage, however, owing to certain circumstances the plaintiff demanded delivery after reweighment. The Coal Area Superintendent directed delivery of the goods to the plaintiff on reweighment as a special case if the plaintiff was prepared to pay costs of such reweighment. The plaintiff was not, however, prepared to pay such costs and claimed the reweighment free of charge. Ultimately the Railway Company refused to give delivery of the goods after reweighment as claimed by the plaintiff.
Accordingly the present suit has been instituted. The price of the goods covered by Invoice No. 2 is Rs. 471-13-0. The present appeal is in respect of this amount only, liability for Invoice No. 1 being accepted. The suit was decreed in full in the trial Court but in the lower appellate Court the plaintiff obtained a partial decree only.
2. As has been observed before the present appeal is confined only to the liability in respect of Invoice No. 2. It is contended by Mr. Bose on behalf of the Railway Administration that in respect of the goods covered by this Invoice i. e. No. 2 the plaintiff is not entitled to any relief at all in the circumstances of the present case inasmuch as refusal on the part of the Railway Administration to reweigh does not amount to a refusal on their part to deliver the goods. It has been argued by him that it was up to the plaintiff to take delivery of the goods without claiming the reweighment either free of costs or on payment of costs and later on if the plaintiff found upon reweighment that there was shortage in the amount of goods originally consigned to him it was for him to claim damages for such shortage in weight. The lower appellate Court held that the plaintiff was justified in demanding delivery of the consignment after reweighment and that he was within his rights when he refused to take delivery on the refusal of the Railway Company to give delivery of the consignment after reweighment free of costs.
It has been urged before me on behalf of the appellant that these findings of the lower appellate Court are based upon a totally erroneous conception of the relevant law on the point as enunciated in a series of decisions of various High Courts including this Court. Mr. Bose argues that it is not the case that the plaintiff challenged the identity of the goods that arrived at Chatra Station. He argued that had that been the case different considerations would have arisen. His argument further is that the Railway Administration was under no obligation whatsoever to reweigh the goods nor could the plaintiff claim as a matter of right that the goods must be reweigh-ed before he agreed to take delivery of the same. In other words, according to Mr. Bose's contention, the plaintiff is to thank only himself for not taking delivery of the goods and as he failed to to take delivery he is not entitled to claim damages from the Railway Administration.
In support of his contention Mr. Bose has drawn my attention to a number of rulings of different High Courts e. g. Janki Das v. Bengal Nagpur Rly. Co., 16 Cal.W.N. 356, East Indian Ely. Co. v. Sispal Lal, 16 Cal. W. N. 329, Bamjash Agarwalla v. India General Navigation and Rly. Co. Ltd., 22 Cal. W. N. 310, Jaganath Manuari v. East Indian Ely. Co., 22 Cal. W. N. 902, Surajmal Marwari v. Agent, Bengal Nagpur Ely. Co., 58 Ind. Cas. 200 (pat.) East Indian Ely. Co. v. Behari Lal Bulaqi Earn, A. I. R. 1926 Lah. 512, Bengal North-Western Ely. Co. v. Firm Dassundhi Malbishambar Das, A. I. R. 1928 Lah. 166 as also to certain observations in Lalji Raja & Sons Firm v. Governor General of India in Council representing Bengal Nagpur Ely., 54 Cal. W. N. 902. It seems to me that the principle of law deducible from the above cases has been correctly summarised in the case of Surajmal Marwari v. Agent, Bengal Nagpur Ely., 58 Ind. Cas. 200 (Pat.).
I may quote the following passage from the judgment in that case:
'With regard to the question of refusal to take delivery before reweighment it is settled that a Railway Company is not bond by law either to reweigh goods or to certify shortage at the time of delivery.'
A further passage from that judgment may also foe usefully quoted:
'It is clear that if the plaintiffs were dissatisfied either with the amount of freight charged or the condition of the goods when they arrived they should have taken delivery and pay the charges demanded and then have been able to take steps to obtain any refund which was proved due to them.'
The cases to which reference has been made before lend support to this view of the Patna case. Special reference may in this connection be made to the case of Janki Das v. Bengal Nagpur Rly. Co., 16 Cal. W. N. 356, specially to the observations of Jenkins C. J. at p. 358 of the report (left-hand column). It seems to be clear from all these cases that the Railway Administration is under no obligation to reweigh and that if the consignee refuses to accept delivery he does so at his own risk. The lower appellate court has not referred to any of these cases nor was this aspect of the question examined. The learned Appellate Judge purported to follow the rulings reported in the cases of Messrs. Kishan Lal Matrumal v. B. B. & C. I. Rly. Co., : AIR1938All561 and Secy, of State v. Madhuri Das-Narain Das, : AIR1933All477
So far as the case reported in : AIR1933All477 is concerned it is to be noticed that in this case the consignee did not accept delivery without satisfying himself about the identity of. the goods. That particular feature is absent in the present case. As observed before in the present case the plaintiff did not challenge the identity of the goods which arrived at the Chatra Railway Station.
As regards the other case, viz. : AIR1938All561 the facts are also different, though no doubt in that case, as in our present case, there was diversion of the goods by a different route. In : AIR1938All561 it was held, on the facts of that case, that the diversion of the route and the transfer of goods from a small to a bigger wagon constituted a breach of a necessarily implied term of contract between the parties and the Railway Company could not claim any exemption under the Risk Note Forms A and B. Here in the present case Mr. Bose on behalf of the Railway Administration is not claiming any exemption upon any Risk Note Form at all. On the other hand he has taken his stand on a much more fundamental ground, viz., that the Railway Company was under no obligation whatsoever to reweigh the goods before delivering them to the plaintiff and that the plaintiff could not claim the right to reweigh at all. As I have observed before, Mr. Bose is fortified in this contention by the ruling relied upon by him.
3. On behalf of the respondent it has been argued before me that there are special features in this case, viz., the goods reached the Chatra Railway Station not by ordinary route but via Naini junction, that the wagon carrying the goods of the consignment reached Naini junction station without any label of destination, and that the goods were unloaded there and lay there for 2 or 3 months and reloaded in another wagon. On behalf of the respondent it has been argued that these special circumstances take this case out of the line of cases referred to by Mr. Bose and, as such, the broad principle upon which Mr. Bose has taken his stand cannot be applied in the circumstances of the present case. It is hardly to be expected that the facts of this case will be quite similar to those of another case but so far as the principle deducible from these cases is concerned I think that it is capable of general enunciation and, as I have observed before, the principle has been summarised correctly in the Patna case referred to above.
4. In this view of the matter I am of the opinion that the responsibility for not taking delivery of the goods lay upon the plaintiff and not having taken delivery of the goods on a condition which he was not entitled to impose he is not entitled to claim damages now. In this view of the matter the appeal must succeed and it must be held that the Railway Administration has no liability in respect of the goods covered fey Invoice No. 2.
5. The result is that the appeal is allowed. The appellant will get his costs in this Court. As regards the costs in the lower courts I direct that the parties do get their costs in proportion of their success in those courts.