Lawrence Jenkins, C.J.
1. On the 11th January 1907 the plaintiffs delivered to the defendant Company 290 bags of rice, weighing 580 maunds, for carriage from Raigarh to Shalimar. The goods have not been delivered, and the plaintiffs now claim either delivery of the goods or Rs. 2,280-10 by way of damages.
2. The Subordinate Judge dismissed the suit and his decree was confirmed by the District Court. From this confirming decree the present appeal has been preferred.
3. As the case comes before us by way of appeal from an appellate decree it is necessary to see what the facts are as found by the lower Appellate Court, for by its findings we are bound.
4. It is common ground that of the 290 bags all but 2 reached Shalimar, and these two were lost.
5. The plaintiff's case is that the 238 bags that arrived were partly empty and according to the District Judge, 'The only real complaint is that the Goods Clerk refused to re-weigh the goods and issue a short certificate.' And the learned Judge goes on to say: 'On this we must find that the facts were that when the appellant went to take delivery of the goods demurrage was due and that they refused to take delivery without re-weighment and also refused to pay demur-rage. Clearly, on such a finding the Railway Company were not bound to deliver the goods.' Later in his judgment the District Judge says of the plaintiffs: 'They refused to take delivery of the goods which were consigned to them except on certain conditions with which the Railway were riot required by law to comply. They demanded a re-weighment and a certificate of shortage. The Railway is not required by law either to re-weigh or to certify shortage.'
6. The result then is that of the 290 bags 2 were not delivered because they were lost, and non-delivery of the rest was due to the fact that the plaintiffs would only take delivery on a condition they were not entitled to impose.
7. I will first deal with the two lost bags.
8. Where a Railway Administration fails to deliver goods entrusted to it for carriage it may be shown that the goods were lost and then the provisions of Chapter VII of the Indian Railways Act, 1890, apply. Among these provisions is that contained in Section 77 which enacts that 'a person shall not be entitled to compensation for the loss...of goods delivered to be so carried unless his claim to the compensation has been preferred in writing by him or on his behalf to the Railway Administration within 6 months from the date of the delivery of the...goods for carriage by Railway.' By Section 140 it is provided: 'Any notice or other document required or authorised by this Act to be served on a Railway Administration may be served, in the case of a Railway administered by the Government or a Native State, on the Manager and, in the case of a Railway administered by a Railway Company, on the Agent in India of the Railway Company:
(a) by delivering the notice or other document to the Manager or Agent ; or
(b) by leaving it at his office; or
(c) by forwarding it by post in prepaid letter addressed to the Manager or Agent at his office and registered under Part III of the Indian Post Office Act, 1866.
9. The method of service permitted by this Section has not been followed; nor has it been shown that the claim has been otherwise preferred to the Railway Administration so as to satisfy the requirements of Section 77.
10. The correspondence with the Goods Superintendent was manifestly insufficient for that purpose and on this point I accept the view of the Subordinate Judge in preference to that of the District Judge.
11. The suit, therefore, as to the 2 lost bags must fail on this ground.
12. The position as to the 288 bags is different. The inference suggested by receipt Exhibit 1 is that each bag at the time of delivery to the Railway Administration contained 2 maunds and the discussion before us has proceeded on that footing.
13. Now, it is no one's case that these 288 bags were lost: On the contrary they have been sold by the Railway Company. But though they were sold the weight of rice sold was only 427 maunds and not 576 maunds, as it should have been. How there was this difference in weight has not been clearly explained, nor is there any definite finding by the lower Appellate Court on the point. There is, however, no suggestion that the Railway Administration is in possession of the goods or that it has been guilty of wilful misfeasance in regard to them, and the only inference appears to be that the difference in weight represents goods which have been lost or destroyed.
14. The position then would seem to be that the suit must fail either for failure to comply with the provisions of Section 77 of the Indian Railways Act, or because the goods were at the plaintiffs' risk by reason of their failure to take delivery.
15. As to the rest of the goods, that is to say, the 427 maunds, the position is this: The goods were sold by the Railway Company as the plaintiffs failed to take delivery, but in so selling the Railway Company failed to observe the provisions prescribed by the Indian Railways Act. The sale was, therefore, not in accordance with law.
16. But even if it be treated as a conversion, what is the consequence? The plaintiffs would be entitled to damages. But, according to the findings of the lower Appellate Court, no damages have been suffered.
17. Then it is objected by the plaintiffs that the Railway Company was not entitled to deduct wharfage. This rests on their contention that the notification of the 3rd July 1902 was of no legal effect. Bat the plaintiffs cannot be allowed to advance this argument at this stage for the first time seeing that it depends on proof of facts, It clearly was not taken before the Subordinate Judge; it is not to be found in the grounds of appeal to the District Court: and there is no reference to it in the judgment of that Court.
18. The result then is that the decree of the lower Appellate Court must be confirmed with costs.
N. Chatterjea, J.
19. I agree.