JUDGMENT
1. This is a suit brought by Lachmi Moolchand, a trader of Agra, against the Bengal and North Western Railway, in the Court of the Subordinate Judge of Aligarh, for Rs. 2,060, damages for the loos or non delivery of 113 bags of chillies consigned to him by a trading firm of the name of Bharose Potdar of Darbhanga District. The latter firm were joined as defendants together with the Rohilkhand and Kumaun Railway, but both these defendants obtained judgment in their favour in the Trial Court.
2. The cause of action alleged in the plaint was that the defendant's servant negligently pointed out the wrong bags at the destination of the consignment, and that the consignment was thus not delivered. It is not alleged to whom this demonstration was made, nor to whom the consignment was in fact delivered, but the breach of duty is alleged to have taken place on the 22nd of May. The Subordinate Judge dismissed the suit. The Distrust Judge, treating it as an action for non-delivery, held that the defendants were liable and remanded the suit for the amount of damages to be ascertained. Against this order an appeal has been brought to the High Court The learned District Judge Bays truly that the facts are not in dispute. They are more fully stated in the judgment of the Trial Court, and, though no finding of that Court has been overruled by the lower Appellate Court, the judgment under appeal does not in some respects set out the facts which were proved in evidence. We, therefore, looked into the evidence in order to supplement the findings contained in the lower Appellate Court's judgment. The net result of the uncontradicted evidence and of the findings of the lower Appellate Court may be thus summarised.
3. The goods were dispatched by the Bengal and North-Western Railway on the terms of a consignment note signed by the consignors on the 3rd of May, The bags were marked with identification letters and were noted on the consignment to be in some respects defective through damp and want of repair. They were sent in a sealed van over the Bengal and North-Western Railway and the Rohilkhand and Kumaun systems to Kasganj Station on the Rohilkhand and Kumaun Railway. The sealed van arrived at Kasganj Station on the night of the 11th May, in the same condition as it had been dispatched and it was pleased in the goods-shed ready for unloading on May 13th.
4. The position from this point requires to be carefully considered. The evidence is scanty, but for this the plaintiff is to blame. Indeed, he is under a very strong suspicion of having intentionally kept back evidence which it was incumbent on him to produce. We know, however, that the plaintiff resided and carried on business at Agra. To suit his own convenience he had ordered to this consignment of chillies to be delivered at Kasganj intending to convey it thence to Agra in carts. He had made arrangements with a local firm at Kasganj to take delivery for him. The Railway receipt had to be sent by the consignor to the plaintiff and by the plaintiff to his agents at Kasganj. It is possible that there may have been delay in the arrival of the Railway receipt but even if there was no more than accidental delay the plaintiff's own arrangements were responsible for that delay. As a matter of fact, there is a note in the evidence that the Railway receipt had been posted from Agra to Kasganj on the 6th or 7th of May. It ought to have arrived there in ample time to enable the plaintiff's agents to produce it and take delivery on the 13th of May, when the wagon containing the consignment was placed in the goods shed ready for unloading. The wagon was sealed and, obviously, the Railway Company's servants had no authority to break those seals or to empty the wagon in the absence of the plaintiff or some authorised agent of the plaintiff. The contract expressly was that the wagon should be unloaded by the consignee. Now, it is a serious matter for a wagon to be left standing in a Railway-goods-shed, more particularly if, as was probably the case here, the wagon is the property of another Railway Administration. Undoubtedly, if the consignee had taken no Steps to unload the wagon for eight or nine day sifter its arrival in the goods-shed he would have found himself liable not only for ordinary demurrage in respect of goods lying in a Railway shed, but to heavy charges on account of the Railway wagon which had been kept standing unnecessarily and prevented from earning money for the Railway Administration which owned it. The Rail way Company were clearly entitled to refuse to allow the goods to be unloaded except upon production of the Railway receipt, so that the unloading and the actual delivery of the goods and their removal from the Railway Station premises might take place at once. It is, however, a matter of common experience that Railway Companies are always ready to meet the convenience of their customers in matters of this sort. It is clear from the evidence that one Reoti Ram, a commission agent, carrying on business at Kasganj who was accustomed to act for various firms in this matter of taking delivery of goods and who was employed to take delivery of this particular consignment by the local firm who were acting as agents for the plaintiff, presented himself at the Kasganj Goods Office on May, the 13th, and asked to be allowed to unload the wagon. He was permitted, to do this on his adducing prima facie evidence of his being in communication with the proper parties in that he was able to mention the exact number of soaks making up the consignments. The important point, however, is that the permission given to Reoti Ram to unload the goods without presenting the Railway receipt was of the nature of a concession. The Railway Company, to judge from the notice issued in the present case, ordinarily assumes that any goods left on their premises through delay on the part of the consignee in taking delivery are left there at the owner's risk, but, whatever may be the general rules, it seems obvious that Reoti Ram, having obtained permission to unload the wagon, was under a peculiar obligation to see to the safe custody of the consignment pending its removal from the Railway premises. Moreover, there is nothing in the evidence to snow that Reoti Ram would not have been permitted to remove the consignment at once if he had shown any anxiety to do so. Perhaps, an Indemnity Note of some sort would have had to be executed by the local firm which employed Reoti Ham, but there is certainly nothing to show that it was the Railway Company's fault that the goods lay on their platform for a single day after May the 13th or, indeed, that they actually did so. All we know is that Reoti Ram eventually presented the Railway receipt on May the 22ad. He handed it over to the Goods Clerk, duly endorsed with a clear receipt for the entire consignment of 113 bags of chilies. He then went away to his employers, and there he seems to have made a statement which ought never to have been admitted in evidence, as, in the absence of Reoti Ram from the witness-box, it was pure hearsay. All we know if, that, in consequence of something Reoti Ram had said, one Jhamman Lal arrived at Kasganj Railway Station on May, the 31st, and asked to see the plaintiff's goods. The bags or sacks which had made up the plaintiff's consignment of chilies were not then on the platform or the Railway premise, with the possible exception of one single sack, but this circumstance is obviously irrelevant on the question of the liability of the Railway Company.
5. We have to consider, in the first plane, why the Railway receipts was not presented until May, the 22nd. This may conceivably have been due to pure negligence on the part of the local firm who were acting as the plaintiff's agents. It seems at least equally probable, if not more so, that the Railway receipt had reached Kasganj before May, the 13th, and was being deliberately kept back as part of a swindle which was perpetrated on the plaintiff by the removal of his sacks, containing batter quality chilies, foe the benefit of some other person, but for which It was hoped ultimately to make, the Railway company liable. However this may be, it seems oat of the question for the plaintiff to obtain a decree in this suit when he has not put Reoti Ram into the witness box, when he has not proved that Reoti Ram did not in fact remove the whole of his consignment of chillies, and when he has given no evidence whatsoever as to the terns of the arrangement according to which the bags of chillies were allowed to remain on the Station premises (assuming that they were so allowed to remain) after Reoti Ram had unloaded them from the wagon.
6. These considerations are sufficiently obvious and have not really been met in argument on behalf of the plaintiff-respondent. What was pressed upon us on his behalf was that we ought to treat the judgment under appeal as having recorded certain findings of fast, treat these findings as binding upon us and give the plaintiff a decree on the strength of them. The findings recorded are not sufficiently definite and are not altogether consistent with one another. What the learned Subordinate Judge apparently intended to find was, that Reoti Ram was not permitted by the Railway Company to remove the plaintiff's bags after he had unloaded them from the truck, that be was unable to produce the Railway receipt before May, the 22nd, and that when he arrived there on May, the 22nd, with the Railway receipt the plaintiff's sacks had disappeared, and that there had remained on the platform only a number of bags of chilies of wholly inferior quality which had also arrived at Kasganj in another wagon on the night of May, the 11th. In fast, the lower Appellate Court seem to think that it is highly probable, if not actually proved, that the consignees of these 175 bags of inferior chilliest managed to steal the plaintiff's consignment and got away with it, leaving comparatively valueless stuff of their own behind. It is apparently on some such view of the case that the lower Appellate Court has held the defendant Railway Company liable for the loss of the consignment. It cannot be said that findings to the above effect are recorded in clear and explicit terms in this judgment under appeal. Moreover, as regards the suggestion that the consignees of the 175 sacks got hold of the plaintiffs consignment, the finding really rests upon no evidence at all. The lower Appellate Court had not even materials before it on which it was entitled to conclude that Reoti Ram had not himself removed the plaintiff's consignment, unless it acted upon the inadmissible evidence as to what Rsoti Ram was alleged to have told the plaintiff's agents. There is, therefore, no clear finding of fact by the lower Appellate Court which we are bound to follow. As a matter of fact, the evidence of the Goods Clerk at Kasganj shows that there were three, if not four, consign-merits of chilies of different kinds unloaded open the Railway premises at that place at or about the same time. One or two of these consignments Reoti Ram was ostensibly taking delivery of on May, the 21st, and subsequent days.
7. The Railway Company was certainly not responsible for the honesty of Reoti Ram or of any other agent or Sub agent of the plaintiff's employed to take delivery of the consignment. Even supposing there was no dishonesty, but that the sacks making up the plaintiff's consignment somehow, got mixed up with consignments intended for otter people and were thus lost to the plaintiff, this could rot have happened without gross carelessness on the part of Reoti Ram, and in is impossible to agree with the lower Appellate Court that, on the evidence produced in this case, any liability in the matter attaches to the Railway Company.
8. We are, therefore, of opinion that the Subordinate Judge was right, and that the suit was properly dismissed. There is no evidence of misfeasance or conversion. There is no evidence of the allegation originally relied upon that the Railway servants pointed out the wrong goods to the ' plaintiff's agent, even assuming that he did not know which they were, of which there is also no evidence. There is no evidence as to how, when or by whom the consignment in dispute was in fact removed, not as to what share the Railway servants took in its removal, nor as to what knowledge they had of the removal.
9. By a strict application of the ordinary rules of law and procedure to the plaintiff's case, it ought on this ground alone to be dismissed for want of evidence to, support it. But in order to remove any doubt we have gone on to consider whether; upon the lines of the judgment of the lower Appellate Court, assuming that some stranger wrongfully removed the goods destined for the plaintiff and marked with his name the Railway Company can be held liable in law for a breach of duty as carriers.
10. Prima facie, the proper person to sue for non-delivery is the consignor against whom the consignee has his own remedy This is so if the consignor undertakes to make delivery himself. If the terms of the contract of sale are such that delivery is to be on rail, the consignor undertaking to send he goods for the consignee, the formers the agent of the latter and the Railway becomes the bailee of the person to whom the goods are sent. This view is supported by and carried out in, sections 90 and 91 of the Indian Contract Act. The peculiarity of this ease is that neither the consignee nor the agent Reoti Ram has given evidence, and the only terms of the contract in evidence are such as are to be gathered from the consignment note. But, assuming in favour of the plaintiff that he had the right to sue the Railway Company as bailees for failing to take reasonable care of the goods entrusted to them as carriers whereby a total loss has occurred, the first question which arises is, at what point does their obligation under such a contract of carriage cease, and have the defendants been guilty of any breach of duty within the period of their obligation?
11. The principles governing this question are contained in a clear statement by Chief Justice Cockburn m the course of the judgment in Chapman v. Great Western Railway Co. (1880) 5 Q.B.D. 27 : 49 L.J.Q.B. 420 : 42 L.T. 252 : 28 W.R. 566 : 44 J.P. 363. The contract of the carrier being not only to carry but also to deliver it follows that the custody of the goods as carrier must extend beyond the period of their transit. A reasonable time must be allowed for the exigencies of traffic and for the convenience of the consignee to whom delivery has to be made. And when the carrier is ready to deliver, the recipient is allowed a reasonable time and no more to take delivery. But he cannot, for his own convenience or by his own laches, extend the liability of the carrier beyond a reasonable time. In that case, the goods having arrived at their destination both on the 24th and on the 25th of the month, were destroyed by fire on the 27th on which date also at a later hoar the plaintiff, who was consignor, and consignee called for the goods. It was held that the liability of the company as carriers had ceased. This view of the case has been overlooked in the lower Appellate Court. No explanation of the delay between the unloading on the 13th May and the so called breach of duty on the 22nd May, was attempted by the plaintiff or required of the defendants. It is clear that the contract of carriage was over. To hold otherwise, would be to impose a wholly unreasonable burden upon curriers. The Railway Company might be responsible as ware houses, when a somewhat different set of considerations would arise, if any evidence had been led to show that such an arrangement was either expressly or impliedly made. The charge for demurrage does not necessarily give rise to such an implication, nor would any duty rest upon the company for breach of which they have been held liable by the lower Appellate Court until such an arrangement had begun.
12. Having regard to the absence of any attempt at the trial to prove delivery by the Rohilkhand and Kumaun Railway to the wrong person as alleged in an offensive letter written by Mulchand's Vakil on his instructions to the agent of the Rohlikhand and Kumaun Railway at Bareilly City on the 6th June 1918, the claim appears to be an attempt to obtain money from the Railway by a statement either wilfully untrue or made recklessly without any belief in its truth.
13. The appeal must be allowed and the suit dismissed with costs here and below.