1. This is a petition under Section 25 of the Provincial Small Cause Courts Act, seeking to revise the judgment of the learned Small Cause Court Judge, Puri, dismissing the plaintiff's suit. The plaintiffs sued the Union of India representing the Bengal Nagpur Railway Administration for the recovery of the sum of Rs. 301-4-0 for loss caused to them by the leakage of spindle oil, in the course of its transit over the Bengal Nagpur Railway. The admitted facts are that twentynve drums of spindle oil were despatched to Puri from Calcutta on 2-5-49 by Messrs G.D Daga & Co., under R.R No. 16402 of that date. The consignment was addressed to self. The consignor executed Risk Notes A and B (Exts. A and A-1) when the consignment was handed over at Kidderpore Docks for transmission to Puri. When delivery of the consignment was taken at Puri by plaintiff 2, two of the drums were found burst on the sides while two others were found burst on the top, the total shortage of oil in all the drums amounting to 5 maunds 33 seers. The plaintiffs, therefore, seek to recover from the defendant-railway damage for Rs. 301-4-0 for loss caused to them on account of this shortage. Two contentions were put forward by the defendant-railway administration. Firstly that the consignment was defectively packed and Risk Notes A and B were executed by the consignor, which absolved the railway administration of all liability for loss or damage due to leakage or wastage in transit. Secondly, that the plaintiffs were neither the consignees nor endorsees of the railway receipt under which the consignment was booked and had, therefore, no cause of action against the defendant. Both the contentions were upheld by the Trial Court and the plaintiffs' suit was accordingly dismissed.

2. Risk Note A is used when a consignment is tendered for carriage in a bad condition, which is so defectively packed as to be liable to damage, leakage, or wastage in transit. That note is in the following terms:

“Whereas the consignment which has been tendered by me as per forwarding No. …. of date …… for despatch by the B.N.R Administration to Puri Station under railway receipt No. …. of date ……… is in a bad condition and liable to damage, leakage, or wastage in transit, the undersigned, do hereby agree and undertake to hold the said railway administration, over whose railway the said goods may be carried in transit from …… station to …… station, free of all responsibility for the condition in which the aforesaid goods may be delivered to the consignee at destination, and for any loss arising from the same, except upon proof that such loss arose from misconduct on the part of the Railway Administration's Servants”.

3. Execution of Risk Note A by the consignor would, therefore, give rise to a presumption that the consignment tendered for carriage was either already in a bad condition or was so defectively packed as to be liable to damage, leakage, or wastage, in transit. It is not open to the consignee to urge that the packing was such that it was not liable to damage leakage, or wastage, and there is a presumption that it is in consideration of the bad condition of the consignment that the consignor executed Risk Note A, agreeing not to hold the railway administration liable for any loss or damage during transit, except upon proof that such loss arose from misconduct on the part of the railway administration's servants. The plaintiff's cannot therefore succeed in the suit unless they established that the loss complained of was attributable to misconduct on the part of the servants of the railway administration in question, and mat, the loss was not due to defective packing of the consignment. It is no answer to the ex-press undertaking given by the plaintiffs, in terms of risk nose A, to say that it is difficult for them to prove misconduct on the part of the railways, staff. The risk note in this case, moreover, show that the drums at the time of presentation for despatch at Calcutta were dented and liable to damage in transit. The railway receipt also shows that a note was made thereon to the effect that the drums are dented and liable to damage, leauage or wastage in transit. It is, therefore, ??? on the part of the plaintiffs to put forward the plea that the loss occasioned by the leakage was not due to the bad condition of the drums and that the railway administration should be held responsible for it.

4. The consignor also executed Risk Note E and paid a specially reduced rate. Risk Note B is in me following terms:

“Whereas the consignment of twenty-five drums tendered by me as per forwarding order No. 607 of date……for despatch is…charged at specially reduced rates, instead of at the ordinary train rate chargeable for such consignment, I the undersigned, do, in consideration of such, lower charge, agree and undertake to hold the said railway administration harmless and free of all responsibility for any loss, destruction, deterioration or damage to the said consignment from any cause whatever, except upon proof that such lets, destruction, deterioration, or damage arose from the misconduct on the part of she railway administration or its servants.”

5. To this undertaking there is a proviso which says, that in case of non-delivery of the whole or part of a consignment which is packed in accordance with the instructions laid down in the tariff, or protected otherwise than by paper or packing removeable by hand and fully addressed, where such non-delivery is not due to accidents to trains, or to fire, or there has been pilferage from a package……properly packed……when such pilferage is pointed out to the servants of the railway administration on or before delivery, the railway administration shall be bound to disclose to the consignor how the consignment was dealt with throughout, the time it was in its possession or control, if is clear, therefore, from this proviso that only in cases of non-delivery or pilferage, and that, too of consignments that have been satisfactorily packed, is the railway administration bound to disclose and give evidence as to how the consignment was dealt with during the time when it was in its? possession, before the consignee is called upon to prove misconduct. It is not the plaintiffs' case that there was any pilferage or non-delivery and the railway administration is not, therefore, called upon to prove what course the consignment took during the period it remained in the custody of the railway administration. The plaintiffs have, not attempted to establish that the loss caused was due to any misconduct on the part of the servants of the railway administration. In these circumstances, and having regard to the fact that the consignor executed Risk Notes A and B, that the existence of dents in the drums was noticed and, noted on the railway receipt at the time the consignment was handed over for carriage over the Bengal Nagpur Railway, the defendant cannot be held ??? for the loss, if any, caused to the consignee curing transit.

6. The second point raised on behalf of the defendant-railway administration is that the plaintiffs have no ‘locus standi’ to file the suit and that it is not maintainable at their instance. The Railway Receipt (Ext. 4) shows that the consignment was despatched to “Self”. There is no endorsement of the railway receipt by the consignor in favour of the plaintiffs. Mr. Sen, learned counsel for the plaintiff-petitioners, urges that, as the plaintiffs indented the spindle oil consigned under this Railway Receipt, the property in the goods consigned must be deemed to have passed to them, and that consequently they are entitled to sue the railway for damages for loss. It is difficult to accede to this contention, because apart from the absence of any endorsement in favour of the plaintiffs on Ext. 4, there is no proof that the plaintiffs have otherwise acquired the right to property in the goods consigned. If, for instance, it had been established that the railway receipt was sent to the plaintiffs per V.P.P and that the plaintiffs paid for the consignment while taking delivery of the V.P.P it may be arguable that the property released by the railway belonged to them. All that has been proved in this case is that the plaintiffs took delivery of the consignment from the defendant, after tendering the railway receipt. The plaintiffs contend that as the railway delivered the consignment to them, on its arrival at Puri, it would lead to a presumption that the railway administration recognised the plaintiffs as the purchasers of the same or as the owners thereof. It is difficult to accept this argument. A reference to Ext. 4, the railway receipt in question, shows that on the back of that receipt there is a memorandum entitled “Notice to Consignors” in which certain conditions are printed in the following terms:

“The Bengal Nagpur Railway hereby gives public notice……….

(3) That the railway receipt given by the railway for the articles delivered for conveyance must be given up at destination by the consignee, or the railway may refuse to deliver, and that the signature of the consignee or his agent in the delivery book at destination shall be evidence of complete delivery; if the consignee himself does not attend to take delivery he must endorse on the receipt a request for delivery to the person to whom he wishes it to be made; and if the receipt is not produced the delivery of the goods may, at the discretion of the railway, be withheld until the person entitled in its opinion to receive them has given an indemnity to the satisfaction of the railway.”

7. The first part of this rule is intended to protect the railway administration against wrong delivery and the rule says that once the receipt is delivered tip by the consignee and his or his agent's signature taken on the delivery book, the delivery shall be complete; and once such delivery is made the consignee cannot thereafter complain of non-delivery and hold the railway administration responsible. The second part of the rule requires that the consignee should endorse a request on the receipt for delivery to the person to whom he wishes it to be made, and the option is left to the railway either to deliver the same to such person, or to require an indemnity to the satisfaction of the administration. In this case, I am satisfied that when the plaintiffs took delivery of the consignment at Puri on production of the railway receipt they did so, neither in their own right as owners of the consignment nor in their own right as consignees thereof. They did so on behalf of the consignees, the consignee in this case being the consignor himself, there is nothing to point to the fact that they claimed the consignment in their own right as consignees or as endorsees of the receipt by the consignees. Nor can the mere fact that they indented for the oil consigned by itself support an inference that they should deemed to be the owners of the consignment. Also from the mere fact that the railway delivered up the consignment to the plaintiffs on production of the receipt, no inference is possible that the railway administration recognised them as owners of the consignment, so as to entitle them to sue the railway for damages. The language of condition 3 shows that the option lay with the railway administration to refuse delivery to the plaintiffs if they so chose but at the same time there is no obligation on its part to refuse delivery unless the consignee himself appears. Once the railway receipt is presented and the consignment is delivered the delivery shall be regarded as complete. It is well established that the only person entitled to take delivery is either the consignee or anyone else to whom the receipt is endorsed. This has been laid down in ‘Mercantile Bank of India v. The Central Bank of India Ltd.’, AIR (25) 1938 PC 52 where their Lordships of the Judicial Committee observed:

“Merchants were entitled to obtain delivery of goods under the railway receipts either because they were named as consignees, or because, if they were not so named, the document had been endorsed by the named consignee”.

8. In an earlier case arising out of certain frauds committed by one C.K Narayanaswamy & Sons, reported in ‘Official Assignee Madras v. Mercantile Bank of India Ltd.’, AIR (21) 1934 PC 246 the Privy Council had occasion to consider the effect of Condition 3 mentioned on the reverse of the Railway Receipt and they observed that Condition 3 recognised a practice of allowing delivery without production of the receipt, analogous to that often followed in cases of bills of lading, whereby payment is made on an indemnity if such bills are not forthcoming. In this case, the firm of Narayanaswamy & Sons used to pledge the receipts with the Mercantile Bank duly endorsee in blank, with a letter of hypothecation and a promissory note. But in order to enable the pledgees to obtain delivery the practice followed was to hand them over to the representative of the pledgor, namely, Messrs C.K Narayanaswamy Iyer & Sons who paid freight and unloaded the goods from the railway wagons. In such cases the property did not vest in the pledger who produced the receipt for obtaining delivery of the goods from the railway but in the pledgee on the endorsement of the railway receipt. It is always open to the railway to refuse delivery unless the railway receipt is produced; and once it is produced and delivery is made the responsibility of the railway comes to an end. The rule means no more than that. It is not correct to say that whenever a railway delivers up a consignment to the person who produces the railway receipt, there is a presumption that the person who takes delivery does so as the owner of the goods, or that it amounts to a recognition by the railway that he is the owner and that the property in the goods vests in him so as to entitle him to sue the railway administration for loss during transit. It follows that the only person entitled to sue for damages is the consignee or the person to whom the receipt is endorsed. This is also the view taken by the Patna High Court in the case of ‘Sree Ramkrishna Mills Ltd. v. Governor General in Council’, AIR (32) 1945 Pat 387 and in the later case of ‘Governor General in Council v. Joynarain’, AIR (35) 1948 Pat 36 wherein Meredith J., observed that where the goods are sent by the railway, the consignment being made to self, the property in the goods does not pass to the buyer as it is open to the seller to reserve the right of disposal of the goods until certain conditions are fulfilled. Such cases are governed by Section 25(1) of the Sale of Goods Act which lays down that notwithstanding the delivery of the goods to a buyer or to a carrier, or other bailee for purposes of transmission to the buyer, the property in the goods does not pass to the buyer until the conditions imposed on the buyer are fulfilled. The mere fact of delivery of the consignment to the buyer by the railway is not sufficient to create in him a right to the goods consigned. In such cases it cannot be said that the seller was acting as the buyer's agent when he entered into a contract with the railway administration. The plaintiffs, accordingly, cannot be said to have had any contract with the railway administration at all, and the only contract that the railway administration is bound by is the contract entered into by it with the consignor. The converse of this proposition is illustrated by the case of ‘Daulat Ram v. B.B & C.I Rly. Co., 38 Bom 659 Where it held that a railway receipt is a mercantile document and its endorsement creates sufficient interest in the endorsee to entitle him to maintain an action for damages. In the case reported in ‘M. & S.M Rly. Co. v. Rangaswami’, AIR (11) 1924 Mad 517 Philips J., held that the consignee alone can sue for loss caused by non-delivery after the goods have been placed with the railway administration for transmission. The decision in 38 Bom 659 was followed in Allahabad in the case of ‘Firm Pearilal Gopinath v. E.I Rly. Co.’, AIR (11) 1924 All 574. I would therefore hold that the plaintiffs not having established that they were entitled to the consignment in question, either as consignees or endorsees of the railway receipt, are not entitled to maintain an action against the defendant railway administration for loss, if any, caused by leakage, or wastage during transit. The contention of the defendant that the plaintiffs have no locus standi, to file the suit must accordingly be upheld. In the result, the judgment of the learned Small Cause Court Judge directing the dismissal of the plaintiffs' suit is affirmed and this revision is dismissed with costs. Hearing fee in this Court is one Gold Mohur.

D.R.R

9. Revision dismissed.