1. This is a second appeal from the judgment and decree of the learned Additional Sub-ordinate Judge, A.V.D, dated 16th May 1945, by which he affirmed the judgment and decree of the Munsiff of Dibrugarh, dated 22nd December 1944, who had decreed the plaintiff's suit with costs.

2. The facts material to the appeal are these. On 22nd February 1943, the Assam Bengal Hosiery Mills booked a consignment of banians under parcel way bill No. 2905 at the Narainganj Ghat to be despatched to the consignee, the Oriental Knitting Factory, at Tinsukia. The consignment was accepted under the parcels consignment note of the India General Navigation and Railway Company, Limited, and the Rivers Steam Navigation Company, Limited, both incorporated in England. The consignment was valued at Rs. 678-12-0 and the freight payable on the consignment was Rs. 23-9-0. The consignment, however, never reached its destination, whereupon the plaintiff served a notice upon the defendant companies, in reply to which they denied their liability. As a result of this denial, Krishna Kanta Das, the proprietor of the Oriental Knitting Factory of Tinsukia, brought a suit against them for the recovery of a sum of rupees 800 as compensation for the loss suffered by the plaintiff on account of the non-delivery of the consignment. A joint written statement was filed by the defendant companies in which they alleged that they had made over the consignment at Chandpur to the nearest Railway Station on the B. & A. Railway in good condition under a clear receipt from the B. & A. Railway, and were therefore, not liable by reason of cl. 11 of the Parcels Consignment Note under which the contract for carriage was entered into. They pleaded that the B. & A. Railway was the proper party to be sued and that, as the plaintiff had failed to join the B. & A. Railway as a defendant, the suit was bad for multifariousness.

3. Upon the pleadings, the trial Court framed the following issues:

“1. Whether the suit is bad for non-joinder of the B. & A. Railway and for mis-joinder of causes of action?

2. Whether the defendants made over the consignment to the B. & A. Railway? If so, are they exonerated from liability under the contract of carriage, as alleged by them?

3. Whether defendants are liable to the claim? If so, to what extent?

4. Is the plaintiff entitled to any relief? If so, how much?”

4. On the first issue, the trial Court held that the suit was not bad for non-joinder of the B. & A. Railway, and on the second issue, it held the defendant liable for non-delivery of the consignment, and decreed the plaintiff's suit. The lower appellate Court agreed with the findings of the trial Court and affirmed its judgment and decree. The trial Court further held that the contract was an indivisible one, made with the defendants only, and relying upon the decisions of the Calcutta High Court in Narang Rai Agarwalla v. R.S.N Company, 34 Cal. 419 : (11 C.W.N 107) and Mangal Chandra Bagmal v. R.S.N Co. Ltd., A.I.R (15) 1928 Cal. 490 : (108 I.C 591), it came to the conclusion that the contract in suit was one indivisible contract, and that the B. & A. Railway was merely the defendants' agent. Commenting on the defendants' attempt to exonerate themselves from liability on the strength of cl. 11 of the Parcels Consignment Note, the trial Court stated in its judgment that in spite of a similar clause, it was held in Mangal Chandra Bagmal v. R.S.N Co. Ltd., A.I.R (15) 1928 Cal. 490 : (108 I.C 591) that usually the forwarding note and the bill of lading show but one indivisible contract; moreover, under Sections 6 and 8 of the Carriers Act, the liability can only be limited by a special contract signed by the consignor (and the consignee) — a fact which it held not proved. It took the view that mere insertion of a clause into a bill of lading or a note is not sufficient for the purposes of Ss. 6 and 8, relying upon two cases reported in Kant Shaw v. India General Steam Navigation Co., 10 Cal. 166 (FB) and Sheikh Mahomad Rowther v. British-India Steam Navigation Co. Ltd., 32 Mad. 95 : (1 I.C 977 FB). In this view, also, the lower appellate Court agreed with the trial Court.

5. We are unable to affirm the judgment and decree of the appellate Court. We think an entirely erroneous view has been taken by the Courts below of cl. 11 of the Parcels Consignment Note. The Parcels Consignment Note, which at the hearing was admitted by the learned advocate for the respondents to have been signed on behalf of the proprietor of the Assam Bengal Hosiery Mills, the consignor, purports to request the Agent of the Narayanganj Station of the defendant companies to accept the consignment for despatch by a passenger steamer and to forward it to Tinsukia Station on the B. & A. Railway and to deliver it there to the Oriental Knitting Factory, the consignee, carriage to be paid by the consignee. In the Parcels Consignment Note, it is stated that the consignor bad acquainted himself with the conditions printed on the back and agreed to be bound by them. The Parcels Consignment Note shows that freight was separately calculated, Rs. 18-14-0 being the charge due for transport on the transport system of the appellants, and Rs. 4-11-0 being the charge due for the transport of the consignment on the B. & A. Railway, to be paid by the consignee. Clause 11 of the Parcels Consignment Note signed by the consignor, reads as follows:

“The Company undertake to carry goods over their own transport system only. Where goods are accepted by the Company for carriage beyond their own transport system, and where goods are either wholly or partly carried by other carrying administrations, in the matter of carriage beyond the Company's own transport system, the Company act merely as agents for such other carrying administrations. The contract of carriage shall be deemed to hare been entered into between the consignor (and the consignee) on the one hand and the one or other of the various carrying administrations, including the Company, on the other hand, that may at any material time be in control or possession of the goods for carriage to destination and/or delivery to the consignee, and that any liability for loss, damage, destruction, partial or total, deterioration, detention and delivery of the goods shall solely rest on the respective carrying administrations in whose charge the goods may have been placed at the time such loss, damage, etc., is found to have arisen. In case of goods accepted by the Company for carriage beyond their own system of transport, the Consignor (and Consignee) shall be deemed to have agreed that the (Company?) has accepted such goods on the footing that the Consignor (and the Consignee) has entered into a series of contracts with the different carrying administrations, and that the Company will not be liable for any loss, damage, etc., which may happen when the transit over the Company's system of transport is over, and when the goods are not directly under their control.”

6. In our view, the correct interpretation of cl. 11 of the Parcels Consignment Note is that there were two contracts made between the consignor (and the consignee) on the one hand, and the defendant-appellants on the other. The first contract with reference to the carriage of the consignment over the transport system of the appellants was made between them as principals, and the second contract with the plaintiff was made by the defendant-appellants as agents of the B. & A. Railway for the carriage of the consignment over the transport system of the B. & A. Railway. The opening words of cl. 11 are very significant, namely; “The company undertake to carry goods over their own transport system only.” The plain meaning of these words is that the appellants, as common carriers, were carrying the consignment in question over their own transport system only. In the subsequent words of cl. 11, they make it plain that in so far as they were accepting the consignment for transport over the transport system belonging to any other common carrier, they were accepting it as the agents of that other common carrier,—in this case, the B. & A. Railway. The consignor (and the consignee) accepted this position of the appellants, and it is not disputed that the consignor (and the consignee) knew that the goods were being transported over the B. & A. Railway. The B. & A. Railway was disclosed in the consignment note as the principal, and the appellants were acting as the agents of a disclosed, principal. No allegation was made by the plaintiff that the appellants had falsely represented that they were the agents of the B. & A. Railway Company in the matter of the transport of the consignment over the B. & A. Railway. Section 230 of the Contract Act, says:

“In the absence of any contract to that effect, an agent cannot personally enforce contracts entered into by him on behalf of his principal, nor is he personally bound by them.”

7. Exceptions 1, 2 and 3 contained in para. 2 of S. 230 have no application to the facts before us. Moreover, in cl. 11 of the parcels consignment note, it is expressly stated that the consignor (and the consignee) must be deemed to have agreed that the company has accepted such goods on the footing that the consignor (and the consignee) has entered into a series of contracts with the different carrying administrations.

8. An analysis of cl. 11 of the parcels consignments note leads to these conclusions: (1) The appellants agreed to act as common carriers over their own transport system only; (2) beyond their own transport system, they agreed to transport the consignment as agents of the B. & A. Railway Company; (3) the contract in such, a case was to be treated not as one indivisible contract, but as a series of contracts. We cannot see then how it can possibly be urged that the contract as evidenced by the parcels consignment note is to be regarded as one indivisible contract. In this view, it is unnecessary to refer in any detail to the cases upon which the Courts below have relied. We will, however, point out the distinguishing features of those cases negativing their application to the facts of this case.

9. In the case reported in Dekhari Tea Co. Ltd. v. Assam Bengal Rly. Co. Ltd., 23 C.W.N 998 : A.I.R (7) 1920 Cal. 758), the facts were these: The plaintiff had delivered 343 chests of tea to the Assam Bengal Railway Co. Ltd. at Bordubi in Assam for transport to Chittagong and thence to England, the railway receipt being in the usual form used for land transport from Assam to Chittagong. There being a breach on the Assam Bengal Railway line goods delivered for transport from Assam to Chittagong had to be transported from Gauhati to Chandpur by river in steamers and fiats belonging to the River Company under some arrangement with the Assam Bengal Railway. The chests were put upon one of the fiats of the River Company at Gauhati for carriage to Chandpur and while the chests were on the flat, a fire broke out and destroyed 96 of the chests. It was held that there was no contract between the plaintiff and the River Transport Company and that under the circumstances, the Assam Bengal Railway Company bad no authority to act as agent of the River Company to enter into a contract for carriage on the latter's behalf. The decision, in our opinion, clearly rests on the finding that as the Assam Bengal Railway alone had contracted to act as common carrier for the entire journey by rail up to Chittagong, a diversion made by the B. & A. Railway in an emergency, presumably under an arrangement with the River Transport Company, would not entitle them to claim to be the agents of the River Transport Company. On this finding it was clearly a case of one indivisible contract.

10. In the case before us, the appellants did not act or purport to act as common carriers for the entire journey. They were common carriers aver their transport system only. Beyond their own transport system, they were acting only as the forwarding agents of the B. & A. Railway.

11. In the case reported in India General Navigation and Rly. Co. Ltd. v. Girdhari Lal Gohardhone Das, 31 C.W.N 358 : (A.I.R (14) 1927 Cal. 394), Duwal, J. observed:

“That when several carriers combine to handle through traffic of goods, whether one is an agent of another, is a question of fact. Such cases are governed by the rule of English law that the person liable is the person to whom goods were delivered, that the contract is not a divisible one, and that it is really a matter for jury to decide with whom the contract really was.”

12. Mitter, J. in the body of the judgment observed:

“The second point raised by the appellants is one of considerable difficulty. The argument for the appellants assumes that there are a series of contracts with different companies and there is not one contract with the Steam Navigation Company or Rivers Steam Navigation Company at Daulat Khan. This argument receives considerable support from the decision of Brett, J. in Norang Rai Agarwalla v. R.S.N Co., 34 Cal. 419 : (11 C.W.N 107) and Mitra and Caspersz, JJ. in Gokul Ch. Das v. I.G.S.N & Railway Co. Ltd., 11 C.W.N 1076, to this extent that so far as liability for any loss for the river portion of the journey is concerned, it is to be governed by the Carriers Act and liability for any loss arising in the journey by rail is to be determined by the Indian Railways Act. As to how far this view about the differentiation of liabilities is right, may be a matter open to question, and we find indications of a contrary opinion in an elaborate and learned judgment of the learned Chief Justice in the case of The Dekhari Tea Co. v. The Assam Bengal Rly Co. Ltd., 23 C.W.N 998 : (A.I.R (7) 1920 Cal. 758).”

13. In another passage, the learned Judge observed:

“Subject to any written documents, it is a question of fact for a jury to say whether there was one contract or more than one. The basis, however, of the above decisions is that it would be a strained and improbable inference to hold that a sender on an ordinary ‘through booking’ transaction enters into a series of contracts with carriers Nos. 1, 2 and 3 making each carrier except the last, his agent to make a further contract or treating him as the nest carrier's agent to a further contract with the sender. If it be said that though there is an entire contract with the first carrier for the whole journey, yet there may also be a contract with each of the other carriers for their own part of the transit, this no doubt is true. But as an inference it. Is still more elaborately improbable. It involves a contract and a parallel series of other contracts. This series has to be operated either by each carrier being treated as the sender's agent to contract with the next, which involves a doubtful scheme for the transmission of authority; or else by each carrier being treated as having made the previous one, etc., etc.”

14. We think the qualification contained in the words “subject to any written documents” is of considerable significance. We have before us a document called the parcels consignment note, which, as we have observed, when analysed, tends to indicate that there were two contracts, and not one indivisible contract. On the facts of this case, we are not obliged to draw any inference as to the existence of more than one contract; but indeed in this case it was expressly agreed between the parties that in so far as the appellants were forwarding the consignment to the B. & A. Railway, they were not acting or purporting to act as common carriers, but merely as forwarding agents of the B. & A. Railway.

15. It is true that in London and North-Western Railway Co. v. Richard Hudson, 1920 A.C 324 : (89 L.J K.B 323), it was stated:

“Whether in the absence of the terms of arrangement between the different carriers, it is impossible to infer that one is an agent of another may be a question open to doubt.”

16. But on the facts of this case, we think it is reasonable to suppose that the appellants must have had an arrangement with the B. & A. Railway, by which they were to act as forwarding agents for the B. & A. Railway. The appellants described themselves as such in cl. 11 of the parcels consignment note, and no attempt was ever made by the plaintiff to dispute the character in which the appellants were acting in the matter of the transport of the consignment over the B. & A. Railway. The appellants were, therefore, not called upon to prove their character as forwarding agents of the B. & A. Railway Company in the matter of the transport of this consignment over the latter's transport system. Their character as such forwarding agents was never put in issue.

17. In Mangal Chand Bagmall v. R.S.N Co. Ltd., A.I.R (15) 1928 Cal. 490 : (108 I.C 591), the facts were these: A consignment of 10 bags of T.B Nuts was despatched to the R.S.N Co., from the Hajigungeghat Steamer Station to Dibrugarh Bazar Station on the Dibru Sadia Railway; of this consignment only nine bags were delivered. In carrying the goods to their destination, the last part of the journey had to be performed by rail, the place of destination being a station on the Dibru-Sadia Railway. The defendants produced a clear receipt from the Railway Company. The Small Cause Court Judge dismissed the plaintiff's suit. In revision, Mukerji, J. observed:

“The forwarding note and the bill of lading show but one contract to carry the goods from Hajigungeghat to Dibrugarh Bazar. If this was the only contract between the parties, it is clear that the learned Munsiff's decision is wrong in view of the decisions in the cases of Dekhari Tea Co. v. Assam Bengal Railway Co. (23 C.W.N 998 : (A.I.R (7) 1920 Cal. 758) and India General Navigation & Railway Co. Ltd. v. Giridharilal Gobardhone Das, (31 C.W.N 358 : A.I.R (14) 1927 Cal. 394). On a perusal of the records after the arguments were over, I find that in point of fact the risk note in question has been duly proved in the case by certain witnesses examined on commission. It has been proved to refer to this particular consignment and to have been executed by the senders, Bansidhar Bajranglal, in favour of the Eastern Bengal Railway in respect of the carriage of the goods from Hajigungeghat Station to the Dibrugarh Bazar Station. This risk note suggests that the Steamer Companies were acting as agents for the Eastern Bengal Railway; in any event, there were two parallel contracts for the carriage of the same goods and for the same journey. Whether the risk-note is sufficient in the present case to absolve the railway company or not, is a question that need not be enquired into. It is sufficient to say that the suit could not under such circumstances be proceeded with in the absence of the railway company and that the plaintiffs cannot possibly recover from the Steamer Companies when they have been able to produce a clear receipt of the goods from the other.”

18. It seems to us that the Courts below were content with reading only para. 2 on the right hand column of S. 490 of the report and did not trouble to read the paragraph containing the reason of the decision, which in our opinion is clearly against the contention of the respondent in this case. There were undoubtedly two parallel contracts in this case before us for the carriage of the same goods and for the same journey, and we agree with the observation of Mukerji, J.:

“Whether the risk-note is sufficient in the present case to absolve the Railway Company or not is a question that need not be enquired into. It is sufficient to say that the suit could not under such circumstances be proceeded with in the absence of the Railway Company, and that the plaintiffs cannot possibly recover from the Steamer Companies when they have been able to produce a clear receipt of the goods from the other.”

19. That is precisely the case here. It is not disputed that the appellants have a clear receipt from the B. & A. Railway, and that the B. & A, Railway has not been sued. In the case before Mukerji, J., the risk-note merely suggested that the Steamer Companies were acting ass agents for the Eastern Bengal Railway. In the parcels consignment note before us it is expressly stated that the appellants were acting as the agents of the B. & A. Railway—a position never disputed by the plaintiff.

20. Both the Courts below have proceeded on the assumption that cl. 11 of the parcels consignment note contains a provision limiting the liability of the appellants. We do not think any question of the appellants limiting their liability arises in this case; nor have Sections 6 and 8 of the Common Carriers Act, any application. The appellants are not seeking to limit their liability by a special contract. Their case is that the contract as evidenced by the parcels consignment note is a divisible contract into two contracts, each made by them in a different character. In this connection, it is pertinent to refer to the following observations of Lord Shaw in the Indian General Navigation and Railway Co. Ltd. v. The Dekhari Tea Co. Ltd., 23 C.W.N 302 at p. 306 : (A.I.R (11) 1924 P.C 40):

“What is required in the case of a person who answers the definition under the Indian Carriers Act, viz., of transporting for hire goods from place to place for all persons indiscriminately, is that the nature or the contract entered into must either have the limitation of the liability under the Indian Carriers Act made expressly and in writing or the facts must be such that for the contract in question the contractor was departing from his usual business and engaging in a different type of business from that of common carrier.”

21. It is plain to us that on the facts of this case, the appellants, in so far as the transport of the consignment over the B. & A. Railway was concerned, had ceased to be common carriers and were engaged in a different type of business from that of a common carrier. They were common carriers over their own transport system only; they did not act, nor purport to act, as common carriers of this consignment over the B. & A. Railway; they merely acted as the forwarding agents of that Railway. We would accordingly set aside the judgment and decree of the lower appellate Court and allow this appeal with costs throughout.

22. Appeal allowed.