Das, J.:— This appeal arises out of a suit instituted by the respondents for recovery of a sum of Rs. 513 from the defendants. The claim has been allowed by both the Courts below.
The facts of the case are these. On the 26th of September, 1918, Sadaram Kishun Dayal, a firm carrying on business in Calcutta, made over a consignment of 450 bags of salt at Sulkea to the defendant Company for carriage of the same to Giridih. The Railway Receipt No. 79164 was made out in the name of Kishun Dayal. It appears that Sadar Ram Kishun Dayal sold the goods to the plaintiffs and made over the Railway Receipt to the plaintiffs; but it also appears that the Railway Receipt was lost. The goods actually arrived in Giridih on the 3rd October, 1918. The plaintiffs, on getting information of the arrival of the goods on the 5th October, 1918, applied for delivery of the goods to them and offered to execute a bond of indemnity in favour of the Railway Company. The Station Master of Giridih, however, refused to deliver the goods to the plaintiffs pending an enquiry by the Railway Administration as to the claim of the plaintiffs. The Railway Administration was subsequently satisfied as to the bonâ fides of the claim of the plaintiffs, and on the 19th October, 1918, made over the goods to the plaintiffs on payment of Rs. 513 by the plaintiffs as demurrage. The plaintiffs say that the Railway Company was not entitled to charge the demurrage from them. The Courts below, agreeing with the contention put forward on behalf of the plaintiffs have allowed the claim in full as against the Railway Company.
Section 57 of Act IX of 1890 appears to be the relevant section. That section provides, (omitting all immaterial matters)
Where receipt given for the goods is not forthcoming the Railway Administration may withhold delivery of the goods until the person entitled in his opinion to receive them has given an indemnity to the satisfaction of the Railway Administration against the claims of any other person with respect to the goods.
Now Railway Administration has been defined to mean the Railway Company. Mr. Sushil Madhab Mullick's argument is, that the Station Master was incompetent to accept the indemnity offered by the plaintiffs and that he was bound to refer the matter to the Railway Administration, in other words to the Railway Company, which, in this particular case, under the rules framed under the Act, would be the Divisional Traffic Manager. There is no doubt that under the various rules that have been framed under this Act the Station Master was incompetent to make over the good to the plaintiff, inasmuch as they did not produce the Railway Receipt to the Station Master, and it may be that the time taken by the Railway Administration in holding the enquiry into the claim of the plaintiffs was a perfectly reasonable one in the circumstances of the case. The question still remains whether the Railway Administration was entitled to charge demurrage from the plaintiffs for the time occupied by it in making a proper enquiry into the plaintiff's claim.
Under the Rules framed by the Governor-General in Council under the provisions of the Act a wharfage charge may be levied in respect of all goods not removed from Railway premises before closing time of the day following that on which they are made available for delivery; and demurrage at a particular rate may be charged on all loaded vehicles requiring to be discharged by owners which are not discharged after the expiry of nine hours of day light from the time of being placed in position for unloading.
The question which we have to determine in this case is when were the goods made available for delivery, and whether the owners were required to discharge the goods at any time prior to the 19th October, 1918. In my opinion the goods were not available for delivery until the 19th October, 1918. The proper person had applied for delivery of the goods so far back as the 5th October, 1918. It is quite true that proper person did not produce the Railway Receipt and that the Railway Administration was entitled to make an enquiry into the bonâ fides of the claim made by the plaintiffs. But the result of that enquiry was entirely satisfactory to the claim of the plaintiffs. It must follow, therefore, that the proper person had applied for delivery of the goods on the 5th October, 1918, and that the Railway Administration refused to deliver the goods to that person pending the result of the enquiry made by it in other words, according to the view taken by the Railway Administration itself, the goods were not available for delivery until they were satisfied as to the bonâ fides of the claim put forward on behalf of the plaintiffs.
On the question of demurrage they were not required to discharge the goods until the Railway Administration was satisfied that they were the owners and ought to discharge the goods. In my opinion the view taken by the Courts below is entirely correct.
The case referred to by the Court of first instance, the case of the B.B.C.I Ry. Co. v. Jacob Elias Sassoon, entirely supports the case of the plaintiffs. Mr. Sushil Madhnb Mullick argues before us that case was wrongly decided. Well, we are not prepared to dissent from the view taken by Mr. Justice Parsons in that case. We must accordingly dismiss this appeal with costs.
A question was raised by Mr. Sushil Madhab Mullick as to whether the Railway Company are entitled to reasonable warehouse rent for the time the goods remained with them. This claim has never been put forward on behalf of the Railway Administration and we cannot adjudicate on it in this Court in second appeal when the facts are not before us. If they are entitled to any reasonable warehouse rent they are entitled to enforce that claim in a properly constituted suit against the plaintiffs. We cannot entertain the claim in this appeal.
Adami, J.:— I agree.
Appeal dismissed.