Lort-Williams, J.:— On March 17, 1927, the plaintiffs delivered to the Eastern Bengal Railway administration certain goods for carriage from Poradah Junction to Cossipore Road. Part of the goods were destroyed by fire on March 21, 1927, owing, as the plaintiffs allege, to the misconduct of the servants of the railway administration, the rest were delivered on March 22, 1937.

The plaintiffs, on the last date, gave notice in writing of their claim for compensation to the railway administration, and on May 20, 1927, to the defendant and demanded payment. They gave also the notice required by s. 80 of the Code of Civil Procedure.

It is the defendant's contention on this summons that: the leave already given under cl. 12 of the Letters Patent ought to be revoked, and that the plaint ought to be struck out, on the grounds:—

(i) That the Court has no jurisdiction to try the suit, because

(a) the defendant does not carry on business within the jurisdiction, and

(b) no part of the cause of action arose within such jurisdiction, and

(ii) That Art. 30 of the Limitation Act applies, and the suit is barred.

On the first point I have been referred to the case of Doya Narain Tewary v. Secretary of State for India in Council. In my opinion that case has no application to the facts of the present case.

In that case the plaintiff sued the defendant for money due to him for stores for the second Kabul Campaign purchased by him as agent for the defendant. The suit was barred by limitation. It was alleged that the defendant carried on business in Calcutta because the Government sold jail produce and opium there, and charged for advertisements in the Gazette of the Government of India, and took receipts there from the Eastern Bengal State Railway, and because the Capital and chief seat of the Government was in Calcutta.

The ratio decidendi was that the Secretary of State was not a body corporate but could be sued as such, and was a “mere name” used for the purpose of prosecuting a suit against the Government, that the words “carry on business” do not refer to an institution like the Government of India, and that the business of governing the country is not “business” within the meaning of cl. 12. Further that the trades referred to could not properly be called trades, but were carried on by the Government for the benefit of the Indian Exchequer. In view of the fact that the suit was barred by limitation, these reasons, in any case, were in the nature of obiter dicta.

In Rodricks v. Secretary of State for India, Chaudhuri, J. considered that Boy a Narain Tewary's case (supra) was an authority for the proposition that the Secretary of State could not be sued in Calcutta on the sole ground that he carried on business there, and that he was bound by that decision though he disagreed with it. He referred with approval to the directly opposite view taken on similar facts by Pigot, J. in Biprodas Dey v. Secretary of State for India in Council.

On appeal Jenkins, C.J held that Boy a Narain Twary's case (supra) was an authority for the proposition stated by Chaudhuri, J. and ought to be followed, in view of the fact that it had long been accepted as a governing authority.

A similar view was taken by C.C Ghose, J. in Baijnath Kamani v. Secretary of State for India in Council, but the report does not state that were the facts in that case.

The general effect of these decisions at first sight might appear to be that, under no circumstances can the Secretary of State be sued in Calcutta on the sole ground that he carries on business there. This, in my opinion, cannot have been the intention of the learned Judges who gave those decisions. It is useful in this connection to recall the memorable words of Lord Halsbury in Quinn v. Leathem:—

Every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found……A case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law, is not always logical at all.

Whether the Secretary of State carries on business in Calcutta or not is a question of fact, or of mixed fact and law.

The facts existing in 1930 may be and probably are completely different from those which existed in 1886. Since that date the Indian Railways Act, 1890, and the Railway Board Act, 1905, have been passed. The; business of the railways has changed and has increased enormously in the interval. It is nonsense to suggest nowadays that they are kept up solely for the purposes of Government. The fact that a business of carriage by railway is being carried on in India by some one is notorious. The fact that such a business called the Eastern Bengal Railway is being carried on in Bengal and that its head office is, situated at 3, Kaila Ghat Street in Calcutta is Admitted. That such a business is a “business” within the meaning of cl. 12 of the Letters Patent cannot be denied. It is the same kind of business as that carried on by railway companies in India, which clearly come within the provision. It must be equally obvious that the proprietors of such a business “carry on” their business, amongst other places, at their head office, where the general business of the undertaking is transacted, and where the manager is to be found, or, as was said by Chaudhuri, J., where the “brain” lies. The question to be decided is, who carries on this business.

In India certain railway carriage businesses are, carried on, either as owners or lessees, by railway companies, whilst others, of which the Eastern Bengal Railway is one, belong to Government and are administered by them. Section 3(6) of the Indian Railways Act provides that “railway administration” or “administration” in the case of a railway administered by the Government means the manager of the railway and includes the Government.

In the Eastern Bengal Railway there is no officer called the “Manager”, but the Chief Managing Officer is called the “Agent”, and it is to this Officer that notice under s. 77 must be given [Kala Chand Shaha v. Secretary of State for India] at the head office in Calcutta. It follow that it is the Government who carry on the business of railway carriage under the name of the Eastern Bengal Railway amongst other places, at the head office in Calcutta.

If this business had been owned and carried on by a railway company, or other corporate body, or by a body of individuals unincorporated, or by an individual, I do not think that it could be argued reasonably that they were not “carrying on business” within the meaning of cl. 12.

Similarly, if the East India Company had not been superseded by the Government of India, trade carried on by the Company was transferred to the Government and carried on subsequently by them. Section 32 of the Government of India Act, 1915 (5 & 6 Geo. V., c. 6) provides:—

(1) The Secretary of State in Council may sue and be sued by the name of the Secretary of State in Council as a body corporate.

(2) Every person shall have the same remedies against the Secretary of State in Council as he might have had against the East India Company if the Government of India Act, 1858, and this Act had not been passed.

It is sufficiently clear from the foregoing that one remedy, which a person might have had against the East India Company on the hypothesis stated and in the circumstances of the present case, would have been a suit against the company in the High Court at Calcutta.

I am satisfied, therefore, that the plaintiffs have a similar right of suit against the defendant.

Whether the latter be in fact a body corporate and, therefore, a legal “person” or not, seems to me immaterial, because s. 32 provides that, for the purposes of suits, he may be regarded as if he were.

To hold the contrary would not only entail great inconvenience to the mercantile community, but manifestly would be absurd, as it would result in both parties being banished to a mofussil Court, when the facts are that the plaintiffs carry on their business in Calcutta, and the Agent of the railway and the head office of the administration to which all claims must be sent are in Calcutta also.

On the second point, I am of opinion that the cause of action arose partly in Calcutta.

“Cause of action” means every fact which it would be necessary for the plaintiff to prove in order to support his right to the judgment of the Court. “The entire set of facts that gives rise to an enforceable claim”. “Everything which, if not proved, gives the defendant an immediate right to judgment”.

Read v. Brown; Cooke v. Gill; Kellie v. Fraser. and Dhandhania & Co. v. Engineering Supplies, Ltd. in which the question was fully considered and discussed by me.

Section 77 of the Indian Railways Act provides that a person shall not be entitled to compensation for loss, unless his claim has been preferred in writing to the railway administration within six months from the date of the delivery for carriage by railway. That is to say, the claim in the present case must have been preferred in writing to the agent at the head office in Calcutta.

In the absence of such a claim, the plaintiffs would have no right to compensation. Consequently, it is a fact which it is necessary to prove as stated above, and is part of the cause of action.

On the third point, I am of opinion that Art. 30 of the Limitation Act does not apply, but that Art. 115 is the appropriate Article.

Article 30 applies to “carriers”. This word is wide enough to cover private carriers as well as common carriers, though the shortness of the period of limitation seems to indicate that the legislature intended it as some sort of compensation for those upon whom the law imposes the onerous responsibilities of common carriers, by means of protecting them from the difficulties of investigating state claims. Chiranjilal Ramlal v. B.N Ry. Co., Ld., Ld..

The definition of common carrier in Macnamara on Carrier by Land, 2nd Ed. at p. 11 is,—

A common carrier is a person who undertakes for hire to transport from a place within the realm to a place within or without the realm the goods or money of all such persons as think fit to employ him. To render a person liable as a common carrier he must exercise the business of carrying as a public employment, and must undertake to carry goods for all persons indiscriminately and hold himself out, either expressly or by course of conduct as ready to engage in the transportation of goods for hire as a business, not merely as a casual occupation pro hac vice.

A private carrier, which term includes every person carrying for hire who is not a common carrier, is defined to be a person whose trade is not that of conveying goods from one person or place to another, but who undertakes upon occasion to carry the goods of another, and receives a reward for so doing (Ibid. p. 6). There is no other class of carriers besides common carriers and private carriers. Watkins v. Cottell.

And it is obvious from the above definition that a railway administration is not a private carrier.

The law relating to common carriers in India has been codified, and is contained in the Carriers Act, 1865.

But curiously enough s. 2 of that Act defines “common carrier” as a person other than the Government engaged in the business of transporting for hire property from place to place, by land or inland navigation for all persons indiscriminately, and “persons” includes any association or body of persons whether incorporated or not. While s. 72 of the Indian Railways Act, 1890, provides that the responsibility of a railway administration for loss, etc., shall be that of a bailee under ss. 151, 152 and 161 of the Indian Contract Act, 1872, and shall not be affected by anything in the Common Law of England or in the Carriers Act, 1865, regarding the responsibility of common carriers.

It can hardly have been intended that a railway administration to the Government should be absolved from the onerous responsibilities of common carriers, and at the same time have the benefit of the short period of limitation expressly provided by Art. 30 for traders, who are burthened by the law with such Obligations. Apart from these considerations, it is arguable that Art. 49, which refers to specific moveable property which has been wrongfully injured, applies to the facts stated in the plaint and where two Articles of the Limitation Act apply, the plaintiff is entitled to avail himself of the longer period: Tofa Lal Das v. Syed Moinuddin Mirza.

However, it is not necessary for me to decide that point, because I have come to the conclusion that Art. 115 is the most appropriate to the facts of this case.

For the reasons stated, this application is dismissed, with costs.

Attorney for the petitioner: S.S Hodson.

Attorney for opposite party: N.C Seal.

Application dismissed.

G.K.D