JUDGMENT

SARYASACHI MUKHARJI, J. :—M/s. M. G. Brothers Lorry Service, the appellant is a firm, which carried on at the relevant time transport business and on the 1st of May, 1969 under a Way Bill, the plaintiff firm, M/s. Prasad Textiles, the respondent herein had consigned one bale of yarn worth about Rs. 5,000/- from their head office at Guntur to Vijayawada, at which place there was a branch office consigned "to self". The Way Bill and the invoice were in the usual course delivered to the State Bank of India with the instructions to deliver the same to the plaintiff-respondent M/s. Prasad Textiles at Vijayawada. It appears that the defendant-appellant M/s. M. G. Brothers Lorry Service failed to deliver the said goods to the respondent-plaintiff at Vijayawada. The appellants case was that the said, goods had actually arrived at Vijayawada on the very next day the same were, however, not taken delivery of at Vijayawada for some time and that between 16th and 20th of May, 1969 there was a cyclone at Vijaywada as a result of which the said goods were damaged in their godown and when the said goods were opened on 20th May, 1969 in the presence of the representative of the appellant at Vijayawada, that the damage was discovered.

2. On 20th June, 1969, the plaintiff firm gave a notice of claim to the defendant firm and thereafter instituted six suits for recovery of various sums of money as claims on the ground that the plaintiff had entrusted the said consignment to the lorry service of the defendant firm to be delivered at Vijayawada and they had failed to do so and hence the plaintiff was obliged to file those suits. All these suits were tried together by the learned trial Judge on the ground that common issues arose in each of those suits and the question to be considered was the same. The lower Court gave a common finding. We are not concerned, in view of the points arising in these appeals before us, to consider all the points. For our purposes it is sufficient to note that the trial Court held that the defendant being the appellant before us had failed to prove that the non-delivery of the six consignments was not due to the negligence of the defendant or his men and the defendant was liable for the damages of Rs. 2,200/- in each of the suits towards the value of the consignment which was not delivered by the defendant and it was also held that the plaintiff would be entitled to claim interest on the amount so decreed. The trial Court, however, ultimately held that the suits were barred by virtue of Condition 15 of the Way Bill. The goods were consigned under terms and conditions mentioned in the Way Bill. Thereafter, all the suits were dismissed.

3. Being aggrieved by the said decision, the defendant went up in appeal before the Court of Subordinate Judge, Vijayawada. The only point which is material for us to note is that the contention was that the consignment was accepted for transport by the appellant herein which was defendant in the original suit, at Guntur subject to special, conditions printed on the reverse of the Way Bill.

4. Condition 15 which is material for our purpose is as follows :

"No suit shall lie against the firm in respect of any consignment without a claim made in writing in that behalf and preferred within thirty days from the date of booking or from the date of arrival at the destination by the party concerned."

5. The trial Courts dismissal of the Plaintiffs quits on the ground that these wire barred because of Condition 15 was confirmsed by the lower appellate Court. There was second appeal to the High Court before a learned, single Judge of the High Court of Andhra, Pradesh, Hyderabad. The High Court held that if Condition 15 of the Way Bill was given effect to it would clearly defeat the provisions of Section 10 of the Carriers Act and as such would be void. It, therefore, allowed the appeal.

6. Thereafter the question arose as to whether further appeal would lie from the decision of a single Judge o