SYED M.FAZAL ALI, J.

(1) THIS is a defendants appeal by special leave against the judgment and decree of the High court of Bombay dismissing its second appeal in limine by its order dated 24/08/1967.

(2) THE appeal raises important and interesting questions of law relating to the interpretation of some of the provisions of the Indian Railways Act pertaining to the hability of the railways for breach of contract. The pliaintiff/respondent brought a suit for recovery of an amount of Rs. 2,378.00 65 np. being: the damages for breach of contract resulting from delayed delivery of the goods consigned by the plaintiff through the defendant railways to be delivered at Poona. The plainliff which is a firm carrying on its business dealing in iron goods booked a consignment with the defendant on 15/12/1961 at Bhillai to be carried to Poona and to be delivered therein to the consignce safely and in good condition. The defendant railways accepted the offer under a railway receipt dated 1/12/1961. It appears that there was some delay in the delivery of the goods at Poona and on enquiries made by the plaintiff it appeared that till 9/05/1962 the goods had not been delivered at all. Thereafter the plaintiff served a notice of claim and of suit dated 9/05/1962 on the railway administration. Soon after the service of the notice the consigrnment was delivered on 21/07/1962. According to the plaintiff under the contract or the usage of the railways the normal period of delivery was ten days and as the defeendant had committed an inordinate delay in delivering the goods it was liable to pay damages to the piaintiff. The plaintiff, however, calculated the damages by way of interest at the rate of 12 per annum on the locked up capital of Rs. 27,332.44 which due to rise in prices has swelled to Rs. 35,476.27 np. The plaintiff further alleged that the delay in the delivery was due to gross negligence of the defendent railways which instead of sending the goods direct from Bhillai to Poona diverted them to Aurangabad where the consignment had to be loaded. in the metregauge train and then to a broadgauge line and it was only after the defendant received the notice from the plaintiff that it expedited dited the delivery of the goods. The defendant railways contested the suit on the ground that there was no inordinate delay, nor there was any contract that the goods were to be delivered within ten days. It is also averred that the plaintiff had led no evidence to show that there was any loss of profits or rise in the market price. The defendant further alleged that the plaintiff was not entitled to claim interest as damages. The trial court accepted the plaintiffs case in toto and found:

(1) That there was an inordinate delay in the delivery of the goods belonging to the plaintiff at Poona.

(2) That the goods were first diverted to Aurangabad, although the route from Bhillai to Poona lay via Nagpur and Aurangabad does not fall on the route at all; and

(3) That the defendant was guilty of gross negligence and was, there fore, responsible for loss for delay or deviation in carrying the goods.

The trial court, however, found that the figure of Rs. 27,332.44 the original amount which was deposited by the plaintiff in the bank against the goods should be taken as the basis for calculation of damages and after calculating interest at the rate of 6 per annum the plaintiff was awarded a sum of Rs. 1,250.00 including the notice charges and passed a decree for this amount in favour of the plaintiff.

(3) THE defendant then filed :in appeal before the District Judge, Poona who upheld the finding of the learned Munsiff and dismissed the appeal. A second appeal taken by the defendant to the High court of Bombay was also dismissed in limine and hence this appeal by special leave.

(4) NORMALLY it would appear that the appeal was concluded by findings of fact but we find that on the proved facts some clear questions