Judgement

Consolidated Appeals (No. 15 of 1937) from two decrees of the High Court (July 4, 1934), reversing in Civil Revision two decrees of the Subordinate Court of Dhanbad exercising Small Cause Court jurisdiction (June 29, 1933, and August 18, 1933, respectively).

These consolidated appeals, in which the same question arose, related to the construction of ss. 55 and 56 of the Indian Railways Act, 1890, and to the meaning to be given to the words "public auction" in sub-s.2 of s.55. In both cases the facts were similar, and the decision in the one admittedly governed the other. In each case, after consignments of coal had reached their destination, delivery of them was not taken, and the railway administration wrote to the consignors and/or to the consignees requesting them to take delivery of the consignments within 15 days on payment of the railway freight and other charges, failing which the consignments would be sold in accordance with the provisions of ss. 55 and 56 of the Railways Act, 1890. No action to take delivery having been taken by any of the parties concerned, the railway administration sold the consignments. In each of the actions the respective plaintiffs claimed damages for the conversion of the coal sold, alleging that, in view of the requirements of ss. 55 and 56 of the Railways Act, 1890, it had been sold by the railway administration in a manner which was illegal, irregular and ultra vires.

The facts of the first appeal and the material sections of the Indian Railways Act, 1890, appear from the judgment of the Judicial Committee.

The Subordinate Judge of Dhanbad dismissed both suits.

On appeal, the High Court in revision (Terrell C.J. and Agarwala J.) were of opinion that the sales had not been conducted with the formalities provided by the Railways Act; that the railway administration were not therefore protected; and that the owners of the goods were entitled to damages for wrongful conversion. The appeal is reported at ( 1934) I. L. R. 13 Pat. 752.

Willink K.C., and Wallach for the appellant. The substantial question is whether the particular practice which has been adopted by railway administrations with regard to selling goods which have been given to them for carriage, and which had not been claimed by the consignees, leaves them open to claims in conversion by whoever may be the owner. The High Court held that there is not 15 days notice of the intended auction unless the goods are described with some reference to their quantity, and the date and place of the auction are specified in the notice. The question is whether the railway administrations practice of giving notice that goods will be sold by auction, and then proceeding to extract offers, after due notification, from what seemed to be the best market for the goods, brings them within the spirit and sufficiently within the letter of ss. 55 and 56 of the Act of 1890. The railway administrations contend that there has been no conversion, because the acts are within their statutory powers. The question is, how liberal an interpretation can be given to this statute. In a small place without a local newspaper the information would be conveyed to possible local buyers by a notice posted in the railway station and in the bazaar, and by oral announcement made in the street by a crier with a drum.

[LORD THANKERTON That is not a public auction at all it is merely asking for offers. The essence of a public auction is that bidders can compare bids.]

[LORD ALNESS I should have thought that an auction would postulate first an auctioneer and secondly a date of sale.]

The railway administration ask this Board to say that they may dispense with an auction if it is found by experience of the facts of a particular case that an auction is a fantastic way of dealing with the matter—that intentionally low and unacceptable bids may be made, and that the Statute does not bind the railway administration to accept a bad bid but leaves them free to deal with the matt