The main legal point established in the judgment is that the Railway Administration must prove the due execution of special agreements, and in the absence of such proof, their liability is that of a bailee under the Contract Act.

Das, J.

1. This second appeal is by the plaintiffs, proprietors o£ a firm of the name of Messrs. Gopal Ram Ram Das of Arrah. The short facts, out of which this appeal has arisen, are the following. Two consignments of mustard oil were booked at a railway station, named Jamuna Bridge, on the railway known as the East Indian Railway Administration now represented by the present respondent. The consignments were booked on 16th November 1943, and two railway receipts were given numbered 751151 and 751152. These railway receipts show that the consignor was the Deputy Regional Food Controller, Agra and the consignee was ft firm of the name of Banshidhar Premsukh Das. The consignee firm endorsed the railway receipts in favour of the Imperial Bank of India. The latter in turn, endorsed an order on the receipts directing delivery of the goods to the plaintiffs firm. The case of the appellants was that the goods arrived at Arrah, another station within the E. I. R. Administration, in a highly damaged condition, and when delivery was taken it was found that 13 maunds 5 seers and 3 chattaks of oil out of one consignment, and 12 maunds and 35 seers of oil in the other consignment were short. It was further found that 76 tins were partly damaged and 23 tins completely damaged. The appellants firm alleged that the short delivery of the two consignments and the damage to the tins were due to the negligence and want of proper and due care on the part of the Railway Administration, and further-more, to the misconduct on the part of the servants of the Railway Administration daring the time the two consignments were in their custody. It was alleged that there was loose shunting of the wagons in which the two consignmenta were placed, and the shortage of oil and the damage were due to such loose shunting. On those allegations, the appellants firm claimed the price of 23 and odd maunds of mustard oil, the price of the damaged tina, profit at 10 per cent. and certain incidental expenses-laying their total claim at Rs. 1266-2-6. The defence of the respondent, so far as it is relevant at the present stage, was that the consignments were booked at a reduced rate of freight under a special agreement embodied in Risk Notes in Form B, under which the consignor agreed to hold the Railway Administration free from all responsibility for loss or damage from any cause whatever except upon proof of misconduct on the part of the Railway Administration, or their servants. The respondent pleaded that the onus of proving misconduct was on the appellants firm, and the shortage and damage were due not to loose shunting or want of proper care on the part of the Railway Administration or their servants, but to improper packing of the mustard oil in the tins.

2. It appears that the respondent did originally file some documents including the alleged Risk Notes in Form B. While the documents were in the custody of the Court of the third Munsif, they were damaged by rats. The original risk notes could not, therefore, be proved in the case. The respondent proved two documents (Exs. B and B1) which have been stated to be office copies of the risk notes in question. I may state here that the two railway receipts, to which I have already made a reference, were marked as Exs. A and A1 in the record. In these two receipts there is a reference to a Risk Note in Form B. On the top of the receipts the letter B is written against the column "Risk Note Form," and there is a further note on the top of the receipts to the effect "At Owners Risk."

3. The learned Munsif who dealt with the suit in the first instance, held that the consignments were despatched under Risk Notes in Form B. This finding, the learned Munsif arrived at, mainly on the aforesaid entries in the two receipts, as also on the alleged office copies (EXS. B and B1). He found, however, that the appellants firm had proved misconduct against the Railway Administration or their servants inasmuch as the shortage or