Railway authorities are liable for the loss of goods as bailees if they fail to take proper care of the goods and misdeliver them due to their negligence.

S.C.Prasad, J.

1. This is an appeal from the judgment of the Subordinate Judge of Bhagalpur. The plaintiffs are the appellants. Their suit was for recovery of Rs. 10325/4/6, being the price of cotton and silk cloth consigned by them to the Eastern Railway (respondents railways) for being carried from Nathnagar Railway station to Nawadip Dham Railway station, which had not been delivered to them, and also for Rs. 174/- is compensation for non-delivery. The total amount claimed was, therefore, Rs. 10499/ 4/0.

This suit has been dismissed by the learned Subordinate Judge on the findings that there was no misconduct on the part of the railway servants resulting in the non-delivery of the goods to the appellants and, therefore, the respondent was not liable for any amount.

2. The facts of the case briefly stated arc as follows: The plaintiff No. 1 and his brother one Muhammad Idris deceased had a partnership business under the name of the firm "Muhammad Idris Brothers" dealing in handloom cloth, silk as well as cotton, at Bhagalpur, Muhammad Idris died on 12-12-1949 leaving behind plaintiffs 2 to 8 as his heirs, being his widow, son and daughters.

The original partnership business came to an end on the death of Muhammad Idris but these plaintiffs again entered into a fresh partnership business very soon after the death of Md. Idris. The plaintiffs have however, preferred their claim in this suit on the basis of the transaction with the previous firm. On 6-1-1949, Muhammad Idris Brothers had despatched four bales of silken goods, the value of each bundle having been declared under Section 75 of the Indian Railways Act, 1890 at Rs. 1000/-, and six bundles of handloom cloth in one package worth Rs. 6325/4/6 from Nathnagar railway station by passenger train under five railway receipts.

In the railway receipts they were mentioned as can signors and consignees, but the transaction had actually taken place between this firm and one B. K. Roy, who had approached the firm for the supply of the aforesaid cloth on behalf of another firm, which, he represented, was known as "Roy Karim and Co, of Srirampur" in West Bengal. B.K. Roy had come to Bhagalpur to make purchases but was not known at all to the partners of the firm. Nevertheless, they entered into this transaction, believing his representation.

After B.K. Roy had selected the cloth, it was sent, as mentioned above, by the passenger train, and was due to reach the destination, Nawadip Dham railway station, next day where the packages were to be delivered to the consignees. The railway receipts had been taken in favour of Muhammad Idris and "Brothers, because B.K. Roy had not paid the price which he had promised to pay next day, and was then to take delivery of those railway receipts.

On the morning of 7-1-1949 (next day) he came to the plaintiffs, but expressed his inability to pay the price, because he had spent all his money. The railway receipts, therefore, remained in the custody of the plaintiffs. B.K. Roy promised to send the money immediately after his return to Srirampur. For several days nothing was known of B.K. Roy by the plaintiffs, except, as they alleged, that they had received one letter and one telegram from him to the effect that he had not sent the money because he had fallen ill, promising to send it as soon as possible.

For about three weeks from the date of the despatch of the goods the plaintiffs waited, but neither the money came nor did they receive any further information from B. K. Roy. They became suspicious and sent P.W. Salam, another brother of Ekram and Idris, and P.W. Motilal to ascertain as to what was the matter. These people first went to Srirampur but could find no trace either of B.K. Roy or the firm Roy Karim and Co.

They then came to Nawadip Railway station and presented the railway receipts to the railway authorities there, but the parcel clerk, one K.C. Das Gupta, who is since dead, suspecting that these persons had cheated the railway, lo