The realization of wharfage charges under the rules framed under Section 47(1)(f), Railways Act, implies a contract of bailment between the Railway and the owner of the goods.

( 1 ) THE petitioner brought this suit for recovery of damages for the loss of 10 maunds 16 seers of jute. His case is that on 23-8-1951, the delivered 125 bales of four maunds of jute per bale to the Station Master, Gaibandha, on a railway in Eastern Pakistan, for carriage to Cossipore Road Station on the Eastern Railway in the Union of India and that when the consignment, after being unloaded from the railway wagon at Cossipore Road was lying in the goods shed under the care of the Eastern Railway, it got soaked in rain on account of the negligence of the Eastern Railway and resulted in the loss of 10 maunds 16 seers. The defendant denied negligence but also pleaded that there was no contract between the plaintiff and the defendant and further that as the consignee had not taken delivery of the consignment within a reasonable time, the Railway was not liable. There was also a plea of want of notice under Section 77, Railways Act, and Section 80, Civil P. C.

( 2 ) THE trial Court had accepted the defence ' contention that there was no proper service of notice under Section 80, Civil P. C. , and further that there was no contract between the plaintiff and the defendant.

( 3 ) BEFORE us, the learned Advocate for the defendant has admitted that the service of notice under Section 80 was sufficient and has asked us to decide the case on the basis that the defendant withdraws the objection on the ground of lack of notice.

( 4 ) THE first question for consideration is whether there has been any contract with the Eastern Railway which the plaintiff can enforce. It was the Pakistan Railway which accepted the goods at Gaibandha Station, agreeing to carry it to a place outside the Pakistan Railway. It is argued that what arrangements it made for carriage of the goods after it reached the border between India and Pakistan"" was no concern of the consignor; and that what happened was that the Pakistan Railway engaged the Eastern Railway as a sub-contractor for performing part of its contract with the plaintiff. If that were the position, it is reasonable to think that payment to the Eastern Railway for its charges would be made by the Pakistan Railway. From the railway receipt, however, it appears that the payment to the Eastern Railway was made not by the Pakistan Railway but by the consignor. It appears clear that after the goods were received by the Pakistan Railway from the consignor and were carried by the Pakistan Railway to the border, the goods were received by the Eastern Railway from the, Pakistan Railway. Prom these circumstances, the proper conclusion, in my opinion, is not that the Pakistan Railway as a principal made a contract with the Eastern Railway but that, it made the contract with the Eastern Railway as an agent of the consignor for carriage of the goods to Cossipore Road Station and delivery to the consignee. The plaintiff as the principal can, therefore, enforce the contract

( 5 ) IT' is argued, however, that even if the respondent be liable on a contract of carriage of the goods to Cossipore, the liability ceased on the-consignee refusing to take delivery of the consignment within a reasonable time. The argument is that the contract was to carry and to deliver and that the Railway has performed its contract if it has carried and has offered it for delivery. It has been held in a number of cases to which reference will be made presently that if the consignor's representative fails to take delivery within a reasonable time after it is ready for delivery by the carrier, the liability of the carrier ceases. It is important to consider, however, the further question whether after the liability of the carrier strictly so-called has ceased, there has or has not arisen liability on a further contract of bailment, arising from the fact that the Railway continues to keep the goods. It is helpful to remember In this connection the definition of bailment in Section 148, Contract Act, and the explanatio