( 1 ) THE plaintiff appellant had despatched on 14/4/1943 a consignment of goods consisting of 264 tins of cocoanut oil from Sahebbazar, a station on the Calcutta Port Rly. to Bankura a station on the Bengal Nagpur Ry. On April, 23, delivery was obtained by the consignor as the goods had been booked to self and it then transpired that 44 of the tins had been cut open and were completely empty. The total quantity of oil of which delivery could not be obtained was assessed before delivery of the remaining tins. On 6/4/1944, the present suit was filed claiming damages for the loss of the quantity of oil which had not been delivered. Before the suit was filed notice under Section 77. Railways Act, had been served on 15/1/1944. The claim was preferred against the Comrs. for the Port of Calcutta as also the Bengal Nagpur Rly. Administration and during the pendency of the suit the Governor-General in Council was also brought on the record as it was stated that the administration of the Bengal Nagpur Rly. had been taken over by, Govt. The Comrs. of the Port, pleaded that the loss or the damage had not occurred when the wagon in question was in the custody of this deft.