ORDER :- 240 bags of rape seed were booked from Delhi to Burdwan on 17th March 1947, the present petitioner being the consignee. He took delivery on 18th April 1947. All the 240 bags were delivered, but of these 7 had been cut and there was a resultant shortage in the contents, of 3 mounds 35 seers, as certified by the goods clerk who gave delivery. The petitioner having sued the Railway Company for compensation for this loss, the defendants pleaded that due to the special protection afforded by a certain clause in Risk Note A under which the consignment had been sent, the plaintiff could not succeed unless misconduct on the part of the Railway administrations servants was proved and that there was no such misconduct. It was further contended that the plaintiffs claim was barred by limitation.

2. The learned Judge of the Small Cause Court who tried the suit came to the conclusion that the defendants were entitled to protection of the clause in Risk Note A, that no misconduct had been proved and also that the suit was barred by limitation.

3. For the purpose of the present Rule, we must proceed on the assumption that the learned Judges finding of fact that no misconduct had been proved is correct. The other two questions namely whether the defendant was entitled to any special protection in view of the clause in Risk Note A on the question whether the suit was barred by limitation are questions of law on which it is necessary to consider whether the learned trial Courts conclusion is right.

4. Risk Note A forms the basis of the contract in cases where articles are tendered for carriage which are either already in had condition or so defectively packed as to be liable to damage, leakage or wastage in transit. The special clause runs thus :

"I/We, the undersigned do hereby agree and undertake to hold the Railway Administration .......harmless and free from all responsibility for the condition in which the aforesaid goods may be delivered to the consignee at destination and for any loss arising from the same except upon proof that such loss arose from misconduct on the part of the Railway Administrations servants."

5. In a recent case of the Patna High Court, viz. Governor General of India in Council v. Firm Bishundayal Ram Gourishankar, AIR (35) 1948 Pat 48, Meredith, J. held that the word loss as used in Risk Note A cannot refer to any logs of the goods, but refers to loss arising from the condition in which the goods are delivered; that in other words the Risk Note A has no application at all to cases of failure to deliver, or pilferage, because a thing never delivered cannot be said to have been delivered in any condition, and therefore, no question arises of any loss arising from the condition in which the goods were found on delivery. It was accordingly held that the Railway Administration can never plead the execution of Risk Note A in bar to a claim based on non-delivery, on account of pilferage.

6. In Bansi Ram v. B.N.W. Rly. Co., 61 All 480 : (AIR (16) 1929 All 124), Sulaiman, J. took a different view as regards the meaning of the words "loss arising from the same". He held that while this would mean loss arising from condition in which the goods are delivered, a shortage in weight is a condition in which the goods are delivered, and is covered by the saving clause in Risk Note A.

7. To hold that when, say X goods are consigned and (X-N) goods are delivered, really X goods are being delivered in a condition of shortage, involves some straining of the word delivery. The fact, however, that the clause is clearly intended to cover cases of wastage and leakage of the contents justifies this straining, and I agree that for the purpose of Risk Note A, shortage in weight of goods is a condition in which the goods are delivered. It does not follow, however, that once Risk Note A has been executed every case of short delivery will be covered by the saving clause.

8. It is necessary to look to the entire document to decide how far the pro

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