Ganapatia Pillai, J.-

This appeal is preferred by the plaintiff in O.S. No. 56 of 1953 on the file of the Subordinate Judge, Kumbakonam, against the decree dismissing that suit. The respondents are the Union of India, represented by the General Manager, Southern Railway, and the General Manager, Central Railway.

The appellant who is a trader in coriander seeds claimed Rs. 14,659-1.6 and interest at 6 per cent. per annum on this amount from 23rd January, 1951 to 3rd December, 1951. The plaint was originally presented to the Court of the Subordinate Judge, Tanjore, under the following circumstances. In December, 1950, the plaintiff instructed one Motilal Madan Mohan of Bidar in the old Hyderabad State to purchase for him 300 bags of dhania and despatch them by rail to Mannargudi. Accordingly, 300 bags were loaded by the broker Motilal Madan Mohan, on 25th December, 1950, at Bidar station in the broad gauge wagon No. G.I.P. 22315. The railway receipt No. 13205 obtained for the goods was endorsed over to the plaintiff for taking delivery of the goods at Mannargudi. The metre-gauge wagon in which the goods were sent to Mannargudi arrived at that station on 12th January, 1951. On opening the wagon, the clerk of the plaintiff found that almost all the bags had been damaged by rain water. He therefore refused to take delivery, and, on instructions from him, the plaintiff wired the General Traffic Manager, Southern Railway, asking for open delivery. Open delivery was given on 20th January, 1951, when it was found that only 75 bags out of the consignment of 300 were in a sound condition and the remaining 225 bags were found damaged, mildewed, caked and darkened in colour. The officer of the railway who gave open delivery certified that these 225 bags were damaged to the extent of 90 per cent. of the value of the goods. The plaintiff was therefore able to sell only the seventy-five sound bags at the current market rate ; and out of the remaining damaged bags, he was not able to sell 20 bags and the remaining bags were sold for less than 10 per cent. of the ruling market price. The cost of the consignment to the plaintiff amounted to Rs. 22,102-12-6, which works out at the rate of Rs. 73-10-10 per bag. By sale of the damaged, 225 bags, the plaintiff suffered loss of Rs. 13,837-8-0. To this, the plaintiff added the cost of 200 gunny bags at Rs. 200. The total loss of 20 bags is assessed by the plaintiff at Rs. 1,500 at the market rate at Rs. 75 per bag. The total damages suffered by the plaintiff amounted to Rs. 15,537-8-0 but the claim for damages made in the plaint is limited to Rs. 14,659-1-6.

The railway administration denied liability for the damage, though the extent of the damage was not disputed by them. They disputed the amount claimed for damages and also the interest claimed on this amount. They denied that there was any negligence on the part of the railway staff in dealing with this consignment. They affirmed that the consignment was carried with all care and caution required under law.

The following issues were framed by the learned Subordinate Judge:-

(1) Whether defendant-company took all possible care for the transport of the goods in question and whether they are not liable for any damages ?

(2) Whether the damages caused to the coriander bags arose in transit on account of the carelessness or negligence on the part of the defendant-company ?

(3) Whether there was any delay in the despatch of the goods as alleged by the plaintiff ?

(4) To what damages, if any, is the plaintiff entitled ?

Under Issues 1 and 2, the learned Subordinate Judge came to the conclusion that the defendant-railway was not liable, though he expressed this conclusion in a halting manner. This will be seen from the following observations of the learned Subordinate Judge:

“ In this case, even though I find it difficult to agree wholly with the defendant-railway when the defendant railway says that the wet condition of prematurely cut coriander crops, because t

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