Subrahmanyam, J.- The plaintiff appeals from the judgment and decree of the learned Second Additional Subordinate Judge of Coimbatore in O.S. No. 370 of 1950 on his file. The plaintiff is a firm doing business in potatoes and other commodities in Coimbatore. The firm booked on 3rd August, 1948, at Coimbatore, 370 bags of potatoes. The consignor is described as G. P. Venkataraman &38; Co. The consignment was booked to “Self”. The person who signed the forwarding note is the partner of the firm, Venkataswami, who later instituted the suit which has given rise to this appeal. The consignment reached Shalimar (Calcutta) on the 19th August, 1948. The wagon was placed in position for delivery on 20th August, 1948. The articles were unloaded on 21st August, 1948. As no person claimed delivery till 25th August, 1948, the potatoes were sold by public auction by the Station authorities at Shalimar on 25th August, 1948, and a sum of Rs.2,910 was realised by the sale. The articles were delivered over to the purchaser at the auction N. C. Sinha &38; Bros. On 27th August, 1948, Venkataswami, the partner of the plaintiff firm, who had booked the consignment happened to be at Calcutta and he went to the Shalimar Goods Yard intending to take delivery. To his great surprise, he learnt that the goods had been sold to N. C. Sinha &38; Bros, for Rs.2,910-4-0 on account of the omission of the consignee to take delivery in time.

The suit out of which this appeal arises was instituted by the plaintiff to recover the value of the goods, deducting the freight and the charges payable to the railways. The defendants are the railways which received the goods, through whose system the goods passed to Shalimar and the Eastern Railway which owns the railway system at Shalimar.

The plaintiffs claim is based on wrongful sale or conversion, to give the act its technical name. The plaintiff alleges that the defendants had no authority under the Indian Railways Act to sell the potatoes on 25th August, 948, that, by wrongfully selling the potatoes on the date, they were guilty of conversion and that the plaintiff suffered loss to the extent of the difference between the market value of the goods at Calcutta on that date and the freight and other charges payable to the defendants.

The defence to the suit was that the sale was legal and proper. The defendants pleaded that they were not bound in law or under the Tariff Rules or under the conditions of booking, to intimate the parties of the arrival of the goods at the destination ; that since the goods were perishing, they had to be disposed of in public auction held in accordance with section 56 of the Indian Railways Act after due and proper notifications prior to the auction, that accordingly the goods were sold and that the plaintiff had no cause of action. The defendants also pleaded that they acted in the best interests of the parties after waiting for a reasonable time before disposal of the goods in public auction. A further plea was taken that the suit was not in time.

The learned Subordinate Judge found that the sale was legal and proper and that the suit was barred by time. The goods were placed in position for delivery on 20th August, 1948 and could have been delivered that day. The sale was on 25th August, 1948 and the suit was instituted on the 14th September, 1950. The Subordinate Judge held that Article 31 of the Limitation Act, which allowed a year from the date when the goods ought to have been delivered, applied.

The first point for determination is whether the sale of the goods affected by the Eastern Railway on 25th August, 1948 was lawful and proper. During the trial, an attempt was made to prove that the Railways did all they could to give due intimation to the plaintiff that the goods were ready for delivery at the Shalimar station. D. W. 2 was the message clerk in 1948 at Shalimar. He produced copies of messages sent from the Station Superintendent, Shalimar, to the Station-master, Coimbatore, on

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