Rajagopala Ayyangar, J.-This is an appeal by the defendant, the State of Madras, against the Judgment of Mack, J., in C.S.No.156 of 1947 filed by the respondents against them, and the complaint of the appellant is directed against the disallowance of a portion of the counter-claim which had been raised by them in the suit. The plaintiffs have filed a memorandum of cross-objections objecting to the decree in respect of a portion of the counter-claim in favour of the State.

The plaintiffs are a registered firm carrying on business inter alia as country-craft-carriers for a long time and they were employed in such capacity by the Government of Madras for transporting rice from the West Coast to Tuticorin during the years 1945-1946. The terms and conditions upon which the plaintiffs’ were to render this service were reduced to writing and embodied in a contract, dated 24th November, 1945, between the Governor of Madras represented by the Commissioner of Civil Supplies on the one part and the plaintiffs on the other. This sets out the conditions under which, and the remuneration payable for the transport of rice in country-crafts between Trivandrum port and Tuticorin port. A supplemental contract was entered into on 4th December, 1945, relating to the loading of the bags of rice from the pier-head at Trivandrum into country-crafts. The plaintiffs deposited with the defendant Rs.5,000 and Rs.1,000 as security under the two contracts above-mentioned. For arrears in the remuneration payable to them for the services rendered by them under these two contracts, the plaintiffs brought the suit C.S.No.156 of 1947 on the Original Side of this Court for the recovery of Rs.59,116-10-0 made up of the charges payable to them on several items as under the agreement. The Government of Madras admitted that a sum of Rs.56,494-10-9 was due to the plaintiffs as remuneration but counter-claimed in respect of damages sustained by them in matters to be mentioned immediately. The learned Judge has granted to the plaintiffs a decree for this sum of Rs.56,464, and there is now no dispute as regards this portion of the decree, the only items in controversy being those comprehended in the counter-claim by the defendant.

This comprises two distinct heads. The first is as regards the claim to compensation for the loss of 3,005 bags of rice entrusted to the plaintiffs for carriage from Trivandrum to Tuticorin, but which was never delivered at destination, and which were stated by the plaintiffs to have been lost by “an act of God”. The value of the goods thus lost is stated to be Rs.85,069-8-8. The entire amount of this counter-claim has been negatived by the learned Judge. The second head relates to the short fall between the weight of the goods as handed over to the plaintiffs at Trivandrum compared with the weight as delivered by them at Tuticorin. The contract, dated 24th November, 1945, contains a tolerance clause permitting 2 lb. per bag of 164/4/7 lb. After making this agreed allowance, there was an excess shortage of 3,52,230 lb. and the defendant counter-claimed for the value of this quantity which came to Rs.61,317-15-1. The learned Judge decreed to the defendant 2/3rd of the excess, viz., Rs.40,878 and disallowed the rest. The amount disallowed by the learned Judge is the subject-matter of the second item of the appellant’s claim. The plaintiffs have filed a memo. of cross-objections against this decree for Rs.40,878.

The first question to be considered is regarding the liability of the plaintiffs for the loss of the 3,005 bags entrusted to them. The plaintiffs anticipated the counter-claim in this regard and pleaded in paragraph 11 as follows:

"The plaintiffs state that a consignment of 3,005 bags of Tanjore boiled rice weighing about 220¾ tons was sent by the defendant through the plaintiffs in December, 1945. The bags were loaded at Trivandrum on plaintiffs’ country-craft on 29th December, 1945. When the country-craft reached the south limit of Port o

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