NARASIMHAM, C. J.

( 1 ) THIS is an appeal from the judgment of the Second Additional Subordinate judge, Cuttack, decreeing the respondent-plaintiff's suit for recovery of the price of certain goods that were lost in trans-sit while in the custody of the Railway administration.

( 2 ) TWENTY bales of cotton yarn booked from Ambasamudram in the Southern railway, for the respondent on 28-11-52, for delivery at Cuttack railway station under R/r No. 60/5 and Invoice No. 8 of that date. When the consignment reached Cuttack it was found that six bales were completely missing and some of the remaining bales appeared to have been tampered with and re-sewn to a size smaller than that of the other bales. The respondent therefore took open delivery on 9-1-53 and note about the missing of six bales and short delivery of some of the remaining bales was made by the Station Master Cuttack Railway Station. The respondent, therefore, claimed damages from the Railway Administration basing his claim on the price of the missing bales of yarn and including therein the freight paid and also his profit at 71/2 per cent. His total claim came to Rs. 8907-12-0.

( 3 ) THE main defence of the Railway Admini