( 1 ) THIS Full Bench has been constituted -to consider the following question which has been formulated by a Division Bench of this Court, namely :

"whether a consignee, who is not the owner of the goods but to whom the goods are consigned for the purpose of sale on commission basis, is entitled to maintain the suit for loss in respect of damage caused to the goods in transit?"

( 2 ) THE facts necessary for the decision of this question are not disputed and lie within a very narrow compass. Four different persons each booked a wagon of oranges from Katol in C. P. (now Madhya Pradesh) for Lucknow. In each case the plaintiff-respondent was mentioned in the railway Receipt as the consignee. The plaintiff took delivery of one wagon but found that the goods had deteriorated greatly owing to the late arrival of the wagons at Lucknow and he refused to take delivery of the other three wagons. He then instituted the four suits out of which these appeals arise for damages.

( 3 ) ONE of the defences taken by the appellants was that the plaintiff, being admittedly only a commission agent, had no locus standi to maintain the suits.

( 4 ) THE trial Court rejected this defence and held that, even though the plaintiff was merely a commission agent, he was entitled to sue. The suits were all decreed.

( 5 ) THE defendants appealed and the appeals came before a Division Bench of which one of us was a member. Reference was made before the Bench to a large number of reported decisions, the latest being -- sheo Prasad v. Dominion of India, AIR 1954 All 747 (A ). This decision being contrary to the trend of earlier decisions both of this court and of other High Courts, the Division bench framed and referred the question which has been stated at the commencement of this judgment.

( 6 ) BEFORE us also the appellants contention has been that a commission agent does not suffer any loss by reason of the deterioration of the goods and consequently he cannot sue.

( 7 ) ON the other hand the respondents learned Counsel urged that, vis-a-vis the Railway, the plaintiff was the holder of title and was entitled to receive delivery of the goods. He, therefore, had sufficient interest in the goods to sue for damage to them.

( 8 ) IT must first of all be determined what is the position of the owner, the consignor and the consignee. The Railway is principally concerned with the consignor, since the contract for the carriage of goods is with him and, by reason of Section 72 of the Indian Railways Act, the liability of the Railway is that of a bailee under Ss. 150, 151 and 161 of the Indian Contract Act. Under Section 161 of the Contract Act it is primarily to the consignor as bailor that the Railway is liable for damages for that Section reads :

"if, by the default of the bailee, the goods are not returned, delivered or tendered at the proper time, he is responsible to the bailor for any loss, destruction or deterioration of the gooda from that time. "

( 9 ) THE owner of the goods as such does not come into the picture at all. Though the Railway has, under Section 57 of the Railways Act, the right to withhold delivery if the goods are claimed by more persons than one, yet under Section 166 of the Contract Act, (the application of which is not excluded by the Railways Act), it, as a bailee, is not responsible to the owner in respect of the delivery of the goods even "if the bailor has no title to the goods and the bailee, in good faith, delivers them back to or according to the directions of the bailor. "

( 10 ) THE consignee, however, stands on a different footing. It is well established in India that not only can parties to a contract sue upon it but also persons who are entitled to a benefit under it, or to whom the rights created by it have been transferred. Further Section 160 of the Contract act provides for a return of the goods bailed not only to the bailor but also according to his directions. Sections 163 and 166 of that Act also contemplate delivery