( 1 ) THIS first appeal has been filed by the defendants against the judgment and decree of the Additional District Judge, Mandla, in civil suit No. 3-B of 1951 decreeing the claim of the plaintiffs for Rs. 6,886/6/- and costs.

( 2 ) IT is not disputed that the firm of Keshrimal Shrikishan of Sangli had despatched to self a consignment of 62 bags of chillies weighing 62 maunds from Sangli railway station to Nainpur railway station on 14-12-1950. This consignment had not reached Nainpur till 6-7-1951, the date on which the present suit was filed.

( 3 ) THE case of the plaintiffs was that Keshrimal Shrikishan endorsed the railway receipt in their favour after a sum of Rs. 600/- and another sum of Rs. 5059/4/were paid to him for the value of the goods. As the consignment did not reach the plaintiffs they filed a suit for recovery of damages consisting of the amount paid, the price of empty bags and profits at the rate of 20 per cent.

( 4 ) THE defendants denied the endorsement of the railway receipt by Keshrimal shrikishan in favour of the plaintiffs and thus challenged their right to bring the suit. It was also pleaded on their behalf that notice under Section 77 of the Indian railways Act, 1890, or Section 80 of the Civil Procedure Code was not given by the plaintiffs and if it be held that a notice was given, it was defective in material particulars and was consequently invalid. The damages claimed were also denied.

( 5 ) THE trial Court held that the plaintiffs had the right of suit as the railway receipt was endorsed in their favour for valuable consideration. It also held that a notice was duly served on the defendants and was not defective, and that the damages claimed were reasonable. Accordingly it decreed the whole of the claim of the plaintiffs with costs. ( 6 ) THE first point for consideration is whether the plaintiffs acquired title to the goods as alleged. In this connection, it was contended that there was no proper proof of the loss of the railway receipt or of the endorsement of the consignor-firm thereon, The loss of the railway receipt has been deposed to by plaintiff No. 3 gendlal (P. W. 1 ). Apparently he had no motive to suppress the document when the endorsement thereon for consideration in favour of the plaintiffs was not a matter of dispute and has been testified to by Rameshwar Lal (P. W. 2) who is a partner of the firm of the consignors'. It was not disputed before us that the endorsement on a railway receipt entitles the endorsee to sue the railway on the basis of the title to goods. We. accordingly confirm the finding of the lower Court that the plaintiffs had the right to maintain the suit.

( 7 ) IT is not a matter of dispute that the goods were consigned on 14-12-1950 and had not reached the destination till 6-7-1951 when the suit was filed. The goods arrived at Nainpur on 28-9-1951 after the suit was instituted. The subsequent arrival of the goods, however, did not change the nature of the suit which was for compensation for non-delivery of the goods, an attempt was made to show that the goods were offered to the plaintiffs after their arrival but they refused to take delivery. The evidence on the point is that of vishwanathrao (D. W. 1), who is the Goods clerk, and Mukherji (D. W. 2), who is the Commercial Inspector. They were merely servants and not agents of the railway Administration, and, accordingly, the plaintiffs were justified in refusing to take delivery on their instructions when a Court of Law was seized of the matter. The defendants, in the absence of a formal offer, cannot, therefore, contend that the plaintiffs ought to have taken delivery of the goods and should have reduced the claim to the extent of the loss, if any, suffered after appropriation of the goods. If they intended to found any defence on this point, they ought to have raised a proper plea by amending the written statement suitably.

( 8 ) SINCE the goods all along remained with the Railway Administration, the suit cont

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