Actual delivery of goods to the railway administration for carriage by rail is an essential requirement to attract railway's liability as a common carrier of goods under Section 73 of the Indian Railways Act, 1890.

( 1 ) THIS is an appeal by the plaintiff. The plaintiff's suit has been decreed to the extent of Rupees 33,955. 50 Paise, with interest, only against the defendants nos. 3 to 6 and it has been dismissed in its entirety against defendants 1, 2, 7 and 8. The plaintiff in this appeal prays for passing the decree against defendants 1 and 2 (respondents 1 and 2) also but no such prayer has been made against defendants 7 and 8 who have not even been impleaded as parties. Thus the only question in this appeal is whether the suit can be decreed also against defendants Nos. 1 and 2.

( 2 ) THE plaintiff Radheshyam Agarwal is a businessman carrying on business in oil and other commodities at Jabalpur, Defendants 1 and 2 are the Central railway and Southern Railway administrations. The defendant No. 3 is a partnership firm carrying on business in coconut oil at Alwaye in the State of kerala, Defendants 4 to 6 are the partners of this firm and they are brothers. Defendants 7 and 8 are two banks.

( 3 ) IN March 1963, the plaintiff placed an order with the defendant No. 3 Firm for supply of 650 tins of coconut oil at the rate of Rs. 47 per tin, each tin containing 17 Kgs. of oil. The defendant No. 3 firm alleging to have despatched two consignments, each containing 330 tins of coconut oil ex-Chalakudi railway station on the Southern Railway to Jabalpur on the Central Railway against two railway receipts (Exs. P-3 and P-4) dated 3-4-1963, handed over these railway receipts together with two Hundis, each for Rupees 15,510, drawn on the plaintiff, to the defendant No. 7 Bank at Alwaye, The documents were then sent to the defendant No. 8 Bank from which the plaintiff collected the two railway receipts on payment of Rs. 31,308. The plaintiff, as the last endorsee of these railway receipts, claimed delivery of the goods at the destination station, but being unable to get the goods shown in the railway receipts to have been booked, he gave notice under Section 78-B of the Railways Act and Section 80 of the Code of Civil Procedure to defendants 1 and 2. The railway administration asked the plaintiff for invoices of these consignments and then by a letter dated 28-12-1963 intimated the plaintiff that enquiries made had revealed that no such goods had been tendered to the railway administration for carriage at the forwarding station by the consignor on account of which the railway administration was unable to return the same.

( 4 ) THE suit was filed on 30-1-1964 to recover in all Rs. 37,804 as the costs of the goods, banking charges, loss of profit, interest and notice charges.

( 5 ) THE defence of the two railway administrations (defendants 1 and 2) has been that the goods were not delivered by the consignor to the railway administration at Chalakudi on account of which the contract of carriage was never made. Issue of the railway receipts was admitted but it was alleged that they had been obtained fraudulently by the consignor in collusion with the railway servants, without tendering the goods mentioned therein to the railway administration. It was also stated that in addition to these two instances, there were 31 other similar instances where defendant No. 3 had obtained railway receipts from the railway servants without delivering the goods shown to have been consigned under them. It was claimed that there was no liability on the railway administrations since the goods shown to have been booked under these two railway receipts had, in fact, never been delivered to the railway adminstration at the forwarding station and the railway receipts had been obtained fraudulently by the consignor. This, in substance, was the defence of the two railway administrations.

( 6 ) DEFENDANTS 3 to 6 remained ex parte and did not even file their written statement. However, defendant No. 4, a partner of defendant No. 3 Firm, appeared as a witness (P. W. 2) for the plaintiff and asserted that the firm had delivered the goods at the forwarding station