D.M. Dharmadhikari, J. -- 1. This appeal under section 96 of the Code of Civil Procedure, filed by the Railway administration, represented through the appellant Union of India, challenges the judgment and decree dated 18.10.1985, whereby the claim of the respondent, has been accepted to the extent of Rs.12,250/-, towards loss occasioned to the respondent for delayed delivery of his goods consigned to the railway for transport.

2. Admittedly, the plaintiff respondent had booked 120 quintals of batri pulses from Jabalpur to Shalimar on 19.11.1978. The goods were carried to Shalimar and were delivered to M/s. Shewlal Durga Prasad who was the endorsed consignee and commission agent for dealing in the goods on behalf of the respondent. According to the plaintiff, the normal period of transit of goods was ten days and the goods were delivered as late as on 14.1.1979 at Shalimar. By that time market price of the goods had considerably fallen down and the plaintiff was required to sell the goods at a lesser price. He thus suffered loss and claimed the same in the sum of Rs.21,000/-, being the difference of price of the goods at Jabalpur and Shalimar. The trial Court accepted the case of the plaintiff that the normal period for transit of the goods is between ten to twelve days. On the basis of the evidence before it, the trial Court determined the quantum of loss. The trial Court held that on the date of delivery of the goods at Shalimar the rate of batri pulses had fallen down to Rs.300/- per quintal and had the goods been delivered within a reasonable time of ten to fifteen days, it would have been sold at the rate of Rs.400/- per quintal. The plaintiff is said to have suffered a loss at the rate of Rs.100/- per quintal and for the total quantity of 122.25 quintals, the trial Court determined the loss at Rs.12,250/- and decreed the suit for the aforesaid sum with costs.

3. The learned counsel appearing for the Railway first submitted that the claim towards loss due to fall in price of the commodity as a result of delay in transit is barred against the Railway under the provisions of section 78(d) read with section 73 of the Indian Railways Act. It was submitted that under section 73 of the Act, the Railway can be held responsible only for deterioration of the quality of goods, but not on account of loss of market or fall in price. The above argument set up, on behalf of the Railway has been answered against the Railway in several decisions, including that of the Supreme Court, quoted below:

i) Union of India & others v. Messrs Sheobux Satyanarayan AIR 1963 Ori. 68

ii) Union of India v. Madanlal Kejriwal and others AIR 1968 Pat. 94

iii) Union of India v. The Steel Stock Holders Syndicate Pooria AIR 1976 SC 879

iv) Union of India v. M/s. P.K. Purameswaran Pillai AIR 1986 Ker. 199

4. In the case of M/s. Shebux Satyanarayan (supra) decided by Orissa High Court, on the point, the word 'deterioration' used in section 72 of the Railways Act has been construed to include depreciation in value on account of fall in the price of the goods. The Court took aid of section 161 of the Contract Act to hold that if the bailee fails to deliver the goods within a reasonable time he will be responsible to the bailor for any loss, destruction or depreciation of the goods from that time. In the case of Madanlal Kejriwal and others (supra), it was held that such a claim is clearly sustainable. The provisions of section 78(d) of the Railways Act were construed to hold that the words "for loss of particular market" used therein only mean that an owner of goods who is entitled to take delivery of the consignment cannot found his claim for damages on the ground that the goods were meant to be sold in a particular market and they could not' be so sold because of the late or non-delivery or that he would have made extra profit by selling the goods in a particular market but for the late or non-delivery. The claim for damages on the ground of fall in ma