A railway administration is liable for negligence if it fails to deliver goods and does not provide proper notice before auctioning them.

1. This is a defendant's second appeal against the judgement and decree passed by the Additional District Judge, Kanpur on 15-3-1971 in Civil Appeal No. 330 of 1966 affirming the decree of the plaintiff for recovery of Rs. 4335.55 passed by the II Civil Judge, Kanpur in O. S. No. 16 of 1964.

2. The plaintiff's case is that it booked a consignment of 341 bags of potatoes on 17-1-1962, for carriage and safe delivery at Bangalore City. The Railway Administration accepted the consignment and undertook to carry the goods and issued a railway receipt dated 17-1-1963. The consignment reached Bangalore on 10-2-1963, and instead of delivering the said consignment at the destination to the consignee the defendant auctioned the potatoes on 13-2-1963. The plaintiff alleged that the respondent caused abnormal delay in carrying the goods and also failed to disclose as to how the goods were dealt with during the course of transit, hence there is every reason to infer negligence and misconduct on the part of the defendant.
It was also alleged that the auction was done in a hasty manner without giving any valid notice to the plaintiff. The defendant contested the suit on the grounds that no claim under the Indian Railways Act (hereinafter referred to as the Act) could be referred by the plaintiff. It was further alleged that there was no negligence or misconduct on the part of the Railway Administration. The disputed consignment was booked at the owner's risk rate and defendant was absolved of all the liabilities. It was also stated that there was no abnormal and inordinate delay in the transit of the consignment and the goods booked were of perishable nature hence the same were auctioned after 24 hours of its (reaching the) destination. The trial court framed necessary issues and thereafter held that the defendant caused undue delay and misconduct and had no right to auction the goods without giving a valid notice to the plaintiff. The trial court also held that as no notice was given, necessary compliance of provisions of law was not made and the defendant was liable to pay the damages. The defendant went up in appeal. The Additional District Judge dismissed the appeal by his judgement and decree dated 15-3-1971. Aggrieved, the defendant has come to this Court in the present second appeal.

3. Sri D. Sanyal, learned counsel for the appellant, has raised three points before this Court : -
1. That as there is neither any pleading nor any evidence about non - disclosure of negligence and misconduct and further as the plaintiff never asked the defendant for disclosing as to how the goods were dealt with during the course of transit, the suit could not be decreed unless an opportunity was afforded to the defendant for such disclosure.
2. That the goods had reached at the destination and there was no one to take delivery of the same, hence the Railway Administration was entitled to sell the goods under R.7(e) of the Rules framed under S.47(1)(f) and (g) of the Act, and,
3. That there is no finding by the lower appellate court that the defendant in any way misconducted or was negligent of non - delivery of the goods.

4. The first contention of the learned counsel for the appellant has no force. S.73 of the Act reads as follows : -
"73. Save as otherwise provided in this Act, a railway administration shall be responsible for the loss, destruction, damage, deterioration or non - delivery, in transit, of animals or goods delivered to the administration to be carried by railway, arising from any cause except the following namely : -
(a) act of God;
(b) act of war;
(c) act