1. This appeal arises out of a suit for the recovery of Rs.1,591-15-10, being the price of goods delivered by the plaintiff for carriageto the defendant, the India General Navigation and Railway Company, Limited.The plaintiffs agent delivered at the defendant Companys Booking Office atMokamah 150 bags of chillies weighing 130 maunds 8 seers for being conveyed toGoalundo. On arrival of the goods at the place of destination, the plaintiffsservant paid the freight, signed the bill of lading and gave a clear receipt inthe delivery register of the defendant Company. He thereupon obtained thedelivery order; but did not take actual delivery as he found some of the bagsdamaged. He asked the booking clerk to re-weigh the goods and then deliver thesame. This was refused and, in consequence, the plaintiffs servant refused toremove the goods. Hence this suit for recovery of the price of the goods.

2. The liability of the defendant Company, a Steamer Companyin respect of goods is that of an insurer. If, therefore, there was shortage inweight, the defendant would be liable. As already stated, however, theplaintiff did not weigh the goods and the suit is not for the price of goodswhich might have been found short in weight, The question for decision in the caseis whether the plaintiff could compel the defendant Company to re-weigh thegoods before taking delivery and, on the latters refusal to re-weigh, whetherthe plaintiff was entitled to treat such refusal as a refusal to deliver goodsand claim the price thereof.

3. It was contended before us that the consignee is entitledas of right to have the goods re-weighed before taking delivery, but noauthority has been shown in support of this broad proposition. We were referredto the case of Wills v. Great Western Railway Company (1915) 1 K. B. 199 : 84L.J.K.B. 449. In that case the question was whether non-delivery of a part of aconsignment was "non-delivery" of the consignment within the meaningof the contract between the parties. It was a case of short delivery and noquestion arose as to the consignees right to have the goods re-weighed by theCompany.

4. The question was raised in the case of Janki Das v.Bengal Nappur Railway Company 13 Ind. Cas. 509 [LQ/CalHC/1912/31] : 15 C. L. J. 211 : 16 C. W. N.356. In that case 290 bags of rice were consigned, two of which were lost andthe remaining bags arrived at the destination in a damaged condition. Theconsignee demanded a re-weighment and a certificate of shortage and that notbeing complied with by the Company he refused to take delivery. The Court belowheld that "the Railway Company is not required by law either to re-weighor to certify shortage," and this Court observed, "The result then isthat of the 290 bags two were not delivered because that were lost, and non-deliveryof the rest was due to the fact that the plaintiffs would only take delivery ona condition that they were not entitled to impose." There is no doubt thatthe matters are made easy for the consignee in a suit, if re-weighment is madeby the Company before removal of the goods by the consignee, but it is a matterof evidence only. The refusal of the Company to re-weigh does not in any wayaffect the right of the consignee. He may weigh the goods himself, and claimthe price of the shortage in weight. The mere fact that he has accepteddelivery and granted a clear receipt does not extinguish his right tocompensation if he proves that a portion of the goods were lost in transit orin the custody of the Company see East Indian Railway Company v. Sispal Lal 12Ind. Cas. 596 : 14 C. L. J. 472 : 16 C. W. N. 329 : 39 C. 311.

5. The question whether the consignee is entitled to refuseto take delivery in case of short delivery, or the broad proposition that theconsignee is not entitled in any case or under any circumstances to have goods,entrusted to a common carrier, re-weighed need not be considered in the presentcase. In the present case it cannot be said that there was short deliverybecause the goods were never weighed by the plaintiff, and he is not in aposition to say whether there was any shortage.

6. It appears that it was the practice of the defendantCompany to allow consignees to inspect their goods before granting receipt inthe delivery book arid have their goods re-weighed (if so demanded) in case ofsuspicion of short weight and enter the short weight in the delivery book. Infact the plaintiffs agent, who went to take delivery of the goods in question,appears to have on two other occasions granted qualified receipts for goodswith a remark of short weight. He might have adopted the same course in thepresent case, and if that course was not open to him because he had given aclear receipt, he might have had the goods weighed himself and claimed theprice for the shortage. But he did not avail himself of the opportunity ofinspecting the goods before granting receipt, and having granted a clearreceipt insisted upon re-weighment and upon the defendants refusing tore-weigh, he refused to take delivery. We do not think that under the circumstanceshe was justified in refusing to take delivery of the goods on the ground thatthey had not been re-weighed by the Company, and to claim the price thereof.The appeal must, therefore, be dismissed.

7. Appeal from Appellate Decree No. 400 of 1914 arises outof a cross-suit brought by the Company to recover Rs. 519-13-9 on account ofgodown charges for the period during which the chillies were in the custody ofthe defendant. If, as we have said, the plaintiff was not justified in refusingto take delivery of the goods, he would be liable for demurrage charges for theperiod during which the goods were in the possession of the Company. Itappears, however, that on the 5th January 1911, the Company wrote to theplaintiff that the chillies would be sold away at auction if the consigneefailed to remove them. The Court of first instance held that the Company werenot entitled to any demurrage after that date, and, accordingly, allowed onlyRs. 153-6-6 as demurrage for the period up to that date and the decree wasaffirmed on appeal. We think that that decree is correct and this appeal alsomust be dismissed. We make no order as to costs in either case.

8. The result, no doubt, is to be regretted. But theplaintiff appears to have refused to take delivery of the goods on the mistakennotion that be could insist upon the defendants re-weighing the goods beforetaking delivery, the defendant Company also insisting upon their strict rightsto refuse re-weighment.

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Ramjash Agarwala vs.Indian General Navigation and Railway Company Limited (11.05.1917 - CALHC)