JUDGMENT : Das, J. - This is a Plaintiff's application in revision against the judgment of the small Cause Court Judge, Cuttack dismissing the Plaintiff's suit, Plaintiffs simple case was that he consigned 44 baskets of mangoes from Kantaklpalli to Cuttack on 2-6-52 under the parcel way bill, Ext. 1. In ordinary course, this consignment should have reached the destination the next day, that is on, 3 52 but on account of gross negligence and delay on the part of the Railway Administration, the parcel reached its destination on the 5th of June, 1952, with the result that the contents were found to be rotten and unfit for human consumption. The consignee, therefore, did lot take delivery of the consignment, and hence the Plaintiff filed the suit for recovery of a sum of Rs. 429/- after giving notice u/s 80 of the CPC to the Defendant,' that is, the General Manager of the Eastern Railway Administration. The defence of the' Defendant was that the notice u/s 80, Code of Civil Procedure, was not a proper and valid notice and therefore, the Plaintiff's suit is not maintainable, and that there was no delay or negligence or misconduct on the part of the Railway Administration. 2. But at the time of actual hearing in the court below, the validity or otherwise of the notice was not challenged by the Defendant and it was not also very seriously disputed that there was some delay in the transit. The learned Small Cause, Court judge after going through the evidence, both oral and documentary, has come to the finding that there was a delay of two days Therefore, the only question argued by Mr. Sen, learned Counsel on behalf of the Petitioner, was whether there was any misconduct or negligence on the part of the Railway Administration due to this delay. 3. The legal position is that before 1949, under clause (2) of Section 72 of the Indian Railways Act, the onus was upon the Railway Administration to prove that there was a special contract, by or on behalf of the person sending or delivering to the Railway Administration the animals or goods, in a form approved by the Central Government. By the Amending Act, (Act 56 of 1949), this clause (2) of Section 72 was omitted and Section 74, A, B, C, D, and E were enacted. Mr. By the Amending Act, (Act 56 of 1949), this clause (2) of Section 72 was omitted and Section 74, A, B, C, D, and E were enacted. Mr. Sen, for the purposes of his argument relies upon Section 74(C)(3) which runs as follows: When any animals or goods are carried or are deemed to be carried at owner's risk rate, a railway administration shall not be responsible for any loss, destruction of deterioration or damage to such goods from any cause whatsoever except upon proof that such delay, loss, destruction, deterioration or damage was due to negligence or misconduct on the part of the railway administration or of any of its servants. Therefore, if the case can come under the exception to clause (3), then and then alone, the Plaintiff Can succeed. It was pointed out in argument that it is evident from Ext-1 that the goods were consigned by a particular train (Train No. 187) at the owner's risk, but in evidence it transpired that the goods actually reached their destination by Train No. 25 down. It was further submitted that train number 187 is not a through train, & the goods had to be carried in another train from a railway junction at Khurda Road intervening in between Kantakapalli and Cuttack. Hence the fact that the goods did not reach their destination by the same train in which they were booked is not of much importance. Doubtless, the finding is that at any rate the goods did reach their destination two days later than it would ordinarily have arrives. Mr. Sen relied upon a decision of the Patna High Court Governor-General in Council Vs. Visheshwar Lal where it has, been held that the special contract has got toe proved by the Railways as a bailer under clause (2) of Section 72, and now after the omission of clause (2) from Section 72 of the Indian Railways Act the nos. is no longer on the Railway authorities, Therefore that case is of tittle assistance to Mr. Sen. Mr. is no longer on the Railway authorities, Therefore that case is of tittle assistance to Mr. Sen. Mr. Sen, however, relies on a case G. Madar Sahib v. Governor-General of India in Council 1951 Mad W.N. 467, where Panchapagesa Sastry, J. held: A larger question was raised at the instance of the Defendants that there is no proof of misconduct on the part of the railway administration or its servants and all that was admitted was a mere delay in the transit. It was argued that as this was a consignment under risk note B1, the proviso casting the duty of disclosure upon the railway administration will not apply, and that it is the first part of the risk note which applies to it. According to it, the consignor undertakes to hold the railway administration harmless and free from all responsibility for any loss destruction or deterioration or damage to the said commitment from any cause whatsoever except upon proof that such loss, destruction, deterioration or damage arose from the misconduct on the part of the railway administration or its servants. The argument was that delay is not the same as misconduct and that there is no proof in this case of any misconduct other than any inference to be drawn from the delay. This it was stated was not permissible. Reliance was placed upon a number of decisions to explain the meaning of the term 'misconduct'. In my opinion, it is unnecessary to go into the matter elaborately as I find that in this particular case misconduct is to be taken as established. It contended that the risk 'note in this case is in the same form as in Madras case. Therefore from 'the proved facts, a necessary inference can be drawn'...when the Railway administration fails to show as to how the, consignment was. I dealt with during the time it was in their possession. The goods being perishable in nature, come directly under rule' 163, and hence, it would amount to negligence on the part of the railway administration if it is not delivered in due time without any reasonable cause. Mr. Pal, learned Counsel for the Defendant opposite-party argued that the Patna decision referred to above does not apply to this Case in view, of the change in law. As I have said earlier, it does not apply now. Mr. Pal, learned Counsel for the Defendant opposite-party argued that the Patna decision referred to above does not apply to this Case in view, of the change in law. As I have said earlier, it does not apply now. His argument, however, was that u/s 74(C)(3) the railway administration is absolved of the responsibility for deterioration by virtue of the said clause, and the Plaintiff is only entitled to a decree if he can prove that the delay amounted to misconduct. Mr. Pal, for the purpose, relies upon two decisions; Secretary of State v. Khan Chand Ram Lal AIR 1935 Lab. 492, and M. and Madras and Southern Mahratta Ry. Co. Ltd. Vs. Ravi Shing Deepsing and Co.. Both these cases were under the old Section 72 and not u/s 74C the Amending Act, which pass brought about a substantial change in the law. Except for the principle decided therein, these cases do not help Mr. Pal's contention. Mr. Pal further relies upon Section 74D of the Indian Railways Act. Under that section, undoubtedly, the burden of proof of misconduct where goods carried at owner's risk rate are not delivered to the consignee or are pilfered in transit lies on the consignor. This is a case in which the goods were delivered to the consignee, but the consignee refused to accept the goods as they were found to be rotten. True, according to his own evidence, he had examined only three or four baskets out of 44, and when he found that the goods were in completely rotten condition, he did not further examine other baskets and refused to take delivery of the goods. Therefore, this is not being a case of non-delivery or short-delivery, Section 74 D would not apply. Mr. Pal referred to another decision of the Nagpur High Court AIR 1948 65 (Nagpur) . In that Case it was held that the consignee should take delivery of the consignment in the condition in which it is found after giving notice to the officer as to its condition and then sue the railway company for damage, if any. Mr. Pal referred to another decision of the Nagpur High Court AIR 1948 65 (Nagpur) . In that Case it was held that the consignee should take delivery of the consignment in the condition in which it is found after giving notice to the officer as to its condition and then sue the railway company for damage, if any. But he had no right in law to insist that either the railway officer should make or he himself should be permitted to make an endorsement in the railway registers before delivery, and even if the consignee refuses to the delivery of the goods duly offered to him, the railway sun continues to be the bailer and remains liable as such. But the consignee is liable to compensate the railway for necessary expenses, if thereby any. I do not see how this case helps Mr. Pal at all. 4. As regards the amount under claim t-here does not appear to be any evidence to show that the claim is...either untrue or exaggerate. 5. The Plaintiff has thus successfully shown that there had been a delay be have days in delivering No explanation whatsoever is coming forth from the railway administration as t the erase of this delay. Thus, the railway administration having failed to show as to how the consignment was dh during the time it was in their possession, or how the delay had occurred, the only legal inference that can be drawn is that there was misconduct on the part of the railway and the Plaintiff is thus entitled to a decree. 6. Accordingly, this revision is allowed, and the Plaintiff's suit is decreed but there will be no order for costs in view of a previous order of this Court dated 20.4.55. Revision allowed. Final Result : Allowed