SARJOO PEOSAD, C. J.: This appeal is by the plaintiff and arises out of a suit for recovery of a Sum of Rs. 3,128, together with interest pendente lite, as dama­ges for non-delivery of certain goods. (2) The case appears to have had a che­quered history. The Additional Subordinate Judge, before whom the suit was filed, decreed it with proportionate costs. On appeal, the then Additional District Judge set aside the decree of the trial Court on the ground that the suit was bad for non-joinder of certain necessary parties, and remanded it for re-trial, after giv­ing the plaintiff an opportunity to amend his plaint. The plaintiff, not being satisfied with this order of remand, moved this Court which, in Civil Revision No. 120 of 1952, set aside the or­der of the learned Additional District Judge and sent back the case to the Court of Appeal below for disposal of the appeal according to law. This time again the learned District Judge who heard the appeal, has reversed the decision of the trial Court and dismissed the suit. (3) The plaintiff, who is a businessman of Dhubri, had a contract with pro forma defen­dant No. 2, Bhararia Cotton Ginning Factory, for supplying 270 maunds of cotton seeds. In pursuance of that contract, the plaintiff was to despatch, by railway wagons, the cotton seeds in question. He accordingly packed 270 maunds of cotton seeds in 194 bags and loaded the same at the Dhubri Railway Station in a wagon belonging to the contesting defendant. The plaintiff and his witness, Joychandlal Bhararia, appear to have approached the Station-Master for a wagon; the Station-Master referred them to the Assistant Goods Clerk who allotted to the plaintiff wagon No. 23003, and, at the in­stance of the Goods Clerk, the plaintiff loaded the cotton seeds in the wagon in question. The plaintiff alleged that he also handed over the Forwarding Note to the Assistant Goods Clerk through Kumud Bandhu Dutta (P.W. 1), with instructions to book the goods from Dhubri to Jumna Bridge in the name of the pro forma defendant; but the Goods Clerk could not issue the requisite Railway Receipt; and, though on several occasions the plaintiff thereafter tried to obtain the railway receipt from the Station authorities, he could not get the same until finally on 6-10-47 the Assistant Goods Clerk refused to issue the railway re­ceipt. It was also discovered that wagon No. 23003, in which the goods had been loaded, was, through some mistake of the railway employees, despatched to Rasra Station on the O. T. Rail­way under a wrong label appertaining to wa­gon No. 23007. On these facts, the plaintiff claimed that on account of the negligence of the servants of the Assam Railway administration belonging to the defendant, the said wagon was sent to Rosra Station without the railway receipt, and not to Jumna Bridge, as requested by the plaintiff, as a result of which the plaintiff has suffered loss, and the cotton seeds in question could not reach their destination. The plaintiff is alleged to have served the requisite notices on the Gene­ral Managers of the Assam Railway and ^he O. T. Railway, as required by the Railway Act, and then instituted the suit. (4) The suit was contested by the Dominion of India, the defendant No. 1, representing the Assam Railway. The defendant denies the lia­bility for the claim. It is further stated by the defendant that the plaintiff had no right to sue in respect of the goods in question, and that the goods were never delivered to the rail­way administration or the officers thereof. The defendant also put forward the contention that if anybody was entitled to sue in respect of the goods in question, it was the pro forma defendant No. 2, and not the plaintiff. It was also pleaded by this defendant that probably on coming to learn that some wagons had been allotted to the pro forma defendant, the plaintiff surreptitiously loaded the goods into wagon No. 23003 without the knowledge of the railway Staff, and intended to submit the Forwarding Note for the goods next day, but before the plaintiff could inform the railway Servant concerned or tender the necessary For­warding Note to him, the sealman, finding the wagon loaded, sealed it and attached to it the label intended for wagon No. 23007, which was destined for Rosra. Thus mis-labelled for Ros­ra, wagon No. 23003 may have been despatch­ed to Rosra; but the mistake, if any, was due to the conduct of the plaintiff, for which the defendant No. 1 could not be held responsible. Thus mis-labelled for Ros­ra, wagon No. 23003 may have been despatch­ed to Rosra; but the mistake, if any, was due to the conduct of the plaintiff, for which the defendant No. 1 could not be held responsible. (5) The main questions which arose for de­termination in the case were:- (1) whether the plaintiff was entitled to sue for recovery of damages on account of the loss of the goods? and (2) whether, in fact, there was delivery of the consignment in question to the railway ad­ministration or its employees? On the first point, the trial Court held that it was quite clear on the evidence that so-long as the railway receipt had not been issued, the goods belonged to the plaintiff, and, as such, the plaintiff was entitled to sue for recovery of damages on account of the loss of the goods. On the other question also, it was of the view that the goods had been actually delivered to the railway administration and loaded into the wagon with the knowledge and consent of the railway employee concerned; and, as such, the plaintiff was entitled to recover compensation for the loss from the defendant because it was constituted, under the law, bailee of the goods in question. Both these points, on appeal, have been answered against the plaintiff. There was also another ground taken be­fore the Courts below, which was to the effect that the plaintiff was bound to accept the goods when later on they had been tendered to him, and he not having done so, was precluded from claiming damages on account of non-delivery. But the Courts below rightly pointed out that except a mere averment in the addition writ­ten statement filed on behalf of the contesting defendant, there was no evidence to support it, and there was nothing to show that, in fact, the goods were offered for delivery at Jumna Bridge to the plaintiff. In those circumstances, the two Courts below did not attach any im­portance to this question, and proceeded to decide the case on the other two questions sta­ted earlier. (6) It is contended by Mr. Das on behalf of the appellant that the Court of Appeal be­low had gone wrong on both the questions can­vassed before it. In those circumstances, the two Courts below did not attach any im­portance to this question, and proceeded to decide the case on the other two questions sta­ted earlier. (6) It is contended by Mr. Das on behalf of the appellant that the Court of Appeal be­low had gone wrong on both the questions can­vassed before it. He contends that the plain­tiff was the only person entitled to sue in re­spect of the goods in question, even if it is ac­cepted that he had actually delivered the goods to the railway administration belonging to the defendant No. 1. The contention, in my opi­nion, is well-founded. The learned District Judge was in error in thinking that the suit was based upon some railway receipt or con­signment note. Of course, if there had been a consignment note, in that event it was only the consignor or the consignee or the person in whose favour the consignment note was endorsed, who could sue for recovery of damages on account of the loss of the goods. But where there is no rail­way receipt, as in this case, the matter has to be decided not on the footing as if there was such a receipt, but on the clear issue that the goods had been delivered by the owner to the defendant No. 1 for carriage, and that the goods were lost while in the custody of the defendant. In such a case, the liability of the defendant is that of a bailee and is covered by Ss. 151 and 152 of the Contract Act. The appellate Court also appears to have been under some confusion about the legal po­sition in this case. It observes that the bail­ment of the goods in question, if at all, was on behalf of the pro forma defendant, and that the plaintiff was not a party to the alleged contract with the railway for carriage of the goods in question. This is obviously incorrect, and just the reverse of the admitted facts. It was actually the plaintiff who was a party to the contract in this case and who claims to have delivered the goods to the rail­way for carriage to the pro forma defendant. The cases on which the learned District Judge relied in support of the contention of the de­fendant, are all cases where the suits were on the basis of railway receipts and consignment notes. The cases on which the learned District Judge relied in support of the contention of the de­fendant, are all cases where the suits were on the basis of railway receipts and consignment notes. In such cases, undoubtedly the Court is right in pointing out that it is the consignor who is prima facie entitled to sue If the pro­perty in the goods had not passed to the con­signee, and in case the property in the goods had passed to the consignee, or the endorsee of the railway receipt, it was the consignee or the endorsee who was entitled to sue for dama­ges on account of non-delivery. In this case, the pro forma defendant is not privy to the contract at ail; it is a simple case of bailment which was at the instance of the plaintiff, and on the basis of which the plaintiff could sue the defendant No. 1. The test is whe­ther in such a case, the pro forma defendant could claim any damages against the contest­ing defendant. For obvious reasons, it could not; because the clear answer to the claim of this pro forma defendant would be that this defendant was no party to the contract be­tween the plaintiff and the contesting defen­dant No. 1. It appears to have been assumed by the learned District Judge that under Ss. 24 and 25 of the Sale of Goods Act, the property in the goods had irrevocably passed to the pro forma defendant, and thus the pro forma defendant alone could sue upon the contract. This is ap­parently fallacious, because the Sale of Goods Act has nothing to do with the case before us, and it is not for the defendant No. 1 to ques­tion in this case as to whom the title to the goods belonged. It may be that if the railway receipt had been issued, the consignor and the consignee to be mentioned in the document may have been the pro forma defendant, but there was no such receipt issued, and the Court cannot as­sume, in the absence of such a receipt, that the plaintiff had no right to sue. The plaintiff is entitled to fall back upon the contract with the defendant No. 1, to whom he delivered the goods for carriage. The learned District Judge, therefore, mis­directed himself on the point in allowing these false questions to cloud the issue. The plaintiff is entitled to fall back upon the contract with the defendant No. 1, to whom he delivered the goods for carriage. The learned District Judge, therefore, mis­directed himself on the point in allowing these false questions to cloud the issue. It was rightly contended before him on behalf of the plaintiff that there being no railway receipt in this case, the question as to who the consignor or the consignee was, did not in terms arise, and the plaintiff was entitled to sue as the per­son in whom the property in the goods was vested for the time being. Mr. Medhi's reference to the decision in Governor-General of India in Council v. Firm Joynarain Ritolia, AIR 1948 Pat 36 (A), does not appear to have any bearing on the point which we are investigating here. If anything, this decision shows that it is not in all cases that by mere delivery of the goods to the rail­way, the title to the goods necessarily passes to the consignee. The matter, therefore, had to be decided not upon the Sale of Goods Act but upon the simple question that the plaintiff, as the owner of the goods, had delivered the goods to the railway administration, and that the goods were lost while in the custody of the railway admi­nistration, for which, as bailee, the defendant would be liable. Further, in this case, the pro forma defen­dant has been impleaded as a party to the suit and, therefore, there could be no question of the defendant No. 1 being exposed to any claim in future at the instance of the pro forma de­fendant. The first point, therefore, had to be answered in favour of the plaintiff, and the decision of the learned District Judge to the contrary is erroneous. (7) Coming to the second question, the learned District Judge has very rightly conceded that although admittedly no railway re­ceipt was issued in this case, that fact, by itself, could not be fatal to the claim of the plaintiff, if the plaintiff could prove that the goods in question had been actually delivered to the railway administration. The learned Judge has referred to certain decisions on the point, to which no reference need be made because the proposition has been correctly stated by the learned Judge. The learned Judge has referred to certain decisions on the point, to which no reference need be made because the proposition has been correctly stated by the learned Judge. He also correctly postulated the point to be decided, namely, that it had to be examined as to whether there was such a delivery, in fact, in the circumstances of the case. The learned Judge then proceeds to examine the evidence, and finally he concludes in the following words:- "In view of the evidence of D.W. 1, it ap­pears to me to be more probable that the plain­tiff loaded the wagon in question in the after­noon of that very day at the instance of the Assistant Goods Clerk, but before formal allot­ment of the wagon, in the expectation that the allotment would be regularised in due course. In my opinion, such loading prior to actual al­lotment, would not amount to legal delivery so as to constitute a bailment of the goods to the railway administration concerned." The trend of his finding quoted above shows that although he found that there was actual delivery of the goods to the railway adminis­tration, inasmuch as the goods had been load­ed in the wagon in question allotted to the plaintiff at the instance of the Assistant Goods Clerk, yet, since all the, formalities of such allotment, as deposed to by Tarapada Chakravarty (D.W. 1), had not been fulfilled, the ac­tual delivery 'did not amount to legal delivery' so as to constitute bailment of the goods to the railway administration. It is here that the learned District Judge has fallen into a clear error of law. The ques­tion which he had to answer was - whether, in fact, there had been delivery, which question he himself had postulated for determination. If, in fact, there was delivery, the mere fact that certain formalities about the allotment of the wagon in which the goods were loaded had not been fulfilled, would not matter. In order to constitute bailment under S. 149 of the Contract Act, all that the Court had to find was - whether there had been delivery to the bailee. Section 149 requires that the delivery to the bailee may be made by doing anything which has the effect of putting the goods in the possession of the intended bailee or of any person authorised to hold them on his behalf. Section 149 requires that the delivery to the bailee may be made by doing anything which has the effect of putting the goods in the possession of the intended bailee or of any person authorised to hold them on his behalf. Here, the finding shows that wa­gon No. 23003 had actually been allotted to the plaintiff or the pro forma defendant; that the goods were brought in three trips, packed in 194 bags, and loaded in the wagon in question and that the loading was done at the instance of the Assistant Goods Clerk to whom the plaintiff's man had been referred by the Station-Master, If these facts are correct, then the goods had been actually delivered to the railway administration and kept in the wagon with the consent of its employee, the Assistant Goods Clerk. It has not been contended, nor was it ever the case of the defendant No. 1, that this Assistant Goods Clerk had no authority to re­ceive the goods on behalf of the railway admi­nistration. On the contrary, it appears from the evi­dence that the Station-Master had referred the plaintiff or his man to the Goods Clerk for that purpose, and the Goods Clerk would be the right man for the job. In any case, the finding is very clear that the wagon had been loaded at the instance of the Goods Clerk. That be­ing so, in my opinion, it was a clear case of delivery within the meaning of S. 149 of the Contract Act, so as to constitute bailment. (8) I had occasion to consider the question as to what amounts to delivery in River Steam Navigation Co. Ltd. v. Syam Sunder Tea Co. Ltd., AIR 1955 Assam 65 (B). I pointed out there as 'follows:- "The word 'delivery' has got no special significance. It refers merely to the physical act of making over the custody of the goods by the plaintiff or somebody on his behalf to the carriers or their agent. Ltd. v. Syam Sunder Tea Co. Ltd., AIR 1955 Assam 65 (B). I pointed out there as 'follows:- "The word 'delivery' has got no special significance. It refers merely to the physical act of making over the custody of the goods by the plaintiff or somebody on his behalf to the carriers or their agent. There must be, how­ever, mutual consent between the parties in order that the custody of the goods may con­veniently pass from one to the other, and this consent may be even implied from the circum­stances of each case..........It may happen at times that although a common carrier may ac­cept delivery of the goods and yet may have failed to book them or to give receipt for the same before they are lost in his custody. In such a case, the mere fact that the goods were not booked or that a regular receipt had not been granted, will not make any difference to the liability of the common carrier, provided the goods are proved to have been lost while in his custody." Here, the only objection is that some of the formalities relating to the allotment of a wa­gon had not been fulfilled or that the railway receipt had not been issued. But this, as I said, will not affect the position so long as the goods had been actually delivered to the employee of the railway administration and were taken by him in his custody. I am fortified in this view by a number of authorities. I may refer in the first instance to a Full Bench decision of the Allahabad High Court in Sohanpal Munnalal v. East Indian Railway, AIR 1922 All 9: ILR 44 All 218 (C). It was found there that certain goods had been actually han­ded over by the plaintiff's servant to the rail­way officials and accepted by the latter, though no receipt was actually granted by them, and it was held that the liability of the railway com­pany would accrue from the time when the goods had been accepted, and was not depen­dent upon the granting or the withholding of the receipt for the goods on behalf of the com­pany by the officials who had accepted the goods. In Manna Lal v. E. I. Rly. In Manna Lal v. E. I. Rly. Co., AIR 1923 All 71 (D), the facts which were found to have been proved, were that certain goods had been delivered to the Station-Master to be booked, but he being unable to book on account of stop­page of booking, kept the goods on the railway premises without definitely directing the plain­tiff to remove the goods or telling him in un­mistakable terms that the goods were being kept at his own risk, though at the same time, not definitely accepting the goods at the rail­way's risk. In these circumstances, it was held that the conduct of the Station-Master in retaining the goods in the railway shed, afforded satisfactory evidence that he had accepted the bailment of the goods on behalf of the railway company. Section 72 of the Railways Act thus came into operation and the railway company was held responsible for their safe custody. The learned Judge below sought to distin­guish this case on the ground that in the ins­tant case, there was no evidence to show that the Station-Master accepted the bailment of the goods, as in the Allahabad case; but that hardly makes any difference, because here, it was at the instance of the Assistant Goods Clerk that the goods were loaded into the wagon in ques­tion. The Assistant Goods Clerk was equally an employee of the Railway Administration authorised to receive the goods, and, therefore, the liability of the Railway arose as a bailee. (9) In Governor-General of India in Coun­cil v. Jubilee Mills Ltd., AIR 1953 Bom 46 (E), it was held that there was actual delivery of the goods although some of the formalities had not been complied with. The goods were with the plaintiff who wanted to consign certain bales of cotton and, after weighing and mark­ing them, brought them to the station yard and stacked them on the platform with the express consent and authority of the Station-Master. The plaintiff made the necessary entry in the Indent Book asking1 for wagons for consignment of the bales, and also filled in the consignment note and gave it to the Station-Master who accepted it and kept it with him. The wagons were sanctioned, but they were not immediate­ly available. No forwarding note was tender­ed by the plaintiff and no receipt was granted to the plaintiff by the railway administration. The wagons were sanctioned, but they were not immediate­ly available. No forwarding note was tender­ed by the plaintiff and no receipt was granted to the plaintiff by the railway administration. Within three days of the delivery, the consign­ment which was lying on the platform was destroyed by fire by a spark from the engine. The plaintiff sued the Railway for damages for loss. It was held that the goods were deli­vered to the railway administration to be car­ried within the meaning of S. 72 of the Railways Act, and the railway administration had become liable, as the bailee, in respect of those goods. It is unnecessary to multiply authorities. It is quite obvious that although the finding as to whether actual delivery has been made or not, would depend on the facts of each case, yet to constitute bailment within the meaning of S. 149 of the Indian Contract Act, it is not ne­cessary that certain formalities must have been gone through before, in the eye of law, the delivery could be regarded as legal delivery. What I have pointed out is that if actual delivery had been made and the employee con­cerned of the railway administration had as­sented to take delivery, that would be enough to constitute bailment in the eye of law. The learned Judge was, therefore, wrong in think­ing that, on the facts found, there was no deli­very so as to constitute bailment. (10) The further fact that there appears to have been some exchange of correspondence between the Station-Master, Dhubri, and the Station-Master, Rosra, under which, as alleged, the Station-Master at Dhubri was prepared to issue a railway receipt, if necessary, if the wagon in question had actually reached Rosra, so as to have the wagon re-directed to Jamuna Bridge, goes to support the contention of the plaintiff that the delivery of the goods had been taken with the consent of the Station staff, and not without their consent. The learned District Judge was not justified in assuming that this was only 'in the nature of an inter-departmental communication with a view to solve the tangle.' On the other hand, it raised a strong inference in favour of the plaintiff that the Station staff, after taking deli­very of the goods, had made certain mistakes which they were subsequently endeavouring to rectify. The decision of the Court of Appeal below being erroneous in law on both the points afore­said, we think that the judgment and decree of the learned Judge has to be set aside, and that of the trial Court restored. The appeal is accordingly allowed and the plaintiffs suit is decreed as above, with costs throughout. (11) DEKA, J.:- I agree. H.G.P. Appeal allowed.