JUDGMENT Anwar Ahmad J This appeal by the Union of India representing the Eastern, the Central and the Northerbn Railway directed against the judgment of the First Subordinate Judge, Dhanbad, decreeing the suit of respondent-no.1 for damages amounting to Rs. 34,895,7 on account of negligence and misconduct of the Railway Administration in respect of a consignment of 5519 pieces of flat iron bars under railway receipt no. 638398 dated the 11th August, 1961. 2. It is stated in the plaint that respondent no. 2 was, at all material time, the agent of respondent no. 1 and acted as such. On or about the 11th August, 1961, the aforesaid consignment was tendered to the Eastern Railway at Kumardhubi station by respondent no. 2 at railway risk and it was to be delivered to respondent no. 1 at 'Wisco siding plot no. 13, Wadibundar, Bombay, as station on the Central Railway. The said consignment was Dot delivered to respondent- no. 1 either in whole or in part. Respondent no. 1, therefore, filed the suit, giving rise to this appeal, for damages, which consist of the price of the flat iron bars at the controlled rate, railway freight and sales tax. 3. A written statement was filed on behalf of the appellant on the 26th March, 1963, alleging therein that the matter was under enquiry which had not been concluded, that the suit was bad for want of proper notices under Section 77 of the Indian Railways Act and Section 80 of the Code of Civil Procedure that it was barred by limitation and that it was fit to be dismissed as there was no negligence or misconduct on the part of the Railways. An additional written statement was filed on the 9th April, 1963, wherein, in addition to the pleas already taken, it was stated in Paragraph 2 thereof that the appellant was not aware that respondent no. 2 was the agent of respondent no. 1 and that the fact was not admitted. In Paragraph 7, there was a general denial of all allegations in the plaint. 4. The learned Subordinate Judge, on a consideration of the ex-parte evidence led on behalf of the respondents, came to the following conclusions: (1) that the notices under Section 77 of the Indian Railways Act and Section 80 of the Code of Civil Procedure Were sent by respondent no. 2 on behalf of respondent no. 4. The learned Subordinate Judge, on a consideration of the ex-parte evidence led on behalf of the respondents, came to the following conclusions: (1) that the notices under Section 77 of the Indian Railways Act and Section 80 of the Code of Civil Procedure Were sent by respondent no. 2 on behalf of respondent no. 1 as its agent by registered post; (2) that the consignment in question, which was despatched by respondent no. 2, was accepted by the Eastern Railway to be carried to Bombay for delivering it to respondent no. 1 but it had not been delivered; (3) that the 'loss of the consignment was due to the negligence and misconduct on the part of the Railway Administration; (4) that the suit was not maintainable on behalf of respondent no. 2 but only on behalf of respondent no. 1 which bad title to the goods and the notices on its behalf only had been sent by respondent no. 2; (5) that the total loss, as claimed, was correct, (6) that the suit was not barred by limitation and '(7) that all the three Railways were jointly liable for the loss sustained by respondent no. 1. On these findings, the suit was decreed in favour of respondent no. 1 and dismissed without costs so far as respondent no. 2 was concerned. 5. It may be stated at the very outset that the suit is not barred by limitation. The goods were consigned on the 11th August, 1961. Even if limitation is held to have run from this date, the period of one year would expire on the 10th August, 1962. The respondents would get a further period of sixty days for service of notice under Section 80 of the Code of Civil Procedure. These two periods added together expired in the month of October 1962. The Civil Courts in Bihar were closed from the 28th September to the 4th November, 1962. The suit, having been filed on the 5th November, 1962, must be held to have been filed in time. 6. The first point, raised by Mr. P. K. Bose, learned counsel for the appellant, is that the decree under appeal be set aside and the case remanded to the Court below to give an opportunity to the appellant to adduce evidence on its behalf. It is not possible to accede to this request of Mr. Bose. 6. The first point, raised by Mr. P. K. Bose, learned counsel for the appellant, is that the decree under appeal be set aside and the case remanded to the Court below to give an opportunity to the appellant to adduce evidence on its behalf. It is not possible to accede to this request of Mr. Bose. The order-sheet of the court below shows that the appellant was grossly negligent in the pairvi of the case. The plaint was filed on the 5th November, 1962. The appellant appeared on the 21st November, 1962 and prayed for time to file the written statement. The time between the 21st November 1962 and the 29th April 1963 (i. e. more then five months' time) was taken by the appellant in filing its written statement. On the 13th June, 1963, time was again prayed for on behalf of the appellant and the 17th July, 1963 was fixed as the date for hearing and the parties were directed to come ready. On the 17th July, 1963, time was again prayed for on behalf of the appellant and the case was adjourned to the 7th August, 1963. On this date, the appellant again prayed for time which was granted and, as prayed for: by the parties, dasti summons were issued to the witnesses at the risk of the respective parties. The 10th September, 1963 was fixed as the next date. From the 10th September, 1963, the case had to be adjourned at the request of the appellant as many as six times till the 5th May, 1964, time was again prayed for on behalf of the appellant but was refused. It may be stated that, from the very beginning, that is to say, from the 5th November, 1962 when the plaint was filed, the respondents had all along been present in Court and hazri was filed on their behalf. It is also clear that, on the application of the appellant alone, time was allowed for more than nine months to produce its witnesses but no witness was produced by it. The court below was, therefore, right in deciding the case on the ex-parte evidence adduced on behalf of the respondents. 7. It has next been contended that respondent no. 1 had no right to sue. On the submission of Mr. The court below was, therefore, right in deciding the case on the ex-parte evidence adduced on behalf of the respondents. 7. It has next been contended that respondent no. 1 had no right to sue. On the submission of Mr. Bose, a suit for damages can always be filed by a consigner but a consignee cannot maintain a suit unless the title to the goods concerned had passed to him by assignment which may be done, inter-alia, by endorsing the railway receipt in his favour. In the present case, on the submission of learned counsel, the suit brought by respondent no. 2 has been dismissed by the learned Subordinate Judge and no cross-appeal or Cross-objection has been filed on behalf of respondent no. 2. Wherefore, respondent no. 1 can only succeed if it is able to show that the title to the goods concerned had been assigned to it by respondent no. 2. Mr. R. S. Chatterji, learned counsel for he respondents, has not disputed this proposition of law; but in his submission the position would be entirely different if the consigner does not book the goods in his personal capacity but as an agent of the consignee. The submission of Mr. Chatterji is that a principal can always sue on the basis of a contract entered into on his behalf by the agent with a third party inasmuch as the act of the agent is the act of the principal as in the instant case. The submission of Mr.Chatterji is correct. The learned Subordinate Judge has come to the conclusion that the notice (Ext. 3) was given by respondent no. 2 as the agent of respondent no. 1. This finding was arrived at by him on a consideration of the evidence of P. W. 4 and the recitals in Exhibit 3. P. W. 4, in his evidence, bas stated that respondent no, 2 was also an agent of respondent no. 1. Although he was cross-examined on behalf of the appellant, this statement of his was not challenged. In Exhibit 3, which was Bent by respondent no. 2, respondent no. 1 only has been shown as the proposed plaintiff. As already stated, no evidence has been adduced on behalf of the appellant. The learned Subordinate Judge, therefore, was correct in holding that respondent no. 2 was the agent of respondent no. 1 and sent the notice (Ext. In Exhibit 3, which was Bent by respondent no. 2, respondent no. 1 only has been shown as the proposed plaintiff. As already stated, no evidence has been adduced on behalf of the appellant. The learned Subordinate Judge, therefore, was correct in holding that respondent no. 2 was the agent of respondent no. 1 and sent the notice (Ext. 3) in that capacity. It is not possible to come to a different conclusion on the state of evidence on record. Ordinarily, when the action is founded on a contract, the right to maintain the suit on the basis of the contract belongs to the person who entered into the contract, i.e., the consigner. Where, however, consigner acts as an agent of the consignee, the contract is entered into by him on behalf of the consignee. In the present case, the contract was entered into by respondent no. 2 on behalf of respondent no.1. Respondent no.1 is therefore, competent to maintain the suit in his own name Section 226 of the Indian Contract Act runs as follows : “Contracts entered into through an agent, and obligations a1iising from acts done by au agent, may be enforced in the same manner and will have the same legal consequences, as if the contracts bad been entered into and the acts done by the principal in person." The law on the subject has been exhaustively discussed by a Division Bench of the Calcutta High Court in (1) Commissioners for the Port of Calcutta V. General Trading Corporation Ltd., and another (A.I.R. 1964 Calcutta 290), wherein, on a consideration of a large number of decisions, both Indian and English, it ham been laid down: "(1) (a) Where the action is founded on a contract, the right to maintain the action on the contract belongs to the person who entered into the contract. Ordinarily, that person is the consigner. (b) Where, however, the consigner acts as an agent of the consignee and the contract is actually entered into on behalf of the consignee, the consignee may sue in his own name. 8. It has also been contended that the case of agency was not made cut in the notice (Ext. 3) and, as such, the notice was defective in the eye of law. The notice (Ext. 8. It has also been contended that the case of agency was not made cut in the notice (Ext. 3) and, as such, the notice was defective in the eye of law. The notice (Ext. 3) cannot be held to be bad in the eye of law as it fulfils all• the requirements of Section 80 of the Code of Civil Procedure. inasmuch as it states the cause of action, the name, the description and the place of residence of the proposed plaintiff as well as the reliefs to be claimed. It has already been stated that it was sent by respondent no. 2 on behalf of respondent no. 1. 9. It has been next contended on behalf of the appellant that Section 80 of the Code of Civil Procedure requires that there should be identity of the person who issues the notice with the person who brings the suit. If the suit had been brought by respondent no. 1 alone nothing could be said; but, as respondent no. 2 was made a co-plaintiff with respondent no. 1, the entire suit is fit to be dismissed. Reliance in this connection has been placed on (2) Vellayan Chettiar and others V. The Government of Madras and another (A.I.R. 1947 Privy Council 197). The facts of that case were entirely different from these of the present case. It that case, the original proprietor (plaintiff no. 1) sold the properties in suit to plaintiff no, 2 and also put him in possession. Notice under Section 80 was given by plaintiff no.1 alone; but the suit was filed by both the plaintiffs. The question for determination before their Lordships of the Judicial Committee of the Privy Council was as to whether, a notice having been given on behalf of one plaintiff stating his cause of action, his name, description and place of residence and the relief which he claimed, a suit could be instituted by him and another. It was held: "It is clear to their Lordships that it cannot (sic). It was held: "It is clear to their Lordships that it cannot (sic). The section according to its plain meaning requires that there should be in the language of the High Court of Madras 'identity of the person who issues the notice with the person who brings the Suit'.......To hold otherwise would be to admit as implication or exception for which there is no justification," It seems to me that the suit in that case had to be dismissed against both plaintiffs 1 and 2 in as mach as plaintiff no, 2 who had title to the properties had not served a notice under Section 80 of the Code of Civil Procedure and plaintiff no. 1 who had served the notice had no title to the properties having already parted with the interest there in favour of plaintiff no. 2. In the present case the notice (Ext. 3) fulfils ail the requirements of Section 80 of the Code of Civil Procedure. As already held in agreement with the trial court, although this notice was sent by respondent no. 2, it purported to be on behalf of respondent no. 1. Therefore, the Privy Council decision referred to above is no assistance to learned counsel. The mere fact that both the respondents brought the suit will not entail the dismissal of the suit in its entirety on the facts of the present case, As hid down in Order 1 Rule 9 of the Code of Civil procedure, no suit can be defeated by reason of mis-joinder or non-joinder of parties and the court, in such a case, has to deal with the matter in controversy so far as the rights and interests of the parties actually before it are concerned. On the fads of the present case, respondent no. 2 was unnecessarily made a plaintiff; but this will not entail the dismissal of the suit as against respondent no. 1 also. For the very same reason, the decision of their Lordships of the Judicial Committee in (3) Government of the Province of Bombay V. Pestonji Ardetihir Wadia and others (A.I.R. 1949 Privy Council 143), also relied upon by Mr. Bose, is of no assistance to him. 1 also. For the very same reason, the decision of their Lordships of the Judicial Committee in (3) Government of the Province of Bombay V. Pestonji Ardetihir Wadia and others (A.I.R. 1949 Privy Council 143), also relied upon by Mr. Bose, is of no assistance to him. In that case, the notice was given on behalf of the two trustees of the Wadia Trust; but, before the suit could be instituted, one of the trustees died and plaintiffs 2 and 3 were appointed trustees in his place. No notice was given on behalf of plaintiffs 2 and 3. The Suit was held to be not maintainable on the ground that no notice was given by plaintiffs 2 and 3, there being no provision in the Code of Civil Procedure enabling the trustees to sue in the name of the trust. Both the Privy Council decisions referred to above came up for consideration before their Lordships of the Supreme Court in (4) The State of Andhra Pradesh V. Gundugola Venkata Smyanatayan Gain (A.I.R. 1965 Supreme Court 11) and were distinguished on the ground that, "In both these cases, the suit was instituted by two or more persons but not all had served the statutory notice." The principle of law laid down in the cases of the State of Andhra Pradesh by their Lordships of the Supreme Court lends support to the contention of Mr.Chatterji. In the words of their Lordships, "In the present case the person who instituted the suit had in fact served the notice. He had intimated the Government by the notice that a cause of action had arisen in favour of the Inamdar, and that proceedings would be started on behalf of the Inamdars for relief set out in the notice. The cause of action as set out in the notice remained unchanged in the suit, and it is not claimed that the relief set out in the plaint is different from the relief set out in the notice. The cause of action as set out in the notice remained unchanged in the suit, and it is not claimed that the relief set out in the plaint is different from the relief set out in the notice. The only discrepancy between the notice and the plaint is that the notice was given by two persons intimating that an action would be started against the Government for and on behalf of the Inamdars on the cause of action and relief set out therein, the action was instituted by one person but with the permission of the Court for and on behalf of the Inamdar on the same cause of action and for the same relief” In the present case also, as already stated, and notice was given by respondent no.2 on behalf of respondent no.1. The cause of action and the relief claimed in the plaint are the same as those given in the notice (Ext. 3). The only difference is that it was not given by respondent no.1 in person but by respondent no. 2 as his agent. It has, therefore, to be held that this submission of learned counsel for the appellant has also no substance. 10. Mr. Bose has also contended that there was no negligence or misconduct on the part of the Railways. The learned Subordinate Judge, on the state of evidence on record, has come to the conclusion as already stated, that there was negligence and misconduct on the part of the Railways concerned as no disclosure was made either in the written statement or in evidence (in fact, no evidence was adduced on behalf of the appellant) as to how the consignment was dealt with by the Railways. It is not possible to take a view different from that taken by the learned Subordinate Judge on the state of evidence on record. 11. Lastly, it has been contended by Mr. Bose that the learned Subordinate Judge has erred in law in passing a decree for the railway freight paid by respondent no. 2 at the time the consignment was booked. As already stated, this appeal arises out of a suit for damages on account of non-delivery of the consignment on account of negligence and misconduct of the Railway Administrations. The consignment was tendered to the Eastern Railway at Kumardhubi station and it had to be delivered to respondent no. 1 at Bombay. 2 at the time the consignment was booked. As already stated, this appeal arises out of a suit for damages on account of non-delivery of the consignment on account of negligence and misconduct of the Railway Administrations. The consignment was tendered to the Eastern Railway at Kumardhubi station and it had to be delivered to respondent no. 1 at Bombay. The respondents, in the present case, have not claimed the market: value of the goods then prevailing at the place of destination but have confined their claim to the cost price of the goods consigned at the controlled rate and the railway freight besides sales tax. So far as the claim of the respondents consisting of these items are concerned, the only submission of Mr. Bose is that the railway freight (which in this case was already paid vide railway receipt no. 638398 dated the 11th August 1961) cannot form part of the amount claimed as damages. 12. In Strout's Judicial Dictionary, Third Edition, Volume I, it is stated that "Sums payable by way of damages are sums which fall to be paid by reason of some breach of duty or obligation whether that duty or obligation is imposed by contract by the general law or legislation.". In Roland Burrows's words and Phrases Judicially Defined, Volume II, "damages" has been defined• in the following words : "'Damages' to an English lawyer imports this idea that the sums payable by way at damages are sums which obligation, whether that duty or obligation is imposed by contract, by the general law, or legislation." In Halsbnry's Laws of England, Third Edition, Volume 4, at page 151, under the beading Measure of Damages (Loss of goods), it is stated as follows:" The owner is entitled to the value of goods dealt in by way of trade at the place to which they are consigned. If there is a market for that description of goods at such place, the damages are the market value of the goods there at the time when they ought to have been delivered; but if there is no market, then the damages are the cost price of the goods together with the expenses of carriage and such profits as might reasonably be expected to be made in the ordinary course of business..." Reference may also be made to the decision of Mookerji, J., in (5) India General Navigation and Railway Co. Ltd. V. The Eastern Assam Company Limited (I.L.R. 47 Calcutta 1027, 1039), wherein it has been observed: “It is well settled that as a general rule where goods entrusted to a carrier are not delivered according to• the contract, the measure of damages is the value of the goods at the place of destination, in the condition in which the carrier undertook to deliver them at the time when they should have been delivered, less the proper charge of transportation and delivery, if these have not been paid by the consigner." At another place in that judgment (at page 1040). it bas been further observed: "The fundamental principle that the party wronged by the breach of obligation should be a warded compensation for the losses which he has sustained in consequence and should be placed in the same position pecuniarily as if the contract had been performed is subject to important limitations, and compensation is not in fact recoverable for every loss or detriment which may be traceable as a consequence, however remote, of the breach of obligation." 13. Reliance has been placed by Mr. Bose on (6) The Union of India, New Delhi, representing N. E. Railway and W. Railway Administration V. Firm Harchand Rai Bansidhar (First Appeal No. 532 of 1954, decided on the 19th August, 1959), (7) Huduttrai Agarwalla V. Union of India representing Eastern Railway and South Eastern Railway (First Appeal No. 403 of 1955, decided on the 15th March, 1961), (8) Ganesh Lall Gupta V. The Union of India (First Appeal No, 160 of 1961, decided on the 17th January, 1964), (9) Union of India as owner of E. I. Railway (now Eastern Railway) Administration, New Delhi V. Lukoath Prasad Sharaff and another (First Appeal No. 355 of 1955, decided on the 11th July, 1961). (10) Union of India as owner of North Eastern Railway V. Mahadeo Lal and others (First Appeal No. 368 of 1953, decided on the 11th February, 1959) (II) M/s Lahat Sugar Works of the Darbhanga Sugar Company, Labat, district Darbhang a V. Union of India represented by (1) The General Manager, Eastern Railway, Calcutta, and (2) The General Manager, N. E. Railway, Gorakhpur (First Appeal No. 192 of 1954, decided on the 23rd December, 1958) and (12) Sagalmal Choudhury V. Union of India as owner of South Eastern Railway (Letters Patent Appeal No. 119 of 1959, decided on the 4th November, 1964) as well as on (13) Bala Prasad Agiwai V. The Union of India (A.I.R. 1955 Patna 408). It will not be necessary for me to consider the Unreported decisions referred to above as all of them have been considered by a Division Bench in Bala Prasad Agiwai's case, wherein, on a consideration of the above unreported decisions, the following principles were laid down : "The principle is quite clear. Freight charges must always be deducted from the market value at the place of destination. The point can be illustrated by the following simple mathematical formula : (a) Market value of Normal measure the goods at the place of delivery minus of damages freight charges due to the carrier. (b) Where no reliable evidence of the market value of the goods at the place of delivery can be given either became there is no market there or for any other reason, the market value is calculated as follows : Cost of the goods at the place of consignment plus freight charges plus reasonable profits. Substituting this in (a), the next result is- Cost price of the goods a t the place of Normal measure consignment plus of damages freight charges plus reasonable profits minus freight charges. Plus and minus cancel each other, and hence freight charges will have to be completely excluded in calculating the net measure of damages," In Bala Prasad Agiwai's case, the plaintiff claimed damages at the prevailing market rate at the place of destination, besides dunnage and cartage. The plaintiff's evidence, in proof of the market rate was not accepted either by the trial court or by High Court. The plaintiff's evidence, in proof of the market rate was not accepted either by the trial court or by High Court. U. N. Sinha, J., sitting singly, held that the plaintiff-appellant was not entitled to get the rail way freight and the cartage, because these items of expenditure were incurred by him "in the performance of his part of the contract with the Railway." Before the Division Bench, it was contended by Mr. Agarwal for the appellant that, in estimating the market price of the goods at the place of destination the Court ought to have added the transport charges to the price at the place of consignment. The appeal under the Letters Patent was dismissed, and it was held that- "It was open to the plaintiff to show apart from the actual cost price as proved from his bijak, what was the reasonable profit he would have made at the place of destination viz. Tatanagar, by the sale of the goods. He however, led no evidence on this point but relied on his own meagre evidence about the selling rate of sugar at Tatanagar which has been disbelieved by the Courts of fact. Hence, he is "entitled only to the cost price as shown in the bijak plus dunnage as allowed by the learned single Judge...but this result is brought about by his own failure to prove the market value of the goods at the place of destination-and this cannot be a ground for adding the freight charges also to the cost Price which would result in the railway carrying the goods free of charge for the plaintiff's sake." According to Mr. Bose, the decision in Bala Prasad Agiwai's case lays down that no freight charges should be allowed to the plaintiff. It seems to me, however, that that case lays down two principles. Firstly, if the market value of the goods at the place of destination is claimed, the railway freight will have to be deducted from the market value even if the Court do not accept the evidence adduced by the plaintiff as to the market rate prevailing at the place of destination. The reason is obvious. Firstly, if the market value of the goods at the place of destination is claimed, the railway freight will have to be deducted from the market value even if the Court do not accept the evidence adduced by the plaintiff as to the market rate prevailing at the place of destination. The reason is obvious. The market value at the place of destination includes (a) the price paid by the plaintiff for the goods at the place of despatch of the consignment (b) the expenses incurred by him in bringing the consignment at the place of destination 'and (c) reasonable profits. If the plaintiff chooses to claim the market value of the goods at the place of destination (even though he does not succeed in proving it), the railway freight paid by him must be deducted because, as already stated, the market value of the goods at the place of destination includes not only the cost price of the goods at the place of despatch bat also the expenses incurred by him in bringing the consignment to the place of destination as well as reasonable profits. Having claimed the market value of the goods at the place of destination, if he fails to prove the market rate of the goods at the place of destination, the fault is entirely on his shoulders. The second principle has been laid down by their Lordships in formula (b) quoted at page 13 of the judgment. The first principle is not applicable to the facts of the present case where the respondents have claimed damages not in terms of the market value of the goods at the place of destination but have only claimed the actual cost price at the controlled rate plus other expenses including railway freight incurred by them and nothing has been claimed by way of profits. In such a case in the principles relating to the measure of damages, respondent no. 1 cannot be refused the necessary expenses including the railway freight incurred by it for sending the consignment to the place of destination. Even if I was to accept the interpretation put by Mr. P. K. Bose on Baja Prasad Agiwai's case, the present case is distinguishable on facts. That was a case of part delivery of the consignment whereas, in the present case, there was non-delivery of the entire consignment. Even if I was to accept the interpretation put by Mr. P. K. Bose on Baja Prasad Agiwai's case, the present case is distinguishable on facts. That was a case of part delivery of the consignment whereas, in the present case, there was non-delivery of the entire consignment. In Bala Prasad Agiwai's case, the market value of the goods at the place of destination was claimed, whereas, in the instant case as already stated, the claim has been confined to the value of the goods at the place of despatch at the controlled rate besides railway freight. Further, it appears to me-and this I say with utmost respect to their Lordships that the word "due" occurring in formula (a) quoted above has been lost sight of in arriving at the next result. If the word "due" is kept in view, the normal measure of damages would read as follows : Cost price of the goods at the place of consignment plus freight charges due plus reasonable profits minus height charges due. The result that follows would be that if the freight charges have not been paid and are still due they will be completely excluded in calculating the measure of damages. If, on the contrary the railway freight has already been paid, as is the case here, then, to arrive at the measure of damages, the freight already paid has to be added to the cost price of the goods. 14. There is still another angle of approach to the point at issue. On the facts of the present case, the non-delivery of the consignment, which was booked at railway risk, has been found to have been due to negligence and misconduct on the part of the Railway Administrations. The fault is one-sided and is entirely on the shoulders of the appellant. By no stretch of imagination the non-delivery of the goods can be attributed to the respondents. The question which next arises for consideration is as to why and on what principle respondent no. 1 should be denied the amount spent by it towards railway freight, or, in other words, what is the justification for the appellant in withholding the amount which it had already realised when it has not performed its part of the contract? The question which next arises for consideration is as to why and on what principle respondent no. 1 should be denied the amount spent by it towards railway freight, or, in other words, what is the justification for the appellant in withholding the amount which it had already realised when it has not performed its part of the contract? Viewed from any angle of vision, it seems to me that the learned Subordinate Judge was perfectly justified in decreeing the suit in full including the amount spent towards railway freight. 15. Learned counsel for the appellant has also placed reliance on another unreported Bench decision of this Court, namely (14) The Union of India V. Jutharam Ranglal and others (First Appeals 105 and 106 of 1952, decided on the 15th September; 1958). These two appeals arose out of two suits for recovery of compensation on account of non-delivery of the goods in part. In that case, no doubt, the claim of the plaintiff for refund of proportionate freight was disallowed by this Court, which may be due to the difficulty in apportioning the railway freight payable for the goods delivered and those not delivered and, at least, there is no discussion of the law on the point; but, so far as the present case IS concerned, there was complete non-delivery of the goods and, as such, the claim of respondent no. 1 for the refund of the freight already paid cannot be reused. 16. For the reasons stated above, the appeal fails and is dismissed with costs. BAHADUR, J. I agree. Appeal dismissed.