P. N. KHANNA ( 1 ) THE appellant-firm s suit for recovery of Rs. 4,275. 76, as damages for non-delivery of a parcel containing hand-loom woollen shawls booked by it at Chandni Chowk Delhi City Booking Agency of the Northern Railway on November 14, 1961, for transport to and delivery at Silao, was dismissed by the learned Sub-Judge, I Class, Delhi, on the ground that the goods in question were excepted articles within the meaning of Section 75 of the Indian Railways Act; and as such the Railways were not liable for their non-delivery, as the value thereof had not been declared by the appellant-consignor at the time of booking. In appeal, the learned Additional District Judge, Delhi, confirmed this finding, but held that it had been proved that the goods in dispute booked by the appellant were of the value of Rs. 4,275. 76, the amount claimed in the suit The appeal was dismissed with costs. ( 2 ) THE main question that has arisen for consideration, in this second appeal, therefore, is about the scope and true construction of Section 75 of the Indian Railways Act (DC of 1890) before it was amended by Section 13 of Act 39 of 1961, which came into force with effect from January 1, 1962, Section 75 before its amendment read as follows: "further provision with respect to liability of a railway administration as a carrier of articles of special value. (1) When any articles mentioned in the Second Schedule are contained in any parcel or package delivered to a railway administration for carriage by railway and the value of such articles in the parcel or package exceeds (three hundred rupees), the railway administration shall not be responsible for the loss, destruction or deterioration of the parcel or package unless the person sending or delivering the pared or package to the administration caused its value and contents (to be declared in writing) or declared them in writing at the time of the delivery of the parcel or package for carriage by railway, and, if so required by the administration, paid or engaged to pay in writing a percentage on the value so declared by way of compensation for increased risk. (2 ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (2 ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (3 ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . In the Second Schedule referred to in the aforesaid Section 75, article mentioned against item (m) is "shawls". It has been found by the Lower Appellate Court that the appellant did not make the required declaration about the value of the contents of the parcel at the time of its delivery for carriage by the railways, nor paid or engaged to pay a percentage on the value by way of compensation for increased risk. The goods admittedly were booked at railway risk. The value of the articles in the parcel exceeded Rs. 300. 00. Under the circumstances, the Railway Administration will not be responsible under Section 75, if the Articles contained in the parcel were of the description mentioned in the Second Schedule (in this case shawls ); and there has been loss of the parcel Destruction or deterioration of the parcel is out of question, as that is nobody s case. ( 3 ) MR. A. L. Sehgal, the learned counsel for the appellant contended that the courts below have erred in law in affording protection to the Railways, although there was no loss of the parcel. The railways could not shake off their liability for the non-delivery of the goods. His second contention was that the goods booked by the appellant were admittedly "handloom woollen shawls" and not "shawls". . According to him, "shawls" mentioned against item (m) in the Second Schedule are expensive shawls like the Kashmiri shawls. Handloom Wollen shawls, according to the learned counsel, are common articles and not covered by the said description. ( 4 ) EXAMINING the first contention of the counsel, as to whether the respondent railway can deny their responsibility in the absence of their alleging or proving loss, it is noticed that in paragraph 5 of the plaint, the appellant firm stated that on its surrendering the parcel way bill, it was offered a parcel of a suspicious nature, held by four iron straps, instead of eight which had originally been fixed around it. The original Delhi Railway Booking Office mark on the parcel was missing. In paragraph 6, it was stated that there was no question of the appellant taking delivery of goods which did not belong to it and that the parcel offered was different from the one which had been delivered for booking to the railways. Both these paragraphs Nos. 5 and 6 of the plaint were admitted by the respondent to be correct. In paragraph 11 of the plaint, it was stated that "the non-delivery of the plaintiff s goods was owing to the negligence/misconduct of the railway administration concerned and/or their servants for which they were bound to compensate the plaintiff which they failed to do". In reply, it was stated in the written statement by the respondent: "that non-delivery is not due to negligence or misconduct of the railway but is rather due to the criminal interference with the goods at Silao railway station, therefore, the railway is not responsible. " Non-delivery was not disputed; the same was said to be due to "criminal interference with the goods". What this so-called criminal interference was, was not explained. This was a vague plea and at the time of the framing of issues, the learned Sub-Judge held it to be so. In his order, he observed: "such a plea cannot be taken notice of in the absence of material facts giving rise to this plea. So this plea will be deemed as struck off unless the defendant chooses to amend the written statement within 7 days. " This order was perfectly justified. No attempt was made to amend the written statement or to give better particulars. In the absence of such a plea, no evidence could be led to prove loss; and in any case none was attempted. There was thus neither any allegation nor proof of the alleged loss. ( 5 ) MR. R. L. Aggarwal, the learned counsel for the respondent, submitted that non-delivery itself could result only from loss of goods to the Railways. Non-delivery, according to him, amounted to loss referred to in Section 75. This contention of the learned Counsel cannot be accepted, more especially as the respondent, as already noticed, failed to comply with the orders of the court and never amended the written statement nor furnished better particulars. Non-delivery was admitted. Loss was not pleaded. Proof was not attempted. Non-delivery, according to him, amounted to loss referred to in Section 75. This contention of the learned Counsel cannot be accepted, more especially as the respondent, as already noticed, failed to comply with the orders of the court and never amended the written statement nor furnished better particulars. Non-delivery was admitted. Loss was not pleaded. Proof was not attempted. Ground was not laid even for an inference of loss. Under the circumstances, the first appellate court was wrong in holding that the non-delivery to the appellant amounted to loss of goods so as to attract the provisions of Section 75 of the Railways Act. Mr. Aggarwal relied on Romesh Chander v. Governor-General in Council, (1949) 51 Pun LR 52 = (AIR 1949 EP 285 ). In this case, the goods were proved to have been delivered to a wrong person. This of course was a loss to the Railway. It was held that the goods were lost by mis-delivery; and, therefore, the price could not be recovered by virtue of Sec. 75. This is not the case here; as nothing has been brought on record to show as to what happened to the consignment, which was not delivered. There is no question of loss in the present case as mere non-delivery cannot be equated with loss. On the other hand, Mr. Sehgal placed reliance on Governor-General in Council v. Debi Sahai, AIR 1946 All 198, Union of India v. M. Hanuman Das, AIR 1954 Mys 180, and Union of India v. M/s. Paul Scientific and Chemical Corporation, AIR 1972 All 192 , for the proposition that non-delivery of the goods did not amount to loss of goods as envisaged in Section 75 of the Railways Act. In an unreported judgment of a Division Bench of the Circuit Bench of the Punjab High Court at Delhi, in Ram Sarup Shyam Sunder v. Union of India, RFA 47-D of 1954, decided on 7-8-1959 (Punj.), Mr. Justice A. N. Grover, (as he then was), speaking for the Bench observed that the Railways failed to establish that the goods had been lost and if that be so, then protection cannot be claimed under Sec. 75 of the Indian Railways Act. As no loss has been alleged or proved in the present case, the Railways cannot escape their liability as a bailee and cannot resist the appellant s claim. As no loss has been alleged or proved in the present case, the Railways cannot escape their liability as a bailee and cannot resist the appellant s claim. In view of this, it is not necessary to examine the second contention of Mr. Sehgal. ( 6 ) THE judgments and decrees of the courts below cannot, under the circumstances, be sustained. It has been found by the learned Additional District Judge that the value of the articles, which were not delivered to the appellant was Rs. 4275. 76. The appellant, therefore, is entitled to recover this amount from the respondent. ( 7 ) THE appeal accordingly is allowed and the decrees of the courts below are set aside and the appellant s suit is decreed for Rs. 4,275. 76 with costs. Counsel fee Rupees 150. 00.