JUDGMENT A. K. PARICHHA, J. : This is an appeal by the defendant-South Eastern Railways against the judgment and decree passed by the learned Sub-ordinate Judge, Sundargarh in Money Suit No.14 of 1975 decreeing the respondent’s suit in part. 2. The plaintiff-respondent is a registered company manu¬facturing cement having its head office at Rajagangpur. It placed orders with M/s. Fridrick Horn Company of West Germany for some machineries and the said company despatched the machineries in 19 cases through shipping vessels “Jalmurari” which arrived at Kidderpore dock. The consignment of the plaintiff-respondent was released through clearing agents, who despatched 7 out of 19 cases to the plaintiff in wagon No.ERKE/55527 under invoice No.PR No.725119 dated 25.7.1972 at Railway risk Ex-Kidderpore dock to Rejangpur Railway siding of the plaintiff on South Eastern Rail¬way. When the wagon was placed at the Rajgangpur Railway siding of the plaintiff on 31.7.1972, it was found that some of the cases were in disorderly/broken condition. Such condition of the cases were immediately brought to the notice of the Goods Clerk of the appellant-defendant posted at plaintiff’s siding at Raj¬gangpur and thereafter to the Station Master, Rajgangpur Railway Station and open delivery was demanded. Ultimately, the matter was referred to D.C.S., Chakradharpur, who ordered open delivery and accordingly, open delivery was made in presence of one Traf¬fic Inspector of Chakradharpur and one loco foreman of Jharsugu¬da. There was shortage of 53 items consisting 310 Nos. and ac¬cordingly shortage certificate was granted. On the basis of this shortage certificate the plaintiff-respondent issued notice of claim u/s. 78-B of the Indian Railways Act. But the claim was not answered for which the plaintiff served a notice u/s. 80, C.P.C. on General Manager and Chief Commercial Superintendent, S.E. Railways and then filed a suit for recovery of Rs.31,810.36 paise and interest @ 12.1/2% thereon in total for an amount of Rs.44,120.53. 3. The defendant-Railways filed W.S. denying the claim of the plaintiff basically on the ground that the loss and damage to the consignment did not occur during transit or for any act of negligence or omission of the Railways. It was specifically plead¬ed that the 7 cases were unloaded from the ship and was booked Ex-Kidderpore docks, which is under Calcutta Port Trust Railways and the said Calcutta Port Trust Railways not having been made a party the suit was bad for non-joinder of necessary party. It was specifically plead¬ed that the 7 cases were unloaded from the ship and was booked Ex-Kidderpore docks, which is under Calcutta Port Trust Railways and the said Calcutta Port Trust Railways not having been made a party the suit was bad for non-joinder of necessary party. It was also pleaded by the defendant-appellant that the wagon was deliv¬ered at the siding of the plaintiff-respondent at Rajgangpur and it remained there for 8 days and in such situation possibility of extraction or pilferage at the siding cannot be ruled out. It was also pleaded that the shortage certificate granted cannot form the basis for claim for compensation, as it is not an acknowl¬edgement of liability. 4. Considering the pleas of the parties learned Subordi¬nate Judge framed as many as 5 issues and accepted evidence of the parties. The plaintiff examined 3 witnesses and produced several documents which were marked as Exts.1 to 20. The defend¬ant did not examine any witness, but simply relied on the for¬warding letter note for General Marchandise, which was marked as Ext.A. On consideration of the evidence, oral and documentary, learned Subordinate Judge came to the conclusion that the short¬age of the articles and damage to the cases occurred when the consignment was in the custody of S.E. Railways, that Calcutta Port Trust Commissioner Railways was not a necessary party and the suit was not bad for non-joinder of necessary party. Accord¬ingly, it was held that the plaintiff is entitled to Rs.31,810.36 paise along with the interest @ 6% per annum from the date of filing of the suit till realization. That judgment and decree is under challenge in this appeal. 5. Mr. Pal, learned counsel appearing for the appellant submits that at the time of booking of the cases, it’s contents were not revealed to the Railways authorities and so the defend¬ant-Railways cannot be made liable for the alleged shortage of some items. He also argued that when the wagon was placed in the siding of the plaintiff at Rajgangpur, the damage or pilferage could have occurred at the siding for which the defendant-Railways could not be held responsible. In support of his conten¬tion he cited the case of Orient Paper Mills Ltd. v. Union of India, AIR 1984 Orissa 156 and Union of India and another v. Aluminium Industries Ltd., AIR 1987 Orissa 152. Mr. In support of his conten¬tion he cited the case of Orient Paper Mills Ltd. v. Union of India, AIR 1984 Orissa 156 and Union of India and another v. Aluminium Industries Ltd., AIR 1987 Orissa 152. Mr. J. Das, learned counsel for the respondent states per contra that the goods were booked with the defendant-Railways at Kidderpore at the Railways risk rate and at the time of booking the defendant never pointed out any breakage/damage of the cases. He submits that the wagon was brought to the siding of the plaintiff on 31.7.1972 and immediately the damaged condition of the cases was brought to the notice of the Railway personnel and demand was made for open delivery; so there is no scope to say that the breakage of the cases and pilferage could have occurred at Khid¬derpore Dock or at the Railways siding of the plaintiff at Raj¬gangpur. Mr. Das points out that once the Railway accepts the goods for transit at Railway risk, it automatically becomes responsible for any loss or damage of consignment unless it establishes that the loss or damages occurred due to the excep¬tional circumstances enumerated in Section 73 of the Indian Railways Act. He submits that when the defendant-Railways did not produce any evidence to show that the loss or damage occurred due to exceptional circumstances noted in Section 73 of the aforesaid Act and did not disclose how the consignment and pack¬ages were dealt with through out the journey, it was liable to pay for the loss sustained by the plaintiff-respondent. To sup¬port his contention Mr. Das cited the case of Union of India v. Brijlal Purshottamdas AIR 1969 SC 817 and Union of India and another v. Rameshwar Prasad, AIR 1983 M.P.59. 6. Before delving into the factual aspects it will be proper to consider the legal aspects. The provisions of Section 73 and 76-F of the old Railways Act are relevant for the present suit consignment as the alleged cause of action arose in July, 1972 which was much before the Indian Railways Act, 1989 came into force, Section 73 of the old Railways Act reads as follows : “73. The provisions of Section 73 and 76-F of the old Railways Act are relevant for the present suit consignment as the alleged cause of action arose in July, 1972 which was much before the Indian Railways Act, 1989 came into force, Section 73 of the old Railways Act reads as follows : “73. General responsibility of railway administration as a carrier of animals and goods.- Save as otherwise provided in this Act, a railway administration shall be responsible for the loss, destruction, damage, deterioration or non-delivery, in transit, of animals or goods delivered to the administration to be carried by railway, arising from any cause except the following, namely:- (a) act of God; (b) act of war; (c) act of public enemies; (d) arrest, restraint or seizure under legal process; (e) orders or restriction imposed by the Central Government or State Government or by any officer or authority subordinate to the Central Government or a State Government authorized in this behalf; (f) act or omission or negligence of the consign or the consignee or the agent or servant of the consignor or the con¬signee; (g) natural deterioration of wastage in bulk or weight due to inherent defect, quality or vice of the goods; (h) latent defects; (i) fire, explosion or any unforeseen risk; Provided that even where such loss, destruction, damage, deterio¬ration or non-delivery is proved to have arisen from any one or more of the aforesaid causes, the railway administration shall not be relieved of its responsibility for the loss, destruction, damage, deterioration or non-delivery unless the administration further proves that it has used reasonable foresight and care in the carriage of animals or goods. This Section clearly says that the Railway Administration shall be responsible for the loss, destruction, damage, deterio¬ration or non-delivery of goods delivered to it to be carried unless such loss, destruction etc. occurred due to the reason noted in Clauses (a) to (i) of Section 73. The proviso to Section further clarify that the Railway Administration shall not be relieved of its responsibility for the loss, destruction etc. unless besides providing that the non-delivery or loss arose because of the exceptional circumstances noted in the Section further proves that it had used reasonable foresight and care in the carriage of goods. In the instant case the appellant-defend¬ant has not led any evidence at all to discharge it’s burden. 7. unless besides providing that the non-delivery or loss arose because of the exceptional circumstances noted in the Section further proves that it had used reasonable foresight and care in the carriage of goods. In the instant case the appellant-defend¬ant has not led any evidence at all to discharge it’s burden. 7. Admittedly, the suit consignment was sent at railway risk. It is pleaded in paragraph-2 of the plaint, stated in the notice issued under Section 80 of the C.P.C. and is also evident in the contents of the forwarding note Ext-A. When the suit con¬signment had been book at railway risk Section 73 of the Act casts a responsibility on the railways to ensure against the loss, damage etc. and it shall not be relieved of its responsi¬bility for the loss unless the administration proves that it had used reasonable foresight and care in carriage of the consign¬ment. This view is supported by the ruling of a Division Bench of this Court in the case of Union of India v. Krishna Stores; 57 (1984) C.L.T. 321, where the following observation finds place : “....Section 74(2)makes it clear that if the goods are booked at the Railway risk rate, the liabilities of the Railway Administration are absolute, and in such a case the claimant is not required to prove that the loss, destruction, damage, dete¬rioration non-delivery was a consequence of the negligence or misconduct on the part of the Railway Administration.....” The next aspect for consideration is what is the legal consequence when the railway does not prove that it used reasona¬ble foresight and care. This aspect was considered by the apex Court in the Case of Union of India v. Brijilal Purshottamdas (supra), which contains the following observations : “Section 74D envisages a disclosure in the form of a precise statement of how the consignment was dealt with by the adminis¬tration followed by evidence at the trial in proof of the state¬ment. The Section clearly contemplates that on this matter the administration shall submit its evidence first at the trial, and it is only when negligence or misconduct cannot fairly be inferred from such evidence that the burden of proving the negli¬gence or misconduct shifts to the consignor. The Section clearly contemplates that on this matter the administration shall submit its evidence first at the trial, and it is only when negligence or misconduct cannot fairly be inferred from such evidence that the burden of proving the negli¬gence or misconduct shifts to the consignor. In Surat Cottan Spinning and Weaving Mills Ltd. v. Secretary of State, 64 Ind App 176 = (AIR 1937 PC 152) and Union of India v. Mahadeolal, 1965-3 SCR 145 = ( AIR 1965 SC 1755 ) the Risk Notes B and Z under consid¬eration provided that in certain cases “the railway administra¬tion shall be bound to disclose to the consignor how the consign¬ment was dealt with throughout the time it was in its possession or control and if necessary to give evidence thereof before the consignor is called upon to prove misconduct.” Section 74D does not expressly provide that the administration is bound if neces¬sary to lead evidence as to how it dealt with the consignment before the consignor is called upon to prove misconduct or negli¬gence but we think that this obligation implicit in the duty of disclosure imposed by the Section.” It may be clarified that in Brijilal’s case the apex Court interpreted Section 74D which existed prior to the amendment made by Act 39 of 1961. However, the legal position as laid down by the apex Court (supra) has not been diluted in any manner because new Section 76-F is virtually the reproduction of old Section 74-D. The Madhya Pradesh High Court also clarified this aspect in the Case of Union of India and another v. Rameshwar Prasad (supra) by passing the following remark. “This Section, “(76-F)” has been added by Act No.39 of 1961 and is reproduction of old Section 74-D. It imposes statutory obligation upon the Railway Administration to disclose to the consignor of goods how the consignment was dealt with when it was in its control.” These judicial pronouncements indicate that in common course of events loss, damages etc. of the consignment will not occur if proper care is taken and therefore, in case of loss or damages to the goods a presumption of negligence of railway administration would arise and it would be for the Administration to rebut such presumption by contrary evidence. As has been stated earlier the appellant led no evidence to discharge its statutory obligation or to rebut the presumption. As has been stated earlier the appellant led no evidence to discharge its statutory obligation or to rebut the presumption. In the present case the appellant-defendant has not adduced any evidence and has thus failed to discharge its burden statutorily imposed under Section 73 and 74-D of the Act. 8. The plea of the appellant-defendant was that the loss, damage/pilferage might have occurred at the railway siding of the plaintiff-respondent. No positive evidence was led in this regard by the appellant. On the other hand, the evidence of P.W.2 and the correspondence and sequence of the events relied by the plaintiff-respondent clearly reveal that the damages, pilferage, loss etc. to the consignment did not occur at the siding of the plaintiff. P.W.2 stated that as soon as the wagon carrying seven cases reached the OCL siding he noticed the damage to the cases and pointed out the same to the piloting guard of the wagon and insisted the piloting guard to make the remark about the loss, damaged etc. on the placement memo. He also stated that when the piloting guard did not make the remark on the memo, he immediate¬ly handed over the latter Ext.6 to the Goods Clerk at 17.30 hours mentioning therein that the machinery parts were lying on the floor of the wagon and that OCL would not accept the placement for unloading in these conditions. He also intimated this fact to the goods clerk and Railway Station Master, Rajgangpur, vide letter Ext-5. Then on the same day a letter Ext.8 was issued by the Store Officer, OCL to the Railway Station Master proposing to accept placement with clarified remark for unloading the wagon in presence of the Railway Staff and for issue of necessary certifi¬cates. He also demanded open delivery. On the following day i.e. 1.8.1972 a telegram, Ext.7 was sent to the District Commercial Superintendent of the Railways intimating about the loss and damages and demanding open delivery. The DCS replied vide Ext.9 suggesting the OCL authorities to approach the Station Master for grant of open delivery after completion of unloading operation. Where after, the Store officer of OCL wrote a letter, Ext.10 to the Station Master intimating about the advice given by DCS in Ext.9. After all these exercise the open delivery of the consign¬ment was given in presence of the Railway personnel and a report, Ext.13 dated 11.8.1972 was prepared. Where after, the Store officer of OCL wrote a letter, Ext.10 to the Station Master intimating about the advice given by DCS in Ext.9. After all these exercise the open delivery of the consign¬ment was given in presence of the Railway personnel and a report, Ext.13 dated 11.8.1972 was prepared. The aforesaid documents, evidence and the sequence of events completely eliminate any mischief to the consignments at the private siding of the OCL. Therefore, the obvious inference would be that pilferage and damages occurred during the transit of the consignment. That being the situation, the ratio of the cases in Orient Paper Mills Ltd. v. Union of India (supra) and Union of India and another v. Aluminium Industries Limited (supra) will not be of any help as the fact and circumstances of these cases are totally different, inasmuch as, in those cases the consignments were loaded in the wagons in the absence of any railway personnel. 9. Learned counsel for the appellant argued that the suit consignment had not been packed properly by the consignor for which the alleged damage and loss occurred. In this regard,, it would be profitable to peruse the railway receipt Ext.15. There is a column in Ext.15 earmarked to indicate the defective condi¬tion of packing of consignments. There is no remark in this column by the railway official who received the cases that the packing of the suit consignment was in any way defective. The Railway Administration having accepted the packing without any demure at the time of booking and unloading cannot take the plea of defective packing at this belated stage. 10. It is contended by the learned counsel for the appellant that the suit was not maintainable for non-joinder of necessary party such as Calcutta Port Commissioner. This submis¬sion is misconceived inasmuch as the booking of the suit consign¬ment was made directly by the plaintiff’s agent with the South Eastern Railway, which has its own siding and booking office in the Calcutta Port area. The Booking clerk who received the freight for the suit consignments and issued the railway receipt is an employee of the South Eastern Railway. Thus, the Calcutta port was in no way connected or involved in the contract for carriage of the suit consignment to Rajgangpur. Learned trial Court, therefore, rightly said that the suit was not bad for non-joinder of necessary party. 11. Thus, the Calcutta port was in no way connected or involved in the contract for carriage of the suit consignment to Rajgangpur. Learned trial Court, therefore, rightly said that the suit was not bad for non-joinder of necessary party. 11. For all the aforesaid reasons, the impugned judgment and decree is confirmed and the appeal is dismissed on contest with costs. Appeal dismissed.