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1. This letters patent appeal by the defendant is directed against the judgment in Second Appeal No. 886 of 1956 decreeing the suit of the plaintiff as was done by the trial Court and reversing the judgment and decree of the lower appellate court.

2. The facts giving rise to this appeal are shortly these. The plaintiff (Bihar State Co-operative Bank Ltd.) instituted the suit giving rise to this appeal for recovery of Rs. 1398-14-9 as the price of a bale of cotton and Rs. 32 for the expenses incurred in serving a notice. The plaintiff was a registered Society having its registered office at Patna. The defendant (The New Asiatic Insurance Co. Ltd.) also was a registered company having its registered office at New Delhi. The plaintiff used to make purchases of cloths at Bombay and distribute them through its local agents to different societies in the Stale of Bihar. According to the directions of the plaintiff, its commission agent Messrs Ganesh Narain Mahadeo. Lal of Bombay despatched one bale of cotton bearing No. 869 of "Hirjee Mill", to Messrs. Nasriganj Co-operative Development and Cane Marketing Union Ltd., Bikramganj, under Railway receipt No. 4040/45 dated 1-5-1951 ex Wadi Bunder to Bikramganj. These goods were insured with the defendant under policy No. P/60/4/1T dated 2-8-1950 and according to the terms of the said policy, the defendant was liable to reimburse the plaintiff for the loss in case of rail accident, theft, pilferage, including risk of non-delivery of the said bale. This bale was not delivered to the plaintiff's agent at Bikramganj in lime and the plaintiff's agent was informed by the Station Master, Bikramganj, on 9-6-1951 that the said bale was stolen from the railway godown at Bikramganj.

On receiving this information, plaintiff lodged a claim with the Railways and sent a copy of it to the defendant. The district Traffic Superintendent, Arrah-Sasaram Light Railway Calcutta, informed the plaintiff by his letter dated 22-8-1951 that a gang of armed dacoits entered the Bikramganj station, overpowered the chaukidar on duty, opened the station godown and decamped with the said consignment along with other goods. The Stalion Master lodged a first information at the Bikramganj Police Station on 8-6-1951 and a case was instituted under Section 457/380 of the Indian Penal Code. The Superintendent of Police, Shahabad, informed the plaintiff by his letter dated 14-3-1952 that four bales of cloth kept in the goods shed were stolen by cutting sendh in the godown and the case was investigated but no clue of the stolen articles having been found, final report was filed in that case. The plaintiff pressed the claim against the Railways, but the District Traffic Superintendent refused to entertain it. The plaintiff served a notice on the defendant about its claim, but the latter gave an evasive reply on 22-9-1952 and subsequently refused to accept the claim in another letter dated 14-12-1952. The said policy covered the risk of theft as well and hence the defendant was liable to pay the price of that bale amounting to Rs. 1398-14-9. The plaintiff claimed Rs. 32 more as being the expenses incurred in serving a notice and accordingly the total claim came to Rs. 1430-14-9. The plaintiff instituted the suit on 29-4-1954.

5. There are certain facts about which there can be no dispute. On 1-5-1951, one bale of cotton was booked at Wadi Bunder by Railway receipt No. 4040/45 and it had to be sent to Bikramganj station in the Arrah Sasaram Light Railway. This bale was insured with the defendant on 2-8-1950. On 9-6-1951 the Station Master of Bikramganj informed the plaintiff that the said bale was stolen from the railway godown at Bikramganj. The plaintiff then lodged a claim with the Railway and that was within six months of the dale of the issue of the railway receipt. On 1-9-1951, the plaintiff sent its claim to the defendant (vide the entry in the claim bill book, exhibit 5). The question for consideration is as to whether the defendant is liable in accordance with the terms of the policy, exhibit 1(a) for the loss suffered by the plaintiff. The relevant terms of this policy, exhibit 1(a) are these:

The question, however, as to what would be the consequences, if one of the conditions in a policy is impossible of fulfilment does not arise in the present case. The position in the present case was that after the booking of the consignment the railway receipt was sent to the consignee and the consignee had to make enquiries about the arrival of the train carrying that consignment. The Station Master at Bikramganj was under no obligation to inform the plaintiff about the arrival of the train. The plaintiff could very well depute one of it agents or an employee to find out from the Station Master, Bikramganj about the arrival of the train and the receipt of the consignment in question, in order to take delivery of the said consignment as soon as possible and to avoid the payment of any demurrage, but the plaintiff has not shown that proper steps were taken in this direction. The plaintiff knowingly agreed to a condition that risk would last for three days only after the arrival of the train at the destination and that no liability for loss would attach unless notice was given within 10 days of the expiry of the risk to the company. Having agreed to a term like this the plaintiff ought to have been diligent and found out for itself as to when the train arrived at Bikramganj. In fact a demand for the delivery of the consignment could have been made on the day of the arrival of the train itself if the plaintiff would have been vigilant, but the position is different and the plaintiff has not been able to state in the present suit as to when the train arrived at Bikramganj.