ST JOSEPH TEXTILES Vs. UNION OF INDIA

JUDGEMENT

(1.) The appellant is a firm carrying on business in textiles at Karur. One Ganesh Chander Das of Azim Ganj, West Bengal had visited Karur and selected handloom cloth worth Rs. 53,441.93 to be booked by the appellant-firm to Azim Ganj City Railway Station. He sent the Parcel Way Bill along with bank demand draft for a sum of Rs. 52,672.93 being the price, of the goods supplied less railway freight of Rs. 769/- to the State Bank of India at Jiaganj. He undertook to clear the demand draft by payment to the Bank and take the Parcel Way Bill from the Bank. The appellant booked the cloth at Karur Railway Station for carriage by railway to Azim Ganj on 11-6-1973 -under Parcel Way Bill No. 835434 of the same date. The appellant then sent the said Parcel Way Bill and the demand draft to the State Bank of India, Jiaganj. The normal time for the goods to reach the destination was less than 30 days. The State Bank of India sent back the demand draft and the Parcel Way Bill to the appellant on 12-9-1973 for the reason that the payment was not forthcoming. Therefore, on 12-9-1973, the appellant addressed a letter to the Station Master, Azim Ganj requesting him to rebook the goods to Karur. Along with the request, the appellant enclosed the original Parcel Way Bill endorsed in his favour and the General Forwarding Note duly signed, to enable the Station Master to rebook the goods to Karur. This letter was acknowledged by the Station Master, Azim Ganj on 18-9-1973. However, he did not reply to the appellant. Thereafter, the appellant sent an Express telegram on 4-10-1973 which was followed by a letter of even date sent by registered post. It appears that in reply, the Station Master, Azim Ganj City Railway Station communicated to the appellant on 15-10-1973 that he had already sent a letter dated 27-9-1973 to the appellant in which he had stated that the appellant's letter had been forwarded to the Divisional Commercial Superintendent, Eastern Railway, Howrah and Chief Commercial Superintendent, Eastern Railway, Calcutta and that he had not received any reply from the said officers. The communication also stated that the matter would be disposed of as soon as orders were received from the said officers. The appellants then sent telegrams to the Chief Commercial Superintendent and the General Manager, Eastern Railways on 6-10-1973. On 8-10-1973, the appellant addressed further letter to Station Master, Azim Ganj, to the General Manager, Eastern Railway, and the Chief Commercial Superintendent, Eastern Railway by way of reminder. On 9-10-1973, he also gave notice of claim for Rs. 53,441.93 under Section 78 of the Indian Railways Act [hereinafter referred to as the 'Act'] to the General Manager [Claims], Eastern Railway, Calcutta and to the General Manager [Claims], Southern Railway, Madras. In the notice, it was alleged that the Railway Administration was grossly negligent and misconducted itself and was careless in handling the goods and in not rebooking and delivering the goods back to the appellant. The Chief Commercial Superintendent acknowledged the notice on 7-11-1973. In the meanwhile, the appellant again sent another letter on 31-10-1973 to the Divisional Superintendent, Eastern Railway, Howrah to return the Parcel Way Bill which had been sent by it to the Station, Master, Azim Ganj and which the Station Master had forwarded to the said officer for action. To this letter also, there was no reply from the said officer. The appellant thereafter filed the present suit claiming from the Railways Rs. 53,441.93 by way of damages.

(2.) The suit was defended by contending that the parcels and the Parcel Way Bill were carried by the Railways with due care and caution, and they reached Azim Ganj City Railway Station on 1-7-1973 in good condition and were made available for delivery for more than seven days. No one turned up for taking delivery of the goods till 20-7-1973. On 21-7-1973, the parcels were taken delivery of by one Sunil Dutta against the Parcel Way Bill produced by him, and against payment of all charges due to the Railways. The appellant's request for rebooking of the parcels to Karur was received on 12-9-1973, i.e., about two months after the termination of transit of the goods. The defendants were, therefore, not liable in law for the alleged non-delivery of the parcels that occurred after seven days after the termination of the transit, since the Railways were protected against such nondelivery by the provisions of Section 77(2) of the Act. It was also contended that there was no negligence, misconduct or carelessness on the part of any of its servants. 'The defendants were also not liable for the fraud practised by the consignor or the consignee or their agents. It was further contended that even assuming that the Railway receipt on which the delivery was effected to the said Sunil Dutta was not a genuine one, the Railways were not liable for the loss which occurred after seven days of the termination of the transit of the goods at its destination. The Trial Court decreed the suit. In appeal by the Railways, the High Court relied upon the provisions of Section 77 (2) of the Act. which exonerated the Railways of any liability for loss etc. beyond the period of seven days after the termination of the transit, and allowed the appeal and dismissed the suit.

(3.) In this appeal against the decision of the High Court, the only question to be answered is whether the respondent-Railways can claim the protection of Section 77(2) of the Act for the delivery of goods to a wrong person against a non-genuine railway receipt since the delivery of goods was not taken of for more than seven days after the termination of the transit and the wrong delivery of the goods occurred after the expiry of the said period. Section 77 of the Act reads as follows: