UNION OF INDIA UOI Vs. KARNATAKA ELECTRICITY BOARD

JUDGEMENT

(1.) This appeal is by the Railway Administration of the Union of India, defendant in O.S. No. 94 of 1978, on the file of the Civil Judge, Haveri, and is directed against the jugdment and decree dated 18-9-1982, decreeing the claim of the Karnataka State Electricity Board, the plaintiff in the suit, for refund of Rs. 21,456--10 alleged to have been wrongly recovered by the defendant by way of what are referred to as the "wharfage" and "demurrage" charges respecting the consignment of a Transformer and its accessories sent through the Railway by the New Government Electric Factory Ltd., Bangalore from Byyappanahalli Railway Station at Bangalore to be delivered to the plaintiff at Haveri in Dharwar District. The appeal was admitted on 4-4-1983. The matter has now come up for orders on the prayer for interlocutory application for stay. With the consent of learned Counsel on both sides the appeal is taken up for final hearing, heard and disposed of by this Judgment. The parties are hereinafter referred to with reference to a their array in the original proceedings.

(2.) The relevant and material facts leading up to the institution of the suit are these : On 30-10-1972 The New Government Electric Factory Limited (N.G.E.F.), Baogalore delivered to the Railways at Byyappanahalli Railway Station, Bangalore, a "10 M.V.A. Transformer" with its accessories for transportation to and delivery at Haveri to the consignee -- the plaintiff. The consignment in due course reached Haveri on 20-3-1973 and remained undelivered till 16-5-1973 at the Railway-yard at Haveri. There is some dispute between the parties as to the cause for the delay in delivery, the plaintiff alleging that the postponement of delivery was due and owing to the nonavailability of a crane to lift the consignment. However, that aspect of the matter is not germane having regard to the limited scope of this appeal. It would appear that on 16-5-1973 when the consignment was ultimately taken delivery of by the plaintiff, the Railway authorities insisted upon the payment of, and recovered from the plaintiff, the sum of Rs. 20,191 - 60 towards what was claimed as "Demurrage" charges and a further sum of Rs. 1,239--50 by way of "wharfage" charges. In all a sum of Rs. 21,456--10 was paid by the plaintiff, according to it, under protest, the plaintiff having disputed its liability to pay these charges. It is averred by the plaintiff that as the Transformer was urgently needed the Demurrage and Wharfage charges were deposited with the Station Master on the assurance from the Station Master, and on the expectation, that it would be refunded after due enquiry and consultation with the higher authorities in due-course. On 2l-5-1973 there was a claim made by the plaintiff for the refund. There was some further correspondence between the plaintiff and the defendant culminating in the notice dated 13-7-1978 (Exhibit P. 10) under Section 80 C.P.C. The suit itself came to be filed on 28-11-1978, some five and half years after payment of the disputed charges.

(3.) Appellant-defendant contested the claim urging that it was no part of its obligation to unload the consignment and that the operations of loading and unloading were the entire responsibility and concern of the consignee and that the levy of Wharfage and Demurrage charges were, in the circumstances, justified. It was denied that any assurance for a refund had been held out to plaintiff. It was also urged that the suit was hopelessly barred by limitation.