UNION OF INDIA Vs. ABDULLA AKBARALI AND COMPANY

JUDGEMENT

(1.) Respondent of this appeal was doing some business in explosive substance at Mahuva. It had purchased 5,000/- aluminium electric detonotors from M/s. Abdulhusein M. Alabuxji of Nagpur. The goods were consigned from Nagpur to Mahuva on 15.2.1974. The railway receipt was despatched by the consignor to the plaintiff through the Bank at Bhavnagar. The goods in question reached at Mahuva Railway Station on or about 20.4.1974 in two cases. The plaintiff found two cases in broken condition and having suspected shortage, the plaintiff thereupon asked for open delivery which was granted and in presence of panchas the delivery was affected to the plaintiff on 30.8.1974, whereby 3675 pieces of detonotors were found short. Shortage certificate and the panchnama was drawn. The plaintiff i.e. present respondent served the Railway Administration with claim notice under sec.78-B of the Railways Act, 1890 (hereinafter referred to as `the Act'), on 3.9.1974, which was followed by statutory notice under sec.80 of the Code of Civil Procedure. On non-compliance, the respondent filed a suit in the trial court for the recovery of an amount of Rs.3,297.75p for the short delivery of 3675 pieces of detonotors and Rs.576.00 as interest by way of damages.

(2.) Defendants i.e. Union of India representing Western Railway Administration and the Union of India representing Central Railway Administration. Both the defendants were duly served, but defendant no.1 failed to appear while defendant no.2 appear and contested the suit on various grounds. The legality of the suit notice under sec.78(B) was also challenged. It was contended that the suit is barred by law of limitation. From pleadings of the parties, the learned trial Judge framed the issues and ultimately accepted the case of the plaintiff and decreed the suit. Being dissatisfied the defendants had filed First Appeal before the District Court at Bhavnagar being Regular Civil Appeal No.13 of 1978, wherein, two points were raised for determination. The first is whether the suit is barred by law of limitation under sec.78-B of the Act, and whether the plaintiff was entitled to Rs.548.45p as interest by way of damages. The learned First Appellate Court determined both the issues in the negative. Being aggrieved, this Second Appeal is filed by the original defendants.

(3.) Learned advocate Mr.R.M.Vin was heard on behalf of the appellants. He placed reliance on sec.78-B of the Act. Sec.78-B runs as under: