UNION OF INDIA Vs. FIRM BANSHIDHAR PREMSUKH DASS

JUDGEMENT

(1.) THIS is a defendant's appeal against the judgment and decree dated 25-9-1965 of the II Addl. Civil Judge, Agra in Civil Appeal No. 245 of 1965 reversing the decree of the Munsif, Agra dated 31-3-1965 in original suit No. 547 of 1962.

(2.) THE plaintiff had brought a suit for recovery of a sum of Rs. 3,183/- as value of the goods short delivered, Rs. 1,000/- as damages for deterioration in quality and Rs. 270/- as interest. THE plaintiff had booked one consignment of mustard oil on 9-10-1961 in one tank wagon containing 186 quintals and 45 kg. for carriage to Kulpighat from Jamuna Bridge, Agra. When the wagon reached the destination, it was discovered that its original seals, lables and the iron rings were broken and subsequently its contents were transhipped to another wagon of sweet-oil. THE plaintiff thereupon took delivery of the goods after weighing and it was found that it was short by 15 quintals 45 kg. of oil. THE plaintiff also alleged that the quality of the oil was materially affected by transhipping it to another wagon of sweet oil. So he claimed damages of Rs. 1,000/- on this account. It appears that the sample of the oil was sent to the public analyst but no deterioration was found in its contents. THE suit was contested on behalf of the Union of India on various pleas, one of which was that it was barred under Section 77 of the Indian Railways Act. Short delivery was not disputed but it was alleged that there was no misconduct or negligence on the part of the railways. THE learned Munsif held that short delivery was proved in this case and it would be deemed that it was due to the negligence and misconduct of the employees of the defendant. He held that no case for damages was made out. He dismissed the suit on the basis of the finding arrived at on Issue No. 3 that the suit was barred under Section 77 of the said Act. He, however, observed that in case the suit was not barred under Section 77 of the Act, he would have decreed it for Rupees 3,183/-. According to the lower appellate court three points arose for consideration in the appeal which are as follows: 1. Whether Section 77 of the Indian Railways Act was applicable to the present case? 2. Whether a notice under Section 77 of the Indian Railways Act was really given by the plaintiff ?

(3.) LEARNED counsel for the respondents has also drawn my attention to the fact that 8th April, 1962, was a Sunday and as such the notice could not have been posted on that date. I do not think it would make any difference, under the circumstances of the present case. It would have been a different matter if the notice was despatched well in time but was not received by the railway because of holidays intervening. He has also placed reliance on the case of Jetmul Bhoj Raj v. Darjeeling Himalayan Company Ltd., (AIR 1962 SC 1879). In that case it was held that a letter sent by the consignor informing the General Manager that the consignment had not reached the destination and that a search for the same be made, should be deemed to be sufficient notice under Section 77 of the Act even though claim for compensation had not been made as the same would be implied. It was also observed by their Lordships of the Supreme Court that notice under Section 77 of the Act should be liberally construed. In that case the effect of notice being time barred was not considered and as such that decision is distinguishable. When limitation is prescribed and there is no provision for extending time, it is certainly not possible to extend the period of limitation by construing the provisions liberally.