SURAJ NATH PROSAD KEDARNATH Vs. UNION OF INDIA

JUDGEMENT

(1.) This appeal arises out of a suit to recover Rs. 9, 875 as compensation for goods and consigned by the plaintiff for carriage by railway which were not delivered to him.

(2.) The damage for non-delivery of goods entrusted to the railway for carriage was claimed under the following circumstances :-- On the 26th July, 1947 the plaintiff delivered to the East Indian Railway at Howrah Station two bars of silver bearing Nos. 10196 and 259 weighing 1 md. 31 seers for carriage to Balia Station on Oudh and Tirhut Railway now North-Eastern Railways and for delivery of the same to the consignee thereof. The East Indian Railway now Eastern Railway administration accepted the said goods to be carried and delivered as per receipt No. C-003343 granted on that account. The plaintiff made a declaration of the conditions and value of the consignment prior to acceptance of the articles by the railway administration for carriage. On repeated demands the railway administration did not deliver to the plaintiff the said goods or any part thereof, value whereof on or about the date was Rs. 9,875 including the incidental charges and railway freight etc. The notices under Section 77 of the Indian Railways Act and under Section 80 of Code of Civil Procedure were thereafter served upon the defendants. It was alleged' that the defendant wrongfully detained the goods or otherwise converted the same to their own use and have wrongfully deprived the plaintiff of those articles; the plaintiff then filed the suit being Suit No. 3056 of 1948 in the Original Side of the High Court on the 6th September, 1948. The said suit was disposed of on November 25, 1958 and the same was dismissed on the ground of want of territorial jurisdiction of the High Court. This suit was filed in the Court of Subordinate Judge at Howrah on 10-12-58. The plaintiff contends that the period during which the suit was proceeding in the Hon'ble High Court should be deducted for counting period of limitation.

(3.) The defence taken was that the suit as filed by the plaintiff was hit by the provisions of Section 75 of the Indian Railways Act. According to the defence, the consignment being excepted articles was liable, to be insured under Section 75 of the Indian Railways Act (hereinafter referred to as the Act) and that the consignor was required to pay a percentage on the value of the consignment as insurance charge. As the consignor elected not to pay the insurance charge and executed a risk note in form 'X' wherein the railway administration was absolved from all the responsibility for loss of the consignment arising from any cause whatsoever. Their further defence was that the suit was barred by limitation as according to them the provisions of Section 14 of the Limitation Act was not attracted to the instant case as the plaintiff failed to prosecute the suit in the Hon'ble High Court with good faith and with due diligence.