UNION OF INDIA Vs. ORISSA CEMENT LIMITED

JUDGEMENT

(1.) THIS is an appeal by the defendant -South Eastern Railways against the judgment and decree passed by the learned Sub -ordinate Judge, Sundargarh in Money Suit No.14 of 1975 decreeing the respondents suit in part.

(2.) THE plaintiff -respondent is a registered company manufacturing cement having its head office at Rajagangpur. It placed orders with M/s. Fridrick Horn Company of West Germany for some machineries and the said company despatched the machineries in 19 cases through shipping vessels "Jalmurari" which arrived at Kidderpore dock. The consignment of the plaintiff -respondent was released through clearing agents, who despatched 7 out of 19 cases to the plaintiff in wagon No.ERKE/55527 under invoice No.PR No.725119 dated 25.7.1972 at Railway risk Ex -Kidderpore dock to Rejangpur Railway siding of the plaintiff on South Eastern Railway. When the wagon was placed at the Rajgangpur Railway siding of the plaintiff on 31.7.1972, it was found that some of the cases were in disorderly/broken condition. Such condition of the cases were immediately brought to the notice of the Goods Clerk of the appellant -defendant posted at plaintiffs siding at Rajgangpur and thereafter to the Station Master, Rajgangpur Railway Station and open delivery was demanded. Ultimately, the matter was referred to D.C.S., Chakradharpur, who ordered open delivery and accordingly, open delivery was made in presence of one Traffic Inspector of Chakradharpur and one loco foreman of Jharsuguda. There was shortage of 53 items consisting 310 Nos. and accordingly shortage certificate was granted. On the basis of this shortage certificate the plaintiff -respondent issued notice of claim u/s. 78 -B of the Indian Railways Act. But the claim was not answered for which the plaintiff served a notice u/s. 80, C.P.C. on General Manager and Chief Commercial Superintendent, S.E. Railways and then filed a suit for recovery of Rs.31,810.36 paise and interest @ 12.1/2% thereon in total for an amount of Rs.44,120.53.

(3.) CONSIDERING the pleas of the parties learned Subordinate Judge framed as many as 5 issues and accepted evidence of the parties. The plaintiff examined 3 witnesses and produced several documents which were marked as Exts.1 to 20. The defendant did not examine any witness, but simply relied on the forwarding letter note for General Marchandise, which was marked as Ext.A. On consideration of the evidence, oral and documentary, learned Subordinate Judge came to the conclusion that the shortage of the articles and damage to the cases occurred when the consignment was in the custody of S.E. Railways, that Calcutta Port Trust Commissioner Railways was not a necessary party and the suit was not bad for non -joinder of necessary party. Accordingly, it was held that the plaintiff is entitled to Rs.31,810.36 paise along with the interest @ 6% per annum from the date of filing of the suit till realization. That judgment and decree is under challenge in this appeal.