PROBHU NARAYAN SANKARLAL Vs. UNION OF INDIA REPRESENTING SOUTH EASTERN RAILWAY EASTERN RAILWAY AND NORTH EASTERN RLY

JUDGEMENT

(1.) In the suit out of which this appeal arises the plaintiff claimed damages from the Union of India to the extent of Rs. 2387 on account of the failure on the part of the defendant to deliver a portion of a consignment of sugar. The plaintiff alleged that on the 15th of July, 1955, a consignment of 180 bags of sugar was booked at Choupatia railway station and handed over at the station for being carried and delivered at Tatanagar Railway Station. The railway receipt was endorsed in favour of the plaintiff who had paid the price of the consignment. On the 28th of July, 1955, the Railway Administration delivered to the plaintiff 152 bags of sugar. The rest of the consignment being 28 bags, was wholly damaged by rainwater and so the plaintiff refused to take delivery of those bags. The suit was contested by the defendant on the ground that the 28 bags were in sound condition and the plaintiff waa unreasonable in not taking delivery of the entire consignment. On the 25th of August, 1955, notice was given by the defendant to the plaintiff under Section 55 of the Railways Act. On the 4th of January, 1956, the defendant sold the sugar bags in auction and a sum of Rs. 1763-7-0 was realised as a result of the auction sale. The defendant, however, claimed the entire amount as set off against the dues of the plaintiff to the defendant on account of wharfage charges, and so the plaintiff was not entitled to realise any damages from the defendant in the present suit. Both the lower Courts have accepted the case of the defendant and have dismissed the suit.

(2.) The main argument put forward by learned counsel on behalf of the appellant is that the defendant may be entitled to wharfage charges from the 27th of July, 1955, up till the 9th September, 1955, but not till the 4th of January, 1956, and that the view taken by the two lower courts is erroneous. The contention of learned counsel was that if the defendant had given notice under Section 55 of the Railways Act, requiring the plaintiff to remove the goods within 15 days, the defendant was detaining the goods in exercise of its lien For its own benefit and so the defendant was not entitled to claim ware-housing charges for the period subsequent to the expiry of the period of notice, namely, subsequent to the 9th of September, 1955. I think this contention is well founded and must be accepted as correct. The legal position has been fully explained in Joseph Somes v. Directors of the British Empire Shipping Co., (I860) 8 HLC 338, where Lord Wensleydale laid down the principle that a person who has a lien upon chattel for a debt cannot, if he keeps it to enforce payment, add, to the amount for which the lien exists, a charge for keeping the chattel till the debt is paid. Applying this principle to the present case it is manifest that for the period from the 10th of September, 1955, till the 4th of January, 1958, the defendant was not entitled to claim wharfage charges under S. 55 of the Indian Railways Act. The defendant was entitled, of course, to claim wharfage from the 27th of July, 1955, till the 9th of September, 1955, on which date the time given for the removal of the bags in the notice dated the 25th of August, 1955, expired.

(3.) Another point was also taken on behalf of the appellant. It was pointed out with reference to Rule 1 of the rules framed under Section 47(1) (t) and (g) of the Indian Railways Act that the rate of wharfage is one anna per md. per day, in excess of the free time, of goods not removed. The rule as published at p. 908 of the Indian Railways Act by Hari Rao, 3rd Edn., shows that the rate is one anna per md. per day or part ot a day in excess of the free time. Learned counsel on behalf of the defendant-respondent is not in a position to say whether this rate is the correct rate or not. It is, therefore, necessary that this case should go on remand to the lower appellate Court for calculating the amount to be decreed in favour of the plaintiff according to the principle laid down by me as above. No further evidence will be adduced by the parties, but it is open to the parties to produce documentary evidence to show as to what is the proper rate of wharfage for the relevant period according to the railway rules. After this evidence is produced the lower appellate Court will grant a decree to the plaintiff after proper calculation of the amount of wharfage and deducting that amount and also costs of publication under Section 55 from the sale proceeds of the goods, namely, from the amount of Rs. 1763-7-0. The plaintiff is entitled to get a decree for the difference.