UNION OF INDIA Vs. GYANI RAM BHAGAT RAM

JUDGEMENT

(1.) This appeal by the defendants under Clause 10 of the Letters Patent is directed against the judgment and decree passed by the learned single Judge in First Appeal No. 413 of 1957.

(2.) The plaintiff is a firm named Gyani Rain Bhagat Rain and it carries on business of general merchant and commission agent at Mokamah in the district of Patna. The plaintiff brought a suit for recovery of a sum of Rs. 7,958-11-6 from the defendants, Eastern Railway, represented by the Union of India on the following allegations. The plaintiff purchased 202 bags of Arhar Dal weighing 503 maunds through its commission agent Messrs Premnarain Gobind Narain at Debai on the North Eastern Railway. The consignment was booked to the plaintiff as consignee to Mokamah Junction under railway risk. When the wagon containing the consignment had reached Dinapur, the door of one side of the wagon was found open. It was re-scaled before the train left that station. The consignment reached the destination on the 29th June 1954, and at the time of unloading some of the bags were found slack and loose. The representative of the plaintiff, who was present at the Mokamah Railway Station to take delivery of the consignment, asked for delivery on weighment of each bag but the goods clerk refused to weigh more than 28 bags which were found slack and loose. Thereupon the representative of the plaintiff approached the Station Master but the latter also did not accede to his request. The Station Master, however, weighed two sound bags and found that each of them weighed 2 maunds and 15 seers as against the average weight of 2 maunds and 21 seers each. Some correspondence between the plaintiff and the higher authorities of the Railways followed about giving delivery of the goods after reweighment of all the bags. On the 4th of August 1964, the Chief Commercial Superintendent, Eastern Railway, sent a letter to the plaintiff informing him that the matter had been enquired into by the Commercial Traffic Inspector and the latter had found only 28 bags in slack and loose condition, In that letter the plaintiff was further informed that if he failed to take delivery of the goods within a fortnight on payment of Rs. 2,475-4-0 as wharfage and Rs. 556-7-0 as the freight, the goods would be sold. Ultimately the Railway sold the goods by public auction on the 7th of December 1954, for Rs. 3,025. The plaintiff after serving notice under Section 77 of the Indian Railways Act as well as under Section 80 of the Code of Civil Procedure brought the suit on the aforesaid allegations.

(3.) The defendants contested the suit of the plaintiff and took a plea that the plaintiff had no right to ask for open delivery and that the deterioration of the goods, if any, was due to the laches on the part of the plaintiff in not taking delivery of the same when they were offered to be delivered to it. It was further alleged by the defendants that only 28 bags out of the consignment were found slack and loose and they had been kept separate from the rest. The defendants made a counter claim for a sum of Rs. 7193/9.00 from the plaintiff as charges due to them on account of the freight and wharfage after deduction of the sale proceeds obtained by them.