UNION OF INDIA Vs. HARI NAGAR SUGAR MILLSLTD

JUDGEMENT

(1.) This appeal has been preferred by the Union of India which, as the owner of the North Eastern Railway, the Northern Railway and the Central Railway Administrations, was the defendant in a suit instituted by the plaintiff company tor recovery of a total sum of Rs. 6,614.31 Paise from the defendant.

(2.) The following facts are not in dispute before us. On the 3rd December, 1955, five packages of machineries were booked at Wadibundar on the Central Railway for being carried to Harinagar on the North Eastern Railway, then known as the O. T. Railway. The consignment was to have been carried in a parcel train, and it was, in fact, loaded in a parcel van and a sum of Rupees 7,868-00 was realised from the plaintiff as railway freight, the payment having been made at Harinagar on the 30th December, 1955. Four of the packages reached the destination on the 25th December, 1955, and they were duly delivered to the plaintiff. The fifth package which contained a Ruston Diesel Locomotive did not, however, reach the destination until the 21st January 1956, when it was delivered to the plaintiff. The case put forward by the plaintiff was that the delay occurred on account of the fact that the consignment was carried in a goods train, and not in a parcel train, although the freight charged from the plaintiff was for carriage by a parcel train. The freight chargeable for carriage in a goods train was Rs. 2,308.69 paise. The plaintiff alleged that the agreement was for carriage of the consignment in a parcel train, but since it was carried in a goods train, the action of the defendant was wrongful and had caused loss to the plaintiff. There was some correspondence between the plaintiff and the railway administration in this connection, and ultimately the plaintiff instituted the present suit after service of notice upon the defendant under Section 80 of the Code of Civil Procedure on the 14th May 1959. The plaintiff's claim was made up of three items as follows:

(3.) The defendant resisted the plaintiff's claim on various grounds. It was alleged that the consignment had been carried in the usual way as parcel. It had to be transhipped from a broad gauge van into a meter gauge van. But the fifth package, which consisted of heavy machinery, required special treatment for transhipment and a special type of van for its carriage, and it was on this account that there was some delay in the arrival of the fifth package at the destination. The defendant further pleaded that the suit was bad for want of valid notice under Section 77 of the Railways Act, as it then stood. A further plea taken by the defendant was that the suit was barred by limitation.