UNION OF INDIA Vs. KHEMCHAND

JUDGEMENT

(1.) The appeal has come before us on a reference. It is by the defendants. It arises out of a suit for recovery of compensation for non-delivery of 130 maunds of potato. The total claim laid was at Rs. 6,150/- including the price of bags and interest. The goods were delivered to the Railway Administration on 30-9-1947, at Gauhati for carriage to Hajipur under parcel way bill No. 838133.

(2.) The case, as put forward in the plaint, is that a large volume of correspondence passed between the parties in the matter of the non-delivery of the goods, but the Railway authorities never said that they were not in a position to deliver the goods; rather they always held out a promise to the plaintiffs that their claim would be settled as soon as the inquiry into the matter was completed. A notice under Section 80 of the Code of Civil Procedure dated 7-10-1948 was duly sent. Thereafter, the plaintiffs instituted Money suit No. 146 of 1948 in the Court of the Second Subordinate Judge, Muzaffarpur. That suit was dismissed on 19-9-1949 as premature, as it had been instituted before the expiry of two months from the date of the notice. Even during the pendency of the suit, the Traffic Manager, O. T. Railway, Gorakhpur (hereinafter to be referred to as the Traffic Manager) sent a letter for a reasonable settlement of the claim outside Court. Settlement was arrived at, but the amount was not paid. Hence the present suit.

(3.) The defence, on amongst others, was that the suit was barred by limitation that no second notice under Section 80 of the Code of Civil Procedure had been served and that the claim was highly exaggerated. The Court below, for reasons stated in the judgment, overruled the defence case, and decreed the suit in part as against defendant No. 1 only. The amount of damages was reduced and statutory interest was allowed from the date of institution of the suit till the date of the recovery of damages. The suit against defendant No. 2 was dismissed without costs. Hence the present appeal.