UNION OF INDIA Vs. DHARIWAL AND CO

JUDGEMENT

(1.) THIS appeal has been filed by the defendant, against the impugned judgment and decree of the learned District Judge, Bikaner, dt. 22. 4. 1987, decreeding the plaintiffs' suit for Rs. 19,229. 49, along with interest from the date of suit, being 19. 1. 1982, till recovery, along with cost.

(2.) FACTS of the case are that the plaintiffs, being a partnership firm, and the partners of the firm, filed a suit against the defendants, alleging inter alia, that the plaintiff No. 1 is a registered partnership firm, while the plaintiffs No. 2 to 5 are its partners. According to the plaintiff, the defendant No. 3 supplied certain goods to the plaintiff, pursuant to the order of the plaintiff, and the said goods were sent to the plaintiff by being booked with the Railway Administration vide Railway Receipt No. 14833 Invoice No. 15 dt. 24/16. 1. 1981, from Mithapur to Bikaner, freight amounting to Rs. 2627/- was to be paid by the consignee. The goods were to be delivered by the Railway Administration being defendant No. 1 and 2. The defendant No. 3 sent the documents, and the railway receipt to the plaintiff through State Bank of India, whereupon the plaintiff paid Rs. 30,462. 16 paisa, being price of 200 bags of Soda Ash, and Rs. 2099. 13 paisa, being the price of packing material, and the railway receipt was got released. then, on production of the railway receipt with the railway, it was informed that the goods have not been received. When a longer time elapsed, the plaintiff wrote a letter to Divisional Commercial Superintendent (Claims), and lodged his claim, that to to no good, whereupon on 26. 5. 1981 the plaintiff got served a notice under Section 80 C. P. C. read with Section 78 of the Indian Railway Act, 1890, hereinafter referred to as `the Act'. It is thereafter only,that on 12. 6. 1981, the railway authorities of the Goods Shed bikaner delivered only 84 bags of Soda Ash to the plaintiff, thereupon the plaintiff vide letter dt. 4. 7. 1981 laid a claim for the price of shortage of the goods amounting to Rs. 20,674. 82 paisa, mentioning therein that 16 bags had torn away, therefore, delivery thereof was not taken, though on being told by plaintiff, the defendant provided new bags, but then it lost its efficacy, and loss of quality of the goods was assessed at 30%. Thus, deducting the price of the goods in damaged condition, the amount of Rs. 18,381. 56 were said to be payable to the plaintiff. However, the plaintiff, adding the cost of 30% of the goods having been damaged, and the cst o bags, laid the claim for Rs. 19,229. 49 paise. Then claiming interest of different amounts, for different period, a total claim of Rs. 23,899. 49 paise was lodged, which was denied, and thereupon the suit was filed, claiming the decree for Rs. 23,899. 49 paise along with interest at the rate of 20. 5%.

(3.) AFTER completing the trial, the learned trial Court decreed the suit as above. Deciding issue No. 1, it was inter alia held, that the defendants have not specifically denied the averments of the plaintiff, about the plaintiff No. 1 being a registered partnership firm, and the other plaintiffs being the partners of the firm, and since the plaintiffs have produced the registration certificate, and have deposed about th either plaintiffs being partners of the firm, in view of the judgment of Hon'ble the Supreme Court in Jahuri Sah vs. Dwarika Prasad Jhunjhunwala, reported in AIR 1967 SC 109, and from the evidence led on the side of the plaintiff, it was found, that it is established, that the firm is registered and the other plaintiffs were the partners, and therefore, the bar of Section 69 (2) no more comes in the plaintiffs' way. Reliance was also placed on the judgment of Andhra Pradesh High Court, in M. J. Velu Mudaliar vs. Sri Venkateshwara Finance Corpn. , reported in AIR 1971 A. P. 63. Then, the judgment of Madras High Court, in N. A. Munavar Hussain Sahib vs. E. R. Narayanan, reported in AIR 1984 Mad. 47, was relied upon to hold, that the plea based on the provisions of Section 69 having not been raised in the written statement, cannot be allowed to be raised at a later stage. Then, apart from finding the plaintiffs to have proved the firm to be registered, and other plaintiffs to be partners, it was also considered, that since the defendant Railways are common carrier, they are under obligation under the Indian Carriers Act to reach the goods to destination safely, and within a reasonable time, and if the goods get damaged, or get destroyed, is required to compensate as a tortuous liability, for enforcement of which, the bar of Section 69 (2) is not attracted, as the claim is not a claim arising from the contract, between the firm and the defendants. In this regard reliance was placed on the judgment in, Smt. Umarani Sen vs. Sudhir Kumar Datta, reported in AIR 1984 Calcutta 330. Thus, issue No. 1 was decided in favour of the plaintiff.