CHHOGALAL Vs. SECY. OF STATE

JUDGEMENT

(1.) THIS is an Application for revision of the judgment of the Court of Small Causes, Harda, dismissing a suit brought by the applicants for the recovery of the amount alleged to have been paid by them as excess railway freight. The facts of the case are for the most part admitted and the only point to be determined in the case is what was the date of the contract between the parties. The plaintiffs despatched bags of cotton seed from Khirkiya, a station on the G. I. P. Railway between Khandwa and Itarsi, to Hissar in 1929 in two consignments, one on 28th January 1929 and the other on 30th January 1929. Each consignment contained 250 bags and it is not disputed that the bags were loaded in wagons on 31st January. The railway receipts however were not given until 1st February 1929 and 4th February respectively. The rate at which the goods were booked was As. 13-5 per maund. On 1st February however a new rate came into force, namely, Re. 1-0-3 per maund, and on arrival at Hissar a higher rate was levied and a recovery of Rs. 135-6-0 was made on each consignment including Rs. 6-9-0 for demurrage. Subsequently, on 11th February 1929, the applicants despatched 250 bags of cotton seed from Khirkiya to Hissar at the old rate of As. 13-5 per maund, and again at Hissar a sum of Rs. 128-13-0 was levied. It may be noted here that admittedly a wrong rate was levied at Hissar and instead of charging at Re. 1-0-3 per maund, which should have been done, recovery was made at Re. 1-2-1 per maund. An offer was made by the railway company without prejudice, as is shown by the letter from the Acting Chief Traffic Manager, which has been filed as Ex. P-17, to refund the excess charge, namely Rs. 48, on each consignment.

(2.) THAT offer, it is true, was not accepted by the applicants, as they claimed a further amount with regard to the first two consignments, but the amount of Rupees 142-2-0 was paid and accepted by them however after the suit was filed and that has been noted in para. 9 of the judgment of the Small Cause Court. The only question then to be determined in this revision is whether the revised rate of Re. 1-0-3 was rightly charged for the two consignments of 28th and 30th January 1929. The decision of this question depends on the decision of the further question when the contract for carriage of the goods was complete. The applicants' contention is that the contract was complete when the goods were duly delivered at the station and were left in the custody of the company. The non-applicant, on the other hand, con-tends that the contract was not complete until there had been an acceptance by the company and the railway receipt was granted. The receipts were given, as stated above, on 1st and 4th February. This view has been accepted by the Judge of the Small Cause Court, who has held in para. 6 of his judgment that the deposit of the goods at the railway premises amounts to a proposal and that that proposal could be converted into a promise and hence into an agreement and contract when the railway expresses its consent in a reasonable manner to carry the goods. I am of opinion however that this view is incorrect and is contrary to the general law of the liabilities of carriers. Railway companies, it may be noted, are carriers and, except where they are given special privileges by legislation, they are under all the liabilities of carriers.

(3.) FROM this he argued that the contract was not complete until the railway receipt was granted. That argument however is negatived by the authorities referred to above and by the general law of the liability of a carrier. I would also point out that the liability of a railway company is determined by Section 72 Indian Railways Act, and, although a company may frame rules under Section 47, those rules must be consistent with the Act. I would refer in this connexion to Jalim Singh v. Secy. of State (1907) 31 Cal 951, Ramchandra Natha v. G. I. P. Ry. Co. , Narsingirji Mfg. Co. v. G. I. P. Ry. Co. and Sohan Pal, Munna Lal v. E. I. Ry. Co. AIR 1922 All 9. I find therefore that the General Rule that the railway will not be responsible until a railway receipt is given is ultra vires and inconsistent with the Act.