==================================================== Union of India (Owner of Eastern Railway Administration) v. Shreelal Gokulchand & Ors
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA First Appeal No.323 of 1980 Against the Judgment and Decree dated 14th January, 1980 passed by Subordinate Judge, Barh in Money Suit No.22 of 1975. ==================================================== Union of India (Owner of Eastern Railway Administration) ...........Defendant-Appellant Versus Shreelal Gokulchand & Ors ............Plaintiffs-Respondents ==================================================== Appearance : For the Appellant/s : Mr. Shabir Ahmad, Advocate For the Respondent/s : Mr. R. K. Aggrawal, Advocate Mr. Anupanand Jha, Advocate ==================================================== CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR SAHOO CAV JUDGMENT Dated : the 12thday of March, 2013 1. This First Appeal has been filed by the defendant No.1 against the Judgment and Decree dated 14th January, 1980 passed by the learned Subordinate Judge, Barh in Money Suit No.22 of 1975 whereby the lower
Legal Reasoning
Court decreed the plaintiff’s money suit. 2. The plaintiff filed the aforesaid money suit claiming realization of Rs.24,998/- along with interest pendete lite and future. The plaintiff’s case in short is that the firm is registered partnership firm. The plaintiff placed order with defendant No.2 for purchase of 251 bags of Maize. Each bags containing 91 k.g. The defendant No.2 booked the aforesaid consignment of Maize at Kartarpur Railway station under 3 railway receipts dated 10.11.1972 2 Patna High Court FA No.323 of 1980 dt. 12-03-2013 2 / 7 and the railway receipt and invoices accompanied with demand draft was drawn by defendant No.2 in favour of defendant No.3 on 31.11.1972. The same was presented by Punjab National Bank, Bhagalpur to the plaintiff and the plaintiff paid Rs.18018.80/- paise along with charges of Rs.55.60/- and obtained the 3 railway receipts which was duly signed and endorsed in favour of the plaintiff. The plaintiff came to receive the delivery at Barh railway station but the railway administration did not deliver the consignment. Subsequently, the plaintiff filed claimed for compensation but in spite of notice, the Railway neither paid the compensation nor delivered the consignment as such the plaintiff suffered loss of Rs.24,998/-. The plaintiff thereafter served a notice under Section 80 C.P.C. and 78-B of the Indian Railway Act on the Union of India. Defendant No.2 was entrusted to purchase the goods and disburse the same to the plaintiff and for that they withdrew the money. As such the defendant No.2 is liable to refund the amount with interest. Defendant No.3 is also equally liable to pay the damage. 3. The defendant No.1 filed contesting written statement. Besides taking various legal and ornamental please, the defendant mainly contended that on 10.11.1972, the Govt. of Punjab issued an order, i.e., Punjab State Maize (Movement Control) Order, 1972 wherein export of Maize to any other place outside Punjab without valid permit was prohibited and because of this order, the suit consignment was detained at Kartarpur Railway station. The Inspector of Food and Supply issued memo dated 15.11.1972. In view of this order, the Railway administration was not in a position to carry the consignment. Prior to accepting the consignment, the railway administration had no knowledge about the order prohibiting transportation of Maize crop. The railway administration kept the suit consignment with 6 other similar consignment at Kartarpur railway station under the risk and responsibility of the senders. The station master issued notice under Section 55 and 56 of 3 Patna High Court FA No.323 of 1980 dt. 12-03-2013 3 / 7 the Indian Railways Act on 22.11.1972, 22.1.1973 and 07.02.1973 to the consigner asking them to remove the consignment. 3 of the consignment were removed. When the suit consigned was not removed, the same was sold by public auction. 4. The defendant No.2 and 3 filed common written statement alleging that on receiving the order from the plaintiff, they dispatched 251 bags of Maize from Kartarpur Railway station under 3 railway receipt. The consignment was loaded on 10.11.1972 in the wagon thereafter railway receipts were sent on 11.11.1972 to the plaintiff through Punjab National Bank. They received the entire price of the goods and the plaintiff paid the same to the Punjab National Bank. Thereafter, these defendants had nothing to do with the consignment. After receiving notice from the Railway administration, on 27.7.1973, these defendants sent reply to the effect that they had already received the price as such they have nothing to do with the consignment. 5. On the basis of the aforesaid pleadings, the trial Court framed the following issues :- (i) (ii) (iii) (iv) (v) (vi) Has the plaintiff got cause of action for the suit? Is the suit, as framed, maintainable? Were the required statutory notices u/s 80 C.P.C. and u/s 78B of the I.R. Act validly served upon deft. No.1? Is the suit maintainable within the jurisdiction of this Court at Barh? Is the suit bad due to non-impleading of the State Government of Punjab? Is the plaintiff entitled to the decree as claimed? If so, for what amount and against which of the defts? 4 Patna High Court FA No.323 of 1980 dt. 12-03-2013 4 / 7 (vii) To what other relief the plaintiff is entitled? 6. After trial, the lower Court decreed the plaintiff’s suit finding that the Railway administration did not give any information to the plaintiff and allowed the consignment to be rotten in the Kartarpur railway station and after much delay, the same was auction sold. The railway administration is negligent and accordingly decreed the plaintiff’s suit. 7.
Legal Reasoning
The learned counsel, Mr. Shabir Ahmad, appearing on behalf of the appellant submitted that the Railway administration admitted that the consignment was received by the appellant but since the consignment was seized by the inspector of Food and Supply, the same would not be sent to the plaintiff. The station master sent 3 notices to the consigner but nobody turned up to receive the consigned. Therefore, subsequently, the said
Decision
consignment has been auction sold. In view of the above fact, the appellant is not negligent in performing his duty as such cannot be held to be liable to pay the amount to the plaintiff but the lower Court without considering this vital aspect of the matter wrongly held that the Railway was negligent in performing the duty so liable to pay the amount. The learned counsel further submitted that the station master firstly sent the notice on 22.11.1972 and then second notice on 22.01.1973 and the third notice on 7th February, 1973 to the consigner which have been produced by the defendant and marked as ext.4 series. Since the appellant had no address of the plaintiff, no notice could be sent to the plaintiff. In view of the above facts, the appellant is not at all liable to pay the amount claimed by the plaintiff because the plaintiff itself was negligent in removing the consignment and even after lapse of such a long period, the plaintiff never went to Kartarpur Railway station for enquiring about the consignment. On these grounds, the learned counsel submitted that the impugned Judgment and Decree are liable to be set aside. 5 Patna High Court FA No.323 of 1980 dt. 12-03-2013 5 / 7 8. On the other hand, the learned counsel, Mr. R.K. Aggrawal appearing on behalf of the respondent submitted that the ext.4 series have been created subsequently by the appellant with a view to petch up their negligence. In fact the said notice was never sent to even the consigner. The appellant never sent any information to the plaintiff. Since the consignment was to be delivered at Barh Railway station, the appellant never informed the Barh Railway station also regarding the seizure of the Maize or regarding the order of the State Government prohibiting transportation of Maize crop outside Punjab State. The plaintiff was repeatedly visiting the Barh Railway station and was making enquiry but nothing was informed to him. Even after service of notice, nothing was informed, therefore, the plaintiff had no option but to file the suit. Considering all these aspects, the lower Court has rightly decreed the plaintiff’s suit, therefore, the same cannot be interfered with in this First Appeal. 9. In view of the above contentions of the parties, the points arises for consideration is as to whether the appellant is liable to pay the amount claimed by the plaintiff and whether the impugned Judgment and Decree are sustainable in the eye of law. 10. It is admitted fact that the consignment was booked at Kartarpur Railway station on 10.11.1972. Ext.1 is the order passed by the State Govt. of Punjab published in Govt. Gazette on 11.11.1972. Therefore, admittedly, on the date of consignment, this order prohibiting Maize transportation was not there. However, from perusal of ext. ‘A’, the order, it appears that there is clear mention that it will not effect the good which has already been booked and were in transit however, it will affect the goods which has not left the frontiers of Punjab prior to coming into force of the order. Now, therefore, in view of this order of the State Govt. since consignment was not in transit, the order ext. ‘A’ is applicable of this consignment also. The 6 Patna High Court FA No.323 of 1980 dt. 12-03-2013 6 / 7 Railway administration, therefore, could not have sent the same outside the State of Punjab for delivery the same at Barh Railway station. However, since the consignment was booked prior to coming into force of ext. ‘A’, the duty of the Railway Administration was to inform the consignee or the destination railway station, i.e., Barh Railway station regarding the problem or difficulty in delivery of the consignment. According to the appellant, 3 notices were issued which have been marked as ext. ‘H’ series. From perusal of these ext. ‘H’ series, it appears that there is no reference of the earlier notice in the subsequent notice. Except these copies of the notice, nothing has been brought on record to show that in fact these notices are sent through post office. Moreover, these notices have been addressed to the consigner and the defendants have clearly stated that they never received any such notice. In such circumstances, the onus was on the appellant to have proved by reliable evidence that in fact these notices were sent to the defendants. It may be mentioned here that the defendant No.2 and 3 have admitted that for the first time, they received notice on 22.07.1973 and they sent a reply to the railway administration which has been marked as ext. A- 1. By this reply, they informed the Railway administration that they have already received the amount, therefore, the appellant may contact the consignee for removal of the goods. In support of their claim, the defendant No.2 and 3 have produced ext. ‘B-1 and B-1(1) which are the postal receipts. So far the notice alleged to have been sent by the appellant to the consigner as aforesaid are concerned, no such postal receipts have been filed. In view of the above facts, it is not safe to rely that in fact the railway served a notice to the consigner, moreover the consigner are not claiming damage from the appellant. The Railway administration, i.e, the appellant was knowing fully that the consignment was to be delivered at Barh Railway station. Nothing has been brought on record to show that any information was even given to the Barh Railway station regarding this consignment. 7 Patna High Court FA No.323 of 1980 dt. 12-03-2013 7 / 7 11. So far the submission of the learned counsel for the appellant that the plaintiff was not knowing the address of the consignee, i.e., the plaintiff is concerned, it may be mentioned here that the plaintiff itself has sent a claim notice on 01.05.1973 by registered post. To prove this fact, the plaintiff has produced ext.6 & 7 to 7/C. Even the notice under Section 80 C.P.C. was sent on 22.8.1973 , i.e., ext.5/A. Therefore, the submission of the learned counsel for the appellant that the Railway administration had no address of plaintiff cannot be accepted. Even after receiving this notice and claim of the plaintiff, no information was given to the plaintiff regarding the consignment and subsequently the goods were auction sold on 1.11.1976 and 02.11.1976. Prior to this auction sale, no notice was even sent to the plaintiff nor the auction sale was published in the local newspaper. In view of the above facts, it became clear that the Railway administration was negligent and did not perform the duty which it was bound to perform and because of this negligence of the Railway administration, the loss to the plaintiff occurred. As such the plaintiff is entitled for recovery of the amount from the Railway administration, i.e., appellant. From perusal of the Judgment of the lower Court, it appears that the lower Court has considered all the materials and recorded the finding. I, therefore, find no reason to interfere with the findings of the trial Court. Accordingly, the findings of the trial Court is hereby upheld. 12. In the result, I find no merit in this First Appeal and accordingly, this First Appeal is dismissed. However, considering the facts and circumstances of the case, no order as to cost. Sanjeev/N.A.F.R. (Mungeshwar Sahoo, J.)