1. The unsuccessful plaintiff is the appellant. He laid this suit to recover a sum of Rs. 38,750/- and interest thereon. The trial Court decreed the suit in a sum of Rs. 10,698-00 with proportionate costs and subsequent interest at 6% per annum. The rest of the suit claim is disallowed. As against the claim disallowed, the present appeal to an extent of Rs. 28,057.00 and the interest accrued thereon totaling of Rs. 35,775.50 has been filed.
2. It is the case of the appellant that it is a common carrier entrusted with the goods of the defendant (seeds) for delivery at the destinations at various places in the country. For that, the appellants are entitled to claim freight charges in terms of the contract, after delivery of the consignment and submission of the bills. For the period ending up to 31st Mar., 1969, the appellant submitted bills to the tune of Rs. 6, 74,343.71 out of which a sum of Rs. 34,580.09 was deducted on various counts. The relevant items, with which we are now concerned, are Rs. 20,122.05 towards delivery of seeds in a germinated condition. The rest of the claims were made. Since the trial Court decreed the suit in part, it is not necessary to go into the question, relating to the claims for which the decree has been passed.
3. It is the case of the respondent-defendant that, under the contract, the appellant has to deliver the goods entrusted (seeds) and in a number of occasions, the seeds were not delivered or delivered in damaged condition. As a result, when the claims were made the appellant was duly informed as shown in annexure attached to the written statement of various deductions made for short-delivery or non-delivery of the goods. They have also stated that the accounts have been settled after deducting the amount and, therefore, the appellant is not entitled to claim any amount. As stated earlier, the trial Court accepted a part of the claim and disallowed the rest.
4. In this appeal, Sri Sivarama Sastry, the learned counsel for the appellant argued, primarily relying upon S. 8 of the Carriers Act, unless the respondents lay claim within a period of six months from the date of short-delivery or non-delivery, they are, not entitled to set up any claim. Having failed to lay the claim, they cannot withhold payment, since it is barred by limitation, and the defence is not open to them in the written statement. The lower Court has committed error of law in not gong into that question. He also incidentally argued that, though it is a case of non-delivery or short delivery, since the bags of goods, which were already measured in weight, have been delivered as they were, the appellant is not liable for the loss. Therefore, the entire suit is liable to be decreed.
5. Though notice has been served on the respondents none is appearing for the corporation. Sri Sivarama Sastry, the learned counsel for the appellant, is fair enough in leading the Court through the entire material, pleadings and the evidence on record.
6. Upon these contentions, the question that arises for consideration is whether the appellant is entitled to the amount deducted towards loss of weight or short delivery or damaged delivery.
7. As a question of fact, the parties have adduced evidence. The trial Court also has considered the same and held that the amount deducted was towards non-delivery or short-delivery of the goods and a sum of Rs. 4,104.00 was deducted towards delivery of damaged seeds.
8. I have gone through the evidence. I am satisfied that there is a loss to the extent of the amount claimed and the evidence is practically documentary evidence and it cannot be doubted. Therefore, it must be held that the loss as claimed in the written statement is Rs. 20,112.05 and Rs. 4104.00 respectively. It is fairly conceded that, when once the goods have been entrusted to the common carrier, if there is any loss thereof, the common carrier is liable for the loss so caused to the consignor.
9. The next question is whether the respondent is entitled to deduct that amount from the amount payable towards the freight charges of appellant. The contention of Sri Sivarama Sastry, learned counsel for the appellant, is that under S. 10 of the Carriers Act III of 1865, (for short the Act), no suit shall be instituted against the common carrier for the injury caused or for the loss of goods entrusted to him for carriage, unless notice in writing of the loss or injury, has been given to him before the institution of the suit and within six months of the time when the loss or injury has come to the knowledge or the plaintiff. Relying upon this provision a contention has been raised, that unless the respondent has claimed within six months from the date of knowledge of the non-delivery or loss of goods, he cannot make any deduction. Admittedly in this case, no such notice has been given within six months from the date of the loss and therefore their claim for deduction is clearly untenable.
10. This was not either pleaded nor adumbrated in the Court below. A reading of the judgment would disclose that no attempts have been made to argue the matter. But nonetheless, it being a question of law, I permitted Sri Sastry to argue the matter on this point as well. Therefore the question for consideration is, whether the respondent is entitled to make deduction of the amount, towards loss or damage of the seeds entrusted for delivery to the appellant without notice u/s. 10 of the Act.
11. Section 10 of the Act, could be availed of only in a case where the consignor seeks to recover the amount through the aegis of the Court by laying a suit. In such an event, it is mandatory that the consignor or the consignee shall give notice to the common carrier within six months from the date when the loss or injury first came to the knowledge of the consignor or the consignee and thereafter they have to institute the suit for the recovery thereof. That position is unavailable on the facts in this case. In this case, the respondent is not seeking the assistance of the Court for the recovery of the value of the loss of the goods or goods damaged. It is, therefore, needless to issue such a notice. Admittedly certain amount freight charges payable to the appellant was in the hands of the respondent. The respondents in those circumstances, stand in the position of a creditor and it is now well-settled that a creditor is entitled to adjust any amount in his hands payable by the debtor, even towards time barred debt, unless there is direction by the debtor to credit to a particular account. It is open to him to plead such an adjustment. The respondents have stated in their written statement and also established by oral evidence of D. W. 1, that they had deducted an amount of Rs. 20,122.05 Ps., and Rs. 4,104/- etc., towards loss of or damages of the goods delivered by them to the appellant. In these circumstances, the necessary conclusion is that the respondents, having been in custody of the amount payable to the appellant towards freight charges, had rightly and legally adjusted the amount i.e., the value of the loss of goods or damage caused to the goods entrusted to them, from the amount payable to the appellant. Thereby the lower Court was rightly disallowed the claim.
12. On the facts in the case, and in the view I have taken the decision in Indian Drugs & Pharmaceuticals v. Savani Transport, : AIR1979AP41 relied upon by the learned counsel for the appellant is of little assistance to the case of the appellant. Accordingly, I do not find any grounds to interfere with the judgment of the court below. The appeal is accordingly dismissed, but in the circumstances without costs, since none has appeared for the respondents.
13. Appeal dismissed.