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Bhim Shankar Vs. Union of India (Uoi) and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 1343 of 1977
Judge
Reported inAIR1984All77
ActsRailways Act, 1890 - Sections 46C; Contract Act, 1872 - Sections 188
AppellantBhim Shankar
RespondentUnion of India (Uoi) and anr.
Appellant AdvocateS.K. Dongre and ;N.C. Pandey, Advs.
Respondent AdvocateLalji Sinha, Adv.
DispositionAppeal dismissed
Excerpt:
..... - section 46-c (d) of railways act, 1890 - agent of the allottees applied for the allotment of wagon - agent cancelled the allotment - agent liable to pay damages on behalf of allottees and railways can claim demurrage from them. - - the plaintiff was working as a forwarding and clearing agent at the kanpur co-operganj good's shed. it is then stated that 'without losing a minute's time the plaintiff rushed to the allottee' and requested the latter to make arrangement for loading the wagon, but for reasons best known, the allottee asked the plaintiff to get the allotment cancelled whereupon the plaintiff got the allotment cancelled at about 10.30 hours on the 3rd jan. since you have failed to pay the demurrage, you are debarred from working as agent till the time you make good..........for the time lost during the intervening non-working hours of the night. it is not a case of free working time allowed for loading a wagon. in that case, of course, the non-working time has to be excluded. there is thus no force in the contention raised by the learned counsel that the non-working time between 8.00 p. m. on the 2nd january, 1966 to 9.00 a.m. on the 3rd january, 1966 could not be counted for calculating the amount of demurrage claimed,10. as to the next point raised by the learned counsel with regard to the plaintiff's liability for demurrage, the letter (ext. 1) shows that a notice was sent by the superintendent, kanpur area, to m/s. rajaram sri kishan oil factory demanding demurrage, but they replied that they did not authorise the plaintiff to place the demand. there.....
Judgment:

Deoki Nandan, J.

1. This is a plaintiff's se-second appeal in a suit for a declaration that an order, dated 21/22-6-1966, passed by the Superintendent, Kanpur Area, Kanpur, debarring the plaintiff from carrying on the trade and business of forwarding and clearing agent, is illegal, void and inoperative.

2. It is necessary to state a few facts. The plaintiff was working as a forwarding and clearing agent at the Kanpur Co-operganj Good's shed. The working hours there are 9.00 a.m. to 8.00 p.m. On the 2nd January, 1966, a wagon was allotted to M/s Rajaram Sri Kishan Oil Factory, Moti Mohal, Kanpur, at 7.45 P.M. Ac-cording to the plaintiff, information of the allotment of the wagon was not given to him or to M/s Rajaram Sri Kishan Oil Factory, but, in the very next paragraph of the plaint, it has been stated that 'even if the employees of the defendant became successful in informing the plaintiff, which fact is not admitted by the plaintiff no business could have been done or allowed to be done on that day during 15 minutes only either by the allottee M/s Rajaram Sri Kishan Oil Factory or his agent, the plaintiff.' According to the plaintiff M/s Rajaram Sri Kishan Oil Factory had time up to 1.45 p. m. on the 3rd January, 1966 free from any demurrage because no work of loading was possible from 8.00 p .m. of 2nd January, 1966 to 9.00 A.M. of 3rd January, 1966. The reference obviously was to the 5 hours time, which appears to have been allowed under the rules or instructions, as free time for loading of wagon. According to the plaintiff, when he reached the goods shed at 9.00 A.M. on the 3rd January, 1966, he learnt of the allotment of the said wagon at 7.45 P. M. on the 2nd January, 1966 to M/s. Rajaram Sri Kishan Oil Factory. It is then stated that 'Without losing a minute's time the plaintiff rushed to the allottee' and requested the latter to make arrangement for loading the wagon, but for reasons best known, the allottee asked the plaintiff to get the allotment cancelled whereupon the plaintiff got the allotment cancelled at about 10.30 hours on the 3rd Jan., 1966. According to the Railway Admn. the allotment was cancelled at 11.00 A.M. on the 3rd January, 1966 and claimed payment of Rs. 91.20P. as demurrage from the plaintiff. Since the plaintiff claimed that he was acting as an agent only the claim for demurrage was also made from M/s. Rajaram Sri Kishan Oil Factory, but the latter appears to have refused to pay.

3. The impugned order of the Railway Administration is contained, in a letter (Ext. 1) dated 21/22-6-1966 from the Superintendent, Kanpur area of the Northern Railway to the plaintiff.

'Northern Railway'

No. CW/Misc/66/83

Area Supdt's office

Kanpur, dated 21/22-6-66.

Sri Bhim Shankar,

Agent,

C/OGI/COP.

Dear Sir,

Reg. Recovery of demurrage Rupees 91-20 P.

It has been brought to notice of this office by Goods Inspector Cooperganj that 175 bags linseed oil cake was got registered under MR No. 987520 of 21-12-1965 for DEOS on behalf of M/s. Rajaram Sri Kishan Oil Factory by you and Wagon. No. NE 58446 was allotted on 2-1-1966 at 19/45 hrs.

On 3-1-1966 you requested the GI for cancellation of demand which was allowed on forfeiture of Registration fee and realisation of demurrage of Rs. 91/20 P. Accordingly you were asked to pay the demurrage as mentioned above but you have not paid the same as yet.

A notice was also sent to M/s Rajaram Sri Kishan Oil Factory to this effect who replied that they did not authorise you to place demand and you placed the Indent on your own accord as such they are not concerned with this transaction and the demurrage accrued.

Since you have failed to pay the demurrage, you are debarred from working as Agent till the time you make good the above amount of demurrage.

Yours faithfully

sd/Illegible

/Supdt. Kanpur Area.

C/The GI/CPC. COP, SM/CNB, GSR/

FGD, CGG/Juhi, SM/Panki, Chandari

and chakerim, for information and necessary action.

sd/Illegible

/Supdt. Kanpur Area'

4. The registration fee of Rs. 25/- was also forfeited, about which there is no complaint. According to the plaintiff, he was wrongfully debarred from working as a forwarding and clearing agent inasmuch as no demurrage was payable by him. The plaintiff further claimed a loss of Rs. 10/- per day on account of loss of income earned, by him by working as a forwarding and clearing agent after the service of the necessary notice under Section 80 of the Code of Civil Procedure. The suit was for the above declaration as also for recovery of Rs. 2590/- as damages from 29th June, 1966 to the date of suit and pendente lite and future at the rate of Rs. 10/- per day from the 15th March. 1966. It is not necessary to detail the defence. The following were the issues, on which the parlies went to trial:--

'1. Whether the defendant's demand for demurrage from the plaintiff is illegal for reasons given in para 11 of the plaint'?

'2. Whether the order dated 21/22-6-66 debarring the plaintiff from working as an agent is illegal and invalid?'

'3. Whether the plaintiff has a legal character to claim the declaration?'

'4. Whether the suit is bad for want of a notice under Section 80, C. P. C.'?

'5. Whether the civil court has no jursdiction as alleged in para 25 of the WS?'

'6. Whether the suit is not maintainable as alleged in para 26 of the W S.?'

'7. Whether the plaintiff is entitled to the damages claimed?'

'8. To what relief, if any, is the plaintiff entitled?'

5. On issue No. 4, the trial court held the notice to be valid; on issue No. 5 that the suit is triable by the court, on issue No. 1, it held that the demand for demurrage from the plaintiff was illegal, unjust and arbitrary as the cancellation was effected within the free time of five hours which was available to the plaintiff for loading the wagon; on issue No. 2; the trial court held that there was no provision of law, under which the Area Superintendent, Kanpur, could have passed the order debarring the plaintiff from acting as an agent in the event of his failure to pay demurrage charges and consequently the impugned order was illegal, inoperative and ultra vires; on issues Nos. 3 and 6, which were taken up together, the trial court held that the suit is maintainable; on issue No. 7that the plaintiff is entitled to get the damages claimed; and on issue No. 8 that, he was, therefore, entitled to the relief claimed. The trial court accordingly decreed the suit for recovery of Rupees 2590/- as damages up to the date of suit and pendente lite and future at the rate of Rs. 10/- per day. It also declared the order dated, 21-/22-6-1966 illegal, inoperative and without jurisdiction.

6. On appeal by the Railway Administration, the lower appellate court set aside the trial court's decree and dismissed the suit. The lower appellate court held that no free time was allowed in case of cancellation of an allotment, and, in computing the time, for which demurrage had to be calculated, the Railway Administration was justified in counting the entire period from 8.00 p. m. on the 2nd January, 1966 to 9.00 a.m. on the 3rd January, 1966. The lower appellate court accordingly held that the demand for demurrage was not illegal. The lower appellate court also held that the demurrage had to be charged from the plaintiff as his principal refused, to pay, having stated that they had not authorised the plaintiff to book any wagon on their behalf. According to the lower appellate court, the Superintendent, Kanpur area, passed the order debarring the plaintiff from carrying on the business as he was fictitiously booking the wagon in the name of parties, and was not paying demurrage, for which he is liable after cancellation of the allotment. Another point noticed by the lower appellate court was that there is no post of forwarding and clearing agent in the Railways; that the plaintiff was working as an agent simply, as provided in the Railways Act, and that the order was passed in respect of debarring the plaintiff from working as an agent, and lastly that this order was subsequently recalled by the Railway authorities on the 19th November, 1966. According to the lower appellate court, the suit, which was filed on 14-3 1947, was clearly filed by the plaintiff 'simply to harass the defendant and actually the suit was not maintainable in respect of setting aside this order as it was already recalled much before the filing of the suit'. The lower appellate court also observed that since there is no post of forwarding and clearing agent, the plaintiff could not legally challenge the order as such. Further, the plaintiff did not go to work in the Goods shed after recall of the order which clearly showed that when the plaintiff has nowork to do, he cannot claim for the loss of work. In the result, the lower appellate court allowed the appeal with costs and dismissed the suit.

7. Mr. N.C. Pandey for the plaintiff urged that demurrage is defined by clause (d) of Section 46-C of the Indian Railways Act, 1890, to mean 'the charge levied after the expiry of the free time allotted for loading or unloading of wagon'. He further urged that the lower appellate court had relied upon LRA No. 5 of 1968 which had been filed before it on behalf of the appellant. That document shows that under the existing orders, in case a wagon is placed against an indent and not used, in addition to forfeiture of the usual wagon registration fee, demurrage is charged at the rate of 30 Paise per tonne or part of a tonne per hour or part of an hour on the marked, highest carrying capacity of that wagon allowing no free time, and that a doubt has arisen as to for what period the demurrage should be charged in cases where the free time is split up in two parts with the non-working night hours in between. The document clarified, that in such cases demurrage is to be levied for the entire period from the time of placement of wagon to the time of cancellation of the indent charging demurrage for the non-working night hours also.' According to Mr. Pandey although this LRA had, no statutory sanction and could not even be looked into because it was not filed before the trial court and was not proved according to law, in any case, this document could not be used retrospectively to charge demurrage in the year 1966 more than two years before it was issued. Mr. Pandey contended that no demurrage was thus payable. He further contended that the plaintiff had clearly been authorised by the firm for whom the wagon had been Indented, and the lower appellate court was in error in thinking that the plaintiff was making fictitious bookings of wagons in the name of parties. Mr. Pandey contended that there was no evidence on the record to show that the plaintiff was not authorised by the plaintiff, M/s Rajaram Sri Kishan Oil Factory, to indent for the wagon which was allotted on the 2nd January, 1966. According to the learned counsel, no loading could be done during the night hours, and the Railway Administration suffered no loss between 8.00 P. M. of the 2nd January, 1966 to 9.00 A. M. on the 3rd January,1966, and if, at all, the demurrage for this period, of about two hours could have been recovered by the Railway Administration from the firm, Rajaram Sri Kishan Oil Factory, instead of taking away the livelihood of a poor man like the plaintiff for no fault of his.

8. Having heard the learned counsel, I, however, find that there is no merit in this second appeal. Assuming that the suit was maintainable, inasmuch as the Railway Administrative is included within the meaning 'the State' in part III of the Constitution, and could not have, therefore, deprived the plaintiff of his right to practise the vocation of a forwarding and clearing agent, unreasonably or arbitrarily, in view of Articles 14 and 19(1)(g) of the Constitution, the question, which remains to be considered, is whether the Railway Administration was justified in making the demand for demurrage which it made against the plaintiff.

9. It is not disputed that five hours free time was allowed for loading a wagon. However, that is not relevant for the purposes of the present case inasmuch as a person cannot cancel the allotment of a wagon made on his indent, at the end or shortly before the end, of five hours from the point of tune when the allotment was made, and say that he is not liable for any charge by way of demurrage because he cancelled the allotment within the free time of five hours allowed for loading the wagon. In a case where an allotment of wagon is cancelled, a person is not entitled to any free time, and the Railway Administration can very reasonably ask him to pay a compensation at the same rate at which demurrage is payable in case the allotment was not refused. If allotment of a wagon is refused immediately, it is made known, the party making the indent, loses only the registration, but if he delays informing the Railway Admin istration that he does not need the wagon, the Railway Administration is justified in claiming, compensation at the same rate, at which demur rage is leviable. Indeed, that is what the local rate Advice No. 12 of 1964 said when it raised the rate of demurrage on wagons placed against indent from six paise per tonne per hour to 30 paise per tonne per hour. The document shows that no free time is allowed in such cases. It was not disputed that the rate, at which demurrage was chargeable, wag 30 paise per tonne per hour, and I havearrived at the above inference without looking at the said document. At any rate, I must also add that the local Rate Advice dated 12-4-1964 was of a date prior to the indent when demurrage was demanded from the plaintiff in the year 1966. As to the LRA No. 5 of 1968, it only clarifies that in cases of cancellation of allotment of wagon against indents, the non-working period of night between two days has also to be included in calculation of the time, over which the compensation of 30 paise per hour is to be charged. Even if that letter was not placed before the court, it appears reasonable, for if a wagon is allotted on one day, the person, who refuses to make use of the wagon on the next day, cannot be heard to say that he is not liable to make compensation for the time lost during the intervening non-working hours of the night. It is not a case of free working time allowed for loading a wagon. In that case, of course, the non-working time has to be excluded. There is thus no force in the contention raised by the learned counsel that the non-working time between 8.00 P. M. on the 2nd January, 1966 to 9.00 A.M. on the 3rd January, 1966 could not be counted for calculating the amount of demurrage claimed,

10. As to the next point raised by the learned counsel with regard to the plaintiff's liability for demurrage, the letter (Ext. 1) shows that a notice was sent by the Superintendent, Kanpur Area, to M/s. Rajaram Sri Kishan Oil Factory demanding demurrage, but they replied that they did not authorise the plaintiff to place the demand. There is nothing to show that the said statement contained in that letter is incorrect. That apart, the plaintiff was claiming to be the agent of M/s. Rajaram Sri Kishan Oil Factory when he indented for the wagon and cancelled the allotment. He must be deemed responsible for paying the demurrage as the duly authorised agent of Rajaram Sri Kishan Oil Factory on their behalf. He could have recovered the same from his principals.

11. Learned counsel then cited before me two decisions: Puttu Lal v. North Eastern Railway, AIR 1960 All' 438 and DRL Rly. Co. v. C. G. Colliery Co., AIR 1965 Pat 49. These cases have absolutely no relevance to the case in hand.

12. I must add that, on the facts, the Railway Administration had a just cause for refusing to deal ;with the plaintiff, and the Superintendent, Kanpur Area, was, in that view, not unjustified in debarring the plaintiff from working as a Forwarding and clearing Agent or recognizing him as such.

13. A point was then sought to be made by the learned counsel for the plaintiff-appellant by reference to Ext. 5. which is a letter, dated the 19th November, 1966, from the Superintendent, Kanpur Area, to the plaintiff and says that the plaintiff is 'allowed to work as claim Agent Northern Goods Sheds and Railway premises with immediate effect'. It was suggested that the order dated the 22nd June, 1966 stood withdrawn or superseded by this order. If that were so, the suit would be not maintainable, but the grievance of the plaintiff seems to have been that, although he was working as a forwarding and clearing Agent, he was allowed by this order to work only as a Claim Agent.

14. There is no merit in this second appeal. It is dismissed with costs.


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