1. The first respondent had filed a suit in the Court of the 2nd Additional District Judge, Durg, claiming Rs. 13,500/-from the Union of India representing the General Manager, South-Eastern Railway, Calcutta, Central Railway, Bombay and the Western Railway, Bombay. The claim was decreed to the extent of Rs. 12,500/- with costs. Being aggrieved by the said decision, the Union of India representing the General Manager, South Eastern Railway, Calcutta, has filed this appeal.
2. Briefly stated the case of the plaintiff-respondent is as follows: One consignment containing 101 bags of tobacco, weighing 133 maunds and 33 seers, was despatched by Chimmanlal Somabhai and Company on 11-7-1959 from Bhalej Railway Station to be delivered to the plaintiff at Durg. On 7-8-1959, the plaintiff approached the railway authorities at Durg for the assessment delivery of the consignment and submitted an application for that purpose alleging that due to negligence or misconduct of the railway, damage to the consignment had been caused. The Station Master, Durg, did not effect delivery and kept the application pending until 19-8-1959 and then refused to give delivery of the consignment unless the Central Excise Inspector attended the assessment delivery. The plaintiff then approached the Excise Authorities. The Superintendent, Central Excise, Raipur Circle, ultimately agreed vide his letter, dated 11-9-1959, to send the Central Excise Inspector, Durg, at the time of assessment delivery and he informed the Station Master, Durg, to call him. However, the Station Master, Durg, did not effect delivery and this resulted in further damage being caused to the goods.
The plaintiff-respondent then wrote to the District Commercial Superintendent, Nagpur, the General Manager of the South-Eastern Railway, Calcutta, and some other railway authorities on 1-9-1959 preferring his claim under Section 77 of the Railways Act. On 21-11-1959, the District Commercial Superintendent, South-Eastern Railway, Nagpur, wrote to the Station Master, Durg, vide his letter (Ex. p-6) that delivery of the consignment may be granted assessing damages at 45p.c. which had been agreed to by the consignor. He also ordered him to forego wharfage charges. However, when the plaintiff approached the Station Master, Durg, he refused to give delivery of the consignment on 23-11-1959 on the ground that the value of the assessed loss was Rs. 7100/- and the Station Master was authorised to effect delivery in those cases only when the assessed loss was up to Rs. 1500/-. (vide Ex. p-7).
3. Thereafter, the consignment was advertised for sale because no delivery was taken by the plaintiff. The plaintiff on being apprised of the sale notice, dated 28-11-1959, again asked the Station Master to effect delivery of the consignment and on his refusal to give delivery after passing qualifying remarks and reweighment without instructions of the District Commercial Superintendent, Nagpur, the plaintiff ultimately took delivery of the consigned tobacco under protest on 12-12-1959 in the presence of the panchas who assessed the extent of damage at 60p.c. The plaintiff then obtained permission from the Central Excise Department for processing damaged tobacco and the processing was completed on 27-12-1959. The plaintiff claimed in his suit the sum of Rs. 13,500/- as damages under the following heads:
Loss of weight at Rs. 116-12 per maund at bijak rate
12 maunds, 31 seers and 8 chhataks.
Completely damaged tobacco which could not fetch any pricehigher than Rs. 116-12 per maund(including Govt. duty of Rs. 100/-)
43 maunds, 3 seers and 7 chhataks.
Partially damaged tobacco which could be sold at Rs. 170/- per maund only, thus causing loss at Rs. 46-12 per maund (Govt. duty being Rs. 100/- per maund ).
73 maunds, 34 seers and 12 chhataks.
Loss of profit at the rate of 20% accordingto prevailing market rates.
Refund of wharfage and demmurage which resulted due tonegligence of the Railway Authorities in not giving the delivery to theplaintiff for complete four months.
Miscellaneous expenditure along with notice, typing charges,etc.
The plaintiff relinquished the claim of Rs. 117.85 Paise and claimed a decree for Rs. 13,500.00 only.
4. The written statement was filed only on behalf of the appellant. The other two Railway Administrations allowed the case to proceed ex parte against them. In the written statement, the appellant baldly denied all the material allegations in the plaint. It even recklessly denied the fact of the consignment having been booked as alleged in the plaint though it was admitted that the plaintiff took delivery of the consignment. It was not specifically pleaded that the plaintiff was not within his rights in insisting on assessment delivery on 7-8-1959 and, therefore, the defendants could not be held liable for any loss which might have been caused to the goods of the consignment after that date. We may observe that the written statement filed in this case is very vague and perfunctory.
5. The trial Court accepted the version of the plaintiff and passed a decree in favour of the plaintiff for Rs. 12,500/- only reducing the profits which were claimed at 20p.c. of the prevailing market rate at 10p.c. and thus reducing the plaintiff's claim by Rs. 1000/-. It is against this decree that the present appeal has been preferred by the defendant Union of India (appellant).
6. Shri Y. S. Dharmadhikari raises two preliminary objections to contend that the appeal should be dismissed as barred by time. It is urged that the appellant is not entitled to any exclusion of time under Section 12 of the Limitation Act inasmuch as the certified copies of judgment and decree which the appellant filed with the appeal were not obtained by him. The respondent has filed an affidavit alleging that these particular copies were actually obtained by him from the Court below. Subsequently, Shri M. A. Khan, Pleader, defendant's counsel in the trial Court, borrowed these copies on the pretext that he would recommend expeditious payment of the decretal amount. Having borrowed these copies, eventually Shri M. A. Khan misappropriated them by sending them to the railway authorities. The argument is that the appellant having not spent any time in obtaining copies because it was the respondent who had obtained them, no time can be excluded under Section 12 of the Limitation Act.
7. In our opinion, there is no substance in the contention advanced by the learned counsel. So far as this appeal is concerned, it was presented with 'a' certified copy of the judgment and 'a' certified copy of the decree appealed against. The requirements of Order 41 Rule 1 of the Code of Civil Procedure were thus fulfilled. Under Section 12 of the Limitation Act, the time to be excluded is that which was requisite in obtaining 'the' certified copy of the judgment and 'the' certified copy of the decree which are filed with the appeal and not the time which might have been taken in obtaining any other copy. The only copies which are to be taken into account for the purposes of Section 12 of the said Act are those which are actually filed with the appeal. It is immaterial who obtained those copies. That was also the view taken in Purshattam Narayan v. Sugan Chand Pannalal AIR 1964 Madh Pra 27. It is not our concern, for the purposes of this appeal, to enquire into the truth of the allegations made in the respondent-plaintiff's affidavit. Assuming that they are correct, it was the look-out of the plaintiff-respondent to resort to such legal remedy for restoration of possession of those copies and other reliefs as he thought he was entitled to, and to move for necessary action against the counsel for the conduct complained of. The first preliminary objection is rejected.
8. The second contention raised by the learned counsel for the respondent (plaintiff) is that as the certified copies of the judgment and decree filed with the memo of appeal are shown to have been utilised by the appellant for purposes of this appeal fraudulently or at least against the wishes of the respondent (plaintiff), as alleged in the affidavit filed on his behalf in this Court, and as this fact has not been controverted in any manner on behalf of the appellant, the said copies should be ignored and the appeal should be dismissed as being not properly constituted according to the requirement of Order 41 Rule 1 of the Code of Civil Procedure.
9. Again, we are unable to agree. The appeal was filed on 13-3-1961. The plaintiff-respondent entered appearance in this Court through his counsel on 26-6-1961. However, no steps were taken at all on his behalf for restoration of possession of those copies or other reliefs to which he may be entitled. The result, therefore, has been that the said documents are on record with the memo of appeal. In our opinion, ignoring this positive fact, it cannot be held that the appeal has been filed without the certified copies of the judgment and decree appealed from. This objection also is, therefore, overruled.
10. Another objection raised by ShriDharmadhikari is that when the appeal wasfiled on 13-3-1961, only a court-fee stamp ofRs. 5/- was affixed and the deficit court feewas made on 25-3-1961. However, even afterallowing the time which was requisite forobtaining the certified copies of the judgmentand the decree, the appeal would be barred bylimitation if it had been presented beyond 15-3-1961. It is urged that the reasons assignedfor not paying the full court-fees on 13-3-1961and for making up the deficiency on 25-3-1961are wholly inadequate and, therefore, the orderof the Taxing Officer certifying the delay inpayment of court-fee as bona fide should notbe allowed to stand.
11. The reason assigned on behalf of the appellant for not paying the court-fees in time is that sanction by appropriate authorities of the Railway Administration concerned for incurring expenses of filing the appeal took considerable time and, therefore, the necessary amount of money for purchasing the court-fee stamps could not be sent to the counsel for the appellant till 13-3-1961. An affidavit in support of the aforesaid reasons has been filed on behalf of the appellant. It cannot be disputed that the Law of Limitation operates equally for or against a private individual as also Government. However, Rule 9 in Chapter II of the Madhya Pradesh High Court Manual, 1960, provides that when the Taxing Officer certifies the understanding to be bona fide on an application duly made for the purpose by the appellant, 'the Court would normally extend time'. In the instant case, the Taxing Officer certified the delay in payment of court-fee to be bona fide. We find no special or exceptional circumstances to depart from the normal rule of extending time. This objection also, therefore, fails.
12. On merits, the contention of the teamed counsel for the appellant is that the plaintiff-respondent could not insist on assessment delivery and as he persisted for four months in claiming an open delivery after assessment of damages, the defendant-Railway Administration could not be held liable for the loss resulting from this delay or from the fall in the market price.
13. It is well settled that the Railway Administration is not bound to give open delivery on the demand of the consignor. The consignee has no right that the goods shall be opened and inspected in the railway premises before he can be called upon to take delivery. The proper course for the consignee is that he should take delivery of the consignment in the condition in which it is found after giving notice to the officer giving delivery as to its condition and then sue the Railway Company for damage. See: Jusaf and Ismail Co., Saonerv. Governor-General-in-Council ILR (1947) Nag 335 : (AIR 1948 Nag 65); Ambalal v. Union of India, S.A. No. 485 of 1950 D/-15-9-1954 (Nag) G.I.P. Rly Co. v. Firm Manikchand Premji, AIR 1931 Nag 29; G. G. in Council v. Firm Badri Das Gauri Dutt, AIR 1951 All. 702; Dominion of India v. Netai Chandra, AIR 1952 Cal 726 and Union of India v. Gendmal, First Appeal No. 135 of 1956, D/-27-11-1959, 1960 M.P.L.J. (Notes) No. 23. This being the settled position of law, the plaintiff should have accepted delivery of the goods on 7-8-1959 itself. Unjustifiably, he continued insisting on open delivery after assessment being given to him. Eventually, he took delivery on 12-12-1959. Thus, he himself substantially contributed to the delay and further deterioration of the goods. The manner in which he took delivery on 12-12-1959 could as well have been followed by him on 7-8-1959.
14. But, in the peculiar circumstances of this case, the fact that he did not take delivery without imposing any qualifications on 28-8-1959 is not a complete answer to the plaintiff's claim. On 21-11-1959, by the letter (Ex. p-6), the District Commercial Superintendent of the appellant-Railway directed to effect delivery of the consignment to the plaintiff on assessment of damage at 45p.c. He also agreed by the same letter to forego the wharfage charges. The plaintiff-respondent averred in the plaint that the letter (Ex. p-6) was handed over to the Station Master, Durg, by the plaintiff but even then he did not effect delivery endorsing on its back the note (Ex. p-7) which we have referred to above. In his statement, the plaintiff deposed that he had personally handed over the letter Ex. p-6 to the Station Master, Durg, and had agreed to the calculation of the loss suffered at 45p.c. Shri B. K. Mahti (P.W. 6) was the Station Master then at Durg. He stated that Ex. p-6 was shown to him by the plaintiff but he refused to deliver the goods making the said endorsement. In the written statement, there is not a word said to show why the damages assessed in Ex. p-6 were not binding on the Railway Administration. Thus, though we are of the view that the plaintiff could not in law insist on open delivery and assessment of damages before delivery was effected to him, yet as this contention was not raised in the written statement at all and further as even on 21-11-1959 the District Commercial Superintendent indicated his willingness to assess damages at 45p.c. to which the consignee had agreed, in our opinion the plaintiff is entitled to recover damages to the tune of Rs. 7100/- on the basis of Ex. P-6.
15. No doubt, the trial Court has relied on the plaintiff's evidence to show that the loss sustained by him due to shortage in weight and complete damage to one part of the tobacco and partial damage to the other part, amounts to Rs. 9994/-. It does not appear that any endeavour was made by the defendant to rebut the plaintiff's evidence. But, it is unnecessary to probe deeper into the question inasmuch as we have held that the plaintiff was himself responsible for further deterioration of the goods by not taking delivery without qualifications and by his continued insistence on open delivery being effected after assessment. He is, therefore, not entitled to recovery of the whole of this amount from the defendant. He is entitled only to Rs. 7100/- as held above.
16. We are of the view that the plaintiff is further entitled to the refund of wharfage charges and demurrage. There is no dispute that the plaintiff was required to pay Rs. 1523.60 Paise as wharfage and demurrage when he took delivery of the consignment on 12-12-1959. In Ex. P-6, the District Commercial Superintendent clearly stated that wharfage charges may be forgone. We see no reason on the basis of which in spite of Ex. p-6, wharfage charges could be allowed to be claimed by the Railwy Administration. Wharfage charges and demurrage, in our opinion, stand on the same footing. Therefore, the plaintiff is entitled to the refund of the said wharfage and demurrage charges amounting to Rs. 1523.60 Paise.
17. The plaintiff is not entitled to claim any loss of profit because, in our view, he is not entitled to recover any damages beyond Rs. 7100/-. We, therefore, disallow the claim of the plaintiff on account of loss of profit which has been decreed by the lower Court.
18. The trial Court granted a decree for Rs. 100/- on account of notice, typing charges, etc. In our judgment, the plaintiff is not entitled to this amount also. The trial Court allowed this amount taking into consideration that the plaintiff was required to go to Raipur and to send his representative to Nagpur. These expenses, in our opinion, were not properly incurred and have not been proved by producing proper accounts in Court. The notice expenses also have not been proved. We, therefore, disallow this item also.
19. In the result, this appeal is partly allowed. Instead of the decree for Rs. 12,500/-passed by the trial Court, there shall now be a decree for Rs. 8,623.60 Paise in favour of the plaintiff-respondent against all the defendants. The plaintiff shall be entitled to his proportionate costs from the defendants. We allow four months' time for payment of the decretal amount to the plaintiff by the defendents. If the amount is not paid within the said time, the plaintiff-respondent shall be entitled to recover the decretal amount by the process of execution. Counsel's fee Rs. 250/-in this Court, if certified.