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Union of India (Uoi) Vs. Keshari Chand Geurchand Firm - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 301 of 1959
Judge
Reported inAIR1962Ori49
ActsRailways Act, 1890 - Sections 54; Goods Tariff Rules - Rule 15
AppellantUnion of India (Uoi)
RespondentKeshari Chand Geurchand Firm
Appellant AdvocateB.K. Pal and ;H.C. Mukherji, Advs.
Respondent AdvocateK.N. Sharma and ;S. Khandal, Advs.
DispositionSuit dismissed
Excerpt:
.....430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - the plaintiff served a notice under section 77 of the indian railways act as well as under section 80 of the code of civil procedure before filing the suit. 2. according to the plaintiff, as well as the deposition o p. rule 15 however, clearly empowers the railway authority to correct any mistake in respect of weight, description and classification etc......o. ext. 2. according to the plaintiff, as well as the deposition o p. w. 1 (ext. 1), the goods are called kalanji seeds at sasaram as described in the railway receipt and m. o. ext. 2 is called 'kalajka'. the defendant contended that ext. 1 is not kaianji seeds, but it is kalajira and ext. 2 is called somraj. i had an opportunity of looking into exts. 1 and 2 in this court. the contents of ext. 1 are black in colour whereas the contents of ext. 2 are white in colour. under the railway tariff rules there is no such thing as 'kalajira'. they are described only as jeera (white) and jeera (black). under the general classification of goods as given in the goods tariff (general rules) no. 28, there is one article called 'kalijira' and another called' 'kalanjee seed' which under the retail.....
Judgment:
ORDER

G.C. Das, J.

1. This is an application by the defendant--Union of India, against an order of the learned Small Cause Court Judge, Cuttack, decreeing the plaintiff's suit claiming recovery of a sum of Rs. 85/- which was realised by the defendant Railway as under-charge.

2. Plaintiff's case was that an indent was placed for fifty bags of Kalanji seeds from Sasaram in Bihar through the defendant-railway for delivery at the Cuttack railway station. Plaintiff took delivery of the consignment at the Cuttack Railway Station on May 20, 1957. At the time of the delivery the Railway authorities realised an extra freight of Rs. 81/- on the ground, that there has been an under-charge. Plaintiff paid the money and the defendant passed a money receipt in his favour. Thus, the plaintiffs case was that the defendant realised, the under-charge on the ground, that the consignment contained 'Kalajira', though actually the consignment was o Kalanji Seeds.

According to the defendant-railway the freight charge for 'Kalajira' is much higher than that for Kalanji seeds. According to the plaintiff, the goods consigned at isasarain in Bihar were known as 'Kalanji' Seeds and they were produced before the railway authority and despatched from that railway station after the railway authority granted the receipt mentioning the commodity as 'Kalanji' seeds. Thus, according to the plaintiff, the undercharge realised at the Cuttack railway station Was illegal and the plaintiff must get a refund of the same. The plaintiff served a notice under section 77 of the Indian Railways Act as well as under Section 80 of the Code of Civil Procedure before filing the suit.

3. The defence was that the consignment in question contained 'Kalajira' and not Kalanji seeds, and accordingly the under-charge was properly realised. The defendant also took the plea that the suit was not maintainable due to defect in the notice and service.

4. Plaintiff examined one Sibprasad Kalavatia as his witness (P. W. 1). The defendant railway examined a witness A. B. Roy, Goods Supervisor at Cuttack (D. W. 1). At the trial the plaintiff produced two packets as M. O. Ext. 1 and M. O. Ext. 2. According to the plaintiff, as well as the deposition o P. W. 1 (Ext. 1), the goods are called Kalanji seeds at Sasaram as described in the railway receipt and M. O. Ext. 2 is called 'Kalajka'. The defendant contended that Ext. 1 is not Kaianji Seeds, but it is Kalajira and Ext. 2 is called Somraj. I had an opportunity of looking into Exts. 1 and 2 in this Court. The contents of Ext. 1 are black in colour whereas the contents of Ext. 2 are white in colour. Under the Railway tariff rules there is no such thing as 'Kalajira'. They are described only as Jeera (white) and Jeera (black). Under the general classification of goods as given in the Goods Tariff (General Rules) No. 28, there is one article called 'Kalijira' and another called' 'Kalanjee seed' which under the retail classification is charged under the main head 'Kalanji'.

According to P. W. 1, Ext. 1 is called both Kalajira and Kalanji at Cuttack. In cross-examination he stated that if anybody wants to purchase Kalajira at Cuttack, he would get the sample as in M. O. 1. that is, the black coloured Jeera. He however stated that this is called Kalanji in Bihar, Bombay and Rajasthan. There is no evidence on record that Ext. 1 is called Kalanji seeds in either of these States. I may mention here that although the defendant took time to get a report from Sasaram, the place where the goods were consigned, the defendant-railway did not produce any such report. Hence the Court was left with the samples as filed by the plaintiff, Ext. M. O. 1 and 2. The contents of Ext. 1 are black in colour and appear to be identical with Kalajeera, whereas that plaintiff admittedly had filed Ext. 2 as Kalajeera which is white in colour. Under Rule 15 of the Goods Tariff Rules No. 28, the Railway is entitled to correct the charges on receipt of the notes Rule 15 runs as follows:

'The weight, description and classification of goods and quotation of rates as given in the Railway Receipt and forwarding note are merely inserted for the purpose of estimating the Railway charges and the Railway reserves the right of re-measurement, re-weighment, re-classification and re-calculation of rates, terminals and other charges and correction of any other errors at the place of destination and of collecting any amount that may have been omitted or undercharged. No admission is conveyed by a Railway receipt that the weight as shown therein has been received or that the description of goods as furnished by the consignor is correct,'

It was argued on behalf of the plaintiff-opposite party that the contract was entered into between the plaintiff's agent and the railway authorities at Sasaram and as the description given at the place of consignment of the goods was 'Kalanji' seeds the Railway-defendant is not entitled to change that description, at the delivery station. Rule 15 however, clearly empowers the railway authority to correct any mistake in respect of weight, description and classification etc. of goods. Admittedly the article as in Ext. 1 was taken delivery of by the plaintiff at the Cuttack Railway Station. Thus, in view of the evidence on record and the article (Ext. 1) as filed in Court, it is clear that the learned Small Cause. Court Judge has gone wrong and had not appreciated the question of law as arises from Rule 15 quoted above. Accordingly, I would set aside the order of the learned Small Cause Court Judge, Cuttack, allow this petition and make the Rule absolute.

5. In the result, the plaintiff's suit is dismissed, the Rule is made absolute but there would be no order for costs.


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