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Tarachand Agarwalla Vs. Union of India (Uoi) - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtKolkata High Court
Decided On
Case NumberA.F.O.O. No. 203 of 1970
Judge
Reported inAIR1983Cal268
ActsLimitation Act, 1908 - Schedule - Article 31; ;Code of Civil Procedure (CPC) , 1908 - Section 80 - Order 41, Rule 22; ;Code of Civil Procedure (CPC) (Amendment) Act, 1976
AppellantTarachand Agarwalla
RespondentUnion of India (Uoi)
Appellant AdvocateSaraf, Adv.
Respondent AdvocateP.K. Sen, Adv.
DispositionAppeal dismissed
Cases ReferredAppellant v. Gundugola Venkata Suryanarayana Garu. Respondent
Excerpt:
- .....on the then east punjab railway for carriage to and delivery at siliguri on the east indian railway. in the railway receipt granted in respect of the said goods pratap singh was the consignor and consignee. the second consignment of goods of 565 mounds approximately of gram was booked by one saleghram pearilal at uchana station on the then east punjab railway for being carried to siliguri on the east indian railway. in the second railway receipt issued by the railway saleghrarn pearilal was both the consignor and consignee. the appellant claimed to be endorsee for valuable consideration of the said two railway receipt. by the letter d/- aug. 30, 1948 addressed to the chief commercial manager. eastern bengal railway at 3, koilaghat street, calcutta appellant gave notice to the said.....
Judgment:

S.C. Ghose, C.J.

1. This appeal arises out of a judgment and decree D/-Aug. 20. 1969 passed by R. M. Datta, J. By the said judgment and decree the learned trial Judge dismissed the suit on the ground that it was barred by the laws of Limitation. The appellant based his claim in the plaint against the Union of India as the owner of Railway Authorities for non-delivery of goods of the value of Rs. 27,125/-. 520 maunds of gram were booked on June 7, 1948 by one Pratap Singh at Narowana Junction station on the then East Punjab Railway for carriage to and delivery at Siliguri on the East Indian Railway. In the railway receipt granted in respect of the said goods Pratap Singh was the consignor and consignee. The second consignment of goods of 565 mounds approximately of gram was booked by one Saleghram Pearilal at Uchana Station on the then East Punjab Railway for being carried to Siliguri on the East Indian Railway. In the second railway receipt issued by the Railway Saleghrarn Pearilal was both the consignor and consignee. The appellant claimed to be endorsee for valuable consideration of the said two railway receipt. By the letter D/- Aug. 30, 1948 addressed to the Chief Commercial Manager. Eastern Bengal Railway at 3, Koilaghat Street, Calcutta appellant gave notice to the said authority intimating the goods under the said two railway receipts did not reach the destination. Further correspondence on the subject followed ultimately by a notice under Section 80 of the Civil P. C. D/- July 19, 1949, the appellant's solicitor asked the General Manager, Hast India Railway to compensate the appellant to the extent of a sum of Rs. 27.126/- with interest failing which the appellant threatened to file a suit on the expiry of 2 months from the date Of the service of the said notice. The appellant filed the suit on Feb. 18, 1950 after obtaining leave under Clause 12 of the Letters Patent. Before the learned trial judge the case was argued on three (?) main points--first on the validity and sufficiency of the two notices one under Section 77 of the Indian Railways Act and the other under Section 80 of the Civil P. C. 1908 and thirdly on the point as to whether the appellant's claim was barred lay the Laws of Limitation.

2. Before us Mr. Saraf on behalf of the appellant submitted that it was the obligation of the Railway to prove the reasonable time to carry the goods from the station of booking to the station of delivery. Reasonable time is a question of fact in each case and the carrier must prove the same. Mr. Saraf relied on the case of Bootamal v. Union of India reported in : [1963]1SCR70 , Mr. Saraf further relied on the case of Governor General in Council (now Union of India, v. Musaddilal, reported in : [1961]3SCR647 ), the case of Rodha Sham Basak v. Secretary of State for India in Council, reported in (1916) 20 Cal WN 790: (AIR 1917 Cal 640) the case of Jetmull Bhojraj, v. Darjeeling Himalayan Railway Co. Ltd. reported in AIR 1962 SC E879 and the case of Gobind Ram Tilokchand v. Union of India : AIR1960Cal400 . Mr. Saraf further contended that assuming the cases governed by Article 31 of the Limitation Act, the appellant could not be non-suited as the Railway Authority has not proved the data when the goods ought to have been delivered. The evidence on the question of the appellant should be accepted in answer to questions 66 to 89 and 208 to 221.

3. Mr. P. K. Sen appearing on behalf of the respondent submitted that Article 31 of the Limitation Act would apply in the instant case and according to appellant's own case 15 days was reasonable time for delivery in the case. The following documents show that the goods did not arrive at the destination station although reasonable time had passed. Letter dated 30th Aug. 1948 written by the appellant to the Chief Commercial Manager, Eastern Bengal Railways being Ext. I, Indeed in the Ext, E appearing at page 89 dt. 19th Dec. 1948, the appellant wrote to the Traffic Manager Eastern Bengal Railways, Chittagang that the 'consignment was long overdue to delivery.' That is to say the appellant admitted that the reasonable date for delivery of the consignments had long expired, In the letter dt. 23-2-49 being part of Ext. E appearing at page 90 of the Paper Book, the appellant wrote to the Railway Authorities 'but it is a matter of great regret and astorishment that my consignments are yet remaining outstanding at destination.' In a part of the Ext. E being a letter dt. 23-2-1949 appearing at page 92 it was written by the Railway Authorities that the goods were despatched from Katihar to Kissenganj and then to Siliguri in July 1948. In a letter dt. 3rd Mar. 1949 being part of Ext. E appearing at page 93 of the paper Book, the appellant wrote to the Assistant Traffic Superintendent, O. T. Railway, Katihar that 'we have heard that the wagons have been delivered to another party which we cannot believe,' In fact, it will appear from the answer to question 70 that he actually found his neighbour selling those very grams in the latter part of Feb. 1979. In the instant case, in our opinion, Article 31 of the Limitation Act will apply as the loss of the goods has not been proved. The abovementioned case of Bootamal v. Union of India, : [1963]1SCR70 has clearly laid down that reasonable time will depend upon the facts of each case that in the absence of any special circumstances reasonable time would practically be the same between the two stations as would normally or usually or ordinarily be taken for the carriage of goods from the one station to the other. In the case before us there is no special circumstances for which a fresh period of limitation would be available to the appellant, in the instant casa before us from the facts stated hereinbefore it is evident that the appellant himself admitted that the goods ought to have reached Siliguri long time ago. In spite thereof the appellant did not take steps to file the suit within time as provided under Article 31 of the Limitation Act and the suit of the appellant is clearly barred by the Laws of Limitation. Mr. Sen urged that under Order 41 Rule 22 of the Civil P. C. he could attack the learned trial judge's finding on the notices under Section 80 of the C. P. C. and submitted that notice under Section 80 was invalid in the instant case. In the notice under s. 80 of the Civil P. C. in the instant case the claim has been made on the basis of consignor and consignee of the goods in question whereas in para 4 of the plaint the appellant based his claim in the suit as the endorsee for valuable consideration of the railway receipts concerned.

4. Mr. Saraf submitted that inasmuch as no cross-objection has been filed by the respondent he cannot challenge the learned trial Judge's finding on Section 80 of the Civil P. C. Order 41. Rule 22 of the Civil P. C. before amendment states as follows:--

Upon hearing respondent may object to decree as if he had preferred separate appeal. -- (1) Any respondent, though he may not have appealed from any part of the decree may not only support the decree (but may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour and may also take any cross-objection), to the decree which he could have taken by way of appeal provided he has filed such objection in the Appellate Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow.

(Explanation. -- A respondent aggrieved by a finding of the court in the judgment on which the decree appealed against is based may, under this rule, file cross-objection in respect of the decree in so far as it is based on that finding, notwithstanding that by reason of the decision of the Court on any other finding which is sufficient for the decision of the suit, the decree, is wholly or in part, in favour of that respondent.)

Form of objection and provisions applicable thereto-

(2) Such cross-objection shall be in the form of a memorandum, and the provisions of Rule 1, so far as they relate to the form and contents Of the memorandum of appeal shall apply thereto.

(3) Unless the respondent files with the objection a written acknowledgment from the party who may be affected by such objection or his pleader of having received a copy thereof, the Appellate Court shall cause a copy to be served, as soon as may be after the filing of the objection, on such party or his pleader at the expense of the respondent.

(4) Where in any case in which any respondent has under this rule filed a memorandum of objection, the original appeal is withdrawn or is dismissed for default, the objection so filed may nevertheless be heard and determined after such notice to the other parties as the Court thinks fit.

(5) The provisions relating to pauper appeals shall, so far as they can be made applicable, apply to an objection under this rule.

5. In our opinion the right to support the decree even on grounds on which the learned trial judge held against the respondent is a substantive right and cannot be taken away except expressly or by necessary implication. In the instant case the right to challenge under Order 41, Rule 22 vested in the respondent prior to the amendment and the amendment shows that it is prospective, only and not retrospective. In that view of matter we are of the opinion that the respondent is entitled to challenge the learned trial judge's finding on notice under Section 80 of the Civil P. C. The two railway receipts were all along lying with the appellant. In spite of that the notice under Section 80 was based on the cause of action of consignor and/or consignee of the railway receipts. That is not the cause of action as pleaded in the plaint. We are unable to agree with the learned trial judge that notice under Section 80 of the Civil P. C. has been substantially complied with Section 80 of the Civil P. C. The cause of action of an endorser or endorsee of railway receipt is different from the cause of action of a consignor or consignee thereof. The notice stating one cause of action cannot be stated to have substantially complied with while the cause of action of the appellant in the suit is different. It is not an incidental error or defect Reference may be made in this connection to the case of State of Andhra Pradesh, Appellant v. Gundugola Venkata Suryanarayana Garu. Respondent : [1964]4SCR945 . The omission to state the real cause of action in the notice under Section 80 is not an incidental error in our opinion and as such the notice under Section 80 of the Civil P. C. is bad in the instant case.

6. For the aforesaid reasons the appeal must fail and is dismissed with costs.

R.N. Pyne, J.

7. I agree.


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