FOODS, FATS, FERTILIZERS, PTE. LD., BY ITS DIRECTOR B.K. GOENKA Vs. THE UNION OF INDIA, OWNING THE SOUTHERN RAILWAY, BY ITS GENERAL MANAGER, MADRAS AND OTHERS

JUDGEMENT

(1.) The unsuccessful plaintiffs in O.S. No. 4173 of 1964, on the file of the VIII Asst Judge City Civil Court, Madras, are the appellants. The plaintiffs consigned by a Tank Wagon rice bran oil from Tadepalligudem, within the jurisdiction of the Southern Railway, to Sahab Bazar, within the jurisdiction of the Eastern Railway, both the railways controlled by the Union of India. The goods were despatched under R.R. No. 798204 dated 13th February 1963 and the goods arrived at the destination on 28th February 1963. It is common ground that M/s Asiatic Soap Co., at the place of destination, were to take delivery of the goods. The consignees did not seek for delivery of the goods until 7th March 1963. When the consignees turned up on 7th March 1963, and sought for release of the wagon, it is also common ground that the defendants, namely, the Southern Railway and the Eastern Railway could not deliver the goods as by then the Inspector of Explosives, East Circle, Calcutta, in conjunction with the police department, has issued orders to the first defendant not to release the tank wagon without reference to them. It is not in dispute that the Inspector of Explosives drew samples of the oil on 8th March 1963, and ultimately is said to have passed orders on 22nd April 1963, permitting release of the commodity to the consignees subject, however, to certain conditions. Ultimately, the wagon was released on 23rd April 1963. The plaintiff's case is that the defendants collected demurrage of Rs. 7491 -60 in connection with the detention of the wagon from 28th February 1963 to 22nd April 1963 and such a collection is unauthorized and is not permissible in law as the plaintiffs are not at fault in the matter of such detention of the wagon at any rate from 7th February 1963 to 22nd April 1963. The defendants were called upon to refund the above sum illegally collected from the plaintiffs. The usual notices under S.77of the Indian Railways Act and under S.80, C.P.C., d. 9th April 1963 were given to the defendants. As the plaintiffs did not have satisfaction of the claim, they filed present action for recovery of the sum of the Rs. 7491 -60. The first defendant denied that the railways are in any way responsible for the detention, and therefore, claimed that they had the right to collect the demurrage charges as the wagon was not cleared daring the period commencing from 28th February 1963 and ending with 22nd April 1963. Whilst stating that the consignor, consignees and the plaintiffs are bound by the rules in the Goods Tariff which were in force at that time, the first defendant stated that the plaintiffs are not entitled to seek for a refund of the demurrage charges lawfully collected by the defendants. They also raised incidentally the question that the City Civil Court at Madras had no jurisdiction to try the suit and that there was no valid notice under the provisions of the Railways Act. In an additional written statement filed by the first defendant, they brought out the circumstances under which the wagon was detained. They referred to the intervening order of the Inspector of Explosives and how they had no option but to detain the wagon between 7th March 1963 and 22nd April 1963. Their specific case is that the Inspector of Explosives issued release orders even on 16th April 1963, and therefore, the plaintiffs have to suffer demurrage charges from 28th February 1963 to 7th March 1963 and 16m April 1963 to 22nd April 1963. They would attribute such detention to the negligence on the part of the plaintiffs and would state that, as the railing space and the tank wagon could not be put to any other use during the relevant period on account of the conduct of the plaintiffs, the defendant sight to recover the demurrage charges is beyond question. In order to substantiate their incidental defence as to negligence on the part of the plaintiffs, they would refer to a previous incident which happened in relation to the movement of similar goods by the plaintiffs under the similar tank wagon which was also detained in February 1963, but prior to the movement of the suit wagon, and which was involved in a fire accident on 18th February 1963. Based on this, it is said that the plaintiff's negligence was the cause for the detention of the wagon and that therefore, they are not entitled to a refund of the demurrage charges.

(2.) The second defendant adopted the written statement of the first defendant. The learned trial Judge framed the following issues for trial:

(3.) Was the delay in taking delivery of the consignment due to any act of the defendants?