UNION OF INDIA Vs. NATIONAL COAL DEVELOPMENT CORPORATION LTD
HIGH COURT OF MADHYA PRADESH
UNION OF INDIA
NATIONAL COAL DEVELOPMENT CORPORATION LTD
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(1.) THE Union of India, representing the south Eastern Railway, has filed this revision under section 1 i 5 of the Code of Civil Procedure, against a decree of the Second Additional District Judge, Bilaspur, dated 9-10-1967, affirming a decree of the Civil Judge, Class II, Katghora, dated 24-4-1967, whereby the claim for recovery of Rs. 990 as damages in the suit, for the alleged non-delivery of 3 Pcs. of Phospher Bronze Bush Rough Casting, brought by the national Coal Development Corporation Ltd. , and undertaking in the public sector (hereinafter referred to as the 'ncdc'), has been allowed.
(2.) THE material facts are these. The goods in question were consigned by M/s. S. K. Mukerjee and Co. , Calcutta, Ex. A, Ghat on the South Eastern railway under R/r No. 760232, dated 18-6-1963, bearing Invoice No. 93, for delivery, at Korba, to the Deputy superintendent of Collieries, NCDC. Admittedly, the goods were not delivered, and the NCDC, which was the consignee named in the R/r, instituted this suit against the Railways for damages. Contrary to the admitted fact of non-delivery, the learned counsel appearing for the Union of India tried to assert before me for the first time that non delivery of the goods had not been established. That assertion is somewhat strange, coming as it does from a senior counsel. Before the Courts below, it had not been disputed that the goods were actually lost in transit, presumably on account of the negligence and/or misconduct of the railway administration and its agents or servants, and the learned appellate Judge adverts to the fact of non-delivery as an "undisputed" fact. In view of the admission of non-delivery in the Courts below, the learned counsel for the Union of India cannot be permitted here to contend otherwise.
(3.) THE learned counsel appearing for the Union of India then tried to assail the decree on other grounds, on which the claim had really been contested in the suit itself, viz :
" (1) there was no proof that title to the goods had passed to the consignee, i. e. , the n CDC, and, therefore, it was not entitled to maintain any suit for damages for their nondelivery; and
(2) the goods having been consigned without any pre-payment of freight, no claim for refund of freight was maintainable. Alternatively, when damages are claimed for non-delivery of goods, the resultant claim is inclusive of freight and, therefore, refund of freight cannot be separately had. ";
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