Decided on August 14,1970

UNION OF INDIA Respondents


S.C.Deb, J. - (1.) This suit was filed by the plaintiff with leave under Clause 12 of the Letters Patent on 12th September, 1963, claiming Rs. 26,721/- as outstanding balance of freight payable by the defendant with interest thereon in respect of a cargo of coal carried by the plaintiff in Voyage No. 31 by the vessel "JAG SEVAK".
(2.) In the plaint it is, inter alia, alleged that the Chief Commercial Superintendent of Eastern Railway Administration on behalf of the defendant shipped 7730 metric tons of steam coal on board the plaintiff's said vessel "JAG SEVAK" for being carried by the plaintiff from the port of Calcutta and for being delivered at the Port of Cochin to the Southern Railway Administration of the defendant. The plaintiff duly carried the said cargo by that vessel under a Bill of Lading dated November 10, 1960 and duly delivered those goods to the defendant's said Railway Administration at the Port of destination on 25th November, 1960. Under the Bill of Lading the total freight payable to the plaintiff was Rs. 2,66,755-50, out of which the defendant through its Eastern Railway Administration paid Rs. 2,40,034-50 p. leaving a balance sum of Rs 26,721/- still payable to the plaintiff.
(3.) On 3rd November, 1963, the defendant filed its written statement, inter alia, pleading that the said contract of carriage was void due to non-compliance with the provisions of Article 299 of the Constitution. The defendant, however, admitted the contents of the Bill of Lading mentioned in the plaint and by way of defence alleged that the defendant had paid Rs. 2,51,818.87 p. as freight under another Bill of Lading for a different cargo of 7182 tons of coal boarded on another vessel "S. S. JAGJANANI" belonging to the plaintiff for shipment from Calcutta to Cochin. The said vessel "S. S. JAGJANANI" however, ran aground and thereafter the said cargo was off loaded in lighters and out of the total quantity of the said goods only 6784 tons were transhipped by the plaintiff by other vessels which were discharged at different ports, the distances of which were shorter than the original destination. The balance quantity of 398 tons of coal became unsuitable for shipment and were not transhipped at all. In these circumstances, the consideration for the sum of Rs. 26,721/- representing the freight for the said off loaded 398 tons of coal including the difference in freight for not carrying 6784 tons of coals to their original destination have totally failed and the said sum of Rs. 26,721/- became payable by the plaintiff to the defendant in respect of "S. S. JAGJANANI".;

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