UNION OF INDIA Vs. BARARASHI LAL AGRAWALLA

JUDGEMENT

(1.) This Rule is at the instance of the defendant Railway administration and is directed against an appellate decree whereby the lower appellate court reversing the decision of the trial court decreed the money claim of the opposite party as against the Railway administration.

(2.) Undisputedly the plaintiff opposite party booked a consignment of coal with the Railway administration on June 28, 1951. It was so booked at the Barakar Railway Station in the Eastern Railway. According to the plaintiff-opposite party the consignment should have reached the consignee at Chapra within 15 days but it did not do so. After a long correspondence between the parties the suit was instituted for realisation of damages for non-delivery assessed at Rs. 767/-. This suit having been contested by the Railway administration was dismissed by the trial court on two-fold grounds namely the claim was barred under Article 31 of the Old Limitation Act and on the ground that no such claim is maintainable in the absence of a notice under Section 77 of the Indian Railways Act. The fact that there was no such notice under Section 77 is also not in dispute.

(3.) On an appeal by the plaintiff-opposite party this decision of the trial court was reversed and the suit was decreed. On the question of limitation, the lower appellate court accepted the position that the case would be governed by Article 31 of the old Limitation Act and the limitation would be one year from the date when the goods ought to be delivered. But according to the lower appellate court the date of such delivery is to be proved by the carrier defendant and the defendant not having discharged that burden it cannot be said positively what would be the date when the goods in suit ought to have been delivered. In addition thereto, the lower appellate court took the view that the limitation was to run only from the date of final refusal to deliver and as such refusal should be construed to be the last of the correspondence dated March 10, 1956; the suit which was instituted on April 22, 1957 must be considered to be well within the period of limitation calculated from that date excluding the period of notice under Section 80 of the Code of Civil Procedure. On the question of the effect of absence of notice under Section 77 of the Indian Railways Act, the court of appeal below took the view that the said section can have no application to the present case where the claim is based on non-delivery and the carrier defendant has not proved that such non-delivery is due to any loss incurred by the Railway administration.