Gopal Singh, J. - (1.) THIS is second appeal by Messrs Shree Durga Industries Plaintiff against Union of India through the General Manager, Northern Railway Defendant. It is directed against the judgment of Shri Gurnam Singh, Additional District Judge, Gurgaon dated April 7, 1967, allowing appeal filed on behalf of the Defendant from the judgment of Shri Ved Parkash Sharma, Senior Sub -Judge, Gurgaon, dated February 26, 1967, decreeing Plaintiff's suit for recovery of 7,109.
(2.) CONSIGNMENT of 235 iron billets weighing 44.375 metric tons was booked by Northern Railway on April 24, 1962 on behalf of Station to Gurgaon. Railway Receipt No. 281673/F and Invoice No. 502, Exhibit D -2 were issued in token of despatch of the goods. The goods were loaded in a broad gage wagon bearing No. R -10642/44 with a capacity of 44.380 metric tons. The goods were delivered at Gurgaon on May 7, 1962 to Laxmi Narain, representative of the Plaintiff -firm. According to the case of the Plaintiff, 125 billets weighing 22.57 metric tons were received in metre gage wagon bearing No. W.R. 22860 with a capacity of 27 metric tons. According to the case of the Plaintiff, the fact of short delivery of the goods was brought to the notice of the Station Master at Gurgaon. The Plaintiff corresponded with the railway authorities bringing to their notice the short delivery of the goods and also served a claim notice on August 4, 1962 upon the Chief Commercial Superintendent (Claims), Northern Railway, Delhi on the ground of short delivery under Section 77 of the Railway Act, hereinafter called the Act. On June 12, 1963, the Plaintiff filed suit claiming damages of Rs. 8,809.22 on account of value of the goods lost and Rs. 1,055.17 as interest totalling Rs. 9,864.39 on the ground of failure of the Defendant to give full delivery of the goods despatched from Tata Nagar. In the written statement, the Defendant denied the claim of the Plaintiff and pleaded that the consignee had taken full delivery of the goods despatched and was not entitled to claim any damages. It was pleaded on its behalf that at the time the representative of the Plaintiff took delivery of the goods, no objection had been taken as to the goods despatched having not been delivered in full. It was also pleaded in the written statement that no notice had been served under Section 80, Code of Civil Procedure on the Defendant and that the suit of the Plaintiff was barred by limitation.
(3.) THE pleadings of the parties gave rise to the following issues: (1) Whether, the consignment was short delivered and the same was due to the negligence on the part of the Defendant -railway ? (2) Whether the notice under Section 80, Code of Civil Procedure was served on the Defendant ? (3) If issue No. 2 is proved, whether the suit is barred by limitation ? (4) To what amount of compensation the Plaintiff is entitled to in case issue No. 1 is proved?;