DEHRI ROHTAS LIGHT RAILWAY CO LTD Vs. CENTRAL GODHAR COLLIERY CO

JUDGEMENT

(1.) The plaintiff Dehri Rohtas Light Railway Company, having its head office at Dalmianagar, who is the appellant, filed the suit against two defendants--(1) Central Godhar Colliery Company and (2) S.G. Bose, Proprietor, Kuchwar Lime and Stone Company, for realisation of Rs. 97,993/15/-, in respect of which an account was given as Schedule A to the plaint. Their case Is that defendant No. 1, (Central Godhar Colliery Company) booked a consignment of coal from Kusunda, Railway Station on the Eastern Railway to defendant No. 2, (S.G. Bose, Proprietor, Kuchwar Lime and Stone Company,) to be carried to Banjari Railway Station. As defendant No. 2 refused to take delivery of the consignment on the 28th September, 1955, when the wagon arrived at Banjari railway station or thereafter in spite of repeated requests, wharfage charges accrued to the railway company against the defendants. They were entitled to enforce their lien on their subsequent consignments mentioned in Schedule A. After the first consignment arrived at Banjari railway station on the 28th September, 1955, six others arrived at the same station addressed to the same consignee (defendant No. 2), four of them on the 12th October, another on the 7th of December and the last on the 9th of December, 1955. In Paragrah 8 of the plaint it was stated that a deadlock was created as defendant No. 2 took a wrong stand expressing his unwillingness to pay wharfage and demurrage in respect of a consignment. Finally after taking permission from the Government for sale of coal the plaintiff sold them at a public auction after proclamation and publication in newspapers, on the 19th of June, 1956, and recovered Rs. 6,000/- as sale proceeds. Their total charge against the defendants came to Rs. 1,03,993-15-0, and giving a deduction of Rs. 6,000/- received from sale proceeds, the balance was claimed in the suit. Defendant No, 1 filed a written-statement denying their liability for any charges due to the plaintiff company and stated that no such charge could be due on account of any of the consignments of coa! despatched by them. According to them, defendant No. 2 would be responsible for that, if at all. The written statement filed on behalf of defendant No. 2 denied the plaintiff's claim. In paragraph 7 he stated that "the first wagon arrived at Banjari on the 28th September, 1955, and with the permission of the station master, Banjari, the representative of this defendant immediately unloaded the wagon. The representative of this defendant under instruction from this defendant approached the station master, Banjari with the freight in cash but the station-master, Banjari refused to deliver the consignment Repeated attempts were made by this defendant to take delivery of the consignment on payment of the freight but the station master, Banjari and also the plaintiff's Manager did not take any care to deliver the consignment in spite of offering the freight by the defendant on many occasions. This defendant also denied that the plaintiff was entitled to enforce any lien on the subsequent consignments, and therefore, there was no question of accrual of demurrage or wharfage on the subsequent consignments. Tn paragraph 9, he categorically alleged that the station master never accepted the freights offered by him and he (the station master) refused to release the consignment. Several correspondence that passed between the parties were also referred to in the written statement.

(2.) The admitted fact is that the first consignment of coal addressed to defendant No. 2 arrived at Banjari Railway Station on the 28th of September, 1955. According to the plaintiff, as the wharfage due on account of this consignment was not paid by defendant No. 2 before taking delivery, the railway company exercised their right of Hen on the six consignments of coal that came to that railway station subsequently as they were all addressed to defendant No. 2. All the consignments of coal were sold in auction and Rs. 6,000/- was received therefrom by the plaintiff. The dispute between the parties was in regard to what happened on the 30th September. I should point out here that though the plaint and the written statement give the impression that the unloading of the first consignment had taken place on the 28th September, 1955, the uncontradicted evidence of witness No. 1 for defendant No. 2 is that one day or a little less was occupied in unloading and he approached the Station Master, Banjari, for taking delivery of those goods on payment of the freight but he refused to do so. The plaintiff examined only one witness, who was an audit clerk, and had got nothing to do with the railway station in regard to the arrival of the wagon, its placing at the siding, unloading from that wagon or, selling of the coal when it was not taken away by the consignee. His evidence, however, does not disclose what charges were demanded from defendant No. 2 on account of the first consignment or if at all any such demand was made, or, if made, when. No documents were filed by the plaintiff company although such papers were admitted to be in their office. In cross-examination P. W I stated that Schedule A (account of claim) was prepared on the basis of letters and transhipment register. He said that he had filed the transhipment register but we do not see that either it was filed or it was proved. He further admitted that all papers supporting Schedule A were in the file of the station office, the dates mentioned in Schedule A were taken from the railway siding Delivery Book and the witness admitted that that Book was also with the plaintiff. It is very strange that none of these original papers or registers or Books were produced or proved in this case. The Station Master, Banjari, or any one else working during the relevant period at that station was not examined. On the other hand, what P. W. 1 stated in further cross-examination is very much fate! to the plaintiff's case. hE stated:

(3.) The learned Advocate General appearing for the appellant contended that in view of the admitted case that the unloading had taken place either on the 28th or 29th September and defendant No. 2's man came to take delivery of those goods from the railway premises on payment of only railway freight on the 30th September, certain amount of wharfage, at least for one day had already become payable by the consignee and there is no case by the defendants that that charge was offered to be paid. The Station Master was, there-lore, right to refuse to give delivery when approached for that purpose by defendant No. 2's man on the 80th September. Whether actually wharfage had become due or not would depend upon the time when the unloading took place and also on the time when the railway wagon was placed at the siding where unloading could be possible. There is no evidence on the plaintiff's side to indicate that time. The learned Advocate General admitted that a free time of six hours is available to the consignee for unloading and clearance of goods after the wagon is placed at the railway siding or at any place where the unloading can be possible. Until the free time expires. . there will be no charge leviable for demurrage or wharfage against the consignee. It appears from Rule 3 framed under Section 47(1)(f) of the Railways Act that.