BADRIDAS FIRM OF PURULIA Vs. GOVERNOR-GENERAL FOR INDIA IN COUNCIL

JUDGEMENT

(1.) This is a plaintiff's application in revision against the orders passed by the learned Small Cause Court Judge of Purulia dismissing his suit for damages for loss incurred to the plaintiff for short delivery. It appears that certain goods were consigned to the defendant Railway Company on 24 July 1943, for carriage to Purulia. When the goods arrived at Purulia they were damaged and some amount of the same lost. The plaintiff claimed that as the local railway authorities unreasonably refused to grant the plaintiff an open delivery he had to enter into correspondence with the higher authorities for granting him the same. As a result of this correspondence, he could not get delivery of the goods until 21 May 1944. Subsequently the plaintiff served a notice on the Railway Co. for compensation for the loss caused to him on account of the short delivery. The defendant contested the suit on the ground that there was no misconduct on the part of the railway administration and that the notice under Section 77, Railways Act, had been served more than six months from the date of the consignment of the goods for carriage by the railway company. The plaintiff's claim that wharfage of Rs. 7, and odd had been unjustly realized from him was also realised [contested?] on the ground that the plaintiff allowed without any just cause his goods to remain in the goods shed of the railway company with the result that he made himself liable for wharfage. The learned Small Cause Court Judge dismissed the suit holding that misconduct had not been proved on the part of the railway administration; that the claim preferred to the railway administration was beyond six months from the date of the delivery of the goods to the railway company and that the wharfage charged was justifiable.

(2.) In this Court Mr. Chaudhari on behalf of the petitioner has contended that the railway administration did not disclose all the material facts relating to the details of the carriage of the goods from stage to stage and therefore the plaintiff was not in a position to make out his case of misconduct on the part of the railway administration. Reliance was placed upon the decision of their Lordships of the Judicial Committee in the Surat Cotton Spinning and Weaving Mills Ltd. v. Secretary of State but Mr. Chaudhuri has conceded that the plaintiff did not call upon the railway administration to furnish those informations. If he did not do so in the Court below, he cannot make it a grievance in this Court that all the material informations had not been given by the railway company, the defendant. It was next contended that Section 77, Railways Act should be so construed as to make allowance for the period taken in correspondence between the plaintiff and the railway administration. In this connection reliance was placed upon the case in Jugal Kishore V/s. G.I.P. Ry. Co. A.I.R. 1923 All. 22. That case is entirely distinguishable from the facts of the present case inasmuch as in that case the railway administration itself had put off the plaintiff from time to time and, further more, that case related to the interpretation of the Limitation Act-- Arts. 30 and 31. In the present case, we are concerned with the interpretation of Section 77, Railways Act which makes it absolutely clear that the claim must have been preferred in writing within six months from the date of the delivery of the goods for carriage by the railway. Admittedly, this was not done within the period of six months allowed by that section. In my opinion the learned Small Cause Court Judge has taken the right view of Section 77, of the Act.

(3.) Lastly, it was contended that the wharfage of Rs. 7 and odd should not have been charged from the petitioner inasmuch as the goods remained in the goods shed on account of the fact that the local railway administration would not give him an open delivery and he had to obtain an order to that effect from the higher authorities. But it has been held in Sri Gangaji Cotton Mills, Co. Ltd. V/s. E.I. Ry. Co. A.I.R. 1922 All. 514 that the plaintiff in such a case is not entitled as of right to claim an open delivery. That being so, the plaintiff was insisting upon something to which he was not in law entitled. In my opinion, therefore, the railway administration was justified in charging wharfage for the period that the goods remained in the goods shed of the railway company. The plaintiff should have arranged to take delivery as soon as the goods arrived and then he should have pursued his remedies, if any. Instead of doing that he insisted upon something to which he was not entitled. If he had to pay for that he has to thank himself and nobody else. In my opinion there is no error of law in the judgment of the Court below. The application is accordingly dismissed with costs; hearing fee one gold mohur.