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HIGH COURT OF CALCUTTA
D. N. SINHA, K. MUKHERJEE
UNION OF INDIA - Appellant
Versus
EAST BENGAL RIVER STEAMER SERVICE LTD. - Respondent
. Of .
Decided On : July 25, 1963
The plaintiff company's tug was requisitioned by the Governor-General of India in Council under the Defence of India Rules. The plaintiff claimed compensation for the use of the tug. The main issue was whether the liability was contractual or statutory. The court held that the liability was statutory and not contractual, as the relationship between the parties was based on a statutory direction and not on a contract. The court also held that the liability devolved on the Dominion of India after the partition of India, as the liability was a joint liability of the Dominions of India and Pakistan and the cause of action arose partly within the territories of the Dominion of India and partly within the territories of the Dominion of Pakistan. The court further held that in the case of a joint liability, it was permissible for the plaintiff to proceed against any one of the joint obligors, and that the suit was maintainable against the Union of India in the absence of the Government of Pakistan. The court also held that the rate of compensation was Rs. 500/- per day and that the plaintiff was entitled to compensation for the period from April 13 to August 6, 1944.
Fact of the Case:
The plaintiff company's tug was requisitioned by the Governor-General of India in Council under the Defence of India Rules. The plaintiff claimed compensation for the use of the tug.
Finding of the Court:
The court held that the liability was statutory and not contractual, as the relationship between the parties was based on a statutory direction and not on a contract. The court also held that the liability devolved on the Dominion of India after the partition of India, as the liability was a joint liability of the Dominions of India and Pakistan and the cause of action arose partly within the territories of the Dominion of India and partly within the territories of the Dominion of Pakistan. The court further held that in the case of a joint liability, it was permissible for the plaintiff to proceed against any one of the joint obligors, and that the suit was maintainable against the Union of India in the absence of the Government of Pakistan. The court also held that the rate of compensation was Rs. 500/- per day and that the plaintiff was entitled to compensation for the period from April 13 to August 6, 1944.
Issues: 1. Whether the liability was contractual or statutory. 2. On which Government between the Government of India and the Government of Pakistan are the liability devolve after partition?
Ratio Decidendi: The court held that the liability was statutory and not contractual, as the relationship between the parties was based on a statutory direction and not on a contract. The court also held that the liability devolved on the Dominion of India after the partition of India, as the liability was a joint liability of the Dominions of India and Pakistan and the cause of action arose partly within the territories of the Dominion of India and partly within the territories of the Dominion of Pakistan. The court further held that in the case of a joint liability, it was permissible for the plaintiff to proceed against any one of the joint obligors, and that the suit was maintainable against the Union of India in the absence of the Government of Pakistan.
Final Decision: The court dismissed the appeal and upheld the decree awarded by the trial court against the defendant.
( 1 ) THIS is an appeal from a judgment and decree dated 12th May, 1958 of Datta, J. The facts of the case are quite simple and may be briefly set out as follows :-
( 2 ) THE plaintiff Company are the owners of a tug or vessel called "madanmohan". On or about February 28, 1944 the plaintiff company were served with a letter issued by the Regional Controller of Priorities (River) of the then Government of India enclosing copy of an order of the said Government. The order was No. 294 of 19th February, 1944 passed under sub-rule (2) read with sub-rule (5) of Rule 89 of the Defence of India Rules. This order is the foundation of the plaintiff's claims and should therefore be set out in extenso :-"in exercise of the powers conferred by sub-rule (2) read with sub-rule (5) of the Rule 89 of the Defence of India Rules, the Central Government is pleased to order that the Companies specified in the schedule hereto annexed shall comply with any directions given time to time by the Deputy Director of Movement, Calcutta, or by Mr. J. Aitken and the said directions require the said companies to use any vessel, steamer boat, barge or other craft in their possession or under their control plying in inland waters in the Provinces of Bengal, Bihar and Assam, for the conveyance of such persons or goods at such time and by such routes as may be set forth in the directions. "
( 3 ) THEREAFTER, on April 11, 1944 the plaintiff received another letter from the said Deputy Regional Controller of Priorities to the following effect:-"your steamer Madan Mohan is required for work at Tistamukh. Please dispatch her to Tistamukh where she should arrive by 18th instant at the latest. Pilots as necessary will be provided by the Joint Steamer Companies. The Madan Mohan's draft should not under any circumstances exceed 6'. Rebunkering as required in route should be arranged. The vessel should be manned for 24 hours duty per day. The vessel should report to the marine Superintendent, B and A Railway or his representative, Asst. Marine Superintendent, Tistamukh on arrival and act on his instructions. The financial adjustment and other terms will be one for settlement between you and the B and A Railway but they should not interfere with the dispatch of the Madan Mohan to Tistamukh".
( 4 ) PURSUANT to the above two letters the plaintiff placed the steamer "madan Mohan" at the disposal of the Deputy Regional Controller of Priorities. The vessel, it is alleged, reported at Tistamukh and plied between Tistamukh Ghat and Bahadurbad Ghat in accordance with the instructions of the officers of the B and A Railway. The vessel seems to have operated between these two points for about two months after which the vessel was released by the B and A Railway officers working at Tistamukh sometime about August 6, 1944 whereupon the vessel came (under its own steam) to Calcutta where the vessel underwent various repairs between August 16 and September 14, 1944. Under a letter dated 19th September, 1944 the plaintiff company submitted a bill dated 14th September, 1944 for Rs. 81,000/- to the Marine Superintendent, B and A Railway, Amingaon. Both the letter and the bill show that the bill was for "hire of S. L. Madan Mohan" between April 13, 1944 and September 14, 1944. It is indicated on the body of the bill that the "vessel arrived in Calcutta on 15th August, 1944 from Tistamukh Ghat and was under repairs from 16th August to 14th September 1944". The bill is for two amounts one for Rs. 75,000/- being hire at the rate of Rs. 600/- per diem for the period April 13, 1944 to August 15, 1944 and the other for Rs. 6,000/- being hire at the rate of Rs. 200/- per diem for the period August 16, 1944 to September 14, 1944. Subsequently on November 29, 1944 another bill was submitted by the plaintiff to the Assistant Marine Superintendent, B and A railway, Tistamukh Ghat, for Rs. 6519-12-0. This bill, on the face of it, relates to the repairs of the vessel. On November 20,
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