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High Court Of Madhya Pradesh
Shiv Dayal and S. P. Bhargava, JJ.
UNION OF INDIA - Appellant
Versus
IBRAHIM GULABA TOBACCO MERCHANT - Respondents
First Appeal 41 Of 1961
Decided On : 03/18/1965
The respondent objected that the copies of decree and judgment filed by the appellant were taken by the respondent and the appellant has misappropriated them. Hence, firstly the time spent in these copies should not be excluded from period of limitation, and, secondly the copies should be ignored and the appeal should be treated as not properly constituted.
Held: So far as this appeal is concerned, it was presented with a certified copy of the judgment and a certified copy of the decree appealed against. The requirements of Order 41, Rule 1 of the Code of Civil Procedure are thus fulfilled. Under section 12 of the Limitation Act, the time to be excluded is that which was requisite in obtaining 'the' certified copy of the judgment and the certified copy' of the decree which was filed with the appeal and not the time which might have been taken in obtaining any other copy. The only copies which are to be taken into account are those which are actually filed with the appeal. It is immaterial who obtained those copies. 1963 JLJ 363 relied on. [Para 7]
Ignoring the positive fact that the copies are there on record it cannot be held that the appeal has been filed without the certified copies of the judgment and the decree appealed from. [Para 9]
(2) High Court Manual, 1960 (M. P.) - Chap. II, R. 9-report of the Taxing Officer as to bona fides of the delay-Court should normally extend time.
It cannot be disputed that the law of limitation operates equally for or against a private individual as also Government. However, Rule 9 is Chapter II of the Madhya Pradesh High Court Manual, 1960, provides that when the Taxing Officer certifies the understanding to be bona fide on an application duly made, the Court would normally extend time. Where there is no special or exceptional circumstances to depart from the normal rule of extending time, it is to be extended. [Para 11]
(3) Railways Act, 1890 - S. 72 - Contract Act, 1872 - Ss. 152 & 161-open delivery -cannot be claimed by consignor-procedure to be adopted-deterioration caused by delay because of such demand-consignee not responsible-pleadings in such a case.
The well settled position of law is that the Railway Administration is not hound to give open delivery on the demand of the consignor. The consignee has no right that the goods shall be opened and inspected in the railway premises before he can be called upon to take delivery. The proper course for the consignee is that' he should take delivery of the consignment in the condition in which it is found after giving notice to the officer giving delivery as to its condition and then sue the Railway Company for damages. ILR 1947 Nag. 335, 17 MPLC 249, 1961 JLJ-SN 327 relied on.
If the consignor insists on the open delivery and thereby delay is caused, the consignee is not responsible for the further deterioration of the goods. [Para 13]
But this contention should be raised in the written statement. [Para 14]
( 1 ) THE first respondent had filed a suit in the Court of the 2nd Additional District judge, Durg, claiming Rs. 13,500/-from the Union of India representing the general Manager, South-Eastern Railway, Calcutta, Central Railway, Bombay and the Western Railway, Bombay. The claim was decreed to the extent of Rs. 12,500/- with costs. Being aggrieved by the said decision, the Union of India representing the General Manager, South Eastern Railway, Calcutta, has filed this appeal.
( 2 ) BRIEFLY stated the case of the plaintiff-respondent is as follows: One consignment containing 101 bags of tobacco, weighing 133 maunds and 33 seers, was despatched by Chimmanlal Somabhai and Company on 11-7-1959 from bhalej Railway Station to be delivered to the plaintiff at Durg. On 7-8-1959, the plaintiff approached the railway authorities at Durg for the assessment delivery of the consignment and submitted an application for that purpose alleging that due to negligence or misconduct of the railway, damage to the consignment had been caused. The Station Master, Durg, did not effect delivery and kept the application pending until 19-8-1959 and then refused to give delivery of the consignment unless the Central Excise Inspector attended the assessment delivery. The plaintiff then approached the Excise Authorities. The Superintendent, Central Excise, raipur Circle, ultimately agreed vide his letter, dated 11-9-1959, to send the central Excise Inspector, Durg, at the time of assessment delivery and he informed the Station Master, Durg, to call him. However, the Station Master, Durg, did not effect delivery and this resulted in further damage being caused to the goods. The plaintiff-respondent then wrote to the District Commercial Superintendent, nagpur, the General Manager of the South-Eastern Railway, Calcutta, and some other railway authorities on 1-9-1959 preferring his claim under Section 77 of the railways Act. On 21-11-1959, the District Commercial Superintendent, South-Eastern Railway, Nagpur, wrote to the Station Master, Durg, vide his letter (Ex. p6)that delivery of the consignment may be granted assessing damages at 45p. c. which had been agreed to by the consignor. He also ordered him to forego wharfage charges. However, when the plaintiff approached the Station Master, durg, he refused to give delivery of the consignment on 23-11-1959 on the ground that the value of the assessed loss was Rs. 7100/- and the Station Master was authorised to effect delivery in those cases only when the assessed loss was up to Rs. 1500/ -. (vide Ex. p-7 ).
( 3 ) THEREAFTER, the consignment was advertised for sale because no delivery was taken by the plaintiff. The plaintiff on being apprised of the sale notice, dated 2811-1959, again asked the Station Master to effect delivery of the consignment and on his refusal to give delivery after passing qualifying remarks and reweighment without instructions of the District Commercial Superintendent, Nagpur, the plaintiff ultimately took delivery of the consigned tobacco under protest on 12-121959 in the presence of the panchas who assessed the extent of damage at 60p. c. The plaintiff then obtained permission from the Central Excise Department for processing damaged tobacco and the processing was completed on 27-12-1959. The plaintiff claimed in his suit the sum of Rs. 13,500/- as damages under the following heads: loss of weight at Rs. 12 maunds, 31 seers 116-12 per maund at and 8 chhataks. bijak rate 1493/- Completely damaged 43 maunds, 3 seers and tobacco which could 7 chhataks. not fetch any price higher than Rs. 11612 per maund (including Govt. duty of Rs. 100/-) 5030/-Partially damaged 73 maunds, 34 seers tobacco which could and 12 chhataks. be sold at Rs. 170/per maund only, thus causing loss at Rs. 4612 per maund (Govt. duty being Rs. 100/per maund ). 3471/- 4 loss of profit at the rate of 20% according to prevailing market rates. 2000/-Refund of wharfage and demmurage which resulted due to neglig
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