Durga Prasad Choudhary and others v. Union of India

Judgement

ORDER. : This application is under S. 25 of the Provincial Small Cause Courts Act by the plaintiffs who had instituted the suit for recovery of Rs. 469/14/- which they had paid as demurrage to the defendant railway. The suit has been dismissed by the Court below.

2. On 21-2-1953, the plaintiffs indented two wagons of cement from Jhinkpani to Sultanganj railway station, on the Eastern Railway. On 27-2-1953, the wagons reached Sultanganj. The next day, on 28th February, the plaintiffs executed an indemnity bond and wanted delivery of the goods because they had lost the railway receipt. This indemnity bond was made over to the Station Master of Sultanganj railway station, who returned the same with a note that, as the value of the goods was more than one thousand rupees, that should be countersigned by the Divisional Superintendent, Howrah.

The plaintiffs found no other remedy, and they had to wait until 2-3-1953, when they produced another indemnity bond. Curiously enough, this indemnity bond was acted upon by the same Station Master, and, on the strength of this indemnity bond, he did deliver the goods on payment to the railway of the demurrage for the period 28th February to 2nd March, 1953. The plaintiffs claim that this amount of demurrage was wrongfully realised from them, and, therefore, the suit is, as I have said, for recovery of the said amount.

3. The defendant denied that any indemnity bond had been executed by the plaintiffs on 28-2-1953; and they further denied their liability to pay back the amount of demurrage.

4. The Court below has held that, as the indemnity bond executed on 28-2-1953, was not counter-signed by the Divisional Superintendent, the plaintiffs were not entitled to recover the demurrage paid which, according to the Court below, was legally realised by the railway from the plaintiffs.

5. The relevant portion of S. 57 of the Railways Act, which provides for delivery of goods in certain cases on execution of indemnity bonds, runs as follows:

"Where........receipt given for....goods is not forthcoming, the railway administration may withheld delivery of......goods. . . .until the person entitled in its opinion to receive them has given an indemnity, to the satisfaction of the railway administration, against the claim of any other persons... ,

This section, therefore, provides for delivery of goods on execution of indemnity bond by the person claiming the goods when the receipt has been lost and is not forthcoming. Now, under S. 47 of the Act, certain rules have been framed, and my attention has been drawn to R. 45, Page 1194, Appendix C of Sanjiwa Rows Indian Railways Act 3rd edition, Volume II, sub-rule (1) of which is as follows :-

"When a railway receipt has been lost, mislaid, or is for other reasons not forthcoming, the railway reserves the right to demand an indemnity note before giving delivery of animals or goods therein concerned"

.

In the same Appendix, R. 181 II (a) at page 1284 is as follows :-

"When the person claiming delivery of a consignment is unable, for any reason, to produce the original Railway Receipt, it is necessary that he, together with one reliable surety, should execute a Stamped Indemnity Bond, the signatures on the Bond of these two persons being witnessed in the usual way before delivery can be given"

. Reading these rules together with S. 57, it is quite clear, in my judgment, that, in case the railway receipt is not produced, the person asking for delivery of goods can get the delivery of it on execution of an indemnity bond. Rule 181 II (C), however, runs as follows :-

"When the declared value of a consignment is Rs. 500 or less, the Station-Master (or Goods Clerk, if in independent charge) will deal with the application; but should the declared value be above Rs. 500 the application must be forwarded to the Divisional Superintendent within whose jurisdiction the station lies, and his orders obtained prior to acceptance of an Indemnity Bond."

It is submitted by Mr. Bose, on behalf of the railway that, as in the present case the first indemnity bond had mentioned the value of the goods to be more than Rs. 1000/-, the Station Master had rightly refused to deliver the goods on that indemnity bond; and further that it was the duty of the plaintiffs to have sent the indemnity bond, or taken it themselves, to the Divisional Superintendent for obtaining his orders upon the indemnity bond, and that, until that was done, the Station Master of Sultanganj was not entitled to deliver the goods to the plaintiffs, though they had executed the indemnity bond on the 28th February, 1953.

He, therefore, submits that the railway had lawfully charged the demurrage from the 28th February, to the 2nd March, 1953. As I read R. 181 II (c), it appears to me that the duty of a consignee ends as soon as he has executed the indemnity bond and made it over to the Station Master concerned; it is none of his business to go about searching for the Divisional Superintendent of the area, and the said sub-rule clearly says that, if the indemnity bond is in respect of a consignment valued at more than Rs. 500/-, the indemnity bond has to be forwarded to the Divisional Superintendent.

This in my opinion, must mean that, once the indemnity bond is delivered to the Station Master, it is for him to forward the bond to the Divisional Superintendent, and, from the date the indemnity bond is delivered by the person who wants to take delivery on the strength of that indemnity bond, the demurrage must cease to run; otherwise, it will mean a very great hardship to the person concerned as it may take weeks or even months to obtain the counter signature or prior acceptance of the Divisional Superintendent. The law contained in S. 57, referred to above, is absolutely definite that, in case of loss of receipt, the person entitled to the goods can demand delivery on execution of an indemnity bond.

That was done in the present case on the 28th February, 1953. It is not easily understandable how the same Station Master agreed to accept the indemnity bond on the 2nd March, 1953, although he had refused to accept the same on the 28th February, 1953. The reason given is that, in the first indemnity bond of the 28th February, the value of the consignment had been declared to be more than Rs. 1000/-, and it was not so done in the indemnity bond of the 2nd March, 1953. But, as the Station Master happened to be the same person, as the one who had received the previous indemnity hond, there was no diffculty for him to understand that the indemnity bond of the 2nd March, was for the same consignment.

Any way, that is not a matter for me to consider. Upon the plaintiffs giving the indemnity bond on the 28th February, in my opinion, the railway defendant was not entitled to charge any demurrage for the delivery of the goods not having been given until the 2nd March, following. In that view of the matter,, in my opinion, the Court below was not justified in dismissing the plaintiffs suit.

6. My attention has been drawn by Mr. Sarkar to a case reported in E. I. Rly. Co. v. Bhagwan Das, ILR 1 Pat 15 : (AIR 1922 Pat 390) (A). In that case, the indemnity bond had been given on the 5th October, 1918, but the Station Master refused to deliver the goods until the railway administration had verified itself that the plaintiffs claim was bona fide, and the goods were delivered on the 19th October, 1918. On those facts, it was held that the railway administration was not entitled to charge demurrage for the period during which the investigation into the consignees claim was being made. Though the facts of that case are different, the principle is the same.

Once the indemnity bond had been made over to the Station Master, the person executing the indemnity bond was entitled to delivery of the goods; and, if the railway administration took time either to enquire into the bona fides or otherwise of the claim or in getting the indemnity bond accepted by the Divisional Superintendent, no demurrage could be charged for that period from the person who executed the indemnity bond.

7. In the result, I would allow the application and decree the suit with costs. The petitioners are entitled to the costs of this application. Hearing fee Rs. 32/- (Rupees thirty-two only).

Application allowed.