Manal Krishna Nayak and Sons, by partners, M. Venkataraya Nayak and Others vs The South Indian Railway Company, Limited

Somayya, J.—The South Indian Railway Company filed the suit out of which this second appeal arises for recovery of a sum of Rs. 1,243-

7-6 as freight due to it and which is alleged to have been the"" undercharge in respect of some consignments by the appellant-defendant from

Mangalore to Bombay. Three consignments of gold were booked on 16th September, 1933, 23rd September, 1933 and 9th October, 1933,

from Mangalore to Bombay and the case of the railway company is that while these consignments were liable to be charged at specially high rates,

by some mistake low freight charges had been collected and that therefore the company is entitled to recover the deficiency.

Various defences were raised, but there is only one question which can legitimately be urged in second appeal and that is, whether the railway

company has got the right of filing a suit after all the goods were delivered over to the consignees. The contracts in question which are the

forwarding notes are Exs. A, B and C. In all these documents there is clause 8 which runs as follows:

Goods booked to stations on the South Indian Railway or railways worked by the South Indian Railway are carried subject to the rules and

conditions printed from time to time in the railway company''s goods tariff; and goods booked to or over a foreign railway are subject to the rules

and regulations of wharfage and other charges in force on such railway.

Here the goods were consigned from Mangalore which is a station on the South Indian Railway to Bombay which is a station over a foreign

railway, namely, the G. I. P. Railway. In such a case under clause 8 of Exs. A, B and C the goods are booked subject to the rules and regulations

in force over the G.I.P. Railway. Ex G. is admittedly a copy of the rules in force over the G.I.P. Railway and over other railways as well. Clause

23 of Ex. G runs thus:

Right to correct charges: Railways reserve the right to correct any charges that may have been incorrectly made and to recover undercharges from

whatever causes arising.

Ex. G is headed ""The Indian Railways Coaching Tariff."" It is admitted that the particular consignments are governed by the rules contained in this

document, Ex. G. The right to recover undercharges by way of a suit is given by Section 55, clause 5 of the Indian Railways Act which runs thus:

Notwithstanding anything in the foregoing sub-sections the Railway administration may recover by suit any such rate, terminal or other charge as

aforesaid or balance thereof.

Under clause 1 which is one of the sub-clauses referred to,

if a person fails to pay on demand made by or on behalf of a railway administration any rate, terminal or other charge due from him in respect of

any animals or goods, the railway administration may detain the whole or any of the animals or goods or, if they have been removed from the

railway, any other animals or goods of such person then being in or thereafter coming into its possession.

So there are two rights which are given u/s 55, clause 1. If some goods are consigned, those very goods may be detained before delivery unless

the amount which is demanded is paid. The second is that even if those goods were delivered over, if any other goods of the consignor come into

the possession of the railway company, then the company has got the right of lien over such goods as well. Then clause 5 of the same section says:

may recover by suit any such rate, terminal or other charges as aforesaid.

The railway administration may recover by suit the sums for which they can detain goods under clause 1. Here the railway authorities are entitled

under the Act and under clause 23 of Ex. G to correct any charges that may have been made incorrectly, and they have got the right to recover the

undercharges from whatever cause arising. Recovery may be made either by exercising the lien over the particular goods in respect of which this

undercharge was made or by exercising the lien over any other goods of the consignor which may subsequently come into the possession of the

railway company, or by way of a suit. All these three modes of recovery are open to the railway company. In this case the railway company

exercised the right of suit after the goods were all delivered. I do not see how it can be said that the railway administration is confined to the first

two remedies as the learned Counsel for the appellant would have it. Mr. Adiga concedes that before the goods were removed from the terminal

station the amount in question might have been recovered by exercising the lien which the railway company has. But what he says is that the third

remedy by way of suit is not available. If all these three remedies are given by Section 55, two by clause 1 and the third by clause 5, it is difficult to

see how the railway administration, can be confined to the remedies given under clause 1, particularly when clause 5 says:

Notwithstanding anything in the foregoing sub-sections, the railway administration may recover by suit any such rate terminal or other charge as

aforesaid or balance thereof.

I therefore confirm the decree of the lower appellate Court and dismiss the second appeal with costs. Leave to appeal is granted.