It has also been held that the risk in the goods would number pass at Jodhpur as expressly stipulated in the general companyditions of companytract companytained in Form DGS D 68.
14.535 as interest on this and Rs.8,525 as interest on the sum of Rs.24,357 wrongfully withheld for three years.
5, it is pertinent to companysider the question when the property in goods passed from the seller to the buyer at Jodhpur when the goods were loaded in rail way wagons for delivery to the companysignee at Kanpur.
5, the Commandant, C.O.D., Kanpur under railway receipt No.
Thereafter, from Agra to Kanpur which is a broad gauge line the tents were put into four broad gauge wagons at Agra for onward transmission to Kan pur, as evident from the transmission, register.
4 entitled responsibility of companytractor for executing the companytract.
502671 the appellant delivered the full quantity of 1500 tents to the railways but the latter failed to deliver 224 tents out of this companysignment to the Commandant, C.O.D., Kanpur and as such the railways are estopped from companytending that it was under some other railway receipt.
5 duly filed a claim to the railways, the respondent Nos.
5 at Kanpur and property in the goods passed to the buyer as soon as the goods were despatched by railway at Jodhpur.
5 at Kanpur in view of the clear finding by the Trial Court that though the entire companysignment of 1500 tents was actually loaded in the railway wagons for despatch to the companysignee, the re spondent No.
3 and 4 to respondent No.
502671 dated 14.10.1968 and 95 of the price was paid by demand drafts dated 17.10.1968 and 19.5.1969.
In order to decide the question as to whether the rights in the goods passed from the seller to the buyer i.e. from the appellant to the respondent No.
As regards the claim of interest on the unpaid price of 224 tents amounting to Rs.51,912 for the period from 1.1.1969 to 1.12.1972 12 per annum, the Courts below disallowed the claim on the findings that numberclaim for the price of the goods had been made against the railways, number any numberice under Section 78 B of the Indian Railways Act had been served on respondent Nos.
3 and 4 for the short delivery to the tune of 224 tents immediately after taking delivery of the goods.
3 and 4 also filed a joint written statement stating inter alia that only 11 tents were deliv ered short under railway receipt No.
502671 to the Comman dant, C.O.D., Kanpur from the unloading register.
The respondent Nos.
The total claim of the appellant was of Rs.74,972 i.e. Rs.51,912 principal sum and Rs.
The learned companynsel for the appellant drew our attention to the companydition No.
For any short delivery of the goods made by the railways at Kanpur, the appellant was number responsible and the respondent No.
The claim before the railways being time barred and also numbernotice under Section 78 B of the Indian Railways Act having been served on the Railways within the stipulated period, the appellant companyld number claim for damages for breach of companytract and for the price of the tents number delivered.
The argument as regards companydition No.
The said appeal was, however, dismissed by the High Court of Delhi by order dated March 14, 1983.
502671 for which the admitted liability was to the tune of Rs.2,475.
50267 1.
The two companysign ments were of 700 and 1400 tents despatched on August 10, 1968 and August 27, 1968 respectively.
502671 and the names of the sendor and companysignee are also mentioned.
The said payment of Rs.24,357 was wrongfully delayed by about three years and a sum of Rs.8,525 was, therefore, claimed as interest 12 per annum from 1.1.1969 to 1.12.1971 on the said amount.
14 of the general companyditions of companytract as well as its sub clause 2 entitled passing of property was negatived on the ground that the risk was governed by companydition 4 1 of the general companyditions of companytact.
The said companytract was of two kinds of tents Flies Inner and Flies Outer.
Secondly, the suit against the railways was barred by time and thirdly since numbernotice under Section 78 B of the Indian Railways Act was served on the railways by or on behalf of the appellant.
However, in respect of the price of 11 tents the shortage of which was admitted by the railways and for which a sum of Rs.2,475 was paid to the respondent No.
The respondent No.
Though 95 of the price was paid, the balance 5 amounting to Rs.24,357 was number paid till December 1, 1971 despite repeated requests and reminders.
50 of 1972 in the High Court at Delhi for recovery of the said principal sum as well as interest on the principal.
Accordingly, the appellant submitted a tender which was accepted by the officer of the Directorate General of Supplies and Disposals on behalf of the President of India.
502671.
The defence was that 224 tents were received short under railway receipt No.
Referring to this term for delivery under clause 11 of the Schedule of acceptance of tender, it has been urged by the learned companynsel for the appellant that the delivery was companyplete at Jodhpur when the goods were loaded in the goods train for delivery to the respondent No.
It has been held by the Trial Court i.e. learned single Judge, High Court, Delhi that the tents were carried in 3 wagons upto Agra.
P.S. Chawla, J by his judgment and order dated Febru ary 12, 1982 though dismissed the claim of the appellant substantially but in so far as the amount of Rs.2,475 re garding the shortage of 11 terms admitted by respondent Nos.
The Trial Court, however, held that numberdecree companyld be passed against the railways because the plaint did number companytain any claim for loss or number delivery against the railways.
5, Commandant, C.O.D., Kanpur, the moment the tents were lodged on rail head, Jodhpur as the term of delivery under the companytract was F.O.R., Jodhpur.
As such, the appellant filed a suit being Suit No.
In accordance with the said terms of the companytract the goods were to be inspected at the premises of the firm at Jodhpur and after the same being passed by the Inspector, the goods had to be despatched to the Commandant, C.O.D. Kanpur.
1941974 Raj LW 77.
3 and 4, and the suit was barred by limitation against the Railways.
From the Judgment and Order dated 14.3.1983 of the Delhi High Court in R.F.A. O.S. No.
The plea of the railways was that the shortage was of 11 tents and number of 224 tents.
The instant appeal on special leave has been preferred by the appellant against the aforesaid judgment and decree.
The appellant made repeated requests and sent repeated reminders for payment of the said sum of Rs.51,912 from the respondent but without any effect.
The balance 5 was to be paid after receipt of the goods in good companydition by the C.O.D., Kanpur.
3 of 1983 before the Division Bench of the said High Court.
11 of the Schedule of acceptance of tender dated February 29, 1968.
The railway receipt is No.
It was further agreed between the parties that 95 of the price was payable on proof of des patch and production of the inspection numbere.
The appellant M s Marwar Tent Factory is a firm having its registered office at Jodhpur Rajasthan and dealing in the manufacture and sale of tents and tarpaulins.
The learned Judge has with reference to sub clause 10 of this companydition held that the goods shall remain in every respect at the risk of the companytractor until their actual delivery to the companysignee at the stipulated place and as such the risk of the appellant remains until the goods were actually delivered to the Commandant, C.O.D. Kanpur.
The Commandant, C.O.D., Kanpur reported that 224 tents out of a sale companysignment had number been received at Kanpur and companysequently a sum of Rs.51,912 being the full price of those 224 tents inclusive of sales tax was deduct ed from the amounts due to the appellant under another companytract.
The respondents, however, did number question the finding of the Trial Court regarding the short delivery of 224 tents at the railway station at Kanpur.
The Traffic Officer, Commandant, C.O.D., Kanpur filed a claim with the railways on February 10, 1969 for 224 packages received short and this claim was made under railway receipt No.
C. Mahajan, Arun Madan and C.V.S. Rao for the Respondents.
Special emphasis was laid to the companydition No.
502671 and the sum of Rs.51,9 12 was rightly deducted from the payment due to the appellant under other companytracts.
3 and 4 was companycerned, decreed the said sum in favour of the appellant with interest 12 per annum from 1.4.1972 till the date of judgment and further interest 6 from the date of judgment till the realisation of the amount.
1, 2 5 as their interest were identical.
In order to decide and fix the responsibility for pass ing of the decree in respect of the sum of Rs.51,912 being the full price of 224 tents inclusive of sales tax deducted from the amount due to the appellant under another companytract by the respondent No.
The short age certificate issued by the railways companyroborates the entries in the unloading register.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
A joint statement was filed by the respondent Nos.
The appellant, the companysignor is entitled to get the entire price of the 224 tents which were short delivered by the respondent Nos.
502671 were actually delivered to the respondent No.
Against the said judgment and decree the appellant preferred an appeal being R.F.A. OS No.
Admittedly, there has been a short delivery of 224 tents out of the companysignment of 1,500 tents loaded at Jodhpur railway station in the railway wagon under the said receipt No.
It has been found by the Trial Court that this plea is falsified by the unloading register, the shortage certificate and the reconciliation statement as also the report made by their Traffic Inspector on December 9, 1970.
It has been mentioned therein that the terms of delivery was F.O.R., Jodhpur i.e. free on rail at Jodhpur railway station.
On March 13, 1986 tenders were invited for the supply of tents by the Directorate General of Supplies and Disposals, the respondent No.
5 as soon as the goods were loaded in railway wagons at Jodhpur and the railway receipt was sent to the companysignee, it is pertinent to refer to the meaning of the words F.O.R. Jodhpur.
The firm is a regular supplier of these goods to the defence services of India.
5 by the appellant, it was decreed with interest 12 per annum from 1.4.1972 till the date of passing of the decree and also further allowed interest on the said sum 6 per annum thereafter till the date of payment.
It was for the Commandant, C.O.D., Kanpur to claim damages from the rail ways and the Commandant had actually made a claim as stated hereinbefore to the railways in respect of the short deliv ery.
On October 14, 1968, one companysignment of 1500 tents was despatched to the C.O.D., Kanpur by the appellant under Railway receipt No.
These were made applicable by clause 7 in the Schedule of accept ance of tender.
4586 of 1989.
The Judgment of the Court was delivered by RAY, J. Special leave granted.
The crucial question that requires companysideration in this appeal is whether 1500 tents which were loaded in the rail way wagons on October 14, 1968 at Jodhpur for delivery to the respondent No.
This sum had been paid to the C.O.D., Kanpur by debit adjustment.
The learned single Judge, however, found that the abbreviation F.O.R. meant Free on Rail meaning simply that the companyt of the carriage of the goods upto the railway wagon is included in the price and must be borne by the seller and the companyt of carriage thereafter is to be borne by the buyer.
50 of 1972 on February 12, 1982.
Accordingly, it was held that under railway receipt No.
Arguments heard.
The particulars of the companysignment are set out in the heading of this document.
This is an appeal against the judgment and order passed in R.F.A. OS 3 of 1983 on March 14, 1983 by the High Court of Delhi dismissing the Civil Writ Petition in limini against the judgment and decree rendered by Chawla, J. in Suit No.
2 was served by the plaintiff upon the defendant and there can be numberdoubt that the rate of 6 per cent per annum which the Court awarded was a reasonable rate.
5, under the terms of the companytract is number entitled to deduct the price of the short delivery of tents i.e. 224 tents.
3 of 1983.
The matrix of this case is stated hereunder.
The appellant further claimed interest on two other companysignments as the price of the said companysignments was paid after a great delay.
Pallav Shishodiya and D. Bhandari for the Appellant.
Thereafter, the risk in respect of the goods despatched remained with the companysignee.
The railway line from Jodhpur to Agra was a meter gauge.
The agreed rate for the Flies Outer was Rs.225 per tent and the quantity was 19,100.
