Union of India Vs. E.I.D. Parry (India) Ltd.  INSC 31 (1 February 2000)
S.Saghir Ahmad S.SAGHIR
suit for recovery of a sum of Rs.2,333.61p. charged as demurrage by the Railway
Administration on account of failure to unload wagons within the free time, was
decreed by the trial court, namely, the District Munsif at Guntur, for Rs.966/- with interest at the
rate of 6 per cent per annum. The decree was set aside by the first Addl.
District Judge, Guntur, on the ground that all the ten box wagons through which
bulk - rock phosphate fertiliser was transported from Vishakhapatnam Port to
Krishna Canal Railway Staton had reached destination and thereafter shunted to
the respondent's siding on May 5, 1971 at 3.30 A.M. and during the course of
unloading, which commenced at 6.30 A.M., only five wagons were unloaded by 9.00
A.M. within the free time available to the respondent, and since all the ten
box wagons were not unloaded, the Railways were entitled to levy demurrage for
all the 10 wagons under the Rules. The lower appellate court had placed
reliance upon the Goods Tariff Rules of the Southern Railway, Part 1-A, which
provides as under:
entire group of box wagon placed for unloading will be treated as one unit for
the purpose of levy of demurrage charges, i.e., even if one wagon out of the
group of two or more is detained for unloading beyond the prescribed free time,
the demurrage will be levied on all the box wagons in the group." The
above Rule was struck down by the High Court in the Second Appeal as ultra vires
and the decree passed by the trial court was maintained.
present appeal, which is directed against the judgment of the High Court, it is
contended on behalf of the learned counsel for the appellant that there was no
occasion for the High Court to have looked into the validity of the Goods
Tariff Rule quoted above or to hold that Rule to be ultra vires the Railways
Act, 1890. This contention appears to be absolutely correct.
suit was filed for the recovery of excess demurrage allegedly charged by the
appellant from the respondent. The claim depended upon Goods Tariff Rules,
specially the Rule quoted above, which authorises the respondent to claim
damages in respect of the entire block of wagons supplied to a party who does
not empty those wagons at the siding within the time permitted for that
purpose. There was no pleading that the Rule upon which the reliance was placed
by the respondent was ultra vires the Railways Act, 1890. In the absence of the
pleading to that effect, the trial court did not frame any issue on that
question. The High Court of its own proceeded to consider the validity of the
Rule and ultimately held that it was not in consonance with the relevant
provisions of the Railways Act, 1890 and consequently held that it was ultra vires.
view is contrary to the settled law that a question, which did not form part of
the pleadings or in respect of which the parties were not at variance and which
was not the subject matter of any issue, could not be decided by the court. The
scope of the suit was limited. The pleadings comprising of the averments set
out in the plaint and the defence put up by the present appellant in their
written statement did not relate to the validity of the Rule struck down by the
High Court. The High Court, therefore, travelled beyond the pleadings in
declaring the Rule to be ultra vires. The judgment of the High Court,
therefore, on this question cannot be sustained.
as the question relating to the demand of demurrage for the entire block of ten
wagons is concerned, the trial court recorded the following finding:
question to be determined is whether the defendant has a right to collect
demurrage for all the 10 wagons or only for the five wagons remained to be
unloaded after free time. The learned counsel for the debit placed before one
goods Tariff Part I-A published by southern railway in 1965. Rule 28 of Chapter
thereof provides the rates of charges to be collected as wharfage and
II of this rule specifies the rates of demurrage a table is given under this
item. Sub item II relates to wagons waiting to be unloaded by the consignee. In
column (2) of the table it is mentioned that in the case of a group of 1 to 10
box wagons the time allowed free is five working hours from the time at which
the wagons are placed in position for unloading. In the remarks column No. 4 it
is stated that the entire group of Box Wagons placed for unloading will be
treated as one unit for the purpose of levy of demurrage charge, i.e. even if
one wagon out of the group of two or more is detained for unloading beyond the
prescribed free time, the demurrage will be levied on all the Box Wagons in the
group. The learned counsel for the defendant argued that it is only in
accordance with the above rule the defendant collected demurrage charges on all
the 10 waongs even though five wagons were unloaded within the free time.
According to the plaintiff the above rule is not applicable to private siding.
As stated supra, the plaintiff has a private siding at Krishna Canal Railway
Station. The wagons were unloaded at the private siding of the plaintiff. In
the table given in Rule 48 referred to above a separate heading was given as
`In private sidings'.
specified therein that in respect of the loaded vehicles waiting to be
discharged in private siding the time allowed free is 5 working hours from the
time at which is the vehicles are shunted within the limits of such siding.
4 intended for `Remarks' is left blank. It is not mentioned in Remarks column
as in the case of general siding that even if one wagon out of a group of
wagons remained unlaoded beyond the prescribed free time, the demurrage will be
levied on all the Box wagons in the group. That column is left blank. In the
absence of the above provision, I consider the defendant does not have a right
to collect charges in even respect of unlaoded wagons taking the wagon remained
to be unloaded and the unloaded wagons as one unit.
the case of private sidings also the Railways Board intended to collect
demurrage charges as in the case of General siding it would have been specified
in the Remarks column that demurrage charges will be collected for all
prescribed free time. As stated above five wagons remained to be unlaoded
beyond prescribed free time. The defendant can collect demurrage only for these
five wagons and not for all the 10 wagons. The plaintiff is entitled to refund
of charges paid by him for five wagons unloaded within the free time. The issue
is answered accordingly." The trial court has drawn a distinction between
"general siding" and the "private siding" and has held that
in regard to private siding, demurrage could not have been claimed in respect
of the entire block of ten wagons and that it could be charged only in respect
of those wagons which had not been emptied or unloaded within the free time
allowed under the Rules. This finding is not assailed before us and it has not
been shown as to how it is erroneous. Even the Goods Tariff Rules, upon which
reliance has been placed by the trial court in coming to this finding, were not
placed before us in spite of our insistence.
view of the above, the appeal is partly allowed.
judgment of the High Court so far as it purports to strike down the Goods
Tariff Rules extracted above is set aside, but the other part of the judgment
by which the decree passed by the trial court has been upheld, is maintained.
There will be no order as to costs.