http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 3  

PETITIONER: UNION OF INDIA

       Vs.

RESPONDENT: E.I.D.  PARRY (INDIA) LTD.

DATE OF JUDGMENT:       01/02/2000

BENCH: D.P.Wadhwa, S.Saghir Ahmad

JUDGMENT:

     S.SAGHIR AHMAD, J.

     Respondent’s   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:

     "The  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.

     In  the 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 3  

ultra vires the Railways Act, 1890.  This contention appears to be absolutely correct.

     The  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. This  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.

     So  far  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:

     "The   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 demurrage. Item  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’. It  is  specified  therein  that in respect  of  the  loaded

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 3  

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. Column  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. If  in  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.

     In  view  of the above, the appeal is partly  allowed. The  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.