ORDER
Cyriac Joseph, J.
1. This appeal is filed by the Union of India against an order dated 18.5.1992 passed by the Railway Claims Tribunal, Delhi Bench allowing an application of the respondent/claimant M/s. K.D. Krishan Lal and directing the Union of India to pay a sum of Rs. 17,111.71 to the respondent/claimant with pendente lite and future interest calculated at the rate of 12% per annum from the date of the application till the date of realisation. CM 632/93 is an application filed by the appellant under Section 5 of the Limitation Act praying for condensation of the delay of 105 days in filing the appeal.
2. First I shall consider and dispose of CM 632/93. The application is supported by an affidavit dated 1.2.1993 and an additional affidavit dated 2.2.1995 of Shri K.N. Srivastava, Assistant Commercial Manager (Courts), Northern Railway. According to the appellant/application the impugned order of the Railway Claims Tribunal was passed on 18.5.1992. The applicant applied for the certified copy of the impugned order on 21.5.1992. The certified copy was ready on 27.5.1992. After counting the period in getting the certified copy and the period of 90 days available for filing the appeal, the last date for filing the appeal was 25.8.1992. The appeal was filed only on 7.12.1992. Hence there was a delay of 105 days in filing the appeal. The competent authority, namely, the Deputy Commercial Superintendent (Courts) had decided to file the appeal and on 31.7.1992 the Senior Commercial Officer (Courts) decided to appoint a counsel for filing the appeal. But on 31.7.1992 Shri Gulshan Rai the clerk dealing with the case happened to be transferred and consequently the file of this case was lying unattended till 14.10.1992 without taking any further action. While sorting out the files the file of this case was found on 14.10.1992 and the same was processed on the same date and ultimately the file and the documents were handed over to the counsel on 19.10.1992 for filing the appeal. Unfortunately the clerk who was well conversant with the facts of the case did not meet the counsel for preparing the appeal. He ultimately met the counsel in the first week of December 1992 and briefed the counsel and thereafter the appeal was drafter and filed on 7.12.1992. According to the applicant/appellant the delay in filing the appeal was unintentional and bona fide. It is contended that there was sufficient cause for not filing the appeal within the stipulated period and that the delay deserves to be condoned in the interests of justice.
3. According to the respondent also the delay is of 105 days but the respondent has denied the averment that the delay was unintentional and bona fide and that there was sufficient cause for not filing the appeal within the stipulated period. It is contended that sufficient particulars are not given by the appellant and that the reasons stated are frivolous. According to the respondent the appellant has not made out any case for condoning the delay.
4. The respondent has not disputed the details furnished in the two affidavits of Shri K.N. Srivastava regarding the movement of the file and the chronology of the events. There is also no reason to doubt the truthfulness of the statements in these affidavits. In the case of Union of India v. R.P. Builders, [C.M. No. 2198/93 in FAO (OS) 167/93] a Division Bench of this Court, following the judgment of the Hon'ble Supreme Court, held that while the State cannot be treated differently from any other litigant, the Court is bound to take into consideration aspects like :(i) red tapism in Government, (ii) delays in correspondence, (iii) habitual indifference of Government officials or government pleaders as distinct from the usual diligence of ordinary litigants or lawyers for private parties, (iv) collusion or negligence by government officials or government pleaders or fraud, (v) damage to public interest or to public funds or interests of the State, (vi) institutional or bureaucratic procedures as well as delays arising thereon and (vii) need to render substantial justice on merits. Applying the ratio of the above mentioned decision of the Division Bench to the facts of this case, I find that the application for condensation of delay has to be allowed to prevent damage to public interest and public funds and to protect the interests of the State and to render substantial justice on merits. The habitual indifference of government officers and the bureaucratic procedure have contributed to the delay in filing the appeal in this case. Since the appellant has a good case on merits in the appeal, damage will be caused to public interest and public funds if the application for condensation of delay is not allowed. Hence in the interest of justice CM 632/93 is allowed and the delay of 105 days in filing the appeal is condoned.
5. Now I shall deal with the appeal itself. The respondent M/s. K.D. Krishan Lal had entrusted to the Northern Railway at its Delhi Railway Station a consignment consisting of four cases of cotton cloth for carriage and delivery to the consignee at Bairangpur, Orrisa vide Parcel Way Bill dated 4.5.1976. M/s. K.D. Krishan Lal was the consignor as well as the consignee of the goods in question. The Parcel Way Bill was sent to the Union Bank of India of Bairangpur for releasing the same to one M/s. Krishan Chand Dass & Sons against payment. However, M/s. Krishan Chand Dass & Sons did not get the Parcel Way Bill released from the bank. Hence the bank returned the Parcel Way Bill to M/s. K.D. Krishan Lal. The Railway failed to deliver the consignment of goods to M/s. K.D. Krishan Lal. The Railway informed M/s. K.D. Krishan Lal that the goods had been delivered to some wrong party on presentation of a forget Parcel Way Bill. Thereupon M/s. K.D. Krishan Lal filed a suit in the Civil Court for recovery of as damages from the Railway for the non-delivery of the consignment of goods. The Railway filed the written statement contending that the consignee did not approach the destination station authorities for taking delivery of the consignment goods within seven days after the termination of the transit period and as such the defendant was not liable to pay for any loss arising out of non-delivery of the consignment of goods to the plaintiff. It was also contended that the defendant was protected under Section 77(2) of the Indian Railway Act, 1890. The Civil Court framed the following issues:-
1. Whether the plaintiff is a registered partnership firm and the plaint is signed & verified and instituted by a registered partner?
2. Whether the goods worth Rs. 17,111.76 were sold to M/s Krishan Chand Das & Sons on credit as alleged in paras 3 & 4?
3. Whether there is no negligence on the part of the defendant and they are protected under Section 77(2) of Indian Railways Act?
4. To what amount of compensation, if any, is the plaintiff entitled?
5. Whether the plaintiff is entitled to any interest?
6. Relief.
Thereafter the case was transferred to the Railway Claims Tribunal, Delhi Bench and the case was dealt with and disposed of by the said Tribunal as per the impugned order dated 18.5.1992. All the issues were decided in favor of the plaintiff by the Tribunal and the Tribunal held that the plaintiff was entitled to recover a sum of Rs. 17,111.71 with pendent lite and future interest at the rate of 12% per annum from the date of the suit till realisation.
6. The main contention raised on behalf of the appellant is that through the appellant/defendant was entitled to the protection under Section 77(2) of the Indian Railways Act,1890 the Tribunal wrongly held that the said provisions were not attracted to the present case. Having considered the arguments of the learned counsel for the parties and the materials placed on record as well as the provisions contained in Section 77 of the Indian Railways Act, 1890, I am of the view that the appellant/defendant was entitled to the protection under Section 77(2) of the Indian Railways Act, 1890. According to Section 77(2) of the Indian Railways Act, 1890, the Railway Administration shall not be responsible in any case for the loss, destruction, damage, deterioration or non-delivery of goods carried by railway arising after the expiry of the period of seven days after the termination of transit period. For convenience Section 77 of the Indian Railways Act, 1890 is extracted below:-
'77. Responsibility of a railway administration after termination of transit-
(1) A railway administration shall be responsible as a bailee under Sections 151, 152 and 161 of the Indian Contract Act, 1872,for the loss, destruction, damage, deterioration or no delivery of goods carried by railway within a period of seven days after the termination of transit:
Provided that where the goods are carried at owner's risk rate, the railway administration shall not be responsible for such loss, destruction, damage, deterioration or non-delivery expect on proof of negligence or misconduct on the part of the railway administration or of any of its servants.
(2) The railway administration shall not be responsible in any case for the loss, destruction, damage, deterioration or no delivery of goods carried by railway, arising after the expiry of the period of seven days after the termination of transit.
(3) Notwithstanding anything contained in the foregoing provisions of this section a railway administration shall not be responsible for the loss, destruction, damage, deterioration or non-delivery of the goods mentioned in the Second Schedule, animals and explosives and other dangerous goods carried by railway, after the termination of transit.
(4) Nothing in the foregoing provisions of this section shall relieve the owner of animals or goods from liability to any demurrage or wharfage for so long as the animals or goods are not unloaded from the railway wagons or removed from the railway premises.
(5) For the purposes of this Chapter,-
(a) unless otherwise previously determined, transit terminates on the expiry of the free time allowed (after the arrival of animals or goods at destruction) for their unloading, from railway wagons without payment of demurrage, and where such unloading has been completed within the free time so allowed, transit terminates on the expiry of the free time allowed for the removal of the animals or goods from railway premises without payment of wharfage;
(b) 'demurrage' and 'wharfage' have the earning respectably assigned to them in clause (d) and clause (h) of section 46-C.'
In this case the consignment goods were admittedly unloaded at the destination station on 7.5.1976. According to the Tribunal the transit period expired at 12.00 mid night between 8.5.1976 and 9.5.1976. The consignment goods were delivered to the ostensible endorsee on 15.5.1976 on presentation of the forged Parcel Way Bill. The respondent/consignee applied for re-booking of the goods only on 29.6.1976. Since the consignee applied for re-booking/delivery of the consignment goods only on 29.6.1976, the non-delivery of the goods to the consignee by the Railways occurred on 29.6.1976 i.e. long after the expiry of the period of seven days after the termination of the transit period which was on 8/9.5.1976. thereforee the Railway Administration was entitled to the protection under Section 77(2) of the Indian Railway Act, 1890 and the appellant/respondent could not have been held responsible and liable for the non-delivery of the goods to the consignee.
7. In the impugned order the Railway Claims Tribunal has observed that the Railway Administration was bound to exercise care and caution as of a bailee of the consignment goods in the matter of effecting their delivery, but the Railway Administration delivered the consignment goods to a wrong person on presentation of a forged Parcel Way Bill on the 7th day of the termination of the transit period and hence the Railway Administration is liable to compensate the plaintiff. But in my view the learned Tribunal did not correctly understand the scope and effect of sub-section (2) of Section 77 of the Indian Railways Act, 1890. As per sub-section (2) of Section 77, if the non-delivery of the goods occurred after the expiry of the period of seven days after the termination of transit period, the Railway Administration cannot be held responsible for such non-delivery of the goods, whatever be the reason for such non-delivery of the goods. It is true that in this case the non-delivery of the goods to the consignee was due to the delivery of the goods to a wrong person on presentation of a forged Parcel Way Bill before expiry of the period of seven days after the termination of the transit period. But, for application of sub-section (2) of Section 77 what relevant is not the date on which the goods were delivered to the wrong person but the date on which the actual consignee came forward to take delivery of the goods and the Railway failed to deliver the goods as per the demand of the said consignee. If the consignee fails to come forward to take the delivery of the goods before the expiry of the period of seven days after the termination of the transit period, the Railway Administration is protected under sub-section (2) of Section 77 of the Indian Railway Act, 1890, against claims for damages on account of the non-delivery of goods. Claim for damages will be maintainable only if the consignee came forward to take delivery of the goods before the expiry of the period of seven days after the termination of the transit period and the Railway Administration failed to deliver the goods.
8. In this case admittedly the consignee came forward to take delivery of the goods only after the expiry of the period of seven days after the termination of the transit period and, thereforee, the respondent/plaintiff was not entitled to raise any claim against the Railway Administration on account of the non-delivery of the goods to the consignee. In support of the above view taken by me reference may be made to the judgment of the Madras High Court in the case of Union of India, Eastern Railway and another Vs . M/s. St. Joseph Textiles, Karur, : AIR1985Mad360 . In the said judgment the distinction between the liabilities mentioned in sub-section (1) and sub-section (2) of Section 77 of the Indian Railway Act, 1890 has been correctly explained. Sub-section (1) of the Section 77 talks of liability within the period of seven days after the termination of transit during which period the Railway will be liable as a bailey for loss, destction, deterioration and non-delivery. Sub-section (2) of Section 77 talks of the liability after the expiry of the period of seven days after the termination of transit. As per sub-section (2), there will not be any liability for the non-delivery of the goods after the expiry of period of seven days after termination of transit. The Railway Administration's responsibility, not only as a bailee but even otherwise, cases with the expiry of a period of seven days after the termination of transit. thereforee, in this case the learned Tribunal erred in holding that the provisions of sub-section (2) of Section 77 of the Indian Railways Act, 1890 were not attracted in the case.
9. In the light of the discussion above the appeal is allowed and the impugned order dated 18.5.1992 of the Railway Claims Tribunal, Delhi Bench is set aside. In the facts and circumstances of the case the parties will bear their own costs.