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2001 DIGILAW 113 (MAD)

Union Govt. of India and Others v. Rajamohan

2001-01-30

P.SATHASIVAM

body2001
Judgment :- The Judgment was delivered by : The unsuccessful defendants in O.S. 4 of 1986 on the file of Sub-Court, Mayiladuthurai are the appellants in the above appeal. The respondent/plaintiff filed the said suit for recovery of a sum of Rs. 41,554/- with future interest. The learned Subordinate Judge, after considering the oral and documentary evidence, passed a decree on 14-3-1987 for Rs. 34,354/- with proportionate cost in favour of the plaintiff. Aggrieved by the Judgment and decree of the trial Court, the defendants have filed the above appeal. 3. The facts which are required for the disposal of the appeal are briefly stated hereunder: According to the plaintiff, he was running Eversilver Fancy Circulation business for the past 15 years at Mayiladuthurai. In the course of his business, he used to send VP letters and VP Insured parcels for value from Mayiladuthurai to his customers at different places in India according to the rules and regulations under the Indian Post Office Act through the Head Post Office at Mayiladuthurai. The plaintiff had sent VP letters for value and VP insured parcels for value with due reference to the amounts to be received by him on delivery of the said goods from the addressees as detailed in the list annexed along with the plaint. He paid the registration charges, money order commission, etc. on the day of registration itself at the Post Office. The Head Post Office at Mayiladuthurai, who received the VP letters and VP insured parcels had sent all of them to the respective addressees through various Post Offices under their control. Under law, the Post Office and Postal Officials are bound to deliver the same and receive the value as detailed in the list as against each VP letters and VP insured parcels and pay the amount to the plaintiff. In case if they are not received by the addressees, the Postal Officials are bound to return the VP letters and VP insured parcels to the plaintiff. If there is loss or damage in the transmission or delay, the plaintiff should be paid the value and damages as against each item. In case if they are not received by the addressees, the Postal Officials are bound to return the VP letters and VP insured parcels to the plaintiff. If there is loss or damage in the transmission or delay, the plaintiff should be paid the value and damages as against each item. On enquiry, it is ascertained that all the VP letters and VP insured parcels mentioned in the list annexed along with the plaint had been delivered to the respective addressees by the concerned Post Offices and all the amounts collected therefrom are illegally detained by the Postal Officials unnecessarily. The plaintiff had also given written complaints and reports to the concerned departments periodically, once in a month, three months and six months from 5-12-1982 and demanded the amount due to him. The Postal Officials, who informed the plaintiff that suitable action is being taken for the due payment of his amounts, have not yet paid the suit amount. The plaintiff then issued suit notice to the defendants under Section 80 of Code of Civil Procedure on 27-5-1985. A reply dated 26-6-1985 was received from the Director to the effect that action is being taken to settle the claim of the plaintiff, but still the suit amount is not yet paid even though a portion of the amount claimed in the suit notice was paid subsequent to the notice. With these averments, the plaintiff prayed for a decree for Rs. 41,554/-. 3. The fourth defendant filed written statement wherein it is stated that the plaintiff has been booking articles by VP letters and parcels, both insured and uninsured at the Head Post Office, Mayiladuthurai for different addressees at various destinations all over India and VP money orders are received by the plaintiff. The plaintiff will usually receive such money orders at the average rate of 20 money orders per day. A good number of articles sent by the plaintiff by insured VP parcels are seen to have been received back by the plaintiff, either as undeliverable or unclaimed and redelivered to the plaintiff. Without producing the valid proof viz., the wrappers of the articles containing the addresses of the addressees in respect of items 1 to 353 in the schedule, the claim of Rs. 34,354/- put in the plaint is totally unsustainable. Without producing the valid proof viz., the wrappers of the articles containing the addresses of the addressees in respect of items 1 to 353 in the schedule, the claim of Rs. 34,354/- put in the plaint is totally unsustainable. As per the provisions of Rules 101 and 102 of the Indian Post Office Rules, the plaintiff ought to have preferred the complaints affixing the enquiry fee, by means of postage stamps at the rate of 50 paise for each case within six months from the date of posting of the articles. The plaintiff has not resorted to the remedy as envisaged under Rules 101 and 102 of the Indian Post Office Rules and as such as per Section 34 of the Indian Post Office Act, the Government shall not incur any liability, unless and until the sum under value payable postal articles have been received from the addressees. In this case, the plaintiff has not proved as to whether the insured VP parcels or letters have been received by the addressees and as such, the claim in the suit is not maintainable in view of Section 34 of the Indian Post Office Act. For the first time, the plaintiff has preferred the complaint only by way of his notice dated 27-5-1985 and such a notice cannot be construed as complaint as envisaged under Rules 101 and 102 of Indian Post Office Rules. With these contentions, the fourth defendant prayed for dismissal of the suit. 4. The plaintiff has been examined as PW 1 and he produced and marked Exs. A1 to A25 in support of his claim. On the other hand, on the side of defendants, one Mukundarajan, Inspector was examined as DW 1 and Exs. B1 and B2 were marked in support of their defence. 5. In the light of above pleadings and after framing necessary issues, the learned Subordinate Judge rejected the claim of the plaintiff insofar as VP letters are concerned and on the other hand, in respect of VP parcels, items 1 to 353 mentioned in schedule II to the plaint, granted a decree for Rs. 34,354/-. 6. I heard the learned counsel for the appellants as well as respondent. Learned counsel appearing for the appellants, after taking me through the pleadings of both parties and the Judgment of the learned Subordinate Judge, has raised the following contentions. 34,354/-. 6. I heard the learned counsel for the appellants as well as respondent. Learned counsel appearing for the appellants, after taking me through the pleadings of both parties and the Judgment of the learned Subordinate Judge, has raised the following contentions. (a) In view of Rules 101 and 102 of Indian Post Office Rules, the suit filed by the plaintiff is barred by limitation. Accordingly, the same is liable to be dismissed on that ground. (b) In the absence of any evidence, particularly from the addressees regarding payment of value of the VP articles, the decree granted by the trial Court cannot be sustained. On the other hand, the learned counsel appearing for the respondent, after taking me through the oral and documentary evidence let in, would contend that the Court below is fully justified in granting decree insofar as VP articles are concerned and prays for dismissal of the appeal. 7. I have carefully considered the rival contentions of both the learned counsel. 8. Before considering the rival contentions, it is useful to refer the relevant provision viz., Section 34 of the Indian Post Office Act, which reads as under : "Transmission by post of value payable postal articles: The Central Government may, by notification in the Official Gazette, direct that subject to the other provisions of this Act and to the payment of fees at such rates as may be fixed by the notification, a sum of money specified is writing at the time of posting by the sender of a postal article shall be recoverable on the delivery thereof from the addressee, and that the sum, so recovered, shall be paid to the sender: Provided that the Central Government shall not incur any liability in respect of the sum specified for recovery, unless and until that sum has been received from the addressee. Explanation: Postal articles sent in accordance with the provisions of this section may be described as value payable postal articles." The other provisions with which we are concerned are, Rules 101 and 102 of the Indian Post Office Rules, which read thus. Explanation: Postal articles sent in accordance with the provisions of this section may be described as value payable postal articles." The other provisions with which we are concerned are, Rules 101 and 102 of the Indian Post Office Rules, which read thus. "Rule 101 of the Indian Post Office Rules Whenever the sender or addressee of a value payable postal article makes a complaint regarding the delivery of or payment for the value payable postal article, he shall be entitled to have an enquiry made by the Post Office on paying a fee of fifteen paise. The fee shall be paid by means of a postage stamp affixed to the letter of complaint. This fee shall be refunded in cases where the complaint is found to be well grounded. Explanation: Impressions of a stamping machine made by a competent authority shall be tantamount to affixing stamps of corresponding value. Rule 102 of Indian Post Office Rules The Central Government shall not incur any liability in respect of the sum specified for remittance to the sender in respect of a value payable postal article unless and until that sum has been received from the addressees and unless a claim for that sum has been preferred within six months from the date of posting of the article." 9. By pointing out the above mentioned provisions, particularly Rules 101 and 102, the learned counsel appearing for the appellants would contend that since the plaintiff has failed to comply with the conditions prescribed therein, he is not entitled to the amount as claimed in the plaint. The said contention is liable to be rejected for the following reasons. Even from the written statement of the 4th defendant it is clear that the plaintiff has been booking articles by VP letters and VP parcels both insured and uninsured at the Head Post Office, Mayiladuthurai for different addressees at various destinations all over India and used to receive money orders at the average rate of 20 money orders per day. Both in the written statement as well as in the evidence of DW 1, the fact that the articles mentioned as Items 1 to 353 in the plaint schedule had been booked by the plaintiff as VP articles to various addressees, has not been disputed. Both in the written statement as well as in the evidence of DW 1, the fact that the articles mentioned as Items 1 to 353 in the plaint schedule had been booked by the plaintiff as VP articles to various addressees, has not been disputed. It is also seen from the plaint as well as oral evidence of PW 1 that necessary charges by way of stamps and commission have been paid by the plaintiff at the time of booking those articles. However, it is stated that the plaintiff failed to adhere to the Rule 101 and prefer appropriate complaint afffixing enquiry fee by means of postage stamp at the rate of 50 paise for each case within six months from the date of posting of the articles. The said contention is also liable to be rejected in view of the documents produced on the side of the plaintiff. The learned counsel appearing for the plaintiff very much relied on Exs. A 3 to A 11 to show that the plaintiff had taken appropriate steps within the time prescribed, not one occasion but on many occasions. Ex. A12 is the letter dated 26-11-1983 from the plaintiff to the Chief Superintendent, Mayiladuthurai, wherein it is stated that in respect of booking made by him by way of insured VP parcels from 11-7-1983 to 30-8-1983, he had not received either the amount from the addressees or the booked articles. He had also furnished the details regarding the booking number, date and amounts due. On receipt of Ex. A12, the Superintendent of Post Offices, Mayiladuthurai sent a reply to the plaintiff requesting him to call at the office of Post Master with required fee of 50 paise for non-receipt of VP money orders. Ex. A14 shows that even on 10-1-1984, the plaintiff had furnished the required enquiry stamps for the total articles of 530 through the Superintendent, Mayilnduthrai Post Office. Since even after compliance, plaintiff did not receive any reply, constrained to issue notice under Ex. A15 dated 29-6-1984, wherein he has explained the booking of VP letters and VP parcels and the subsequent complaint/complaints as well as furnishing of required postal stamps by way of enquiry fee. Again on 27-11-1984, under Ex. A16, the plaintiff sent another letter to the Chief Superintendent, Mayiladuthurai furnishing details regarding his claim. Finally, undr Ex. A15 dated 29-6-1984, wherein he has explained the booking of VP letters and VP parcels and the subsequent complaint/complaints as well as furnishing of required postal stamps by way of enquiry fee. Again on 27-11-1984, under Ex. A16, the plaintiff sent another letter to the Chief Superintendent, Mayiladuthurai furnishing details regarding his claim. Finally, undr Ex. A20 dated 27-5-1985, the plaintiff sent a suit notice under Section 80 of Code of Civil Procedure. With regard to the said notice, the Assistant Director sent a reply under Ex. A25 dated 26-6-1985 stating that the matter is receiving attention and action is being taken to settle the matter early. All the above materials clearly show that the plaintiff had made complaint/complaints at the appropriate time and also complied with Rule 101 of the Indian Post Office Rules. In such circumstances, as rightly concluded by the Court below, the suit cannot be dismissed as barred by limitation as claimed by the appellants. 10. Regarding the second contention, viz., that the plaintiff failed to examine the addressees in support of his claim, I have already referred to the detailed claim made by the plaintiff in the plaint and the earlier correspondence from Exs. A 3 to A25 as well as the details furnished by him, in the suit notice. I have also referred to the defence taken by the fourth defendant in the written statement. Likewise, the Complaint Inspector, working in the Post Office, Mayiladuthurai in his evidence as DW1 has admitted that all along, the plaintiff was doing business through their Post Office by complying with the statutory conditions. He also admitted that the entire records relating to the suit claim are with the Superintedent and he fairly states that he is not conversent with the correspondence between the plaintiff and the fourth defendant. However, he had admitted that the fourth defendant did not send any reply then and there with regard to the complaints made by the plaintiff. He also admitted that he was not directed to verify the fate of the articles sent by the fourth defendant. He also admitted that since the booking made by the plaintiff were in order, the same were accepted by the fourth Defendant Post Office. He also admitted that he was not directed to verify the fate of the articles sent by the fourth defendant. He also admitted that since the booking made by the plaintiff were in order, the same were accepted by the fourth Defendant Post Office. The evidence let in, particularly on the side of the plaintiff, clearly show that the VP parcels were made by the plaintifff after complying with the statutory provisions and after paying required fees by way of affixing necessary stamps. I have also referred to the necessary steps taken by the plaintiff then and there by making complaints to the fourth defendant and to the higher authorities. In such circumstances and in the absence of any acceptable evidence on the side of the defence, they cannot escape from the liability in so far as VP articles mentioned in plaint schedule II are concerned. 11. Apart from the above factual materials, learned counsel appearing for the respondent has very much relied on the earlier Division Bench decision of this Court reported in 1965 (28) ILR(Mad) 213 (Mothi Rungaya Chetty v. The Secretary of State for India in Council). In that decision, their Lordships had an occasion to consider Section 34 and provisos therein of the Indian Post Offices Act. In the case before the Division Bench, the plaintiff, a trader delivered a parcel containing Silver Jewellery to the Kotwalchavadi Post Office, Trichinopoli for transmission to one Krishna Chetty at Colombo as value payable articles. He also registered and insured the articles for Rs. 115/-. He duly paid necessary fee and obtained receipts and the Post Office took charge of the parcel. Since the Post Office failed to pay the money nor returned the article to the plaintiff, action was brought to recover from the Secretary of State for India in Council for the value of the jewellery. The defence taken by the Post Office was, by some mistake of a clerk in the Post Office, the parcel was delivered to and accepted by the addressee without its value being collected from him and liability is disclaimed as regards the insurance because the article was duly delivered and as regards the non collection of its value under the proviso to Section 34 of the Indian Post Office Act, 1898. The said proviso runs as follows : "Provided that the Secretary of State for India in Council shall not incur any liability in respect of the sum specified for recovery unless and until that sum has been received from the addressee." In the light of the said factual position and after considering the proviso to Section 34, their Lordships have concluded thus, "........... Admitting the disclaimer to be good so far as the insurance is concerned, we cannot hold the Secretary of State is saved from liability by the proviso quoted. The effect of the proviso is that the Post Office does not guarantee the collection of the money, but it does not absolve it from the common law liability to pay damages for delivering the parcel without collecting the money. The Post Office, in order to meet the requirements of traders and others who wish to recover the value of articles supplied by them, undertakes, on the payment of certain fees, to act as their agents for the collection of the money (see Rule 130, Indian Postal Guide). So that the Post Office is bound by contract to collect the money when it delivers the article. If the Post Office for any reason neglects to collect the money as agreed to by it for consideration, it has committed a breach of contract for which it is liable to pay damages. ..........." It is clear from the said decision that the Post Office is bound by the contract to collect the money when it delivers the article. It is further clear that if the Post Office for any reason neglects to collect the money as agreed to by it for consideration, it has committed a breach of contract for which it is liable to pay damages. In Commr. of Income-tax, Delhi v. M/s P.M. Rathod and Co.), while dealing with the matter under Income-tax, Act, their Lordships had an occasion to consider a similar claim and after referring to Madras decision in, their Lordships of the Supreme Court have held thus, (at p. 1397 of AIR). In Commr. of Income-tax, Delhi v. M/s P.M. Rathod and Co.), while dealing with the matter under Income-tax, Act, their Lordships had an occasion to consider a similar claim and after referring to Madras decision in, their Lordships of the Supreme Court have held thus, (at p. 1397 of AIR). "In the case of delivery of goods by V.P.P. it is immaterial whether the buyer directs the goods to be sent by V.P.P. or the seller does so on his own accord because the goods handed over to the Post Office by the seller can only be delivered to the buyer against payment and this payment is received for and on behalf of the seller. The buyer does not pay till the goods are received by him and once he has paid the price it is the Post Office that is responsible for payment of the money received by it to the seller. The buyer has no longer any responsibility in regard to it. Therefore, a payment to the Post Office is payment to the seller and at the place where the goods are delivered and payment is made. Further before the goods are delivered to the buyer the seller has under the V.P.P. Rules the power to direct the Post Office to make the delivery to the addressee free or to deliver against a sum different from that originally specified. This would negative the Post Office being an agent of the buyer. This show that whatever be the jural relationship between the seller and the post office in respect of carriage of goods sent by the seller under the V.P.P. system it becomes an agent of the seller for the recovery of the price and if it fails to recover the price and delivers the goods it is liable in damages to the seller, Mothi Rungaya Chetty v. Secretary of State, (1905) ILR 2 3 Mad 213. Again their Lordships have observed in para 10 of the Judgment thus, "Thus the principle governing a despatch of articles by V.P.P. is that the appropriation is conditional and goods only pass when the condition is fufilled i.e. the price is paid against delivery. The Post Office is an agent for the seller and receives the price from the buyer at the place of delivery for transmission to the seller. ............... The Post Office is an agent for the seller and receives the price from the buyer at the place of delivery for transmission to the seller. ............... " In 1960 AIR(All) 672 (Union of India v. Firm Ram Gopal Hukum Chand), learned single Judge after referring to as well as, in a similar circumstance has held that the Post Office is bound by contract to collect the money when it delivers the articles and if it neglects to do so, it commits a breach of contract, for which it is liable to pay damages. 12. All the above referred decisions support the claim of the plaintiff. I have already referred to the fact that the plaintiff, after fulfilling all the terms and conditions, delivered the VP articles (Item 1 to 353 mentioned in Schedule II to the Plaint) and the same had been acknowledged by the fourth defendant. The only witness examined on the side of the defendants DW 1 has fairly stated that he was not asked to ascertain the fact whether the articles had been actually delivered and required amounts collected by the respective Post Offices. In the light of the details regarding the same and in view of the legal position mentioned above, the Post Office cannot escape from its liability. In such circumstances, I am in agreement with the conclusion arrived by the Court below and the appeal is liable to be dismissed. 13. The learned counsel appearing for the respondent by drawing my attention to the relief granted viz., decree for Rs. 34,354/- with proportionate cost, would contend that the plaintiff is entitled to reasonable interest for the amount decreed. Even though the plaintiff has not filed independent appeal or cross objection with regard to non payment of interest, learned counsel for the respondent, relying on the decision of the Apex Court reported in (K. Muthuswami Gounder v. N. Palaniappa Gounder) would contend that even in the absence of cross-objection, by virtue of provisions viz. Order XXXXI, Rule 13 of Code of Civil Procedure, this Court can grant interest for the decreed amount. I am not inclined to grant interest for the following reasons. Even in the plaint, the plaintiff after referring the value of claim, has not specifically pleaded for interest anywhere. Only in para 9 (a), the plaintiff has prayed. Order XXXXI, Rule 13 of Code of Civil Procedure, this Court can grant interest for the decreed amount. I am not inclined to grant interest for the following reasons. Even in the plaint, the plaintiff after referring the value of claim, has not specifically pleaded for interest anywhere. Only in para 9 (a), the plaintiff has prayed. "directing the first defendant or all the defendants to pay the suit amount with future interest. ..........." Here again, he has not specified the rate of interest and the details regarding his claim for interest. Further, if the plaintiff is really interested in claiming interest, he should have filed independent appeal claiming interest or by way of cross-objection in the present appeal filed by the defendants. Though the appeal has been filed in the year 1987, the fact remains that the respondent/plaintiff has not chosen to file cross-objection claiming interest. In the light of what is stated above, though it would be possible for this Court to grant appropriate relief even without cross- objection, I am of the view that this is not fit case in which such indulgence can be shown on the respondent. 14. Under these circumstances, I do not find any merit in the appeal and consequently the same is dismissed with costs. Appeal dismissed.