IN THE HIGH COURT OF JUDICATURE AT PATNA LETTERS PATENT APPEAL No.1513 of 2010 IN CWJC 10840/2010 WITH I.A. No. 8506 of 2010 IN LETTERS PATENT APPEAL No.1513 of 2010 =========================================== THE EAST CENTRAL RAILWAY & ORS - Appellant (s) Versus M/S BAJAJ HINDUSTAN LTD.& ANR- Respondent(s) =========================================== Appearance: For the Appellant : Mr. ANIL KUMAR SINHA For the Respondent: Mr. Y.V.GIRI, Sr. ADVOCATE Mr. RAJU GIRI For Respondent No. 7: Mr. RAJEEV KUMAR, Sr. ADVOCATE Mr. SANJEEV KUMAR =========================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE JYOTI SARAN ORAL ORDER (Per: HONOURABLE THE CHIEF JUSTICE) 02. 29.09.2010 This Appeal preferred under Clause 10 of the Letters Patent arises from the judgment and order dated Ist September 2010 passed by the learned Single Judge in C.W.J.C. No. 10840 of 2010. Subject matter of dispute is five wagon load of sugar sent by the petitioner Bajaj Hindustan Limited to the consignee from Gonda, State of Uttar Pradesh to Fatuha, District-Patna, Bihar. It is the claim of the petitioner consignor that it had booked 42 Railway wagons in the aforesaid consignment 2 meant for different buyers. Out of the said consignment 5 wagon load of sugar has been detained by the East Central Railway (hereinafter referred to as the Railway) illegally without any reason. According to the Railway the said consignment of 42 wagons was meant for one Pratik Enterprises. The said Pratik Enterprises was in default in respect of earlier consignment sent to it by one M/s Athani Sugar Ltd. from Sangli. The Railway is, therefore, entitled to invoke its authority under Section 83 of the Railways Act, 1989 to detain the consignment to enforce recovery of Railway Receipts. The respondent no. 7 Pratik enterprises contested the claim of the Railway. According to the Pratik Enterprises it was not the consignee in respect of earlier consignment from Athani Sugar Ltd, Sangli, Maharashtra. In the present transaction it was the consignee in respect of 33 wagon load of sugar which it has duly received on production of Railway Receipts. The learned Single Judge, considering the rival contentions, has directed the Railway to release the five wagon load of sugar detained by it to the petitioner Bajaj Hindustan Limited. Section 74 of the Railways Act provides for passing of the property in the goods covered by the railway receipt and Section 83 of the Railways Act provides for lien for 3 freight or any other sum due. The Sections 74 and 83(1) of the Railways Act read as under; “74. Passing of property in the goods covered by railway receipt.-The property in the consignment covered by a railway receipt shall pass to the consignee or the endorsee, as the case may be, on the delivery of such railway receipt to him and he shall have all the rights and liabilities of the consignor.” 83 Lien for freight or any other sum due. - (1) If the consignor, the consignee or the endorsee fails to pay on demand any freight or other charges due from him in respect of any consignment, the railway administration may detain such consignment or part thereof or, if such consignment is delivered, it may detain any other consignment of such person which is in, or thereafter comes into its possession. (2) .……….. (3) ……....... (4) ………...” Learned advocate Mr. Anil Kumar Sinha has appeared for the appellant-Railway. He has submitted that as provided in Section 74 of the Railways Act the property in the disputed consignment had, on delivery of the Railway Receipts, passed to the consignee/endorsee Pratik Enterprises. The petitioner consignor has no locus standi to raise dispute in respect of the detained consignment. He has further submitted that in exercise of power conferred by Section 83 of the Act, the 4 Railway was justified in withholding five wagon load of sugar consigned to the Pratik Enterprises for the default committed by Pratik Enterprises in respect of the earlier consignment from Athani Sugar Limited. We do not dispute the power of the Railway to recover its dues by exercising power conferred by Section 83 of the Railways Act. It may, however, be noted here that the matter involves disputed questions of facts. At first; it is the claim of the petitioner that out of 42 wagon load sugar sent by it only 33 wagon load of sugar was sent to the Pratik Enterprises. Rest of the wagon load of sugar were consigned to the other buyers. The five wagon load sugar detained by the Railway were not consigned to the Pratik Enterprises. The Pratik Enterprises has disputed that it was the consignee in the earlier consignment from Athani Sugar Limited. According to the Pratik Enterprises, it was one Prakash Bhalotia and Brothers who was the consignee and not the Pratik Enterprises. It may be noted here that the proprietor of the Pratik Enterprises is one Sunil Bhalotia, the brother of the aforesaid Prakash Bhalotia. The said Prakash Bhalotia had executed the indemnity bond in favour of the Railway in respect of the earlier consignment received from Athani Sugar Ltd. Another brother Shri Ram Bhalotia was the witness. As the matter involves highly disputed questions 5 of facts, as the genuineness of the assignment made in the name of Pratik Enterprises is also disputed, we do not entertain this Appeal. Let the parties thrash out the dispute before the Civil Court. The Railway may recover its due by enforcing the indemnity bond executed in its favour. For the aforesaid reasons, the Appeal is dismissed in limine. Interlocutory Application No. 8506 of 2010 stnads disposed of. The appellant-Railway will release the five wagon load of sugar, detained by it, in favour of the petitioner Bajaj Hindustation Limtied as directed by the learned Single Judge within seven days from today. S.Sb/- (R.M. Doshit, CJ.) (Jyoti Saran, J.)