MUKERJI, J. - (1.) THIS appeal came up for hearing before a Bench consisting of Mr. Justice Beg and Mr. Justice Mathur. There was a difference of opinion between the two learned Judges and the scope of that difference is discernible from the three questions they framed for obtaining the opinion of a third Judge. The questions which were formulated were these: '1. Is the notice relied upon by the plaintiff as complying with the provisions of Section 80, C. P. C. invalid on the ground that it does not state the cause of action? 2. The plaintiff having sent notices ExL. 3 dated 8 -11 -1947 and Exhibit 8 -P. W. 4 dated 18 -12 -1947, was it still necessary for him to send another notice under the provisions of Section 80, C. P. C. as amended by C P C (Amendment) Act, 1948 (Act No. VI of 1948)? 3. Should the entire claim of the plaintiff for damages be dismissed on the ground that there is no evidence to prove the market value of goods at the place of destination on the date on which such goods ought to have been delivered?'
(2.) THIS reference has arisen, it may be mentioned, out of a suit filed by Bodu Lal for the recovery of a sum of Rs. 24,060 against the Union of India (the suit originally was against the Dominion of India but later the necessary amendment appears to have been made) relating to a railway administration. The plaintiffs case in brief was that a consignment of 365 bags of mustard seed weighing 775 maunds and 18 seers was offered to the Railway Administration, then known as the O. T. Railway for carriage and delivery to the plaintiff at Kurigram station which fell within the Bengal Assam Kailway system which later was known as Eastern Bengal Railway, on the 15th September, 1947. The railway administration accepted the consignment at railway station Jarwa and issued a railway receipt in respect of the same. The usual period required for the transit of goods between Jarwa and Kurigram railway stations was one and a half months. The consignment was, therefore, expected by the plaintiff at Kurigram on or about the 30th October, 1947. The consignment, however, did not reach Kurigram either on the 30th October, 1947 or any other date thereafter. The plaintiff was unable to get delivery of the goods in spite of repeated demands. The plaintiff having despaired of receiving the goods, served the railway administration with a notice as required under Section 77 of the Indian Railways Act and he also served a notice purporting to be one under Section 80 of the Code of Civil Procedure.
(3.) THE notice which purported to be under Section 77 of the Indian Railways Act was dated the 8th November, 1947, the notice is Ex.. 3 on the record. This notice was as follows : - - 8th November, 1947. To The General Manager, Oudh Tirhut Railway, Gorakhpur, Behar. Dear Sir, On behalf of the business concern under the name and style of 'Datturam Ram Pratap' of village. Post Office and Police Station Kurigram, in the district of Rangapur, I beg to state that one consignment of mustard seeds comprising of 365 bags and weighing 775 mds. 18 srs. was despatched from the Jarwa railway station to the Kurigram railway station on 15 -9 -47 under Inv. No. 2 R/R No. 494391. The consignor was Gopiram Sagarmal and the consignee was the business concern named above. But the said consignment has not yet been delivered at the destination as a result of which the business concern has sustained serious financial loss. On behalf of the said business concern I do hereby demand payment of compensation for the goods not delivered amounting to Rs. 24,000/ -(Twenty -four thousand rupees). If the said amount be not paid within 15 days from the date of receipt of this letter of demand, under Section, 77 of the I. R. Act, legal steps will be taken to enforce the claim. Yours faithfully, Sd. Chhagan Mal for Datturam Ram Pratap,' ;