Gyanendra Kumar, J. - (1.) This is a plaintiff's appeal arising out of a suit for recovery of Rs. 6316-4-6 from the respondents. The admitted facts are that on 8.11.1948 a consignment of 141 bags of potato seeds was booked from Mainpore Road Station of the then O.T. Railway for transit to Jaunpur O.T. Railway station. The consignors were M/s Kalicharan Ram Baldeo Ram and the consignees were M/s Narain Ram Ram Prasad. The plaintiff is the owner of the consignee firm at Jaunpur which is a joint family concern. The consignment reached Jaunpur on 2nd December, 1948, after about 23 days of its despatch. The plaintiff wanted to take open delivery inasmuch as the goods were alleged to be in a rotten condition but it was refused by the Railway. However, without giving any notice to the plaintiff, the Railway sold away the goods for an alleged sum of Rs. 400/-. Hence the suit. The claim of the plaintiff consists of the following items:- JUDGEMENT_26_LAWS(ALL)12_1963.html The defendant-respondents denied most of the plaint allegations and inter alia stated that the goods has reached Jaunpur in sound condition before the usual period, that the servants of the Railway did not commit any negligence or misconduct, that the plaintiff refused to take delivery of the consignment without any sufficient cause, that the gods were sold by public auction for Rs. 400/- after due notice to the plaintiff, that on the other hand the plaintiffs notice to the O.T. Railway under Section 77 of the Railway Act was barred by limitation. The learned Civil Judge framed a number of issues. His finding on issue no. 1 was that the goods in question had been received at Jaunpur in decayed condition. On issue no. 2 the finding was that the goods did not suffer damage or become rotten due to the negligence of the servants of the Railway. On issues nos. 3 to 5 his finding was that the suit was not barred under Section 80 for want of notice under Section 77 of the Railways Act nor because of want of notice under Section 80 C.P.C., nor was the notice beyond limitation. On issue no. 7 the Civil Judge recorded the finding that the Railway had a right to sell away the consignment and that it did so in accordance with law, after giving due notice to the plaintiff.
(2.) I would first like to refer to the preliminary objection raised on behalf of the respondents to the effect that under Section 77 of the Railway Act, the plaintiff was bound to prefer his claim for compensation in writing to the Railway Administration within 6 months from the date of the delivery of the goods for carriage by Railway. It is the admitted case of the parties that the goods were delivered for carriage by the O.T. Railway at Mainpore station on 8th November, 1948 and they had reached Jaunpur on 2nd December, 1948. The notice of demand of compensation under Section 77 of the Act (Ex. 9) is dated 4.5.1949. It was posted under 'Registered Acknowledgement Due' cover on 5.5.1949. It had been addressed both to the General Manager as well as to the Traffic Manager O.T. Railway, Gorakhpur. The notice meant for the General Manager was received by him on 7.5.1949 (Ex. 2), while the notice addressed to the Traffic Manager was received by him on 9.5.1949 (Ex. 1). Thus it is abundantly clear that the notice addressed to the Head of the Railway Administration concerned, namely the General Manager, had been received by him on 7.5.1949, within the prescribed period of 6 months, envisaged by Section 77 of the Railways Act. The mere fact that the notice addressed to the Traffic Manager was received by him a day beyond the prescribed period of 6 months is of no avail, when the duplicate of the notice had already been received by the General Manager on the 7th of May, 1949, within the prescribed limit.
(3.) It has been strenuously argued by Dr. K.N. Katju, learned counsel for the appellant, that in the first place there is no adequate evidence on the record to prove that the Railway authorities has actually auction-sold the goods in question and secondly even if they did so, it was in utter violation of the provisions of Sections 55 and 56 of the Railways Act, 1890- inasmuch as the Railway had failed to give the statutory notice to the plaintiff.;