Hari Swarup, J. - (1.) THESE two appeals arise out of two connected suits and as they raise common questions of facts and law they have been argued together and are being decided by a common judgment.
(2.) THE Plaintiff booked through M/s. Cox and Kings (Agents Ltd.) 8 cases containing bottles of whisky from Bombay to Mussoorie Out Agency of the Northern Railway. These cases were said to have arrived at Mussoorie Out Agency on 27 -12 -1961. The Plaintiffs suspected that the boxes did not contain the contents which were booked and accordingly on 15 -10 -1962 requested that open delivery of the goods be given. At this request the delivery of one case was given open. It was found to contain one bottle filled with coloured water and brick -bats. The open delivery of another case was given on 25 -10 -1962 and the open delivery of the remaining cases was given on 23 -4 -1963. The contents of all the cases were found to be bottles filled with coloured water and brick -bats. The Plaintiff treated the consignment as divided into two parts, one consisting of the two cases delivery of which was given in October 1962, and the third consisting of six cases delivery of which was given in April 1963. Notices under Section 80 Code of Civil Procedure were served and two suits were instituted. The first suit No. 9 of 1964 filed on 31 -1 -1964 was in respect of the cases delivered in October 1962 and the second suit No. 70 of 1964 filed on 22 -6 -1964 was in respect of the remaining six cases. 5. The suits were resisted on various grounds including the bar under the Indian Limitation Act, Section 78B of the Railways Act and the Order II Rule 2 Code of Civil Procedure in respect of the subsequent suit. The trial court accepted all the three defences and dismissed the suits. The lower appellate court confirmed the judgments of the trial court. 4. Learned Counsel for the Appellant has reagitated the same points. But as I find that the view of the court below in respect of the non -maintainability of the suits due to the absence of notice contemplated by Section 78 -B of the Railways Act is correct, the consideration of other questions does not arise. 5. Section 78 -B of the Railways Act as it came into force on 1st January 1962 is in the following terms: A person shall not be entitled to a refund of an overcharge in respect of animals or goods carried by railway or to compensation for the loss, destruction, damage, deterioration, or non -delivery of animals or goods delivered to be so carried, unless his claim to the refund or compensation has been preferred in writing by him or on his behalf - (a) to the railway administration to which the animals or goods were delivered to be carried by railways, or (b) to the railway administration on whose railway the destination station lies, or the loss, destruction, damage or deterioration occurred, within six months from the date of the delivery of the animals or goods for carriage by railway. Provided that any information demanded or enquiry made in writing from, or any complaint made in writing to, any of the railway administration mentioned above by or on behalf of the person within the said period of six months regarding the non -delivery or delay in delivery of the animals or goods with particulars sufficient to identify the consignment of such animals or goods shall for the purposes of this section, be deemed to be a claim to the refund or compensation. According to this provisions, if it was a case of compensation for non -delivery of goods or for loss of goods, the suits will be barred because admittedly no notice under Section 78 -B of any form was given within six months of the date on which the goods were delivered for carriage by railway. Contention of the learned Counsel for the Appellant, however, is that it is not a case of non -delivery of goods because the cases or the packings had been delivered though the contents were missing and not delivered; and because it is a case of conversion by the railway and misappropriation, it cannot also be deemed to be a case of loss within the meaning of Section 78 -B. On this basis he contends that no notice under Section 78 -B was necessary. I find no merit in the contention. 6. Section 78 -B contemplates compensation, inter alia, for non -delivery of goods. The Plaintiff is claiming compensation for the goods which had been booked in the cases or packings. He is claiming no compensation for the packages which have been delivered. As the goods had been delivered for carriage to the carrier and they have not been delivered by the carrier to the consignor, it would be a case of non -delivery of goods in respect of which compensation will be claimable. Through the notices under Section 80 Code of Civil Procedure the Plaintiff had claimed delivery of bottles of whisky which had been consigned. In the plaints also, the claim is for the delivery of the bottles, i.e. the contents of the packages. When a Plaintiff claims the delivery of goods, it cannot be said to be based on any cause of action except of non -delivery of goods. In the present suits, the claim is based specifically on non -delivery of goods. The Plaintiff has claimed a relief for delivery of goods or compensation if goods are not delivered. The case will, therefore, be covered by Section 78 -B of the Act. 7. Learned Counsel for the Appellant relied on certain decisions of this Court and other courts to show that loss here means loss to the railway and not to the consignor. We are, however, not concerned here, with this problem as the present Section 78 -B makes necessary the giving of notice in case of non -delivery of goods also. All the cases cited by the learned Counsel are on the interpretation of Section 77 of the Railways Act as it stood prior to amendment. There was no requirement of giving notice when a person claimed compensation for non -delivery of goods. None of those cases had the occasion to consider the interpretation of the term 'non -delivery'. They all deal with the interpretation of the word 'loss'. They are, therefore, not relevant for the decision of the present controversy. 8. In Union of India v. Mahadeo Lal : AIR 1965 SC 1755, the Court referring to its earlier decision in Governor -General in Council v. Musaddi Lal : AIR 1961 SC 725 observed: ...This Court has held that failure to deliver goods is the consequence of loss or destruction and the cause of action for it is not distinct from the cause of action for loss or destruction, and, therefore, notice under Section 77 is necessary in the case of non -delivery which arises from the loss of goods. From this it appears that even under Section 77 of the Railways Act, as it existed earlier, notice was necessary. After the introduction of Section 78B in the Railways Act, no doubt has been left. The term 'Non -delivery' has been added which makes it clear that in every case of non -delivery of goods notice has to be given within six months if a person claims compensation for non -delivery of the consigned goods. 9. The next contention of the learned Counsel is that Section 78 -B should not be deemed attracted where it is not practicable to give notice. It is contended that in the present case it was not possible to comply with the terms of the section because open delivery had been given after a lapse of six months and the Plaintiff could not have known that the goods will not be delivered. There is no merit in the contention either in law or on facts. The plain language of Section 78 -B of the Act does not justify such an interpretation: it does not speak about the knowledge of the person. A consignor has to claim delivery within six months of the date of consignment and if delivery is not given within six months, he would become entitled to claim compensation for non -delivery of goods and will be under an obligation to give notice. He cannot wait indefinitely. The time begins to run from the date of the delivery of the goods for carriage by railway, and the consignor or the consignee has to give notice within six months of the date of that delivery. If he does not give such a notice, the claim will become time -barred. 10. As regards the lack of knowledge also, there is no material on the record to justify the conclusion that it was not practicable for the Plaintiff to give notice within time. He had made no attempt to claim open delivery within six months of the date of delivery of goods to the Railway for carriage. Such a plea was not even raised in the courts below. The only plea raised by the learned Counsel, as stated by him under Order X Rule 2 Code of Civil Procedure was that notice was not necessary because it was not a case of loss. The impossibility was never pleaded. On the facts also, no case of impossibility has been established. 11. For the reasons given above, the claim of the Plaintiff was rightly held to be barred by reason of Section 78 -B of the Railways Act. The decrees passed in the suits by the courts below cannot therefore be held to be contrary to law. The appeals accordingly fail and are dismissed. Parties will bear their own costs of the appeals in this Court.;