Chatterjee, J. - (1.) The plaintiff, a firm, instituted the present suit for recovery of damage against the Union of India as the "owner of Eastern Railway, Calcutta, and Central Railway, Bombay"; that part of Eastern Railway is now described as South Eastern Railway. Hence, the appeal to this Court is against the Union of India as the "owner of South Eastern Railway and Central Railway."
(2.) On the 6th July, 1953, two consignments were delivered to Central Railway at Wadi Bunder Station for carriage to Shalimar (South Eastern Railway) each containing 25 bales of cotton piece goods (umbrella cloth). The goods were sent at Owner's risk. The goods were received at Shalimar end, Eastern Railway (as it then was) in a damaged condition. The certificate for damage given by the Eastern Railway is as follows :- "In 3 bales 2266 yards umbrella cloth damaged by wet. Damage was assessed to the extent of 15% only on these 2266 yards umbrella cloth. In 4 bales 2960 yards umbrella cloth damaged by wet. Damage was assessed to the extent of 20% only on these 2960 yards umbrella cloth. Packing condition was not strictly complied with as the bales were steel-trapped on one side only. Inside packing complied with."
(3.) The damage certificate was issued on the 29th July, 1953. This is Ext. 1. On the 3rd August, 1953, a notice under Section 77 of the Indian Railways Act IX of 1860 was issued. The notice was addressed to the Commercial Superintendent, Eastern Railway, 1, Royal Exchange Place, Calcutta. The notice begins by saying, "Under Section 77 of the Indian Railways Act IX of 1890 we hereby prefer a claim for Rs. 5362-8-0 (Rupees five thousand three hundred sixty-two and annas eight only) . . . . . . . . . . . . ." This sum of Rs.5362-8-0 included a sum of Rs. 4875/- for the damages and a sum of Rs. 487-8-0 for the loss of profit. This is Ext. 3(a). The aforesaid letter Ext. 3(a) was received in the office of the Chief Commercial Superintendent, Eastern Railway, and the receipt is marked Ext. 5(a). The reply to this letter is dated the 24th August 1953 and marked Ext. 5. The Chief Commercial Superintendent replied as follows :- "Will you please submit two separate claim bills in connection with the consignments quoted above to facilitate my enquiry early? This is without prejudice." ;