- (1.) THE present appeal arises out of a suit for compensation for non-delivery of the goods consigned. The suit was dismissed by the trial Court on the ground that no notice under section 77 of the Indian Railways Act was served upon the Railway administration. Hence the present appeal by the plaintiff. The facts are these: "a consignment of 5 bales of ready made garments were booked by the plaintiff to his relatives and agents defendants 2 and 3 for taking delivery of the goods for and on behalf of the plaintiff on the 14th July, 1953 from Haldibari to Calcutta, but the said consignment of goods was not delivered at the destination station, Sealdah. According to the plaintiff the non-delivery of the said consignment of goods was due to misconduct, gross carelessness and willful neglect on the part of the servants of the North Eastern and for Eastern Railway. The plaintiff claimed Rs. 17,308-4-0 as compensation for the non-delivery of the goods against the Union of India as re presenting the Eastern Railway and North Eastern Railway. Written statement on behalf of the Union of India was filed on 22nd November, 1954. The suit was contested primarily on two grounds, viz. (1) that valid notices under section 77, Indian Railways Act and section 80 of the Code of Civil Procedure had not been served ; (2) that the court had no jurisdiction to try the suit. The claim of the plaintiff was said to be inflated, and liability to damage was denied. There was also a suggestion that "the package in question did not and could not contain goods claimed to have been therein contained. "
(2.) TWO additional written statements were filed by the Union of India, one on the 22nd April, 1955 and the other on the 2nd June, 1955. The burden of the additional written statements is that the plaintiff in collusion with the Booking Clerk Sri C. L. Roy of Haldibari station managed to get the Rail way Receipt (Parcel-way Bill) issued in his favor fraudulently without actually tendering any bale of cloth for despatch, and that there was no record to show that the bales in question were received at or despatched from Haldi-bari Station. On the original pleadings the most important issues to be decided were whether the notices under section 77 of the Indian Railways Act, and section 80 of the Code of Civil Procedure were duly and properly served and whether the court had jurisdiction to try the suit.
(3.) ON the filing of the two additional written statements by the Union of India the following two issues were framed as issues nos. 7 and 8 : "7. Did the plaintiff actually tender any bale of cloth as alleged? 8. Was the bailment a genuine transaction?" these two additional issues were found by the trial court in favour of the plaintiff. On the question of jurisdiction too, the finding was in favour of the plaintiff. The trial court, how ever, dismissed the suit on the ground that no notice under section 77 of the Indian Railways Act was served" upon either of the two Railways, namely the North-Eastern Railway and the Eastern Railway prior to the institution of the suit. It may be pointed out that the proper service of notice upon the Union of India under section 80 of the Code of Civil Procedure was not disputed by the Union at the trial. It was argued before the trial court on behalf of the plaintiff that in the case of non-delivery there was no necessity of serving any notice under section 77 of the Indian Railways Act. The learned Judge relying on the decisions of our High Court reported in (1) 28 C. W. N. 438 (The Assam Bengal Railway Co. Ltd. v. Radhika Mohan Nath), (2) 35 C. W. N. 338 (Firm of Messrs. Duni Chand Ram Saran Das v. East Indian Railway and others) and (3) 49 C. W. N. 240 (Sristidhar Mondai v. The Governor General in council and others) rejected the above argument and held that even in the case of non delivery it was incumbent upon the consignor to serve notice upon the Railway Administration under section 77 of the Indian Railways Act before instituting the suit for compensation. The learned Judge concluded as follows: "i, therefore, hold that plaintiff must prove the service of valid and sufficient notice under section 77 of the Indian Railways Act upon both the Railways in order to have a judgment in his favour, if he otherwise succeeds on the merits of his case. ";