Bijayesh Mukherji, J. - (1.) This is a rule under Section 25 of the Provincial Small Cause Courts Act, obtained by M/s. Brooke Bond India (Private) Ltd., whose suit raised on July 7, 1965, for recovery of Rs. 203,95 on account of excess freight realized on May 8, 1962, by the Commissioners for the Port of Calcutta and the South Eastern Railway, for a certain consignment from KP docks to Ghatkesar via Nagpur, a distance of 1736 kilometres, fails before a learned Judge of the small causes court at Alipore. It fails, not on merits of the claim, but on the sole ground that the notice under Section 77 of the Railways Act, 9 of 1890, was served on the Refunds Officer of the South Eastern Railway, not on the General Manager. On merits the learned Judge indeed finds as a fact that "excess freight of Rs. 203.95 was realized by the defendants ..... due to their miscalculation and negligence,"
(2.) The Commissioners for the Port of Calcutta, who do not enter appearance in the court below and against whom the learned Judge dismisses the suit ex parte, may be eliminated here and now. Mr. Roy Chowdhury, appearing for the petitioner, does not press the rule against them. He does not, presumably because the suit was instituted on July 7, 1965, long, long after the expiration of three months from May 8, 1962, when the cause of action for the suit arose, for which the Commissioners for the Port of Calcutta are completely protected from such suit by virtue of Section 142 of the Calcutta Port Act, 3 of 1890. Indeed in terms thereof, no suit shall be brought after the expiration of three months from the day on which the cause of action arose. So, the suit against the Port Commissioners appears to be clearly barred in limine. See Commissioners for the Port of Calcutta v. Corporation of Calcutta, 41 Cal WN 1317 = (AIR 1937 PC 306) and Commissioners for the Port of Calcutta v. Abdul Rahim Oosman & Co., (1964) 68 Cal WN 814=1964 Cal LJ 56.
(3.) The section to go by, in the context of this litigation, rested on a booking dated May 8, 1962, is not Section 77, which the learned Judge and the parties go by in the court below, but Section 78B, as Mr. Basu, appearing for the opposite party Railway submits, and rightly in my judgment. Section 78B is a new section inserted by the Railways (Amendment) Act, 1961. It replaces the old Section 77. But that does not matter. What matters is the requisite written notice of claim to a refund of an overcharge to the railway administration. Such written notice is very much here, but to the Refunds Officer, not to the Railway administration which, in terms of Section 140, read with Section 2(6), means the Manager, that is, the General Manager, or the Chief Commercial Superintendent. The Refunds Officer is neither. And the seed of the controversy lies here. The Judge holds --and Mr. Basu supports him -- that a notice as this is bad at law and must lead to the dismissal of the suit. Mr. Roy Chowdhury refers to a pamphlet of 1958, captioned: Principal Rules and Procedure for the Preferment and Disposal of Claims on Railways, published under the authority of the Ministry of Railways, and priced at 15 paise, at page 14 of which occurs Appendix B, the heading of which is: 'Designation and Address of Officers who may receive notice of claims for compensation or refund within their respective jurisdictions.' and page 15 of which under Appendix B bears inter alia: South Eastern Railway. 1. The General Manager, South Eastern Railway, Calcutta. 2. The Chief Commercial Superintendent (Claims), 1 Royal Exchange Place, Calcutta-1. 3. The Refunds Officer , 23 Canning Street, Calcutta. 4. All Claims and Traffic Inspectors and Station Masters enumerated in Appendix D for claims below Rs. 50 per consignment arising after granting open delivery. That being so, Mr. Roy Chowdhury concludes, here is clear proof of the Refunds Officer being authorized to receive notice of claim for refund, and the petitioner's notice cannot go down as bad at law.;