DAHYABHAI PATEL AND CO Vs. UNION OF INDIA

JUDGEMENT

(1.) This appeal is by the plaintiff in O. S.46 of 1954 in the Court of the Subordinate Judge of Palghat.

(2.) The plaintiff was the consignee of 173 bags of beedy tobacco sent from Cochin Harbour Terminus by wagon No. E. B. 15358 under invoice dated 7-7-53. When the wagon was opened at its destination on 9-7-1953 it was found that a portion -of the goods was damaged by rain water. The damage was estimated at Rs. 7,201-9-0 and this suit was filed against the Union of India as represented by the General Manager, Southern Railway, Madras for recovery of damages. The suit notice Ext. B1 was dated 7-7-54 and it was served on the General Manager on the same day. The suit was filed on 7-9-1954. Thus it is seen that excluding the day on which the notice was actually served, the period of the notice was one day less than the statutory period of two months. The defendant contended inter alia that the suit was premature for want of compliance with S.80 C. P. C. That contention was upheld by the learned Sub Judge and the suit was dismissed.

(3.) The position that in computing the period of 2 months mentioned in S.80 C. P. C., the day on which the notice was actually served must be excluded, is not disputed. The only points urged in appeal are (1) that Exts. B13 and 12 notices dated 29-5-1954 and 4-6-1954 respectively sent by the plaintiff to the Chief Commercial Superintendent, Southern Railway, Trichinopoly, are to be treated as the statutory notices under S.80 C.P.C. and (2) that even if these two notices which were addressed to the Chief Commercial Superintendent instead of the General Manager are defective, for that reason, the management must be deemed to have waived their right to object by not taking such an objection in the reply notice Ext. A9, wherein the plaintiffs claims were repudiated.