PREM PRAKASH GUPTA Vs. UNION OFINDIA

JUDGEMENT

(1.) THIS second appeal arises out of a suit wherein the plaintiff initially claimed a certain amount for the non-delivery of goods which were entrusted to the Railways for being dispatched to him at Khekra, a Railway Station in the district of Meerut. During the pendency of the suit, a part of the consignment was delivered to the plaintiff and, therefore, he reduced his initial claim to a lower amount. The brief facts are these: On 27th December, 1961, M/s. Hindustan Steel Co. Ltd., Durgapur, booked a consignment of pig-iron from Durgapur Exchange Steel-yard, on the Eastern Railway. The destination was Khekra, a Railway Station on S. S. Light Railway in the district of Meerut. The railway receipt was sent to the plaintiff through the State Bank of India, Meerut and was handed over by the latter to the former after receiving full payment in respect of the consignment. The consignment was, however, not received till the first week of February, 1962. Notices under S. 77 of the Railways Act and S. 80, C. P. C. were served but the consignment was not delivered. The plaintiff alleged that the non-delivery was due to the carelessness, negligence and misconduct of the railway servants. A sum of Rs. 5,665.45 was claimed as costs of the goods and Rupees 2,000/- was claimed on account of the loss of profit which the plaintiff suffered as a result of the non-delivery of the goods in question. The total of the said two amounts worked to Rs. 7,665.45 but the plaintiff claimed Rs. 7,600/- only in round sum. As stated above, during the pendency of the suit, a part of the consignment was delivered to the plaintiff and, therefore, instead of the sum of Rs. 5,665.45 which had been initially claimed as costs of the goods, a sum of Rs. 2,481.44 was claimed as costs of the remaining undelivered consignment. The three defendants, in the suit were (1) Union of India (2) S. S. Light Railway Company Ltd., Saharanpur and (3) The Hindustan Steel Company Ltd., Durgapur, district Burdwan, West Bengal. The defendant No. 3 did not put in appearance and the suit proceeded ex parte against it. The other two defendants contested the suit and, inter alia, a plea was put in that the suit was bad on account of the absence of a valid notice under S. 77 of the Railways Act. Various other pleas were taken in denial of the plaintiff's claim but we are not concerned with the same in the instant appeal.

(2.) THE trial court framed the necessary issued and tried the suit. It held that the plaintiff was not entitled to claim the sum of Rs. 2,000/- as loss of profit but he was entitled to claim the sum of Rs. 2,481.44 as costs of the undelivered part of the consignment. However no decree could be passed in the suit in favour of the plaintiffs as the trial court held that the service of notice under S. 77 of the Indian Railways Act had not been proved on the General Managers of the Eastern and the Northern Railways. THE service of such a notice was, however, held to be proved in the case of S. S. Light Railway. On these findings, the suit was dismissed. THE plaintiff went up in appeal and the lower appellate court dismissed the appeal and affirmed the trial court's decree. THE plaintiff has now come up in the instant second appeal and in support thereof. I have heard Sri Rajeshwari Prasad and in opposition, Sri Gur Pratap Singh has made his submissions. THE only point involved in the appeal is whether the plaintiff's suit was rightly dismissed on the ground that no notice under S. 77 was proved to have been served on the General Managers of the Eastern and the Northern Railway.

(3.) THE new provision came into effect on 1st January, 1972. It has been argued on behalf of the respondents and the argument was accepted in the courts below that the consignment was admittedly booked on 27-12-1961, therefore, the contract between the parties took place on the said date and the old law namely, S.77, would govern the incidents of the said contract. On the other hand, it has been argued on behalf of the appellant that as the breach of the contract, namely, the non-delivery of the consignment, took place after 1st January, 1962 and the suit itself was filed on 22nd March, 1963, therefore, the new law namely, Section 78-B, would be applicable to the facts of the instant case. If the new law be held to be applicable, then as the notice has been admittedly held by the courts below to have been served on the S. S. Light Railway on whose line the destination station lay, therefore, there was compliance with the requirement of S. 78-B and the fact that no notice was proved to have been served on the General Managers of the Eastern and the Northern Railway was of no consequence. I may here first deal with an aspect of the matter which touches on the interpretation of the new S. 78- B. THE lower appellate court has expressed its opinion though somewhat half-heartedly that in case the destination station lies on a railway which is owned by a body which is different from the one which owns the railway at the booking station, then notice under S. 78-B should be separately sent to the owners owning the railways at different stations. In my opinion, this interpretation cannot be sustained on the language of S. 78-B. THE new provision was enacted with a view to soften and mitigate the requirement embodied in the old S. 77 whereby notices had to be sent to each Railway Administration. THE expression "Railway Administration" has been defined in S. 3 (6) of the Railways Act as follows : " "Railway administration" or "administration", in the case of a railway administered by the Government means the manager of the railway and includes the Government and in the case of a railway administered by a railway company means the railway company."