(1.) This is the plaintiff's appeal, arising out of a suit for recovery of compensation for non-delivery of six bales of cotton piece goods, sent by the defendant Railways.
(2.) The consignment was booked at Ahmedabad under Invoice No. 2445 and Railway Receipt No. B/35939, dated February 29, 1952, on the Western Railway. The delivery was to be given at Shalimar on the Eastern Railway. There was non-delivery of the entire consignment and, on July 8, 1952, notice under Section 77 of the Indian Railways Act was served. This was followed by another notice under the same Section on August 18, 1953. Thereafter, it appears, there was prolonged correspondence between the plaintiff and the defendant Railways, ending in December, 1953, when for the first time, the plaintiff's claim was refused or repudiated by the Railway Administration. Thereafter, on August 28, 1954, notice was served under Section 80 of the Code of Civil Procedure, and, on December 3, 1954, the instant suit was brought on a claim of Rs.13,685/15/9p., including price, excise duty, ten per cent. compensation and other costs.
(3.) The suit was contested by the Railway Administration and their principal defence on the merits was that it was a case of loss of the consignment by running train theft not due to any negligence on the part of the Railway concerned and there was also a plea of limitation. There were other defences, which are not material for our present purpose.