LAKSHMI NARAYAN GAURI SHANKAR Vs. UNION OF INDIA

JUDGEMENT

(1.) This is an appeal by the plaintiff whose suit for recovery of a sum of Rs. 2,895-14-6 by way of damages, interest and certain other charges has been dismissed by the Courts below. 25 bales of cotton twist yarn were consigned at Rajapalayam Railway Station of the South Indian Railway for being delivered to the appellant at Gaya Railway Station of the East Indian Railway on 16-9-1947. Out of the above 25 bales, only 20 bales were delivered to the plaintiff at Gaya on 18-10-1947, and the remaining 5 bales remained undelivered. On 29-12-1947, the appellant sent notices under Section 77 of the Indian Railways Act to the General Manager of the above two railways. On 26-1-1948, the Chief Commercial Manager of the South Indian Railway, Trichinopoly, gave a reply to the above notice by his letter (Exts. 3) that, inasmuch as the destination station was situated on the East Indian Railway, the Chief Commercial Manager of that railway at Calcutta was the proper authority to dispose of the matter in question and the said officer at Calcutta had been advised to dispose of the matter, and requested the pleader of the plaintiff, through whom the above notice had been sent, to address the Chief Commercial Manager, East Indian Railway, Calcutta, on the subject. On 15-4-1948, a notice under Section 80 of the Code of Civil Procedure was sent to the Governor General of India in Council through the Secretary, Railway Board. On 24-7-1948, the Chief Commercial Manager, of the East Indian Railway, Calcutta, wrote a letter (Ext. 3/b) to the plaintiff in which reference was made to the above notice under Section 80 of the Code of Civil Procedure. The claim not having been settled, the plaintiff instituted a money suit, out of which the present appeal arises, for recovery of a sum of Rs. 2,225/- as being price of the non-delivered bales, Rs. 56-4-0 as quota holders, charges, Rs. 34-3-6, as commission and expenses, Rs. 163-3-0 as railway freight realised for the non-delivered bales, Rs. 131-4-0 as clearing agents' profits, Rs. 242/- as interest at the rate of 9 per cent per annum and Rs. 44/- as cost of notices sent under Section 77 of the Indian Railways Act and Section 80 of the Code of Civil Procedure, all amounting to Rs. 2,895-14-6.

(2.) The suit was contested by the only defendant in the suit, namely, the Dominion of India (now the Union of India) by filing a written statement which is more or less in the nature of a formal written statement usually filed by a guardian ad litem. No plea of loss was taken in defence and it was only alleged that the loss, if any, was beyond the control of the Railway Administration. As appears from the judgment of the trial court, apart from the legal pleas, the claim of the plaintiff was not disputed except as to interest. The trial Court held that if the plaintiff was to be given a decree, he was entitled to interest from 29th of December, 1947, till the institution of the suit at 6 per cent per annum and at the same rate from the date of institution of the suit till the date of the decree. It also found that the shortage was due to misconduct of the railway servants and apart from that, the plaintiff could also be entitled to realise the damages on the ground of non-delivery. It however, held that the suit was barred by time and that there had been no valid service of notice under Section 80 of the Code of Civil Procedure nor was the proper party before the court. Accordingly, it dismissed the suit. On appeal by the plaintiff, the lower appellate court reversed the findings of the trial court with regard to the question of limitation and the proper party not being before the court. It also reversed the finding of the trial court with respect to the validity of the notice under Section 80 of the Civil Procedure Code so far as the East Indian Railway was concerned and held that there had been a sufficient compliance of the provision of that section so far as that railway was concerned. Since, however, there was nothing before that court as regards the loss or destruction of the undelivered bales having occurred over the East Indian Railway, it held that that railway could not be made liable. As regards the South Indian Railway, its finding was that notice under Section 80 of the Code of Civil Procedure was not served on the administration of that railway and therefore, though in law that railway was liable, no decree could be passed against it. In view of the above findings, it affirmed the order of dismissal of the suit passed by the trial court. The plaintiff being thus aggrieved has come up to this Court in second appeal.

(3.) In support of the appeal, Mr. Lalnarayan Sinha has put forward two contentions. His first contention is that the Union of India being the owner of both the railways was liable under the terms of the contract to deliver the goods to the plaintiffs and on account of non-delivery of the 5 bales a breach in the contract occurred at Gaya for which it was liable, the cause of action, having arisen to the plaintiff at Gaya on non-delivery, and the suit should have therefore been decreed. His second contention is that the Union of India, as the plaint shows, has been sued as being the owner of both the railways and even if no notice under Section 80 of the Code of Civil Procedure has been served on the railway administration of the South Indian Railway, a decree should have been passed against it inasmuch as the administration of the South Indian Railway in the circumstances of the case will be deemed to have waived the requirement of the service of notice under that section. In my opinion, both the contentions are well founded and must prevail.