UNION OF INDIA Vs. KEDAR NATH BABULAL

JUDGEMENT

(1.) In the suit out of which this appeal arises the plaintiff claimed damages for loss and deterioration o a certain consignment of piece goods, made over to the railway authorities at Bhavanagar railway station for being taken to Ranchi. The plaintiff based his case on the ground of negligence and misconduct on the part of the railway administration and the allegation of the plaintiff was that the damage was caused by rough handling on the part of the railway staff. The suit was contested by the defendant railway, firstly on the ground of limitation, and secondly on the ground that there was no misconduct or negligence on the part of the railway staff. Both the Tower courts have accepted the case of the plaintiff and given a decree in favour of the plaintiff for damages against the defendant railway.

(2.) The point of law put forward on behalf of the appellant is that the suit is barred by limitation. It appears that open delivery of the goods was taken on the 16th August, 1950, and notice under Section 77 of the Indian Railways Act was given to the appellant by the respondent on the same day, and another notice under the same section was given on the 23rd January, 1951. Two notices were also served by the respondent under Section 80 of the Code of Civil Procedure on the 29th June, 1951, and the 3rd July, 1951. The suit was ultimately brought on the 29th! November, 1951. It was conceded by both the parties that if the plaintiff is not entitled to any deduction of the period under Section 15 (2) of the Limitation Act, with regard to the notice under Section 77 of the Railways Act, the suit would be barred by limitation. The question for decision in this appeal, therefore, is whether the plaintiff is entitled to deduct the period under Section 15 (2) of the Limitation Act with regard to the notice given by him under Section 77 of the Railways Act.

(3.) On behalf of the respondent reliance was placed upon the decision of a Division Bench of this Court, consisting of Gout's and Adami JJ., in B. and N.W. Rly. Co. v. Ramsarup Lal, AIR 1922 Pat 549, in which it was held that the plaintiff i" that case was entitled to deduct the period of 15 days given to the. railway company under Section 77 of the Railways Act, read with Section 15 (2) of the Limitation Act. It was submitted by learned Counsel on behalf of the appellant that this proposition of law is erroneous and needs re-consideration in view of the decision of a Full Bench of this Court in Dominion of India v. Hazari Lal, AIR 1949 Pat 410 and also in view of a decision of a Division Bench in Union of India v. Fateh Alam, 1958 BLJR 615. It was also pointed out by learned Counsel on behalf of the appellant that a different view has been taken with regard to the effect of the notice under Section 77 of the Railways Act in Dominion of India v. W.N. Sareen Co., AIR 7 1953 Nag 10 and in Shankarappa v. Union of India, AIR 1957 Hyd 21.