SECRETARY OF STATE Vs. SAGARMAL MARWARI

JUDGEMENT

(1.) This is an appeal by the Secretary of State for India in Council against the concurrent decisions of the Courts below by which they decreed the suit of the respondents which was instituted for compensation for the loss of their goods not delivered to them in the following circumstances:

(2.) The plaintiffs case is that certain bales of cloth were made over in two consignments by a firm Kaloo Ram Brijmohan at Bombay to the G.I.P. Ry., in January 1936 under Risk Note Form H for delivery to the plaintiffs at the Khagaria station of the E.I. Ry. in this province. Out of the two consignments only portions were delivered but the remaining portions were never delivered to the consignee. In February 1936, the Station Master of Khagaria informed the plaintiffs that the portions which were not delivered were lost by fire. Accordingly the plaintiffs preferred their claim to the Chief Commercial Manager, E.I. Ry. who by his letter dated 2 June, 1936, refused to entertain the claim. The plaintiffs accordingly gave notice under Section 77, Railways Act, to the Agents of the E.I. Ry. and G.I.P. Ry. and also served notice on the Secretary of State for India in Council under Section 80, Civil P.C. The cause of action for the suit arose on 27 February 1936, when the articles were not delivered. The Secretary of State failed in both the Courts to satisfy them that the loss by fire was not caused by misconduct of the administrative employees of the E.I. Ry. Hence the second appeal to this Court.

(3.) The only question argued by the appellant before us is that the suit was not maintainable on account of its having been instituted "during the currency of the notice" under Section 80, Civil P.C., and reliance has been chiefly placed upon the decision of their Lordships of the Judicial Committee in the now well-known case in Bhagchand Dagadusa V/s. Secretary of State . On behalf of the respondents it is vehemently urged that the Secretary of State must be deemed to have waived his objection to the want of a valid notice under Section 80 in the circumstances of this case. It is necessary therefore to consider closely the facts upon which the argument of waiver is founded. As required by Section 80, Civil P.C., there is an averment in the plaint filed on 30 August 1936, that inasmuch as the aforesaid two railway companies are State owned railway hence as required by law a notice as contemplated by Section 80, Civil P.C., has been regularly sent to the Secretary of State for India in Council through the Collector of Monghyr.