1. This case has been before a Bench of this Court previously and the facts are all set out in an order of the 21st March last. By the order which was passed on that date it was directed that certain further evidence should be produced before this Court in order to enable us to deal with the particular question which was raised Both parties have filed documentary evidence and the case has now been argued before us.
2. It is not necessary to re-state the facts which are all set out in the order of the Bench of the 21st March last. The suit was a suit brought by the Cawnpore Cotton Mills, limited, against the Great Indian Peninsular Railway. That suit has failed in both the Courts below on the ground that no notice as required by Section 77 of the Railways Act, Act IX of 1890, was served upon the defendant Company, and the only question which is now before us is whether both the Courts below were right in so holding or whether from the evidence before us it can be taken that there was due and proper service of the notice required by Section 77 upon the defendant Railway Administration.
3. We have been referred to a number of cases which have been decided by the various High Courts, and Dr. Katju, who has argued the case very ably on behalf of the appellant, has laid particular stress upon a ruling of the Madras High Court which is reported as Mahadeva Aiyar v. South Indian Railway Co. 69 Ind. Cas. 59 : 45 M 135 : 14 L.W. 684 : 30 M.L.T. 112 : 42 M.L.J. 202 : (1922) A.I.R. (M.) 362 : (1921) M.W.N. 878.
4. It has been suggested here at one stage of the argument that, as a matter of law, no notice was necessary in his cass. We need not refer to this contention any further than to say that the plea on which it is based was not raised in any of the Courts below, and, having regard to the frame of the plaint it does not seem to us to be possible for the leaned Counsel for the appellant to withdraw his case from the purview of Section 77. It is clear, therefore, that in order to enable a suit for this claim to be maintained the notice which was required by Section 77 was necessary.
5. We next come to the provisions of Section 140 of the Railways Act which lay clown the manner in which notices or documents required to be served on the Railway Administration may be served. Some argument was addressed to us as to the proper interpretation of the word 'may' in this section. There is some authority in support of the argument that the word 'may' must not here be read as 'must' to be found in the judgment of one of the learned Judges composing the Pull Bench which dealt with the case to which we have already referred. So far as this Court is concerned, we are bound by the decisions in Great Indian Peninsula Railway Co. v. Chandra Bai 28 A. 552 : A.W.N. (1906) 101 : 3 A.L.J. 329 and Great Indian Peninsula Railway v. Ganpat Rai 10 Ind. Cas. 122 : 33 A 544 : 8 A.L.J. 543. In both these cases it was held, and we agree, that the language of Section 140 is imperative and that the word 'may' must be read as 'must.' What the section lays down is that where any notice or document has to be served on a Railway Administration such service may be had in one or other of the three ways. The meaning of the section clearly is that service must be made in one or other of the ways referred to in Clauses (a), (b) and (c) of the section.
6. In the present case, therefore, we have to consider, whether the notice of suit in this case was served in one or other of these ways. It is not contended that there was any service of notice in the manner prescribed either by Clause (b) or clasue (c) of the section; it remains to be determined whether there was a service under Clause (a), that is to say, by delivery of the notice to the Manager or Agent.
7. We have been referred to the correspondence which passed between the parties with relation to this claim and the first thing that emerges from a perusal of these documents is that no direct communication was made, by the plaintiff to the Agent of the G.I.P. Ry. before the 5th of August 1919.
8. It may be mentioned that this notice, which was sent on the date just mentioned, was sent after the expiry of six months from the date on which the goods were delivered to the Railway for carriage (the 26th November 1918).
9. It has, however, been argued before us that the correspondence which has been now filed in this case and the evidence of the Agent which was taken upon commission in the shape of interrogatories show, that the authority to deal with claims against the Railway Company had in certain instances been delegated to another official who is described in the correspondence as the Deputy Traffic Manager 'Commercial.'
10. It is no doubt proved that notice of the claim of the plaintiff Company was given to this official, for there are on record copies of correspondence which passed between him and the Company. It is argued, therefore, that inasmuch as this official had notice of the claim which the plaintiff Company intended to bring, that notice was good notice upon the Age it, inasmuch as the Deputy Traffic Manager 'Commercial' had been appointed by the Agent of the Railway for the purpose of disposing of these claims.
11. It is one thing to say that this subordinate official had been entrusted with authority by the Agent to dispose of claims brought against the Company and another thing to say that there was delegated to him the power to receive a notice of suit such as is required by Section 77 of the Indian Railways Act. The two cases are not obviously the same and we, therefore, hold that no notice given to the Deputy Traffic Manager 'Commercial' of the G.I.P. Railway, Bombay, was good and sufficient notice within the meaning of the Act Dr. Katju has referred to the printed post card which was received by the plaintiff Company in response to the notice given on the 5th August 1919. In this notice it is, indeed, stated that the claim had been referred to the General Traffic Manager who had full powers to deal with such matters on behalf of the Company and by this post-card the plaintiff Company was invited to send any further communications on the subject of their claim to the General Traffic Manager. We do not think the terms of this document advance the plaintiff's case any further. All that is stated is, that the General Traffic Manager has authority to deal with the claims. That, in our opinion, does not indicate that the General Traffic Manager, or any one who was subordinate to him in his office, had authority to receive the statutory notice which the Act prescribes.
12. We think, therefore, that the decision of the Courts below on the legal point is a correct one. We are, however, entitled to say that this is a case of distinct hardship and is a case which unfortunately arises on many occasions. There can be no doubt that many, if not all, of the Railway Administrations in India have given the public to understand that claims in respect of losses incurred on the Railway are to be dealt with by one or other subordinate officer of the Administration, and no doubt many people are misled by notices of this kind and fail to consider that, in order to maintain a suit against the Railway Administration, it is imperative that a notice under Section 77 should be served upon the Railway Administration and served in one or other of the modes laid down in Section 140. It is unfortunate that so many of these cases arise in the Courts, but, as the law stands, we are unable to relieve plaintiffs who find themselves in this unfavourable position. The law is clear and if it has to be observed the plaintiff's suit must fail. We, therefore, hold that this appeal fails and we dismiss it accordingly with costs including in this Court fees on the higher scale.