1. The decision of the Court below is manifestly wrong and this application in revision must be allowed. The suit which has given rise to this application was brought by the opposite party in the Court of Small Causes at Agra against two Railway administrations, namely, the G.I.P. Rly. and the Bombay Port Trust Railway. The former being a State railway, the 'Secretary of State for India' was named as defendant 1 and he was sued 'through the Agent, G.I.P. Rly., Bombay.' The claim was for the recovery of a sum of Rs. 200. This sum was made up of Rs. 167-4-0 which, the plaintiff alleged, had been wrongfully realised from him on a consignment which he had booked from Bombay (Store Depot) to Agra (Belanganj), Rupees 27-12-0 on account of 'loss of interest' and Rs. 5 'cost of notices.' The Court below decreed the suit against defendant 1, the Secretary of State for India, and dismissed it against defendant 2, the Bombay Port Trust Railway. This application for revision is on behalf of defendant 1, the Secretary of State for India, but, by an oversight on the part of the office of the Crown counsel, the Bombay Port Trust Railway has also been shown as an applicant. The learned standing counsel has prayed for leave to strike out the name of the Bombay Port Trust Railway from the array of parties and I have granted such leave. The plaintiff alleged in para. 1 of the plaint that the G.I.P. Rly. had certain railway materials, 'such as scrap tramway rails and scrap iron sheets, etc.,' for sale. Paragraph 2 of the plaint runs as follows :
That as the plaintiff wanted to purchase these railway materials from the G.I.P. Rly. he enquired from the Chief Traffic Manager, G.I.P. Rly. Bombay (who was the proper authority to quote rates) before he submitted his order for the purchase from defendant 1.
2. Although the language of this paragraph is defective, I take it that what the plaintiff means is that he enquired from the Chief Traffic Manager of the G.I.P. Railway what was the rate at which goods of this description were charged if consigned for conveyance over that railway to a particular destination. It was then alleged that the Chief Traffic Manager by his letter No. Q 3/49 dated 3rd November 1936
assured the plaintiff that the rate for railway materials from Bombay to Belanganj will be charged at 0-5-2 per maund....
3. The plaintiff went on to allege that it was on the basis of this 'assurance and information' that he purchased the materials aforesaid from the G.I.P. Railway. The date of the purchase was, however, neither stated in the plaint nor disclosed in the course of the trial of the suit. It was next alleged that the plaintiff booked those materials from Bombay (Store Depot) to Agra (Belanganj) on 16th March 1937. It may be mentioned here that it is common ground that the freight on the consignment was to be paid at the time of the delivery of the goods at the place of destination, viz., Belanganj. In para. 5 of the plaint it was alleged that 'the railway staff of the sending station' wrongfully calculated the amount which was to be paid at Belanganj at the rate of 0-9-4 per maund and inserted that rate and amount in the receipt, which they gave to the plaintiff and that this was done in spite of the fact that 'the certificate of the recognised officer was also produced.' It has not been explained to me what this 'certificate of the recognised officer' was and my attention has not been drawn to any such 'certificate'. In para, 6 of the plaint the plaintiff alleged that if the Chief Traffic Manager had informed him that the rate would be 0-9-4 per maund,
the plaintiff would have made his purchase at a less rate making his calculation at the rate of 0-9-4 per maund or would not have purchased the said railway materials from defendant 1.
4. It was alleged in the succeeding paragraphs that a sum of Rs. 167-4-0 had thus been realised from the plaintiff over and above the amount which ho was liable to pay in accordance with the rate quoted in the communication of the Chief Traffic Manager and that he was entitled to recover that amount from the defendants together with the interest and the 'cost of notices' claimed. In para. 11 it was stated that the plaintiff had 'served both the defendants with notices,' but that the amount had not been paid. The Secretary of State for India contested the suit and alleged that the rate quoted by the Chief Traffic Manager in his letter of 3rd November 1936 applied only to those railway materials which were intended for the use of the railway and were consigned to any recognised railway official and did not apply to the class of goods which were consigned by the plaintiff on 10th March 1937. It was averred that the booking clerk of the place at which the consignment was booked rightly calculated the amount which the plaintiff had to pay and that the plaintiff had never been called upon to pay anything in excess of what was the proper charge in respect of the goods which he consigned. It was further pleaded that the suit was not maintainable as no notice was delivered or loft at the offices of the proper officers as enjoined by Section 80, Civil P.C., as it stood at the time when the plaintiff issued the notice of his proposed suit. The learned standing counsel, appearing for the applicant, has .urged that the Court below was wrong in holding that the notice of the suit, which was admittedly sent by the plaintiff to the Collector of Agra, was a proper notice and that the plaintiff was entitled to recover the sum of money claimed.
5. In my judgment both the contentions of the learned standing counsel are well-founded. It is admitted that the plaintiff sent a notice of the proposed suit to the Collector of Agra on 21st May 1937. Section 80, Civil P.C., was amended by the Government of India (Adaptation of Indian Laws) Order, 1937, which came into operation on 1st April 1937. By Clause (d) of the amended ' section no suit can be instituted against the Crown until the expiration of two months next after notice in writing has been delivered to or left at the office of a Secretary to the Central Government, the Political Secretary and a Secretary to the Provincial Government of the Province where the suit is instituted in a case where the suit is against the Secretary of State. This was the law in force when the plaintiff in the present suit issued his notice. It being admitted that all that the present plaintiff did was to send a notice to the Collector of Agra, it is clear that the provisions of Section 80 were not complied with. The Court below has dealt with the issue which was framed with regard to this question--issue 4--in a few lines. All that it has said is that the cause of action accrued before Section 80 of the Code was amended and that under Section 179, Government of India Act of 1935, the notice was not defective. I am not able to see what Section 179, Government of India Act of 1935, has got to do with this question. The section has got five sub-sections and the Court below does not state on which particular sub-section it relies. Sub-sections (2) to (5) are clearly irrelevant and thus the only sub-section that need be considered is Sub-section (1). What is laid down in that portion of that sub-section which alone is material is that, in the case of any liability arising before the commencement of part 3 of the Act--the part which deals with the Governors' Provinces --or arising under any contract or statute made or passed before that date, any proceedings which, if the Act had not been passed, might have been brought against the Secretary of State in Council, may be brought against the Federation or a Province, according to the subject-matter of the proceedings, or, at the option of the person by whom the proceedings are brought, against the Secretary of State. It seems to me obvious that what the sub-section is concerned with is the person who is to be named as a defendant in suits of the description mentioned there, and not with any question of notice which has to be served before the suit can be maintained at all. The matter of notice is dealt with in Section 80, Civil P.C., and it is undeniable that the provisions of that section of the Code have to be strictly complied with. In my judgment, the notice which the plaintiff issued in this case was wholly defective and the suit should have been dismissed on that ground alone.
6. On the merits also the plaintiff's case, in my opinion, was without any substance. In view of the conclusion at which I have arrived on the question of notice, I need only briefly state my reasons for holding that the suit should have been dismissed on the merits also. In the first place, it was admitted in the plaint--para. 5--that the clerk whose duty it was to book the consignment calculated the amount that had to be paid on account of freight at the rate of -/9/4 per maund. Thus, this is not a case in which the plaintiff was told at the station where the consignment was booked that he would be charged at a certain rate and a further amount was demanded at the place of destination before delivery was given. When the clerk at the place where the consignment was booked stated that the rate was -/9/4 per maund, it was open to the plaintiff not to consign the goods at all. By consigning the goods in these circumstances, the plaintiff must be taken to have agreed to the rate of -/9/4 per maund and this suit must be held to be an afterthought. In the second place, the basis of the judgment below is a statement of the plaintiff in the witness-box that if the Chief Traffic Manager had informed him that the rate would be -/9/4 per maund he would have sent the goods by the B.B. & C.I. Railway over which, according to the plaintiff, the rate 'for condemned railway materials' was -/8/4 per maund, or he might have booked the consignment to Delhi. The learned Judge fails to notice that this was not the case set up in the plaint in which, as has been shown above, it was stated that, if the Chief Traffic Manager had quoted -/9/4 per maund,
the plaintiff would have made his purchase at a less rate making his calculation at the rate of -/9/4 per maund and would not have purchased the said railway materials from defendant 1.
7. The case put forward in the plaint was not supported in the witness-box. It seems to me that the case of the railway administration is stronger here than it was in Firm Ram Lal Bhikam Chand v. Secretary of State : AIR1937All400 and Firm Ganga Prasad-Ratan v. Secretary of State : AIR1937All642 . It may also be pointed out that, even if the plaintiff's statement that the rate on the B.B. & C.I. Railway was -/8/4 per maund was true, there was no justification for decreeing the suit for the sum claimed. In the third place, what the Chief Traffic Manager quoted for was 'railway material' as is apparent from the letter of 3rd November 1936. The defendant's witness, Shyam Sunder--the delivery clerk at Belanganj--stated that 'the railway material rate from Bombay to Belanganj is -/5/2 but it does not apply to scrap iron' and that -/9/4 is the rate for scrap iron for the public. In the receipt which the plaintiff obtained when he booked the consignment in question the goods consigned are described as 'old iron scrap.' I am also of the opinion that the principle of the decision in Bhagwati Prasad v. B.B. and C.I. Railway : AIR1940All235 is applicable to the present case. Allowing the application for revision, I set aside the decree of the Court below and dismiss the suit against defendant 1 also with costs throughout.