P.K. Tare, J.
1. This is an appeal by the defendant representing the Eastern Railway, the Central Railway and the Northern Railway, against the judgment and decree passed by Shri G. G. Bhojraj, Civil Judge Class I, Chhindwara in Civil Suit No, 1-B of 1951, decided on 30-7-1954, decreeing the respondent's claim for Rs. 5488/12/-.
2. On 11-3-1950, the plaintiff-respondent delivered a consignment of sawn timber at Chhindwara for delivery to self at New Delhi. The plaintiff alleged that he had merely authorised one Trilokinath to take the delivery of the consignment on his behalf at New Delhi. The consignment did not reach Delhi and was never delivered to the plaintiff. Therefore, he gave notices under Section 77 of the Rail-ways Act and Section 80 of the Civil Procedure Code and filed the present suit claiming Rs. 5752/-.
3. The defence was that the plaintiff had assigned his rights under the railway receipt to Trilokinath. As such, Trilokinath. being the owner, was alone entitled to maintain the suit. The defendant also denied the validity of notices, as also the quantum of damages claimed.
4. The learned counsel for the appellant urged that the railway receipt, being a document of title to goods, the endorsement in favour of Trilokinath amounted to an assignment of an actionable claim under the receipt. We may only say that as per tha view of Tambe J. in the case of Shah Mulji Deoji v. Union of India. 1956 Nag LJ 791: (AIR 1957Nag 31), an endorsement of a railway receipt amounts to an assignment, entitling the endorsee to maintain a suit against the railway administration.
The minority opinion of late Rao, J. based on the decision of Bhagwatti J. (as he then was) in the case of Shyamji Bhanji & Co. v. North Western Railway Co.. AIR 1947 Bom 169, was not accepted as it was found contrary to the observations of Their Lordships of the Privy Council and the consensus of almost all other Indian High Courts. That decision, however, laid down that a suit could always be maintained by an endorsee.
But we are unable to see how the right of aconsignor can be negatived on the strength of the said ruling. A consignor's right to sue is based on the privity of contract with himself. In the present case, the respondent was the consignor and in that capacity he could maintain the present action irrespective of an endorsement of the railway receipt. This is more so because the railway receipt was returned to him by the consignee and notice of that was given to the Railway.
5. The learned counsel for the appellant next urged that the notice under Section 77 of the Railways Act had been given by Trilokinath, while the notice under Section 80 of the Civil Procedure Code had been served by the present appellant. As such it wascontended that the suit was not tenable for want of proper notice under Section 77 of the Railways Act.
6. It is true that letters dated 18-8-1950 (Ex, P. 1), dated 14-8-1950 (Ex. P. 2) and dated 27-4-1950 (Ex. P. 3) purporting to be notices under Section 77 of the Railways Act were sent by Trilokinath, Although a notice under Section 77 of the Railways Act is mandatory, a combined notice under Section 77 of the Railways Act and Section 80 of the Civil Procedure Code can be given as was held in Mooljibhai Maneklal and Co. v. Dominion of India, ILR (1952) Nag 821: (AIR 1952 Nag 22), which was followed by a Division Bench of the Patna High Court in the case of Union of India v. Lakshmi Narain, AIR 1954 Pat 424.
Later a Single Bench of the same High Court took the same view in the case of Union of India v. Firm Balwant Rai Banshidhar, AIR 1958 Pat 536. Section 77 of the Railways Act lays down that a person shall not be entitled to a refund of an overcharge in respect of animals or goods carried by railway or to compensation for the loss, destruction or deterioration of animals or goods delivered to be so carried, unless his claim to the refund or compensation has been preferred in writing by him or on his behalf to the railway administration within 6 months from the date of the delivery of the animals or goods for carriage by railway.
The section permits a notice to be given by the person concerned or by some other person concerned on his behalf. We do not think that the notices under Section 77 of the Railways Act given by Trilokinath on behalf of the plaintiff were in any way irregular. At any rate, the notice under Section 80 of the Civil Procedure Code given on 5-9-1950 (Ex. P. 11) could be construed as a notice under both the flections, as it fulfilled the requirements of Section 77 of the Railways Act as also Section 80 of the Civil Procedure Code. (See Dharamsi Liladhar v. Union of India. AIR 1952 Cal 439). In our opinion the objection of the appellant to the notices served is devoid of any substance.
7. The learned counsel for the appellant, however, urged that the charges towards freight amounting to Rs. 340/15/- ought to have been excluded from the decree, as the railway administration was admittedly entitled to charge the freight. In this connection, we may observe that the said claim would be in the nature of a legal set off which required court-fee in the trial Court as also in this Court.
The defendant cannot be allowed to raise the said question except by way of a legal set off uponpayment of the proper court-fee. It is, therefore, not possible to adjudicate on this point in the present appeal, when admittedly the defendant failed to plead a set off in the trial Court. If such a claim had been made it might have been necessary to plead and prove that the goods were carried according to the contract.
8. For these reasons the appeal fails and is dismissed with coats.