P.K. Tare, J.
1. This is an appeal by the defendants against the judgment and decree or Shri D. M. Aney, Second Civil Judge, First Class, Jabalpur in Civil Suit No. 21-B of 1952 decided on 7-2-1955.
2. The respondent was the consignee of 751 cigarette cases booked from Chandisthan Railway Siding on 1-5-1950 to be delivered at Jabalpur at 'railway risk', On 18-5-1950, 68 cases were delivered to the plaintiff. One case was subsequently delivered on 9-4-1951 in a partly damaged condition. The parties mutually assessed the damage of the said case at Rs. 966-7-0. The respondent filed this suit on 2-7-1951 claiming an amount of Rs. 9,314-13-0 on account of the price of the six un-delivered cases and the value of the loss in the damaged case. In addition, the plaintiff claimed interest at Rs. 639-6-0. The trial Court decreed the principal claim and disallowed the claim for interest.
3. In the present appeal we ore not concerned with the pleas raised in defence. The learned counsel for the appellants gave up other grounds and concentrated his arguments on the grounds which are herewith dealt with.
4. It was urged by the learned counsel for the appellants that the plaint was not properly presented and, therefore, the suit was not tenable. The Directors of the Company had executed a power of attorney dated 30-11-1950 in favour of its Calcutta Manager Shri Blaikie as per Ex. P. 34, who in his turn executed a power of attorney dated 3-7-19511 (Ex. P. 24) in favour of the acting Depot Manager of the Company at Jabalpur, Shri Santhanu Ray. Shri Santhanu Ray signed the plaint on 2-7-1951 which was presented on the same day by Shri T. M. B. Pillai, who was appointed as a pleader by Shri Santhanu Ray by a power-of-attorney dated 2-7-1951. It was contended that Shri T. M. B. Pillai had no legal authority to present the plaint.
Since Shri Santhanu Ray had no power to engage him as a pleader on 2-7-1951, and acquired the requisite authority from Shri Blaikie only on 6-7-1951. While it is true that Santhanu Ray derived his authority to engage a counsel on 3-7-1951, the power of attorney, although executed by him on 2-7-1951 in favour of Shri T. M. B. Pillai, took effect from 3-7-1951 as it was not withdrawn. Therefore, when Shri T. M. B. Pillai was present in Court on 9-7-1951, he would, at the most be deemed to have presented the plaint on that date, This would not affect the suit, as even on that date, it was within limitation. We, therefore, uphold the finding of the trial Judge on this point.
5. The second point that the learned counsel for the appellants raised was about the invalidity of the notice dated 19-6-1950 (Ex. P. 12) served under Section 77 of the Railways Act. The learned counsel pointed out that the notice was addressed to 'The Manager of both the railways' and a copy was sent to the Superintendent of Claims, of the then G. I. P. Railway, Bombay. It was argued that under Section 3 (6) of the Railways Act, the word railway administration has been defined and all notices required by the Act to be given to the railway administration ought to be served upon the General Manager in the manner provided by Section 140 of the Railways Act.
It was further pointed out that the plaintiff had failed to prove that the notice under Section 77 had actually been served on the managers of the two Railways and, therefore, the notice was invalid. Reliance was placed upon Cawnpore Cotton Mills Co., Ltd.v. G. I. P. Rly., AIR 1923 All 301, G. I. P. Rly. Co., Ltd. v. Chandulal Sheopratap, ILR 50 Bom 84: (AIR 1926 Bom 138) and D. B. Jiwandas v. Agent, E. I. Ry. Co., 19 Nag LR 139: (AIR 1923 Nag 314).
6. In our opinion this contention has no force. It is true that the plaintiff did not file the acknow-ledgments addressed to the managers of the two railways. But there is a postal acknowledgment dated 21-6-1950 (Ex. P. 14) on record which is signed by the Chief Traffic Manager, G.I.P. Railway Bombay. The correspondence on record shows that the railway authorities were fully aware of the plaintiff's claim. Moreover, the Superintendent of claims, G.I.P. Railway, Bombay, who is the officer deputed by the General Manager to deal with such claims, actually received a copy of the notice.
This Court, in a series of cases, has taken the view that a notice which substantially complies with Section 77 of the Railways Act is a valid notice. See Govindlal v. Governor General in Council, ILR (1947) Nag 369: (AIR 1948 Nag 17), Union of India v. Asharfi Devi, (S) AIR 1957 Nag 114 and Union of India v. Gendlal Nathuram, AIR 1958 Madh Pra 314. In this case, the Railway administration was fully aware of the plaintiff's case and had also as-sessed the damages for the damaged case at Rs. 966-7-0, From the correspondence on record, as also from the conduct of the railway authorities, we are convinced that the notice under Section 77 of the Railways Act must have reached the proper authority. We, therefore, hold that the notice was valid under the law.
7. Next the learned counsel for the appellants, contended that since the notice dated 28-4-19511 (Ex. P. 6) under Section 80, Civil Procedure Code, addressed to the G.I.P. Railway and a copy of that letter (Ex. P. 20) addressed to the East Indian Railway, were addressed to the Union of India through the General Manager of the Railway, and the notices ought to have been addressed to the General Managers of the Railways concerned and not the Union of India, they were invalid. In our opinion the description is not fatal in the present case, since the notices were actually received by the General Managers. The words, 'Union of India' were pros bably inserted in the notices on the impression that a suit was to have been filed against the Union under Section 79 of the Civil Procedure Code. That may be at the most an irregularity but it does not affect the validity of the notices.
8. The other objection taken in this behalf was that there was variance in the description of the plaintiff in the notices under Section 80 of the Civil Procedure Code and the plaint. The only difference between the two descriptions is that whereas the notices were sent by the Imperial Tobacco Co. of India Ltd., having its registered office at Calcutta, the plaint described the plaintiff as 'The Imperial Tobacco Company of India Ltd., Calcutta, Through Shri Santhanu Ray, Depot Manager, Jabalpur'. In our opinion, this does not make any material difference in the description of the plaintiff.
In effect, it is the Imperial Tobacco Company of India Ltd., Calcutta, which served notices under Section 80 of the Civil Procedure Code and also filed the suit. A corporate body like a Company has to act through one of its officers duly authorised. Therefore, merely adding the name of the duly authorised officer in the plaint does not change the description of the plaintiff and it cannot be said that there is variance between notice and the plaint on that account.
9. The learned counsel for the appellants next urged that no decree should have been passed against the then G.I.P. Railway which is now the Central Railway. He invited our attention to two documents (Ex. D. 3) and (Ex. p. 8), which showed that only 68 cases had been delivered to the G.I.P. Railway and one more case in a damaged condition was subsequently delivered. Therefore, the learned counsel contended that the responsibility was that of the former Bengal Nagpur Railway now known as Eastern Railway.
The learned counsel for the respondent agreed that no decree need be passed against the G.I.P. Railway under these circumstances. He, however, urged that the costs of the G.I.P. Railway should in no case be saddled on the plaintiff on account of this concession as both the defendants failed to disclose as to how the consignment was dealt with, while in transit, in spite of notices under Section 77 of the Railways Act and Section 80 of the Civil Procedure Code. We agree and hold that the Central Railway (formerly G.I.P. Railway) would not be entitled to any costs, although the suit should be dismissed against it.
10. The learned counsel for the appellants next urged that the trial Court had erroneously fixed the quantum of damages on the basis of the plaintiff's price list (Ex. P. 13). The said document is the price list maintained by the plaintiff Company for whole-sale and retail sales by the Company's offices at all places throughout the country. The plaintiff only claimed whole sale price on the basis of the said price list. The learned counsel for the appellants urged that the price prevalent at the station of delivery was to be the correct basis for assessing damages. We accept his contention, but on the basis of that the price prevailing at Jabalpur would be the retail prices, which would be more than the whole-sale prices mentioned in Ex. P. 31. As such it cannot be said that the plaintiff failed to prove the price prevalent at the station of delivery. We hold that the trial Court adopted the correct basis for the assessment of the damages in the present case.
11. Lastly the learned counsel for the appellants made a grievance that the loss occurred due to theft in a running train and that the trial Court was not justified in refusing the defendants an opportunity to examine the Guard of the train concerned and the Assistant Station Master of the Station to prove whether the theft was detected. The learned counsel invited our attention to the order sheet of the trial Court dated 2-2-1955, on which date the defendants filed an application for adjournment.
We do not think that the defendants were entitled to an adjournment, because the witnesses required, that is the Guard and the Assistant Station Master, had not been summoned or predicted. Prima facie, the alleged theft in a running train could not be said to be an occurrence beyond the control of the defendants. Under Section 72 of the Railways Act, the defendants' liability was that of a bailee and there is nothing on record to indicate that the theft, if any, took place in spite of proper precautions on their part. It is therefore, not possible to accept the appellants' plea that they were not liable for the loss.
12. The decree passed by the trial Court is, therefore correct and is upheld. The appeal accordingly fails and is dismissed with costs, so far as the second appellant is concerned. As regards the first appellant, the appeal is allowed, but there shall be no order as to costs.