P. C. Pandit, J.
1. Shiv Chand, proprietor of Shiv Chand Aggarwal Steel Re-rolling Mills, Tanda Road, Jullundur City, carried on the business of re-rolling steel and iron scraps in his Mill. He was allotted 195 tons 8 cwt. 2 qrs. 24 Ibs. steel scrap rail pieces for re-rolling by the Iron and Steel Controller, Calcutta. On 20-12-1952 the Divisional Operating Superintendent, Kalyan (Bombay) consigned to the plaintiff 124 tons 3 owts and 19 Ibs. of steel scrap rail pieces from Kalyan (Centra! Railway) to Jullundur City (Northern Railway). When the goods reached their destination, namely, Julundur City, the Northern Railway charged freight at III Class rates, being Rs. 3/3/8 per maund for the said goods on the ground that it was not scrap Iron but they were steel rails. Shiv Chand consequently, brought a suit against the Onion at India through (1) the General Manager, Central Railway, Bombay, and (2) the General Manager, Northern Railway, Delhi, for the recovery of Rs. 6,362/1/-, which, according to him, had been illegally charged by Ihe Railway authorities. His allegations were that the Railway could charge freight for the said goods at W.L.C. rates, applicable to Iron and steel scrap, being Rs. 1/5/3 per maund. According to this rate, the defendant had overcharged the amount sued for. It was slated in the plaint that although, underthe law, no notice was necessary, still the plaintiff had served the defendant with notices under Section 77 of the Indian Railways Act and Section 80 of the Code of Civil Procedure before filing this suit.
2. The suit was resisted by the defendant on a number of pleas but in the present appeal we are concerned only with one of them, namely, that no notices under Section 77 of the Indian Railways Act and Section 80 of the Code of Civil Procedure were ever served on the General Manager, Central Railway Administration and, therefore, the suit was not maintainable against the Central Railway Administration. It was also pleaded that the Northern Railway Administration could not be held liable under any circumstances, because the contract for the carriage of the goods was with the Central Railway Administration and the plaintiff had a cause of action, if any, against the contracting Raliway and not against the Northern Railway, which acted as the agent of the other Railway Administration.
3. The Trial Judge came to the conclusion that valid notices, both under Section 77 of the Indian Railways Act and Section 80 of the Code of Civil Procedure, were served on the Northern Railway Administration, but no such notices were served on the Central Railway Administration. He also found that the Northern Railway Administration was not liable in the present case. On these findings, he dismissed the suit. Against this decision, the present appeal has been filed by the plaintiff.
4. After hearing the counsel for the parties, I am of the view that this appeal must be accepted. So far as the question of notice under Section 80 of the Code of Civil Procedure is concerned, it has been decided by a Full Bench of this Court in Union of India v. Landra Engineering and Foundry Works, S. A. No. 598 of 1958, D/-15-12-1961 ; (AIR 1962 Punj 262) (FE), that a notice on one Railway is proper compliance with the provisions of Section 80 of the Code of Civii Procedure, because now both the Railways are being administered by the Central Government and it is that very Government which is being proceeded against and is sought to be held liable for the satisfaction of the plaintiffs claim.
5. As regards the service of notice under Section 77 of the Indian Railways Act, a Division Bench of the Madras High Court consisting of P. V. Rajamannar, C. J. and Ganapatia Pillai, J. in Narayanaswaml Iyer v. Union of India, AIR 1960 Mad 58, has held as under:-
'One notice under Section 77 to a General Manager of one Government railway concerned in the route over which through traffic passed will be sufficient because all the railways over which the traffic passed, are owned by the Central Government. In the absence of any specific enactment either in Section 77 or in Section 140, indicating the particular General Manager, to whom notice ought to be given in a case of through traffic carried over more than one zonal unit of the Government railways, notice to any one j such General Manager is sufficient compliance with these provisions.'
This authority was followed by Mahajan, J. in M/s. Amin Chand Bhola Nath v. Union of India, Second Appeal No. 920 of 1956, DA 21-12-1961. Learned counsel for the respondent, however, submitted that the view taken by the Madras Division Bench was not correct but that of the Orissa High Court in Fagumani Khuntia v. Dominion of India, AIR 1956 Orissa 29, was correct, where it was observed thus:
'Each Railway administration is a separate entity end a different legal person capable of suing and being sued Independently. Notice against the one Railway administration of the claim of the plaintiff is not, therefore, sufficient compliance of the provisions of Section 77 to constitute a notice against the other Railway administration.'
But he has not been able to convince us with his arguments. As at present advised, I am of the opinion that the view taken by the Madras Bench is correct. It is pertinent to mention that this view has been given effect to by the Legislature by introducing Section 78-B by the Indian Railways (Amendment) Act (39 of 1961), which is in the following words-
'Section 78-B. A person shall not be entitled to a refund of an overcharge in respect of animals or goods carried by railway 01 to compensation for the loss, destruction, damage, deterioration or non-delivery 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-
(a) to the railway administration to which the animals or goods were delivered to be carried by railway, or
(b) to the railway administration on whose railway the destination station lies, or the loss, destruction, damage of destruction occurred.
Within six months from the date of the delivery of the animals or goods for carriage by railway:
Provided that any information demanded or inquiry made in writing from, or any complaint made in writing to, any of the railway administration mentioned above by or on behalf of the person within the said period of six months regarding the non-delivery or deiay in delivery of the animals or goods with particulars sufficient to identify the consignment of such animals or goods shall, for the purposes of this section, be deemed to be a claim to the refund or compensation.'
Therefore, the service of notice on one Railway Administration was sufficient compliance with the provisions of Section 77 of the Indian Railways Act.
6. Admittedly, valid notices, both under Section 77 of the Indian Railways Act and Section 80 of the Code of Civil Procedure, were served on the Northern Railway Administration and even if no such notices had been served on the Central Railway Administration, the suit cannot be dismissed on this ground, because the proper service on one Railway Administration alone is sufficient compliance with the provisions of Section 77 of the Indian Railways Act and Section 80 of the Code of Civil Procedure. The suit can now proceed on merits.
7. In veiw of what .1 have said above, this appeal is accepted, the judgment and decree of the trial Court are set aside and the case is remanded to the trial Court for decision on merits. Costs will abide the event.
8. Since the suit was dismissed on a preliminary objection and that decision is being reversed the court-fee on appeal will be refunded to the appellant.
9. Patties have been directed to appear before thetrial Court on 26-2-1962.
D.K. Mahajan, J.
10. I agree.