M. Anantanarayanan, C.J.
1. The only point involved in this revision petition is a very short question of limitation relating to Section 78-B of the Indian Railways Act, 1890.
2. The admitted facts are that the consignor booked the goods in question, for transit by the Railway, on 28th August, 1963, and delivered the goods for such transit at Erode, the destination being Ahimanpur in North India. We have no means of ascertaining whether the goods ever reached the destination, Ahimanpur, or not. But the consignor, finding that the consignee never reported delivery, wrote a letter on 31st December, 1963 to the Station Master at Ahimanpur, enclosing the relevant railway receipt, and asking that Station Master to re-book the goods back to Erode. This letter was never acknowledged by the Station Master, and, apparently, no action was taken thereon. On 11th April, 1964 and 25th April, 1964, the consignor wrote further letters to the same Officer, but they were in vain. Ultimately, on 14th May, 1964 the consignor made a formal claim to the Chief Commercial Superintendent, and there was a letter in reply to the effect that the further records, if any, might be sent for investigation, but that the reply was without prejudice to the rights of the Railway. Ultimately, after notice under Section 80, Civil Procedure Code, the suit was instituted for recovery of the goods valued at below Rs. 250. The defence that I am now concerned with, is the plea of the bar of limitation under Section 78-B.
3. On the facts, as stated above, the bar would clearly appear to be applicable. It is impossible to take any other date, as the date of delivery of the goods to be carried by the Railway Administration, within the meaning of Section 78-B, Sub-clause (a) except the date 28th August, 1963. In this connection, learned Counsel for the respondent has relied on a decision of the Division Bench of the Assam High Court in Amarchand v. Union of India A.I.R. 1955 Ass 221, where the learned Judges have expressed the view that the limitation could conceivably be also reckoned from the date when the goods were to be delivered, or were delivered, to the consignee. I find it extremely difficult to accept this interpretation, since the language of Section 78-B is explicit in its terms, that the relevant date must be the date when the 'goods were delivered to be carried by railway '. A further condition of difficulty here, is that we have no means whatever of ascertaining whether the goods ever reached Ahimanpur at all. The suggestion of learned Counsel for the respondent is that the goods must have reached Ahimanpur, and that the Station Master at Ahimanpur probably utilised the railway receipt which was sent to him by the consignor to seize the goods and to convert them to private use. This is a conjecture, pure and simple there is no iota of evidence in the record, on which any such inference could be supported. For the moment, I am concerned with this aspect, only to show that the date which is relevant to Section 78-B Sub-clause (a), on the facts of this case, can only be 28th August, 1963 and could be no other date.
4. That much being conceded, it would be obvious that the limitation under Section 78-B expired on 28th February, 1964. Since the notice, Exhibit A-3 was on 14th May, 1964, the suit would be barred. It is not in dispute that under Section 140 of the same Act there are requirements, stated in detail, for service of notice of claim on the Railway administration, and, there are notification published by the railway concerning the authorities to whom any such demand, enquiry or claim could be made. In the present case, on the facts, prior to 14th May, 1964, there was no notification of claim or complaint or enquiry, either within the meaning of Section 78-B itself, or the proviso to that section, to any one who could validly represent any of the Railway Administrations, involved, under the Rules. The inference is, therefore, inescapable that, strictly, as a matter of law applicable to the facts, the claim is time barred.
5. But learned Counsel for the respondent further contended that this is a case in which it should be held that there has been a waiver of the plea of limitation, under circumstances, similar to those in South Indian Co-operative 'Stores v. Union of India : AIR1957Cal17 , where the learned Judges came to the conclusion that there had been a waiver. It is stated that this decision has also been approved in a subsequent decision of the same High Court. But, unfortunately for the respondent, this is not a case in which the Chief Commercial Superintendent contented himself merely with a reply that the claim was not valid on the merits, without any reference to the plea of limitation, as in the Calcutta case. This is a case in which the reply is to the effect that further enquiry will be made, on certain documents being received, but that was without prejudice to the legal rights of the Railway Administration. That definitely precludes, in my view, any inference of any waiver of limitation on the facts of this case.
6. For these reasons, the revision petition by the Railway will have to be allowed, and the decree in the Small Cause suit will have to be set aside, as the suit was barred by limitation.
7. Having said so far, I must add that this is eminently a case in which the Railway should meet the actual value of the goods which are untraced or untraceable, as a matter of public policy, and as a matter of the obligation of the Railway to the citizen who consigned the goods through the Railway. The Railway is a legal entity, like any similar organisation, and is entitled to all defences at law, including a plea of limitation. But, as carriers, the Railway Administrations have specific obligations, both under the common law and under special enactments, to safeguard the goods entrusted to them for transit, with reasonable diligence to deliver them to the consignee and, if there has been delay, to take note of the correspondence from the consignor, and take due action thereon. In this vital aspect, there would appear to be some negligence, in this case, at least on the part of the subordinate Railway officials concerned, such as the Station Master of Ahimanpur, to whom the Railway Receipt was sent by the consignor by registered post. It is difficult now to ascertain what has happened to the goods, but, obviously, they are untraceable. The actual value of the goods is not an appreciable amount, and, in any event, it does not exceed about Rs. 220 or Rs. 230. This is eminently a case in which the loss sustained should be made good by the Railway Administration, though, on principle, I must upheld the technical plea of limitation argued in this case.
8. Parties to bear their own costs throughout.