Bijayesh Mukherji, J.
1. This is a rule under Section 25 of the Provincial Small Cause Courts Act, obtained by M/s. Brooke Bond India (Private) Ltd., whose suit raised on July7, 1965, for recovery of Rs. 203,95 on account of excess freight realized on May8, 1962, by the Commissioners for the Port of Calcutta and the South Eastern Railway, for a certain consignment from KP docks to Ghatkesar via Nagpur, a distance of 1736 kilometres, fails before a learned Judge of the small causes court at Alipore. It fails, not on merits of the claim, but on the sole ground that the notice under Section 77 of the Railways Act, 9 of 1890, was served on the Refunds Officer of the South Eastern Railway, not on the General Manager. On merits the learned Judge indeed finds as a fact that 'excess freight of Rs. 203.95 was realized by the defendants ..... due totheir miscalculation and negligence,'
2. The Commissioners for the Port of Calcutta, who do not enter appearance in the court below and against whom the learned Judge dismisses the suit ex parte, may be eliminated here and now.Mr. Roy Chowdhury, appearing for the petitioner, does not press the rule against them. He does not, presumably because the suit was instituted on July 7, 1965, long, long after the expiration of three months from May 8, 1962, when the cause of action for the suit arose, for which the Commissioners for the Port of Calcutta are completely protected from such suit by virtue of Section 142 of the Calcutta Port Act, 3 of 1890. Indeed in terms thereof, no suit shall be brought after the expiration of three months from the day on which the cause of action arose. So, the suit against the Port Commissioners appears to be clearly barred in limine. See Commissioners for the Port of Calcutta v. Corporation of Calcutta and Commissioners for the Port of Calcutta v. Abdul Rahim Oosman & Co., (1964) 68 Cal WN 814=1964 Cal LJ 56.
3. The section to go by, in the context of this litigation, rested on a booking dated May 8, 1962, is not Section 77, which the learned Judge and the parties go by in the court below, but Section 78B, as Mr. Basu, appearing for the opposite party Railway submits, and rightly in my judgment. Section 78B is a new section inserted by the Railways (Amendment) Act, 1961. It replaces the old Section 77. But that does not matter. What matters is the requisite written notice of claim to a refund of an overcharge to the railway administration. Such written notice is very much here, but to the Refunds Officer, not to the Railway administration which, in terms of Section 140, read with Section 2(6), means the Manager, that is, the General Manager, or the Chief Commercial Superintendent. The Refunds Officer is neither. And the seed of the controversy lies here. The Judge holds --and Mr. Basu supports him -- that a notice as this is bad at law and must lead to the dismissal of the suit. Mr. Roy Chowdhury refers to a pamphlet of 1958, captioned: Principal Rules and Procedure for the Preferment and Disposal of Claims on Railways, published under the authority of the Ministry of Railways, and priced at 15 paise, at page 14 of which occurs Appendix B, the heading of which is:
'Designation and Address of Officers who may receive notice of claims for compensation or refund within their respective jurisdictions.'
and page 15 of which under Appendix B bears inter alia:
South Eastern Railway.
1. The General Manager,South Eastern Railway, Calcutta.
2. The Chief Commercial Superintendent (Claims), 1 Royal Exchange Place, Calcutta-1.
3. The Refunds Officer , 23 Canning Street, Calcutta.
4. All Claims and Traffic Inspectors and Station Masters enumerated in Appendix D for claims below Rs. 50 per consignment arising after granting open delivery.
That being so, Mr. Roy Chowdhury concludes, here is clear proof of the Refunds Officer being authorized to receive notice of claim for refund, and the petitioner's notice cannot go down as bad at law.
4. Such then is the lie of the controversy which Mr. Basu wants to be resolved in his favour by very various contentions noticed and answered, one by one, in the following lines.
5. First: go strictly by Sections 78B and 140 and hold that a notice of claim to an officer other than the Manager or the Chief Commercial Superintendent (as here) falls short of the requisite notice the statute contemplates. Without more, certainly I may hold so. But there is a lot more here. The very publication referred to above, issued under the high authority of the Ministry of Railways and made available to the public at 15 paise each, announces to all concerned in unmistakable terms that the Refunds Officer is one who may receive notice of claims for refund. When the highest authority in the railway administration, namely, the Ministry of Railways, makes such a public announcement 'for the guidance of the public', as Rule 2 thereof, at page 1, says, to go strictly by Sections 78B and 140 will be to make a fetish of them both. The sanctity attached to these provisions is not denied. What is denied is that when the highest authority in the railway administration makes a public announcement that a notice of claim to the Refunds Officer is too good, the court is not at liberty to depart from their rigour. In the circumstances, such a one is held out as the agent of the Manager or the Chief Commercial Superintendent. That is the way I go, not the way of waiver Mr. Roy Chowdhury likes me to go, quoting South Indian Co-operative Stores Ltd v. Union of India : AIR1957Cal17 and Gajanan Dhanuka v. Union of India : AIR1959Cal215 to cite but two authorities, out of so many, which cluster round the subject. The way of waiver I do not go, because of the decision of a Full Bench of this Court in Bansi v. Governor-General in Council : AIR1952Cal35 : 'Such waiver must be made in the suit for refund or compensation and can-not be prior thereto.' Still what can such public announcement by the supreme head of the railway administration, namely the Ministry of Railways, amount to, but recognition of service of notice of claim upon the Refunds Officer qua agent of the statutory authority as inorder and of no necessity of such service upon the statutory authority, namely, the General Manager or the Chief Commercial Superintendent, when it is served upon the Refunds Officer, the proclaimed ad hoc agent of either. So, this contention fails.
6. Second: if Sections 78B and 140 be made so elastic as to include even the Refunds Officer as one competent to receive notice of claim, how low will you go and where will you stop? Will a notice to a station-master or even a peon do? Where then will you draw the line? The answer to such a contention is threefold. One, far from making Sections 78B and 140 elastic, I keep them intact. All I say is: the Refunds Officer is authorized to receive a notice of claim, and that too by the highest authority in the railway administration, for whose benefit the Sections are in the statute book. And it is always open to them to nominate a person as their agent to receive the notice. Law says to the railway administration: 'I give you this protection: that you will have a prior notice of claim,' The railway administration says: 'We have nominated a certain person (here the Refunds Officer) to receive such notice on our behalf. Notice to him, our agent, is notice to us, the principal.' Will the court say then: 'No; you yourselves must receive the notice, not your agent'. A clear reductio ad absurdum. Two, I shall go as low as you go In your pamphlet or in any other authorization. Station-Masters? Yes; I shall go as low as that, but within the limits of their authority; (i) specified ones in Appendix D, (ii) claims below Rs. 50, and (iii) such claims arising after open delivery; just the limits prescribed by the Ministry of Railways (Paragraph 3 ante). Peons? That looks like an argument of despair. I reserve my comments until the Ministry of Railways has authorized them to receive notices of claims. Three, the line to be drawn is the very line on the other side of which the Ministry of Railways, the General Manager or the Chief Commercial Superintendent will not travel in authorizing notices of claims to be received. Thus, the second contention fails too.
7. Third: Rule 5 of the Principal Rules and Procedure, embodied in the pamphlet, reiterates that a notice required to be served on the railway administration must be served on the General Manager of the railway concerned, and not on any other person. So, the petitioner did serve the notice of claim on the Refunds Officer at its peril. But the very next paragraph of Rule 5 makes it clear that, touching a notice under Section 77, 'the Railway Administrations will not normally take a plea of defective notice even if the notice is served on a subordinate authority whonormally deals with such compensation claims under the local procedure in force on each Railway Administration, such as the Chief Commercial Superintendent, provided such notice is within the time limits prescribed'. So, the rule itself is the answer. The mention of the Chief Commercial Superintendent is illustrative, not exhaustive. The Refunds Officer, as the very designation implies, deals with claims for such refunds. On top of that, such a one is specifically authorized to receive notice of claims for refund. So it is not a defective notice even. Rule 5 and Appendix B stand together. Not that they run against one another.
8. Fourth: Rule 8 and Appendix A do no more than indicate the location of various claims offices to assist the convenience of the public. They do. But I am going by Rule 9 and Appendix B which list the officers competent to receive notices of claims for refunds.
9. Fifth: Rule 13 prescribes: intended only for the guidance of the public and without any statutory authority, the rules in the pamphlet must yield, in case of conflict, in favour of the Railways Act or any statutory instrument. Who has ever denied that But no conflict is there. What is there instead is a complete harmony. Sections 78-B and 140 no doubt prescribe service of notice of claim upon the Manager or the Chief Commercial Superintendent. The non-statutory rules (Rule 9 read with Appendix B) prescribe that, amongst other things, service of notice of claims upon the Refunds Officer will suffice, making such officer the ad hoc agent of the Manager, the Chief Commercial Superintendent and indeed the railway administration, and satisfying thereby the requirement of Sections 78 B and 140. Notice to an agent is notice to the principal. That is all. To get an agent, no statutory rule is needed. Even a word of mouth is enough. And here enough is enough: a solemn publication under the high authority of the Ministry of Railways.
10. Sixth: what is required is delegation or authorization by the General Manager or the Chief Commercial Superintendent but what you find here is such delegation by the Ministry of Railways. Is the Union of India, the opposite party before me, then disowning its Ministry I hope not. Otherwise the Union of India or its railway ministry will have put upon it the slur of laying a trap for the unwary public with a view to defeating their legitimate claims, I shall not allow a stigma as this to be put upon either, unless J am compelled to do so, upon overwhelming evidence. There is nothing like that here. At all events, such authorization stands, all concernedhaving acquiesced in it, as indeed they were bound to.
11. Seventh: at page 22 of the pamphlet, a specimen of a notice of claim is given. A sample letter as this is to the address of the Chief Commercial Superintendent. Why write then to the Refunds Officer The same answer: that, by Appendix B, the Ministry of Railways directs that the Refunds Officer, as also the General Manager, the Chief Commercial Superintendent and others, shall be competent to receive notices of claims Hence, the notice of claim in the case in hand has been addressed so.
12. This exhausts all I have been addressed by Mr. Basu on the Principal Rules and Procedure for the Preferment and Disposal of Claims on Railways, as the heading of the pamphlet is. And it has not been possible for me to accept any one of his contentions.
13. The authorities Mr. Basu cites are no doubt there. But they are not the only authorities. Indeed, there are authorities both ways. Surendra Nath v. Governor-General in Council : AIR1952Cal341 , holds that the sending of a claim to the Chief Transportation Manager is not sufficient compliance with the then Section 77: almost just the opposite of what has been held in that well-known case, Srishtidhar Mondal v. Governor-General in Council : AIR1945Cal412 approved, for example, in Union of India v. Guiarat Tobacco Co. : AIR1955Cal448 , Mr. Roy Chowdhury refers me to, and dissented from in other cases too. In Radhamadhab Kundu v. Union of India, (1957) 61 Cal WN 433, It Is held that the requirements of the then Section 77 are satisfied if the claim is preferred in writing to the duly authorized agent of the Manager, that is, the General Manager (the Chief Commercial Manager in that easel. There the General Manager issued a public notification conferring such authority. Here the superior authority of the General Manager, namely, the Ministry of Railways, has issued the public notification. Is the difference much? Not very. In Niranjan Lall Agarwalla v. Union of India : AIR1962Cal42 , the notice under Section 77 goes down, because there is nothing to show that the Chief Commercial Manager was held out, expressly or by implication, as the officer authorized to receive the notice. In the case on hand, the Refunds Officer was expressly held out so. Mohanlal Shr lal Mohatta v. Union of India, (1965) 69 Cal WN 614 does no doubt favour Mr. Basu'e point of view. But, apart from the fact that there are authorities the other way round, what is found in the case on hand, on the basis of the pamphlet, is not modification ofthe statute, as Chatterjee, J. finds in Mohatta's case, but a clear holding out of an ad hoc agent to receive the requisite notice, satisfying thereby the requirements there-of (Sections 78B and 140), in so far as the Refunds Officer is authorized to receive such notices. The last case cited by Mr. Basu is Jiban Ram Agarwalla v. Union of India, (1965) 69 Cal WN 692, which strikes down a notice dated August 20, 1953, (long before the 1961 Amendment), under Section 77 to the Chief Commercial Superintendent who, however, was not held out by the Railway ad-ministration as authorized to receive such notices of claims, in the manner in which the Refunds Officer has been held out in the case in hand.
14. Thus, most of the authorities, Mr. Basu refers me to, cannot alter the conclusion I have come to, on the Refunds Officer having been held out by the rail-way administration as the duly authorized person to receive notices of claims for refunds. The more so, as the intention behind Section 78B (formerly Section 77) is only to afford protection to the railway, administration against fraud and not to provide means for depriving the consignors of their legitimate claims: Jethmull Bhojraj v. Darjeeling Himalayan Rly. Co. Ltd. : 2SCR832 . Such provision must, therefore, be construed liberally. Having construed it so, G. K. Mitter, J, (as his Lordship then was) held a notice In 1953 to the Chief Commercial Superintendent, an officer standing very high in the hierarchy of officials in the administration, to be good notice at law, though his Lordship's observation is in the nature of an obiter dictum, as is apparent from the concluding portion of his judgments Union of India v. Alliance Assurance Co. Ltd. : AIR1967Cal47 . The case before me appears to be so much the stronger, because of the Refunds Officer having been openly held out as the authorized person to receive the notice of claim, no less because of the railway administration having inquired into the claim in suit, presumably on the basis of the notice of claim to such a one just as the Union of India avers in paragraph 5 of its written statement:
'The defendant, however, states that enquiries regarding the suit consignment are still in progress .....'
certainly not enquiries suo motu.
15. Haying regard to the foregoing considerations, I find that the learned judge has acted, with illegality, in holding the service of notice upon the Refunds Officer to be bad at law.
16. On the finding by the learned judge that an excess freight of Rs. 203.95 has, in fact, been realized, a remit is prayed for, on behalf of the Union of India, so that it may be shown that, far from an excess freight, there has reallybeen a short law. A prayer as this is rested on the affidavit in opposition (filed here), which, again, is rested on the official publication known as the Goods Tariff. It appears to be worthy of note that the Union of India contested the suit, but led no evidence at the trial, save the notice under Section 80 of the Procedure Code (exhibit A). Worse, not even the original railway receipt, the credit note, and various other important documents called for by the petitioner on November 26. 1965, from the defendants, were produced. The Port Commissioners' letter of March 18. 1966, exhibit 4, admits erroneous realization of freight and in excess too. The oral evidence on behalf of the petitioner is there as well. In the face of all this, to direct a remit is to pamper a litigant much too much, the more so, as the explanation for having not led evidence at the trial as set out in paragraph 7 of the affidavit in opposition (that they were not ready with materials and documents), explains little save amazing negligence and incompetence. The Union of India entered appearance on August 13, 1965 and the suit was heard In April and May 1966. The remand prayed for appears, therefore, to be out of the question. The finding of fact come to by the learned judge must stand.
17. In the result, the rule succeeds so and is made absolute with costs against the opposite party Union of India only. Hearing fee--5 gold mohurs. The petitioner's suit in the Court below be decreed on contest with costs against the said opposite party Union of India only. The rule do stand discharged without costs against the other opposite party.