Renupada Mukherjee, J.
1. The appellant of this appeal is the Union of India representing two Railway Administrations, namely, the East Indian Railway and the East Punjab Railway, which are now known respectively as the Eastern Railway and the Northern Railway.
2. The suit was originally instituted by the plaintiff-respondent who carries on business under the name and style of the Associated Commercial Corporation at 7, Swallow Lane, Calcutta, in the High Court for recovery of a sum. of Rs. 63,576/- as price of 883 cases of tinned bacon, each case containing 36 tins of two pounds each. The case of the plaintiff was that from out of a consignment of 3349 cases, the Railway Administrations could not give delivery of 883 cases. The facts of the case will appear in larger details in the body of the judgment. For want of jurisdiction the High Court passed an order dismissing the suit On 10th September, 1952 and on the same day the plaint was re-filed in the First Court of the Subordinate Judge at Howrah.
3. A defence was filed by the Union of India contesting the suit on various grounds which shall be indicated presently.
4. The suit was decreed in part for a sum of Rs. 63,360/- on account of price of 880 eases of tinned bacon. An appeal was preferred by the Union of India from the judgment and decree passed by the trial Court.
5. Before we indicate the points in controversy raised in this appeal, we may set out the following undisputed facts of this case :
The plaintiff, who is the sole proprietor of a firm dealing in food-stuff and provisions, purchased a large quantity of tinned bacon from the Military Department as disposal goods and consigned 3349 cases of tinned bacon on 14th July, 1948, from railway station Harbanspura on the North-Western Railway in Pakistan for delivery to the plaintiff at Howrah railway station within Indian Union. These cases were loaded in five wagons which were to be carried through over the railways of the two countries, namely, Pakistan and Indian Union.
6. Three of the wagons containing as many as 2052 cases were unloaded at Howrah on 3rd August, 1948 and the cases were duly made over to the plaintiff on proper receipt. The fourth wagon which contained 503 cases reached Howrah on 12th December, 1948. Out of those cases, 53 cases were found broken and smashed and after re-arranging and re-packing them, two cases were found to be short. Out of 501 cases which were capable of delivery, the contents of 84 cases were found to be unfit for human consumption by the Health Officer of Howrah. So they were not delivered to the plaintiff and the balance of 417 cases was duly made over to the plaintiff by the Railway Administration at Howrah, There was thus a total shortage of 86 cases from out of the contents of the 4th wagon.
7. The fifth and last wagon contained 794 cases. This wagon arrived at Howrah on 26th May, 1949, but some packages having been broken and smashed in transit, 788 cases were available for delivery. Information was given to the plaintiff by the Railway Officers to take delivery of these packages, but the plaintiff refused to take delivery of the goods on the allegation that the contents had deteriorated to such extent that they had become unfit for human consumption.
8. As we have already said liability was denied on behalf of the Railway Administrations on various grounds. The Court below passed a decree at the rate of Rs. 72/- per case for 880 cases -- the shortage being 86 cases from the contents of the 4th Wagon and 794 cases which constituted the entire contents of the 5th wagon. (9) Mr. Pramatha Nath Mitra, who argued the appeal on behalf of the appellant Union of India, raised 3 principal contentions before us :
(1) He submitted that notice under Section 77 of the Indian Railways Act was not served on the proper person, namely, the General Manager, and so the notice was bad in law.
(2) A notice which purports to have been served on the General Manager of the EasternRailway was served more than six months after the goods had been delivered at the receiving, station and so the suit is barred by limitation.
(3) The goods had already deteriorated and become unfit for human consumption even before they were booked for carriage at the starting station in Pakistan and so the plaintiff is not entitled to recover any compensation.
10. We shall first of all take up those two contentions of Mr. Mitra which relate to the service of notice under Section 77 of the Indian Railways Act. In this connection, the argument submitted by Dr. Gupta on behalf of the plaintiff-respondent was that the provisions of Section 77 of the Indian Railways Act do not apply to the facts of this particular case and so the question of the validity of such a notice or the question of the competency of the suit arising out of the service of such a notice after a period of six months from the date of delivery of the goods to the receiving railway does not arise. From what we are going to say presently it will appear that we are in agreement with the view of Dr. Gupta that no notice under Section 77 of the Railways Act was required to be served in this particular case and so the question of the validity of such a notice in any form does not arise. If this had not been our view then it would have been necessary for us to refer the matter to a Full Bench. The only apparently valid notice which was served in this case under Section 77 of the Indian Railways Act was served on the Chief Commercial Manager of the East Indian Railway. This notice is dated 30th November, 1948 (Ex. 7). The two other notices one of which purports to have been served on the Chief Commercial Manager of Eastern Punjab Railway (Ext. 1 (c)) and the other on the General Manager of East Indian Railway (Ext, 1) are respectively dated 2nd February, 1949 and 3rd February, 1949. It is clear that these two notices were given after the expiry of a period of six months from the date when the goods were delivered to the receiving railway in Pakistan for carriage to Howrah. Necessarily, the plaintiff-respondent had to fall back on the notice marked Ext. 7 which, as we have already said, was given to the Chief Commercial Manager of East Indian Railway. There is a sharp conflict of judicial opinion in our High Court as to whether a notice of a claim given under Section 77 of the Indian Railways Act upon the Chief Commercial Manager is valid in law. This conflict has been pointed out in a decision reported in Gajanan Dhanuka v. Union of India, : AIR1959Cal215 , to which I was a party. Separate judgments were delivered in that case by Banerjee, J. and myself, In the judgment which was delivered by myself, I pointed out the above-mentioned divergence of judicial opinion. It is my personal view that a notice under Section 77 of the Indian Railways Act should he served on the General Manager in the absence of any delegation of authority by that official. The necessity for referring the matter to a Full Bench is obviated on account of our view that in the presenti case it was not necessary to serve any notice under Section 77 of the Indian Railways Act at all.
11. Section 77 of the Indian Railways Act runs in the following terms :
'A person shall not be entitled to a re-fund 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 six months from the date of the delivery of the animals or goods for carriage by railway.'
The section requires that before making a claimon account of the loss, destruction or deterioration of his goods, the consignor must prefer a claim in writing to the Railway Administration within six months from the date of the delivery of the goods for carriage by railway. The expressions 'Railway Administration' and 'Railway' can only refer to railway systems carrying on business within Indian Union and not to any foreign railway administration or foreign railway. In this particular case the goods were delivered for carriage to a railway which is situate in Pakistan. That being the case, the provisions of Section 77 of the Indian Railways Act are not, in our opinion, attracted to the facts of the particular case.
12. Mr. Pramatha Nath Mitra contended on behalf of the appellant Union of India that the above view is not sound, inasmuch as the Railway Administration of the Union of India, namely, the Northern Railway, received the goods as bailee from Pakistan Railway which operated as an agent of the consignor for the purpose of appointing the Indian Railway as bailee of the consignor. Mr. Mitra contended that there was delivery of the goods to the Indian Railway and so the plaintiff-respondent should have given the statutory notice under Section 77 of the Indian Railways Act. In this connection, Mr. Mitra drew our attention to a decision of the Supreme Court reported in Union of India v. Amar Singh, : 2SCR75 . The facts involved in that casewould show that the consignor despatched some goods from a railway station in Pakistan, namely, Quetta, for despatch to New Delhi in India. A part of the route lay through Pakistan and the remaining part lay through the Union of India. In the course of the judgment delivered by theirLordships of the Supreme Court, it was observed as follows :
'In the absence of any contract betweenthe two Governments or the Railways, the legal basis on which the conduct of the respondent and the Railways can be sustained is that therespondent delivered the goods to the Receiving Railway with an authority to create the Forwarding Railway as his immediate bailee from the point the wagon was put on its rails.'
13. Mr. Pramatha Nath Mitra contended that the Indian Railway which received thegoods in the present case at the border station of Atari, acted as bailee of the consignor appointed by an implied authority from the consignor and so it should be Held that the goodswere delivered to the bailee on behalf of theconsignor. We are not prepared to accept this argument of Mr. Mitra, because Section 77 of the Indian Railways Act presupposes and postulates only one delivery and that delivery takes place at the time when the owner parts with his possession of the goods and makes them over to the receiving railway. Whatever delivery was given in the present case by the plaintiff-respondent was given in Pakistan and there was no fresh delivery of the goods to the forwarding railway at the border station within the meaning of Section 77 of the Indian Railways Act. That being so, the provisions of Section 77 are not attracted to the facts of the present' case.
14. Mr. Mitra contended in the above connection that from the case cited above it would appear that notice had been given under Section 77 of the Indian Railways Act and their Lordships of the Supreme Court did not lay down that such a notice was unnecessary. It is true that from paragraph 6 of the judgment it would appear that notice had, as a matter of fact, been given by the plaintiff of that suit, but the question whether such a notice was necessary or not was not canvassed or decided in that suit by the Supreme Court and their Lordships did not allow the appellant Union of India to reopen the question of notice at all. In these circumstances, the Supreme Court decision cannot be regarded as an authority for the proposition that a notice under Section 77 is required to be served upon the forwarding railway within the Union of India where the goods have been delivered to a foreign railway for the purpose of carriage.
15. In the above connection a question-was canvassed before us as to whether any of the provisions of the Indian Railways Act apply to a case of this description where the goods are received for carriage by a foreign, railway, but damages are sought to be realised from a railway within the Union of India. The decision of the Supreme Court itself would show that the relation between the consignor and the Indian Railway in a case like this is one of bailor and bailee and that relation is established by the conduct of three parties, namely, the consignor, the foreign railway and the Indian Railway. The railway receipt which is given by the foreign railway is not an operative document between the consignor and the Indian Railway. No document of any kind is executed between the consignor and the Indian Railway when the latter takes charge of the goods for carriage over a part of the route. In these circumstances, it is difficult to say that the provisions of the Indian Railways Act would apply at all as between the consignor and the Indian Railway. Mr. Mitra, however, pointed out a passage from paragraph 16 of the judgment of the Supreme Court wherein it has been said that the liability of the forwarding railway, that is, the Indian Railway, is governed by Section 72 of the Act. In the same paragraph, however, it has been laid down by their Lordships of the Supreme Court as follows :
'The question, therefore, reduces itself to an enquiry whether, on the facts, the Forwarding Railway observed the standard of diligence required of an average prudent man.'
In other words, the learned Judges of the Supreme Court have equated the liability of the Indian Railway with the liability of a bailee. In the present case, we are not confronted with the question as to whether any other provisions of the Indian Railways Act excepting the provisions of Section 77 ate applicable to a case of the present description. Suffice it for Our present purpose to say that Section 77 has no application and so it was not necessary to serve any notice under any of provisions of the Indian Railways Act. That being the case, the first two points raised on behalf of the appellant by Mr. Mitra must fail.
16. The third and last argument advanced on behalf of the appellant by Mr. Mitra was that the goods had already deteriorated and become unfit for human consumption before they were booked for carriage at the receiving station and so the plaintiff respondent is not entitled to recover any damages. We have examined this contention of Mr. Mitra fully with due reference to the facts of the case and we are unable to accept it. (After discussion of evidence His Lordship proceeded:)- That being so, it will not be permissible for the appellant to say that the goods had already deteriorated and become unfit for human consumption before they were des-patched by the plaintiff-respondent. We hold that the inordinate delay which took place in transit was responsible for the deterioration of the goods.
17. In the above connection, Mr. Mitra also argued that as the goods were available for delivery, the plaintiff-respondent should have taken delivery of them and then sued for damages after assessment of the same. This contention is also not acceptable because the plaintiff-respondent had caused samples to be taken and the examination of the samples by the firm of Lardner North and Co, showed that the goods were not fit for human consumption. In these circumstances the plaintiff was justified in refusing to take delivery of the goods which had become entirely valueless.
18. All the points raised on behalf of the appellant having failed, we dismiss this appeal with costs to the respondent.
N.K. Sen, J.
19. I agree.