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Dharamsi Liladhar Vora Vs. Union of India (Uoi) - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberCivil Revn. No. 1928 of 1950
Judge
Reported inAIR1952Cal439,55CWN665
ActsCode of Civil Procedure (CPC) , 1908 - Section 80; ;Railways Act, 1890 - Section 77
AppellantDharamsi Liladhar Vora
RespondentUnion of India (Uoi)
Appellant AdvocateNilkantha Chatterjee, Adv.
Respondent AdvocateAjoy Kumar Basu, Adv.
Cases ReferredRadha Shyam v. Secretary of State
Excerpt:
- .....made; whereas the service of notice under section 80 fixes a period of two months within which no suit on the claim mentioned in , the notice can be brought. if the notice given is within the limits of time taken from either end it may well comply therefore in this respect with the purposes both of section 77 of the railways act and section 80 of the civil procedure code. the notice under section 80 must of course be a notice indicating that a suit will be brought. the cause of action is to be stated. it may be, in some cases, that a notice under sec. 77 could not, by any reading of its contents, be said to comply with the requirements of section 80. but in the present case, as i have indicated, the terms of the notice sent do comply with the requirements of section 80, and if in fact.....
Judgment:
ORDER

Roxburgh, J.

1. This is a Rule against an order of the Full Bench of the Calcutta Court of Small Causes upholding a decree of the trial Judge dismissing the plaintiff's suit. The plaintiff's suit was filed on December 21, 1948, against the Governor-General of the Dominion of India. His claim is in respect of loss, non-delivery, or destruction of two consignments valued at Rs. 187/8/-. The goods were despatched from a station on the, Bombay Baroda and Central Indian Railway to Calcutta to be delivered by the Bengal Nagpur Railway.

2. Both the lower Courts have dismissed the suit on the ground that no notice under Section 80 of the Code of Civil Procedure has been served. The only notices proved are Ex. 4, copy of notices sent by registered post to the General Managers of each of the two Railways, dated July 21, 1948, with the accompanying acknowledgment due from the General Manager of each Railway. Besides these notices another notice was sent on August 12, 1948, addressed to the Governor-General of India in Council, through the Secretary to the Government of India, Railway Department, (Railway Board, New Delhi). In the trial Court, the last notice was referred to as a notice under Section 80, and the others as notices under Section 77 of the Indian Railways Act. The former has been rejected as not being a valid notice under. Section 80, on the ground that it was sent to the Governor-General through the Secretary to the Government of India in New Delhi, whereas, Under Section 80 as it stood at the date when the notice was sent, the notice was required to be delivered to the General Manager of each Railway. In the trial Court it was urged that the other notice which was served on both the General Managers could be accepted, both as a notice under Section 77 of the Railways Act, as well as a notice under Section 80 of the Code of Civil Procedure. So far as the question of limitation is concerned, the notice was timely under both the sections. In other words, it was served within six months of the date when the goods could have been expected to be delivered, and was thus within time under Section 77, and the suit was brought on December 21. 1948, well over two months after the notices were served.

3. The lower Courts have not .accepted the contention that this notice can be accepted. both as a notice under Section 80, and also notice under Section 77 of the Railways Act. Even as a notice under Section 77, it is open to comment, in that the wording of the notice is to the effect that it appears to make a reference to some previous notice under Section 77. It runs:

'We hereby beg to draw your attention to the notice under Section 77 of the Indian Rail-ways Act of the loss, non-delivery and destruction of the above consignment putting us to loss and damages amounting to Rs. 187/8/- altogether.'

Details of the railway receipts and the stations are given above at the heading of the notice. However, it seems to me that the Courts are right in holding that the paper does comply with all the requirements of Section 77 of the Railways Act, giving notice of the claim and being made within six months of the operative date.

4. The question then is whether the same notice also complies with the requirement of Section 80. The notice specifically goes on to say:

'Please take particular notice that unless the said goods or the value thereof is delivered or paid to us within 7 days from the receipt of this notice we shall............legal proceedings...............without further reference and hold you liable for the abovementioned amount plus all charges on it. (the carbon copy is not clearly legible in part).'

5. Now, this notice includes, in my opinion, all the elements required by Section 80 of the Civil Procedure Code. The cause of action is clearly stated. The name and address of the plaintiff is stated and intimation is given that, a suit will be filed. The Full Bench has rejected the paper on the ground that the name and address of the plaintiff is not given. The record shows that, in fact, the Bengal Nagpur Railway replied to the notice in question on January 28, referring specifically to the letter dated July 21, and giving the various particulars contained therein, incidentally stating that the goods were at Howrah lying undelivered. Only the plaintiff's carbon copy of the document in question is proved. This contains the name of the plaintiff's firm and address. The Railways have not produced their copies. It is quite patent that the copies received by the Railway must have included the plff's firm name and address, and the reason given by the Full Bench for their rejection of them is quite untenable.

6. It is suggested before me that, because the notice contains a threat to bring proceedings unless the claim is made good within seven days, it was not a good notice under Section 80. I do not think that a statement, in a notice under Section 80, implying that proceedings would not be brought if the claim was satisfied, can in any way detract from its value as a notice under Section 80. A part of the object of the provisions of the section is to give the receipient of a notice an opportunity to consider whether to accept the claim or not.

7. The only question then that remains is whether it is essential that notices under Section 77 of the Railways Act, and Section 80 of the Civil Procedure Code must be written on separate pieces of paper and must be specifically labelled with their descriptions. I do not think that this is essential. The Full Bench has disposed of the argument by saying that the purpose of the two sections are quite different. The main difference between the two sections of course Is that, under Section 77 of the Railways Act, the party is barred from ever being able to recover the claim unless notice is given to the Railway within a certain period of the occurrence in connection with which the claim is made; whereas the service of notice under Section 80 fixes a period of two months within which no suit on the claim mentioned in , the notice can be brought. If the notice given is within the limits of time taken from either end it may well comply therefore in this respect with the purposes both of Section 77 of the Railways Act and Section 80 of the Civil Procedure Code. The notice under Section 80 must of course be a notice indicating that a suit will be brought. The cause of action is to be stated. It may be, in some cases, that a notice under Sec. 77 could not, by any reading of its contents, be said to comply with the requirements of Section 80. But in the present case, as I have indicated, the terms of the notice sent do comply with the requirements of Section 80, and if in fact it had been labelled as a notice under Sec. 80, I do not think there would have been any argument that it was not a proper notice under the section. That one paper may serve the purr pose of both the sections in certain circumstances has been held in. the case of 'Radha Shyam v. Secretary of State', 44 Cal 16, though in that case it was held that the notice served as a notice under Section 80 also could be treated also as a notice under Section 77 of the Railways Act.

8. As a result of the amendment to Section 80 of the Civil Procedure Code, it so happens that notices under each of the sections are required to be served on or delivered to, in the case of claims in respect of loss on a State Railway, the same person, namely, the General Manager of the Railway. Hence, if the con-tents of the paper giving notice fulfil the requirements of both sections as is the case here, and are correctly delivered, I consider that duel notice has been given thereby under both the sections.

9. The result is that I make the Rule absolute and return the case to the trial Judge for disposal on the merits. The petitioner is entitled to his costs of this Rule.


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