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Firm Deokishau Srigopal v. Union Of India (Formerly Dominion Of India) And Others
Structured Summary of the Provided Opinion
Factual and Procedural Background
The plaintiff is the firm Deokishan Srigopal, a wholesale cloth business and importer in Banaras. The dispute concerns ten consignments of cloth booked from four places in the Bombay Presidency and carried in part over the Great Indian Peninsula Railway (G.I.P.R.) and the Bombay, Baroda & Central India Railway (B.B. & C.I.R.), with the destination being Banaras on the East Indian Railway (E.I.R.). There was agreed non-delivery or short delivery in ten items; the opinion lists values for each item and identifies one item (item No. 2(a)) as non-delivery and the remainder as shortages.
The plaintiff claimed loss from the E.I.R. under Section 77 of the Railways Act and sent notices under Section 80 of the Civil Procedure Code (CPC) dated 23 November 1948 to the General Managers of the three railway administrations (E.I.R., G.I.P.R., and B.B. & C.I.R.). When the railways did not satisfy the claim, the plaintiff filed Suit No. 21 of 1949 against the Dominion of India and the railway administrations. The trial Court (First Additional Civil Judge, Banaras) decreed part of the claim — awarding Rs. 2,939 for two consignments (items Nos. 3 and 4) — and dismissed the balance of the claim. The plaintiff appealed against the balance of the decree.
Legal Issues Presented
- Whether the trial Court was correct in holding that the notice under Section 80 of the CPC was invalid for item No. 6 because the railway receipt (R/R) number was misstated (45922 instead of 45972), thereby depriving the notice of stating the cause of action.
- Whether a notice under Section 77 of the Railways Act given to one railway administration (E.I.R.), when multiple railway administrations (G.I.P.R. and B.B. & C.I.R.) were involved in through booking, suffices where all the concerned railway administrations are owned by the Dominion of India.
- Whether claims in respect of specific consignments are barred for failure to serve requisite notices on the particular railway administration on whose railway the loss occurred, under Section 80 of the Railways Act, when the plaintiff could not prove on which administration the loss occurred.
- Whether item No. 2(a) was barred by limitation.
Arguments of the Parties
Appellant's (Plaintiff) Arguments
- The non-delivery and shortages in the consignments resulted from negligence or misconduct of the Railway Administration(s), giving rise to claims under Section 77 of the Railways Act.
- Notices under Section 80 CPC were served on the General Managers of the three concerned railways on 23 November 1948; a claim under Section 77 was also made to the Chief Commercial Manager of the E.I.R.
- In the alternative, counsel argued that service of the Section 77 notice on any one of the railway administrations would suffice where all the railway administrations concerned were owned by the Dominion of India; reliance was placed on prior authority to that effect (Division Bench observations in Dominion of India v. Madan Engineering Tool Products and subsequent reliance in Jai Narain Kalloo Ram v. Union of India).
Respondents' (Defendants / Railways / Dominion of India) Arguments
- The defendants contended that valid notices under Section 77 of the Railways Act and under Section 80 of the CPC had not been served.
- They relied on protection available under Section 80 of the Railways Act (i.e., limits on suing particular railway administrations without proper notice) and contended that the suit was barred by limitation in respect of at least one item (item No. 2(a)).
- Implicitly, the defence contended that — for consignments passing over several administrations — notice should be given to each relevant railway administration (as the trial Court treated the administrations as separate units for notice purposes).
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Dominion of India v. Roop Chand, 1950 All LJ 595 | Held (as relied on by the trial Court) that a mistake in the railway receipt number could amount to not stating the cause of action and hence non-compliance with Section 80 of the CPC. | The trial Court relied on this single decision to hold the Section 80 CPC notice for item No. 6 invalid. The appellate Court noted this reliance but disagreed in view of a later Division Bench decision. |
| Harish Chand v. The Union of India, AIR 1962 All 307 (Division Bench) | The Division Bench held that an incorrect railway receipt number in a Section 80 notice does not invalidate the notice where the object of the notice is fulfilled and the cause of action in the notice is identical to that in the plaint (i.e., identity of cause of action; technical error in number immaterial if defendant could trace consignment and notice is otherwise clear). | The appellate Court considered itself bound by this subsequent Division Bench decision and applied its holding to reverse the trial Court's finding that the notice for item No. 6 was invalid. The Court held the notice to be valid under the principle in Harish Chand. |
| Dominion of India v. Madan Engineering Tool Products, First Appeal No. 161 of 1950, dated 21-12-1902 (All.) | Observed that the definition of "Railway Administration" (Section 3(6) of the Railways Act) includes the Government; where railways are owned by the Government, they may be sufficiently represented by the Union/Dominion alone, and notice to the central entity can suffice. | The appellate Court relied upon the Division Bench's observations in this case (as cited in the opinion) to conclude that a notice given to the E.I.R. would amount to notice to other railway administrations (G.I.P.R. and B.B. & C.I.R.) when all were owned by the Dominion of India, thereby validating the plaintiff's notices under Section 77. |
| Jai Narain Kalloo Ram v. Union of India, 1964 All LJ 298 : (AIR 1965 All 122) | Single Judge reliance on the principle (from the Division Bench in Madan Engineering) that where the Government is the owner, the Government may represent the railway administrations for purposes of notice and suit. | The appellate Court noted that this single Judge decision had relied upon the earlier Division Bench position; the Court used the same line of authority to support its conclusion that notice on one railway administration sufficed where ownership was common. |
Court's Reasoning and Analysis
The Court proceeded in a stepwise fashion:
- Limitation: The Court agreed with the trial Court that item No. 2(a) (non-delivery valued at Rs. 1,088-3-0) was time-barred. The trial Court's calculation showed the suit should have been instituted by 28-1-1949 whereas it was instituted on 19-2-1949; this finding was not seriously challenged and was accepted.
- Validity of Section 80 CPC notice for item No. 6: The trial Court had held the notice invalid because the R/R number was incorrectly quoted (45922 instead of 45972), relying on Dominion of India v. Roop Chand. The appellate Court stated it was bound by the subsequent Division Bench decision in Harish Chand v. The Union of India (AIR 1962 All 307), which held that an incorrect R/R number would not invalidate a Section 80 notice where the defendant was not prejudiced and the notice otherwise sufficiently identified the consignment and cause of action. On that binding authority, the appellate Court concluded that the notice for item No. 6 was not invalid and that the trial Court should not have dismissed that claim for non-compliance with Section 80 CPC.
- Effect of Section 80 of the Railways Act and sufficiency of notice to one administration: The Court analysed Section 80 of the Railways Act, explaining that where goods are booked through over two or more railway administrations a suit may be brought against (a) the railway administration to which the goods were delivered for carriage (the contracting railway) or (b) the administration on whose railway the loss occurred (if that can be established).
- Proof of the place of loss: The Court found that for seven of the remaining items (2(b), 5, 6, 7, 8, 9 and 10) the plaintiff had not proved on which particular railway administration the loss or shortage occurred. Ordinarily that failure would prevent suing the individual railway administrations (unless the contracting railway is sued).
- Common ownership and effect on notice requirement: The appellate Court then addressed the appellant's contention that service of Section 77 notice on any one of the railway administrations should amount to service on all, because the railways were owned by the Dominion of India. Relying on the Division Bench reasoning (Dominion of India v. Madan Engineering Tool Products) that the definition of "Railway Administration" (Section 3(6) of the Act) includes the Government and that where railways are government-owned the contract is with the Government, the Court held that a notice to the E.I.R. would also constitute notice to the other railway administrations in this case.
- Application to this case: Given the above, the appellate Court held that the trial Court's findings dismissing the claims for items 2(b), 5, 6, 7, 8, 9 and 10 on the ground of failure to serve notice on the respective railway administrations were incorrect. Having found the notices sufficient, and having already accepted that items 3 and 4 had been properly decreed by the trial Court (and that item 2(a) was time-barred), the appellate Court allowed the appeal in part and decreed the plaintiff's suit in respect of the listed items.
Holding and Implications
APPEAL ALLOWED.
Holding (core rulings):
- The appeal is allowed. The trial Court's dismissal of the claims in respect of items Nos. 2(b), 5, 6, 7, 8, 9 and 10 on the ground of inadequate notice was set aside; those claims are decreed in favour of the plaintiff.
- The trial Court was correct that item No. 2(a) (non-delivery valued at Rs. 1,088-3-0) was barred by limitation and that finding was upheld.
- The portion of the trial Court's decree in favour of the plaintiff for items Nos. 3 and 4 (Rs. 2,939) was not challenged and remains final between the parties.
- The Court held that an incorrect railway receipt number in a Section 80 CPC notice (item No. 6) did not invalidate the notice, applying the binding Division Bench decision in Harish Chand v. The Union of India.
- Where several railway administrations are involved in through bookings but they are owned by the same government entity, a notice under Section 77 of the Railways Act delivered to the contracting/receiving railway administration (E.I.R. in this case) can amount to notice to the other government-owned railway administrations.
Direct consequences and orders:
- The appellant's suit is decreed in respect of items Nos. 2(b), 5, 6, 7, 8, 9 and 10 with proportionate costs; parties to bear their own costs otherwise as stated in the decree.
- The decree carries dependent, late and future interest at the rate of 6% per annum simple.
- The defendants are ordered to deposit the decretal amount in the trial Court within three months; failing which the plaintiff is entitled to execute the decree.
Broader implication: The Court applied existing Division Bench authority to limit the consequences of technical errors in statutory notices and to interpret the notice requirements of the Railways Act in the context of common governmental ownership. The opinion does not indicate that it establishes a new legal precedent beyond applying and following those earlier authorities.
Disposition: Appeal allowed.
1. This is a plaintiff's appeal, against the decree of the First Additional Civil Judge, Banaras, whereby out of a claim of Rs. 6,436-14-0 only a sum of Rs. 2,939 was decreed and the rest was dismissed. The plaintiff has, therefore, filed the instant appeal about the balance of its claim.
2. There is no controversy about the facts in this case. The plaintiff-firm Deokishan Srigopal carried on whole-sale cloth business at Banaras and was also appointed as importer or cloth for the district of Banaras and in that capacity used to import cloth from places outside the Uttar Pradesh. The dispute relates to ten items of consignment which were booked from four places situate in the Bombay Presidency, which were served by the Great Indian Peninsula Railway and Bombay Baroda and Central India Railway, hereinafter called the G.I.P.R and B.B and C.I.R, respectively. Admittedly the destination station was Banaras situate on the East Indian Railway. There is also no dispute about non-delivery or short delivery of the ten consigmuents which are as follows:—
1. Short delivery valued at Rs. 563-7-0.
2. (a) Non-delivery valued at Rs. 1,088-3-0.
2. (b) Short delivery valued at Rs. 82-8-9.
8. Short delivery valued at Rs. 2,648-2-0.
4. Short delivery valued at Rs. 290-14-0.
5. Short delivery valued at Rs. 57-13-6.
6. Short delivery valued at Rs. 82-14-9.
7. Short delivery valued at Rs. 38-11-3.
8. Short delivery valued at Rs. 794-7-0.
9. Short delivery valued at Rs. 128-2-0.
10. Short delivery valued at Rs. 377-5-8.
3. The case of the plaintiff was that the non-delivery in one consignment and shortage in other consignments were due to misconduct and negligence on the part of the defendant Railway Administration. The claim under Section 77 of the Railways Act in respect of the above items was made by the plaintiff to the Chief Commercial Manager, East Indian Railway, hereinafter called E.I.R But similar claims were not lodged with the authorities concerned of the G.I.P.R or B.B and C.I.R Later on the plaintiff gave notices under Section 80 of the CPC on 23rd November, 1948 to all the General Managers of the three Railway Administrations namely, E.I.R, G.I.P.R and B.B and C.I.R calling upon them to make good the loss suffered by the plaintiff together with interest at 6 per cent per annum. However, the Railway Administrations did not pay any heed to the claim of the plaintiff; it was, therefore, obliged to file Suit No. 21 of 1949 for the recovery of Rs. 6,436 against the Dominion of India as well as the General Managers, E.I.R, G.I.P.R and B.B and C.I.R In the aforesaid suit the plaintiff did not claim damages in respect of item No. 1, containing shortage of Rs. 563-7-0. The Court below was, therefore, no longer concerned with the claim relating to item No. 1 and had only to deal with the remaining nine items. The suit was resisted by the Dominion of India on its own behalf and on behalf of G.I.P.R and B.B and C.I.R, who had been arrayed as defendants Nos. 3 and 4, respectively. Inter alia, the defence pleas were that valid notices under Section 77 of the Railways Act and under Section 80 of the CPC were not served; the defendants were protected under Section 80 of the Railways Act; and that the suit was barred by time. There were certain other pleas also with which we are no longer concerned.
4. The Court below decreed the plaintiff's suit for items Nos. 3 and 4 only awarding Rs. 2,939 by way of damages for the loss sustained by the plaintiff on account of short delivery of the two consignments in question. The defendants did not file any appeal or cross-objection in respect of this part of the decree, with the result that it has become final between the parties.
5. Regarding the plea of limitation, the trial Court found that the suit was not barred by time except in respect of item, No. 2(a), which was a case of non-delivery of goods valued at Rs. 1,088-3-0. The Court below had rightly held that the suit in respect of item No. 2(a) should have been instituted by 28-1-1049 while it was instituted on 19-2-1949, beyond the prescribed period of limitation. The finding of the Court below on this point has not been seriously challenged by the appellant. I, therefore, agree with the trial Court that the claim in respect of this particular item had become barred by limitation.
6. As regards item No. 6, the finding of the Court below was that the notice under Section 80 of the CPC relating to this claim was bad in law inasmuch as its R/R number was quoted in the notice under Section 80 of the CPC as well as in the plaint to be 45922, while its correct number was 45972. Therefore, relying on a single decision of this Court in Dominion of India v. Roop Chand, 1950 All LJ 595, the Court below held that the mistake in the number of the R/R amounted to not stating the cause of action and consequently amounted to the non-compliance of Section 80 of the CPC. In the result, the claim relating to item No. 6 was dismissed as barred by Section 80 of the CPC.
7. The learned counsel for the appellant has drawn my attention, to a subsequent Division Bench ruling of this Court in Harish Chand v. The Union of India, AIR 1962 All 307, wherein it was observed by Srivastava, J.
“……The only defect in the notice was that the number of the railway receipt had been given incorrectly……. It was not suggested on behalf of the railway authorities that on account of incorrect number of the railway receipt they were not able to trace the consignment…… In these circumstances the object of the notice was, in our opinion, fulfilled and the defendant could not fake refuge behind the highly technical objection that in the notice under S. 80, the number of the railway receipt had been mentioned incorrectly. The notice had to be interpreted keeping in view the other facts alleged in it, viz., number of packages in the consignment, nature of the goods booked, the date of booking, the station of booking and the station of delivery. No importance could in the circumstances be attached to the incorrectness in the number of the railway receipt and on account of that incorrectness the notice could not be held to have become invalid altogether…… It cannot, therefore, be said in the present case that the cause of action which was alleged in the notice was different from the cause of action which was set up in the plaint. In the present case there could be no doubt about the identity of the cause of action mentioned in the notice and the plaint. Simply because of the incorrectness of the number of the railway receipt, the cause of action could not be held to be different.”
8. I am bound by the subsequent Division Bench decision of this Court referred to above. Therefore, disagreeing with the finding of the Court below, I come to the conclusion that the notice served on the defendants under Section 80 of the CPC in respect of item No. 6 was not invalid. The Court below should not have dismissed the claim of the plaintiff in respect of item No. 6.
9. All the other items of claim, viz., 2(b), 5, 6, 7, 8, 9 and 10 were dismissed by the Court below on the ground that the plaintiff had failed to prove that the loss or shortage had occurred on the E.I.R to which alone notice under Section 77 of the Railways Act had been sent and inasmuch as the plaintiff had failed to serve notice under Section 77 of the Railways Act on the remaining two Railway Administrations, namely G.I.P.R and B.B and C.I.R, the claim was barred under Section 80 of the Railways Act, the relevant portion there of runs as follows:
“80. A suit for compensation for loss…… or non-delivery of………goods may be instituted…
(a)…………
(b) if the……goods were booked through over the railway of two or more railway administrations, against the railway administration. … to which the……goods were delivered for carriage……or against the railway administration on whose railway…… the loss or damage………occurred.”
10. The perusal of Section 80 of the Railways Act, therefore, shows that the plaintiff is able to prove that the loss in question had occurred on a particular Railway Administration, he could, after serving notices under Section 77 of the Railways Act and Section 80 of the CPC, bring a suit for compensation against that Railway Administration. But if the plaintiff was not in a position to prove that the loss of the goods had occurred on any particular Railway Administration, he could bring a suit only against the contracting railway to which the goods were delivered for carriage.
11. In respect of the remaining seven items in question the plaintiff was not in a position to prove that the loss had occurred on any particular of the three Railway Administrations. He could, therefore, not sue any of those Railway Administrations. However, there is another aspect of the matter. The learned counsel for the appellant maintains that inasmuch as all the defendant-railway-administrations in question were owned at the relevant time, by the Dominion of India, the service of notice under Section 77 of the Railways Act on any of them would amount to the service of notice on the other Railway Administrations as well. For authority, the learned counsel relies upon the observations of a Division Bench of this Court in Dominion of India v. Madan Engineering Tool Products, First Appeal No. 161 of 1950, dated 21-12-1902 (All.). This case was subsequently relied upon by a single Judge of this Court in Jai Narain Kalloo Ram v. Union of India, 1964 All LJ 298 : (AIR 1965 All 122). It was pointed out by the Division Bench that the definition of the expression “Railway Administration” under Section 3(6) of the Railways Act included the Government and, therefore, in the case of railways, which were owned by the Government, they could sufficiently be represented by the Union or Dominion of India alone.
12. In the above Division Bench case of 1962, the facts were very similar to those in the instant case. In that suit the goods were transhipped by the East Punjab Railway and the East Indian Railway. The main question for decision was that when a notice under Section 77 of the Railways Act had been given to the East Indian Railway, which had delivered the goods, whether a similar notice under S. 77 was at all necessary to be given to the East Punjab Railway. The Bench repelled the contention of the Dominion of India that each Railway Administration constituted a separate unit and, therefore, a separate notice under Section 77 of the Railways Act should have been preferred to each one of them. Relying upon the definition of the expression “Railway Administration” used in Section 3(6) of the Act, S.D Singh, J. delivering the judgment of the Bench observed:
“If, therefore, ‘Railway Administration’ includes the Government, and if notice of the claim under Section 77 of the Railways Act is served on the Government, could it be said that it has not been given to the ‘Railway Administration?’
…The Central Government, whatever may be, the extent of the railway system owned by it, would be one legal entity. If it owns a railway system large in the extent and covering vast areas, and if in the interest of facility of administration, the railway system is divided or grouped into different units, which units are put in the charge of managers or general managers, it would not lead to the inference that each administrative unit so formed would constitute a separate ‘Railway Administration’ or that the Central Government, as owners of the different units of the railway system, would have different legal status in the eye of law in respect of each such unit……….where a railway system is owned by the Government, the contract at the time of booking the goods is not, to our mind, with the Railway Administration as such, but with the Government, in the case of State-owned railways and with the railway company, where the railway system is owned by it and if the contract is with the Government, it matters little whether the destination station is on the same or a different administrative zonal unit……. In our opinion, therefore, it is not necessary for a claimant to give notice of his claim under Section 77 of the Railways Act to every administrative zonal unit of the State-owned railway in case of through booking, and if one notice is given to the ‘Railway Administration’, which includes all the zonal units concerned, over which the goods travelled, Section 77 of the Railways Act will have been duly complied with.”
13. In view of the above pronouncement of a Division Bench of this Court, I must hold that in the instant case, the notice of the plaintiff's claim under Section 77 of the Railways Act given to the E.I Railway would also amount to giving notice to the other railways namely, G.I.P.R and B.B and C.I.R, when all the three rail ways were owned by the Dominion of India.
14. That being the legal position, the findings of the Court below with respect to items Nos. 2(b), 5, 6, 7, 8, 9 and 10 must be set aside and the suit of the plaintiff with respect to these items must also be decreed.
15. In the result, I allow the appeal, modify the decree of the Court below in part and further decree the plaintiff's suit in respect of items Nos. 2(b), 5, 6, 7, 8, 9 and 10 with proportionate costs against the defendants, who would bear their own costs, together with dependent lite and future interest at the rate of 6 per cent per annum simple. The defendant-respondents shall deposit the decretal amount into the trial Court within a period of three months, failing which the plaintiff shall be entitled to execute the decree.
CI/AKJ/V.B.B
16. Appeal allowed.
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