The Judgment of the Court was delivered by

Lahiri, J.:— This Rule has been issued at the instance of the Union of India representing the Eastern Railway and it is directed against a decree for a sum of Rs. 174-14-6 together with costs and interest passed by the Small Cause Court Judge, Asansol. The facts of the case which are not in dispute may be stated as follows:— The plaintiffs opposite parites were consignees of two consignments of handkerchiefs from Ahmedabad to Bara-kar under Railway Receipts No. 45622 and 45623 bearing the same date, viz., 12.9.51 The consignments arrived at Barakar and when the plaintiffs went to take delivery, they were granted short delivery receipts of 29 dozens of handkerchiefs in one consignment and 13 dozens in another consignment. The plaintiffs alleged that this shortage in both the consignments was due to gross and wilful neglect and misconduct on the part of the defendant Railway and that the consignments were found to be “tampered with and contents taken away” while the consignments were in the charge and custody of the defendant. The plaintiffs accordingly claimed to recover a sum of Rs. 174-14-6 as compensation for the price of the handkerchiefs which were not delivered to them. In the plaint the defendant was described as Union of India representing (1) The Eastern Railway, (2) The Western Raliway and (3) the Northern Railway, because in the course of transit the consignments had to be carried over all these Railways. The suit was contested only by the Eastern Railway and in paragraph 7 of their written statement, they raised the plea that no legal, valid and sufficient notice either under sec. 77 of the Indian Railways Act or under sec. 80 of the Code of Civil Procedure had been served on the defendant and for the non-service of statutory notices, the suit was liable to be dismissed. It appears from the materials on the record that notice under section 77 of the Railways Act was served only upon the Chief Commercial Manager of the Eastern Railway and no notice) under the said section was served upon the other two Railways. The learned Small Cause Court Judge overruled the defence and decreed the plaintiff's claim against all the defendants holding that it was enough for the plaintiffs to cause only one copy of the notice under section 77 of the Indian Railways Act to be served on the Union of India as one entity instead of three such notices on Union of India representing the three Railways. Against that decree of the Small Cause Court Judge the defendant has obtained the present Rule. In the first place, it is to be observed that the learned Small Cause Court Judge was not right in holding that the three Railways constituted one entity under the law. The decision upon which he relied for this purpose, namely, the decision of this Court in the case of Dominion of India v. Jagadish Prosad Pannalal (1) [A.I.R (1949) Cal. 622], does not really decide that point. In that case Harries, C.J, pointed out that a particular result would follow if it were held that the different Railways in India were owned by the Government of India alone and quite a different result would follow if the Railways be treated as different entities. His Lordship did not actually decide that as a matter of law the different Railways had lost their independent existence as a result of the acquisition by the Central Government of all the different Railways of India. As a matter of fact, such a conclusion is impossible, so long as section 80 of the Indian Railways Act and sec. 80 of the Code of Civil Procedure are on the Statute Book. section 80 of the Indian Railways Act provides that a suit for compensation for loss, destruction or deterioration of goods may be brought either against the Railway Administration to which the goods were delivered by the consignor or against the Railway Administration on whose railway the loss, destruction or deterioration occurred. Section 80 of the Code of Civil Procedure provides that “no suit shall be instituted against the Government…………….. until the expiration of two-months next after the notice in writing has been delivered or left at the office…………..(b) in the case of a suit against the Central Government where it relates to a Railway, the General Manager of that Railway”. These two sections, in my opinion, definitely contemplate that for the purpose of a suit, the different Railways of India must be treated as separate legal entities and there is no warrant for the proposition that it is sufficient to serve one notice under section 77 against the Union of India as representing all the Railways.

2. Mr. Bose appearing for the petitioner contended before me that the service of a notice upon the Chief Commercial Manager of the Eastern Railway is not a sufficient compliance with the requirements of section 77 of the Indian Railways Act and as such the suit instituted by the plaintiffs is liable to be dismissed.

3. section 77 of the Indian Railways Act provides that a person shall not be entitled to compensation for the loss, destruction or deterioration of goods delivered to be carried unless his claim to compensation has been preferred by him in writing to the Railway Administration within six months from the date of delivery of the goods for carriage. Section 3(6) of the Indian Railways Act defines a Railway Administration, in the case of a Railway administered by Government, as the Manager of the Railway. Section 140 of the Indian Railways Act provides that any notice or other document required or authorised by this Act to be served on a Railway Administration may be served in the case of a Railway administered by the Government on the Manager. The language of the statute, therefore, leaves no room for doubt that a notice under section 77 is required to be served on the Manager of the Railway in the case of Railways which are administered by the Government, But it has been held in some of the cased decided by this Court that a notice under section 77 served upon the Chief Commercial Manager is sufficient compliance with the requirements of section 77 of the Indian Railways Act. See the cases of Samsul Haq v. Secretary of State (2) [I.L.R 57 Cal. 1286 (Lort-Williams, J.)]; Srislidhar Mondal v. Governor-General in Council (3) [49 C.W.N 240 (Henderson, J.]. These decisions were dissented from by Sen, J., in the case of Surendra Nath Poddar v. Governor-General of India in Council (4) (Civil Revision Case No. 1353 of 1947, decided on the 25th November, 1948 and reported in A.I.R 1952 Calcutta 341). The decision of Sen, J., was approved and followed by Mookerjee and Guha, JJ., in the case of Union Of India…Defendant, v. Indumati Saha…Plaintiff, Opposite Party. (5) (55 C.W.N 662). In this case it was pointed out that the notice contemplated by section 77 has to be given upon the General Manager and not to any sectional or departmental Head, because the General Manager can override the decision of all sectional Managers in the matter of compromising suits or allowing any claim. The view that a notice under sec. 77 of the Railways Act has to be served upon the Agent in the case of a company-managed railway and a notice upon the Traffic Manager is not sufficient for that purpose is also supported by a decision of another Division Bench of this Court in the case of The Assam Bengal Rly. Co., Ltd. v. Radhica Mohan Nath (6) (28 C.W.N 438). The decisions of these two Division Benches are binding upon me and I also agree with the reasons given by the learned Judges in those decisions and I prefer to follow them, more particularly because these decisions give effect to the unambiguous language of sections 3(6) and 140 of the Indian Railways Act.

4. Mr. Ghose, appearing for the opposite parties, however, has placed strong reliance upon another Division Bench judgment of this Court in the case of Union of India v. Gujrat Tobacco Co., (7) (59 C.W.N 278). In this case P.N Mookerjee, J., with whom Guha Ray, J., concurred, has reviewed all the decisions on the point and has expressed his preference for the view taken by Henderson, J., in the case of Snstidhar Mandal v. Governor-General in Council (3) (49 C.W.N 240), but he has not dissented from the view taken by the Division Bench in the case of Union Of India…Defendant, v. Indumati Saha…Plaintiff, Opposite Party. (5) (55 C.W.N 662). He has expressly said that he was not prepared to say without a fuller consideration that the earlier view (that is, the view taken by Henderson, J.) was in law totally unacceptable. In the end, however, his Lordship refused to interfere with the decree passed by the Court below on the ground that as substantial justice had been done, he was not inclined to interfere in revision with that decree. As I read this case, it is no authority for the proposition that the view taken by Mookerjee and Guha, JJ., in the case of Union Of India…Defendant, v. Indumati Saha…Plaintiff, Opposite Party. (5) (55 C.W.N 662) was wrong. In this state of authorities and upon a plain construction of the different sections of the Indian Railways Act, I am inclined to hold that a notice of a claim under section 77 of the Indian Railways Act served upon the Chief Commercial Manager is not a sufficient compliance with the section.

5. Mr. Ghose next contended that in this case no notice under section 77 was necessary, because section 77, according to him, does not apply to a case of short delivery of a consignment. Apart from authorities to the contrary, of which I may mention the case of The Assam Bengal Railway Co., Ltd. v. Radhica Mohan Nath (6) (28 C.W.N 438), I find that in paragraph 6 of the plaint the plaintiffs themselves were making a case that the consignments were tampered with and the contents taken away while they were in the charge and custody of the defendant-railways. This, in my opinion, means that according to the) plaintiffs themselves, upon the case made in their plaint, there was a loss of a part of the consignment and if it is a case of loss, it cannot be doubted that section 77 is attracted. For these reasons I am of the opinion that the decree made by the learned Small Cause Court Judge is contrary to law and as such is liable to be set aside.

6. Mr. Bose appearing for the petitioner also raised a point that under section 80 of the Indian Railways Act the plaintiffs were not entitled to a decree in the absence of a finding that the loss, destruction or deterioration took place while the consignments were in the custody of the Eastern Railway. The argument of Mr. Bose is this: Section 80 gives the plaintiff an option of suing either the contracting railway or the railway, which is responsible for the loss, destruction or deterioration of the consignments, and in the present case, the plaintiffs did not choose to serve any notice under section 77 against the Western Railway which was the contracting railway, but the plaintiffs took upon themselves the onus of proving that the loss, destruction or deterioration of the consignment took place on the Eastern Railway. In support of this proposition Mr. Bose relied upon the decision of the Nagpur High Court in the case of Dominion of India v. Firm Museram Kishunprasad (8) (A.I.R 1950 Nagpur 85). In this case Bose, C.J, in delivering the judgment of the Bench made the following observations:

“A plaintiff, who having his right's against the principal, (that is to say, the railway administration with whom he enters into a contract), chooses to omit that administration and sues the agent administration, undertakes a burden which he is required to discharge strictly.”

7. According to Mr. Bose, if the plaintiff chooses not to proceed against the contracting raliway, he takes upon himself the onus of proving that the loss, destruction or deterioration took place in the railway which he chooses to sue. There is considerable force in this contention, but as it is not necessary for me to go into this question in this case, I refrain from giving my final opinion. The defendant succeeds on the first point raised by it.

8. This Rule is made absolute. The decree made by the Small Cause Court Judge, Asansol, is set aside and the plaintiffs' suit dismissed.

9. In the circumstances of the case, the parties will bear their own costs.

A.K.D.G