Mullick, A.C.J:— A preliminary point which was not taken in the memorandum of appeal to this Court has first to be noticed.
It appears that in the Court of the Subordinate Judge the plaintiffs correctly impleaded the Railway Company as the defendant but in the Court of the District Judge the respondent named was the Agent of the Bengal Nagpur Railway. This was clearly an error; for having regard to the fact that it was the Company that was sued in the trial Court there can be no doubt that in the District Judge's Court the plaintiffs intended to implead the same party and that they misdescribed him as the Agent of the Railway. The present appeal is preferred by the Agent and in any view of the matter he cannot now be heard to say that the appeal cannot proceed merely because he was impleaded in his personal capacity in the lower appellate Court.
The next two points are more substantial. The first of these is whether Article 31 of the Indian Limitation Act or Article 115 governs the suit. The learned District Judge, relying on the case of Radha Shyam Basak v. Secretary of State for India, held that where the consignee is the plaintiff Article 31 applies but if the consignor is the plaintiff then Article 115 operates. Upon the authorities this view cannot be supported. The following decisions shew that whether the suit is laid in tort or contract if compensation is claimed for non-delivery of goods entrusted to a carrier the period of limitation is one year as prescribed by Article 31 and that the residuary Article has no application: [Indian General Navigation and Railway Company, Limited v. Nanda Lal Banik, Jaldu Venkatasubba Rao v. Asiatic Steam Navigation Company, Mutsaddi Lal v. Bombay Baroda and Central India Railway Company, Vali Muhammad Haji Ganny v. Naderland S. Navigation Company, Gobind Ram Marwari v. East Indian Railway Company, (decided by Dawson Miller, C.J, and Kulwant Sahay, J., on the 22nd June, 1913); and East Indian Railway Company v. Sagar Mal* [decided by Ross and Kulwant Sahay, J.J, on the 23rd January, 1925.] Here the claim is for compensation for breach of contract on account of non-delivery and should have been made within one year from the date when the goods ought to have been delivered. The suit has therefore been brought long after the due date.
The other point is whether a notice under section 77 of the Indian Railways Act was necessary in this case. It is found as a fact by the learned District Judge that no notice was served but the learned Judge holds that as the suit is brought for non-delivery and not for loss, section 77 of the Indian Railways Act has no application. For this view he relies upon the case of East Indian Railway Company v. Kali Chavan Ram Prasad. That judgment, however, has been dissented from in later cases in this Court and also in the Calcutta High Court [see Great Indian Peninsular Railway Company v. Jitan Ram, East Indian Railway Company Limited v. Notram Ganesh Lal, Assam Bengal Railway Company Limited v. Radhica Mohan Nath and East Indian Railway Company v. Sheo Prasad and Ram Prasad (decided on the 28th May, 1924). These authorities shew that non-delivery constitutes “loss” within the meaning of section 77 and therefore the service of notice under the provisions of that section is essential.
On both these grounds therefore the plaintiffs must fail. The appeal is accordingly decreed with costs throughout, and the suit is dismissed.
Kulwant Sahay, J.:— I agree.