Judgment

SHAH, J. : On January 30, 1943, Bhola Nath Sambhu Ram as agent of the respondent L. Musaddilal delivered a bale of cloth to the railway administration E. I. Rly. at Agra railway station for carriage by railway to the Chola Station in the E. I. Rly. The consignment was accepted by the railway administration and a railway receipt was issued in the name of the consignor Bhola Nath Sambhu Ram. Bhola Nath Sambhu Ram endorsed the railway receipt in favour of the respondent and sent it by post to the respondent. The bale of cloth did not reach Chola, and the railway administration was unable despite efforts to trace it. There was correspondence between the railway administration and the respondent about the consignment. Failing to obtain satisfaction for the loss suffered by him, the respondent served a composite notice under S. 77 of the Indian Railways Act and S. 80 of the Civil Procedure Code on December 7, 1943 and thereafter on May 18, 1944, filed suit No. 283 of 1944 in the court of the II Munsif, Bulandshahr, for a decree for Rs. 782-3-6 being the "price of the bale" and Rs. 200 for loss on account of non delivery . The railway administration resisted the claim on the pleas among others that the suit was not maintainable without an effective notice under S. 77 of the Railways Act and that the suit was barred because at the date of the institution of the suit, the period of limitation prescribed by Art. 31of the Limitation Act had expired. The trial court decreed the suit. In appeal, the Additional Civil Judge, Bulandshahr, reversed the decree passed by the trial court and dismissed the suit. A Full Bench of the High Court of Allahabad reversed the decree passed by the first appellate court and restored the decree of the trial court. With certificate of fitness under Art. 133 (1) (c) of the Constitution, this appeal has been preferred by the Union of India.

2. Section 77 of the Railways Act in so far as it is material provides:

"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 in writing by him or on his behalf with the railway administration within six months from the date of delivery of the ......goods for carriage by railway".

3. Section 77 manifestly prescribes a condition precedent to the maintainability of a claim for compensation for goods lost, destroyed or deteriorated while in the custody of the railway administration. The notice prescribed was not served by the respondent upon the railway administration within six months from the date on which the goods were delivered for carriage, and prima facie the suit would be barred for non-compliance of a statutory condition precedent. But the respondent pleaded and the plea has found favour with the High Court that the suit filed by him was for compensation not for loss, destruction or deterioration of the goods, but "for non-delivery of the goods". In the view of the High Court, a claim for compensation for non-delivery of goods is a claim distinct from a claim for compensation for loss, destruction or deterioration of goods and to the enforcement of a claim of the former variety by action in a court of law S. 77 is not a condition precedent.

4. The railway administration in India is not an insurer of goods; it is merely a bailee of goods entrusted to it for carriage. Section 72 of the Railways Act prescribes the measure of the general responsibility of a railway administration as a carrier of goods. By that section, the responsibility of a railway administration for loss, destruction or deterioration of goods delivered to be carried by railway is subject to other provisions of the Act to be that of a bailee under S. 152 and S. 161 of the Indian Contract Act, 1872. Sections 151 and 152 of the Indian Contract Act deal with the duties of a baliee. If a bailee takes as much care of the goods bailed to him as a person of ordinar