1. Defendant is the appellant. The respondent filed the suit for recovery of a sum for short delivery of eighty quintals seventy kilograms of rice. The suit was filed by the respondent on the allegation that 960 bags of rice was sent by the respondents Rohtas Office to its Ranchi Office. The total weight of it was 963 quintals and 36 kilograms. This was sent at the railway risk rate under Railway receipt dated 4-9-1974. The price of rice was adjusted by cross entries in the books of accounts. The respondent on arrival of the consignment at Ranchi, took open delivery from 6-10-1974 to 10-10-1974 but 24 bags of rice were not delivered. It was also alleged that 48 bags were found torn and 27 bags were damaged. Total non-supply of rice was 80 quintals and 70 kilograms. Yet the appellant gave a short certificate for 52 quintals and 60 kilograms. A claim u/s. 78-B of the Railways Act, 1890 (the Act) was filed and a notice u/s. 80 of the Code of Civil Procedure (the code) was given. The claim was repudiated and thereafter the respondent filed the suit for recovery of the price of rice aforesaid including interest.

2. Written statement was filed by the appellant in which, inter alia, it was stated that it was not maintainable as service of notice u/s. 78-B of the Act was done after expiry of the period of limitation. Since the loading and unloading of the consignment (L/U consignment) was done by the consigner, the railway were not concerned about loading of 960 bags. Shortage, if any, was due to the packing condition. It was also stated that the consignment was tendered for carriage at owners risk rate.

3. In deciding issue No. 3, whether the notice u/s. 78-B of the Act and sec. 80 of the Code was valid, the Court below held that both the notices u/s. 78-B of the Act and sec. 80 of the Code were validly served. In deciding issue No. 4, whether the suit was barred by limitation it held in negative. While deciding issue No. 5, if the plaintiff was entitled for the suit amount or to what amount, it did not accept the case of the respondent that 80 quintals 70 kilograms of rice was short supplied. The suit was decreed for the quantity shown in short certificate i.e. 52 quintals 60 kilograms.

4. On the basis of the submissions made on behalf of the appellant, the following points arise in this appeal:-

(a) Whether the claim u/s. 78-B of the Act was made within the time prescribed ?

(b) Whether on the facts of the case, the suit could have been decreed ?

5. So far point No. (a) is concerned, Mr. Chatterjee, learned counsel for the appellant with reference to sec. 78 B of the Act submitted that since the section provides that the claim must be preferred within six months from the date of delivery of the consignment for carriage, the respondent was required to serve the notice within six months computing from 4-9-1974, i.e. the date of delivery of consignment for carriage and as the notice was actually served on 10-3-1975, that was preferred beyond six months. The notice being bad, the suit ought to have been dismissed. Mr. Chatterjee in support of his submission that the word preferred in sec. 78-B means that the notice must actually be served within six months, relied in Governor General in Council V/s. Musaddi Lal, AIR 1961 SC 725. Mr. Prasad, learned counsel for the respondent submitted that all that sec. 78-B of the Act requires is that the claim must be made within six months from the date of tender of the consignment for carriage and it is not necessary that the claim must be actually served within six months. According to him, since the notice was sent by registered post with acknowledgment due on 3-3-1975, computing the period of limitation from 4-9-1974 it was preferred within six months. Mr. Prasad in support of his submission relied in Ram Gopal Marwari V/s. Bengal and North Western Railway Co., AIR 1927 Patna 241.

6. The question, therefore, is what is meant by word preferred in sec. 78-B. In Musaddi Lal (supra), the con