Notice under Section 77 of the Indian Railways Act is required in cases of non-delivery or short-delivery of goods.

( 1 ) ON June 9, 1945, the plaintiff appellant delivered 10 boxes containing umbrellas to the Railway Administration at Sealdah for carriage by railway to Coach Behar. The consignment was accepted by the railway administration and a Railway Receipt No. 868421, dated June 9, 1945, was issued in the name of the plaintiff. At the destination there was a shortage of 104 umbrellas detected and the delivery of the remaining boxes was made to the plaintiff with a certificate of shortage, dated July 20, 1945.

( 2 ) AGAIN on September 24, 1945, the plaintiff appellant delivered, in two consignments, 108 bales of piece goods to the railway administration at Sealdah for carriage by railway to Coochbehar. The consignment was accepted by the railway administration and Railway Receipt Nos. 701141 and 701142, both dated September 24, 1945, were issued in the name of the plaintiff. At the destination shortage of nine full bales and partial shortage in four bales were detected. Delivery of the two consignments was made to the plaintiff with a certificate of shortage, dated October 10, 1945.

( 3 ) ACCORDING to the plaintiff he suffered a loss of Rs. 1214/- in respect of the shortage of umbrellas and a further loss of Rs. 12742/4/7, in respect of the shortage of piecegoods.

( 4 ) UNDER a mistake the plaintiff filed a suit for recovery of compensation against the railway administration in the Original Side of the Court. This Court, however, held that it had no jurisdiction to try the suit and in that view dismissed the plaintiff's claim. Thereafter, the plaintiff appellant filed the suit, out of which this appeal arises, in the Court of a Subordinate Judge at Alipore on August 5, 1954.

( 5 ) THE trial court dismissed the suit on a three-fold ground, namely, (i) the notice under Section 77 of the Indian Railways Act had not been served on the General Manager but on the Chief Commercial Manager and as such the notice was bad, (ii) the notice under Section 80 of the Code of Civil Procedure had been served on the Secretary of the Railway Board and not on the Governor, General in Council and as such was bad, (iii) the suit was barred by limitation, the plaintiff not being entitled to the benefit of Section 14 of the Limitation Act.

( 6 ) PROPRIETY of the decree of the trial court is being disputed in this appeal. It was contended on behalf of the appellant that in cases of non-delivery and short-delivery of goods no 'notice under Section 77 of the Indian Railways Act was required to be served. Alternatively it was argued that the service of the notice under Section 77 of the Indian Railways Act upon the Chief Commercial Manager, who was held out by the Railway Administration as authorised to deal with claims for non-delivery of goods, was good enough service. It was lastly, contended that the plaintiff was entitled to the benefits of Section 14 of the Indian Limitation Act and the suit filed, on August 5, 1954, was not barred by Limitation.

( 7 ) ON the point whether in the case of non-delivery and short-delivery of goods, it is necessary to serve notice under Section 77 of the Indian Railways Act, judicial opinion is not uniform.

( 8 ) BEFORE we refer to the chain of conflicting decisions it is necessary for us to set out Section 771 of the Indian Railways Act :"a person shall not, be entitled to a refund of an overcharge in respect of animals or goods carried by railway or to compensation for the loss, destruction or deterioration of animals or goods delivered to be so carried, unless his claim to the refund or compensation has been preferred in writing by him or on his behalf to the railway administration within six months from the date of the delivery of the animals or goods for carriage by railway. "

( 9 ) AS far back as 1923, a Division Bench of this Court consisting of Richardson and B. B. Ghose, JJ. held in the case of Assam Bengal Railway Co. Ltd. v. Radhika Mohan Nath, 28 C. W. N. 438 : AIR 1923 Cal 397 that the word "lo