Service of notice under sec. 77 of the Indian Railways Act upon the Claims Officer is good and valid service if there is a notification issued by the railway company authorizing the Claims Officer to receive such notices, and the notification continues to be valid after the takeover of the railway by the Government.

1. THE plaintiffs of the Trial Court are the appellants in this appeal. They instituted the suit in the Trial Court against the Union of India as owning and representing the then Bengal Nagpur Railway for recovery of compensation for non-delivery of nine hags of spices and condiments as described in the schedule of the plaint. The non-delivery was attributed to the gross negligence and misconduct on the part of the Railway servants. The total claim was laid at Rs. 2,298/- the price of the spices being assessed at Rs. 2,273. 8/- as. and proportionate railway freight for the non-delivered bags being assessed at Rs. 24. 8 as. It was also alleged in the plaint that notice under sec. 77 of the Indian Railways Act had been served on the Claims Officer, Bengal Nagpur Railway, and notice under sec. 80 of the Code of Civil Procedure was served on the General Manager of the Bengal Nagpur Railway.

2. THE suit was contested by the Union of India which denied its liability by contending that there was no negligence or misconduct on the part of the railway servants the loss of the goods being due to a theft committed by some miscreants. It was also contended that the notices in question were not served according to law.

The trial Court held upon the evidence adduced by the parties that the notice under sec. 80 of the Code of Civil Procedure was duly and legally served and that (the non-delivery of the goods was due to the misconduct end gross negligence of the railway servants and the story of theft set up in the defense was highly improbable. It was further found that the amount claimed by way of compensation was not excessive or unreasonable. In spite of these findings the suit was dismissed on the ground that the notice under sec. 77 of the Indian Railways Act having been served on the Claims Officer and not on the General" Manager, the service was not valid and not in accordance with law, and that the defective service of the notice disentitled the plaintiffs from recovering any compensation from the Railway Administration.

3. THE plaintiffs preferred an appeal from the decree of dismissal passed by the Trial Court. The Lower Appellate Court confirmed all the findings of the Trial Court, including the finding on the question of service of notice under sec. 77 of the Indian Railway Act. Accordingly the Lower Appellate Court dismissed the appeal So the plaintiffs have preferred thins second appeal.

4. THERE is no doubt that the claim of the appellants should be decreed if it is found that the service of notice under sec. 77 of the Indian Railways Act was good service, because the other findings of the Courts below about negligence and misconduct of the railway officers and the quantum of damages are findings of fact based upon evidence, and they cannot possibly be controverted by the respondent in a second appeal.

The only question which arises for our decision in this appeal is:-Whether the service of notice under sec. 77 of the Indian Railways Act upon the Claims Officer was good and valid service?

5. THAT the notice of claim was actually served on the Claims Officer is not disputed in this case. Mr. Acharyya submitted on behalf of the appellants at one stage of his argument that the service of this notice on the Railway Administration is merely discretionary and not mandatory. Sec. 77 of the Indian Railways Act runs in the following terms:-

"77. Notification of claims to refunds of over-charges and to compensation for losses. 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 in his behalf to the railway administration within six months from the date of the delivery of the animals or goods for carriage by railway. "

6. HAVING regard to the imperative language of the section, I am