Effect of requirement of notice for waiver of defects.

The unsuccessful plaintiff before the lower Court, the Coimbatore District Central Co-operative Supply and Marketing Society Ltd., is the revision petitioner. The plaintiff-society was acting as Stockists for manure on commission on behalf of the State of Madras, the second respondent herein. On 27th August, 1963, the Assistant Director, Clearance, Madras, despatched to the plaintiffsociety certain quantity of Ammonium Sulphate. When the plaintiff-society wanted to take delivery of the goods at Coimbatore, the Station Master at Coimbatore demanded Rs. 1,041-30 nP. as being under charges, demurrage and other charges. The plaintiff-society paid it under protest and called upon the railway to refund the amount. As the claim was not met, the plaintiff-society instituted the suit impleading the Union of India, owning the Southern Railway as the first defendant and the State of Madras as the second defendant and prayed for a decree for Rs. 1,221-30 nP.

The first defendant, Union of India, contended that the consignment had not been charged correctly at the forwarding station, there being an undercharge of Rs. l,034-40 nP. that on discovery of some excess collection made subsequently, the said excess collection of Rs. 41-50 nP. was refunded to the plaintiff, that the plaintiff-society was not entitled to claim a refund of the undercharges and that, there was no valid notice under section 80, Civil Procedure Code. The State of Madras, the second defendant, contended that the plaintiff was not entitled to claim any reimbursement and that the plaintiff did not act as the agent of the State of Madras.

The Subordinte Judge, Coimbatore, held that the notice issued by the plaintiff-society under section 80, Civil Procedure Code, under the original of Exhibit A-13 on 25th October, 1965 was not a valid notice satisfying the requirements of section 80, Civil Procedure Code, and that as such the suit was not maintainable. He also found that inasmuch as the property in the goods, in respect of which the plaintiff-society paid undercharges to the Railway, did not pass to the plaintiff-society, the plaintiff-society was not entitled to maintain the suit. On the question as to who among the defendants was liable, the trial Judge found that under the terms of the agreement between the plaintiff-society and the State of Madras, the plaintiff-society was entitled to recover from the second defendant, the. State of Madras, whatever amount was legally paid in respect of the consignment on account of undercharges. In the result, he dismissed the suit without costs.

The first question that arises for consideration is whether the notice, Exhibit A-13, is in conformity with the requirements of section 80, Civil Procedure Code. It is not in controversy that when the plaintiff-society wanted to take delivery of the goods, the railway authorities at Coimbatore demanded payment of certain charges as a condition precedent for the delivery of the goods. The plaintiff-society accordingly paid Rs. 1,041-30 and obtained the receipt, Exhibit A-1, dated 30th August, 1963. That receipt gives the details that go to make up the sum of Rs. 1,041-30. It is stated therein that (1) a sum of Rs. 1,034-40 represented freight including terminals; (2) Rs. 4-10 represented demurrage and (3) Rs. 2-80 represented other charges. After making this payment, the plaintiff-society addressed the Chief Commercial Superintendent, Southern Railway, under the letter Exhibit A-2, on 5th September, 1963, with a copy marked to the Collector of Coimbatore and the Secretary, Board of Revenue, Madras, stating that the society had to pay Rs. 1,041-30 by way of undercharges, etc. and that the society was entitled to be reimbursed. The Collector of Coimbatore took up the matter with the railways and wrote some communications, copies of which are Exhibits A-4 to A-7, requesting that the claim of the plaintiff-society may be satisfied. As the claim was not satisfied, the plaintiff-society issue