A suit against the Railways is not maintainable unless a valid notice is served under Section 80 of the C. P. C. and the plaintiff proves that the goods in question were entrusted to the care of the Railways for carriage.

LINGARAJA RATH, J.

( 1 ) THE Union of India through the Chief Commercial Superintendent (Claims), S. E. Rly. who is the defendant in the court below is in appeal against the decree passed against it in a suit claiming compensation on account of loss of 21,760 liters of furnace oil.

( 2 ) THE plaintiff-respondent brought the suit on the pleadings that he had purchased the amount of furnace oil from the Indian Oil Corporation, Visakhapatnam wherefrom it was despatched to the Barang railway station. The consignment having never reached Barang, he sustained the loss for which he claimed the compensation. It was also pleaded that the plaintiff had issued notice to the Railways under S. 78-B read with S. 140 of the Railways Act as also under S. 80, Civil, P. C. which were received by the defendant on 10-10-1972, but however since there was no redressal of his grievance, he was compelled to file the suit.

( 3 ) THE suit was contested by the appellant denying all the plaint averments and contending that the suit was not maintainable since firstly, the Union of India had not been represented in accordance with law; secondly, no notice as contemplated under S. 80, C. P. C. , had been served upon the appellant and lastly, there had been no proof of actual entrustment of the furnace oil to the care of the Railways and hence there could not be any liability for payment of compensation.

( 4 ) TAKING up the question first, it is seen that admittedly S. 80, C. P. C. notice was sent to the Union of India as represented by the Chief Commercial Superintendent (Claims) Calcutta. Section 80, C. P. C. makes categorical provision that in a suit against the Railways notice to the Central Government shall be sent to the General Manager of the railways. It is too well settled in law that notice under S. 80, C. P. C. is mandatory and admits of no exception or implication and where a notice as required under that Section has not been given, the suit is bound to fail on such account. Notice to the Central Government relating to Railways, if not given through the General Manager of the concerned Railway is no notice under the Section and hence it is to be regarded as there having been no compliance with the requirements of S. 80, C. P. C. As such, the suit is bound, to fail on such account.

( 5 ) EVEN though the question of bar of the institution of the suit due to want of notice under S. 80, C. P. C. was raised in the written statement, yet no issue has been raised in the case on such fact and the learned Subordinate Judge also did not address himself to it. Instead, he proceeded only on the basis as to whether notice as required under S. 78-B of the Indian Railways Act had been issued or not and holding that there was compliance under that Section, came to the conclusion of the suit being maintainable. The fact of the notice under S. 80, C. P. C. having not been delivered is apparent on the record itself and Mr. R. B. Mohapatra, the learned counsel appearing for the respondent is not able to controvert such fact. He instead urged that a notice under S. 78-B of the Act if properly given, as has been found in this case, would tantamount to a notice under S. 80, C. P. C. and hence the suit should not be dismissed for such reason. The submission has no merit since the scope of S. 78-B of the Indian Railways Act and S. 80, C. P. C. are completely different from each other and one is not alternative of the other. While S. 78-B of the Indian Railways Act concerns itself only with refund of an over charge for animal or goods carried or compensation for the loss etc. or compensation for non-delivery of animal or goods, S. 80, C. P. C. is of a general nature and applies also in respect of all suits against the Railways where the Union Government is impleaded as a party. Delivery of notice under S. 78-B of the Indian Railways Act would not be dispensed with the requirement under S. 80, C. P. C. where cause of action is pressed against the Central Government. I