JUDGMENT

S.D. Khare, J. - This is an application in revision filed on behalf of the Union of India. Swadeshi Iron and Steel Private Ltd. (opposite party) had instituted a suit for the recovery of Rs. 635-74 by way of damages and interest for short delivery of 23 maunds 8 seers of Tata fiat rolled strips. The suit was decreed by the Judge, Small Cause Court, Kanpur, on 28-2-1963 for Rs. 628-07 only. The revision application filed before the District Judge was dismissed by the order of the Additional District Judge, Kanpur, dated 14-7-1964.

2. The present revision application is based mainly on the ground that the suit against the applicant could not have been decreed because no proper notice under Sec. 77 of the Railways Act had been given to it.

3. The relevant facts leading to this revision application might be briefly stated as follows. A consignment of Tata rolled strips was booked on 13-12-1958 from Tatanagar destination Kanpur. On delivery the said consignment was found short in weight and the plaintiff claimed Rs. 557/67 as the price of the articles short delivered and Rs. 78/07 as interest. The parties, however, agreed that in case the suit was decreed the amount of damages may be fixed at Rs. 550/- only (and not at Rs. 557/67). Notice under Sec. 77 of the Railways Act was sent on 17-6-1958. The main contention of the applicant, therefore, is that inasmuch as the noice under Sec. 77 of the Railways Act had been sen1 by the plaintiff more than six months after the date of the despatch of the goods no decree could have been passed in favour of the plaintiff.

4. Sec. 77 of the Railways Act, prior to its amendment by Act 31 of 1961, read as follows:-

"a person shall not be entitled to a refund of 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."

5. In the present case the goods had been delivered to the railway for carriage on 13-12-1958 when they were booked. Therefore notice under Sec. 77 of the Railways Act should have been sent before 12-6-1959. No notice was, however, sent before 17-6-1959. In the circumstances of the case the plaintiffs claim could not have been decreed against the railway administration and the Union of India.

6. Prior to the decision in the case of Governor-General in Council now Union of India v. Musaddi Lal Agarwal, A.I.R. 1961 S.C. 725 there was some conflict of opinion regarding the meaning of the word loss as used in Sec. 77 of the Railways Act. The Full Bench case of the Governor-General-in-Council v. Mahabir Ram, 1952 ALJ 449 resolved that conflict so far as this Court was concerned, and it was held that the word, loss as used in Sec. 77 means not the loss to the owner but loss by the railway administration. That Full Bench decision of this Court was overruled in the case of Governor-General in Council now Union of India v. Musaddi Lal, A.I.R. 1961 S.C. 725 in which it was held that a claim for compensation for non-delivery of goods cannot be regarded to be distinct from a claim for compensation for loss, destruction or deterioration of the goods. It was further held that Sec. 77 of the Railways Act was enacted with a view to enable the railway administration to make enquiries, and, if possible to recover the goods and to deliver them to the consignee and to prevent a State claim. It imposes a restriction on the enforcement of liability declared by Sec. 72 of the Railways Act which prescribes the measure of the general responsibility of a railway administration as a carrier of goods to be that of a bailee under Secs. 151, 152 and 161 of the Indian Contract Act, 1872. A notice under Sec. 77 of the Railways Act was, therefore, held to be necessary in th