A notice under Section 77 of the Railways Act is a condition precedent to any claim covered by the section and it cannot be dispensed with because its object is considered to have been otherwise served.

( 1 ) MESSRS. Martin and Co. Managing Agents ot the S. S. Light Railway (defendant No. 2) have appealed against the lower Court's decree for Rs. 12,659/- on account of delayed delivery, deterioration and loss of goods consigned tor transport by rail.

( 2 ) THE facts of the case, some of which were disputed in the lower Court but are no longer in controversy, are these. On 7th September 1947, Messrs. Raviprakash om Prakash, a firm ot commission agents dealing in jaggery, booked at Khekra on the S. S. Light Railway a consignment of 199 bags of jaggery weighing 485 maunds to be delivered to them at Khandwa. The goods were carried in three N. G, Wagons Nos. 628, 666 and 741. The last two wagons, which contained 174 bags, were loaded and despatched on 9th September 1947 and reached Delhi-Sahadra on the same day. On that day, communal disturbances broke out at Delhi and affected the surrounding areas with the consequence that the working of railways was paralysed until about 20th September 1947. Thereafter, heavy rains commenced on 22nd September 1947 and caused unprecedented floods from 29/30 september 1947. The flood water submerged the railway track and entered the station buildings at Delhi-Sahadra. The flood level rose to such an extent that water entered the two wagons standing on the track at Sahadra and damaged the jaggery bags. In a few days, the floods receded, but the track was extensively damaged and breached at several places. The normal working of the S. S. Light railway was restored on 12th November 1947.

( 3 ) MEANWHILE, on 6th November 1947, 174 bags of jaggery in N. G. Wagons Nos. 666 and 741 were transhipped to B. G. Wagon No. E. I. 28084 and, on 29th november 1947 again transhipped to Wagon No. N. W. 45444 for transport by the east Punjab Railway. This wagon was despatched on 7-1-1948 to Ghaziabad where it remained stationed till 17-1-1948 when it arrived at New Delhi. Haying been despached from New Delhi on 21-1-1948, it reached Khandwa seven days later on 28-1-1948.

( 4 ) THE third N. G. Wagon No. 628 which contained 25 bags of jaggery was loaded on 25-1-1948 and despatched from Khekra. After the necessary transhipment at delhi-Sahadra, it arrived at New Delhi on 3-2-1948 and reached Khandwa in the usual course on 22-2-1948.

( 5 ) AFTER the first wagon arrived at Khandwa on 28-1-1948, the plaintiffs, who claimed to be assignees of the railway receipt issued for the consignment, declined to take delivery of the goods unless the railway authorities assessed the damage caused and certified the shortage and tall in rate. There was some controversy over the matter. Ultimately, the shortage of 40 maunds and 14 1/2 seers was ascertained and the damage was assessed at 40 per cent, and thereupon the plaintiffs took delivery of the consignment on 15-3-1948.

( 6 ) THE plaintiffs claimed that the railway receipt was endorsed in their favour by and through Messrs. Tarachand Chandrasen and they were, therefore, entitled to take delivery of the goods. According to the plaintiffs, the S. S. Light Railway, East punjab Railway and the G. I. P. Railway administrations and their servants deliberately and unduly detained the consignment of 174 and 25 bags at the despatching, transhipping and other stations and also misdirected the wagons carrying the consignment and left them unattended and uncared for. The consequence was that when the consignment arrived at the destination after long delay, the market rate had fallen. Also, there was a shortage and the goods had deteriorated considerably. In the normal course, the consignment should have reached Khandwa in 12 days or in a month at the outside, but several months were taken for carrying it to the destination. Even on arrival at that place, delivery was delayed and in the meanwhile the goods remained unprotected and further deteriorated in consequence. Moreover, when Messrs. Tarachand Chandrasen learnt that the consignment was damaged or likely to be damaged by rain, the