The endorsement of a railway receipt amounted to an assignment, entitling the endorsee to maintain a suit against the railway administration. However, the consignor's right to sue was not negated by the endorsement of the railway receipt. A combined notice under Section 77 of the Railways Act and Section 80 of the Civil Procedure Code could be given.

( 1 ) THIS is an appeal by the defendant representing the Eastern Railway, the central Railway and the Northern Railway, against the judgment and decree passed by Shri G. G. Bhojraj, Civil Judge Class I, Chhindwara in Civil Suit No, 1-B of 1951, decided on 30-7-1954, decreeing the respondent's claim for Rs. 5488/12/ -.

( 2 ) ON 11-3-1950, the plaintiff-respondent delivered a consignment of sawn timber at Chhindwara for delivery to self at New Delhi. The plaintiff alleged that he had merely authorised one Trilokinath to take the delivery of the consignment on his behalf at New Delhi. The consignment did not reach Delhi and was never delivered to the plaintiff. Therefore, he gave notices under Section 77 of the Rail-ways Act and Section 80 of the Civil Procedure Code and filed the present suit claiming Rs. 5752/ -.

( 3 ) THE defence was that the plaintiff had assigned his rights under the railway receipt to Trilokinath. As such, Trilokinath. being the owner, was alone entitled to maintain the suit. The defendant also denied the validity of notices, as also the quantum of damages claimed.

( 4 ) THE learned counsel for the appellant urged that the railway receipt, being a document of title to goods, the endorsement in favour of Trilokinath amounted to an assignment of an actionable claim under the receipt. We may only say that as per tha view of Tambe J. in the case of Shah Mulji Deoji v. Union of India. 1956 nag LJ 791: (AIR 1957 Nag 31), an endorsement of a railway receipt amounts to an assignment, entitling the endorsee to maintain a suit against the railway administration. The minority opinion of late Rao, J. based on the decision of Bhagwatti J. (as he then was) in the case of Shyamji Bhanji and Co. v. North Western Railway Co. . AIR 1947 Bom 169, was not accepted as it was found contrary to the observations of their Lordships of the Privy Council and the consensus of almost all other Indian high Courts. That decision, however, laid down that a suit could always be maintained by an endorsee. But we are unable to see how the right of a consignor can be negatived on the strength of the said ruling. A consignor's right to sue is based on the privity of contract with himself. In the present case, the respondent was the consignor and in that capacity he could maintain the present action irrespective of an endorsement of the railway receipt. This is more so because the railway receipt was returned to him by the consignee and notice of that was given to the Railway.

( 5 ) THE learned counsel for the appellant next urged that the notice under Section 77 of the Railways Act had been given by Trilokinath, while the notice under section 80 of the Civil Procedure Code had been served by the present appellant. As such it was contended that the suit was not tenable for want of proper notice under Section 77 of the Railways Act.

( 6 ) IT is true that letters dated 18-8-1950 (Ex, P. 1), dated 14-8-1950 (Ex. P. 2)and dated 27-4-1950 (Ex. P. 3) purporting to be notices under Section 77 of the railways Act were sent by Trilokinath, Although a notice under Section 77 of the railways Act is mandatory, a combined notice under Section 77 of the Railways act and Section 80 of the Civil Procedure Code can be given as was held in mooljibhai Maneklal and Co. v. Dominion of India, ILR (1952) Nag 821: (AIR 1952 nag 22), which was followed by a Division Bench of the Patna High Court in the case of Union of India v. Lakshmi Narain, AIR 1954 Pat 424. Later a Single Bench of the same High Court took the same view in the case of union of India v. Firm Balwant Rai Banshidhar, AIR 1958 Pat 536. Section 77 of the Railways Act lays down that 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 on hi