The case established that a notice under Section 77 of the Railways Act is necessary only in the case of loss, damage, or deterioration, and that Article 31 of the Limitation Act applies to compensation for non-delivery of goods.

Grille, J C—The plaintiff sued the defendant railway company, for damages in respect of alleged unlawful detention of his goods. His case was that he had consigned to himself for delivery from Chicholi to Nagpur two waggons of firewood, that he unloaded one of them on arrival and that when on the following day he attempted to unload the other he was prevented by the servants of the Railway Company who alleged that wharfage was due on that waggon and had not been paid. The defendant Company's allegation was that the waggon which the plaintiff attempted to unload on 3rd February 1932 had been received several days previously and that wharfage was due on the contents thereof. The plaintiff on the other hand contended that the waggon to which the railway company referred had already been unloaded and that no wharfage was due on the waggon which he was then unloading. Correspondence with the Railway authorities ensued and an offer was made to the plaintiff that he might remove his goods on payment of a nominal rate of wharfage, that is less than the wharfage which had accrued up to the date the offer was made. This was rejected. Notice was also given to the Superintendent of Claims at Calcutta. I may state here that this in the event of a notice under S. 77, Railways Act, being held necessary is not a sufficient notice. On 31st January 1933, that is to say three days less than a year after the event which gave rise to the suit, the plaintiff served the defendant company with a registered notice as required by S. 80, Civil P.C. No reply was received and the suit was brought on 4th May 1933. The suit was dismissed in the Court of Small Causes on the ground that no notice had been served on the Railway Company as was necessary under S. 77, Railways Act, and that the suit was time-barred under Art. 31, Lim. Act, in that it had not been filed within a year of the cause of action. The plaintiff has applied in revision.

2. The action of the plaintiff in purporting to serve a notice under S. 80, Civil P.C., just before the time when the suit, if Art. 31, Lim. Act, applies, would have become time-barred, does not help the plaintiff in any way as the railway administration is a company and is not owned by the Secretary of State for India. The issues then are simply whether a notice under S. 77, Railways Act, was necessary and whether Art. 31 or Art. 49, Lim. Act, applies. I am satisfied that in this case there was no necessity to serve a notice of the claim on the defendant company. There is general agreement among the High Courts of India that such a notice is necessary only in the case of loss, damage or deterioration, as the wording of the section itself shows. A claim of non-delivery may entail the necessity of a notice where such non-delivery may be due to loss of the goods concerned, but I do not interpret the judgment in 19 N.L.R. 139 D.B. Jiwandas v. Agent, E.I.R. Co., Howrah,1923 AIR(Nag) 314 as applying to a case where it is common ground that there has been no loss, damage or deterioration in the course of that judgment, Baker, Offg. J.C., stated:

In the case of a Railway Company which carries hundreds of thousands of parcels, it appears to me that even: in a case of nondelivery enquiry will be necessary to enable the Railway Company to find where the goods are. They do, business in a large number of places, and some time is necessarily required to trace missing goods which may be lying in any station on the system.

3. There is no question that in the case before me the goods actually arrived at Nagpur and although there was a nondelivery, no notice to the Railway Company to enable them to make enquiries where the goods were or what had become of them was necessary.

4. It is argued from this by the learned Counsel for the applicant that as no notice was necessary, then the suit was within time as Art. 49, rather than Art. 31, Lim. Act, would apply. This argument is based on the fallacy that the term ''non-delivery'' in Art. 31