Estate of H.E.H. The Nizam vs Padaturi Malliah

Bilgrami, J.—This petition in revision u/s 12, Small Cause Courts Act, is directed against the judgment and decree of the District and Sessions Judge, Secunderabad, Shri Kumarayya, dated 4-12-1949, decreeing the Petitioner''s suit, against the opposite party for recovery of Rs. 1253-2-0 I.G. being a compensation for non-delivery of a consignment which was sent by Plaintiff I.P. Malliah, from Umdanagar to Hosadurga Road to himself. This consignment consisted of four barrels of castor oil weighing 64 Kachha maunds. It is common ground that this consignment was booked, and it was never delivered lo the consignee.

There are two legal points of some importance raised by the learned advocate of the Petitioner in this case.

The first is that a notice u/s 46, Hyderabad Railways Act, corresponding to Section 77, Indian Railways Act, was not sent lo the Defendant railway and., therefore, the suit is liable to be dismissed .

There is a conflict of decisions on the point as to whether in ease of non-delivery of goods Section 77, Indian Railways Act is applicable, or not. The Bombay High Court in a recent case reported in--Martab Ali v. Union of India AIR 1954 Born 297(A) has held that the word "loss" in Section 77 is applicable, to the ease of non-delivery, as well as lo cases of negligence and wrongful detention or conversion on the part of the railway administration.

A similar view has been expressed In - Thakur Das Manrakkhan Lal Vs. E.I. Railway Co. ; - Sheo Dayal Niranjan Lal v. G.I.P. Rly. Co. AIR 1926 AH 698(C); - The East Indian Railway Company Vs. Fazal Elahi ; - The Great Indian Peninsular Railway Company Vs. Jitan Ram Nirmal Ram, ; - Dominion of India Vs. Hazari Lal and Another, .

The weight of authority is however in support of the opposite view. This question has been recently decided by the Allahabad High Court in two Full Bench cases; it has been held in - Governor General in Council and Others Vs. Mahabir Ram and Another, by a Full Bench consisting of Waliullah, Bind Basni Pershad and Gurtu JJ. that where a non-delivery of goods is due to loss of goods by the railway . administration, or to their deterioration or destruction, then only a notice u/s 77, Railways Act is necessary, but where no delivery of goods is due to any other reason then no such notice is required, The same learned fudges in another- case Mutsaddi Lal Vs. Government-General in Council, have, again expressed the same view. Their Lordships have pointed out in that case that the word ''less'' occurring in Section 77 does not mean loss to the owner but loss suffered by the railway administration.

I think no other interpretation is possible considering the wording of Section 77 which runs as fallows:

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 his behalf to the railway administration within six months from the date of the delivery of the animals or goods for carriage by railway.

And bearing in mind the context in which the word ''loss'' occurs.

There are also numerous decisions of different High Courts which support this view, A Full Bench of Punjab High Court in - Babu Lal Vs. The Dominion of India, has held that where the suit is based on non-delivery of the goods, notice of claim is not necessary u/s 77. See also ill this regard - G.A. Jolli v. Dominion of India AIR 1949 Cal 380(J); - G.G. in- Council v. Mohd. Badar-i-Alam AIR 1949 AH 223(K); - G.G. in Governor-General in Council Vs. Lala Debi Sahai, ; - AIR 1927 478 (Oudh) ; - Nagendra Nath Sen Vs. B. and N.W. Ry. Co. and Another, - Haryana Cotton Mills Co. Ltd. v. B.B. and C.I. Rly. AIR 1927 Lab 471(O).

This view is also supported by an obiter dicta of a Division Bench of this High Court consisting of Shripat Rao C.J. and Dr. M.S. Ali khan J. in - Mongani Ram v. Govt. of India AIR 1953 Hyd 139(P). I think if it was known to the Plaintiff and if the plant is so trained that the Plaintiff admits and bases his claim on the fact that the Railway has lost the property, then possibly, the question of notice u/s 77 may arise; otherwise a notice is not necessary. If the word ''loss'' refers to the loss of railway, this section cannot apply to the eases in which such loss is not alleged or admitted by the Plaintiff. For the reasons stated above, I think that this contention of the learned advocate of the railway must fail.

The other contention is that the Plaintiff had no right to sue because according to his own admission in para 3 of the plaint, he had sold the railway receipt to Plaintiffs Nos. 2 and 3 and they in their turn sold to one Negeshappa, who did not accept the hundi and refused to honour it. He argues, therefore, that Nageshappa was the only person who was competent to sue, the railway, of cannot agree.

The railway receipt shows that the consignee is P. Malliah Plaintiff I himself. There does not appear any endorsement in the name of another person. What agreement was between Plaintiff 1 and other persons is not a matter with which the railway authorities are concerned. It was their duty to deliver the consignment to Plaintiff 1 as the sole consignee. Plaintiff 1, therefore, is clearly entitled to sue.

No other point was raised or arises for decision, with the result that this revision petition fails and is dismissed with costs.