Judgment Both the Courts below have held that the suit of the plaintiff appellant must fail by reason of want of notice under section 77 of the Railways Act. The plaintiff’s case is that one Kunjilal of Harunabad booked 450 bags of Bengal gram from Harunabad on the North Western Railway to be delivered to the plaintiff at Salem Market Station on the South Indian Railway. These bags were loaded in two waggons and the waggons arrived at the Salem Market in tact. The railway receipt showed the number of bags as 450. When waggon No. 5574 was unloaded on 12th January, 1945, it was found that it contained only 230 bags. The other waggon No. 29977 was unloaded on 13th January, 1945 and it contained only 200 bags. In respect of the shortage of 20 bags a telegram was sent by the Goods Station Master of the Salem Market to the Station Master at Harunabad. The Station Master, Salem Market, received a reply telegram from the Harunabad Station Master that waggon No. 5574 had been wrongly labelled to contain 230 bags, but that as a matter of fact 250 bags were loaded in that waggon. As the remaining 20 bags remained undelivered, notice was given to the Chief Commercial Superintendent, South Indian Railway, regarding the short delivery. Notice was also sent under section 80, Civil Procedure Code, to the Secretary, Government of India, Railway Department and to the General Manager, South Indian Railway, Trichinopoly. The reply from the South Indian Railway was that they are not liable. The suit was filed for recovery of damages for the non-delivery of the 20 bags which was met among other defences by the objection that notice under section 77 of the Indian Railways Act was not given to the North Western Railway through which also the goods were carried. The trial Court held on question of fact that only 430 bags were loaded at Harunabad and not 450, but upheld the Company’s objection as to the maintainability of the suit for want of notice under section 77 of the Act. In appeal, the learned Subordinate Judge accepted the finding as to the non-delivery of the 20 bags and also agreed with the trial Court on the question of the non-maintainability of the suit for want of notice. In appeal, the learned Subordinate Judge accepted the finding as to the non-delivery of the 20 bags and also agreed with the trial Court on the question of the non-maintainability of the suit for want of notice. The contention that is urged is that it has not been shown that the goods have been lost. The non-delivery of 20 bags could not be said to come within the meaning of the ‘word’ loss or within the scope of section 77 and unless it is shown by the Railway Company that the goods have been lost it is not incumbent on the owner of the goods to issue a notice under section 77. Section 77 is in the following terms: “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”. The argument is that it has not been shown that the goods have been lost. In support of this contention the decision of Horwill, J. in Governor-General of India in Council v. Krishna Shenoy1, is relied upon. In that case the plaintiff entrusted certain goods to the South Indian Railway, Ernakulam and consigned it to a client at Vizhakapatnam. To Vizhakapatnam the parcel would have had to be carried over the lines of the South Indian Railway up to Jalarpet, on the M. &38; S.M. Railway from Jalarpet to Waltair and on the B.N. Railway from Waltair to Vizhakapatnam The South Indian Railway satisfied the plaintiff that the goods were safely handed over to the M. &38; S.M. Railway authorities at Jalarpet. The M. &38; S.M. Railway stated that they had entrusted the goods to the B.N. Railway at Waltair, but the were not able to substantiate such an entrustment. The case therefore was filed on the basis that the parcel was in the custody of the M. &38; S. M. Railway. The M. &38; S.M. Railway stated that they had entrusted the goods to the B.N. Railway at Waltair, but the were not able to substantiate such an entrustment. The case therefore was filed on the basis that the parcel was in the custody of the M. &38; S. M. Railway. The question as to whether notice under section 77 of the Railways Act was necessary was considered and the learned Judge took the view that no such notice was necessary on the facts of that case. It was held that section 77 of the Railway Act requiring a formal claim to be made within six months of the despatch of goods relate only to compensation for loss, destruction or deterioration of goods and would not seem to apply in cases where there was for example a detention by the Railway. If the Railway wished to oppose a suit on the ground that the plaintiff had submitted his claim beyond six months of the date of delivery of the goods for carriage by the Railway, it would be incumbent on them to show that plaintiff’s claim was beyond six months from the date of entrustment of the goods and also that the goods had been lost or destroyed or deteriorated. In short section 77 of the Railways Act does not apply to non-delivery when it is not known what happened to the goods. There also really it was a case of non-delivery of goods and the learned Judge took the view that it is for the Railway Company to establish that the goods have been lost asm the present case before they could deprive the plaintiff from instituting a suit for want of notice provided for in section 77 of the Act within six months from the date of entrustment of the goods. The Bench decision in M. &38; S. M. Railway Co., Ltd. v. Haridoss Banmali Doss1is also referred to by the learned Judge with reference to which it is observed that the decision in M. &38; S. M. Railway Co., Ltd. v. Haridoss Banmali Doss1, as also the decision in Assam Bengal Railway Co., Ltd., v Radhica Mohan Nath2, must be read in the context as applying to the facts’ of that case. It is very difficult to conceive the point of time at which the Railway Company must make known to the claimant as to whether the goods have been lost, destroyed or damaged to justify the existence of a notice under section 77 of the Indian Railways Act. The decision in M. &38; S.M. Railway Co., Ltd. v. Haridoss Banmali Doss1, in my view governs the case which I am now considering. In that case the goods were delivered not to the consignee, but to a different person and therefore it was a case of misdelivery. Wallis, C.J. and Spencer, J., held that the suit was barred for want of notice under section 77 of the Indian Railways Act which applies to claims for compensation arising not only from non-delivery or accidental loss or destruction or deterioration of goods but also from wilful delivery to a person not entitled to them. Wallis, C.J., observed: “In this matter of requiring notice to the Railway Company within a reasonable time in order to enable them to make enquiries and if possible to recover the goods, there is really no reason for making a distinction between cases in which goods have been delivered inadvertently to the wrong person and cases such as the present in which they were delivered to a person other than the consignee who claimed to be entitled to them but did not produce the railway receipt as he should have done in support of his claim. We ought not to import distinctions of this sort into the Railways Act unless they rest upon some basis of sound reason which would be likely to have commended itself to the Legislature.” The loss may result in any manner but so long as the claimant does not receive the goods as per the Railway receipt it must be considered as loss and a notice is required. So long as the goods are not delivered to him, he should consider it as a loss. He will be entitled to commence a proceeding only af,er the issue of a notice tinder section 77. So long as the goods are not delivered to him, he should consider it as a loss. He will be entitled to commence a proceeding only af,er the issue of a notice tinder section 77. It is therefore not necessary for the Railway Company to establish that the goods have been lost in the sense of being not recoverable from anyone In a case of misdelivery the goods may or may not be recoverable But still, the learned Judges in M. &38; S.M. Railway Co., Ltd. v. Haridoss Banmali Doss1, considered on a construction of section 77 and the previous sections in the Act that such distinctions are not warranted in construing the provision of the Act as to notice. In view of the Bench decision in M. &38; S.M. Railway Co., Ltd. v. Haridoss Banmali Doss1, which has also been referred to by the lower Courts as also the decision of some other High Courts, I do not consider that the view taken by the lower Courts as regards the non-maintainability of the suit for want of notice under section 77 is wrong. The Second Appeal is dismissed and in the circumstances of the case, there will be no order as to costs throughout. No leave. R.M ----- Appeal dismissed.