MOHANLAL SHRILAL MOHATA A FIRM v. UNION OF INDIA — 1964 DIGILAW 198 (CAL)

CHATTERJEE, J. ( 1 ) THE plaintiff, a firm, instituted the present suit for recovery of damage against the Union of India as the "owner of Eastern Railway, Calcutta, and Central Railway, Bombay"; that part of Eastern Railway is now described as South Eastern Railway. Hence, the appeal to this Court is against the Union of India as the "owner of South Eastern Railway and Central Railway. " ( 2 ) ON the 6th July, 1953, two consignments were delivered to Central Railway at Wadi Bunder Station for carriage to Shalimar (South Eastern Railway) each containing 25 bales of cotton piece goods (umbrella cloth ). The goods were sent at Owner's risk. The goods were received at Shalimar end, Eastern Railway (as it then was) in a damaged condition. The certificate for damage given by the Eastern Railway is as follows :-"in 3 bales 2266 yards umbrella cloth damaged by wet. Damage was assessed to the extent of 15% only on these 2266 yards umbrella cloth. In 4 bales 2960 yards umbrella cloth damaged by wet. Damage was assessed to the extent of 20% only on these 2960 yards umbrella cloth. Packing condition was not strictly complied with as the bales were steel-trapped on one side only. Inside packing complied with. " ( 3 ) THE damage certificate was issued on the 29th July, 1953. This is Ext. 1. On the 3rd August, 1953, a notice under Section 77 of the Indian Railways Act IX of 1860 was issued. The notice was addressed to the Commercial Superintendent, Eastern Railway, 1, Royal Exchange Place, Calcutta. The notice begins by saying, "under Section 77 of the Indian Railways Act IX of 1890 we hereby prefer a claim for Rs. 5362-8-0 (Rupees five thousand three hundred sixty-two and annas eight only ). . . . . . . . . . . . . " This sum of Rs. 5362-8-0 included a sum of Rs. 4875/- for the damages and a sum of Rs. 487-8-0 for the loss of profit. This is Ext. 3 (a ). The aforesaid letter Ext. 3 (a) was received in the office of the Chief Commercial Superintendent, Eastern Railway, and the receipt is marked Ext. 5 (a ). The reply to this letter is dated the 24th August 1953 and marked Ext. 5. 487-8-0 for the loss of profit. This is Ext. 3 (a ). The aforesaid letter Ext. 3 (a) was received in the office of the Chief Commercial Superintendent, Eastern Railway, and the receipt is marked Ext. 5 (a ). The reply to this letter is dated the 24th August 1953 and marked Ext. 5. The Chief Commercial Superintendent replied as follows :-"will you please submit two separate claim bills in connection with the consignments quoted above to facilitate my enquiry early? This is without prejudice. " ( 4 ) THE present suit was thereafter instituted for the recovery of the aforesaid sum of Rs. 5373-6-3 on the 20th September, 1964, after giving a notice under Section 80 of the Code of Civil Procedure. Mr. Chakraborty relied on paragraph 7 of the plaint where it is stated as follows :-"the defendant Administration issued notification on 8. 3. 54 in pursuance of a letter dated 15. 5. 53 by the railway Board for accepting the notice of claim under Section 77 of the Indian Railways Act on the Chief Commercial Superintendent, Eastern Railway. ( 5 ) THE defendant filed written statement. With regard to paragraph 11 the defendant stated as follows in paragraph 13 of the written statement : -"re: paragraph 7 of the plaint the defendant denies any service of notice either under Section 77 of the E. I. Rules Act or under Section 80 of the C. P. Code and that even if at all the same is not legal, valid and operative, the plaintiff must prove the same at the trial. " ( 6 ) THE written statement was filed on behalf of the Union of India without stating whether it was filed by the Union of India as representing the South Eastern Railway or the Central Railway. We therefore may take that the same was filed by the Union of India as representing both the Railways concerned. It is - relevant to mention here that no case was made in the written statement that one or the other of the Railways would not be liable. No case made that the Union of India as represented by the Eastern Railway would not be liable unless it was proved that the damage occurred while the goods were in the custody of the Eastern Railway. No case made that the Union of India as represented by the Eastern Railway would not be liable unless it was proved that the damage occurred while the goods were in the custody of the Eastern Railway. I do not very much appreciate this distinction but this distinction that Union of India administering each Railway is a different entry is established I our Court because of the decisions of several Division Benches on this point. ( 7 ) THE matter came up for hearing. The learned Subordinate Judge found that the claim for compensation has been proved by the claim for loss of profit failed for want of evidence. But the suit was dismissed on the grounds that the plaintiffs failed to prove that they were the endorses of the railway receipts for valuable consideration and further the notice under Section 77 of the Indian Railways Act was found to be bad in law. [as some paragraphs following deal with facts of the case, they are omitted-Ed. ] ( 8 ) THE only question that remains to be considered is regarding the validity of the notice under Section 77 of the Indian Railways Act. In this case we have seen that the notice was not issued to the General Manager of the Eastern Railway, the notice was issued to the Commercial Superintendent, Eastern Railway; but the notice was accepted by the Chief Commercial Superintendent, Eastern Railway. We would assume that the notice was meant to be sent to the Chief Commercial Superintendent in whose office it was actually sent. The question, therefore, is whether a notice addressed to the Chief Commercial Superintendent, Eastern Railway, is a good notice or not. Mr. Chakraborty says that the statement in paragraph 7 not being denied, that question cannot be allowed to be raised. The statement was that on the 8th March, 1954, the Eastern Railway administration issued a notification in pursuance of a letter dated the 15 May, 1953, by the Railway Board for accepting the notice of the claim under Section 77 of the Indian Railways Act on the Chief Commercial Superintendent, Eastern Railways. Section 77 of the Indian Railways Act provides for a claim to be preferred in writing to the Railway Administration. Section 77 of the Indian Railways Act provides for a claim to be preferred in writing to the Railway Administration. The word "railway Administration" has been defined in Section 2 (6) of the Act to mean - "in the case of a Railway administered by the Government, - "the manager of the Railway" and includes the Government. " Therefore, Section 77 directs that the notice is to be issued to the manager. Neither a letter of the Railway Board nor a notification by the Eastern Railway can modify the provisions of the statute. Therefore, the notice must be issued upon the manager of the Railway concerned. What is intended to be done is, instead of serving the notice in the office of the General Manager or this Manager, the notice may be served on the Chief Commercial Superintendent. That only relates to the manner of service of the notice and does not relate to the contents of the notice nor does it modify the provision regarding the authority to be notified. ( 9 ) BUT on this aspect of the matter there are conflicting judgments of our Court and, therefore, we shall consider that aspect of the matter. Handerson, J. , in a case between Sristidhar Mandal v. Governor-General in Council and Ors. , reported in 49 CWN, at page 240, held that, if the notice is given to the Chief Commercial Manager, it would be preposterous to say that no notice has been given to the Railway administration. Handerson, J. , was of opinion that had the notice been sent to the General Manager, he would have merely forwarded the same to the Chief Commercial Manager. Therefore, if the notice has been given to the Manager, who would really deal with the matter, nothing wrong would be done. In a decision reported in 55 CWN, 662, between Union of India v. Indumati Saha, a Division Bench of this Court (Mookerjee and Guha, JJ.) held that the word "manager" in Section 2 (6) does not mean any sectional or departmental manager like the Chief Commercial Manager but the principal or the General Manager who is in overall charge of the Railway administration, - a person who is in a position because of his office to represent the Railway administration. In a decision reported in 59 CWN, 278 between Union of India v. Gujrat Tobacco Co. and Ors. In a decision reported in 59 CWN, 278 between Union of India v. Gujrat Tobacco Co. and Ors. , P. N. Mookerjee and Guha Ray, JJ. , held that a notice to the Chief Commercial Manger was sufficient compliance with the requirements of law and P. N. Mookerjee, J. , observed that in such matters the Court should not be too technical or hypercritical so as to hinder the cause of justice. In 59 CWN, 1064, Lahiri, J. , (as his Lordship then was) considered another decision of this Court between Assam Bengal Railway Co. v. Radhika, 28 CWN, 438. That was the decision which was followed by Mookerjee, and Guha, JJ. , in 55 CWN, 662. Lahiri, J. , was pleased further to consider the decision of P. N. Mookerjee and Guha Roy, JJ. in 69 CWN 278. His Lordship observed as follows :-"as I read this case (49 CWN, 240), it is no authority for the proposition that the view taken by Mookerjee and Guha, JJ. , in the case of Union of India v. Indumati Saha, 55 CWN, page 662, was wrong. " ( 10 ) HIS Lordship followed the earlier decision in 55 CWN, 662, which followed another still earlier decision in 28 CWN, 438. All these decision were of the Division Benches. This matter thereafter came up for consideration by Das Gupta and Guha, JJ. , in the case between South Indian Co-operative Stores Ltd. v. Union of India, 60 CWN, page 985 and their Lordships agreed with the view expressed in the earlier decision reported in 55 CWN, 662. The matter then came up before Bachawat, J. , in a case between Radhamadhab Kundu v. Union of India, reported in 61 CWN, 433. Bachawat, J. , came to the conclusion that the notice to be served on the General Manager may also be served on the Chief Commercial Manager. There is another decision reported in 65 CWN, 876 of a Division Bench of this Court (Banerjee and Niyogi, JJ.) in the case between Niranjan Lal v. Union of India. It was held in that case as well that the notice to the Chief Commercial Manager was not sufficient. There is another decision reported in 65 CWN, 876 of a Division Bench of this Court (Banerjee and Niyogi, JJ.) in the case between Niranjan Lal v. Union of India. It was held in that case as well that the notice to the Chief Commercial Manager was not sufficient. The matter came up before me sitting singly in C. R. 750/57 and I observed as follows:-"what strikes me most in this matter is that, referring to the definition of the word "railway administration," it refers to that "manager" who represents the entire Railway. " ( 11 ) EVIDENTLY, this word "manger" was intended to mean not merely an officer who is described as "manager" but a person who is in the position to represent the entire Railway. A Manager like the Chief Commercial Superintendent is a manager but he is not in a position to represent the entire Railway; he may be in a position to represent a department of the Railway. I was, therefore, of opinion that a notice served upon the Chief Commercial Manager was no good notice. Having considered the matter more carefully and having heard the arguments of the learned lawyers for both the sides, I am still of opinion that the word "manager" in Section 2 (6) of the Indian Railways Act, refers to the Railway officer who would be in a position to represent the Railway. The said manager is certainly a Railway servant but he must also be a person who may be in a position to represent the Railway i. e. , who must have overall charge of the entire Railway. If the designation of such an officer is changed from General Manage to the Principal Director or the Agent, - in whatever designation may be, the person to be notified must be such as would represent the entire Railway administration. The Chief Commercial Manager or the Chief Commercial Superintendent is clearly not such an officer. He may be a very important officer, he may be a very good Railway servant having a high position, but he nonetheless does not represent the Railway administration. The Chief Commercial Manager or the Chief Commercial Superintendent is clearly not such an officer. He may be a very important officer, he may be a very good Railway servant having a high position, but he nonetheless does not represent the Railway administration. Even if the "manager" directs all enquiries to be made by the Chief Commercial Superintendent and even if he merely forwards a claim to the Chief Commercial Superintendent, that would be only for purposes of the department; but so far as the third parties are concerned, the responsibility is the responsibility of the manager who is in overall charge. Section 104 certainly refers to Manager and that would merely clarify the distinction that we may have made, namely, that the word "manager" in Section 2 (6) does not refer to a person who has that designation but to the person who is in charge of managing the affairs of the entire Railway. I would, therefore, hold that the notice under Section 77 has not been addressed to the proper person and, therefore, it is not a proper notice and we agree with the Court below on this point. ( 12 ) BUT the next question that has been urged before us by Mr. Chakraborty is, because of the conduct of the Railway administration, they are estopped from raising the dispute, as they waived their objection regarding the insufficiency of the notice under Section 77 of the Indian railways Act. ( 13 ) MR. Chakraborty relies on a decision of a Division Bench of this Court reported in 60 CWN, 985, between South Indian Co-operative Store Ltd. v. Union of India (supra ). In that case notice under Section 77 was sent to the Chief Commercial Superintendent. The Chief Commercial Superintendent on the 23rd May, 1953, wrote to the appellant as follows:-"my enquiry shows that old dented and rusted drums, which are not suitable for nominal handling, were used in this case. As such the contents were leaking through joints. Careful enquiry in this cause does not reveal any negligence or misconduct on the part of the railways in the circumstances and while the loss is very much regretted any claim form compensation iron the same cannot be entertained. As such the contents were leaking through joints. Careful enquiry in this cause does not reveal any negligence or misconduct on the part of the railways in the circumstances and while the loss is very much regretted any claim form compensation iron the same cannot be entertained. " ( 14 ) DAS Guha, J. , held as follows:-"it is important to notice that in this letter the Chief Commercial Superintendent refuses to entertain the claim on the ground that there was no negligence or misconduct on the part of the Railways or its servants but does not say no claim can be entertained until and unless a notice as required under Section 77 has been served. "das Gupta, J. (then in this Court) again held as follows:-"in my judgment this should be taken as to amount to waiver by the Chief Commercial Superintendent of the protection of Section 77 of the Indian Railways Act. " ( 15 ) HIS Lordship further held:- "my conclusion, therefore, is that the Chief Commercial Superintendent has, as an agent of the Union of India, authority to waive the protection of Section 77 of the Indian Railways Act on behalf of the Union of India. " Mr. Chakraborty very strongly relies upon this judgment. In C. R. Case No. 750 of 1957 sitting singly I followed the judgment and as far as I know this judgment has never been dissented from by any other judgment of this Court. ( 16 ) MR. Bose raises a further important point. Mr. Bose refers to a decision of the Judicial Committee on the very same point as to waiver of a notice that statute requires. In that case the waiver related to a notice under Section 80 of the Code. The decision is reported in n74 Indian Appeals, page 223, between Vellayan v. Government of the Province of Madras. Their Lordships held, "there is no inconsistency between the proposition that provisions of Section 80 are mandatory and must be enforced by the Court and that they may be waived by the authority for whose benefit they are provided, and it is accordingly competent for the defendant in a suit to which Section 80 applies to waive his right to a proper notice. " So far as this proposition is concerned, it does not trouble us. " So far as this proposition is concerned, it does not trouble us. ( 17 ) BUT the next question which Lord Simonds considered was whether in that case the respondent did waive its rights or alternatively was the respondent estopped from saying that it did not. The fact of that case shows that there was an earlier suit before the District Munsif and in that suit notice was pleaded but the Government did not challenge it. It was urged therefore that in the next suit which was in appeal before the Judicial Committee the question of want of notice could not be raised, because that was not taken in the earlier suit. The Judicial Committee observed as follows:-"it comes therefore to no more than this, that in a suit which was wrongly brought in the Court of the District Munsif the respondents were content to rely on want of jurisdiction for one reason only when two reasons were available. They were successful in the plea which they raised. On the suit being instituted in the Court of the Subordinate Judge - and for this purpose it is immaterial whether the suit is to be regarded as a new suit or the old suit reinstituted in another Court - they at once raised the plea on which they have ever since relied. . . The respondents were under no duty to them to point out their error. They might have been negligent in their own interest in not raising the plea at an earlier stage, but negligence cannot give rise to an estoppel unless there is a duty of care. " ( 18 ) IN this case Mr. Chakraborty depends on a letter written by the Chief Commercial Superintendent which is Ext. 5 where he states as follows:-"will you please submit two separate claim bills in connection with the consignments quoted above to facilitate my enquiry early. This is without prejudice. " ( 19 ) WHAT was the prejudice? It may be that the Chief Commercial Superintendent had doubts or he never intended to waive the notice under Section 77 of the Indian Railways Act. He was inclined to enquire into the matter; but this enquiry would be without any prejudice to the rights of the Railway administration and he made that clear. If he had not written that single sentence, we might have said that he was negligent. He was inclined to enquire into the matter; but this enquiry would be without any prejudice to the rights of the Railway administration and he made that clear. If he had not written that single sentence, we might have said that he was negligent. But even then Mr. Bose would urge on the basis of the aforesaid decision of the Judicial Committee that this negligence does not create estoppel nor does it amount to waiver, because the Chief Commercial Superintendent owed no duty to the claimant to point out the notice was bad and, therefore, there would be no estoppel. ( 20 ) THE decision reported in (8) 74 Indian Appeals, page 223, was not placed before Das Gupta, J. , when his Lordship delivered the judgment in (6) 60 CWN. When I considered the matter sitting singly in C. R. 750/57 this judgment was not also referred to me. ( 21 ) IT is unnecessary for me in the present case to express any doubt on the principle enunciated in (5) 60 CWN. It is not necessary further to say whether in view of the decision of the Judicial Committee and in view of another decision of a Full Bench of this Court reported in 56 CWN, 53, the decision of Das Gupta and Guha, JJ. , should be followed or not. But there is a substantial difference on facts. In the decision reported in 60 CWN, the statement made by the Chief Commercial Superintendent was an unqualified statement. It might have been urged that even in that case the Chief Commercial Superintendent could have taken two objections, namely, (i) that the claimant had no claim and (ii) that the notice was improper. If the Chief Commercial Superintendent took one objection - did not take the other. It may be urged with equally good force that he was merely negligent in not taking the second objection. But on the view taken by the Judicial Committee on this matter that would be mere negligence in a case where there is no duty of care and it could therefore be urged that there should have been no finding of waiver. However, it is not necessary for us in the circumstances of this case to pursue the matter further. In this case the Chief Commercial Superintendent agreed to entertain the claim but without prejudice to the rights of the Union of India. However, it is not necessary for us in the circumstances of this case to pursue the matter further. In this case the Chief Commercial Superintendent agreed to entertain the claim but without prejudice to the rights of the Union of India. What the prejudice is? The prejudice is nothing more than an apprehended plea of waiver or estoppel. If the Chief Commercial Superintendent has taken care to protect against it, it is difficult for us to say in spite of such clear care taken by the Chief Commercial Superintendent, he on behalf of the Union did waive or it was esto0pped. On a construction of the letter Ext. 5 we are of opinion that he did not waive and had no intention to waive and protected the Union from any such plea by the last line of his letter. ( 22 ) WE may here again record that the claim of the plaintiff is being over-ruled not for any defect in the merits of the case but because a notice was issued under circumstances which might mislead a claimant and did mislead the claimant. I mean the conflicting decisions of this Court might have misled the plaintiff; but we have no powers, as we interpret the law, to grant a decree in favour of the claimant. We have only one discretion and that is, with regard to costs and, therefore, we direct each party will bear his costs throughout. The result is that the appeal is dismissed. Each party will bear his costs throughout. Appeal dismissed.