Judgement JUDGEMENT :- This appeal is directed against the judgement and decree passed on 6-12-71 and 9-12-71 respectively by the Assistant District Judge, Sibsagar at Jorhat in Money Appeal No. 1 of 1970 reversing the judgement and decree passed on 23-12-69 and 6-1-70 respectively by the learned Munsiff, Jorhat in Money Suit No. 33 of 1969. 2. The plaintiff-respondent filed a suit for recovery of Rs. 3144.91 P. as compensation for short delivery of 20.43½ quintals of sugar. The defendant-appellant resisted the claim by filing written statement on various grounds including that there was no notice served on them under Sec. 78-B of the Indian Railways Act. 3. The learned Munsiff came to the finding that the plaintiff-respondent failed to prove that any notice under S.78-B of the Indian Railways Act was served by them on the defendants and on the basis of that finding he dismissed suit. The plaintiff-respondent being aggrieved by that judgement and decree of the learned Munsiff preferred an appeal before the Assistant District Judge, Jorhat. The learned lower appellate Court held that notice under Section 78-B of the Indian Railways Act was not necessary and on consideration of various issues he decreed the suit of the plaintiff-respondent. The defendant-appellant has come up on appeal before this Court. 4. The only question that was argued before me by the learned Counsel for the appellant is that the learned lower appellate Court was wrong in holding that no notice as contemplated by Section 78-B of the Indian Railways Act was necessary with reference to the facts of this case. 5. It is apposite to set out the relevant provision of Section 78-B which reads as follows : "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, damage, deterioration or non-delivery of animals or goods delivered to be carried unless his claim to the refund or compensation has been preferred in writing by him or on his behalf - (a) * * * * (b) * * * * within six months from the date of the delivery of the animals or goods for carriage by railway * * * *. 6. Section 78-B has been inserted by the Central Act 39 of 1961. 6. Section 78-B has been inserted by the Central Act 39 of 1961. Prior to insertion of this section, Section 77 of the Indian Railway Act covered the field in such matters. Section 77 as it stood prior to the Central Act 39 of 1961. was as follows : "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." 7. The learned Counsel for the appellant relied on two decisions of the Supreme Court in support of his submissions that notice under Section 78-B is mandatory and for failure of giving such notice the appellant could not be held liable for compensation. 8. The first decision of the Supreme Court is Governor-General-in-Council (Now Union of India) v. Musaddilal, AIR 1961 SC 725 . In that case the Railway Administration, in spite of steps taken, could not trace the consignment. In a suit for recovery of the amount of the value of the consignment the question that arose was whether a written claim contemplated by Section 77 of the Indian Railways Act, as it stood before its amendment by the Central Act 39 of 1961 was necessary or not. 9. By the time the matter came up to be considered by the Supreme Court, there had been a divergence of opinion between various High Courts in the country as to whether the claim for compensation for non-delivery would fall within the scope of this section or not, since the section used only three expressions, namely, loss, destruction or deterioration of goods and the expression non-delivery as such was not used. Some High Courts of this country have taken the view that if the non-delivery was the result of loss, it would fall within the scope of the expression, loss itself, and if the non-delivery was not the result of the loss, then it would not fall within the expression, loss occurring in this section and a written claim contemplated by this section would not be required. It is in that context that the Supreme Court has held in the decision referred to above as follows. "Section 77 of the Railways Act is enacted with a view to enable the railway administration to make enquiries and if possible to recover the goods and to deliver them to the consignee and to prevent stale claims. It imposes a restriction on the enforcement of liability declared by Section 72. The liability declared by Section 72 is for loss, destruction or deterioration. Failure to deliver is the consequence of loss or destruction of goods, it does not furnish a cause of action on which a suit may lie against the railway administration, distinct from a cause of action for loss or destruction. By the use of the expression loss, destruction or deterioration what is contemplated is loss or destruction or deterioration of the goods and the consequent loss to the owner thereof. If because of negligence or inadvertence or even wrongful act on the part of the employees of the railway administration, goods entrusted for carriage are lost, destroyed or deteriorated, the railway administration is guilty of failing to take the degree of care which is prescribed by Section 72 of the Railways Act." "Article 30 of the First Schedule to the Limitation Act, 1908, prescribes the period of limitation for suits against a carrier for compensation against loss of injury to goods and Article 31 prescribes the period of limitation for suits for compensation against a carrier for non-delivery of or delay in delivering the goods. Thus Article 31 expressly provides for non-delivery while Section 77 of the Railways Act did not use the expression non-delivery. It is in view of this, an argument was advanced before the Supreme Court in the above case that the word loss occurring in Section 77 of the Railways Act did not include non-delivery. The Supreme Court repelled this contention and observed :- "But because the Indian Limitation Act provides different points of time from which the period of limitation is to run, it is not possible to infer that the claim covered by either Article is not for compensation for loss, destruction or deterioration of the goods. The Supreme Court repelled this contention and observed :- "But because the Indian Limitation Act provides different points of time from which the period of limitation is to run, it is not possible to infer that the claim covered by either Article is not for compensation for loss, destruction or deterioration of the goods. We are unable to project the provisions of Articles 30 and 31 of the Limitation Act upon Sections 72 and 77 of the Railways Act and to hold that a suit for compensation for loss because of non-delivery of goods does not fall within Section 77. Thereafter the Supreme Court referred to certain decision of the High Court which had taken the same view and disapprove the two decisions - one of the Allahabad High Court in Governor-General-in-Council v. Mahabir Ram, AIR 1952 All 891 (FB) and the other of the Patna High Court in Jaisram Ramrekha Das v. G. I. P. Rly, Co., AIR 1929 Pat 109 which made a distinction between non-delivery and loss. The second decision of the Supreme Court relied on is the Union of India v. Mahadeolal, AIR 1965 SC 1755 . That case arose out of the short delivery of some bales of cloth. In that case the Supreme Court had to consider the same question regarding the non-delivery of goods. The Supreme Court reiterated the view it had already taken in the decision of AIR 1961 SC 725 (supra) in the following terms : "Now Section 77 inter alia provides that a person shall not be entitled to compensation for the loss, destruction or deterioration of animals or goods delivered to be carried by railway, unless his claim to compensation within six months from the date of the delivery of the animals or goods for carriage by railway. There was a conflict between the High Courts on the question whether non-delivery of goods carried by railway amounted to loss within the meaning of Section 77. Some High Courts (including the Patna High Court) held that a case of non-delivery was distinct from a case of loss and no notice under Section 77 was necessary in the case of non-delivery. Other High Courts, however, took a contrary view and held that a case of non-delivery also was a case of loss. Some High Courts (including the Patna High Court) held that a case of non-delivery was distinct from a case of loss and no notice under Section 77 was necessary in the case of non-delivery. Other High Courts, however, took a contrary view and held that a case of non-delivery also was a case of loss. This conflict has now been resolved by the decision of this Court in AIR 1961 SC 725 and the view taken by the Patna High Court has been overruled. This court has held that failure to deliver goods is a consequence of loss or destruction and the cause of action for it is not distinct from the cause of action for loss or destruction, and therefore, notice under Section 77 is necessary in the case of non-delivery which arises from the loss of goods." 10. From this, it is clear that both the above two decisions of the Supreme Court were concerned only with one question, namely, whether non-delivery will be comprehended by the expression loss of goods occurring in Section 77 of the Railways Act as it stood before its amendment by the Central Act 56 of 1949 and the Central Act 39 of 1961. 11. From these decisions it is quite apparent that even before the insertion of Section 78-B in 1961 for non-delivery also notice was held to be mandatory and it was required to be served on the Railway Administration in order to impose liability for compensation. Now from the provisions of Section 78-B it is found that along with loss, destruction and deterioration the expression; non-delivery has also been specifically used. Therefore, I am of the opinion that notice under Section 78-B is mandatory and the learned lower appellate Court was wrong in folding that no such notice under Section 78-B was necessary. 12. The learned Counsel for the appellant not argue any other point and he submitted that only on the question of notice the Judgement and decree of the appellate court should be set aside, la my view, the submission of the learned counsel is well-founded and I hold that the learned lower appellate Court was wrong in allowing the appeal of the plaintiff-respondent and decreeing the suit. The judgement and decree of the lower appellate Court are set aside. Nobody has appeared on behalf of the respondents in this appeal. The judgement and decree of the lower appellate Court are set aside. Nobody has appeared on behalf of the respondents in this appeal. In the circumstances I pass no order as to costs. Order accordingly.