JUDGMENT S. B. Sinha, J. This First Appeal is directed against the judgment and decree dated 5th May, 1984 passed by Sri Laxman oraon, Subordinate Judge, Jamshedpur in Money Suit No. 161 of 1977 whereby and whereunder, the said learned court decreed the plaintiff-respondent's suit. 2. The plaintiff-respondent filed the aforementioned suit for realisation of a sum Of Rs. 23,744.73 paise from the defendant-appellant by way of the price of articles which were not received by the plaintiff, as described in Schedule 'A’ of the plaint. 3. According to the plaintiff, it is a firm registered under the Indian Partnership Act and it has a branch at Jamshedpur wherein it is carrying on business under the name and style of M/s Tiles and Sanitary Marl. Allegedly, a consignment of 1004 packages of Sanitary ware and fittings etc. were booked at Bahadurgarh station of the Northern Railway to be delivered at Tatanagar Rail-way station. The said booking was under railway risk. It was further alleged that packing conditions of the railway were also fulfilled. 4. According to the plaintiff on 10.9.1974 when open delivery of the consignment was given to the plaintiff and at that time, it was found that 56 packages out of the consignment containing 15 different kinds of items had been removed and three items of materials viz. one piece cistern syphonic 21004, one piece . Ewe Syphonic p 200007 and two pieces of cistern 15 lit. 21001 were found to have been badly broken and unfit for any use and service. The plaintiffs therefore, prayed for a decree of Rs. 23,744.73 paise by way of price of the aforementioned articles. 5. A written statement was filed by the appellant in the aforementioned suit 'wherein, it was inter alia contended that the plaintiff has no locus standi to file the suit in respect of goods sent in favour of M/s Tiles and Sanitary Mart. 6. The defendant denied that M/s Tiles and Sanitary Mart is a branch business of the plaintiff's firm. The appellant however admitted the contention of the plaintiff, to the effect that when open delivery of the consignment was given to the plaintiff on 10.9.1974, a portion of the consignment was found to be missing and some goods were found to have been damaged. 7. The appellant however denied that the said damages were caused owing to negligence and misconduct of the railway servants. 7. The appellant however denied that the said damages were caused owing to negligence and misconduct of the railway servants. It was further alleged that shortages and damages were owing to non observance of the packing conditions. 8. The learned court below, in view of the pleadings of the parties aforementioned framed the following issues : "1. Has the plaintiff any cause of action or right to sue? 2. Is the suit maintainable in its present form? 3. Is the suit barred by limitation? 4. Has any valid and legal notice under Section 78/B of the Indian Railways Act, and under Section 80 of the the Civil Procedure Code been served upon the competent authority? 5. Is the business carried in the name and style of M/s Tiles and Sanitary Mart is a branch business of the plaintiff firm M/s Mineral and Marble Development Company, within the meaning of the Indian partnership Act? 6. To what relief, if any, is the plaintiff entitled to?" 9. The learned trial court took up issue no. 5 and held that although from Ext. 13, which is a certificate of registration granted in favour of the plaintiff under Section 69 of the Partnership Act, 1974, it is evident from the other documents namely registration certificate granted by the Commercial Taxes authorities as also the order of assessment passed by the Income tax authorities which are contained in Ext-13/A anti Ext. 12/B and thus the plaintiff has been able to prove that it had been carrying on a branch business in the name and style of M/s Tiles and Sanitary Mart. 10. With regard to issue no.4, the learned trial court held that the defendant-appellant is not entitled to invoke the provisions of section 778 of the Indian Railway Act, inasmuch as, it had not produced the railway receipts and other documents which were sent to the defendant by the plaintiff through its letter dated 29.11.1976/5.2.1977 (Ext.4). According to the learned court below had those documents been produced it could have been shown that the plaintiff had declared the value of the booked consignment as is required under the aforementioned provisions. 11. The learned trial court further held that as the appellant has already admitted its liability and paid a sum of Rs. According to the learned court below had those documents been produced it could have been shown that the plaintiff had declared the value of the booked consignment as is required under the aforementioned provisions. 11. The learned trial court further held that as the appellant has already admitted its liability and paid a sum of Rs. 7053/- by way of a cheque, it must be held to have admitted the short delivery as also the fact that damages took place owing to negligence on, the part of the servants of the railway administration. 12. Mr. D. N. Chatterjee, the learned counsel appearing on behalf of the defendant-appellant raised two contentions in support of this appeal. 13. The learned counsel firstly drew my attention to the fact that Ext.13 had been taken back by the plaintiff-respondent and it should have refiled the same in t his Court. The learned counsel further, submitted that had Ext.13 been refiled by the plaintiff, it could have been shown that the certificate of registration granted to it under the provisions of section 69 of the Indian Partnership Act, 1934, docs not contain anything to show that the plaintiff had been carrying on any branch business under the name and style of the aforementioned M/s Tiles and Sanitary Mart or it carries on business at any place other than sundernagar, Jamshedpur. 14. The learned counsel further drew my attention to section 58(C) of the Indian Partnership Act. It is true that Ext.13 has not been refiled by the Plaintiff: 15. The learned counsel next contended that in view of the provisions of section 77B of the Indian Railways Act, the plaintiff was not entitled to any damages as no declaration of the price of the goods were made. It was also submitted that the packing conditions were also not fulfilled. 16. Mr. Chatterjee however did not question the other findings of the learned trial court arrived at by it on the basis of the aforementioned evidence produced by the plaintiff. Re-Question-I 17. Even assuming that the submission of Mr. It was also submitted that the packing conditions were also not fulfilled. 16. Mr. Chatterjee however did not question the other findings of the learned trial court arrived at by it on the basis of the aforementioned evidence produced by the plaintiff. Re-Question-I 17. Even assuming that the submission of Mr. Chatterjee, to the effect that in the registration certificate (Ext.13), the branch business carried out by the plaintiff at Bistupur in the name and style of M/s Tiles and Sanitary Mart is not mentioned, in my opinion, the same would not preclude the plaintiff to recover its just dues in the event, it has been able to prove as of fact that it carries on business in the name and style of M/s Tiles and Sanitary Mart. 18. Before the learned trial court, the plaintiff produced a certificate of registration under section 9 of the Bihar sale Tax Act which was marked as Ext. 13A, the same being in relation to the aforementioned M/s Tiles and Sanitary Mart and from a perusal whereof, it appears that an additional place of business has been shown to be M/s Mineral and Marble Development Co. 19. Ext. 13/D is the acknowledgment of receipt in the name of M/s Tiles and Sanitary Mart. Ext.12/B is the order of assessment of the plaintiff-company for the year 1973-74, which shows that M/s Tiles and Sanitary Mart has a branch business of plaintiff. 20. It is, therefore, clear that before the concerned authorities, the plaintiff had disclosed that it carries on business at Jamshedpur also under the name and style of M/s Tiles and Sanitary Mart which, is also evident from Ext.1. The first contention raised on behalf of the appellant is, therefore, has no substance. Re-Question-II 21. Section 77B of the Indian Railways Act read as follows : "Further provision with respect to the responsibility of a railway administration as a carrier of articles of special value. (1) Notwithstanding anything contained in the provisions. The first contention raised on behalf of the appellant is, therefore, has no substance. Re-Question-II 21. Section 77B of the Indian Railways Act read as follows : "Further provision with respect to the responsibility of a railway administration as a carrier of articles of special value. (1) Notwithstanding anything contained in the provisions. of this Chapter, when articles mentioned in the Second Schedule are contained in any parcel or package delivered to a railway administration to be carried by railway and the value of such articles in the parcel or package exceeds five hundred rupees, the railway administration shall not be responsible for the loss, destruction, damage or deterioration of the parcel or package unless the person sending or delivering the parcel of package to the administration caused its value and content's to be declared in writing or declared them in writing at the time of the delivery of the parcel or the package for carriage by railway, and if so required by the administration paid or engaged to pay in writing a percentage on the value so declared by way of compensation for the increased risk. (2) When any parcel or package of which the value has been declared under sub-section (1) has been lost, destroyed or damaged or has deteriorated, the compensation recoverable in respect of such loss, destruction, damage or deterioration shall not exceed the value so declared. (3) A railway administration may make it a condition of carrying a parcel or pack-age declared to contain any article mentioned in the second schedule that a railway servant authorised in this behalf has been satislied by examination or otherwise that the parcel or package actually contains the article declared to be therein. (4) The Central Government may, by notification in the official Gazette, direct that any article mentioned in the Second Schedule may, without being contained in any parcel or package, be delivered to a railway administration to be carried by railway and upon the issue of such notification, the provisions of this section shall apply in relation to such article as they apply in relation to any article mentioned in the second Schedule and contained in any parcel or package." 22. The said provision ex facie, excludes the liability of the railway administration to pay any damage in the event no declaration as provided for under sub-Section 1 of section 77B has been made before the booking authority at the time of the booking of the consignment. 23. As noticed hereinbefore, the learned court below has proceeded on the basis that the defendant has accepted the liability by making a part payment of Rs. 7053/-. 24. It further held that had the appellant produced the railway receipts and other documents which were sent to it by the plaintiff through its letter dated 29.11.1976/5.2.1977 (Ext.v4), it could have been clear as to whether the plaintiff has made a declaration with regard to the value of the booked consignment. 25. The palintiff's partner, who examined himself as PW 4 has admitted that a part of the consignment were made of china clay. It is also evident from the short certificate granted in favour of the plaintiff which has been marked as Ext.7. 26. Mr. B. B. Sinha, the learned counsel appearing on behalf of the respondent however submitted that a declaration of the value of the goods was made which would appear from the statements of PW 4. The said statements were recorded with objection from the side of the defendant. 27. From a perusal of the plaint, it does not appear that the plaintiff has made any averment with regard to the declaration of the goods in terms of the provisions of Sub section 1 of section 77B of the Indian Railways Act. The statements of PW4 to the aforementioned effect was, therefore, not admissible. Had the plaintiff in fact made any declaration, it could have called for the original thereof from the plaintiff or could have led secondary evidence in relation thereto. 28. In Deepchand Kharajmal Vs. Union of India and anr. (AIR 1979 Madras, 88), a learned single Judge of Madras High Court held that where no declaration has been made, the railway authorities arc not liable to pay any damages whatsoever. 29. Mr. Chatterjee has further pointed out that from short certificate as contained in Ext.7, the following has been mentioned “SWA. P-17 not complied with. Twin straim not in CIS visible to bags loaded in M.T.H. Sdg. loading not supervised by Rly. staff. 29. Mr. Chatterjee has further pointed out that from short certificate as contained in Ext.7, the following has been mentioned “SWA. P-17 not complied with. Twin straim not in CIS visible to bags loaded in M.T.H. Sdg. loading not supervised by Rly. staff. Out of 1004 pkgs Sanitary ware received 948 kgs or 56 pkgs short as per record. To ascertain the actual shortages, the pkgs were verified without prejudice as per beejuck produced and found the following articles missing as per beejuck : (1) Wash Basin-10008-1 (one) PC Short-Beejuck price Rs. 52/-each. (2) Orissa Pan-20004-3 (three) PC. Short- price Rs. 83/- each. (3) EWC Syphonie-P2oo007-1 (one) PC short- price Rs. 136/50 each. (4) EWC Syphonie-S20007-5 (live) PC short- price . Rs. 142/50 each. 30. The said short certificate read as follows: "RR does not show any bag. The beejuck quantity of fittings cannot be accommodated in the 3 B/s. Hence shortage in the 3 B/g do not be declared. Party is to prove the shortages of those 3 B/S. Apart from the above shortages, the following PCS also found broken : Ewe Syphonie P 20007-1 (one) PC broken; Syphonie 21004-1 (one) PC broken-Beejuck Rs. 79/50 p. each, cistern 15 lit. 21001-2 (two) PCS broken. Broken contents kept in the G/shed for further• disposal, as those are refused by the party as unserviceable. Packing not crated only wrapped up with draw and packing condition not complied with. Party is to prove whether they loaded all the materials including the fittings as mentioned in the beejuck. Regarding the fittings 2 B/s found in torn state and 2 chains loose. These 2 B/s contained only 30 (thirty) nos. Flush Burds and 2 C.I. chains. Delivered without prejudiced as per above remark." 31. From the short certificate as contained in Ext. 7 of the appeal, as noticed hereinbefore, it was mentioned that P/17 was not complied with i.e. the consignment was not packed in crates. However admittedly the said packing conditions were required for the sanitary wares made of china clay and not in respect of sanitary fillings. It has not been pointed out before me that in respect of sanitary fittings also the packing conditions as laid down in p-17 of the good tariff were required to be fulfilled. 32. Mr. However admittedly the said packing conditions were required for the sanitary wares made of china clay and not in respect of sanitary fillings. It has not been pointed out before me that in respect of sanitary fittings also the packing conditions as laid down in p-17 of the good tariff were required to be fulfilled. 32. Mr. B. B. Sinha, the learned counsel appearing on behalf of the plaintiff-respondent drew my attention to section 58, 72, 77-C, 77A, 78 (A) of the Indian Railways Act, it would be evident that even in relation to goods in respect whereof declaration has not been made, burden of proof will be upon the railway authorities. The learned counsel, in this connection has also relied upon in Union of India and anr. Vs. M/s K. Mansukhram and sons, Ahmadabad (AIR 1979 Gujrat, 176) and in Surai Nath Prasad Kedarnath Vs. Union of India (AIR 1975 Calcutta, 203). 33. The submission of the learned counsel is not correct. Section 58 (e) of the Indian Railways act is wholly irrelevant for the purpose of this case. Section 72 merely provides that even in respect of the goods mentioned in the 2nd Schedule appended to the Indian Railways Act, a forwarding note is required to be issued. Section 77(C) provides that the Railway administration shall not be liable to pay damages in certain circumstances. Section 78A deals with the burden of proof. Section 77B of the Act contains a non obstante clause which is of wide import. The said provision is an exclusion clause whereby the railway administration will have no liability whatsoever in the event it is found that the consignor has not declared the value of the goods. 35. Section 77B, therefore, deals with the substantive right and obligations of the parties whereas section 77C, 78A of the Indian Railways Act deal with the procedural matters. 36. The decision cited by the learned counsel for the respondent in Union of India and anr. Vs. M/s K. Mansukhram and sons, Ahmadabad (AIR 1979 Gujrat, 176) and in Surai Nath Prasad Kedarnath Vs. Union of India (AIR 1975 Calcutta, 203) are wholly inapplicable in the facts and circumstances of this case, Those were the cases of non delivery of the goods and therefore, it was held that provision of section 77B of the said Act will have no application in relation thereto. 37. Union of India (AIR 1975 Calcutta, 203) are wholly inapplicable in the facts and circumstances of this case, Those were the cases of non delivery of the goods and therefore, it was held that provision of section 77B of the said Act will have no application in relation thereto. 37. The case at hand, however, is in relation to short delivery of goods and not non-delivery thereof. 38. Mr. Sinha, thereafter, submitted that' as the appellant has accepted that the consignment was damaged and in view of the fact that a sum of Rs. 7053/- was paid by way of a part compensation, the railway administration is estopped from contending that it is not liable to pay any further sum to the plaintiff-respondent. Rule of estoppel, in a strict sense, is a law of procedure. It is now well known that there cannot be an estoppel against statute. 38. By reason of the provision of Section 77B of the said Act, the railway administration has been made not liable to pay any damages. Only because damages have been paid in part, the same shall not constitute an estoppel against the appellant. 39. Mr. Sinha then submitted that from a perusal of the items of the goods as specified in details in Schedule-A appended to the plaint, it would appear that all goods do not come within the purview of Item K of 2nd Schedule of the Act. 40. According to the learned counsel, the said articles have been mentioned item nos. 12,13, 14 and 15 of the Schedule appended to the plaint. The said item nos. 12,13,14 and 15 read as follows : "12. Cistern-15 liytrd 21001--10 Nos. Rs. 120 each - Rs. 1200/ 13. Price of cistern Fillings 2200-140 sets 111- Rs. 15,540/- 14. Price of C.P. Flush Bend 110 PCS. 46/- each-5060/- 15. Price of Syphonic fittings 22002-10 sets Rs. 171/ Rs. 1710 Total: 23,510 41. In this case, the railway authorities failed to produce the railway receipts, forwarding notes and various other documents which were sent by the plaintiff to the defendant. Price of cistern Fillings 2200-140 sets 111- Rs. 15,540/- 14. Price of C.P. Flush Bend 110 PCS. 46/- each-5060/- 15. Price of Syphonic fittings 22002-10 sets Rs. 171/ Rs. 1710 Total: 23,510 41. In this case, the railway authorities failed to produce the railway receipts, forwarding notes and various other documents which were sent by the plaintiff to the defendant. As tile aforementioned goods admittedly do not come within the purview of item no.k of the second Schedule appended to the Indian Railways Act nor there is any packing conditions in relation thereto and in view of the fact that the plaintiff has proved the loss of the said articles as also the value thereof by proving beejuck and other documents, the plaintiff is at least entitled to the price of the said goods. 43. In Firm of Chandidas Mankidas and Brothers, Hyderabad vs. The Union of India ( AIR 1980 A.P. 78 ), a learned single Judge of the Andhra Pradesh High Court held that the burden of proof being upon the railway administration in view of Section 77C of the Indian Railways Act, non production of the materials of the record by railway authorities would lead to drawing of an adverse inference. 44. Mr. Chatterjee, the learned counsel appearing on behalf of the appellant could not show that this part of the submission of Mr. Sinha is incorrect. As noticed hereinbefore, he finding of fact arrived at by the learned court below in this regard has not been questioned before this Court. 45. In this view of the matter, the plaintiff s entitled to a decree for a sum of Rs. 23,510/-. 46. In view of my findings aforesaid, the appeal is allowed in part and it is held that he plaintiff was entitled to a decree for Rs. 23, 510/- with interest at the rate of 6 per cent per annum both pendente-lite and future till realisation. However, in the facts and circumstances of the case, the parties shall pay and bear heir own costs in this appeal.