JUDGMENT:- Heard the learned counsel for the appellant and the learned counsel for the respondent. 2. This appeal challenges the order passed by the Railway Claims Tribunal, Nagpur dated 22nd November, 1992 whereby the claim filed by the appellant came to be dismissed. 3. The appellant filed a claim petition on the ground that the consignment of 15 bags of Cardamom was booked in a sound and good condition by M/s. Cardamom Trading Company to be delivered to the appellant as consignee/owner of the said goods. The respondent failed to deliverer the same to the destination in quality and quantity due to the negligence and misconduct on the part of the staff of the respondent. It is further stated that after a long correspondence, it revealed that 7 bags of Cardamom were lost on account of theft which took place during the transit while the goods were in the custody of the respondent. On account of such theft, the respondent was able to deliver only 8 bags at Nagpur on 8/11/1986. A notice was served upon the respondent under section 78(B) of the Indian Railways Act, 1890 read with section 80 of Civil Procedure Code on 9/4/1987 calling upon them to compensate for the said loss to the tune of Rs.52,715.27/ along with interest at the rate of 18% per annum and legal notice charges. Thereafter, the stolen goods were released from the custody of the concerned police. The respondent dispatched the 6 bags out of the 7 bags booked and they were actually delivered on 10/10/1987. The loss of one bag of Cardamom weighing 180 kg was certified by the competent authority as being short. Thereafter by notice dated 26/12/1987 the appellant reduced its claim towards non-delivery to only one bag of Cardamom having a value of Rs.17,152/- and other expenses. The respondents refused to pay the said claim in view of the non-declaration on the part of the appellant under section 77-B of the Indian Railways Act. Thereafter during the pendency of the proceedings the appellant carried out an amendment to the petition inter-alia contending that by letter dated 22/24-9-1987 from the Chief Claim Officer it revealed that 7 bags were seized by the police from the thief. Thereafter during the pendency of the proceedings the appellant carried out an amendment to the petition inter-alia contending that by letter dated 22/24-9-1987 from the Chief Claim Officer it revealed that 7 bags were seized by the police from the thief. It is further contended that there is no explanation on the part of the respondent as to why only six bags out of 7 bags seized could be re-booked on 30th September, 1987 thereby withholding one bag of Cardamom by the respondent. It is further contended that the respondent had failed to take necessary care in the transit of the goods and for other reasons stated in the said application, the appellants called upon the respondent to pay a sum of Rs.28,053.62/- with further interest at the rate of 18% p.a. from the date of the application till the realization of the amount. 4. The respondent filed its reply to the said application disputing the claim of the appellant. It is submitted that the consignment/parcel was booked by one Cardamom Trading Company consisting of 15 bags to be delivered at Nagpur. It is further contended that the said consignment is classified as exempted article and therefore, it was necessary for the consignor to declare the value of he said consignment and to pay the percentage charge thereof as provided under section 77 -B of the Indian Railways Act. 5. On perusal of the record of the Tribunal it is noticed that no further reply' was filed by the respondent to the amendment put forward by the appellant to the application. 6. After framing the issues and on perusing the documents produced by the appellant along with the affidavit filed by the appellant, the claim filed by the appellant came to be dismissed essentially on two grounds namely that the petition was bared by limitation and that the respondent was entitled to take protection of the section 77-B of the Indian Railways Act as no declaration was given by the appellant/consignor at the time of submitting the goods for transit to Nagpur. 7. 7. The learned counsel appearing for the appellant has contended that the Tribunal has erroneously come to the conclusion that the petition as filed is barred by the limitation as according to him the limitation starts only from the date when the appellant came to know about the loss of the goods which were to be delivered to the appellant. The learned counsel further submitted that the findings of the Tribunal to the effect that the limitation starts from the date when the consignment was booked cannot be accepted. He further submitted that the protection under section 77 -B of the Railways Act is not at all applicable to the facts and circumstances of the case as in the present case the facts disclose that it is not a case of non-delivery of the goods on account of loss/deterioration but a case where there is unlawful withholding of one bag by the respondent though seven bags were retrieved from the thief and delivered to respondent. The learned counsel further submitted that the letters at Exhs.l0, 11 and 12 conclusively establish that seven bags were retrieved by the respondent and only six bags came to be delivered and as such retaining of one bag is unlawful. It is further submitted that the said action was a misconduct on the part of the employees of Railway and as such the question of taking the benefit of section 77-B does not arise at all. It is further submitted that the this aspect is not at all considered by the learned Tribunal. 8. On the other hand, the learned counsel for the respondent has supported the order passed by the learned Tribunal. He submitted that the dispute in the present case is with regard to the non-delivery of one bag and as such the respondents are entitled to take protection of section 77-B of the Railways Act as admittedly the appellant had failed to furnish the requisite declaration nor paid the percentage charges which they were liable to pay. He further submitted that the respondent are not liable to pay any amount and the Tribunal as such was justified in dismissing the claim of the appellant. He further submitted that the respondent are not liable to pay any amount and the Tribunal as such was justified in dismissing the claim of the appellant. He further submitted that respondent did not get an opportunity to cross-examine the witnesses of the appellant and to test the veracity of the documents produced by the appellant and as such there is no proper appreciation of the evidence on record on the part of the Tribunal to come to the conclusion about the actual damage caused to the appellant on account of the theft and consequent non-delivery of one bag of Cardamom to the appellant. . 9. Having heard the learned counsel and on perusal of the records the following point arise for determination 1. Whether the Tribunal was justified in dismissing the claim of the petitioner on the account that the claim of the appellant is barred by limitation? 2. Whether the Tribunal is justified in giving protection under section 77(B) of the Railways Act to the respondent to defeat the claim of the appellant? 10. Dealing with the first point for determination, in the case of Lakshmi Bangale Stores V s. Union of India reported in 1991(1) S.C.C. 448 the Apex Court has held at para 9 thus "(9) WE do not agree with the High court. The date of accident was mentioned in the plaint to narrate a fact. It was also averred that the plaintiff came to know about the damage on 4/09/1964 when he received open delivery of the goods. The knowledge of the accident may have given rise to an assumption that the goods were damaged in the accident but the burden of proving that the damage occurred 3 years beyond the date of suit has to be discharged by the railways. There is no material on the record to show that the respondents have done so. The High court was not justified in relieving the railway administration of its burden. We, therefore, set aside the findings of the High court on this issue." In view of the said judgment it is obvious that the cause of action for claiming the damages on account of non-delivery of the goods arose only when the appellant actually came to know that he has suffered the damages on account of the such non-delivery. We, therefore, set aside the findings of the High court on this issue." In view of the said judgment it is obvious that the cause of action for claiming the damages on account of non-delivery of the goods arose only when the appellant actually came to know that he has suffered the damages on account of the such non-delivery. In the present case only when the appellant was informed by the Railway Authority by document at Exh.l0 dated 27/9/1987, the appellant learnt that there was theft of the goods and that there was a seizure of said goods, thereafter the petition is filed on 1/1/1990 after issuing a statutory notice of two months. As the petition is filed within three years from the date of the knowledge of the damages occasioned to the appellant, the findings of the Tribunal that the petition was barred by limitation cannot be sustained. In any event even assuming the time is reckoned from the date of non-delivery of all the seven bags stolen i.e. 8/ 11/1986, the claim is within time considering the statutory notice period of two months. The point for determination that count is answered accordingly. 11. In any event even assuming the time is reckoned from the date of non-delivery of all the seven bags stolen i.e. 8/ 11/1986, the claim is within time considering the statutory notice period of two months. The point for determination that count is answered accordingly. 11. With regard to the next point for determination, I find that section 77-B of the Railways Act, 1890 provides as under: "77-B. (1) Notwithstanding anything contained in the provisions of this chapter, when any 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 or package to the administration caused its value and contents to be declared in writing or declared them in writing at the time of the delivery of the parcel or 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." No doubt, as per the said provision if the value of the goods exceed Rs.500/-, it would be necessary for the consignor to make a declaration of the value of the goods as required by the said section or else he cannot claim a compensation from the railways for the loss, destruction, damage or deterioration of the goods. Section 73 of the Act provides as follows "Save as otherwise provided in this Act, a railway administration shall be responsible for the loss, destruction, damage, deterioration or non-delivery, in transit, of animals or goods delivered to the administration to be carried by railway, arising from any cause except the following namely........." Under section 73 of the Railways Act the Railway Administration becomes responsible for the payment of compensation not only for the loss, destruction, damage or deterioration of the goods but it is responsible for compensation even in case of non-delivery of the goods. It is obvious that section 73 is a very wide section and one of the exceptions to be exonerated of the said liability is carved out under section 77-B of the said Act. It is obvious that section 73 is a very wide section and one of the exceptions to be exonerated of the said liability is carved out under section 77-B of the said Act. Section 77B provides that for recovering a-compensation on the ground of loss, destruction, damage or deterioration of the goods the declaration about the value of the goods is necessary. But however such declaration is not necessary if the compensation is claimed on the ground of non-delivery of goods. As such if the grievance of the claimant is about non-delivery simplicitor of the goods he has every right to claim compensation even though he has not made a declaration as provided under section 77-B of the Act. 12. Considering the facts of the present case, the appellants have established that 7 bags of Cardamom were in fact retrieved from the thief as is manifested in Exhs.A.l0-A and A 11 sent by the Railway Reserved Force. These documents further disclose that after all the bags were retrieved from the thief the appellant were asked to collect the same from the concerned department. But however, only six bags were delivered while one bag was retained. The respondents have not justified as to why one bag of Cardamom was not delivered by them. 13. In AIR 1979 Gujarat 176 in the case of Union of India and another Vs. M/s. K. Mansukhram & Sons, Ahmadabad at para 3 it is held as under - "3. The bar contained in S.77B is absolute, but it does not deal with non-delivery. Ss.77 and 77-A specifically mention loss, destruction, damage, deterioration or non-delivery as the grounds occasioning the claim for damages. Curiously enough, in S.77-B, non-delivery is not mentioned, but only four items are mentioned, namely, loss, destruction, damage and deterioration. When the Legislature has consistently used abovementioned five specific categories, it must be deemed to have done with a purpose. It must not have thought of including loss arising out of non-delivery as included in the genus "loss". Were it so, the term 'non-delivery' would not have been used in those earlier provisions. It is, therefore, evident that the term 'non-delivery' according to the Legislature is something distinct from loss. ....." 14. In the judgment reported in 1988 M h. L.J. 435 (Babhubhai Cloth Stores Vs. Were it so, the term 'non-delivery' would not have been used in those earlier provisions. It is, therefore, evident that the term 'non-delivery' according to the Legislature is something distinct from loss. ....." 14. In the judgment reported in 1988 M h. L.J. 435 (Babhubhai Cloth Stores Vs. Union of India and another) this Court has held at para 11 as under - "......In these circumstances it is impossible to hold that the railway administration has proved that the goods in question were 'lost' within the contemplation of section 77 - B of the Railways Act. If this is the position then this case is one of sheer non-delivery. It is not proved that the non-delivery is the result of loss or destruction or damage or deterioration of the parcel at all. It is a pure case of non-delivery simplicitor. If this is the position, section 77-B of the Railways Act does not come into operation at all. The non-delivery by the railway administration stands proved and hence, under section 73 of the Railways Act the railway is clearly liable for the price of the goods as compensation to the plaintiff." 15. Thus unless the respondent establish that the compensation claimed is on account of loss, destruction, damage or deterioration of the goods, question of applying section 77-B of the Act does not arise at all. On the other hand in case the claim of the appellant is established to be on account of non-delivery of one bag which is retrieved from the thief, and retained by the respondents as alleged by the appellants, the respondent shall be liable to pay the compensation as the exception provided under section 77-B of the Act would not be applicable. 16. On perusal of the impugned order, I find that the Tribunal has not considered this aspect of the matter nor has given any findings about the veracity of the claim of the appellant to the effect that the Railway authority has retrieved seven bags and withheld one bag of the Cardamom consignment. The case of the appellant is not of non-delivery of the bag on account of theft, but the illegal detention of one bag by the respondent. The case of the appellant is not of non-delivery of the bag on account of theft, but the illegal detention of one bag by the respondent. A finding to that effect would be very material to ascertain whether the appellants were entitled for the damage as claimed by them in their petition or whether the respondents are entitled to claim the benefits of section 77 - B of the Railways Act. In the interest of justice, I find that it would be appropriate to remand the matter back to the Tribunal to reconsider the claim of the appellant afresh after hearing both the parties in accordance with law. The point for determinant on that count is answered accordingly. 17. In view of the above, the appeal is partly allowed. The impugned order dated 22/11/ 1992 is quashed and set aside. The mater is remanded back to the Railway Claim's Tribunal to decide the claim petition No.3/0AI/RCT/NGP/90 afresh after hearing both the parties in accordance with law. The parties are directed to appear before the Railway Claim's Tribunal on 30/3/2010 at 11.30 a.m. There shall be no orders as to costs. Appeal partly allowed.