JUDGMENT Jagmohan Lal, J.
1. This is a plaintiff's appeal whose suit for recovery of compensation for non-delivery of a bale of cotton consigned at railway station New Delhi on the Northern Railway on 1-2-1961 for carriage to railway station Katarniaghat on the North Eastern Railway was decreed by the trial court but dismissed by the lower appellate court. The main ground on which the lower appellate court dismissed the plaintiff's suit was that he had not complied with the provisions of Section 77 of the Railways Act, 1890.
2. On behalf of the plaintiff-appellant it is alleged that the plaintiff had duly complied with the requirements of Section 77 as would be evident from the documents on record. Firstly, it is pointed out that the plaintiff delivered a notice under Section 77 dated 7-4-1961 to some clerk in the office of the Chief Commercial Superintendent, Gorakhpur on the same date and in token of his receipt he got the signature of that clerk and the seal of his office put on Ext. 9. On behalf of the railway administration the receipt of this notice was denied and it was suggested that the signature and the seal had been spuriously obtained in collusion with some clerk in the Chief Commercial Superintendent's office. It was further argued that even if it is accepted that such a notice was delivered by the plaintiff to some clerk in the office of the Chief, Commercial Superintendent it does not fulfil the requirements of Section 77 read with Section 140 and Section 3(6) of the Railways Act. In my opinion this contention on behalf of the Railway administration is correct. Section 77 requires that a notice under that section should be preferred within six months on the railway administration. The expression 'railway administration' has been denned in Clause (6) of Section 3 meaning in the case of a railway administered by the Government, the manager of the railway and includes the Government. Section 140 lays down that any notice required on the Act to be served on a railway administration may be served, in the case of a railway administered by the Government, on the manager by delivering the notice to the manager or by leaving it at his office or by forwarding it by post in a pre-paid letter addressed to the manager. Obviously the Chief Commercial Superintendent is subordinate officer and he does not rank with the manager. Both Northern Railway and North Eastern Railway have got managers who are designated as General Managers. These officers are of superior status than the Chief Commercial Superintendent. It was held by two Division Benches of this Court in Ram Sahai v. E.I. Railway (AIR 1922 All 280 (2)) and Cawnpore Cotton Mills v. G.I.P. Railway (AIR 1923 All 301) that for a valid compliance of Section 77 the notice should be served on the General Manager of the railway or railways concerned and that the service of such a notice on a subordinate officer like the General Traffic Manager in the case of the erstwhile G.I.P. Railway or Divisional Traffic Manager in the case of erstwhile East Indian Railway, was not sufficient compliance of the law.
3. The learned counsel for the appellant relied on another decision of this Court in Chaturbhuj Ram Lal v. Secy, of State (AIR 1927 All 215) in which the service of a notice under Section 77 on the Chief Commercial Manager of the East Indian Railway was also held as sufficient compliance of Section 77 on the facts of that case. The learned Judges constituting the Bench without referring to the earlier Division Bench decisions cited above and without laying down any rule of law to the contrary as evident from their own observations, preferred to deal with the peculiar facts of that case. They observed that the question whether the notice was duly served upon the manager within the meaning of Section 140, as a general rule cannot be said to be a question of law at all, but is a question of fact depending upon the evidence in each case. In that case the notice was not only received by the Chief Commercial Manager but he actually started taking action thereon and did not choose to return the same to the notice-giver with a direction to address the same to the Agent of the East Indian Railway which at that time was managed by a company. On those facts it was observed that on receipt of a claim which should by Section 140 be addressed to the Agent, the Chief Commercial Manager has a choice of two alternatives, he can decline to deal with it on the ground that it has not been addressed to the Agent, and in the ordinary course if he does so, his duty, is to return it to the sender with a request that it shall be addressed in accordance with the Statute to the proper person. If he does not do so but retains it and either hands it to the Agent, or deals with it himself he must be taken to do so as the subordinate and agent of the Agent and on the strength of the old maxim that "everything is presumed to be done correctly", it must be presumed that if he does so he does it with the implied consent and therefore with the authority of the Agent. In the present case, even the receipt of this notice dated 7-4-1961 is being denied on behalf of the North Eastern Railway. So this decision cannot be held as an authority to lay down a rule of law that a notice under Section 77 instead of being served on the manager as required by Section 140 can be served on a subordinate officer like the Chief Commercial Superintendent.
4. Another decision relied upon by the learned counsel for the appellant is Niranjanlall v. Union of India (AIR 1969 SC 23). In that case the notice under Section 77 was served on the Chief Commercial Manager (Claims and Refunds) of the erstwhile Bengal and Assam Railway which did not have any officer of the designation of a manager though there was an officer known as General Manager having over all charge of many departments of that railway administration. It was found that the Chief Commercial Manager (Claims and Refunds) was equal in status to the manager. On those facts the Supreme Court held that the service of notice on the Chief Commercial Manager was sufficient service on the railway administration within the meaning of Section 140 read with Section 3(6). In the present case, both the Eastern and Northern Railways have got General Managers. The Chief Commercial Superintendent of North Eastern Railway is evidently an officer subordinate in rank to the Manager or General Manager. So that decision of the Supreme Court has also no application to the facts of the present case.
5. The learned counsel for the appellant then argued that the notice Ext. A-1 which was admittedly received by the defendants may be taken as a valid notice under Section 77 of the Railways Act and Section 80 of the Code of Civil Procedure which was addressed to the General Manager North-Eastern Railway. This notice has, of course, been addressed to the authority contemplated by Section 140 read with Section 3(6) of the Railways Act, but so far as Section 77 is concerned, this notice was beyond time. The notice does not bear any date and the plaintiff did not file the postal receipt to show on which date it was actually despatched. It was however received in the office of the General Manager on 7-8-1961. The notice must have been despatched not more than 2 or 3 days before its receipt. The goods in question had been delivered for consignment on 1-2-1961 and as such this notice was beyond six months and it will be time barred. In the absence of a valid notice under Section 77 being served on the railway administration, the plaintiff's claim was bound to fail and it has been rightly dismissed by the lower appellate court. The appeal is without any force. It is dismissed with costs to the contesting respondents.