JUDGMENT H.N. Kapoor, J.
1. This is a defendant's appeal against the judgment and decree dated 25-9-1965 of the II Addl. Civil Judge, Agra in Civil Appeal No. 245 of 1965 reversing the decree of the Munsif, Agra dated 31-3-1965 in original suit No. 547 of 1962.
2. The plaintiff had brought a suit for recovery of a sum of Rs. 3,183/- as value of the goods short delivered, Rs. 1,000/- as damages for deterioration in quality and Rs. 270/- as interest. The plaintiff had booked one consignment of mustard oil on 9-10-1961 in one tank wagon containing 186 quintals and 45 kg. for carriage to Kulpighat from Jamuna Bridge, Agra. When the wagon reached the destination, it was dicovered that its original seals, lables and the iron rings were broken and subsequently its contents were transhipped to another wagon of sweet-oil. The plaintiff thereupon took delivery of the goods after weighing and it was found that it was short by 15 quintals 45 kg. of oil. The plaintiff also alleged that the quality of the oil was materially affected by transhipping it to another wagon of sweet oil. So he claimed damages of Rs. 1,000/- on this account. It appears that the sample of the oil was sent to the public analyst but no deterioration was found in its contents. The suit was contested on behalf of the Union of India on various pleas, one of which was that it was barred under Section 77 of the Indian Railways Act. Short delivery was not disputed but it was alleged that there was no misconduct or negligence on the part of the railways. The learned Munsif held that short delivery was proved in this case and it would be deemed that it was due to the negligence and misconduct of the employees of the defendant. He held that no case for damages was made out. He dismissed the suit on the basis of the finding arrived at on Issue No. 3 that the suit was barred under Section 77 of the said Act. He, however, observed that in case the suit was not barred under Section 77 of the Act, he would have decreed it for Rupees 3,183/-. According to the lower appellate court three points arose for consideration in the appeal which are as follows:
1. Whether Section 77 of the Indian Railways Act was applicable to the present case ?
2. Whether a notice under Section 77 of the Indian Railways Act was really given by the plaintiff?
3. Whether the notice under Section 77 of the Indian Railways Act was given within time ?
On point No. 1, the lower appellate court arrived at the conclusion that under the circumstances of this case it was not a case of conversion but was a case of short delivery which fell within the purview of the term "loss" as used in Section 77 of the said Act and the notice under Section 77 of the Act was absolutely essential. On points Nos. 2 and 3 the lower appellate court arrived at the conclusion that certain letters sent to the railway authorities did not amount to notice under Section 77 of the Act as they were not addressed to the proper authority. It, however, took the view that proper notice under Section 77 of the Act was actually sent on 9-4-1962 and was served on 10-4-1962 and that it was sufficient compliance of the provisions of Section 77 of the Act as it was sent on the last day when the period of six months was to expire. With these findings it decreed the plaintiff's suit for recovery of Rs. 3,183/- with proportionate costs.
3. The only point that arises for decision in this appeal and which has been pressed before me is whether the notice sent on 9-4-1962 was sufficient compliance under Section 77 of the Act and whether it would be deemed to be within time. Sri Gur Pratap Singh, learned counsel for the appellant has placed reliance on a Division Bench authority of this Court in the case of Narain Ramchandra Kelkar v. Union of India, (1961) All LJ 983 and has argued that notice which was sent on the last day of limitation could not have reached the railway administration within the prescribed period of limitation and as such it should be deemed to have been sent beyond time. The Division Bench died above had referred to two earlier authorities: Secretary of State v. Firm Imperial Metal Works, AIR 1926 All 214 = (24 All LJ 360) and Chaturbhuj Ram Lal v. Secretary of State for India, (AIR 1927 All 215). The second authority is of a Division Bench. The learned Judges in the case of Narain Ramchandra Kelkar v. Union of India, (1961 All LJ 983) cited above have referred to Section 140 of the Act also. The effect of these decisions is that notice under Section 77 of the Act should have been sent to the proper railway authority within six months so as to reach the railway authority in the ordinary course of post within six months. Learned counsel for the appellant has also placed reliance on the case of Union of India v. Laxmi Textiles, (AIR 1968 Ker 23), which is to the same effect.
4. Sri Swami Dayal, learned counsel for the respondents, on the other hand, has argued that in the Allahabad cases the import of Section 140 (c) of the Act has riot been properly considered. According to him, the effect of this Sub-section is that as soon as the letter is posted at the post office, it amounts to service on the railway authority as the Post Office becomes an agent of the railway authority. In support of this contention he has placed reliance on a Full Bench decision of this Court in the case of Bhikha Lal v. Munna Lal, 1974 All LJ 470 = (AIR 1974 All 366) (FB). In that case the learned Judges were called upon to consider whether sending money by money order well within time was sufficient to save a tenant from the mischief of Section 3 (1) (a) of the U. P. (Temporary) Control of Rent and Eviction Act, 1947. They took the view that payment of money at the post office amounted to payment of money to the landlord and the post office acted as an agent of the landlord. The following observations may be reproduced:
"The facts of the instant case are closely akin to those in Norman v. Rickets, (1886) 3 TLR 182. Just as in that case handing over of a letter containing the cheque demanded was considered to be a payment to an agent of the creditor, so also in the present case handing over of the arrears of rent in cash at the post office must be held to be payment to the appellant's agent, or in the alternative to a common agent of both parties and thus by legal implication to the appellants."
Sri Gur Pratap Singh, learned counsel for the appellant has, however, argued that that cannot be an authority for the purpose of Section 77 of the Act and that in considering the effect of Section 140 (c) the provisions of Section 142 too have got to be considered.
"There is certainly force in this argument. Section 142 of the Act is as follows:--
"142 -- Where a notice or other document is served by post, it shall be deemed to have been served at the time when the letter containing it would be delivered in the ordinary course of post, and in proving such service it shall be sufficient to prove that the letter containing the notice or other document was properly addressed and registered."
Section 140 (c) of the Act provides for a mode of service.
"(a) .....
(b) .....
(c) by forwarding it by post in a prepaid letter addressed to the manager or the Chief Commercial Superintendent or Agent at his Office and registered under the Indian Post Office Act, 1898."
Section 142 of the Act clearly provides that it would be deemed to have been served at a certain time. It is thus obvious that the intention of the legislature was not that mere posting of the letter would amount to service of notice on the railway authority. This aspect was dealt with at length by the Kerala High Court in the case of Union of India v. Laxmi Textiles, (AIR 1968 Ker 23). The view taken by this Court in the above cited authorities was based on a reading of Section 77 along with Sections 140 and 142 of the Act. In my opinion, the law laid down in those authorities is still good law in spite of the Full Bench decision in the case of Bhika Lal v. Munna Lal, (1974 All LJ 470) = (AIR 1974 All 366) (FB) (supra) which dealt with a different aspect altogether while considering the provisions of the U. P. (Temporary) Control of Rent and Eviction Act, 1947.
5. Learned counsel for the respondents has also drawn my attention to the fact that 8th April, 1962, was a Sunday and as such the notice could not have been posted on that date. I do not think it would make any difference, under the circumstances of the present case. It would have been a different matter if the notice was despatched well in time but was not received by the railway because of holidays intervening. He has also placed reliance on the case of Jetmul Bhoj Raj v. Darjeeling Himalayan Company Ltd., (AIR 1962 SC 1879). In that case it was held that a letter sent by the consignor informing the General Manager that the consignment had not reached the destination and that a search for the same be made, should be deemed to be sufficient notice under Section 77 of the Act even though claim for compensation had not been made as the same would be implied. It was also observed by their Lordships of the Supreme Court that notice under Section 77 of the Act should be liberally construed. In that case the effect of notice being time barred was not considered and as such that decision is distinguishable. When limitation is prescribed and there is no provision for extending time, it is certainly not possible to extend the period of limitation by construing the provisions liberally.
6. The view taken by the lower appellate court was erroneous in law and was against the settled view of this Court.
7. In the result the appeal is allowed, the judgment and decree of the lower appellate court are set aside and that of the trial court are restored. The plaintiff's suit thus stands dismissed. However, in the circumstances of case, both the parties shall bear their own costs throughout.