Henderson, J.

1. This rule has been obtained by the plaintiff. Heinstituted the suit to recover compensation for non-delivery of certain goodswhich were consigned to opposite party 2 at Bankura station. The petitionergave a notice which purported to be one under Section 77, Railways Act, to theChief Commercial Manager of opposite party 3. He is the officer who isresponsible for investigating claims and he did in fact investigate and dealwith this claim. The learned Judge found that the petitioner has a good casebut dismissed the suit, because the notice was not properly served within themeaning of Section 140, Railways Act. The law is certainly remarkable if a goodclaim is to be dismissed, because a notice is given to the officer whose dutyit is to investigate it. The learned Judge found and it is not now disputedthat the consignment was properly made over from the system of opposite party 2to the system of opposite party 3. The defence of opposite party 3 was that itwas looted by a riotous mob at the Patna City station on 12th August. On thesefindings opposite party 2 was absolved from responsibility. When, however, theplaintiffs advocate discovered the view taken by the learned Judge on thequestion of notice, he asked that vicarious responsibility might be fixed onopposite party 2 under the provisions of Section 80. That will depend upon thefate of Mr. Dutts argument with regard to the interpretation of the wordlost in Section 77. It would obviously be unreasonable to make it mean onething in Section 77 and something else in Section 80. The first contention madeon behalf of the petitioner is that Section 77 has no application to claims tocompensation for non-delivery. The decisions are conflicting. That is perhapsnot surprising, because reasons can be put forward in support of either view. Iam however satisfied that at any rate in this Court the weight of authority isto the effect that the section does apply to claims to compensation fornon-delivery.

2. The next question is whether the notice which has beengiven is valid in view of the provisions of Section 140. I have already pointedout that notice was given to the right officer. It would be an extraordinarything if that is held to be an invalid notice. The service of a notice underSection 77 is not a condition precedent to the institution of the suit. Section140 was undoubtedly enacted to help claimants and not to assist the railwayadministration to make a dishonest defence. If the notice is served within itsterms the Railway have no answer. It does not matter in the least whether anyindividual officer knew about it or not. It is however sufficient to complywith Section 77 if in fact notice is given to the railway administration. Thenotice under Section 80, Civil P.C., was duly served on the Government of India.As usual it was forwarded to the General Manager of opposite party 3. He didnothing whatever except to send it to the gentleman who received the noticeunder Section 77 from the petitioner direct. It is quite obvious that, if thenotice under Section 77 had been sent to the General Manager, he would merelyhave forwarded it to the Chief Commercial Manager. In these circumstances, itwould be preposterous to say that no notice has been given to the railwayadministration. Turning to the merits of the case Dr, Basak made a desperateattempt to show that on the findings of the learned Judge the suit was rightlydismissed. Briefly, the defence was that the consignment was looted by ariotous mob at the Patna City station on 12th August 1942. Not only did the learnedJudge find that this was not proved but he thought that the whole incident onthe 12th had been concocted by the defence. It is difficult to see what is leftto entitle the defendants to resist the claim.

3. Dr. Basaks argument is based solely on the use of theword lost by the learned Subordinate Judge on page 6. If it is to beinterpreted to mean lost in the sense that it was looted on some otheroccasion, the whole judgment becomes meaningless. It is quite obvious that whenthe learned Judge said lost, he meant not delivered. The finding of thelearned Subordinate Judge that the whole incident was concocted obviouslydisplays a most serious state of affairs. The only proper course to take wouldthen be to prosecute the Deputy General Manager for perjury in swearing theaffidavit attached to the written statement. The most favourable view to takeof his conduct would then be that he was so grossly negligent as to be unfit todischarge the important duties of his office. Dr. Basak assures me that therewas an incident on the 13th and that the date 12th in the written statementwas a mere clerical mistake, which has in fact led to the loss of the suit. Mr.Dutt does not seriously contest this. So it is not necessary to pursue thematter any further. The rule must be made absolute, the decree of the lowerCourt is set aside and the suit will be decreed against opposite party 1 forRs. 557-8-3 with costs in both Courts--hearing-fee, three gold mohurs.

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Sristhidhar Mandalvs. Governor-General in Council(25.01.1945 - CALHC)