Roxburgh, J. - (1.) This is a Rule against an order of the Full Bench of the Calcutta Court of Small Causes upholding a decree of the trial Judge dismissing the plaintiff's suit. The plaintiff's suit was filed on December 21, 1948, against the Governor-General of the Dominion of India. His claim is in respect of loss, non-delivery, or destruction of two consignments valued at Rs. 187/8/-. The goods were despatched from a station on the, Bombay Baroda and Central Indian Railway to Calcutta to be delivered by the Bengal Nagpur Railway.
(2.) Both the lower Courts have dismissed the suit on the ground that no notice under Section 80 of the Code of Civil Procedure has been served. The only notices proved are Ex. 4, copy of notices sent by registered post to the General Managers of each of the two Railways, dated July 21, 1948, with the accompanying acknowledgment due from the General Manager of each Railway. Besides these notices another notice was sent on August 12, 1948, addressed to the Governor-General of India in Council, through the Secretary to the Government of India, Railway Department, (Railway Board, New Delhi). In the trial Court, the last notice was referred to as a notice under Section 80, and the others as notices under Section 77 of the Indian Railways Act. The former has been rejected as not being a valid notice under. Section 80, on the ground that it was sent to the Governor-General through the Secretary to the Government of India in New Delhi, whereas, Under Section 80 as it stood at the date when the notice was sent, the notice was required to be delivered to the General Manager of each Railway. In the trial Court it was urged that the other notice which was served on both the General Managers could be accepted, both as a notice under Section 77 of the Railways Act, as well as a notice under Section 80 of the Code of Civil Procedure. So far as the question of limitation is concerned, the notice was timely under both the sections. In other words, it was served within six months of the date when the goods could have been expected to be delivered, and was thus within time under Section 77, and the suit was brought on December 21. 1948, well over two months after the notices were served.
(3.) The lower Courts have not .accepted the contention that this notice can be accepted. both as a notice under Section 80, and also notice under Section 77 of the Railways Act. Even as a notice under Section 77, it is open to comment, in that the wording of the notice is to the effect that it appears to make a reference to some previous notice under Section 77. It runs: "We hereby beg to draw your attention to the notice under Section 77 of the Indian Rail-ways Act of the loss, non-delivery and destruction of the above consignment putting us to loss and damages amounting to Rs. 187/8/- altogether." Details of the railway receipts and the stations are given above at the heading of the notice. However, it seems to me that the Courts are right in holding that the paper does comply with all the requirements of Section 77 of the Railways Act, giving notice of the claim and being made within six months of the operative date.;