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1. The plaintiff entrusted on 11-12-1943 a parcel of iron screws to the South Indian Railway, Ernakulam, and consigned it to a client at Vishakapatnam. To Vishakapatnam the parcel would have had to travel over the lines of the South Indian Railway up to Jalarpet, on the M. & S. M. Railway from Jalarpet Waltair, and on the B. N. Railway from Waltair to Vishakapatnam. The South Indian Railway were able to satisfy the plaintiff that the parcel had been safely handed over to the M. & S. M. Railway authorities, Jalarpet. In answer to interrogatories, the M. & S. M. Railway stated that they had entrusted the goods to the B. N. Railway at Waltair, but they produced no evidence in support of this, and the case proceeded on the basis that the parcel was in the custody of the M. & S. M. Railway, who are the petitioners here, at all relevant dates. After much correspondence the plaintiff sent a notice on 29-9-1945 purporting to be a suit notice addressed to the Secretary of State for India. At that time, the proper authority to whom notice should have been given was the Governor-General in-Council. It was however received by the authority empowered to receive notices addressed to the Governor-in Council and was dealt with as if it had been a notice to the Governor-General. A suit was filed against the Governor-General-in-Council on 20-3-1946, and on account of an objection raised in the written statement, a formal notice addressed to the Governor-General was given on 14-11-1946.

3. The question as to whether the claim lies against the M. & S. M. Railway or against the B. N Railway has not been seriously pressed here. The contention that the goods were lost after being entrusted to the B. N. Railway was mentioned in answer to certain interrogatories by the plaintiff ; but no attempt was made to prove this. The matter was not seriously pressed even in the lower Court. I hold this point against the petitioner.

4. The contention based on the requirements (of Section 80 Civil P. C., need not detain us long. Although the name of the Secretary of State was inadvertently given at the head of the notice yet it was treated by the Governor General-in-Council as a notice to him, and action was taken on the notice in the same way as if the notice bad been addressed to the Governor General-in-Council. In my opinion, this is sufficient compliance with the requirements of Section 80, because the Governor-General-in-Council was in fact given notice. The learned counsel for the Railways strongly relies upon an obiter dicta in the judgment of Leach C. J. in Governor-General in Council v. Krishnaswami Pillai. 1946-1 M. L J. 267 : (A. I. R. (33) 1946 Mad. 366). Being unnecessary for the disposal of the appeal before the learned Judges, the learned Chief Justice did not find it necessary to say very much on this head. He referred to the mandatory nature of the provisions contained in Section 60 and considered that in the case before him and his colleague a proper notice such as was required by Section 60 was not given. That case can however be distinguished from the present case on the facts, in that the notice here sent to the Secretary of State for India was accepted by the Governor-General-in-Council and treated by him as notice to himself. Moreover, the suit there was actually filed against the Secretary of State for India and not, as here, against the Governor-General-in-Council. It seems to me that notice was given to the Governor-General-in-Council, notwithstanding an error in the mattes of designation.

7. The only other case which in any way helps the petitioner is M. & S. M. Rly. Co. Ltd. v. Haridass Banmali Dass, 41 Mad. 871: (A.I.R. (6) 1919 Mad. 140), in which there was a wilful delivery of goods to a person who was not in possession of a railway receipt. It was held that such a case was covered by Section 77; and the learned Judges there, like the learned Judges in the Assam Bengal Rly. Co. Ltd. v. Radhica Mohan Nath, 28 C. W. N. 438 : (A. I. R. (10) 1923 Cal. 397), were inclined to place a very wide meaning on the word "loss." What was however said in that case must be read in the context as applying to the facts of that case. Where the fate of the goods is known and loss had been irretrievably caused to the consignor by delivery to a wrong person, I would have no hesitation, even I had no support from M. & S. M Rly. Co. Ltd. v. Handoss Banmalidass, 41 Mad. 871: (A.I.R. (6) 1919 Mad. 140), in saying that there was a loss to which Section 77 would have applied. I do not however find anything in that judgment which would lead me to conclude that, bad the learned Judge had to consider the possibility that the goods had been detained by the railway authorities and were still in their possession, Section 77 would have applied. We do not know in this case what happened to the goods ; but judging from the answers given in the interrogatories it would have been a simple matter for the railway authorities to have proved, if they had so minded, that the goods had been lost; if so, then the suit would have had to be dismissed. The fate of the goods was specially within the knowledge of the railway authorities. They had documents and records which would have enabled them to trace the progress of the goods from Jalarpet onwards; but they adduced no evidence of what had become of them. It seems to me that the learned Subordinate Judge was justified in holding that since the railway authorities had failed to show that the goods had been lost, he could not apply Section 77.