Ramaswami, J.In the suit which is the subject to this appeal the plaintiff alleged that on 11th August 1942 a consignment of piece-goods had been booked from Nathnagar to be delivered to him at Jamaipur. The railway authorities failed to make delivery of the consignment in spite of repeated demands. The plaintiff, therefore, claimed a sum of Rs. 1050 as the price of the piece-goods. The defendant traversed the plaintiffs claim alleging that on 20th August 1942 the consignment was looted at SultangunJ by a violent mob. The defendant asserted that there, was no negligence on his part, and the plaintiff was not entitled to be compensated. The defendant further pleaded that the suit was barred under Article 31, Limitation Act. The Subordinate Judge found that the defendant did not prove that the consignment was looted or destroyed on account of mob violence. He further held that the suit was not barred under Article 31, Limitation Act. Accordingly he granted a decree in favour of the plaintiff. The Additional District Judge has affirmed the decree. The defendant has instituted this appeal. On his behalf learned Counsel presented three arguments.

2. In the first place, learned Counsel maintained that the lower Courts were erroneous to hold that the suit was not barred by limitation. Article 81 provides for period of one year, from the date "when the goods ought to have been delivered". For the appellant it was pointed out that in para 2, of the plaint it was specifically stated that in ordinary course the goods should have been delivered on 15th August 1942. Learned Counsel argued that this ought to be the date from which the period of limitation ought to be computed. In support of that contention reference was made to Secretary of States. The Dunlop Rubber Co. Ltd. A.I.R 1925 Lah. 478. But that case must be clearly distinguished for one of the five bundles in question was actually delivered on 25th February 1921. The Court, therefore, inferred that the four remaining bundles ought to have been delivered on the same date which would hence be the date from which the period of limitation was to be computed. On the contrary, in Jugal Kishore Vs. Great Indian Peninsula Railway and Another, , on 28th August 1918, the plaintiff made over certain bales of cloth to the Great Indian Peninsula Railway Company at Bombay for transmission to Chunar. As the goods did not arrive at Chunar, the plaintiff began to make enquiry about them both from the Great Indian Peninsula Rly. Company and from the East Indian Railway Company, to whose line the goods would in the ordinary course of business have been transferred. For considerably over a year the plaintiff was put off by various statements on the part of the Railway Administration to the effect that the matter was being enquired into. Ultimately he instituted a suit for damages on 31st March 1920. The Allahabad High Court held that in the circumstances the suit was not barred by limitation whether Article 30, or Article 31, Limitation Act, 1908, was considered applicable to the facts. Now the question "when the goods ought to be delivered" is essentially a question of fact. We cannot recognise any universal or inflexibe rule that time must begin to run from the expiry of the ordinary period of transit. If no particular date is specified for delivery, it must be determined as a matter of what is reasonable having regard to the circumstances of the contract and the conduct of the parties. In the present case there is evidence that the plaintiff had written to the Chief Commercial Manager who replied that the matter was being investigated (letters Ex. 3 to 3F and 6 to 6B). Ultimately, on 1st February 1947, the Chief Commercial Manager informed, the plaintiff that the consignment was destroyed by mob violence (vide Ex. 16). It is patent that the ptaintiff filed the suit within one year from the defendants refusal to deliver the consignment. In the circumstances of the case we are unable to hold that the plaintiff has brought the suit more than a-year from the expiry of a reasonable time within which the goods should have been delivered.

3. In the second place, learned Counsel for the appellant contended that no valid notice has been served u/s 77, Railways Act. It is however admitted that the plaintiff served notice (EX. 2) on the Chief Commercial Manager, Claims. Learned Counsel referred to Section 140, Railways Act, which provides that:

Any notice authorised by this Act to be served on a Railway Administration may be served in the case of a Railway administered by the Government or a Native State on the Manager.

For the appellant it was contended that the notice should have been served not on the Chief Commercial Manager but on the General Manager of the Railway Administration, Reference was made to East Indian Railway Company Vs. Bhimraj Srilal, in which the High Court held that the service of notice of the claim on the Traffic Manager was not a sufficient compliance with the requirements of Section 140, Railways Act. It is, however, unnecessary to examine the question whether the service of notice on the Chief Commercial Manager was adequate, for, in our opinion, no notice u/s 77 was necessary to be served in the present case. In Jaisram Ramrekha Das Vs. G.I.P. Roy and Another, a Division Bench held that non-delivery did not constitute loss within the meaning of Section 77, and no notice under that section was necessary in a suit for damages for non-delivery of a consignment. Kulwant Sahay, J. referred to the Full Bench decisions Puran Das Vs. East Indian Railway Co., in which the learned Judges expressed the opinion that the word "loss" did not include non-delivery in Bisk Note Form B. In G.I.P. Ry. Co. Vs. Gopi Ram Gouri Sankar, the question was raised with reference to Section 77, and Ross J. after examining the decision considered that the word "loss" in that section did not include non-delivery. We are bound to adopt these previous decisions. In the present case, it is manifest, from the plaint that the plaintiff did not accept the defendants claim that there was loot or loss. On the contrary, the plaintiff sued for compensation merely for non-delivery of the two consignments. In our opinion no notice u/s 77 of the Act was necessary to be served on the defendant.

4. Lastly, it was urged that the appellant that in the original plaint there was no averment that notice u/s 80 had been served on the defendant. By a subsequent amendment dated 4th December 1945 the plaintiff inserted para. 3A in the plaint in which he alleged that notice u/s 80 had been served on the defendant. Learned Counsel argued that the Court ought not to have permitted the amendment and the plaintiffs petition ought to have been rejected for non-compliance with terms of Section 80, Civil P.C. Learned Counsel maintained that the plaint should be deemed to have been presented not on nth August 1942 but on 4th December 1945 when the amendment was made. In support of that argument learned Counsel did not cite any authorities. On the other hand, in Tipan Prasad Singh v. Secretary of State AIR 1935 Pat. 86 , Fazl Ali J. ruled that the Court was competent to allow such an amendment, if in fact notice u/s 80 had been served as required by that section, on the Secretary of State. It is hence not possible to accept the argument of the appellant that the suit should have been taken to be instituted on 4th December 1945, and that in consequence the suit was barred by time. For the appellant it was argued that notice u/s 80 was not valid since the parentage of the plaintiff was not mentioned therein. It was also contended that in the notice u/s 80 the amount claimed did not exactly correspond to the amount subsequently claimed by the plaintiff in the suit. Learned Counsel relied upon Bhola Nath Roy v. Secretary of State for India 40 Cal. 503 . But that case ought to be clearly distinguished. A suit was brought by 63 plaintiffs against the Secretary of State for India in Council and others, and the notice of the suit contained the names, descriptions and places of residence merely of two out of the 63 plaintiffs. The High Court held that such a notice was insufficient and did not fulfil the requirements of the statute. But in the present case it is not disputed that the notice did mention the name and residence of the plaintiff. Merely because the parentage of the plaintiff was not given or that the amount mentioned did not exactly tally with the amount subsequently claimed in the suit, it is not possible to hold that the notice was invalid. In the present case, we are satisfied that the requirements of Section 80 have been legally complied with.

5. For the appellant learned Counsel argued that the lower Court was erroneous to find that the consignment in question was not destroyed or looted by mob violence at Sultangunj as alleged by the defendant. It was contended that there was no evidence to support the finding of fact, In our view this contention is extravagant. Both the Courts had before them evidence on which they properly found that the defendant failed to prove that the consignment had been looted or destroyed. It is not possible to impeach this finding of fact in second appeal.

6. In my opinion, this appeal must be dismissed with costs.

Sinha J.

I am of the same opinion.