This second appeal is by the Union of India through the Railways. 2. As per orders of the plaintiff firm defendant No.l booked a consignment of 400 Katta weight of 140 quintals of powdered or crushed common salt at Phaledi station to be delivered at Jorhat Railway Station under N. F. Railway. The consignment was booked on 12.3.71 and it arrived at Jorhat Railway Station on 15.4.71 There is a dispute between the Railways and the plaintiff regarding the fare to be paid. According to the Railways the goods booked were table salt and as such the plaintiff is liable to pay excess freight. As this was not paid the consignment was sold in auction by the Railways on 19.5.72 for an amount of Rs. 4,709/-. Being aggrieved the plaintiff filed the suit against the Railways for recovery of Rs.2, 2^8/- as compensation. Acc­ording to the schedule to the plaint the price of the goods were claimed at Rs.1800/-and interest @ 12% from 12.3.71 to 12.3.73 amounting to Rs. 438/-. 3. The suit was dismissed by the learned trial Court mainly on the ground that notice under section 78 B of the Indian Railways Act was no served on the Railways. However, the learned lower appellate Court held that in the present case such a notice is not required and accordingly allowed the appeal by setting aside-the judgment and decree of the learned trial Court. The learned lower appellate Court decreed a sum of Rs. 367 3/- subject to payment of additional court fee on Rs.1395/-. The learned Court assessed the amount as follows : 1) Sale proceeds of auction sale of 380 baga Rs. 4700.00 2) Price of 20 bags that are damaged or misappropriated while the same were at railway risk Rs. 219.00 Total Rs. 4919.00 Less the freight to be paid to the Railway. Rs. 1286 00 Total-Rs. 3633.0J 4. The learned lower appellate Court directed that on the failure to pay the court fee the plaintiff shall be entitled to recover the amount of Rs.2238/- with interest which was claimed in the plaint. The amount of interest was @ 6% per annum from the date of filing the suit till realisation of the amount. 5. Mr. 3633.0J 4. The learned lower appellate Court directed that on the failure to pay the court fee the plaintiff shall be entitled to recover the amount of Rs.2238/- with interest which was claimed in the plaint. The amount of interest was @ 6% per annum from the date of filing the suit till realisation of the amount. 5. Mr. Duara, learned counsel for the Railways has urged that the impugned judgment is bad in law or rather is non est as it violates the provision of Order 7 Rule 2 and 11, C.P.C. On the other hand Mr. Chaliha, learned counsel for the respondent has urged that in view of the alternative decree passed by the learned lower appellate Court the judgment is legal and proper. 6. Relying on Rules 2 and 11 of Order 7, CPC Mr. Duara has urged that if the Court was of the opinion that the relief claimed by the plaintiff was undervalued appropriate direction should have been given to the plaintiff to correct the valuation within such period to be fixed by the Court and on failure to do so the plaint should have been rejected. The submission is on the basis of Rule 11 of Order 7 and also Rule 2 of Order 7 which inter alia, provides that in the plaint for recovery of money, the plaintiff shall state the precise amount claimed. 7. In my opinion clause (b) of Rule 11 of Order 7 CPC, on which reliance has been placed by Mr. Duara, for rejection of the plaint by the learned lower appellate Court is not relevant for the purpose inasmuch as there has to be finding before such rejection that the relief claimed was undervalued. In the case in hand in fact there is no such finding. On the other hand the learned lower appellate Court made out a new case which was not in accordance with the plaint. On this count alone the decree of the learned lower appellate Court for Rs. 3, 633/- is not sustainable in law at all. 8. Now the only question is whether the claim of the plaintiff for recovery of Rs.2,238/- is maintainable at all. As this amount claimed is less than the amount obtained by the Railways in auction sale, I am of the opinion that the amount is not excessive. 3, 633/- is not sustainable in law at all. 8. Now the only question is whether the claim of the plaintiff for recovery of Rs.2,238/- is maintainable at all. As this amount claimed is less than the amount obtained by the Railways in auction sale, I am of the opinion that the amount is not excessive. But while deciding this point I have to consider the contention of Mr. Duara that the finding of the learned trial Court was that notice is not required under section 78 B of the Railways Act is not legal. According to Mr. Duara, after the amendment of the Act in 1961 as the word "non-delivery" has been introduced and such a notice is required. In the alternative Mr. Duara has urged that from the judgment of the learned lower appellate Court it is clear that the learned Court found damage of 20 bags and on this ground also section 78 B of the Railways Act is attracted. 9. Mr. Duara has placed reliance in a decision of this Court in Union of India vs. The Jorhat Consumer Goods Wholesale Co - operative Ltd., AIR 1974 Gauhati 60. This Court in the above decision relying on the ratio laid down by the Apex Court in Union of India vs. Mahadeolal, AIR 1965 SC 1755 and Governor-General-in Council vs. Musaddilal, AIR 1961 SC 725 : (1965) 3 SCR 647 held that even before insertion of section 78 B by amendment in 1961 for non-delivery also notice was mandatory and it was required to be served on the Railway Administ­ration in order to imply liability for compensation and further from the provision of section 78 B it is found that along with loss, destruction or decoration the expression 'non-delivery' has also been specifically use and therefore notice under section 78 B is mandatory. I do not find any scope to take a different view, in view of the above I amendment and I accept the contention of Mr. Duara that in the case ' in hand notice under section 78 B of the Railways Act is mandatory. 10. Mr. Chaliha has drawn my attention that on -15.6.71 by Ext. I do not find any scope to take a different view, in view of the above I amendment and I accept the contention of Mr. Duara that in the case ' in hand notice under section 78 B of the Railways Act is mandatory. 10. Mr. Chaliha has drawn my attention that on -15.6.71 by Ext. 12, the plaintiff sent a letter by registered post to the General Manager, N.F.Railway, Maligaon, Gauhati drawing his attention to the entire matter and the operative portion of the letter runs as follows - "Should you under the circumstances, fail to arrange for delivery of the consignment on acceptance of the freight as charges by the boo'dng station without of D/C and W/Charges within the time specified above, we shall take it as a case of non-delivery of the consignment and shall hold the Railways and for the matter of that the Union of India liable for the entire value of the consignment and incidental costs for loss which, please note." This letter was duly acknowledged on behalf of the N.F.Railway by the Chief Commercial Superintendent by his letter dated 4.871 which has been marked as Ext 13. Mr. Duara has drawn my attention to the decision of the trial Court in respect of Issue No 4 where the learned Court took into consideration the evidence of D.W.I, an employee of the Railways who stated that receipt book No. 1 not show that from 16.4.71 to 19.f-.7l Railways received any claim notice under section 78B. Relying on this finding of the Learned trial Court, learned counsel has urged that notice under section 78B was not received by the Railways. Ext.l3 is an acknowledgement by the Railways of the letter Ext. 12. Ext. 12 was sent on 15.6.71 i.e. within 3 months from the date of booking. If Ext.l? is treated as a notice under section 7 B, there cannot be any grievance for the Railways. 11. Now the question is whether this can be treated as a notice under section 78B. Mr. Chaliha has drawn my attention to a decision of the Apex Court in Jetmull Bhojraj vs. Darjeeliog Himalayan Railway, AIR 1962 SC 1879 . If Ext.l? is treated as a notice under section 7 B, there cannot be any grievance for the Railways. 11. Now the question is whether this can be treated as a notice under section 78B. Mr. Chaliha has drawn my attention to a decision of the Apex Court in Jetmull Bhojraj vs. Darjeeliog Himalayan Railway, AIR 1962 SC 1879 . According to majority decision it was held that if a person says that his consignment has not been delivered as it should have been delivered according to the contract between him and the Railway Administration, it must be regarded as making it clear that he would be holding the Railway Administ­ration to its contractual engagement which necessarily involves the payment of damages. Mr. Duara has fairly stated that it is not necessary for this Court to consider the above decision in view of the clear proviso to section 78B. This proviso, inter alia, provides that any information demanded or enquiry made in writing to the Railways within a period of 6 months regarding non-delivery shall be deemed to be a claim under the above section. Along with the letter Ext. 12, a copy of the Railway receipt was also sent and this was sufficient for the Railways to identify the consignment. 12. For what has been stated above I hold that Ext.12 shall be deemed to be a valid notice under section 78 B of the Railways Act, inasmuch as, it fulfilled the requirements of the proviso to section 78 B and that apart it was clear that necessary action will be taken by the plaintiff on the failure on the part of the Railways to take action. 13. Mr. Duara has urged that this document not taken into consider­ation by the learned trial Court and also by the learned lower appellate Court and as such at this stage this Court may not look into this piece of evidence. It is settled law that in second appeal non-consideration of any evidence on record is a valid ground for setting aside the judgment and decree of the learned lower appellate Court. I am, therefore, of the opinion that this Court can definitely look into the document i.e. Ext. 12.1 therefore, held that a valid notice under section 78 B of the Railways Act was duly served on the Railways. 14. I am, therefore, of the opinion that this Court can definitely look into the document i.e. Ext. 12.1 therefore, held that a valid notice under section 78 B of the Railways Act was duly served on the Railways. 14. I have already held that the decree) of the learned lower appellate Court to the extent of Rs.3,637/-is bad in law. Accordingly I modify the said decree allowing the plaintiff to recover a sum of Rs. 2238/-. Consi­dering the fact and circumstances of the case I direct that the plaintiff shall be entitled to get interest @ 6% per annum from the date of filing of the suit till the date of decree of the learned lower appellate Court. The plaintiff shall not be entitled to any interest from the date of judg­ment and decree of the said Court till this date. The appellants are allo­wed 6(six) months time to satisfy the decree, failing which plaintiff shall be entitled to get interest @ 12% from today till the amount is realised. Considering the facts and circumstances of the case I leave the parties to bear their own cost. In the result, appeal is partly allowed.