Citation Codes

Equivalent Citations

citation codes

Case Number

C.R.P No. 1573 of 1947 and C.M.P No. 7885 of 1949.

Advocates

Mr. V.K Ramanatha Ayyar for Messrs. King and Partridge for Petr.
Mr. K. Ramachandra Rao for Respt.

Judges

Govinda Menon, J.

Acts

schedule of the Indian Railways Act. According to Section 75,
Article 30 or Article 31, Limitation Act.
Article 30 of Schedule 1, Limitation Act
Schedule II of Section 75, Railways Act.
PROVINCIAL SMALL CAUSE COURTS ACT
provisions of Order 41, Civil P. C.,
Article 31, Limitation Act
Article 30, Limitation Act,
Order 41, Rule 27

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Smart Summary

Judgment Summary — Govind Menon, J.

Factual and Procedural Background

The plaintiff sued for recovery of the price of bales of cotton cloth lost while in transit by the defendants, who were common carriers (South Indian Railway Company). The goods were handed to the railway on 7 September 1944 at Rajapalayam for delivery to Guntur. The goods reached Tondiarpet Marshalling Yard (Madras City) on the midnight of 17 September 1944 and were later stolen from the wagon by thieves. Although the railway company knew as early as 20 September 1944 that the goods were lost, the plaintiff was not informed until 20 September 1945 (Ex. P-2). The plaintiff filed suit on 1 August 1946 for the price of the goods as damages for non-delivery.

Procedurally, this judgment considers a civil revision petition attacking the lower court's decisions (including findings on limitation, misconduct/wilful negligence, applicability of Section 75 and Schedule II of the Indian Railways Act, and refusal to permit a belated witness). The revision petition was dismissed with costs. A separate civil miscellaneous petition (C.M.P. No. 7885 of 1949) for admission of fresh documents was also dismissed.

Legal Issues Presented

Whether the suit is barred by limitation — specifically whether Article 30 or Article 31 of the Limitation Act applies.
If Article 31 applies, from what date does the one-year period run (i.e., when did the goods "ought to be delivered" or when did limitation start) — whether from a reasonable presumed delivery date or from the date the carrier definitively declared inability to deliver.
Whether the plaintiff proved misconduct or wilful negligence by the railway sufficient to attract liability under the risk-note in Form Z and the law governing carriers.
Whether Section 75 of the Indian Railways Act and the Second Schedule (Schedule II) relieve the railway of liability because the consignor did not declare the contents/value (specifically in relation to lace and whether items fall under schedule items (c) or (n)).
Whether the lower court erred in refusing a belated application to examine a witness (Ganapathi) whose testimony was said to indicate a higher value for the lace.
Whether additional documents should be admitted in the civil revision petition (C.M.P. No. 7885 of 1949), including the applicability of Order 41, Rule 27 of the Civil Procedure Code to civil revision petitions under the Provincial Small Cause Courts Act.

Arguments of the Parties

Railway Company / Defendant (as represented in the opinion)

Counsel (Mr. V. K. Ramanatha Aiyar) urged that single-judge Madras decisions are not binding and relied on decisions of other jurisdictions (notably a Lahore High Court decision, Secretary of State v. Dunlop Rubber Co.) to contend that limitation should be computed from a reasonable period after which the goods would ordinarily have reached Guntur (i.e., a presumed delivery date), especially because no specific delivery date was fixed.
Counsel argued under the risk-note (Form Z) and Section 75 of the Indian Railways Act that it should be proved the loss arose from misconduct of the railway administration; he contended there was no misconduct in this case.
Counsel argued that because the consignor did not declare that the articles contained lace and/or did not declare value, the railway should escape liability under Section 75 and the Second Schedule (items (c) and (n)).

Plaintiff / Respondent (as represented in the opinion)

The plaintiff's correspondence (Exs. P-4 to P-22) shows repeated demands for compensation and that the plaintiff was not informed until 20 September 1945 of the railway's inability to deliver; the plaintiff proceeded to sue within one year of receiving that information (suit filed 1 August 1946).
The plaintiff (and the lower court) relied on factual findings that the railway failed to provide adequate safeguards in the marshalling yard and failed to properly examine sentinels, permitting an inference of misconduct and wilful negligence.
The plaintiff argued that the lace in the bales was not of sufficient value to attract the operation of Schedule II (i.e., the declared-value requirement under Section 75), and that there was no evidence that the lace contained gold or silver to bring it within item (c).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Palanichami Nadar v. Governor-General of India, 1915-2 M.L.J. 448 (A.I.R. (33) 1946 Mad. 133)	Held that in a suit against a railway company for non-delivery the period under Article 31 begins to run from after the definite refusal or declaration of inability to deliver by the responsible railway company.	The court followed this authority to hold that limitation begins when defendant 1 finally stated inability to deliver (20 September 1945), not from an earlier presumed delivery date.
Seetharama Sastri v. Hyderabad State (case considered by Mack J.)	Supports the proposition that for non-delivery suits time under Article 31 runs from receipt of definite information of non-delivery; a suit filed within one year of such information is timely.	The court relied on this decision (as considered by Mack J.) in concluding the suit was within time when measured from 20 September 1945.
M. & S. M. Railway Co. Ltd. v. Bhimappa (23 / 28 M.L.J. 511; 17 I.C. 419)	Earlier Madras decision holding, inter alia, that where Article 30 applies the burden of proving when the goods were lost is on the company; used as precedent for the approach to limitation and burden of proof.	The court cited this Bench decision as part of the established Madras authority supporting computation of limitation from the carrier's definite refusal to deliver and the allocation of burden of proof.
South Indian Railway Co. v. Narayana Iyer, 46 M.L.J. 302 (A.I.R. (11) 1924 Mad. 567)	Held Article 31 applicable to a consignee's suit for loss of goods in transit, with the starting point being when the railway company finally says the goods cannot be delivered.	The court relied on this decision to support the conclusion that Article 31 governs and the period starts from the railway's final communication of inability to deliver.
Secretary of State v. Dunlop Rubber Co., 6 Lah. 301 (A.I.R. (12) 1925 Lah. 178)	A Lahore decision cited by the railway's counsel that supports computing limitation from a reasonable period after which goods would ordinarily have reached destination (contrary view to Madras authorities).	The court considered this decision but declined to follow the Lahore view, preferring the Madras authorities noted above.

Court's Reasoning and Analysis

The court proceeded in a structured analysis addressing each legal issue on the record:

Article 30 v. Article 31 (Limitation): The court identified the distinction between Article 30 (suits for compensation for losing or injuring goods — time begins when loss or injury occurs) and Article 31 (suits for non-delivery or delay — time is one year from when goods ought to be delivered). The question was which article applied.
Determination that Article 31 applies: Citing a preponderance of Madras authority (including Palanichami Nadar, M. & S. M. Railway v. Bhimappa, and South Indian Railway Co. v. Narayana Iyer), the court concluded Article 31 applies to cases like the present where the suit is for non-delivery to a consignee.
Date from which limitation runs: Because no fixed delivery date was agreed for handing the goods at Guntur, the court followed the settled Madras view that limitation begins to run from the date on which the carrier definitively communicated inability to deliver. On the facts, although the railway knew of the loss as early as 20 September 1944, it did not inform the plaintiff; the relevant communication was Ex. P-2 dated 20 September 1945. The court therefore computed limitation from that date.
Rejection of contrary authorities: The court addressed the railway's submissions relying on Lahore decisions (notably Secretary of State v. Dunlop Rubber Co.) that limitation should be computed from a reasonable presumed delivery date. The court found the Madras decisions to represent the correct principle, endorsed by earlier Bench authority, and declined to follow the contrary Lahore view.
Misconduct / wilful negligence under the risk-note and factual findings: The court considered the argument that the risk-note (Form Z) requires proof of misconduct by the railway; the Subordinate Judge had found failure to provide adequate safeguards in the marshalling yard and non-examination of sentinels, from which misconduct and wilful negligence were inferred. As those are findings of fact, the revisional court declined to interfere with the Subordinate Judge's factual conclusions.
Section 75 and Schedule II (Indian Railways Act): The court examined items (c) and (n) of the Second Schedule. Item (c) applies to cloths and tissues with gold or silver lace; there was no evidence that the cloths contained gold or silver lace. Item (n) relates to lace and furs; the statutory exemption applies only where the lace/furs in a package exceed Rs. 100 in value. The evidence did not support that the lace was of sufficient value to attract Schedule II; the Subordinate Judge agreed with the plaintiff on this point.
Refusal to permit examination of Ganapathi: The court reviewed the lower court's refusal to permit a belated application to examine Ganapathi, who allegedly stated the lace value exceeded Rs. 200. The revisional court found no irregularity in rejecting the very belated application and noted possible inimicality of the witness; it declined to interfere.
Admission of fresh documents (C.M.P. No. 7885 of 1949): The petitioner sought admission of additional documents in the civil revision. The court observed there was no authority shown that the full provisions of Order 41, CPC (particularly Rule 27) apply to civil revision petitions under the Provincial Small Cause Courts Act. The court did not base its decision solely on that technical point but found, on the merits, that there were no justifying circumstances to admit additional evidence even if Order 41, Rule 27 were applicable. The petition for additional documents was dismissed.

Holding and Implications

Holding:

The suit is not barred by limitation. The court held that Article 31 of the Limitation Act governs and that the one-year period runs from the date the railway company definitively communicated its inability to deliver (20 September 1945), making the plaintiff's suit (filed 1 August 1946) timely.
The Subordinate Judge's finding of misconduct/wilful negligence was upheld. The revisional court declined to interfere with the factual finding that failures in safeguarding the goods and failures in examining sentinels allowed an inference of misconduct.
Schedule II / Section 75 did not relieve the railway of liability on the record. There was no evidence that the goods contained gold/silver lace (item (c)) or that any lace was of value exceeding Rs. 100 (item (n)), so the statutory protections in Schedule II did not apply on the facts before the court.
The refusal to permit a belated witness (Ganapathi) was upheld. The revisional court found no irregularity in rejecting a very belated application to examine that witness.
The civil revision petition was dismissed with costs, and the civil miscellaneous petition (C.M.P. No. 7885 of 1949) for admission of additional documents was dismissed.

Implications:

The direct consequences are that the plaintiff's cause of action was held to be within time and that the lower court's factual findings (misconduct, non-applicability of Schedule II, and the procedural refusals) were sustained. The court expressly preferred the Madras line of authority on the limitation question over contrary Lahore decisions. The opinion addresses application of existing precedents and the facts of this matter; it does not purport to establish a new, distinct legal principle beyond the application and reaffirmation of the cited authorities and the resulting disposition in this case.

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Governor-General In Council v. Messrs. Khadi Mandali

JUDGMENT Govind Menon, J.

1. The main and important point for consideration is whether the suit is barred under Article 30 or Article 31, Limitation Act. The plaintiff's suit was for recovery of the price of certain goods, namely, bales of cotton cloth which had been lost by the defendants who are common carriers during the course of the transit of the articles from Rajapalayam to Guntur. It is common ground that the goods in question were handed over to the South Indian Railway Company on 7th September 1944 at Rajapalayam for dispatch to Guntur. It is also proved beyond doubt that these goods reached the Tondiarpet Marshalling Yard in the Madras City on the midnight of 17th September 1944 and that sometime later the goods were lost. On enquiries made by the railway company, it was found that a gang of thieves had opened the wagon in the Yard and carried away the packages. Since the goods were not delivered at the destination to the plaintiff, who was the consignee of these goods in proper time, the suit was for recovery of a sum of money, being the price of the goods as the damages for non-delivery of the goods. Exhibits P-4 to P-22 are letters between the parties by which the question of non-delivery was discussed. The substance of this correspondence is that the plaintiff had been writing to defendant 1, for the payment of the compensation amount and defendant l putting off the plaintiff's claim by saying that the matter was under consideration. Though defendant 1 knew as early as 20th September 1944 that the goods were lost, the information to that effect was not passed on to the plaintiff and finally it was only on 20th September 1945 the plaintiff was informed of defendants 1's inability to deliver the goods as per Ex. P-2. This date should be taken as the crucial date on which the impossibility of performance of the contract was made known to the plaintiff. The suit was filed on 1st August 1946. The question therefore is whether the lower Court is right in holding that the suit is barred by limitation.

2. Article 30 of Schedule 1, Limitation Act contemplates cases where a suit is filed against a carrier for compensation for losing or injuring the goods and in col. 3 the time from which period has to begin is mentioned as when the loss or in jury occurs. Article 31 contemplates suit against a carrier for compensation for non-delivery or delay in delivering the goods and the time for filing the suit is one year from the date when the goods ought to be delivered. There has been a large body of case law as to which of these articles has to be applied in the circumstances like the present, and the preponderance of authority in this Court is to the effect that Article 31 is applicable. Therefore, what we have to see is what was the date when the goods ought to be delivered. As the learned Subordinate Judge finds there is no date fixed on which the plaintiff was to be handed over the goods in question at Guntur and therefore the proper period should be when the plaintiff was informed that he could not be given the goods, and that was on 20th September 1945. In Palaniohami Nadar v. Governor-General of India in Council, 1946-2-M. L. J. 148: (A. I. R. (33) 1916 Mad. 133), Yahya Ali J, had to consider a similar case. The learned Judge, after considering the case law on this topic, came to the conclusion that for a suit against a railway company for compensation for non-delivery of goods consigned for transit, time under Article 31, Limitation Act (period of one year from date when the goods ought to have been delivered) begins to run from after the definite refusal or declaration of inability to deliver by the responsible railway company. The learned Judge followed two earlier decisions of this Court, namely, M. and S. M. Railway Co. Ltd. v. Bhimappa,23 M. L. J. 511: (17 I. C. 419) and South Indian Railway Co. v. Narayana Iyer, 46 M. L. J. 302: (A. I. R. (11) 1921 Mad. 567). Very recently, my learned brother, Mack J, had also to consider M. .Seetharama Sastri v. Hyderabad State, . In that particular case, a merchant delivered the goods on 21st August 1941 to the railway company for carriage from Bezwada to Lahore, On 7th November 1914, the merchant received a letter from the consignee that the goods have not reached him. Then the consignor sent a notice on 8th February 1945 to the railway company complaining of the non-delivery of the goods and asking for payment of their value. No reply was vouchsafed to this letter. Therefore, the consignor filed the suit on 31st October 1945 for recovery of the value of the goods, It was held that the suit was filed properly within the period of limitation, namely, one year of the receipt of the information of non-delivery, and that there-fore the suit was not barred. The learned Judge also considered the earlier decision of Yahya Ali J. in Palanichami Nadar v. Governor General of India in Council, 1915-2 M. L. J. 448: (A. I. R. (33) 1946 Mad. 133). In the present case, though Exs. P-4 to p-22 show that there was correspondence between the plaintiff and defendant 1, defendant 1 company did not definitely and categorically state their inability to deliver the goods till 20 9-1945 and, in the circumstances, following the decisions referred to above, namely, Palanichami Nadar v. Governor-General of India in Council, 1915-2 M. L J. 448 : (A. I. R. (33) 1946 Mad. 133) and Seetharama Sastri v. Hyderabad State, , I am inclined to hold that the date from which limitation has to be computed is when finally it was mentioned by defendant 1, that the delivery could not be made.

3. Mr. V. K. Ramanatha Aiyar, appearing for Messrs. King and Partridge on behalf of the Railway Company, has urged that these decisions being by single Judges are not binding on me and that following certain decisions of the Lahore High Court and especially the decision in Secretary of State v. Dunlop Rubber Co. 6 Lah. 301: (A. I. R. (12) 1925 Lah. 178), I must hold that the date from which the period of limitation should be computed should be some reasonable period from the date when ordinarily the goods would have reached Guntur. In view of the circumstances that no date was fixed for the delivery of the goods at Guntur, it cannot be said that it is possible for the Court to fix a possible date for such an act. In the cases referred to by me above, the same question arose and both the learned Judges have held that the limitation should be computed only from the period when the common carrier expressed the inability to deliver the goods. It seems to me that the decisions of those learned Judges enunciate the correct proposition. Moreover, these decisions are founded upon the earlier decisions of this Court, one of which at least is a Bench case. M. & S. M. Railway v. Bhimappa, 28 M. L. J. 511: (17 I. C. 419) is a decision of Benson O. C. J. and Sankaran Nair J, where the learned Judges have held that the burden of proving, in a suit governed by Article 30, Limitation Act, the time when the goods entrusted to the railway company ware lost is on the company. Waller J. has also held in South Indian Railway Co. v. Narayana Iyer, 46 M. L. J. 302 : (A. I. R. (11) 1924 Mad. 567) that the Article of limitation applicable to a suit by a consignee for damages for the loss of goods in transit is Article 31, the starting point being the date when the railway company finally says that the goods cannot be delivered. In these circumstances and, considering the consensus of authority in this Court, I do not think I will be justified in preferring the Lahore cases which lay down the view contrary to the Madras decisions. I am therefore of opinion that the suit is not barred by limitation.

4. The next point urged is that according to the risk-note in Form z, which is marked as Ex. D. 1 (b), it should be proved that the damage or loss arose from the misconduct on the part of the railway administration. Mr. Bamanatha Aiyar argues that in this case there has been no misconduct whatever. The learned Subordinate Judge has considered the question and came to the conclusion that the failure to provide adequate safeguards as well as the non-examination of the sentinals who were keeping watch over the goods in the Marshalling yard at Tondiarpet lead to the inference of misconduct and wilful negligence on the part of the defendant. The finding regarding misconduct being on question of fact, I cannot interfere in revision. There is no substance in the argument that misconduct or wilful negligence on the part of the railway company has not been proved.

5. The last argument of the learned counsel is based upon an interpretation of Section 75 as well as the second schedule of the Indian Railways Act. According to Section 75, when any articles mentioned in the second schedule are contained in any parcel or package delivered to a railway administration for carriage by railway, and the value of such articles in the parcel or package exceeds Rs. 100, the railway administration shall not be responsible for the loss, destruction or deterioration of the parcel or package unless the person sending or delivering the parcel or package to the administration caused its value and contents to be declared at the time of the delivery of the parcel or goods to the railway authority for the transit. It is urged that in this case the consignor from Rajapalayam has not mentioned that the articles contained lace and that therefore the railway company is not liable. According to the second schedule, item (c) relates to cloths and tissues and lace of which gold or silver forms part, etc., and item (n) relates to lace and furs. It cannot be said that item (c) of the second schedule applies, because there is no evidence that the cloths contained either silver or gold lace. Then we have to fall back upon item (n), that is, lace and furs. Unless the value of the lace or furs comes to Rs. 100 there is no necessity for declaring that amount and from the evidence in this case it is not possible to hold that the laces which are not of any valuable kind are worth Rs. 100 at all. The learned Subordinate Judge was inclined to agree with the plaintiff's version and held that the lace in question was not of such value as to attract the operation of Schedule II of Section 75, Railways Act. (His Lordship after discussing the evidence proceeded:)

6. Another complaint of the learned counsel for the petitioner is that the lower Court did not allow an opportunity for defendant 1 to examine one Ganapathi who had stated somewhere that the value of the lace was more than Rs. 200. It is stated that an application for examining him was made to the lower Court and that the learned Subordinate Judge rejected it. I am not satisfied that there was any irregularity in the learned Subordinate Judge's rejecting a very belated application to examine a witness who presumably may be on inimical terms with the plaintiff inasmuch as he had already dismissed him. No other point has been argued in this revision petition, which is therefore dismissed with costs.

7. C. M. P. No. 7885 of 1949 : This is a petition for the admission of fresh documents in the civil revision petition as additional evidence. No authority has been shown to me that the entire provisions of Order 41, Civil P. C., and especially Order 41, Rule 27 are applicable to the civil revision petitions under the Provincial Small Cause Courts Act. I do not wish to base my decision on that point alone, as there are no justifying circumstances which would allow me, even if Order 41, Rule 27 applies, to admit additional evidence in a civil revision petition. This civil miscellaneous petition is therefore dismissed.

Governor-General In Council v. Messrs. Khadi Mandali

Judgment Summary — Govind Menon, J.

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Railway Company / Defendant (as represented in the opinion)

Plaintiff / Respondent (as represented in the opinion)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Governor-General In Council v. Messrs. Khadi Mandali

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