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Government Of Mysore v. Kapurchand

Karnataka High Court

Jun 30, 1952

Judgment

Subsequent
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Factual and Procedural Background

On 29 June 1944 two bales of "lohis" were sent by rail from Ambarnath Station to the plaintiff at Bangalore City. Only one bale was delivered; the plaintiff sued the Government of Mysore and the Mysore State Railways for the value of the undelivered bale, initially claiming Rs. 919-4-0. After institution of the suit, part of the goods from the undelivered bale was given to the plaintiff and the claim was reduced to Rs. 590-12-0. The suit was contested but the trial court decreed in favour of the plaintiff; that decree was confirmed on appeal. The defendants preferred a second appeal challenging the decree.

Legal Issues Presented

Whether, under Section 59 of the Mysore Railways Act (corresponding to Section 75 of the Indian Act), the absence of a declaration of the contents of the bale (where the article is of the kind mentioned in the schedule and the value exceeds Rs. 100) relieves the Railway of liability — specifically, whether "lohis" fall within the scheduled entry for "shawls".
Whether the plaintiff's claim fails for want of a proper notice under Section 61 of the Mysore Railways Act, particularly given that the written notice was addressed to the Traffic Manager and issued after a delegation of authority by notification.
Whether the suit is barred by limitation under Article 31 of the Limitation Act (one year from the date the article had to be delivered), given the facts of partial delivery and the dates of repudiation and suit.

Arguments of the Parties

Defendants' Arguments

The lost articles (lohis) are effectively "shawls" as listed in the schedule to the Railways Act; because the value exceeded Rs. 100 and no declaration under Section 59 was made, the Railways are not liable for the loss.
The plaintiff failed to give proper notice within the time and manner required by Section 61 (the notice was not addressed to the appropriate officer as required at the relevant time), so the claim is invalid for want of notice.
The suit is barred by limitation under Article 31 of the Limitation Act if the date when the first bale was delivered is treated as the date when the other bale ought to have been delivered; the suit was instituted more than one year after that date.

Plaintiff's Evidence and Arguments

Evidence and correspondence (including a letter from Cawnpore Woollen Mills and a letter from the Assistant Secretary, Railway Board) indicate that lohis are classified by the Indian Railway Board in the general classification of goods and are not treated as "shawls" for the purpose of the relevant statutory provision.
Correspondence about non-delivery was commenced within six months, and a subsequent notification delegated authority to the Traffic Manager to receive notices and settle claims; the Railway treated the notice as sufficient and acted upon it.
The plaintiff contends (and the facts show) that there were assurances or continuing enquiries by the Railway and that part of the missing bale was recovered later; hence the cause of action arose only after a positive repudiation of the claim (on 27 April 1946) and the suit was filed within one year of that repudiation.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Sarat Chandra Bose v. Secretary of State, 39 Cal 1029	Held that the term "shawl" in the schedule refers to shawls of special value and does not extend to inferior articles (such as Alwans).	Cited to support the proposition that "shawl" in the schedule denotes articles of special value and should not be taken to include ordinary lohis.
E.I. Railway Co. v. Dayabhai Vanmalidas, AIR 1922 Bom 416	Adopted the view that "shawls" in the schedule denote articles of special value; ordinary low-priced items are not included.	Relied upon to reinforce the interpretation that lohis are not shawls for the purpose of Section 59.
Reference R.A. 166 of 44-45 (decision)	Held that a notice issued to the Traffic Manager was invalid (in that earlier decision).	The court observed that while that decision might have affected the suit, a subsequent notification delegating authority to the Traffic Manager validated later notices; thus the prior decision did not defeat the present claim.
Govind Lal v. Governor-General in Council, AIR 1948 Nag 17	When a delegation of authority to receive notices is made after a notice has been sent to an officer later authorised, the subsequent delegation was regarded as sufficient to validate the earlier notice.	Applied as analogous authority: the subsequent notification delegating authority to the Traffic Manager validated the notice addressed to him in this case.
Jainarain v. Governor-General of India, (1949) 4 Bom LR (Cal) 225	Time "when the goods ought to be delivered" (Art. 31) is the time according to subsequent promises by the Railway where enquiries are being carried on; time begins to run only after a definite refusal or declaration of inability to deliver.	Followed by the court to hold that limitation runs from a definite refusal; therefore limitation did not bar the plaintiff's suit where repudiation occurred on 27 April 1946.
Raigarh Jute Mills Ltd. v. Commissioner for the Port of Calcutta, AIR 1947 Cal 98	Held that in actions for non-delivery of part of a consignment, the time under Art. 31 begins to run after a definite refusal or declaration of inability to deliver.	Adopted to support the conclusion that limitation begins on definite refusal and not from the date of partial delivery in the normal course.
Palanichami Nadar v. Governor-General of India in Council, AIR 1946 Mad 133	Expressed the same view that limitation begins after a definite refusal to deliver.	Cited as additional authority supporting the court's interpretation of Article 31.
Jugal Kishore v. G.I.P. Railway Co., 45 All 43	Supports the view that the cause of action for non-delivery and the running of limitation may depend on a definite refusal.	Referred to as part of the body of authority favouring the court's limitation analysis.
Rivers Steam Navigation Co. Ltd. v. Bisweswar Kundu, AIR 1928 Cal 371	Another authority cited in support of the view that limitation begins after definite refusal to deliver.	Used to reinforce the court's conclusion on limitation.

Court's Reasoning and Analysis

The court addressed the three main grounds raised by the defendants in sequence, applying statutory interpretation, documentary and testimonial evidence, and relevant authorities:

Section 59 (corresponding to Section 75 of the Indian Act): The court examined whether "lohis" fell within the schedule entry for "shawls" such that a declaration would have been necessary when the value exceeded Rs. 100. The court construed "shawl" in the schedule as referring to shawls of superior quality (articles of special value, e.g., Kashmir shawls) and not ordinary low-priced lohis. It relied on tariff classification evidence (control price of a lohi recorded at Rs. 9-2-0), witness evidence (DW1 stating lohis are in general classification and not shawls), and documentary evidence (letters and goods tariff showing lohis are treated in general classification). On this basis the court concluded that Section 59 could not be invoked by the defendants to defeat the plaintiff's claim.
Section 61 (notice requirement): Section 61 requires a written notice within six months from consignment to sustain a claim. The goods were consigned on 29-6-1944 and the notice (Exhibit H) was issued to the Traffic Manager on 20-5-1946. The court dealt with two related objections: (a) that the notice was addressed to the wrong officer (Traffic Manager rather than General Manager) and (b) that it was issued beyond the six-month period. The court observed that a notification dated 9-11-1945 had delegated authority to the Traffic Manager to receive notices and settle claims, and that the notification expressly treated any notice so served as equivalent to one served on the Railway Administration under the relevant sections. The court treated the subsequent delegation and the fact that the Railway acted on the notice as validating the notice addressed to the Traffic Manager; it reasoned that an earlier decision holding a notice to the Traffic Manager invalid did not prevail in light of the subsequent notification. The court therefore held the objection to the validity of the notice was not tenable. The court also noted it was unnecessary to decide whether notice is required at all in cases of non-delivery, a point on which authorities differ.
Limitation (Article 31 of the Limitation Act): The court analysed whether the suit was time-barred. While Article 31 provides one year "from the date the article had to be delivered," the consignment note fixed no precise delivery date; in ordinary course, both bales would be delivered within a reasonable time. The court rejected a rigid construction that would start the limitation period from the date of delivery of the first bale (24-7-1944), which would have barred the suit. Instead, following a body of authorities, the court accepted that where there is no fixed delivery date and where the Railway has given assurances or carries on enquiries, limitation begins only after a definite refusal or declaration of inability to deliver. Applying that principle and the facts (the claim was repudiated on 27-4-1946), the court concluded the action was brought within one year of repudiation and thus was not barred by limitation.

Holding and Implications

Holding: Appeal dismissed.

Implications and direct consequences:

The decree in favour of the plaintiff (for the reduced claim of Rs. 590-12-0 after part delivery) stands: the second appeal by the defendants fails and is dismissed with costs.
The court held (on the facts and the evidence before it) that lohis are not "shawls" within the meaning of the schedule to Section 59 and therefore the lack of a declaration under Section 59 did not relieve the Railway of liability in this case.
The notice addressed to the Traffic Manager was treated as valid in consequence of the 9-11-1945 notification delegating authority to that officer and because the Railway acted upon the notice; the objection under Section 61 therefore failed.
On limitation, the court applied established authority that limitation under Article 31 runs from a definite refusal or declaration of inability to deliver; because repudiation occurred on 27-4-1946 and the suit was filed within a year thereafter, the suit was held not to be time-barred.
No broader or novel precedent was announced by the court beyond applying and following existing authorities; the decision resolves the appeal by applying those authorities to the facts before the court.

B/M.K.S

Appeal dismissed.

Show all summary ...

1. On 29-6-1944, two bales of Lohis were sent by rail from Ambarnath Station to the plaintiff at Bangalore City, of these, only one was delivered to the plaintiff and for recovery of Rs. 919-4-0 as the value of the undelivered bale he sued the Government of Mysore and the Mysore State Railways. Subsequent to the institution of the suit, part of the goods contained in the undelivered bale was given to the plaintiff and the claim was therefore reduced to Rs. 590-12-0. The suit was contested on various grounds but decreed. The decree has been confirmed in appeal.

2. In the second appeal preferred by the defendants the decree made in favour of the plaintiff is challenged mainly on three grounds viz., firstly that the articles said to have been lost being of the kind mentioned in the schedule to the Railways Act, declaration of the contents of the bales should have been made as required by Section 59 of the Railways Act and since there was no such declaration, the defendants are not liable for the loss; secondly that the claim has to fail for want of a proper notice under Section 61 of the Act and thirdly that the suit is barred by limitation.

3. The first two depend on the interpretation of Sections 59 and 61 of the Railways Act and the last on the application of the relevant Article of the Limitation Act. According to Section 59 in the case of articles mentioned in the schedule declaration is necessary about the contents, if the value thereof is more than Rs. 100/- to render the Railways liable for loss. The declaration will put the Railway on guard to take extra care for safe transit of such goods and additional charges are levied to cover the responsibility. These goods are termed excepted goods on this account and enumerated in the schedule under the heading “Articles to be declared and insured”. It is argued that Lohis are shawls mentioned as item (m) in the schedule and the total value of these being more than Rs. 100/- the Railway is protected from liability by the absence of the declaration. Besides the several articles specifically mentioned in the schedule it includes “any article of special value which the Government may by Notification in the Official Gazette, add to this schedule” implying that the schedule relates to articles of special value.

4. What is called “shawl” in common parlance in a loose sense which is a coarse mixture of woollen and cotton, priced low to attract large sales, cannot be deemed to be article of “special value”. For the purpose of the schedule “shawls” must be construed as having application to those “shawls” which are of superior quality, texture, colour and finish. It may appropriately refer to Kashmir Shawls or other fabric requiring more than ordinary skill & cost. In — ‘Sarat Chandra Bose v. Secy. of State’, 39 Cal 1029 it was held that the term refers to shawls of special value and cannot be taken to apply to articles of inferior value such as Alwans. The same view was adopted in — ‘E.I Rly. Co. v. Dayabhai Vanmalidas’, AIR 1922 Bom 416. The description of the articles as woollen in the consignment note is not of significance in view of the control price of a lohi being only Rs. 9-2-0 and D.W 1's evidence as follows:

“Lohis are classed under general classification and not along with shawls. Shawls are not included under general classification. In goods tariff there is nothing to show that lohis and shawls are identical.”

5. The plaintiff has produced a letter from the Cawnpore Woollen Mills intimating that lohis are included by the Indian Railway Board in the general classification of goods and not treated as shawls for the purpose of Section 75 of the Indian Act corresponding to Section 59 of the Mysore Act and this is borne out by what is found in the goods tariff No. 26 of 1-6-1944 issued by the Indian Railways Conference Association. There is also a letter of the Assistant Secretary, Railway Board, to the Secretary, Upper India Chamber of Commerce, Cawnpore, showing that lohis are not excepted articles. In my opinion lohis are not shawls in the sense the term “shawl” is used in the schedule and Section 59 of the Act cannot be relied upon to resist the plaintiff's claim.

6. Section 61 of the Act prescribes that within six months from the date the goods are consigned to the railways for delivery, a notice in writing to the Railway Administration should be issued to sustain a claim for compensation. As already mentioned, the goods in this case were consigned on 29-6-1944. The notice Exhibit H was issued to the Traffic Manager on 20th May 1946. Between these two dates there was a notification dated 9-11-1945 by which the Traffic Manager (was) delegated with the authority to receive notice and settle claim. It cannot now be said that it is defective as being addressed to the Traffic Manager instead of the General Manager. The decision in — ‘R.A 166 of 44-45’ to the effect that the notice issued to the Traffic Manager is invalid may have affected the suit but for the notification subsequently issued which provides for it. There is, however, the other objection that the notice was issued beyond the period of six months from the date of delivery for carriage of the goods and therefore the requirement of Section 61 is not satisfied. The correspondence about non-delivery was started by the plaintiff within six months but it was prior to the notification. The contention is that since it was the Traffic Manager and not Manager to whom the letters were then addressed there was no valid notice within time. In — ‘Govind Lal v. Governor-General in Council’, AIR 1948 Nag 17, the facts were almost similar. As in this case one bale of cloth was not delivered to the consignee and the notice was sent to the Superintendent General and not as it should have been to the Manager or Agent of the Company. The notice was sent in October 1942 and in November 1942 the Superintendent General was authorised to receive notices under Section 77 of the Indian Act corresponding to 61 of the Mysore Act. The delegation of authority though subsequent to the date of the notice the notification was regarded as sufficient to validate the notice. The notification in the present case clearly states “Any notice served will be treated as equivalent to one served on the Railway Administration in compliance with the provisions of Sections 61 and 122 of the Mysore Railways Act”. At the time the notification was issued the claim with respect to the undelivered bale was pending consideration and having regard to the terms of the notification and the fact that the Railway Administration treated it as sufficient to be acted upon the objection is not tenable. In this view of the matter, it is unnecessary to examine whether a notice is necessary at all in case of non-delivery — a question on which there is cleavage of judicial opinion.

7. The only other point left for determination is whether the suit is barred by time. It is not disputed that the Article applicable to the case is Article 31 of the Limitation Act which provides a period of one year from the date the article had to be delivered. Obviously no time was fixed for delivery in the consignment note but in the ordinary course of business both the bales were expected to be delivered within a reasonable time. The date on which one bale was delivered was 24th July 1944 and if this is deemed to be the date on which the delivery of the other bale also was to be made, the suit is barred as it was filed more than an year after that date. The construction of the Article in this manner will put the consignee in peril of time running against him even though there is a prospect or possibility of the goods being delivered after some time. He will be obliged to resort to court before exhausting attempts or completion of inquiries to trace the goods and then withdraw the suit if the attempt succeeds.

8. The plaintiff in this case could not assume on the date one bale was delivered to him that the remaining one would not be given at all. On the other hand it is alleged that hopes of delivery were held out to him and as a matter of fact part of the missing bale was as a result of investigation got by him. A person in the position of plaintiff cannot be expected or required to file the suit until a positive refusal of delivery on the part of the Railway or the circumstances are such as to imply refusal. My attention was drawn to — ‘C.R.P No. 322 of 1948-1949 (Mys)’, in which Balakrishnaiya J. has taken a different view. But the case seems to be distinguishable as it is stated to be one “in which there was neither refusal of delivery nor of plaintiff being misled by assurances held out by defendant”. There is a volume of authority in favour of the view that the cause of action for a suit does not arise until there is positive or definite refusal by the Railways. In — Jainarain v. Governor-General of India’, (1949) 4 Bom LR (Cal) 225, Chakravarthi J. after reviewing all the authorities on the matter observed as follows:

“This impressive array of authorities seem to me to establish beyond doubt that the time ‘when the goods ought to be delivered’, within the meaning of the third column of Art. 31 is not the time when they should have been delivered in the normal course, at least in a case where there is no time fixed for delivery but the time when they ought to be delivered according to the subsequent promises by the Railway which informs the parties that it is carrying on enquiries. Time begins to run from after a definite refusal or declaration of inability to deliver. If may say so with respect, that seems to me the only reasonable way of construing the Article.”

9. In — ‘Raigarh Jute Mills Ltd. v. Commr. for the Port of Calcutta’, AIR 1947 Cal 98, Gentle J. held that when the plaintiff brings a suit for damages for non-delivery of a part of the consignment, as in this case.

“the time under Art. 31 begins to run from after a definite refusal or declaration of inability to deliver and the cause of action arises when the owner of the goods is made aware that there will be no further delivery of the undelivered part of the consignment.”

10. A similar view is expressed in — ‘Palanichami Nadar v. Governor-General of India in Council’, AIR 1946 Mad 133. See also — ‘Jugal Kishore v. G.I.P Rly. Co.’, 45 All 43 and —‘Rivers Steam Navigation Co. Ltd. v. Bisweswar Kundu’, AIR 1928 Cal 371. Since it was not till 27-4-1946 that the claim was repudiated and the suit was filed well within a year from that date, it is not barred by limitation. The appeal consequently fails and is dismissed with costs.