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Case Number

Civil Revn. Case No. 1217 of 1948

Advocates

Sudhanshu Bhusan Sen - for Petnr.; Bhabesh Narayan Bose

Judges

Chakravartti, J.

Acts

Art. applicable was Article 30, Limitation Act,
Article 30 but Article 31, Limitation Act
Sections 55 & 56 of the Railways Act IX
SECTION 31 LIMITATION ACT
SECTION 19 LIMITATION ACT
Article 31, Limitation Act,

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Smart Summary

Structured Summary of the Provided Legal Opinion

Factual and Procedural Background

On 6 May 1944 the petitioner (plaintiff) handed over a bundle of cloth at the Burrabazar Booking Office of the Bengal & Assam Railway (the Railway) for carriage from Calcutta to Jogbani. The bundle was never delivered to the petitioner. Subsequent correspondence ensued. By letter dated 12 March 1945 the Railway wrote that one bundle of the consignment was undelivered at destination, invited the petitioner to take delivery within a specified time, and warned that if delivery was not taken or instructions for disposal were not received within 15 days, the bundle would be disposed of under Sections 55 & 56 of the Railways Act IX of 1890 to defray charges.

The petitioner inspected the bundle after receiving the letter and discovered it did not belong to him. On 22 August 1945 the petitioner instituted the present suit claiming Rs. 1,465/7/-, alleged to be the price of the bundle's contents, and alternatively pleaded damages for breach of contract, wrongful conversion, or negligence/misconduct by the Railway.

The Railway pleaded limitation as a defence and also stated that the goods had been lost in transit. The trial court overruled the plea of limitation, applied Article 30 of the Limitation Act (starting point “when the loss or injury occurs”), and decreed the suit in the petitioner's favour. The Railway obtained a new trial; a Full Bench (F.B.) of the Small Causes Court (consisting of the Chief Judge and the trial judge) concluded Article 31 (starting point “when the goods ought to be delivered”) applied, held the suit was time-barred, and dismissed the petitioner's suit. The petitioner obtained a rule here challenging the F.B.'s decision.

Legal Issues Presented

Whether the Railway's letter of 12 March 1945 constitutes an acknowledgement of liability within the meaning of Section 19 of the Limitation Act, thereby restarting the period of limitation.
Which article of the Limitation Act applies to the petitioner's claim against the carrier — Article 30 (suits for compensation for losing or injuring goods) or Article 31 (suits to recover compensation for non-delivery) — and, relatedly, whether the suit is barred by limitation under the applicable article.
If Article 30 or 31 applies, when does the period of limitation begin to run in the factual circumstances of ongoing correspondence and enquiries between the consignor and the Railway?

Arguments of the Parties

Petitioner's (plaintiff's) Arguments

The petitioner asserted entitlement to Rs. 1,465/7/- as the value of the contents of the undelivered bundle, on grounds of breach of contract, wrongful conversion, or negligence by the Railway (as stated in the plaint).
It was contended (by Mr. Sen, appearing for the petitioner) that the Railway's letter dated 12 March 1945 amounted to an acknowledgement of liability within the meaning of Section 19 of the Limitation Act and therefore gave rise to a fresh starting point for limitation from the date of that letter.
The petitioner relied upon the trial judge's application of Article 30 (starting when the loss or injury occurs) and the principle that the carrier must prove when the loss occurred if asserting limitation under Article 30.

Railway's (defendant's) Arguments

The Railway pleaded limitation as a complete defence to the claim and also pleaded that the goods had been lost in transit.
Before the Full Bench, the Railway maintained that Article 31 applied and that the suit was barred because the goods “ought to have been delivered” on 16 May 1944 (a date referred to by the petitioner's pleader), so the suit instituted on 22 August 1945 fell outside the one-year period under Article 31.
The Railway (and its counsel Mr. Bose) argued that the petitioner had not called evidence to convert the plaint’s allegation of non-delivery into a claim of loss by the Railway, and that one could not import a finding of loss for purposes of limitation where the plaint framed the case as non-delivery.
It was also argued (and upheld by the F.B.) that the Railway's letter of 12 March 1945 did not constitute an acknowledgement of liability under Section 19; the F.B. found the letter did not, "by any stretch of imagination," admit the particular liability sued on.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Sukhamoni v. Ishan Chunder, 25 Cal. 844 : (25 I.A. 85) (Privy Council)	Held that an admission of facts from which a liability is a necessary consequence (e.g., admission of a joint debt) can operate as an acknowledgement under Section 19 of the Limitation Act; wider meaning of “acknowledgement” endorsed by the Privy Council.	Court applied the wider meaning of Section 19 derived from this authority to hold that the Railway's letter of 12 March 1945 contained admissions (receipt for carriage, obligation to deliver, non-delivery) and therefore constituted an acknowledgement restarting limitation from the date of the letter.
Jugal Kishore v. G.I.P. Railway Co., 45 All. 43 : A.I.R. (10) 1923 All. 22	Explained Article 30 applies to suits for compensation for losing or injuring goods by the carrier itself; time begins when the carrier lost or injured the goods; burden is on the carrier to prove the date of loss for limitation purposes. Also addressed Article 31 where correspondence showed enquiries and no refusal to deliver within a year.	Court relied on and quoted this decision to support the propositions that (a) under Article 30 time runs from when the carrier lost the goods, and the carrier must prove that date, and (b) under Article 31, where correspondence and enquiries continue and there is no refusal, limitation may not begin to run until a final refusal or declaration of inability to deliver.
Rivers Steam Navigation Co. Ltd. v. Bisweswar Kundu, A.I.R. (15) 1928 Cal. 371 : 116 I.C. 148	Applied the principles set out in Jugal Kishore and English authorities regarding when limitation runs under Articles 30 and 31 in cases of undelivered or lost goods where enquiries and correspondence occur.	Court cited this Calcutta decision as supporting the same legal principles about the accrual of the cause of action and the postponement of the running of limitation while enquiries and correspondence continued without a final repudiation by the carrier.
Palanichami v. Governor-General in Council, A.I.R. (33) 1946 Mad. 133 : 224 I.C. 436	Held that under Article 31 limitation runs from after a definite refusal or declaration of inability to deliver the undelivered articles where the carrier had been making enquiries for a long time.	Cited as persuasive authority that Article 31's “when the goods ought to be delivered” must be read to begin after a final refusal/declaration of inability to deliver, not merely after the time they would normally have been delivered.
Raigarh Jute Mills Ltd. v. Commissioners for the Port of Calcutta, A.I.R. (34) 1947 Cal. 98	Held that in a suit for damages for non-delivery of part of a consignment, Article 31 begins to run after a definite refusal or declaration of inability to deliver — the cause of action arises when the owner is made aware that there will be no further delivery.	Used to reinforce the proposition that ongoing enquiries and promises by the carrier postpone the running of limitation under Article 31 until a definitive refusal or declaration of inability to deliver.
Haji Ajam v. Bombay & Persia Steam Navigation Co., 26 Bom. 562 : 4 Bom. L.R. 447	Held that letters by a carrier admitting short delivery and offering to settle may constitute an admission of liability for the purposes of restarting limitation under Section 19.	Cited by petitioner’s counsel and discussed by the court as supporting the view that correspondence admitting facts that logically imply liability can amount to an acknowledgement under Section 19.
Mutsaddi Lal v. B.B. & C.I. Railway Co., 42 All. 390 : A.I.R. (7) 1920 All. 157	Held that a letter merely informing the consignor that the bundle was lying at a certain place and awaiting instructions did not amount to an acknowledgement of liability under Section 19.	Cited by the Railway and relied upon by the F.B. as supporting the view that such a letter does not, without more, amount to an acknowledgement; the present court considered it but preferred the Privy Council's wider approach and the Bombay decision.

Court's Reasoning and Analysis

The court proceeded in a step-by-step analysis constrained by the pleadings and the evidence summarized in the record:

Scope of Section 19 (Acknowledgement): The court examined the language of Section 19 of the Limitation Act and the interpretation given by higher authorities (notably the Privy Council and several High Courts). It accepted the broader interpretation that an acknowledgement need not be a specific admission of the exact monetary liability sued upon; if a party admits facts the necessary consequence of which is the liability, that will suffice as an acknowledgement under Section 19.
Application of that principle to the Railway's letter of 12 March 1945: The court identified three admissions in the letter — that the bundle was received for carriage, that the Railway had an obligation to carry and deliver it, and that it had not yet delivered the bundle and remained liable to make delivery. On the basis of the Privy Council authority (Sukhamoni) and the Bombay decision (Haji Ajam), the court concluded the letter amounted to an acknowledgement of the liability to compensate for non-delivery and thus gave the petitioner the benefit of a fresh start of limitation from the date of that letter.
Alternate analysis under Article 30 and Article 31: The court then examined whether, even absent the acknowledgement, the suit was time-barred under either Article 30 (loss or injury to goods by carrier) or Article 31 (non-delivery).
- Article 30: The court accepted the settled proposition (supported by Jugal Kishore and subsequent cases) that Article 30's reference to loss is loss by the carrier and the date to be considered is when the carrier actually lost the goods. That date is peculiarly within the carrier's knowledge and, if limitation is to be pleaded, it is for the carrier to prove that the loss occurred more than one year before suit. Here, the Railway had not proved when any loss occurred; therefore Article 30 could not be used to hold the suit barred.
- Article 31: The court examined the starting point “when the goods ought to be delivered.” It rejected the Full Bench's narrower view that this meant the time when delivery would normally have occurred (16 May 1944 in the Full Bench's view). Instead, relying on a sequence of High Court decisions, the court held that where no time is fixed for delivery and where correspondence and enquiries between consignor and carrier continue with promises or enquiries by the carrier but no definitive refusal to deliver, limitation does not begin to run until the correspondence ends fruitlessly or there is a final statement of inability to deliver or a definite repudiation. The court considered this interpretation the only sensible one in the circumstances and consistent with prior authorities.
Application to the facts: The Railway's letter dated 12 March 1945 itself indicates that the Railway was still asserting possession of the bundle at destination and was inviting the petitioner to take delivery, while warning of demurrage and potential disposal. This showed that the matter was still at large and that the time “when the goods ought to be delivered” had not passed prior to 12 March 1945. The suit (instituted on 22 August 1945) therefore fell within one year from the relevant starting point whether Article 30 or Article 31 applied.
Evaluation of competing High Court decisions on acknowledgment: The court noted authority to the contrary (Mutsaddi Lal) but, having regard to the Privy Council's broader approach and the Bombay decision, preferred the wider interpretation that in the present factual matrix the Railway's letter amounted to an acknowledgement.
Conclusion on limitation: For either of two independent reasons — (a) the letter of 12 March 1945 constituted an acknowledgement under Section 19 restarting limitation, and (b) even without that acknowledgement the facts (ongoing enquiries, absence of definite refusal, and the Railway's failure to prove date of loss) meant limitation did not bar the suit under Article 30 or Article 31 — the Full Bench's decision dismissing the petitioner's suit on limitation grounds was incorrect.

Holding and Implications

Holding:

THE RULE IS MADE ABSOLUTE. The judgment and decree of the Full Bench are set aside, and the decree of the trial judge (which had decreed the petitioner's claim on the merits) is restored.

Implications:

The Railway's contention that the suit was barred by limitation was rejected for two independent reasons: (a) the Railway's letter dated 12 March 1945 constituted an acknowledgement of liability under Section 19 of the Limitation Act and gave the petitioner a fresh starting point for limitation; and (b) even without that acknowledgement, the facts — including ongoing correspondence and the Railway's failure to prove when any loss occurred — prevented a finding that the suit was time-barred under either Article 30 or Article 31.
As the Full Bench reversed the trial judge only on limitation and the trial judge had already decided the merits in favour of the petitioner, there was no need for a further trial: the trial judge's decree is restored.
No costs were awarded in respect of the rule, the court noting the difficulty of the limitation question involved.
The court did not purport to lay down a novel legal principle; rather it applied existing interpretations of Section 19 and Articles 30 and 31 as elucidated by prior authorities to the facts before it.

End of summary. All statements above are drawn strictly from the text of the provided opinion.

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Jainarain Pltf., Petnr v. The Governor-General Of India, Representing The B. & A. Rly. Calcutta Deft., Opposite Party.

1. The complaint in this rule is that the Cts below have wrongly thrown out the pltf's. suit on the ground of limitation. The facts are extremely simple & are as follows: On 6-5-1944, the petnr. handed over a bundle of cloth at the Burrabazar Booking Office of the B. & A. Rly. for carriage from Calcutta to a station called Jogbani. The bundle was never delivered. Some correspondence followed in the course of which by a letter dated 12-3-1946, the Ely informed the petnr. that one bundle belonging to his consignment was lying undelivered at the destination & that he must make arrangements for taking delivery within a certain time. The letter reads as follows:

“Dear Sir,

Sub: Calcutta Burra Bazar to Jogbani

P.W.B 963712 of 6.5.44 one

bundle of cloth.

With reference to your letter No. nil dated 2/8/44, I beg to inform you that one bundle of cloth belonging to the above consignment is lying undelivered at destination at your sole risk & responsibility & incurring wharfage daily.

Will you please arrange to take delivery of the same at an early date?

It delivery is not taken or instructions received as to its disposal within 15 days from the date of this letter, the bundle will be disposed of under Sections 55 & 56 of the Railways Act IX [9] of 1890 to defray the charges due to the Rly.”

2. The letter was signed by someone who described himself as the Chief Commercial Manager.

3. The petnr. on receipt of this letter, went to examine the bundle but found that it did not belong to him at all. Thereafter, some further correspondence followed but nothing in particular resulted. Ultimately, on 22-8-1945, the present suit was brought by which the petnr. asked for a decree for Rs. 1465/7/- that according to him being the price of the contents of the bundle. In the body of his plaint he stated that the deft, had failed & neglected to deliver the consignment & that he was entitled to the sum claimed either as damages for breach of contract or as damages for wrongful conversion or as damages suffered by him on account of negligence & misconduct of the Rly.

4. Inevitably, limitation was pleaded in defence. But the Ely also stated that the goods had been lost in transit.

5. As the Ct. below has been disposed of the case on the sole ground of limitation, it is not necessary to refer to the further pleas on the merits.

6. The trial Ct. decreed the suit. It overruled the plea of limitation in the view that the Art. applicable was Article 30, Limitation Act, under which the starting point was “when the loss or injury occurs.” As, according to the learned Judge, it lay on the deft. Rly. to prove when the loss had occurred & they had not proved that it had occurred on a date beyond one year from the institution of the suit, the learned Judge held, was not barred by imitation. Acting on that view of limitation, the learned Judge passed a decree for the whole amount claimed.

7. Thereafter, the opposite party applied for a new trial which was granted & a F.B constituted, as the practice is, of the Chief Judge & the trial Judge himself, was formed. The F.B took the view that not Article 30 but Article 31, Limitation Act applied. The learned Judges referred to a statement made by the pleader for the petnr. that the goods ought to have been delivered on 16-5-1944.

8. The starting point of limitation under Article 31 is “when the goods ought to be delivered.” The learned Judges accordingly held that since, on the pltf's. own admission, the goods ought to have been delivered on 16-5-1944, & the suit had not been brought till 22-8-1945, it was plainly barred under Section 31 of the Limitation Act.

9. It was contended before the learned Judges that the letter which deft. Rly. had written on 12-3-1945, amounted to an acknowledgement of liability within the meaning of Section 19 of the Limitation Act. The learned Judges overruled that contention somewhat summarily by saying that the letter could not be said to contain an acknowledgement of the liability in question “by any stretch of imagination.” Accordingly, the learned Judges set aside the decision of the trial Judge & dismissed the petnrs. suit. Against that decision the petnr. moved this Ct. & obtained the present Rule.

10. It was contended by Mr. Sen, who appeared in support of the Rule, that the F.B of Small Causes Ct. had erred in holding that the letter of 12-3-1945, did not amount to an acknowledgement of liability. At the first blush, the language in which Section 19 of the Limitation Act is expressed suggest that the acknowledgement must be an acknowledgement of the particular liability which is sought to be enforced by the suit, for example on the facts of the present case, acknowledgement of liability to pay compensation. A wider meaning, however, has been put upon the language of the section by the P.C & the H.Cs in India, in view particularly of Expln. 1 attached to it. The substance of the decisions appears to be that it is not necessary that there should be a specific A direct acknowledgement of the particular liability which is sought, to be enforced, but if there is an admission of facts of which the liability in question is a necessary consequence, there would be an acknowledgement within the meaning of S. 19. Thus, in the case of Sukhamoni v. Ishan Chunder, 25 Cal. 844 : (25 I.A 85 P.C) the Judicial Committee held that admission of the existence of a joint debt was an acknowledgement of a liability for contribution, in case the portion payable by the maker of the statement was paid by another of the joint debtors, & that for the purpose of a suit for contribution against him, such an admission would operate to enlarge the period of limitation under Section 19 of the Limitation Act. It is not necessary for me to refer to other decisions where the principle laid down by the Judicial Committee has been elaborated & applied it is quite clear that in the case before the Judicial Committee, in spite of the admission of the existence of a joint debt, there might be defences open to the maker of the admission against a claim for contribution. The P.C however, held that the admission would still operate as an acknowledgement of a liability for contribution. Applying that principle to the facts of the present case, it appears to me that the letter of 12-3-1945, contains three admissions. The Ely admits that the bundle of cloth was received for carriage; it admits that it was under an obligation to carry the bundle & to deliver it; it admits further that it has not yet delivered the bundle & I may add, admits that it is still liable to make delivery. In these circumstances, it seems to me, the receipt of the bundle for carriage & its non-delivery being both admitted, the liability for compensation on account of non-delivery was, under the wide meaning attributed by the P.C to Section 19 of the Limitation Act, acknowledged by the Rly.

11. In my view, therefore, the petnr. is entitled to rely upon the letter of 12th March as constituting an acknowledgement of the liability in question & to claim the benefit of a fresh start of limitation from the date of the letter. The view taken by the F.B on the plea of acknowledgement was, in my opinion, erroneous.

12. This is sufficient to dispose of the rule but it seems to me that from whatever point of view the present suit may be looked at it cannot be held to be time-barred, even though the petnr. be held not entitled to call in aid letter of 12-3-1945. It cannot be disputed that the suit being one against a carrier as a carrier, the only two articles applicable are Articles 80 & 31. The Sly in its written statement, stated that the goods had been lost in transit. If so, this was a case of loss & it seems to me that Art; 30 which applies to a suit for compensation for losing or injuring goods, would apply to the present case. If it does apply, then the starting point would be “when the loss or injury occurs.” It has been established by a series of decisions of the highest authority that the loss contemplated in col. 8 of Article 30 is loss by the Rly. & not loss caused to the consignor, that is to say, the relevant point of time is when the Rly. actually lost the goods & not the date on which the consignor came to know that he had suffered loss. To this main proposition, is attached another, which is that since the date of the loss is a matter peculiarly within the knowledge of the party who suffered the loss, namely, the Rly. the onus of proving that date lay on the deft. & if the deft, wanted to establish a plea of limitation, it lay on him to prove that the loss had occurred at a point of time beyond one year from the date of the institution of the suit.

13. The learned trial Judge applied this principle, although for the purposes of citation he chose a rather inconspicuous authority. It has not been proved in the present case by the Ely when the loss occurred, & that being so, it cannot be said that if Article 30 applies the suit is barred by limitation.

14. It was however contended by Mr. Bose a that the petnr. had called no evidence & the case made in his plaint, so far as the allegations of fact went, was one of non-delivery. He accordingly contended that it was not possible to import into this case the fact of a loss & on that basis apply Article 30. This argument is not without the merit of plausibility & I may add that it may not be proper to draw upon facts stated by the deft, for the purpose of determining a question of limitation. Assuming, therefore, that Article 30 did not apply but Article 31 did, even then it appears to me that the suit is not barred by limitation, even granting that the letter of 12-3-1945 did not amount to an acknowledgement of liability. The starting point under Article 31 is “when the goods ought to be delivered.” The F.B of the Small Causes Ct. has taken the view that, the time ‘when the goods ought to be delivered’ within the meaning of the article is the time when they ought to be delivered in the normal coarse. As I have already stated, they relied upon the admission made by the petnr's. pleader that in the normal course the goods ought to have been delivered on 16-5-1944. It has however been held in a series of cases, both of this Ct. & other H.Cs that where no time is fixed for delivery & where after the discovery of non-delivery, correspondence ensus between the consignor & the Rly. authorities in the course of which the Rly. goes on promising enquires & never denying any liability, limitation does not begin to run till the correspondence ends either fruitlessly or with a final statement by the Rly. of its inability to deliver or a final repudiation off the consigner's claim. Reference in this connection may be made to a decision of the Allahabad H.C reported in the case of Jugal Kishore v. G.I.P Rly. Co., 45 ALL. 43 : (A.I.R (10) 1923 ALL. 22) where the following passage occurs:

“Article 30 applies to suits for compensation for losing or injuring goods, & the period is one year from the data when the loss or injury occurs. It is obvious that the Article refers to losing or injuring goods by the carrier & not by the pltf., that is to say, time begins to run from the time when the carrier lost or injured the goods & not from the time when the consignee may be said to have suffered loss…. We agree with his (Ratigan, J.) view that the words “against a carrier for losing or injuring goods” obviously suggest not a mere loss of the goods to the owner, which might be caused by misdelivery but an actual losing of goods by the carrier himself…. The burden of proving when the goods were lost was decidedly on the companies, & it not being proved that the goods were lost by them more than one year before the institution of the suit, the claim is not barred by Article 30.

Article 31 fixes one year from the date when the goods ought to have been delivered & applies to suite to recover compensation for non-delivery. It is to be noted that in the present case no time was fixed for the delivery of goods, & the correspondence between the parties shows that the matter was being enquired into & that there was no refusal to deliver, upto well within a year of the suit. In the circumstances of the case, we are unable to hold that the suit was instituted more than a year from the expiry of a reasonable time within which the goods should have been delivered.”

15. It will be seen that the passage above quoted covers the principles applicable both to a case under Article 30 & a case under Article 31. These principles were accepted & applied by a decision of Mukherji J. in the case of Rivers Steam Navigation Co. Ltd. v. Bisweswar Kundu, A.I.R (15) 1928 Cal. 371 at pp. 375 & 376 : (116 I.C 148). His Lordship referred to the decision of the Allahabad H.C Jugal Kiskore v. G.I.P Rly. Co., 45 ALL. 43 : (A.I.R (10) 1923 ALL. 22) as also to certain English cases & text books & stated the law practically in the same language as was used in the passage which I have quoted.

16. A single Judge of the Madras H.C, in the case of Palanichami v. Governor-General in Council, A.I.R (33) 1946 Mad. 133 : (224 I.C 436) also applied the same principle so far as Article 31 is concerned & held that in a case where the Rly. Co. after making enquiries for a long time, finally informs the consignor or consignee that the undelivered articles are not traceable, time under Article 31, Limitation Act, runs from after a definite refusal or a declaration of inability to deliver the lost goods. To the same effect is a decision of Gentle J., sitting on the Original Side of this Ct. & reported in Raigarh Jute Mills Ltd. v. Commrs. for the Port of Calcutta, A.I.R (34) 1947 Cal. 98. His Lordship held that where a pltf. brings a suit for damages for non-delivery of a part of a consignment, the time under Article 31 begins to run from after a definite refusal or declaration of inability to deliver & 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.

17. This impressive array of authorities seems to me to establish beyond doubt that the time ‘when the goods ought to be delivered’ within the meaning of Col. 3 of Article 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 Ely which informs the parties that it is carrying on enquiries. If I may say so with respect, that seems to be the only reasonable way of construing the Article. Had the view taken by the F.B of the Small Causes Ct. been the true view, the position would be that even in a case where the parties were carrying on correspondence with the Rly. & the Rly. had been conducting enquiries & it had not yet been ascertained definitely that the goods had been lost nor had the Rly. disclaimed liability or expressed its inability to deliver, the consignor or the consignee would nevertheless have to file a plaint in order to avoid the bar of limitation.

18. It appears to me that a construction of a provision of the Limitation Act which involves that result ought not to be adopted if a more sensible construction is warranted by the language used. As I read Col. 3 of Article 31, it is capable of the construction pub upon it by the decisions I have cited, with which I respectfully agree.

19. Coming to the facts of the present case, I have already stated that even on 12-3-1945, the Rly. were stating that the bundle consigned by the petnrs. was lying at a certain place & in fact insisting on the petnr. taking delivery by a certain date on pain of being made liable for demurage. It could therefore never be said that the time ‘when the goods ought to be delivered’ had passed before 12-3-1945 or, I may add, even till a considerable time later. There was no time fixed for delivery in the present case. Accordingly, I am clearly of opinion that whether the letter of the 12th March does amount to an acknowledgement of liability or not, having regard to the state of facts prevailing up to within one year of the date of the institution of the suit, when the matter seems to have been at large, & delivery having been not yet refused it cannot be said that the suit, brought on 22-8-1945, was barred by limitation.

20. On the question of acknowledgement, I have omitted to refer to two decisions cited at the bar. Mr. Sen relied upon a decision of the Bombay H.C namely, the case of Haji Ajam v. Bombay & Persia Steam Navigation Co., 26 Bom. 562 : (4 Bom. L.R 447). The facts are more or less similar & it appears that certain: letters written by the company admitting short delivery & containing an offer to settle the dispute were treated as constituting an admission of a liability. A decision in the contrary sense by the Allahabad H.C was relied upon by Mr. Bose. It is the case of Mutsaddi Lal v. B.B & C.I Rly. Co., 42 ALL. 390 : (A.I.R (7) 1920 ALL. 157). There, a letter was relied upon as constituting an acknowledgement but the terms of the letter are not set out in the report. Sufficient indication, however, is given in the judgment of the contents of the letter & their Lordships say that the Rly. only informed the pltf. of the fact that the bundle consigned by him was lying at a certain place & his instructions as to its disposal were being awaited & that by making that statement, the Rly. did not acknowledge any liability. This decision undoubtedly supports the view taken by the R.B & contended for by Mr. Bose, but having, regard to the decision of the P.C to which I have already referred, I think the view taken, by the Bombay H.C ought to be preferred.

21. But, as I have stated, even without the aid of the letter as constituting an acknowledgement, the present suit must be held to be within time, whether it be regarded as a suit governed by Article 30 or as a suit governed by Article 31. The decision of the F.B must accordingly be set? aside.

22. In the result, the rule is made absolute. The judgment & the decree of the F.B are set aside. As, however, the trial Judge had decreed the petnr's claim on the merits & the F.B reversed his decision only on the question of limitation, it follows that there is nothing left, for the trial of which the suit ought to be sent back to the Ct. below. There will, therefore, be an order restoring the decree of the trial Judge. In view of the difficulty of the question of limitation involved, I would make no order for costs in this rule.

D.H

23. Rule made absolute.

Jainarain Pltf., Petnr v. The Governor-General...