Das, J.:— This is a second appeal by the defendant, and arises out of a suit for recovery of damages on account of non-delivery of three bales of cloth by a carrier. The relevant facts are the following.
2. On 15-9-1943, a consignment of four bales of cloth was booked by the plaintiff's agent at a station called Cawnpore on the East Indian Railway, as it was then called. The consignment was booked for a station called Ranchi on the then Bengal Nagpur Railway. On 24-12-1943, only one bale of cloth was delivered to the consignee; the other three bales of cloth were not delivered at all. The plaintiff respondent then gave a notice of his claim to the Bengal Nagpur Railway on 6-3-1944 and sent a copy of the said notice to the East Indian Railway Administration as well. A protracted correspondence then ensued. On 24-4-1944, the East Indian Railway Administration wrote to the plaintiff-respondent saying that an enquiry should be made from the Bengal Nagpur Railway Administration and that the East Indian Railway Administration was also making further enquiries into the matter.
3. On 3-6-1944, the Bengal Nagpur Railway Administration said that the consignment in question could not be traced and asked for further particulars. The plaintiff-respondent supplied further particulars, and on 27-7-1944, the Bengal Nagpur Railway Administration again wrote asking for some more details. The plaintiff-respondent gave more particulars by letters written in the first week of September, 1944. To these letters no reply was given. On 14-9-1944, the suit was instituted against the Bengal Nagpur Railway Administration. On 1-10-1944, the Bengal Nagpur Railway Administration was taken by the Government of India. On 2-12-1944, the Governor General of India in Council was substituted in place of the Bengal Nagpur Railway Administration. On 7-5-1945, a written statement was filed on behalf of the Governor General of India in Council denying liability and refusing to deliver the remaining three bales of cloth. On 20-12-1945, the plaintiff-respondent filed a petition for amendment of the plaint in order to make it clear that the Governor General of India in Council was impleaded as owner of the East Indian Railway Administration as well. This petition was allowed on 4-1-1946, subject to limitation. On 4-5-1946, the Governor General of India in Council as representing the East Indian Railway Administration filed another written statement. The suit was thereafter heard and decreed by the Additional Subordinate Judge of Ranchi. There was an appeal which was heard by the learned Additional Judicial Commissioner who dismissed the appeal.
4. As already stated, the appeal has been preferred by the defendant. Mr. P.K Bose appearing on behalf of the appellant has taken the following points before us. He has addressed to us the contention that the suit was barred so far as the Governor General of India in Council representing the East Indian Railway Administration was concerned. In support of this contention, Mr. Bose has made the following submissions. He has pointed out that only one out of four bales of cloth was delivered on 24-12-1943, and on 24-4-1944 the East Indian Railway Administration wrote their first and last letter referring the consignor to the Bengal Nagpur Railway Administration. Mr. Bose's submission is that the suit is governed by Article 31, Limitation Act, and under that Article the period of limitation is one year from the time when the goods ought to have been delivered. Mr. Bose argues that in the present case the goods ought to have been delivered on 24-12-1943 when one bale was made over to the consignee, and the period of one year should be counted from that date; alternatively, he has argued that even if the period of one year is counted from 24-4-1944, the date on which the East Indian Railway Administration wrote their first and last letter to the plaintiff-respondent, still the suit is barred by time; because the Governor General of India in Council representing the East Indian Railway Administration was brought into the record for the first time on 4-1-1946.
5. In my opinion, this somewhat disingenious contention on behalf of the defendant has no merit and should not be accepted. It is now well settled that the question “when the goods ought to be delivered” is essentially a question of fact, and no universal or inflexible rule can be laid down that time must begin to run from the expiry of the ordinary period of transit or from the date when one out of many units of the consignment was delivered. The position is different where the time fixed for delivery of the goods is mentioned in the contract itself. But where no such time is mentioned, the facts and circumstances of each case will determine when the goods ought to be delivered.
6. Mr. Bose has referred us to certain decisions of this Court where it was held in the circumstances of those cases that the time under Article 31, Limitation Act, should be taken to have begun from the date on which one of several units of a consignment was delivered. Mr. N.L Untwalia has referred to other decisions where it has been held that the expression “when the goods ought to have been delivered” in the third column of the Article must be construed as meaning when the defendant company finally said that the goods would not be delivered; time would then begin to run from after a definite refusal or a declaration of inability to deliver goods by the railway company.
7. In the case before us, there was protracted correspondence between the plaintiff-respondent on the one side and the two Railway Administrations on the other, and though the East Indian Railway Administration wrote a letter on 24-4-1944, they did not refuse to deliver the goods on that date. They merely said that an enquiry should be made from the Bengal Nagpur Railway Administration and that they themselves were making enquiries into the matter. The last letters which the plaintiff-respondent wrote were in the first week of September, 1944, and on 14-9-1944, the suit was instituted. It was for the first time on 7-5-1945 that there was a definite declaration of inability to deliver the goods. The decision in — ‘B. & N.W Rly. Co., Ltd. v. Kameshwar Singh’, AIR 1933 Pat 45 (A) is in point in the present case. It was observed in that case that the plaintiff was justified in waiting to bring his suit until the defendants had made it clear that they had no intention to deliver the goods. The further observations made in that case are also apposite:
“The defendants by a deliberate process of ignoring the plaintiffs repeated requests for attention to his claim misled him into delaying his suit and it is not open to them now to contend that the suit has been brought too late. In my opinion the attitude of the railway company has throughout been lacking in candour and their defence to this suit even in its most technical aspects has no merit.”
8. I do not wish to add any further observations of mine, and rest myself content with merely saying that those observations apply in the present case as well. I do not think that the suit against the Governor General of India in Council representing the East Indian Railway Administration was barred in this case: this apart from the question whether the Governor General of India in Council can take up the attitude that it has a separate legal entity as representing the East Indian Railway Administration and another legal entity as representing the Bengal Nagpur Railway Administration. The Governor General of India in Council was substituted on 2-12-1944. That date was undoubtedly well within the period of one year calculated even from 24-12-1943 when one out of four bales was delivered to the consignee. The plea that any part of the claim was barred in this case must, in my opinion, be overruled.
9. Learned counsel for the appellant has also contended that the Governor General of India in Council had no liability in the matter of any nondelivery by the Bengal Nagpur Railway Administration, because there was no privity of contract between the Governor General of India in Council and the plaintiff-respondent. In my opinion, this argument has only to be stated in order to be rejected. The Governor General of India in Council took over the Bengal Nagpur Railway Administration on 1-10-1944 and it is obvious that any liability of the Bengal Nagpur Railway Administration was also taken over by the Governor General of India in Council.
10. The third point which learned counsel for the appellant has urged is based on Section 80 of the Railways Act. That section is in these terms:
“Notwithstanding anything in any agreement purporting to limit the liability of a railway administration with respect to traffic while on the railway of another administration, a suit for compensation for loss of the life of, or personal injury to, a passenger, or for loss, destruction or deterioration of animals or goods where the passenger was or the animals or goods were booked through over the railways of two or more railway administrations, may be brought either against the railway administration from which the passenger obtained his pass or purchased his ticket, or to which the animals or goods were delivered by the consignor thereof, as the case may be, or against the railway administration on whose railway the loss, injury, destruction or deterioration occurred.”
11. Section 80 in terms does not refer to non-delivery at all. Moreover, the learned Additional Judicial Commissioner has rightly pointed out that under the terms of the agreement in the present case it was provided that the agreement shall be deemed to be made separately with all Railway Administrations who shall be carrier for any portion of the transit. In view of that agreement, I do not understand how Mr. Bose can contend for one moment that the Bengal Nagpur Railway Administration had no liability in the matter.
12. No other points have been urged before us.
13. In my view the appeal has no merit whatsoever and must be dismissed with costs. I accordingly dismiss the appeal with costs.
14. Banerji, J.:— I agree.
K.S.B
15. Appeal dismissed.