1. This is a Second Appeal by the plaintiff arising out of a suit for damages for loss of consignment, and the question raised in this appeal is one of limitation. The facts, so far as they are relevant for the present appeal, are as follows:
On 16-12-47, 37 bales of cotton piece-goods were consigned to the railway at Indore for carriage to Dhanbad under Risk Notes A and Z. The goods were to be delivered to the plaintiff. Out of 37 bales, 35 bales were delivered to the plaintiff on 8-1-48. As regards the remaining bales the plaintiffs sought and obtained open delivery on 20-1-48, when it was discovered that one bale was entirely missing and some articles cut of the other bale had been pilfered. On 5-4-48 the plaintiff made a claim to the railway in respect of Rs. 658/8/6 on account of the price and incidental costs in consequence of the loss of one bale and some articles out of the other bale. This is exhibit 1. On 24-7-48 the Railway Administration sent to the plaintiff a reply, exhibit 1(c), stating that the matter was under its special enquiry. Finally, on 11-2-49 the railway sent a reply repudiating liability on the ground that the loss was occasioned by running train robbery. The plaintiff then commenced the present action on 20-7-49. He alleged that this loss was due to misconduct on the part of the Railway Administration. The railway denied liability to pay damages on the ground, first, that there was no misconduct on the part of the Railway Administration or its officers, and, second that it was a case of running train theft. It pleaded also limitation.
2. Both the Courts concurrently held that the loss was due to misconduct on the part of the Railway Administration. They, however, found that the suit was governed by Article 31 of the Indian Limitation Act and barred by limitation. It will appear that the suit was brought within one year from 5-4-48 when the plaintiff made a demand upon the railway for payment of Rs. 658/8/6 as also from 11-2-49 when the railway finally refused to entertain the claim of the plaintiff. The suit was, however, out of time if the period is computed from either 8-1-48 when part-delivery was made or from 20-1-48 when open delivery was given and one bail was found missing and the other bale was found tampered. In the opinion of the Courts below the starting point of limitation was either 8-1-48 or 20-1-48, and in either case the suit was barred by time. Accordingly, they dismissed the suit.
3. Mr. A.C Roy appearing for the appellant contended that in the circumstances of this case the period of limitation must be computed from 11-2-49 when the Railway Administrate on gave the final reply refusing to pay the plaintiff compensation for the loss of the consignment. His submission was that when the plaintiff sent the letter dated 5-4-48 to the Railway Administration, the latter wrote in reply that the matter was under special enquiry, and therefore until the result of that enquiry was communicated to the plaintiff, it was not necessary for the plaintiff to bring the suit, as he during that record all along expected that delivery or the missing articles would be made to him. He submitted further that in such a case the date of the final refusal on the part of the railway must be taken to be the date when the goods will be deemed not to have been delivered within the meaning of Article 31 of the Limitation Act.
4. Mr. P.K Bose appearing for the respondent, however, contended that the starling print of imitation was 20-1-48, when the plaintiff was given open delivery. He further submitted that, strictly speaking, there was no correspondence between, the plaintiff and the Railway Administration as to whether or not the goods would be delivered. The letter that the plaintiff addressed to the Railway Administration on 5-4-48 was in effect and essence a notice of the claim under section 77 of the Indian Railways Act and what the Railway purported to say in its reply of date 24-7-48 was that it was investigating the claim the plaintiff had made in his letter. It was this claim which was eventually refused by the railway on 11-2-49. His submission was that it was a case if loss of the consignment and the appropriate Article applicable to the case was Article 30 of the Limitation Act under which the cause of action must be deemed to have been arisen on the date the loss actually occurred, that is, on 20-1-48.
5. After hearing the arguments, I am unable to accept the contention raised on behalf of the appellant. In support of his contention, Mr. Roy relied upon the decisions in the cases of Mutsaddi Lal v. Governor-General in Council, AIR 1952 All 897 (FB) (A) and Union of Inda v. Bansidhar Modi, AIR 1954 Pat 548 (B). In the former case, the position was entirely different. There the consignment consisted only one bale of cloth and the entire consignment was not delivered to the plaintiff, and it appears that correspondence ensued between the Railway Administration and the plaintiff in which the Railway Administration held out hope to the plaintiff that the goods would be delivered and the matter was being enquired into.
6. In these circumstances, the Full Bench of the Allahabad High Court has held that if the goods do not reach the destination on the date when in the normal course of affairs they are expected to reach there and the Railway Administration on being approached for delivery holds out hope to the plaintiff that the goods would be delivered and that the matter was being enquired into, then the starting point of limitation under Article 31 cannot be said to be the date on which the goods: should have reached the destination in the normal course. Their Lordships have further laid down that the phrase ‘when the goods ought to be delivered’ means the point of time at which the carrier undertakes to deliver the goods or the date when the carrier informs the consignee that it would be delivered or when the carrier communicates to the consignee its inability to deliver the goods on a reasonable date that may be fixed on a consideration of events subsequent to the handing over of the consignment to the carrier for carriage.
7. No such case arises in the present case. As a matter of fact, we are not aware of the nature of the correspondence that passed between the plaintiff and the Railway Administration in that case. But, from the statement of facts it appears that the correspondence purported to hold out hopes to the plaintiff that the goods would be delivered. In the present case, the entire consignment was not lost. On the contrary, greater portion of the consignment, namely, 35 bales out of 37 bales, were delivered on the first day, that is, on 8-1-48, and of the remaining two bales, one was found to be missing on 20-1-48 and some articles were found to have been removed from the other bale. Apart from this what the Railway Administration said was that it was making enquiry.
8. There is no quest on of giving the plaintiff a hope that the missing goods would be delivered to the plaintiff. As a matter of fact, there was ??? no reason for the plaintiff to believe that at least the few articles that had been removed from one of the bales would be delivered to the plaintiff. In the case of (AIR 1954 Pat 548) (B), it appears that out of a consignment of four bales of cloth only one bale was delivered and the remaining three bales were not delivered, and this led to a protracted correspondence between the plaintiff and the railway.
9. In that case two railways were involved, namely, the then B.N Railway and the then E.I Railway. In the circumstances of that case, their Lordships held that the plaintiff was justified in waiting to bring the suit until the defendant made it clear that they had no intent on to deliver the goods. They quoted with approval the following observations of their Lordships of the Patna High Court in the case of B and N.W Rly. Co. Ltd. v. Kameshwar Singh, AIR 1933 Pat 45 (C):
“The defendants by a deliberate process of ignoring the plaintiff's repeated quests for attention to his claim misled him into delaying his suit and its 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”.
10. In short, those observations applied to the case under consideration. In my opinion, the present case is clearly distinguishable. Here, it is difficult to say on the correspondence that the plaintiff was misled into delaying the suit. As a matter of fact, when one bale was found to be partially tampered and the other bale was found lost, and when the major portion of the consignment, namely, 35 bales out of 37 bales had been, delivered, there was no reasonable basis for the plaintiff to think that the missing articles would be delivered to him by the railway.
11. This case, in my opinion, is covered by the decision of this Court in Gajanand Rajgoria v. Union of India, (S) AIR 1955 Pat 182 (D). It will be seen that Das, J. who delivered the judgment of the Court in this case was also a party to the decision in the case of (AIR 1954 Pat 548) (B). In the case of Gajanand Rajgoria a consignment of 200 bags of sugar was booked from a station called Bagaha on the railway section then known as the O.T Railway for another station called Katrasgarh on the E.I Railway section on 23-3-50. At the time of delivery 8 bags of sugar were found out and damaged. Those 8 bags Were reweighed and there was found shortage of 11 maunds and 1 seer of sugar. In these circumstances their Lordships observed as follows:
“It should be obvious that in a case of this kind, the entire quantity of sugar should have been delivered on the same day, namely 5-4-1950, and the sugar which had been removed or pilfered firm some of the bags could not be delivered on a subsequent date. Therefore, having regard to all the circumstances, the date when the goods ought to be delivered should, in the present case, be 5-4-1950”.
12. In the present case also the date when the goods were delivered was 8-1-48 when 35 bales out of 37 bales were delivered or 20-1-48 when open delivery was taken. Mr. Roy attempted to distinguish this case on the ground that in that case there was no loss or non-delivery of one entire or bale, but that some sugar had been removed from 8 bags of sugar.
13. In the present case, one entire bale had been lost and some articles had been removed from the other bale. Apparently, that was so. Even then, so far as the removal of a few articles from one of the bales is concerned, there can be no doubt that the date when the goods were to be delivered must be the date when open delivery was taken, that is, 20-1-48. But considered as a whole, I do not find that this case should be treated differently. At any rate, there is a Division Bench decision in Gopi Ram Gouri Shankar…Plaintiff ; v. G.I.P Ry. Co.…Defendant ., AIR 1927 Pat 335 (E) which is on all fours with the present case. In that case out of 6 bales of cloth 4 bales were delivered, and the other 2 bales were not found. In these circumstances, their Lordships held as follows:
“In a suit for non-delivery, where no portion of the consignment has been delivered, it is sometimes necessary to take evidence on the question of when the consignment ought to have been delivered, which must in any case be regarded as a question of fact. The case of G.I.P Ry. Co. v. Ganpat Rai, ILR 33 All 544 (E), was a case of this kind, where the consignment, was totally lost; there the learned Chief Justice of the Allahabad High Court and Mr. Justice Banerjee summarily decided that goods despatched from Bombay ought to have been delivered at Ghazipur within a fortnight or at the utmost within three weeks. It appeals to us quite unreasonable to hold where, the greater part of a consignment despatched from Bombay has been delivered at Gaya sixteen days later, that the rent of the consignment ought to have travelled at a pace slower than that of a bullock-cart. We have given our best consideration to this question; and we are of opinion that where a great part of a consignment has been delivered on a certain day, there is ordinarily no necessity to enter into evidence on the question of when the balance of the consignment ought to have been delivered because the time when the consignment as a whole ought to have been delivered is manifestly the time when the greater part of the consignment arrived at its destination”.
14. In the circumstances, it is difficult to hold that the missing articles could have been delivered at a subsequent date, nor do I find that there was any such expectation in the mind of the plaintiff. The plaintiff does not say that was expecting deli-very of the missing articles horn the railway. On the contrary, he took them as lost and made a final claim upon the railway for recovery of the price of the missing articles together with incidental costs. I do not find any substantial ground for distinguishing that case from the present one. Relying upon these decisions, I think, the date on which the goods ought to have been delivered must be taken to be the date when the major part of the consignment was delivered or the date when open delivery was taken by the plaintiff, that is to-say, either on 8-1-48 or on 20-1-48, and when the period of limitation is computed from either of these dates, the suit is clearly beyond time, and it was rightly decided by tile Courts below that the suit was barred by time.
15. Mr. Bose contended that there was absolutely no evidence to establish the claim laid by the plaintiff in the present case. It appears that this question has not been determined in the courts below, and in the view which I take of the case, namely, limitation, I do not consider it necessary to make any pronouncement upon this question.. There is, in my opinion, no substance in this appeal, and it is accordingly dismissed with costs.
H.G.P
16. Appeal dismissed.