1. The defendant, the Union of India as owner of the North Eastern Railway (formerly O. and T. Railway). Eastern Railway (formerly E.I Railway), Central Railway (formerly G.I.P Railway) and Western Railway (formerly B.B and C.I Railway) Administrations, is the appellant. The plaintiff, a firm known as Textile Trader Company carrying on business of cloth at Birganj, Post Office Raxual, is the respondent. The plaintiff had brought a suit for damages on account of non-delivery of a part of the consignment by the defendant who had acted as a carrier for the plaintiff.

2. The plaintiff's case, shortly put, is that it carries on cloth business in Birganj in the name of Textile Trading Company and that it had purchased sixty-seven bales of cotton goods from Babana Trading Company Limited, Bombay and entrusted the same with the defendant to be delivered to the plaintiff at Raxaul. On 15-8-1950, only 64 bales out of the 67 bales of cotton goods were delivered to the plaintiff which was granted a certificate of shortage of three bales of cloth which could not be delivered to it. The plaintiff preferred a claim demanding a sum of Rs. 2,824 annas 13 and 6 pies as damages for non-delivery of the three bales of cotton goods. The defendant, however, assured the plaintiff that the matter was being investigated and asked for the invoice. The plaintiff was kept in suspense till 9-7-1951 when defendant No. 1 finally refused to entertain the claim of the plaintiff. The plaintiff, accordingly, on receipt of the letter of refusal, sent a notice under Section 80 of the CPC. As the defendant did not pay the claim of the plaintiff in spite of this notice, the plaintiff brought the present suit against the defendant.

3. The case of the defendant, in the main, is that the plaintiff has no right to sue and the suit is not maintainable, that the suit is barred by limitation that the bales were lost in running train theft and hence the plaintiff was not entitled to any damage and that the notices under Section 80 of the CPC and Section 77 of the Indian Railways Act were defective and not valid. The learned Munsif, it appears, found that the notices were valid and properly served and that the loss was not occasioned by running train theft but he held that the suit was barred by limitation and was not maintainable. Hence he dismissed the suit. The appellate court upheld the findings of the trial court that the notices were valid and properly served and that the loss was not occasioned running train theft but held that the Suit was not barred by limitation and that it was maintainable. Hence, it decreed the plaintiff's suit.

4. Before me, the only point taken by the appellant is that the suit is barred by limitation and that the finding of the appellate court to that effect is not correct and should be set aside.

5. In order to appreciate the point raised by the appellant, certain dates have to be mentioned. The goods in question were despatched on the 27th July, 1950 and on the 15th August, 1950, the short delivery was made to the plaintiff that is to say, instead of 67 bales of cotton goods, only 84 bales were delivered to the plaintiff. On 6-10-1950, the plaintiff made a claim for compensation for the goods lost and on the 9th July, 1951, the claim put forward by the plaintiff was rejected by the Railway. The suit was instituted on 20-11-1951. The point that has been raised before me is that the period of limitation ran from the 15th of August, 1950, and, if that is correct, then the suit having been instituted on 20-11-1951, was clearly barred by limitation under Article 30 of the Limitation Act which permits a period of one year only.

6. The point, however, is whether limitation runs from 6-10-1950 or from 9-7-1951. If limitation I runs from 9th of July, 1951 that is to say, when the claim of the plaintiff was rejected by the Railway, then the suit was well within time. The appellate court held that the limitation period ran from 9th of July, 1951, the date when the defendant had rejected the plaintiffs claim for compensation. A number of decisions have been cited by the learned Counsel for the appellant in order to support his view that the limitation in the present case ran from the 15th of August, 1950, when short delivery was made to the plaintiff. For this purpose, my attention has been drawn to the case of Rameshwar Dass Mali Ram v. E.I Rly. Co. Ltd., AIR 1923 Pat 298 where it has been laid down that a case of loss of portion of consignment undelivered is equivalent to a case of short delivery and time begins to run when the loss occurs, i.e, when the short delivery which constituted the loss is made.

7. It does not appear from the judgment of that case that there was any correspondence going on between the Railway Company and the plaintiff as to the claim made by the plaintiff. As a general proposition of law, I must, with respect, agree with the above decision, but it has no application to the facts of the present case where we are concerned with an important point whether in case the plaintiff puts forward a claim for compensation for short delivery and the Railway enters into correspondence with the plaintiff giving hope to him that something might be done towards the claim made but finally rejects the claim, the period of limitation should run from the date when the Railway sends the letter to the plaintiff rejecting all his claim. Moreover, the above is a single Judge decision which would not be binding on me.

8. The next case referred to is the case of Gopi Ram Gouri Shankar…Plaintiff ; v. G.I.P Ry. Co.…Defendant ., AIR 1927 Pat 333 where it was observed that in a suit for non-delivery, where no portion of the consignment had 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, but where a great part of the 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 it manifestly the time when the greater part of the consignment arrived at its destination.

9. Again this has no application to the facts of the present case. No one disputes the fact that in the absence of any claim made, the limitation would run from the date when the bulk of the consignment had been delivered. It will be seen, therefore, that these two cases are of no application to the facts of the present case. Another case has been cited by the learned counsel for the appellant. It is the case of Gajanand Rajgoria v. Union of India, (S) AIR 1955 Pat 182. It was observed in that case that under Article 31 of the Limitation Act, the period of limitation is one year from the date when the goods ought to have been delivered and the question “when the goods ought to be delivered” is essentially a question of fact and when a particular date is specified for delivery, it must be determined as a matter of what is reasonable having regard to the circumstances of the contract and the conduct of the parties.

10. Das, J. (as he then was) while dealing with Section 19 Explanation 1 of the Limitation Act observed that Explanation 1 makes it quite clear that there must first be an acknowledgment of liability, even though of a conditional nature and if there was an acknowledgment of liability, it was sufficient even if it was accompanied by refusal to pay. The learned Judge further observed that where there was no acknowledgment of liability but on the contrary the letter stated in the clearest of terms that the railway administration did not accept any liability for the loss or shortage, the latter did not amount to an acknowledgment of liability within the meaning of Section 19 of the Limitation Act. This latter observation was merely an interpretation of the meaning of Section 19 of the Limitation Act and nothing more.

11. In the present case no argument has been made on Section 19 of the Limitation Act and, therefore, this decision will be of no help to the appellant in the case before me. It was, however, sought to be argued that because there was no acknowledgment of liability on the part of the Railway administration, the period of Limitation would run from the date of short delivery and not from the date when the claim of the plaintiff was rejected. In my opinion, this argument is of no application on the basis of the interpretation of Section 19 of the Limitation Act. Coming, however, to a reference of a decision of this Court, it was observed by Das, J. (as he then was) in Gajanand Rajgoria's case, (S) AIR 1955 Pat 182, as follows:

“In B. and N.W Ry. Co. Ltd. v. Kameshwar Singh, AIR 1933 Pat 45, a consignment of 3229 bundles of round steel rods and 4 wooden frames were despatched. The bundles of round steel rods were delivered piecemeal on three separate dates. The wooden frames were not delivered at all. The claimant wrote to the railway administration and the latter replied that the matter was receiving their attention. In these circumstances, it was held that the date when the goods ought to be delivered was not the date when a part of the consignment was delivered.”

In my opinion, if I would say with great respect. Das, J. (as he then was) with whom Imam, C.J (as he then was) agreed, has failed to refer to another aspect of the matter which that decision dealt with. Apart from this, his Lordship Mr. Justice Das has not said anything more about the Patna case, namely, the case of B. and N.W Ry. Co. Ltd. v. Kameshwar Singh, AIR 1933 Pat 45. In this case, Courtney-Terrell C.J who delivered the leading judgment, observed as follows:

“Reference may be had to the contract foe carriage for the purpose of determining the date when the goods ought to have been delivered. It no particular date is specified it must be determined as a matter of what is reasonable having regard to the circumstances of the contract and this criterion must be applied as much in favour of the plaintiff as in favour of the defendant. Now the contract referred not only to the delivery of iron but also to the delivery of the four wooden frames. It was a single contract in respect of a single consignment and the plaintiff might reasonably take the point of view that until the entire contract purported to have been fulfilled, he was not in a position to complain of non-delivery of a part of the goods subject to the contract. As I have said, the wooden frames were delivered by road van on the 5th October and the suit was begun on the 4th October, in the following year and is, therefore in time.”

It is the following portion of the observation of Courtney-Terrell, C.J, which in my opinion, Mr. Justice Das failed to consider in the Gajanand Rajgoria's case. (S) AIR 1955 Pat 182. There is another aspect of the matter. In B. and N.W Ry. Co's, case, ILR 12 Pat 67 : (AIR 1933 Pat 45), Courtney-Terrell, C.J observed further as follows:

“There is another aspect of the matter which is more conclusive against the defendant's contention. The plaintiff on the 23rd October, wrote to the defendants of the loss. He was justified in waiting to bring his suit until the defendants had made it clear that they had no intention of delivering the goods. Had the position been reverse, the defendants would not have hesitated to contend that a suit was premature which did not give them a reasonable opportunity of fulfilling the terms of the contract. The defendants by a deliberate process of ignoring the plaintiff's repeated requests for attention to this 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 can dour and their defence to this suit even in its most technical aspects has no merit. I would, therefore, dismiss the appeal with costs.”

Mr. Justice Das did not refer to this latter passage in Gajanand Rajgoria's case (S) AIR 1955 Pat 182. There is also another ground for not accepting that decision so far as the present case is concerned. In that case, the plaintiffs wrote to the Chief Commercial Manager, East Indian Railway in Calcutta and received a letter dated the 8th June, 1950. In this reply the Chief Commercial Manager stated that as there was no proof of misconduct on the part of the railway administration or its servants, he was unable to accept liability for the shortage and he further expressed inability to entertain any claim to compensation. It will be seen, therefore, that in that case to a claim a reply was given and nothing more. It cannot be said that any attempt was made by the Railway in that case to give hope to the plaintiffs that their claim would be entertained and finally refused to entertain the same. For these reasons, I am satisfied that the case, (S) AIR 1955 Pat 182 has no application to the facts of the present case whereas the case, ILR 12 Pat 67 : (AIR 1933 Pat 45), for the reasons stated above, has.

12. Apart from this, Mr. Justice Das was a party to a decision in Union of India v. Banshidhar Modi AIR 1954 Pat 548. The date of this decision is the 29th July, 1954 whereas the date of the decision of the case, (S) AIR 1955 Pat 182 referred to above is the 16th March, 1954, though the former was incorporated in the 1954 volume of the All India Reporter. Mr. Justice Das, in the former decision, referred to the case of AIR 1933 Pat 45 : ILR 12 Pat 67 which I have referred above. He has observed as follows:

“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 it its most technical aspects has no merit.’

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.”

If Mr. Justice Das was not prepared to accept his own ruling in a subsequent case, there, is no reason why I should follow the decision in Gajanand Rajgoria's case, (S) AIR 1955 Pat 182 especially when, for the reasons stated above, I find that the principle laid down in that case is not applicable to the facts of the present case.

13. Learned Counsel for the respondent drew my attention to a decision of the Nagpur High Court in Dominion of India v. S.G Ahmad, AIR 1954 Nag 115, where a number of decisions of different High Courts were cited and the trend of those decisions in short, is that if in the course of correspondence the plaintiff is led to believe that there is some hope of his claim being considered, then the period of limitation would run from the date when the Railway Company refuses to acknowledge the claim. In the Nagpur, case, Sen and Deo, JJ. observed as follows:

“In our opinion, if the railway authorities by their letters assure the plaintiff that an enquiry was being made regarding the non-delivery of the goods and subsequently say that the efforts have proved abortive, time must be computed from the date of the communication of the refusal or declaration of inability to deliver the goods. We respectfully agree to the reasoning adopted in the decisions to which reference has been made in paragraphs 7, 8 and 9,”

14. Mr. Bose, who was appearing for the defendant further submitted that when the claim is made for money and not for goods, then the period of limitation would run from the date of non-delivery and not from the date of refusal to supply the goods. I do not however, see any distinction between a claim for money and a claim for goods. A claim is a claim. The fundamental fact is that the plaintiff was led to believe that its claim would be entertained and as such he had hopes that its claim might be accepted in whole or in part by the Railway and so long the plaintiff was under that impression, he would not, naturally, bring a suit. Therefore, whether the claim made was for goods or for money. I do not see any logical reason for holding that the period of limitation would differ accordingly. Apart from this, we do not actually know whether the claim made by the plaintiff was for goods or for money or for both. A letter making claim was sent by the plaintiff to the defendant but the defendant did not care to bring it on the record.

15. There is however, a letter of the plaintiff dated 30-4-1951, which is Exhibit 3(b) on the record, in which the plaintiff does say that a claim for a certain sum of money including all dues on account of the above consignment still remains unsettled. It is argued that obviously the claim was for money. I do not think it is necessarily, so, for it is quite possible that plaintiff might have made a claim for both money and goods, or in the alternative, for money if goods were not available. If the defendant wants to rely upon the question as to whether the claim was for goods or not, the simple answer is that it is for the defendant to produce the claim letter which would have stated exactly what was the claim for. If this letter is held back by the defendant, then an adverse inference must be drawn against the defendant.

16. On the materials already on the record however, it is impossible to say whether the claim was for Roods or for money.

17. For the reasons stated above, I am, therefore, satisfied that the appellate court was justified in holding that the suit was not barred by limitation as the period of limitation would commence from the 9th July 1951, when the plaintiffs claim was rejected by the Railway.

18. The result, therefore, is that the appeal is dismissed with costs.

KB/V.R.B

19. Appeal dismissed.