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Attorney(S)
  • K.L. Gosain and K.S. Thapar
  • N.L. Salooja (for No.1) and S.L. Puri and Rantair Sawhney (for No.2)
Judges
  • Falshaw
  • Kapur, JJ.
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Attorney(S)
  • K.L. Gosain and K.S. Thapar
  • N.L. Salooja (for No.1) and S.L. Puri and Rantair Sawhney (for No.2)
Judges
  • Falshaw
  • Kapur, JJ.
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Smart Summary

Structured Summary of the Opinion (Kapur, J.)

Factual and Procedural Background

These proceedings comprise four appeals brought by the plaintiff against appellate decrees of District Judge T.C. Sethi, which had confirmed trial court decrees dismissing suits for recovery of money as compensation for non-delivery of goods. Eleven suits in all had originally been instituted by the plaintiff firm against the Railway for non-delivery of goods consigned from Karachi to Khasa on various dates from March 1947 to July 1947. The plaintiffs pursued second appeals in four of those suits (suit Nos. 365, 366, 372 and 389 of 1949), relating to consignments despatched on 30th or 31st July 1947. The consignor and consignee named on the Railway Receipts was the Punjab National Bank Limited and the Railway Receipts were endorsed in favour of the plaintiffs. A locus standi question had been raised in the courts below but was not agitated before the present Court.

There are two sets of defendants: (1) the Railway, which pleaded a bar of limitation (time); and (2) an Insurance Company (defendant No. 2) with whom the goods were insured, which pleaded non-liability under the policy. The courts below gave effect to the Railway's limitation defence and dismissed the suits; the judgments below also addressed the insurance company's pleaded defences, including alleged breaches of policy warranties.

Legal Issues Presented

  1. Whether correspondence between the plaintiffs and the Railway (including replies that enquiries were being made) affects the terminus a quo for limitation under Article 31 of the Indian Limitation Act — i.e., whether time runs from the date the goods "ought to be delivered" or from a later date such as a definitive refusal or the Railway's correspondence.
  2. Whether the plaintiffs' suits are barred by limitation under Article 31 of the Indian Limitation Act.
  3. Whether there was any written acknowledgment by a person authorised on behalf of the Railway which would toll or extend limitation under section 19 of the Indian Limitation Act.
  4. As regards defendant No. 2 (the Insurance Company): whether the insurer was liable under the open insurance policy in respect of the consignments, in the light of the written statement pleading (a) failure to produce proof of non-delivery and insurance certificates, (b) a warranty requiring claims within six months of issue of the Railway Receipt, (c) alleged requirement to send particulars to the insurer's Lahore office within 48 hours and obtain declaration certificates, and (d) other pleaded conditions (e.g., survey, transport in open wagons).
  5. Whether the trial Court and the appellate court correctly framed and decided issues of fact and law raised by the parties (particularly whether the insurer's defence based on absence of declaration certificates had been pleaded and put in issue).

Arguments of the Parties

Appellant (Plaintiff) — Principal Contentions (as recorded in the opinion)

  • The plaintiffs relied on the correspondence with the Railway (including replies that enquiries were being made) to contend that they could not institute suits earlier and that the limitation period should be calculated having regard to that correspondence.
  • Counsel for the appellants relied on several authorities that, in their submission, supported a later terminus a quo (including decisions where limitation was held not to run while railway correspondence was ongoing or where time was said to run from a refusal or from the last relevant correspondence).
  • It was submitted that the suits were within time and, additionally, that a written acknowledgment by the Railway might operate under section 19 of the Indian Limitation Act (an argument which the Court considered and rejected for want of proof of any such written acknowledgment).

Defendant No. 1 (Railway) — Principal Contentions

  • The Railway pleaded that the suits were barred by time under Article 31 of the Indian Limitation Act; the courts below accepted this contention.
  • The Railway's evidence suggested ordinary transit time from Karachi to Khasa was about ten to twelve days (a witness stated normally 10–12 days), and a sample consignment dated 14th July reached Khasa on 3rd August (20 days).

Defendant No. 2 (Insurance Company) — Principal Contentions

  • The Insurance Company admitted that the goods were insured under an open policy but denied liability under the terms of the policy, alleging that the plaintiffs had failed to produce satisfactory proof of non-delivery, failed to produce the certificates of insurance as required, and had not complied with policy warranties.
  • Specifically, the insurer pleaded a warranty that no liability would attach unless a claim was made within six months of the date of issue of the Railway Receipt; it also pleaded that particulars of consignments had to be sent to the Lahore office within 48 hours and declaration certificates obtained, and that notice and survey requirements applied.
  • The insurer also pleaded exemption from liability on the ground that the goods were transported in open wagons (a contention not pressed at later stages).

Table of Precedents Cited

Precedent Rule or Principle Cited For (as stated in the opinion) Application by the Court in this Opinion
Governor General in Council v. Kasiram Maruari, A.I.R. 1949 Pat. 268 Held that "when the goods ought to be delivered" is a question of fact; correspondence may show a later terminus a quo (court in that case treated time as running from defendant's refusal to deliver). The Court considered this authority but criticised the Division Bench for effectively taking the terminus a quo to be refusal to deliver; the present Court did not accept that approach as a general rule.
Mutsaddi Lal v. Governor General in Council, I.L.R. 1953 2 All. 954 (Full Bench, Allahabad) Time should be calculated with regard to events affecting transport and conduct of parties; last letter stating "matter receiving consideration" was treated as an operative date; suit within one year of that letter held in time. The Court noted the Full Bench judgment but observed that no definite date was laid down there and that the judges appeared to treat the limitation as starting from a refusal or last correspondence; the present Court declined to follow that approach generally.
Jugal Kishore v. The Great Indian Peninsula Railway, I.L.R. 45 All. 43 Where there was no fixed time for delivery and correspondence showed enquiries and no refusal, a suit instituted more than a year after booking was held not to be barred. The Court cited this authority as one of the cases taking correspondence to be relevant, but the present Court was not persuaded that correspondence should generally enlarge the period of limitation.
The Madras and Southern Maharatta Railway Co. v. Bhimappa, 17 I.C. 419 Authority relied upon in earlier decisions regarding the date goods ought to be delivered. Referred to by earlier authorities; the present Court discussed it among other precedents but ultimately took a different view on the relevance of correspondence.
Great Indian Peninsula Railway Co. v. Ganpat Rai, I.L.R. 33 All. 544 Where normal delivery period was a fortnight or three weeks, the suit was held barred by time under Article 31. The Court accepted that where normal transit times are short, limitation runs from the time goods ought to have been delivered and cited this decision to illustrate that principle.
Dominion of India v. Khurana Bros., A.I.R. 1951 Simla 254 Time does not begin to run if the consignee is vigilant and makes frequent enquiries and railway does not give a definite reply; time begins from a definite refusal. Noted by the Court as a decision taking correspondence and enquiries into account; the present Court referenced it but expressed disagreement with treating refusal or correspondence as generally controlling the terminus a quo.
Seetharama Sastri v. Hyderabad State, A.I.R. 1950 Mad. 30 Referenced as part of authorities on running of limitation where correspondence occurs. Noted among cases that consider correspondence relevant; the present Court mentioned it but did not adopt its approach as a rule.
Palanichami Nadar v. Governor-General in Council, A.I.R. 1946 Mad. 133 Where part goods were received earlier and for the rest the railway later declared articles not traceable, time was held to run after definite refusal or declaration of inability to deliver. The present Court stated it was unable to follow this judgment for reasons similar to its rejection of views that correspondence or refusal should alter the basic terminus a quo.
Balli Mal v. Dominion of India, A.I.R. 1954 Punjab 44 Held that "ought to be delivered" cannot mean the date when the railway finally refuses to deliver the goods. The Court referred to this decision with respectful approval and used it in support of the proposition that correspondence or final refusal does not control Article 31's terminus a quo.
Gopi Ram's case, A.I.R. 1927 Pat. 335 Authority referenced approvingly in relation to when time begins to run under Article 31. Referred to with approval by the Court as supportive of the view that "ought to be delivered" is to be determined by normal transit time, not by later refusal or correspondence.
Union of India v. Amar Singh, R.F.A. No. 76 of 1952 (decided 17 Aug 1954) Held that period of one year should be calculated from expiry of reasonable time having regard to circumstances and conduct of parties; interpretation of "reasonable" was central. The Court observed that if that decision was taken to mean correspondence affects limitation it could not agree; if decided on facts it would be inapplicable to present facts.
Bhagat Ram v. Governor-General in Council, C.R. No. 216 of 1948 Interpreted "when the goods ought to be delivered" as a reasonable period after date of booking. Noted by the Court as an interpretation consistent with calculating a normal or reasonable transit period rather than starting limitation from correspondence.
The Secretary of State v. The Dunlop Rubber Co. Ltd., I.L.R. 6 Lah. 301 Held that when recovery of the plaintiffs' goods becomes hopeless was immaterial under Article 31; time begins to run from the date on which the goods ought to be delivered. The Court stated a preference to follow the Lahore High Court's view in this case on the point of terminus a quo.
Haryana Cotton Mills Co. Ltd. v. B.B. and C.I. Ry. Co. Bombay, A.I.R. 1927 Lah. 471 Held cause of action in conversion arises when railway refuses after reasonable time to deliver goods; judgment dealt largely with section 77 of the Indian Railways Act. The Court noted that Article 31 did not appear to have been directly raised in that judgment and did not rely on it for the present point.
Radha Shyam Basak v. The Secretary of State for India, I.L.R. 44 Cal. 16 Decided on a written contract (Article 115); obiter that if Article 31 applied it would be for the company to show when goods ought to have been delivered. The Court treated that remark as obiter and did not adopt it as controlling; it recorded disagreement with certain obiter views.
Raigarh Jute Mills Ltd. v. Commissioners for the Port of Calcutta, A.I.R. 1947 Cal. 98 Held that even where part of the goods arrived on a particular date that could not necessarily be the date covered by "ought to be delivered". The present Court expressed inability to agree with Gentle, J.'s formulation as stated in that case.
Salem Dayal Bagh Stores Ltd. v. The Governor-General in Council, A.I.R. 1947 Mad. 362 Dealt principally with section 77 of the Railways Act (inapplicable to present facts). The Court regarded that judgment as inapplicable to the present case on its facts.

Court's Reasoning and Analysis

The Court's legal analysis proceeded in distinct steps and remained anchored to the language of Article 31 of the Indian Limitation Act and the statutory history:

  1. Interpretation of Article 31: The Court emphasised the statutory words "Against a carrier for compensation for non-delivery of, or delay in delivering, goods. One year. When the goods ought to be delivered." It reviewed the 1899 amendment (section 3 of Act X of 1899) which inserted the words "non-delivery of, or", thereby placing suits for non-delivery and delay on the same footing for limitation purposes.
  2. Meaning of "when the goods ought to be delivered": The Court concluded that these words denote the normal period which a consignment would take to travel from one station to another — i.e., the ordinary transit or reasonable period for delivery — and should not be made dependent on correspondence or the carrier's promises to enquire. The Court expressly rejected the notion that repeated enquiries or the carrier's replies amount to a general rule that the terminus a quo is postponed until a definitive refusal or a conclusive reply.
  3. Consideration of authorities: The Court surveyed many decisions that had treated correspondence or the carrier's enquiries as relevant to limitation. While recognising those authorities, the Court repeatedly expressed disagreement with a rule that correspondence enlarges the limitation period. The Court stated it preferred the view of the Lahore High Court in The Dunlop Rubber Company and approved other authorities (e.g., Balli Mal, Gopi Ram) supporting the position that time runs from when the goods ought to have been delivered in the normal course.
  4. Application to facts: Having accepted that ordinary transit time sets the terminus a quo, the Court observed that the Railway's pleaded limitation defence was correctly upheld by the courts below. No written acknowledgement under section 19 of the Limitation Act was proved to operate as an extension, and therefore the suits were held to be barred by time in respect of the Railway.
  5. On the insurer's defence: The Court analysed defendant No. 2's written statement and the issues framed. The insurer admitted the goods were insured but pleaded several reasons for non-liability (failure to produce proof, warranty for claims within six months, requirement to send particulars within 48 hours and obtain declaration certificates, survey requirement, transport in open wagons). The District Judge had relied on the supposed failure to obtain declaration certificates (48-hour requirement) as a basis for dismissing the plaintiffs' claim against the insurer.
  6. Pleading and proof analysis: The appellate Court found that the particular plea that declaration certificates were not obtained within 48 hours had not been specifically pleaded nor put in issue; the insurer's written statement, as read, admitted coverage but alleged failure to produce certificates when called for. The insurer's witness did not say definitively that particulars had not been sent within 48 hours. The Court concluded that the District Judge erred in dismissing the suit against the insurer on a ground that was not properly pleaded and tried. The Court further observed that the insurer's pleadings were contradictory — admitting the insurance yet asserting non-liability on the basis of unpleaded certificate defects — and that allowing such contradictory defences without specific issues would be unfair to the plaintiff.
  7. Relief on the insurance point: For these reasons, the Court held the District Judge was in error in respect of defendant No. 2 and allowed the appeals against the insurer, decreeing the plaintiffs' suit against that defendant with costs.

Holding and Implications

Holding:

  • With respect to the Railway (defendant No. 1): The Court held that the suits were barred by limitation under Article 31 of the Indian Limitation Act and therefore dismissed the plaintiffs' appeals against the Railway. The Court found no written acknowledgment under section 19 that would extend limitation. The Court ordered the parties to bear their own costs throughout in relation to this aspect (DISMISSED as to the Railway).
  • With respect to the Insurance Company (defendant No. 2): The Court held that the District Judge erred in dismissing the plaintiffs' claim on the basis that declaration certificates had not been obtained within 48 hours where that defence had not been specifically pleaded or put in issue. The Court allowed the appeals against defendant No. 2 and decreed the plaintiffs' suit against the insurer with costs throughout (APPEAL ALLOWED as to the Insurance Company).

Implications (direct consequences stated in the opinion):

  • The plaintiffs' appeals against the Railway fail because the Court applied Article 31 to mean limitation runs from the normal period goods ought to be delivered and correspondence of the kind shown did not extend that period.
  • The plaintiffs succeed against the Insurance Company because the insurer's pleaded and proved case did not support the specific defence on which the District Judge relied; the insurer had admitted coverage but advanced inconsistent/contradictory defences which were not properly framed or tried.
  • The opinion emphasises that correspondence by a claimant with the carrier, or the carrier's assurances that enquiries are being made, do not as a general rule enlarge the period of limitation under Article 31. The Court stated its preference for authorities holding that time runs from the date goods ought to have been delivered in the normal course, and rejected a general rule that limitation should be postponed until a definite refusal or conclusive reply.
  • If no broader precedent or new statutory interpretation beyond what is contained in the opinion is to be imputed, the immediate practical effect is the dismissal of the plaintiffs' claims against the Railway as time-barred and the grant of relief against the insurer on the grounds stated; the Court did not purport to create any further statutory amendment.

Other procedural notes recorded by the Court: Falshaw, J. agreed with the opinion. The final operative order recorded in the opinion is "Appeal allowed." The costs directions are as described above.

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    Messrs Rajmal Pahar Chand v. The Dominion Of India And Another

    Kapur, J.:— These are four appeals brought by the plaintiff against appellate decrees of District Judge T.C Sethi confirming the decrees of the trial Court dismissing the various suits for recovery of money on account of compensation for non-delivery of goods.

    2. Eleven suits were brought by the plaintiff firm against the Railway claiming various sums of money as compensation for non delivery of goods sent from Karachi to Khasa on various dates from the months of March 1947 to July 1947. All the suits were dismissed, but the plaintiffs have only brought second appeals in four suits which are suit No. 365 of 1949, in which the goods were despatched from Karachi on the 30th of July 1947, suit No. 366 of 1949 and suit No. 389 of 1949 in both of which the goods were despatched on the 31st of July 1947, and suit No. 372 of 1949 in which the goods were sent on the 30th of July 1947. The goods were sent by various Railway Receipts, the consignor and consignee was the Punjab National Bank Limited, and the Railway Receipts were endorsed in favour of the plaintiffs. In the Courts below a question as to the locus standi of the plaintiffs was raised but that has not been agitated before us. There are two sets of defendants (1) the Railway and (2) the Insurance Company who are defendant No. 2 with whom the goods were insured. The Railway pleaded bar of time and that has been given effect to by the Courts below. Defendant No. 2, the Insurance Company, pleaded that they were not liable on the policy and I shall deal with their written statement a little later.

    3. I shall first take up the case of the Railway. There is proof on the record that goods which were sent on the 14th of July from Karachi reached Khasa on the 3rd August, 1947. Thus it took twenty days for the goods to reach. A witness for the Railway, D.W 1 Daya Ram, has stated that ordinarily it takes the goods to reach Khasa about ten or twelve rays and that goods should have been received in that period. There is no dispute between the parties that the Article applicable is 31 of the Indian Limitation Act which reads—

    “Against a carrier for compensation for non-delivery of, or delay in delivering, goods. One year. When the goods ought to be delivered.”

    4. The only question which arises on the submission made is whether the.correspondence which the plaintiffs had with the Railway is a factor to be taken into consideration in determining the terminus a quo.

    5. Notices were given under section 80 of the Civil Procedure Code by the plaintiffs to the Railway Administration. The plaintiffs contended that they could not institute the suits earlier because the Railway had not refused their claim but had written to them that the matter was receiving their consideration. On the 15th January, 1948 vide Exhibit P. 13, the Railway wrote to the plaintiffs in reply to their letter of the 13th December, 1947, Exhibit D.1, saying that enquiries were being made in regard to the complaint made by the plaintiffs and that they would be informed as soon as the enquiry was complete. Even when the notice dated the 30th of April, 1948 under section 80 of the Civil Procedure Code was received, the Railway Administration replied—

    “The matter is receiving attention and you would be addressed further due course.”

    6. This is Exhibit P. 12.

    7. In their letter of the 13th December, 1917, Exhibit D.1, the plaintiffs had complained that the goods had not reached them up to that date and tint their impression was that the goods had either been lost or stolen, and they requested the Administration to make enquiries and inform the plaintiffs of the result and if no definite intimation was received by the firm they would hold the Railway responsible for the cost of the goods.

    8. Merely because the Railway writes that they are making enquiries as to what had happened to the goods does not make any difference to the meaning of the words “ought to be delivered”. Under the Act of 1877 the period of limitation in Article 31 was two years and it was reduced to one year and the words “non-delivery of, or” which were not in Article 31 as it stood were inserted by section 3 of Act X of 1899. Therefore the conflict which has arisen under the previous Act as to whether non-delivery or short delivery was within Article 30 or not came to an end, and it is now clear that the present Article applies to all suits for compensation for non-delivery irrespective of the question whether the suit is laid in contract or tort, and also that according to the Legislature whenever a suit is brought for compensation against a carrier for non-delivery or for delay the period of limitation of one year should be applicable.

    9. Counsel for the appellant has relied on several cases which seem to lay down a different terminus a quo in suits under Article 31. He firstly relied on a Division Bench judgment of the Patna High Court, Governor General in Council v. Kasiram Maruari . A.I.R 1949 Pat. 268., where it was held that “when the goods ought to be delivered” is essentially a question of fact and if no 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, but in that case the correspondence between the parties showed that the consignor had, received a reply from the railway authorities that the matter was being investigated, and the plaintiff had filed his suit for damages for non-delivery within one year from the Railway's refusal to deliver the consignment, and this was held to be within time. The goods were consigned on the 11th August, 1942, and the goods never reached their destination, and it was on the 1st of February, 1947, after correspondence between the Railway and the plaintiffs that the Railway Administration informed the plaintiff that the consignment had been destroyed. A suit was brought within one year from “the defendant's refusal to deliver the consignment”. This was held to be within time, and I would say with very great respect that the learned Judges took the terminus a quo to be the refusal to deliver the consignment, whereas in the Article the terminus a quo is “when the goods ought to be delivered” and not “ought to have been delivered” as the learned Judges have put it, and still less refusal to deliver.

    10. Counsel next relied on a Full Bench judgment of the Allahabad High Court Mutsaddi Lal v. Governor General in Council . I.L.R 1953 2 All. 954., where it was held that the time of one year provided in Article 31 cannot be said to start when the goods should have reached the destination in the normal course but events which effect the means of transport or the way in which the consignment itself has been dealt with after its being handed over to the carrier for transmitting have to be considered and where there has-been no definite refusal by the railway authorities to deliver the consignment the suit brought within one year of such a letter of the railway authorities is well within time. In this case the goods were consigned on the 30th of January, 1943, at Agra for carriage to the railway station at Chola. Some correspondence ensued between the Railway Administration and the claimant and the last letter of the Railway was the 7th of February, 1944 saying that the matter was receiving their best consideration, and at page 660 Bind Basni Prasad, J. delivering the judgment of the Full Bench said—

    “It cannot be said that if in the normal course the consignment was to reach Chola on or about the 7th February, 1943, than that was the date on which it ‘ought to be delivered’ specially when we find from the correspondence mentioned above that the railway administration did not refuse delivery to the plaintiff at any point of time, but always kept the plaintiff on hopes”.

    11. Again at page 663 the learned Judge said

    “There has been no definite refusal so far by the railway administration to deliver the consignment. The suit was brought well within one year from this last letter. It was, therefore, within time”.

    12. In this case also no definite date from which the time is to run was laid down by the learned Judges and it appears to me that they have taken the limitation to start from the date of refusal by the Railway. In this case reliance was placed on a Division Bench judgment of that Court, Jugal Kishore v. The Great Indian Peninsula Railway . I.L.R 45 All. 43., where on the 28th of August 1918 certain goods were made over to the Great Indian Peninsula Railway at Bombay for being sent to Chunar. The goods did not reach Chunar and the plaintiff started making enquiries from the G.I.P Railway as well as from the East Indian Railway, and the Railway kept on saying that the matter was being enquired into, and although the suit was brought more than a year, it was held that the suit was not barred by limitation under Article 31 of the Indian Limitation Act.

    13. The learned Judges observed—

    “Article 31 fixes one year from the date when the goods ought to have been delivered and applies to suits to recover compensation for nondelivery. It is to be noted that in the present case no time was fixed for the delivery of goods, and the correspondence between the parties shows that the matter was being inquired into and that there was no refusal to deliver, up to 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”.

    14. And they relied on a judgment of the Madras Court in The Madras and Southern Maharatta Railway Co. v. Bhimappa . 17 I.C 419. and distinguished the two cases Mulsaddi Lal v. Bombay Baroda and Central India Railway Co. . I.L.R 42 All. 390. sad Great Indian Peninsula Railway Company v. Ganpat Rai . I.L.R 33 All. 544.. In the latter case in the normal course the period within which the goods ought to have been delivered was a fortnight or three weeks at the outset, and it was held that the suit was barred by time under Article 31.

    15. In this Court Khosla, J. in Dominion of India v. Khurana Bros. . A.I.R 1951 Simla 254., held that the time does not begin to run if the consignee is vigilant and makes frequent enquiries from the Railway who do not give him a definite reply in regard to the consignment on the ground that he may still assume that the goods will be received and the time begins to run from a definite refusal. The learned Judge referred to the cases which I mentioned above and to Seetharama Sastri v. Hyderabad State . A.I.R 1950 Mad. 30., and Palanichmai Nadar v. Governor-General in Council . A.I.R 1946 Mad. 133..

    16. Sitting alone in R.S.A No. 256 of 1951 I held that correspondence entered into between the Railway and the claimant is not relevant to determine the terminus a quo nor is it a ground which would govern the words “ought to be delivered”, and that merely because the Railway kept on saying that they are making enquiries does not enlarge the period of limitation under Article 31, In an earlier case Balli Mal v. Dominion of India . A.I.R 1954 Punjab 44., I held that the words “ought to be delivered” cannot mean the date when the railway finally refuses to deliver the goods. I there referred with respectful approval to the judgment of the Patna High Court in Gopi Ram's case . A.I.R 1927 Pat. 335..

    17. Counsel for the appellant relied on another judgment of this Court in Union of India v. Amar Singh . R.F.A No. 76 of 1952., decided by a Division of this Court on 17th August, 1954. The learned Judges in that case were of the opinion that there was no contract, that the period of one year should be calculated from the expiry of reasonable time within which the goods ought to have been delivered having regard to the circumstances of the case and conduct of the parties, that no time was fixed for delivery and it could not be held on the facts that the goods ought to have been delivered at any time prior to the 7th of June 1948. If the opinion of the learned Judges was that correspondence which may follow the non-delivery of goods within a reasonable time between the claimant and the Railway Administration affects the period of limitation, I am, with very great respect, unable to agree, but if the case was decided on the facts then it would be inapplicable to the facts in the present case, and even in that case the learned Judges were of the opinion that it is the duty of the Railway Administration to deliver the goods within “a reasonable time”, but it was the interpretation of the word “reasonable” on which a differ-rent interpretation was put by the learned Judges.

    18. In another case decided by this Court by my learned brother Falshaw, J. in Bhagat Ram v. Governor-General in Council . C.R No. 216 of 1948., it was observed—

    “The words ‘when the goods ought to be delivered’ in Article 31 has however been interpreted in a number of decisions as meaning a reasonable period after the date of booking within which the goods might be expected to arrive at their destination.”

    19. A Division Bench of the Lahore High Court in The Secretary of State v. The Dunlop Rubber Co. Ltd. . I.L.R 6 Lah. 301., had occasion, to interpret the words “ought to be delivered” in Article 31. It was there held that the question as to when the recovery of plaintiffs goods becomes hopeless was immaterial under Article 31 and that time begins to run from the date on which the goods ought to be delivered. In another case of the Lahore High Court, Haryana Cotton Mills Company Ltd. v. B.B and C.I Ry. Co. Bombay . A.I.R 1927 Lah. 471., it was held that the cause of action in a suit for conversion arises when the Railway refuses after reasonable time to deliver the goods. The most part of the judgment deals with the effect of section 77 of the Indian Railways Act and it floes not appear that the question of Article 31 was raised before the learned Judges.

    20. Two cases of the Calcutta High Court were then referred to Radha Shyam Basak v. The Secretary of State for India . I.L.R 44 Cal. 16.. The case was decided on the ground that there was a breach of a written contract and therefore Article 115 was applicable, but it was observed, and in my opinion it is obiter, that if Article 31 applied, it would be for the company to show when the goods ought to have been delivered and it was hardly for the plaintiff to prove when the goods should have been delivered. The other Calcutta case is Raigarh Jute Mills Ltd. v. Commissioners for the Port of Calcutta . A.I.R 1947 Cal. 98., Gentle, J. there held that even where a part of the goods arrived on a particular date that could not be the date which is covered by the words “ought to be delivered”. With very great respect I am unable to agree with this opinion.

    21. Two cases of the Madras High Court were then referred to, Palanichami Nadar v. The Governor-General in Council, where part of the goods were received on an earlier date and in regard to the rest the Railway Company after making enquiries finally informed the consignee that the articles were not traceable, and time was held to run from after the definite refusal or declaration of inability to deliver. This judgment also I am unable to follow for a similar reason as the judgment of Gentle, J. and in this matter I would prefer to follow the opinion of the Lahore High Court in The Dunlop Rubber Company's case, and in Gopi Ram's case. The other Madras judgment is by Happell, J. in Salem Dayal Bagh Stores Ltd. v. The Governor-General in Council . A.I.R 1947 Mad. 362., which only deals with section 77 of the Railways Act and is inapplicable to the facts of the present case.

    22. The amendment made in the year 1899 by section 3 of Act X introduced the words “non-delivery of, or”. Thus under Article 31 a suit for compensation for non-delivery of or delay in delivering the goods stands on the same footing. In the various cases which I have mentioned above and in which the period of time taken in correspondence between the Railway and the claimant have been taken to be relevant factors, the necessary result would be that the terminus a quo in the case of non-delivery will be different from that where delay is alleged, because in all those cases there was delay, and if in a suit on account of delay in delivering the goods the time begins to run when the goods ought to be delivered or would normally reach their destination, then necessarily the same would be the terminus a quo in the case of non-delivery of goods. Besides I find no warrant, and I say so with the greatest respect, for the proposition that a claimant by staring into correspondence with the defendant can enlarge the period of limitation. “Ought to be delivered” in my opinion would remain the same, i.e the normal period which a consignment would take to travel from one station to another, and should be irrespective of any promises of enquiry made by the Railway or actual enquiries by the Railway.

    23. It was then submitted by the appellant that the suit is within time because of acknowledgment on behalf of the Railway under section 19 of the Indian Limitation Act. No such plea was taken by the plaintiffs and I find no acknowledgment in writing by a person authorised on behalf of the Railway which would fall under section 19 of the Indian Limitation Act and I would therefore repel this contention.

    24. I am therefore of the opinion that these suits were rightly held to be barred by time and I would dismiss the appeal of the plaintiffs but leave the parties to bear their own costs throughout.

    25. It is necessary to refer in some detail to the written statement of defendant No. 2, the Insurance Company. In paragraph 6 of the plaint the plaintiffs alleged that the goods were insured with the defendant company “against all risks of loss, non-delivery and short delivery as per open insurance policy No. 47/11449. Necessary information was sent to defendant No. 2 and demands were made * * “.

    26. In reply to this paragraph the defendants said with reference to paragraph 6 of the plaint—

    “These defendants admit that the said goods were insured with these defendants under open policy No. 47/11449”.

    27. They denied their liability under the terms of the policy against all risks as alleged. They further stated that by their letters the defendants had again and again and upon the plaintiffs to produce satisfactory proof of non-delivery which had not been done, and therefore the defendants pleaded that they were not liable without proof of non-delivery of these goods, although they admitted that intimation was sent to them in respect of non-delivery, but intimation was not accompanied by necessary documents, and that the plaintiffs had failed to produce the certificates of insurance “as required by these defendants. These defendants deny that they are liable to make any payment or to idemnify the plaintiffs as alleged or at all”.

    28. In paragraph No. 7 of the written statement the defendants relied upon a warranty that no liability was to attach unless a claim was made within six months of the date of issue of the railway receipt and also that in the event of damage immediate notice of such damage should be given to and a survey report obtained and that as the plaintiffs had failed to ??? their claim and give notice as required by the terms of the warranty the defendants were not liable. In paragraph 8 exemption from liability was claimed on the ground that the goods were transported in open wagons. The rest of the pleadings were not necessary for the purposes of this appeal.

    29. Upon this the following issues were framed—

    9. Is the plaintiff not entitled to the contract of insurance entered into with defendant No. 2?

    10. Did the liability of defendant No. 2 lapse after the period of policy? If so, when did the lapse occur?

    11. Was the survey of goods necessary in this case?

    12. To what compensation is the plaintiff entitled and against whom?

    30. The trial Court held that the liability of the Insurance Company ceased as the plaintiff had failed to give notice to the Railway Administration within six months in accordance with the warranty as given in paragraph 7 of the written statement, and that “breach of different warranties of the policy has occurred on the part of the plaintiff and defendant No. 2 company is not liable under this policy for the price of these goods”.

    31. When the matter went to the District Judge it appears that a different contention was raised and different view taken. The following conditions of the policy seem to have been relied upon before him—

    “On Cotton Piece-goods and/or Yarn of every description to be forwarded by Rail from time to time, particulars of which to be sent to our Lahore Office within 48 hours of the issue of the Railway Receipt. Declaration Certificates will be issued as and when the particulars are declared. It is a condition of this insurance that until completion of the contract, the Assured is bound to declare here under each and every consignment without exception whether arrived or not. Underwriters being bound to accept same upto but not exceeding Rs. 1,00,000/- per any one sending”.

    32. And the District Judge found that it was necessary for the plaintiffs to send particulars of the consign merits to the Lahore office of the company within 48 hours and obtain declaration certificates, and as these certificates had not been proved to have been obtained, one of the essential conditions of the policy had not been complied with and therefore no liability arose as against the defendants. The learned Judge, however, did not accept the plea of the defendants in regard to the want of notice of six months on the ground, and in my opinion wrongly, that this matter was not pleaded.

    33. On the pleadings as I read them the defendant No. 2 admitted that the goods were covered by the policy. He raised certain objections to the attachment of any liability and they did not include the plea that the pontiffs had not sent the particulars of the consignment within 48 hours of the issue of the Railway Receipt and obtained declaration certificates on the other hand the pleadings seem to show that the certificates had been obtained but had not been produced by the plaintiffs as required by the defendants because I cannot interpret the words “the plaintiffs have failed to produce the certificates of insurance as required by these defendants” read with the previous words “that although the intimation was received by the defendants it was not accompanied by necessary documents” to mean what the learned District Judge has held it to mean. The plea of the defendants therefore was not that within 48 hours the certificates were not obtained or no declaration was made but that declaration certificates were not sent. I find no plea that within 48 hours particulars of the goods sent by rail were not sent to the Lahore Office of the company and it seems to be admitted by the defendants that intimation was given to them of the non-arrival of the consignment and therefore on this plea, i.e the want of sending of certificates of insurance, the suit of the plaintiffs could not be dismissed.

    34. It is then submitted that in accordance with the warranty pleaded in paragraph 7 of the written statement a claim should have been made within six months of the date of issue of the Railway Receipt, and it is sought to be interpreted that this should have been made to the Railway as well as to the Insurance Company. In the first place a claim was made to the Railway as to the loss of the goods in December 1947, and it cannot be said that no claim was made to the Railway, but even if it was not as I read this term it only means that the claim has to be made to the Insurance company and not to the Railway.

    35. The plea in regard to the goods not having been sent in closed wagons does not seem to have been pressed either in the Court of first instance or in the first appellate Court and was rightly not pressed before us The main reliance of the defendants was on the want of declaration certificates which as I have said was neither pleaded nor was any specific issue raised on the point nor is there any specific mention of this in the judgment of the trial Court.

    36. It is significant that certain warranties are specifically pleaded in paragraphs 7 and 8 and even the words of those warranties ate reproduced, but the question of declaration certificates was neither specifically pleaded nor were the words specifically put into the written statement, and the evidence of the defendants also seems to show that this was not a question which was present to the minds of the parties in the trial Court. For this defendant Balbir Sawhney C.D.W 1. Manager of the Insurance Company, was examined on commission. He has stated that in the case of insurance of a particular consignment under the policy the insured had to give declaration to the company giving the particulars of the consignment within 48 hours and a certificate of insurance obtained and in case of a claim the insurance certificate together with proof of loss was to be sent by the claimant and that in the present case the plaintiff only informed the company of the loss of the consignment but never sent “any proof of the loss and other particulars of the loss” and also that he did not send the original insurance certificate though called for. As I read the statement of this witness I do not find that he definitely stated that the particulars were not sent as required under the policy. All that he says is that these details were required because the company could only then make independent enquiry or appoint assessors to ascertain the truth or otherwise of the allegation made by the plaintiffs in regard to their loss. He also stated that this policy was cancelled but of this there is no proof. Thus from the pleadings as well as from the issues as also from the statement of the defendant's witness it cannot be said that it was the case of this defendant that declaration certificates as they have been termed by the District Judge were not obtained under the policy and therefore there was no contract of insurance in regard to these various consignments. In my opinion the learned District Judge was in error in dismissing the plaintiff's claim against this defendant No. 2.

    37. It was admitted that the consignments in question were covered by the policy of insurance. The defendant could not then say in the same breath that they were not covered by the policy of insurance. This is not a case of merely inconsistent pleadings but it seems to be a case of contradictory pleadings which may be termed both inconsistent and embarrassing defences which is not allowed under the Civil Procedure Code (see page 579 of ??? Code of Civil Procedure). If contradictory pleadings were to be allowed and what it comes to when a defendant pleads that the goods were insured with him but goods were not insured be cause of a certain reason, this would be covered by what Lindley L.J said In re Morgan19. The learned Lord Justice said—

    “I quite see that power may be very much abused. It may be abused to such an extent as to be embarrassing and unfair and oppressive to the other side”.

    38. And it appears to me for that reason that the issues were framed as they have been framed, and even if such a plea was open to defendant No. 2 it was his duty to get a specific issue raised and then the parties could have led evidence on that issue. I would therefore allow these appeals against defendant No. 2 and decree the plaintiff's suit with costs throughout.

    39. Falshaw, J.:— I agree.

    40. Appeal allowed.

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    Messrs Rajmal Pahar Chand v. The Dominion Of India And Another
    (Sep 27, 1954)