The Judgment of the Court was delivered by

Vithayathil, J.:— The defendant, the Southern Railway, is the appellant in this case. The suit is for damages. 100 bags of sugar purchased by the plaintiff were railed from Hathuva Railway Station to Quilon. The railway receipt, which was sent through the Alleppey Branch of the Imperial Bank, was endorsed in favour of the plaintiff by that Bank. The plaintiff took delivery of the consignment at Quilon on 23-10-1944. On taking delivery it was found that there was a shortage of 19 bags. The value of the 19 bags would come to Rs. 1116-4 As. On 8-2-1945 the plaintiff lodged a claim before the Head Office of the Railway Company at Trichinopoly in respect of the short delivery. On 15-2-1945 the Company sent a reply directing the plaintiff to send a copy of the railway receipt and other relevant documents. They were sent in due course. There were other claims of the plaintiff pending settlement with the Railway Company and the plaintiff sent a consolidated list of all the claims on 21-3-1946.

2. As this claim was not satisfied even after a reminder sent on 4-9-1946 the plaintiff sent a suit notice through his advocate on 5-5-1947. In the reply sent by the defendant on 10-5-1947 the plaintiff was asked to furnish further particulars relating to the claim. Accordingly the plaintiff sent on 19-7-1947 a letter containing the necessary particulars. No reply was, however, received to this letter. The plaintiff filed this suit in the Alleppey Munsiffs Court on 10th February 1946 for Rs. 1116-4-0 and interest at 6 per cent per annum from 8-2-1945, the date on which he lodged the claim in respect of the short delivery. The main contentions raised by the defendant were that the Alleppey Munsiff's Court had no jurisdiction to try the suit and that the suit was barred by limitation. According to the defendant the suit ought to have been instituted either at Hathuva where the contract was entered into or at Quilon where it was to be performed. The contention regarding limitation was that the suit was governed by Articles 23 and 24 of the Travancore Limitation Act co-responding to Articles 30 and 31 respectively of the Indian Limitation Act. Both these contentions were repelled by the court below. On the question of jurisdiction that court held that since the railway receipt relating to the consignment of the goods was endorsed in favour of the plaintiff by the Imperial Bank at Alleppey on payment there by the plaintiff of the price of the goods the cause of action arose in part at Alleppey and that the suit could therefore be instituted in the Alleppey Munsig's Court.

3. We are unable to agree with this view of the learned Munsiff. The endorsement of the railway receipt by the Imperial Bank in favour of the plaintiff or the payment of the price of the goods by the plaintiff to the Bank has nothing to do with the cause of action relating to the short delivery of goods by the defendant company. So far as the short delivery is concerned the cause of action arose either at Hathuva where the eon-i tract for delivery was entered into, or at Quilon where it was to be performed. We are, therefore, inclined to accept the contention of the appellant that the suit ought to have been filed either in the court having jurisdiction over the Hathuva Railway Station or in the Quilon Munsiff is Court.

4. But that does not mean that we should dismiss the suit. Section 21 of the CPC prohibits the appellate court from dismissing a suit on the ground that it was instituted in a wrong place unless there has been a consequent failure of justice. The section reads thus:

“No objection as to the place of suing shall be allowed by an appellate or revisional court unless such objection was taken in the court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement, and unless there has been a consequent failure of justice.”

5. It has been held in many cases that even though the objection as to the place of suing has been raised at the earliest opportunity and wrongly disallowed by the court the judgment will not be disturbed in appeal on that ground unless the trial in the wrong court has led to a failure of justice. (Vide — ‘Bhag Singh v. Labh Sing’, AIR 1917 Lah 12 (A) and —‘Gajendra v. Sunder Singh’, AIR 1934 All 549 (B)). The question whether the trial in the wrong court has led to a failure of justice will have to be decided on a consideration of the merits of the case. In — ‘Lachharam v. Virji, AIR 1921 All 66 (C), Walsh J. quoted with approval the following observation in — ‘Ratti Ram v. Kundan Lal’, AIR 1914 Lah 385 (D):

“The object of the Legislature in enacting this salutary principle of law is that when the court of first instance after giving an affirmative finding on jurisdiction takes proceedings on the merits of the case, the latter should not be rendered abortive and all the time and labour spent thereon should not be wasted simply by reason of the fact that the higher court comes to a contrary finding on the preliminary point of jurisdiction.”

6. We do not think that there has been a failure of justice in this case by reason of the fact that the suit was instituted in the Alleppey Munsiff is Court.

7. As regards the plea of limitation the court below held that it was Article 103 of the Travancore Limitation Act (Article 115. Indian Act) and Article 37 (Article 49, Indian Act) that applied to the case and not Article 23 (Article 30, Indian Act) or Article 24, (Article 31, Indian Act). Article 115 of the Indian Limitation Act prescribes a period of three years for a suit for compensation for the breach of any contract express or implied not in writing and registered and not specially provided for in the Limitation Act. Article 49 prescribes a period of three years for a suit for specific movable property or for compensation for wrongfully taking or injuring or wrongfully detaining the same. Article 30 reads thus:

Description of suit. Period of Limitation. Time from which period begins to run. Against a carrier for compensation for losing or injuring gauds. One year. When the loss or injury occurs.

8. The Article 31 reads:

Description of suit. Period of Limitation. Time from which period begins to run. Against a carrier for compensation for non-delivery of, or delay in delivering, goods. One year. When the goods ought to be delivered.

9. The view that it is Article 115 that applies to the case is supported by some early decisions of Indian High Courts, viz., — ‘The British India Steam Navigation Co. v. Haji Mohammad Essack & Co.’, 3 Mad 107 (E); — ‘Hassaji v. The East Indian Railway Co.’, 5 Mad 388 (F); — “Mohan Singh Chavan v. Henry Conder’, 7 Bombay 470 (G) and — ‘Danmull v. British India Steam Navigation Co. Ltd.’, 12 Cal 477 (H). But these cases were decided before Article 31 of the Indian Limitation Act was amended in 1899 by Act 10 of 1899. By the amendment, the words ‘non-delivery of or’ were inserted in the Article. It could be argued that Article 31 as it stood before the amendment would not apply to a suit against a carrier for compensation for non-delivery of goods. What was held in — ‘3 Mad 107 (E)’, was that Article 30 would not apply to a suit for compensation for value of goods short delivered and that it was Article 115 that would apply. Sir Charles Turner, C.J and Innes J. said:

“Looking to the terms of clause 30 and the place in which it is found in the schedule, we understand it to apply to suits for compensation for loss or damages to goods arising from maifeasanefe, misfeasance, or non-feasance independent of contract. There may, no doubt, be reasons for prescribing a period of Limitation for suits against carriers, but the principle has not apparently been adopted. On the other hand, a shorter period of Limitation has been in the earlier Limitation Acts provided for suits for tort than for suits for breach of contract. The present suit is clearly a suit for breaches of the contracts to deliver, and there being no special provision for compensation for the breach of such contract, the suit is governed by Clause 115.”

10. This case was followed in ‘5 Mad 388 (F)’. In ‘7 Bom 478 (G)’ also the claim was for compensation for non-delivery of goods. It was held in that case that so long as the defendant Railway company did not announce their inability to deliver the goods on account of having lost them and did not prove that the goods were lost, Article 30 would not apply to the case. ‘3 Mad 107 (E)’ and ‘7 Bom 478 (G)’ were followed in ‘12 Cal 477 (H)’ and it was held that Article 30 would not apply to a suit for compensation for non-delivery of goods and that it was Article 115 that would apply.

11. This question was considered by a Full Bench of the Madras High Court in — ‘Venkitasubba Rao v. The Asiatic Steam Navigation Co., Calcutta’, AIR 1916 Mad 314 (I). The question referred to the Full Bench was:

“whether Article 31, 49 or 115 is applicable to a claim by a consigner against a carrier for the recovery of goods consigned to him or in the alternative their value, and for interest upon the amount claimed as the value of the goods.”

12. The opinion of the Full Bench was expressed in the following words.

“As the Limitation Act of 1887 originally stood, there was a good deal of authority for saying that articles 30 and 31 which deal with suits against a carrier for compensation for losing or injuring goods and suits against a carrier for compensation for delay in delivering goods did not apply. We need only refer to the decision of Sir Charles Turner C.J, and another learned Judge in ‘3 Mad 107 (E)’ and the other authorities cited in ‘12 Cal 477 (H)’ and — ‘G.I.P Rly. Co. v. Raisett Chandmull’, 19 Bom 165 (J).

This view proceeded largely upon the position of these articles amongst a number of other articles dealing with suits for damages for torts, and in his judgment in — ‘G.I.P Rly. Co. v. Raisett Chandmuli (J)’, Mr. Justice Farran as he then was) expressed the opinion that this was a rather fallacious test and that in these rulings the Courts had not given effect to the intention of the legislature, but stated having regard to the current of decisions it was rather for the legislature to make its meaning more clear if it had been misinterpreted than for the court to run counter to the decisions of other High Courts. This was in the year 1884 and acting, as we cannot doubt, on this suggestion the legislature in 1899 amended article 31 by inserting the words “non-delivery of or” so as to make the article run “against a carrier for compensation for non-delivery of, or delay in delivering, goods”.

It seems to us that by this amendment the legislature clearly indicated its intention that article 31 should apply to a claim against a carrier for compensation for non-delivery of goods irrespective of the question whether the suit was laid in contract or in tort. Even so it may be, as pointed out by one of the learned Judges who have referred to the case, that article 31 only deals with claims for compensation, and that article 49 applies when in a proper case a claim is made against a carrier for the return of a specific moveable which, as already pointed out, is not this case. In so far however as article 49 applies to suits “for compensation for wrongfully taking or injuring or wrongfully detaining the same.” it is in any case inapplicable to the facts here, and even if it were applicable, its operation would be excluded by the provisions of the special article 31 as amended on the principle “Generalia specialibus non-derogant.”

Our answer to these questions is that the suit must be regarded as a suit for compensation and as such it comes under article 31.” (Vide AIR 1916 Mad 314 at p. 318 (I).

13. Even before the decision in ‘AIR 1916 Mad 314 (I)’ the Bombay High Court had held in — ‘Haji Adam Goolam Koosein v. Bombay and Persia S.N Co.’, 26 Bom 562 (K), and the Allahabad High Court in — ‘Great Indian Peninsula Rly. Co. v. Ganpat Rai’, 33 All 544 (L), that it is Article 31 of the Indian Limitation Act that would apply to suits against a carrier for compensation for nondelivery of goods. After the Full Bench decision in ‘AIR 1916 Mad 314 (I)’ the only reported case that has come to our notice in which it was held that Article 115 would apply to suits against a carrier for compensation for non-delivery of goods is — ‘Radha Shyain Basak v. Secy. of State’, AIR 1917 Cal 640 (M). That case way decided in 1916 while ‘AIR 1916 Mad 314 (I)’ was decided in 1915. The Madras case was not referred to in ‘AIR 1917 Cal 640 (M). Chatterji J. wrote the leading judgment cited with approval ‘7 Bom 478 (G)’ and ‘12 Cal 477 (H).

14. In that case the suit was brought by the consignor of the goods and not by the consignee. The learned Judge was of opinion that Article 31 would apply only to a suit brought by the person who is entitled to delivery of the goods namely, the consignee. The second reason given by the learned Judge was that it was for the Railway Company to show when the goods ought to have been delivered. Beachcroft J., the other learned Judge who took part in the decision., did not say that Article 31 would not apply to the case. This is what the said on the question of limitation;

“As regards the question of limitation, it is sufficient to say that I agree that Article 30 does not apply, and that if Article 31 does, there is no evidence when the goods ought to have been delivered.”

15. In the circumstances, we do not think that this decision can be regarded as an authority for the position that the Article of the Limitation Act that applies to suits against a carrier for compensation for non-delivery of goods is Article 115 and not Article 31. It can be said to be well settled now that it is Article 31 that applies to such suits. When there is a special Article in the Limitation Act, relating to suits against a earner for compensation for non-delivery of goods there is no justification for applying the general article relating to suits for compensation for breach of contract. For the same reason Article 49 also has to be held to be not applicable to such suits.

16. Except for the decision in — ‘AIR 1917 Cal 640 (M)’, referred to above the view taken by all the High Courts in India after the amendment of Article 31 in 1899 is that it is that Article that applies to suits against a carrier for compensation for non-delivery of, or delay in delivering goods. (Vide — ‘Palanichami v. Governor General-in-Council’, AIR 1946 Mad 133 (N); — ‘South Indian Railway Co. v. Narayana Iyer’. AIR 1924 Mad 567 (O); — ‘Jugal Kishore v. G.I.P Railway’, AIR 1923 All 22 (2)(P); — ‘Raigarh Jute Mills v. Commissioner for the Port of Calcutta’, AIR 1947 Cal 98 (Q); — ‘Jainaram v. Governor General of India’, AIR 1951 Cal 462 (R); ‘Rameswar Das v. East India Railway Co. Ltd.’, AIR 1923 Patna 298 (S); — ‘Gopiram Gaurishankar v. G.I.P Railway Co.’. AIR 1927 Pat 335 (T); — ‘Governor-General v. Kasiram’. AIR 1949 Pat 268 (U); — ‘Secretary of State v. Dunlop Rubber Co. Ltd.’, AIR 1925 Lah 478 (V); — ‘Dominion of India v. Khurana Bros.’. AIR 1951 Simla 254 (W); — ‘Governor-General-in-Council v. S.G Ahmad’. AIR 1952 Nag 77 (X)’ and — ‘Union of India v. A.V.S Syndicate’, AIR 1953 Assam 30 (Y).

17. So far as Article 30 is concerned it applies only to suits against a carrier for compensation for ??? or injuring goods. Losing of seeds referred to in the Article is losing by the carrier & not by the consignee. It was so held by Stewart and Sulaiman, JJ. in — ‘AIR 1923 All 22 (2)(P). The learned Judges said:

“Article 30 applies to suits for compensation for losing or injuring goods, and the period is one year from the date when the loss or injury occurs. It is obvious that the Article refers to losing or injuring goads by the carrier and not by the plaintiff, that is to say, time begins to run from the rime, when the carrier lost or injured the goods, and not from the time when the consignee may be said to have suffered loss. This was the view expressed by Rattigan J. in — ‘Fakir Chand v. Secretary of State’, 19 Ind Cas 477 (Punj)(Z), following an earlier case of the Punjab Chief Court. We agree with his 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, and 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.”

18. To the same effect are the decisions of the Calcutta High Court in — ‘AIR 1947 Cal 98 (Q); — ‘AIR 1951 Cal 462 (R) and — ‘East Indian Railway v. Gopulal Sharma’, AIR 1941 Cal 304 (Z1). In — ‘AIR 1951 Cal 462 (R)’, Chakravarthy J. quoted with approval the observation in — ‘AIR 1923 All 22 (2)(P), extracted above and said:

“It has been established by a series of decisions of the Highest authority that the loss contemplated in Column III of Article 30 is loss by the Railway and net loss caused to the consignor, that is to say, the relevant point of time is when the railway actually lost the goods and 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, viz., the Railway, the onus of proving that date lay on the defendant and if the defendant 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.”

19. The learned Judge also remarked that it would not be proper to draw upon facts stated by the defendant for the purpose of determining a question of limitation.

20. In — ‘AIR 1941 Cal 304 (Z1)’, Henderson J. observed that in the case of a suit governed by Article 30;

“there is ample authority for the proposition that time begins to run from the date when injury was actually caused and that the burden of proving when the injury was caused rests upon the carrier.”

21. The same view was taken by Benson, C.J and Sankaran Nair J. in — ‘M. & S.M Rly. Co. v. Bhimappa’, 23 Mad LJ 511 (Z2) and by Mack J. in — ‘Seetha Rama v. Hyderabad State’, AIR 1950 Mad 30 (Z3). In — ‘AIR 1927 Pat 335 (T)’, a Division Bench of the Patna High Court held that suits for compensation for non-delivery of goods would be governed by Article 31 and not by Article 30 of the limitation Act. In this suit where is no allegation in the plaint that the goods were lost by the Railway Company or that any injury was caused to the goods during transit, there is also no contention in the written statement to that effect. We are clearly of opinion that Article 30 of the Indian Limitation Act will not apply to this case and that it is Article 31 that applies.

22. The more important question is the one relating to the starting point of limitation under Article 31. The Article prescribes a period of one year from the time when the goods ought us be delivered. If there is a contract between the parties as to the date of delivery of the goods that will be the date on which the goods ought to be delivered for purposes of Article 31. If there is he such contract the trend of rulings is that the period of one year should be calculated from the expiry of a reasonable time within which the goods ought to have been delivered having regard to the circumstances of the case and the conduct of parties.

23. This is the view taken in — ‘AIR 1923 All 22 (2)(P)’; — ‘AIR 1946 Mad 133 (N)’; — ‘23 Mad LJ 511 (Z2)’: — ‘AIR 1924 Mad 567 (O)’; — ‘AIR 1950 Mad 30 (Z3); — ‘AIR 1947 Cal 98 (Q)’; — ‘Gangadhar Ramachandra v. Dominion of India’, AIR 1950 Cal 394 (Z4)’; — ‘AIR 1951 Cal 462 (R)’; — ‘B. & N.W Rly. Co. v. Kameshwar Singh’, AIR 1933 Pat 45 (Z5); — ‘AIR 1949 Pat 268 (U)’; — ‘AIR 1952 Nag 77 (X)’; — ‘AIR 1951 Simla 254 (W)’.

24. In — ‘AIR 1923 All 22 (2)(P)’, the plaintiff consigned the goods on 28-8-1918 and filed the suit on 31-3-1920. For more than a year the plaintiff was put off by various statements on the part of the Railway Authorities to the effect that the matter was being enquired into. It was held that the suit was not barred. The learned Judges said:

“When the plaintiff had all along been assured that enquiry was being made, and he had even hopes of recovering the goods till September 1919, it cannot be said that his claim was filed more than a year after the date when the goods ought to have been delivered”

25. In — ‘AIR 1946 Mad 133 (N)’, part of the consignment was delivered on a particular date and a part remained to be delivered. The Railway Company, after making enquiries for a period extending over a year, finally informed the consignee that the undelivered articles were not traceable. It was held that the period of limitation started from the time when the Railway Company made a definite refusal or declaration of inability to deliver the goods, Yahya Ali J. cited with approval — ‘AIR 1923 All 22 (2)(P)’, referred to above and — ‘23 Mad LJ 511 (Z2)’. In the latter case Benson, C.J and Sankaran Nair J. observed:

“No time has been fixed for the delivery of the goods and the correspondence between the parties shows that the matter was being enquired into and the suit was brought within one year from the date of refusal to deliver. We are unable to say that the plaintiffs delayed more than one year from the expiry of reasonable time within which in the circumstances of the case the goods should have been delivered.”

26. ‘AIR 1924 Mad 567 (O)’, is another case referred to in — ‘AIR 1946 Mad 133 (N)’. In that case it was held that in a suit to which Article 31 applied time would run only from the date when the Railway Company finally said that the goods could not be delivered. After referring to some decisions in which a different view was taken the learned Judge came to the following conclusion:

“In this state of affairs the volume of authority is definitely in favour of the view propounded on behalf of the petitioner. The construction placed upon Article 31 that time begins to run from after a final refusal or declaration, of inability to deliver by the responsible Railway Company has to be upheld.”

27. In — ‘AIR 1947 Cal 98 (Q)’, Gentle, J.; followed the decision in — ‘AIR 1946 Mad 133 (N)’, and held that under Article 31 the period of limitation begins to run from after a definite refusal or declaration of inability by the Railway Company to deliver the goods and that in the case of short-delivery the cause of action arises when the consignee is made aware that there will be no further delivery of the undelivered part of the consignment. ‘23 Mad LJ 511 (Z2)’ and — ‘AIR 1924 Mad 567 (O)’ and — ‘AIR 1923 All 22 (2)(P)’, were also cited with approval. The learned Judge further observed:

“Transit of goods on railways, more particularly during the war period, is subject to delay and goods handed to a railway in one bulk are frequently delivered by instalments spread over a, considerable period. In such delivery it cannot be said that the railway is in default of its obligation by failing to deliver the whole at one and the same time. When one consignment is loaded in several waggons they do not always reach the destination at the same time. But often one waggon travels quicker and its-contents are delivered before the others arrive. When that occurs, if a suit were immediately instituted, after arrival of one of several waggons, for the balance, it would be met with a plea that a reasonable time for delivery had not expired and the action was premature.”

28. In — ‘AIR 1951 Cal 462 (R)’, it was held that:

“where no time is fixed for delivery and where after the discovery of non-delivery correspondence ensued between the consignor and the railway authorities in the course of which the railway goes on promising enquiries, and never denying any liability, limitation does not begin to run till the correspondence ends either fruitlessly or with a final statement by the railway of its inability to deliver or a final repudiation of the consignor's claim”.

29. After referring to various rulings on the point Chakravartti J. observed:

“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 Column III 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 railway which informs the parties that it is carrying on enquiries.”

30. In — ‘AIR 1949 Pat 268 (U)’, Ramaswami J. who wrote the leading judgment expressed his opinion in the following:

“The question ‘when the goods ought to be delivered’ is essentially a question of fact. We cannot recognise any universal or inflexible rule that time must begin to run from the expiry of the ordinary period of transit. 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.”

31. In that case the correspondence between the parties showed that consignor had received a reply from the railway authorities that the matter was being investigated. The suit which was filed within one year from the railway company's refusal to deliver the consignment was held to be within time. In — ‘AIR 1951 Simla 254 (W)’, Khosla J. held that in the case of non-delivery of goods the period of limitation should be calculated from the date when the railway company definitely refused to deliver or expressed their inability to deliver, the consignment. In — ‘AIR 195 Nag 77 (X)’, the railway company delivered only 4 out of 5 packages entrusted to them for transit on 13-6-1942. On complaint by the plaintiff the company kept on assuring him from time to time that enquiries were being made and that he would be informed of the result in due course. He was finally informed on 15-3-1943 that the package was lost. It was held that the period of limitation would begin to run only from 15-3-1943.

32. In the present case 19 bags of sugar were delivered to the plaintiff on 23-10-1944. On 3-2-1945 the plaintiff sent a claim bill, Ex. B to the Railway company for the value of the 19 bags short-delivered along with a letter (Ex. A). On 15-2-1945 the plaintiff received an acknowledgement letter Ex. C. It was stated in that letter that the matter was receiving the attention of the company. The plaintiff was also asked to send a copy of the railway receipt and some other documents which were stated to be necessary for the early disposal of the claim. On 23-6-1945 plaintiff sent to the company a letter Ex. F relating to another claim bill. Request was made in that letter for the early settlement of other claims which were pending. A reminder (Ex. E) was sent on 21-3-1946 in which reference was made to various claims including the one relating to the 19 bags of sugar.

33. The claim was renewed on 4-9-1946 by the letter Ex. D(1). Ex. D is the list of claim bills sent along with Ex. D(1). The 5th item in Ex. D was the plaint claim. On 19-9-1946 the company sent to the plaintiff a letter, Ex. K, relating to one of the claim bills. It was stated in that letter that the other claims also were receiving the attention of the company. Since nothing further was done by the company in respect of this claim the plaintiff sent a suit notice (Ex. G) through his advocate on 5-5-1947. To that the company sent a reply (Ex. H) on 10-5-1947. It was to the following effect:

“In returning your letter quoted above I have to inform you that without particulars of forwarding station the railway is unable to take any action within a reasonable time. Will you please, therefore, furnish me with full particulars along with this office previous reference, if any so as to facilitate easy disposal of the matter.”

34. This direction the plaintiff sent the letter Ex. J. on 19-7-1947 furnishing the necessary particulars. After receipt of this letter nothing further was done by the company. It was under these circumstances that the suit was instituted. In the light of the rulings referred to above we are inclined to take the view that time will run against the plaintiff: in this case only, after 19-7-1947 when he sent the letter Ex. J. Till that date the matter was pending correspondence between the plaintiff and the railway company and the company was assuring the plaintiff that the claim was being enquired into. In the circumstances the suit which was instituted within one year from 19-7-1947 cannot be said to be barred by imitation.

35. Learned counsel for the appellant referred to certain decisions in support of his contention that the suit is ??? under Article 31 of the Limitation Act. Those decisions are ‘AIR 1925 Lah 478 (V)’; ‘AIR 1925 Patna 298 (S)’; ‘AIR 1927 Patna 335 (T)’ and ‘AIR 1953 Assam 30 (Y)’. In AIR 1925 Lah 478 (V)’, out of five bundles of cycle tubes booked by the plaintiffs one was delivered to them on 25-2-1921. It was held that the lour remaining bundles ought to have been delivered on the same date and that, therefore, the period of Limitation under Article 31 should be computed from that date. There was no discussion in that, case about the interpretation to be put upon the words “when the goods ought to be delivered” in Article 31. This case was referred to in ‘AIR 1946 Mad 133 (N)’, but was not followed. In ‘AIR 1949 Pat 268 (U)’ and in ‘AIR 1951 Simla 254 (W)’, also this case was considered and distinguished.

36. In the second case, namely, ‘AIR 1923 Pat 298 (S)’, out of 250 bags of flour consigned all except 5 bags were delivered on 11-2-1922. On complaint made by the plaintiff the Railway authorities informed him that the five bags were lost in transit. It was held that Article 30 applied to the case. Ross J., observed:

“This is a case of short-delivery which is equivalent to loss of the portion of the consignment undelivered and the limitation is that prescribed in Article 30. Then the question is when this loss occurred. It seems to me evident that the loss occurred when the short-delivery which constituted the loss was made.”

37. This case can be of no assistance to us in interpreting Article 31 of the Limitation Act. This case was referred to in ‘AIR 1947 Cal 98 (Q)’, but was not followed in that case.

38. In the third case, i.e ‘AIR 1927 Pat 335 (T)’, it was held 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 caught 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.”

39. This case also was considered in ‘AIR 1945 Mad 133 (N)’ but was not followed. The Patna High Court took a different view in AIR 1933 Pat 45 (Z5)’. The earlier decision was however not referred to in that case. ‘AIR 1933 Pat 45 (Z5)’, was also a case where a part of the consignment was delivered and a part remained to be delivered. The same was the case in ‘AIR 1946 Mad 133 (N)’; ‘AIR 1947 Cal 98 (Q)’ and ‘AIR 1952 Nag 77 (X)’.

40. In the fourth case, namely, ‘AIR 1953 Assam 30 (Y)’ a consignment of goods was despatched on 19-8-1944. The plaintiffs made enquiries about its arrival but could get no information. They wrote to the Chief Commercial Traffic Manager on 27-1-1945 and on 13-7-1945 about the non-delivery of the goods but received no reply. The plaintiffs then sent a suit notice on 3-7-1945 to the Secretary, Railway Board, under Section 30 of the CPC. The Secretary replied on 18-7-1945 informing the plaintiffs that the notice had been forwarded to the General Manager for disposal and directing the plaintiffs to make further references on the subject to the General Manager. The plaintiffs did not however, enter into any correspondence with the General Manager and sued the railway for compensation for non-delivery of the goods. It was held that in the circumstances of the case it was reasonable to presume that the plaintiffs treated 3-7-1945 as the date on which the goods ought to have been delivered. Thadani C.J said:

“The determination of the question “when the goods ought to have been delivered” depends on the facts and circumstances of a particular case; it may be that in arriving at the solution of this question, the date of the refusal to deliver the consignment by the party bound to deliver it is an important factor but it is not the determining factor………. The correspondence between the parties makes it clear that the plaintiffs definitely took the position that the goods ought to have been delivered on or before 3-7-1945.”

41. As stated already, plaintiffs issued notice under Section 80 of the CPC, on 3-7-1945. In the reply sent by the Secretary of the Railway Board on 18-7-45 plaintiffs were directed to make further reference on the subject to the General Manager. But they refused to write to the General Manager and adhered to the notice issued on 3-7-1945. Adverting to these facts the learned Chief Justice observed:

“We think the question as to when the goods ought to have been delivered has to be determined with regard to the circumstances of each case and one of the circumstances to be taken into consideration is the plaintiffs' own attitude in the matter of delivery. In the present case the plaintiffs' attitude was that the goods ought to have been delivered on or before 3-7-1945.”

42. The learned Chief Justice did not disagree with the view taken in — ‘AIR 1923 All 22 (2)(P)’, that “where no time was fixed for the delivery of goods and the correspondence between the parties showed that the matter was being enquired into and there was no refusal to deliver up to well within a year of the suit” the suit was not barred by limitation but he was of opinion that decision did not apply to the case before him since there was no enquiry by the Railway authorities alter the plaintiff sent notice on 3-7-1945. The learned Chief Justice said:

“In the case before us there is no question of any enquiry into the matter after the respondent had sent the notice under Section 80 of the CPC on 3-7-1945.”

43. The facts of the present case are entirely different. In this case, the letter Ex. H sent by the Railway Company to the plaintiff clearly shows that the company was prepared to enquire into the claim made by the plaintiff. When the plaintiff sent the letter Ex. J. furnishing the particulars regarding the claim as required by the company he had no reason to believe that the shortage in delivery would not be made good. In the circumstances it cannot be said that the decision in — ‘AIR 1953 Assam 30 (Y)’, is an authority in favour of the appellant.

44. In the result, we uphold the finding of the court below that the suit is not barred by limitation, but not for the reasons given by that court.

45. The court below has held that in computing the period of limitation the plaintiff is entitiled to exclude the period between 23-10-1944, the date on which 81 bags of sugar were delivered to him, and 8-2-1945 when he made the claim in respect of the short-delivery. The learned Munsiff is of opinion that since Section 27 of the Travancore Railways Act corresponding to Section 77 of the Indian Act, requires a person who claims compensation from a Railway company for loss of goods to prefer the claim within six months from the date of delivery of the goods, he is entitled to exclude the period between the date of delivery and the date on which the claim is preferred, in computing the period of limitation. In view of our finding that the suit is governed by Article 31 of the Indian Limitation Act and that it was instituted within one year from the date on which the cause of action arose it is not necessary to go into this question in this appeal. But since the question was argued before us it may not be out of place to observe that the view taken by the court below is not correct.

46. Section 77 of the Railways Act (Act 9 of 1890) reads thus:

“A person shall not be entitled to refund of an overcharge in respect of animals or goods carried by a Railway or to compensation for the loss, destruction, or deterioration of animals or goods delivered to be so carried unless his claim to refund or compensation has been preferred in writing by him or on his behalf to the Railway Administration within six months from the date of the delivery of the animals or goods for carriage by Railway.”

47. In the first place it is doubtful whether this section applies to claims for compensation for nondelivery of goods. In — ‘Puran Das v. East India Rly. Co.’, AIR 1927 Pat 234 (Z6)’; — ‘G.I.P Railway v. Gopi Ram Gouri Shanker’, AIR 1923 Pat 270 (Z7); — ‘Jaisram Ramrekh Das v. Great Indian Peninsular Railway*’, AIR 1929 Pat 109 (Z8) and — ‘AIR 1949 Pat 268 (U)’, the Patna High Court has taken the view that Section 77 of the Railways Act does not apply to claims for compensation for non-delivery of goods. The same view was taken by the Allahabad High Court in — ‘Secretary Of State…Applicant; v. Firm Daulat Ram-Makhan Lal…Opposite Party.’, AIR 1937 All 632 (Z9), by the Lahore High Court in — ‘Haryana Cotton Mills Co. Ltd. v. B.B & C.I Rly.’, AIR 1927 Lah 471 (Z10) and by the Nagpur High Court in — ‘Ratnlal v. B.N Rly. Co. Ltd.’, AIR 1936 Nag 21 (Z11). The decisions of the Calcutta High Court on the question are conflicting. In — ‘Sristhidar Mandal v. Governor-General-in-Council’, AIR 1945 Cal 412 (Z12), Henderson J. observed that so far as the Calcutta High Court was concerned the weight of authority was to the effect that S. 77 would apply to claims for compensation for non-delivery of goods.

48. Even if Section 77 of the Railways Act applies to a claim for compensation for non-delivery of goods we fail to see how the section will enable the plaintiff to exclude the period between the date of the delivery of the goods and the date on which the claim was preferred in computing the period of limitation for the suit. The section only requires that the claim should be preferred within six months from the date of delivery of the goods. There is nothing to prevent the plaintiff from instituting the suit soon after preferring the claim. The provision is not like that contained in Section 80 of the CPC which says that no suit shall be instituted against the Government or against a public officer in respect of any act purporting to be done by such public officer in his official capacity until the expiration of two months after the issue of a notice in writing. It is expressly provided in Section 15(2) of the Limitation Act that this period will be excluded in computing the period of limitation. The Court below is clearly mistaken in thinking that Section 77 of the Railways Act has the same effect as Section 80 of the CPC.

49. The learned Munsifl has relied on a ruling of the Patna High Court in —‘B. & N.W Railway Co. v. Ramsarup Lal’, AIR 1922 Pat 549 (Z13). In that case the plaintiff booked for carriage 32 bags of potatoes. Out of that only 26 were delivered to the consignee. The delivery was on 14-11-1917. A claim was preferred as required by S. 77. It is not clear from the judgment when the claim was made. Notice was issued to the Secretary of State also under Section 30 of the CPC. The suit was instituted on 3-12-1918. The Secretary of State was also made a defendant in the suit. It was held that under Section 15(2) of the Limitation Act the plaintiff was entitled to exclude the period of the notice issued to the Secretary of State in computing the period of limitation. It was also observed that the plaintiff was entitled to exclude the period of the notice issued under Section 77 of the Railways Act. This latter observation was merely an obiter dictum. In view of the finding that the plaintiff was entitled to exclude the period of the notice issued to the Secretary of ??? under Section 80 of the CPC, it was not necessary to consider the question whether he was entitled to exclude the period of the notice issued under Section 77 of the Railways Act. That observation, we must, say with great respect to the learned Judges who decided the case, is not warranted by the wording of Section 77 of the Railways Act or Section 15(3) of the Limitation Act. No other point was argued in this appeal. We confirm the judgment and decree of the court below and dismiss the appeal with costs.

E/V.S.B

50. Appeal dismissed.