1. The facts in these two appeals are similar, and the points arising in both of them are the same and may be disposed of in one judgment, although the lower Court has written two separate judgments.
2. There is no dispute as to the facts which are set out in the judgments of the learned District Judge. Put briefly, they are that one Shamji Bhawanji had dealings in cotton with the plaintiffs' firms on which he was indebted to them. The plaintiffs in both suits were in possession of bales of cotton belonging to Shamji Bhawanji, 100 bales in the case of Jasrup Shrinath and 200 bales in the case of Radhakisan Jaikisan, on account of the money due to them by Shamji Bhawanji, and the plaintiffs handed over these bales of cotton to the defendants, G.I.P Ry., for carriage to Bombay consigned to plaintiffs themselves and got the Railway receipts for them. But by a fraud, to which the Goods Clerk at Harda and Shamji Bhawanji were parties, bogus railway receipts were issued by the Clerk in favour of Shamji Bhawanji although no goods were actually delivered. The marks on the bales were altered so as to make them correspond with the false railway receipts and the bales were consigned to the firm of Arjun Khemji in Bombay, who took delivery of them, instead of to the plaintiffs. The plaintiffs were thus deprived of the cotton they had consigned, through the fraud of the Goods Clerk at Harda, who is a servant of the Railway Company. The fraud was promptly discovered and the matter was put in the hands of the Police. Criminal proceedings then ensued, with which we are not concerned. Out of the 300 bales 79 bales were sold by Arjun Khemji and ultimately under the orders of the Court all the bales were sold and the money was deposited in the Bank in the name of Arjun Khemji under an agreement between him and the Railway Company. The plaintiffs have brought these suits to recover the value of the cotton from the Railway Company. The Railway Company have brought a suit in the High Court at Bombay against Arjun Khemji, which is still pending. It is admitted on behalf of the Railway Company that the plaintiffs have a lien on the goods, and it is also admitted, in view of the ruling in Sherjan Khan v. Alimuddin (1916) 43 Cal. 511 , 20 C.W.N 268 , 34 I.C 598 , 23 C.L.J 225 following the decision of the House of Lords in Lloyd v. Grace (1912) A.C 716 , 81 L.J.K.B 1140 , 107 L.T 531 , 56 S.J 723 , 28 T.L.R 547, that the Railway Company are liable for the fraud of their servant, the Goods Clerk.
3. The principal question in this case is that of limitation. It is contended on behalf of the Railway Company that the suits are governed by article 31 of the Limitation Act, and that limitation began to run in 1919 when the goods ought to have been delivered, and therefore the suits which were brought in 1921 are barred by limitation. The District Judge of Khandwa held that the suits were not barred by limitation, being governed by articles 115 and 48 of the Limitation Act, and awarded the plaintiffs Jasrup Shrinath Rs. 18,740-5-4 with interest from 11th April 1921 till the date of the decree, and the plaintiffs Radhakisan Jaikisan Rs. 37,480-10-8 with interest from 31st March 1921 till the date of the decree.
4. It is admitted that there has been conversion. The learned District Judge was of opinion that bogus receipts were issued and that the marks on the bales were altered, which took place at Harda. The conversion was complete before the goods left Harda and the defendant Company carried the goods not for the plaintiffs who had consigned them but for the person in whose favour the conversion had been effected, that is for Shamji Bhawanji; hence the defendants were not carriers for the plaintiffs and so article 31 of the Limitation Act has no application and the case falls under article 48, or viewed as a matter of contract there is a breach of contract by the defendants due to their failure to convey the goods on behalf of the plaintiffs to Bombay and hence the suit would fall under article 115 of the Limitation Act. In either case the suits are in time. It is contended by the learned Advocate General, Bombay, who represents the appellants that all the High Courts are agreed that a suit against a carrier for compensation for non-delivery of goods is governed by article 31 whether the non-delivery is due to conversion or to any other reason.
5. He relies on the following cases, Mutsaddi Lal v. B.B & C.I Ry. Co. (1920) 42 All. 390 , 58 I.C 547 , 18 A.L.J 377, in which it was held that the article applies to suits by a consignor or consignee. Jaldu Venhatasubba Rao v. The Asiatic Steam Navigation Co. of Calcutta (1916) 39 Mad. 1 , 29 M.L.J 342 , 2 LW 805 , 18 M.L.T 236 , 30 I.C 840 , (1915) M.W.N 644 (F.B) in which it was held by the Full Bench that by the amendment in 1899 of the Indian Limitation Act the legislature dearly indicated its intention that article 31 should apply to a claim against a carrier for compensation for non-delivery of goods irrespective of whether the suit was laid in contract or in tort. Article 49 is inapplicable to such a case and even if it were, its operation would be excluded by the provisions of the special article 31 as amended on the principle “Generalia specialibus non derogant”
6. In G.I.P Ry. Co. v. Raisett Chandumull (1895) 19 Bom. 165, Farran, J., expressed the opinion that the legislature must have intended when in general terms limiting the responsibility of carriers to make compensation for loss of goods to two years after the loss, to make that time the outside period within which they could be sued, whether the claim was laid in tort or as arising out of contract, and that liberally interpreted almost all claims against a carrier, unless he were actually in possession of the goods uninjured are for loss of or injury to goods.
7. In Haji Ajam Goolam Hoosein v. Bombay and Persia Steam Navigation Co. (1902) 26 Bom. 562 , 4 Bom. L.R 447 which was a claim for non-delivery, article 31 was applied: cf. also G.I.P Ry. Co. v. Ganpat Rai (1911) 33 All. 544 , 10 I.C 122 , 8 A.L.J 543. The same view has been taken by the Calcutta High Court in Lal Mohan Hazra v. E.I Ry. Co., reported in All India Reporter 1922 Cal. 330, where it was held that a suit against a carrier for compensation for non-delivery of goods consigned to him is governed by article 31. Article 115 of the Act applies only to suits for compensation for breach of any contract specially provided for in the Act. This case follows the Indian General Navigation and Ry. Co. Ltd. v. Nanda Lal Banik (1909) 13 C.W.N 851 , 3 I.C 469. The Punjab case is Moti Ram v. E.I Ry., Co. (1906) 108 P.R 1906 , 2 P.L.R 1907 , 30 P.W.R 1907 (F.B) where it was held that article 31 covers a suit for compensation for non-delivery, whether the failure to deliver was tortious or due to breach of contract. The same view was taken by this Court in Ali Mohmad v. G.I.P. Ry. Co. (1915) 11 N.L.R 174 , 31 I.C 474. There is thus a consensus of opinion among all the High Courts as to the applicability of article 31 to all cases of non-delivery whether founded on tort or contract. The only case to the contrary is that in Radha Shyam Basak v. Secretary of State for India (1916) 44 Cal. 16 , 34 I.C 130 , 23 C.L.J 547, where defendants denied the delivery of goods.
8. It has been contended on behalf of the respondents that their case is not one of non-delivery but of conversion and breach of contract, and that all cases quoted are cases of non-delivery. This however makes no real difference. The cause of action in this case is the defendants' failure to deliver the goods.
9. Non delivery may be due to many causes of which conversion is one, but the cause of action is the non-delivery of the goods, whether due to loss, theft, destruction, conversion or misdelivery to somebody else. If the defendants had delivered the goods to the plaintiffs they would have no cause of action, even if the bales had been wrongly marked with the name of somebody else. Mr. Rustomji in his Commentary on the Limitation Act at page 292 differs from the opinion of Starling that all suits against carriers in respect of goods delivered to them for carriage fall under articles 30 and 31, but there seem to be no grounds for making such distinction. As pointed out by one of the referring Judges in Jaldu Venkatasubha Rao v. The Asiatic Steam Navigation Co. of Calcutta (1916) 39 Mad. 1 , 29 M.L.J 342 , 2 LW 805 , 18 M.L.T 236 , 30 I.C 840 , (1915) M.W.N 644 (F.B) it appears that the Legislature intended to provide exceptionally for the case of carriers on account of the difficulty of investigating and settling claims preferred against them after a long lapse of time in respect of a few articles out of the quantity of goods that are constantly passing through their hands.
10. We are therefore of opinion that article 31 applies to these cases whether based on tort or contract. The plaints show that the suits are based on breach of contract.
11. It is contended on behalf of the respondents that assuming that article 31 applies, the suits are in time, as the date from which limitation is to be counted under that article is when the goods ought to be delivered, which is an uncertain time, and if there is an agreement that the goods should remain longer with the carrier, limitation will be proportionately extended. The Railway Company were trying to get back the bales and were leading the plaintiffs to believe that delivery would be given. Reference is made to Jugal Kishore v. G.I.P Ry. Co. A.I.R 1923 All. 22 , 45 All. 43 , 20 A.L.J 792. In that case no time was fixed for the delivery of the goods and there was no refusal to delivery up to well within a year of the suit. In both the present suits the plaints give certain dates in April 1919 as the dates when the goods ought to have been delivered, and damages were claimed on the basis of the price of cotton at Bombay at that date. Afterwards the market fell. The learned District Judge has referred to the Railway Company's letter of May 1919, but that is two years before the institution of the suits.
12. A subsequent suggestion made by defendants' solicitors that the matter might be settled, headed “without prejudice”, cannot operate to extend limitation. The Railway Company do not appear ever to have admitted their liability. The suits are therefore, in our opinion, barred by limitation and must be dismissed.
13. It has been contended that the appeals should be rejected as they are not accompanied by copies of the judgment appealed against, as required by Or. 41, r. 1 of the CPC. The memorandum of appeal in each case stated that the copy of judgment would be given afterwards, and as the appeals were admitted on presentation, notice being ordered to issue to the respondents, it must be taken that the Court dispensed with the copy of judgment. In any case this is a matter between the Court and the appellant.
14. The result is that the decrees of the lower Court in both cases must be set aside and the suits dismissed with costs. The plaintiffs may have their remedy against Arjun Khemji who actually received the goods and in whose possession the sale proceeds are, or against the defendants in another suit after recovery of the sale proceeds from Arjun Khemji.
15. Suits dismissed.