Case: Bootamal Vs. Union Of India

a part has not been delivered, for in such a case in the absence of special circumstances it should be easy to see that the reasonable time is that within which the bulk of the goods have been delivered. We may in this connection refer to Union of India v. Meghraj Agarwalla, AIR 1958 Cal 434 and Gajanand Rajgoria v. Union of India (S) AIR 1955 Pat 182 where it has been held that where a part of the consignment has been delivered, that should, in spite of the correspondence regarding inquiries and in the absence of circumstances leading to the contrary view, be taken to be the date when the goods ought to have been delivered as a whole within the meaning of those words in Art.31. The view taken therefore by the High Court in Aminchand Bholanaths case, C.A. No. 97 of 1949 D/- 2-5-1956 : ((S) AIR 1957 Punj 49) as to the interpretation of the words in the third column of Art. 31 is in our opinion correct. 13. Let us therefore see what was the reasonable time within which the goods ought to have reached Jagadhari from Gujranwala in the present case. The appellant himself in his replication stated that the goods in ordinary course should have reached Jagadhari before August 15, 1947. Further in the notice that he gave on January 22, 1948, he stated that the cause of action arose on August 21 and 30, 1947, and on subsequent dates when he met with refusal to deliver the goods. The fact that the appellant gave notice under S. 80 of the Code of Civil Procedure in January 1948 in our opinion shows that even taking into account the extraordinary conditions prevailing on account of the partition of India in August 1947, the appellant was satisfied that the goods ought to have been delivered before January 22, 1948 when he gave the notice. If that was not so and if the clause of action had not arisen, there was no reason why the appellant should have given the notice under S. 80 in January 1948. We can see no difficulty therefore on the facts of this case in agreeing with the High Court that the goods ought to have been delivered even taking into account the extraordinary circumstances prevailing on account of partition within five or six months of the date on which they were sent, namely, August 5, 1947. This is also borne out by the fact that the appellant gave notice on January 22, 1948 i.e. about 5 1/2 months after the good had been consigned. In the circumstances the suit which was brought in December 1949 would be clearly barred by time, for we cannot take the reasonable time within which the goods ought to have been delivered in the circumstances of this case beyond January 22, 1948, when the notice under S. 80 was given. As to the correspondence between the parties it is enough to say that there is nothing in the correspondence which has any bearing on the reasonable time taken for the carriage of goods from Gujranwala to Jagadhari. It is true that on December 1, 1948, the appellant was informed by the Railway that the goods were still lying in Gujranwala because of the restrictions imposed by the Pakistan Government and he was asked to get the necessary permits from that government; but that in our opinion has nothing to do with the question of reasonable time to be taken for the carriage of goods from Gujranwala to Jagadhari. In the circumstances, the High Court was right in holding that the suit was barred by limitation under Art. 31. 14. Learned counsel for the appellant however drew our attention to the Displaced Persons (Institution of Suits) Act (No. XLVII of 1948) as amended by the Displace Persons (Institution of Suits and Legal Proceedings) Amendment Act (No. LXVIII of 1950) and contended that the appellant being a displaced person would be entitled to file this suit under S. 8 of this Act as amended up to March 31, 1952. It appears that in para. 9 of the plaint, the appellant relied on his being a displaced person in order to give jurisdiction to the court in Delhi where he filed the suit. But he does not seem to have relied on his being a displaced person on the question of limitation. The respondent in the written-statement denied that the appellant was a displaced person and nothing further happened with respect to this aspect of the matter. Learned counsel for the appellant urges that in fact the appellant is a displaced person and would be entitled to the benefit of the Act of 1948 as amended by the Act of 1950 and on that basis his suit would be within time and that the suit might be remanded to allow the appellant to bring his case under the Act of 1948 as amended. Ordinarily we would not have allowed such a prayer when the point was not raised in the plaint; but considering that the appellant claims to be a displaced person who is registered in Delhi and also considering that he had to file this suit in forma pauperis probably on account of the circumstances arising from the partition of India, we think that the appellant should be given a chance to prove his case under the Act of 1948 as amended by the Act of 1950. We express no opinion on the question whether the appellant is a displaced person or whether he is entitled to the benefit of the Act of 1948 as amended by the Act of 1950. But we think in the interest of justice he should be given a chance to bring his case under the Act of 1948 as amended by the Act of 1950 in the matter of limitation subject to his paying all the costs incurred by the respondent up to date irrespective of the result of the suit.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]5. Two lines of reasoning seem to have governed the decisions of various High Courts on the interpretation of these words in the third column of Art. 31. The first is based on the consideration that it was for the railway to prove what time ought to be taken for the delivery of the goods and therefore limitation can only start when the railway says finally that it cannot deliver the goods. The second line of reasoning seems to be based on the principle of estoppel and is to the effect that where the railway enters into correspondence and says that efforts are being made to trace the goods the railway would be estopped from pleading that the time began to run from sometime anterior to the period before the correspondence on the question came to an end. It may however be noted that though the majority of the decisions follow these two lines of reasoning and hold that time begins to run only when the railway finally refuses to deliver the goods here and there a dissentient note has also seen struck. We shall consider some of these cases later6. Let us first see what these words in Art. 31 mean on a plain grammatical construction. It would be noticed that Art. 31 as it now stands after the Limitation Acts of 1877 and 1908, governs two class of cases, namely, (i) where there has been no delivery of goods and (ii) where there has been delay in delivering goods. In both class of cases the time begins to run from the date when the goods ought to be delivered. These words therefore in column three of the article must have a meaning which will apply equally to the two situations envisaged in column one. Whether there has been non-delivery or there has been delay in delivery, in either case limitation would run from the date when the goods ought to be delivered. Now it is not in dispute that if there is a term in a contract of carriage fixing when the goods have to be delivered that would be the time when the goods ought to be delivered within the meaning of the words used in the third column of Art. 31. The difficulty however arises in that class of cases where there is no term in the contract of carriage whether express or implied, from which the date on which the goods have to be delivered, can be inferred. It is in these cases that the question of interpretation of the words in the third column of Art. 31 seriously arises. But these words can only mean one thing whether it is a case of late delivery or of non-delivery. Reading the words in their plain grammatical meaning they are in our opinion capable of only one interpretation, namely, that they contemplate that the time would begin to run after a reasonable period has elapsed on the expiry of which the delivery ought to have been made. The words when the goods ought to be delivered can only mean the reasonable time taken in the absence of any term in the contract from which the time can be inferred expressly or impliedly in the carriage of the goods from the place of despatch to the place of destination. Take the case, where the cause of action is based on delay in delivering the goods. In such a case the goods have been delivered and the claim is based on the delay caused in the delivery. Obviously the question of delay can only be decided on the basis of what would be the reasonable time for the carriage of goods from the place of despatch to the place of destination. Any time taken over and above that would be a case of delay. Therefore, when we consider the interpretation of these words, in the third column with respect to the case of non-delivery, they must mean the same thing, namely, the reasonable time taken for the carriage of goods from the place of despatch to the place of destination. The view therefore taken by some of the High Courts that the time begins from the date when the railway finally refuses to deliver cannot be correct, for the words in the third column of Art. 31 are incapable of being interpreted as meaning the final refusal of the carrier to deliver. We may in this connection compare the language used in the third column of Art. 31 with certain other articles of the Limitation Act which will show that where the legislature intended that time should run from the date of refusal it has used appropriate words in that connection. For example, in Art. 18, which provides for a suit for compensation against Government when the acquisition is not completed, the time begins to run from the date of the refusal to complete. Similarly, in Art. 78 which provides for a suit by the payee against the drawer of a bill of exchange which has been dishonoured by non-acceptance, time begins to run from the date of the refusal to accept. Again in Art. 131 which provides for a suit to establish a periodically recurring right, the limitation begins to run when the plaintiff is first refused the enjoyment of the right. Therefore, if the legislature intended that in case of non-delivery, the limitation would start on the final refusal of the carrier to deliver, such a case would have been provided for by a separate article and we would have found appropriate words in the third column thereof. The very fact that Art. 31 deals with both cases of non-delivery of goods and delay in delivering the goods shows that in either arise the starting point of limitation is after reasonable time has elapsed for the carriage of goods from the place of despatch to the place of destination. The fact that what is reasonable time must depend upon the circumstances of each case and the further fact that the carrier may have to show eventually what is the reasonable time for carriage of goods would in our opinion make no difference to the interpretation of the words used in the third column of Art. 31. Nor do we think that there could be generally speaking any question of estoppel in the matter of the starting point of limitation because of any correspondence carried on between the carrier and the person whose goods are carried. But undoubtedly, if the correspondence discloses anything which may amount to an acknowledgment of liability of the carrier that will give a fresh starting point of limitation. As we have said already, the words in the third column refer to reasonable time taken for the carriage of goods from the place of despatch to the place of destination and this reasonable time generally speaking cannot be affected by the subsequent conduct of the parties. We are therefore of opinion that the answer given by the Full Bench in the case of Aminchand-Bholanath C. A. No. 97 of 1949 D/- 2-5-1956 : ((S) AIR 1957 Punj 49) (supra) that the limitation in such cases starts on the expiry of the time fixed between the parties and in the absence of any such agreement the limitation starts on the expiry of reasonable time which is to be decided according to the circumstances of each case, is correct8. This decision seems to suggest that the meaning of the relevant words in the third column is that limitation starts from the expiry of the reasonable time within which the goods should have been delivered. But it has taken into account the subsequent conduct of the railway and the fact that there was no refusal to deliver the goods till much later. It was therefore held that as the suit was brought within one year of the final refusal to deliver, it was within time. With respect, it is rather difficult to understand how the subsequent correspondence between the railway and the consignor or the consignee can make any difference to the starting point of limitation, when that correspondence only showed that the railway was trying to trace the goods. The period that might be taken in tracing the goods can have no relevance in determining the reasonable time that is required for the carriage of the goods from the place of despatch to the place of destination13. Let us therefore see what was the reasonable time within which the goods ought to have reached Jagadhari from Gujranwala in the present case. The appellant himself in his replication stated that the goods in ordinary course should have reached Jagadhari before August 15, 1947. Further in the notice that he gave on January 22, 1948, he stated that the cause of action arose on August 21 and 30, 1947, and on subsequent dates when he met with refusal to deliver the goods. The fact that the appellant gave notice under S. 80 of the Code of Civil Procedure in January 1948 in our opinion shows that even taking into account the extraordinary conditions prevailing on account of the partition of India in August 1947, the appellant was satisfied that the goods ought to have been delivered before January 22, 1948 when he gave the notice. If that was not so and if the clause of action had not arisen, there was no reason why the appellant should have given the notice under S. 80 in January 1948. We can see no difficulty therefore on the facts of this case in agreeing with the High Court that the goods ought to have been delivered even taking into account the extraordinary circumstances prevailing on account of partition within five or six months of the date on which they were sent, namely, August 5, 1947. This is also borne out by the fact that the appellant gave notice on January 22, 1948 i.e. about 5 1/2 months after the good had been consigned. In the circumstances the suit which was brought in December 1949 would be clearly barred by time, for we cannot take the reasonable time within which the goods ought to have been delivered in the circumstances of this case beyond January 22, 1948, when the notice under S. 80 was given. As to the correspondence between the parties it is enough to say that there is nothing in the correspondence which has any bearing on the reasonable time taken for the carriage of goods from Gujranwala to Jagadhari. It is true that on December 1, 1948, the appellant was informed by the Railway that the goods were still lying in Gujranwala because of the restrictions imposed by the Pakistan Government and he was asked to get the necessary permits from that government; but that in our opinion has nothing to do with the question of reasonable time to be taken for the carriage of goods from Gujranwala to Jagadhari. In the circumstances, the High Court was right in holding that the suit was barred by limitation under Art. 31It appears that in para. 9 of the plaint, the appellant relied on his being a displaced person in order to give jurisdiction to the court in Delhi where he filed the suit. But he does not seem to have relied on his being a displaced person on the question of limitation. The respondent in the written-statement denied that the appellant was a displaced person and nothing further happened with respect to this aspect of the matterOrdinarily we would not have allowed such a prayer when the point was not raised in the plaint; but considering that the appellant claims to be a displaced person who is registered in Delhi and also considering that he had to file this suit in forma pauperis probably on account of the circumstances arising from the partition of India, we think that the appellant should be given a chance to prove his case under the Act of 1948 as amended by the Act of 1950. We express no opinion on the question whether the appellant is a displaced person or whether he is entitled to the benefit of the Act of 1948 as amended by the Act of 1950. But we think in the interest of justice he should be given a chance to bring his case under the Act of 1948 as amended by the Act of 1950 in the matter of limitation subject to his paying all the costs incurred by the respondent up to date irrespective of the result of the suit.