UNION OF INDIA Vs. S KABDUL RAZACK AHAMADI

JUDGEMENT

(1.) The only question for determination in this Second Appeal is whether or not the suit filed by the respondent for recovery of damages in respect of consignment of goods despatched from Agra to Shimoga is barred by limitation. The decision on this point depends on our decision as to which of the Articles of the Limitation Act whether Article 30 or Article 31 of Limitation Act governs the case.

(2.) The relevant facts are these: Sri Prakash Dall Mills of Agra consigned 200 bags of Toordhal to Shimoga and entrusted the goods to the present appellant and obtained the railway receipt. The railway receipt was endorsed in favour of the respondent to enable him to take delivery of the goods on arrival of Shimoga . The wagon containing the goods arrived at Shimoga on 31-7-1952. The respondent examined the goods and found that the bags containing the Toordhal had been damaged and there was some pilferage also. He , therefore, applied for and obtained open delivery of the goods. On 3-8-1952 the Commercial Inspector estimated the loss on account of the damage and also pilferage and made a copy of the estimated available to the plaintiff. The plaintiff thereafter filled up the claim form and applied to the appellant for recovery of a sum of Rs. 591-1-0 on account of the loss and damage caused it him. The appellant did not settle the claim. Therefore, the respondent issued coconut a notice calling upon the appellant to pay a sum of Rs. 709-10-0 being the value of the Toordhal short delivered and damaged and interest thereon from 31-7-1952 up to the date of suit which was filled on 12-8-1954. The defendant- appellant resisted the claim of the plaintiff . He inter alia stated in his written statement that the suit filed by the plaintiff on 12-8-54 was barred by limitation. The trial Court held that it is Article 31 of the Limitation Act that governed the case and that in view of the fact that the Railway Administration had acknowledged their liability under E exhibits P-and P-10, the suit filed by the plaintiff was within time. The appellant preferred an appeal against the decision of the trial Court and the appellate Court upheld the decision of the trial Court and dismissed the appeal filed by the appellant . It is against this decision that the present Second Appeal has been preferred by the appellant .

(3.) It is clear from the facts narrated above that the claim advanced by the plaintiff -respondent was that 200 bags of Toordhal had been consigned by him from Agra to Shimoga and entrusted to the appellant defendant and that there was a short delivery and damage caused to the goods. Prima facie Article 30 of the Limitation Act applies to the case since the loss or damage had been caused to the goods that were received on 3-8-1952. Under Article 30 of the Limitation Act, the plaintiff was bound to file the suit within one year when the loss or injury occurred to him, which as I have already stated was on 3-8-52. This suit was filed by the plaintiff for recovery of damages only on 12-8-54. So prima facie the suit is barred By Limitation. It is on the basis that the appellant had in Exhibit P-7 and Exhibit P-10 admitted its liability that the Courts below came to the conclusion that the claim was not barred by limitation. Exhibit P-7 is a reply sent by the Chief Commercial Superintendent dated 11-11-1952 in which he had called for the copies of the letters and enclosures on the ground that the originals were not traceable in his office. The commercial Superintendent had further stated in that letters that the respondent may intimate the rate per maund to enable him to take further action in the matter. He further stated that "this is written without prejudice to Railway legal position." There does not appear to be any acknowledgment of the liability in this letter. Even if it is assumed for the sake of argument that the letter amounts to an acknowledgment of liability, it does not in any help the respondent , for, the acknowledgment , if , any, was on 11-11-52. The present suit having been filed more than one year after this acknowledgment is prima facie barred by limitation. In so far as Exhibit P-10 is concerned, there is nothing in it to indicate that the appellant or the Commercial Superintendent, Madras acknowledged the liability in it in any manner. What all the Commercial Superintendent , Madras had done in the said letter was only a request to the respondent to send a copy of the original bill with its translations in English showing the rate per maund to enable him to take further action in the matter. There is absolutely nothing in that letter which indicates that the Commercial Superintendent had accepted the liability in any manner. This letter was sent to the respondent on 7-2-1953. Even if it is assumed that there is any indication of any acknowledgment of any liability on the part of the appellant in Exhibit P-10 ,it also does not any way save the limitation, as, as already sated, the suit was filed on 12-8-54 more than one year after the receipt of this letter. The suit filed by the respondent was, therefore, barred by limitatio nnnnnnn.