BHARGAVA, J. - (1.)THIS first appeal is filed on behalf of the defendants in a suit for recovery of Rs. 12, 913/3/-and is directed against the judgment and decree of the District Judge, Bikaner dated 7th December, 1954.
(2.)THE Bikaner Textile Merchants Syndicate Ltd., through its liquidators instituted a suit on 27.5.53 against the Union of India and the Northern, Western and Central Railways for recovery of Rs.12913/3/- as compensation for non-delivery, shortage and damage to their goods which were booked from Bori Bundar Railway Station to Bikaner. It is alleged that out of a consignment of 265 bales of cloth which were booked on 19.1.48,261 bales were delivered to the plaintiff on 15.3.48. Out of the remaining 14 bales, 4 were delivered to the plaintiff on 18.10.49. THE remaining 10 bales were not delivered at all. It is alleged that the cloth in 14 bales out of the lot delivered on 15.3.1948 had become wet and damaged and the loss is assessed at Rs. 2911/10/-. In seven bales out of the same lot it is alleged that there was a shortage of cloth worth Rs.1299/14/9. In 4 bales which were delivered on 18.10.49 there was a shortage of cloth in two bales worth Rs. 871/12/6. Rs.7830/7/3 are claimed as compensation representing the price of 10 bales of cloth which were not delivered to the plaintiff. According to the plaintiff the cause of action for filing the suit arose on 30th May, 1952 when the defendants finally refused to give delivery of the goods.
Many pleas were taken in the written statement. It was contended that the liquidators had no right to file the suit. Notice under Sec. 80 of the Code of Civil Procedure was not valid. The suit was not filed within limitation and that the non-delivery of the goods was due to a running train theft and not on account of any negligence or carelessness on the part of the Railway Administration and the plaintiff is not entitled to the amount of compensation claimed by it.

The learned District Judge decided all the issues in favour of the plaintiff and decreed the plaintiff's full claim.

Aggrieved by the said decision the defendants have come in appeal and it has been contended before us: (i) that the learned District Judge was in error in holding the suit to be within limitation, (ii) that the non-delivery of 10 bales was due to a theft in the running train and no; due to any default on the part of the Railways. (iii) that the plaintiff has not proved the price of the goods claimed by it by any satisfactory evidence. Though the questions regarding the validity of notice under Sec. 80 of the Code of Civil Procedure and the plaintiff's right to institute the suit were raised by the learned counsel at the time of arguments, yet finally they were not pressed before us and it is therefore not necessary to discuss them.

Before taking up the question of limitation which has been mainly argued before us we would like to dispose of the other two points urged on behalf of the appellant. It is urged by the learned counsel for the appellant that the plaintiff has in this case failed to prove that there was any negligence or carelessness on the part of the Railway Administration for the loss of 10 bales which were not delivered to it. On the contrary there is sufficient evidence on the record to show that the loss was due to theft in the running train. He has relied upon the evidence of D. W. 2 Devisingh and D. W. 3 Ramchander. D. W. 2 Devi Singh is a district police constable who was on escort duty with the goods train which carried the disputed bales of cloth. He deposed that the train started from Bori Bundar Station on 21st March, 1948 at 1.50 A. M. and that he had checked the label seals and rivets and had found them intact. The train stopped at a place between Thana and Dabra station for about 2 minutes at about 2.30 A. M. and when it had passed Dabra station he witnessed one bale falling down from the wagon near the cabin and then another bale falling down on which he asked the guard to stop the train, and saw that one door of the 6th wagon in which the bales were loaded was open. He then informed the Sub Inspector of Police, Kalyan Railway Station on phone. On a further search he found three more bales at little distance from that place. In his cross-examination he admitted that at the place where the train had stopped for two minutes he had checked the wagon and had found that the seals were intact. He further admitted that at the place where the bales were found no foot marks were noticed. According to his statement there were no locks on the wagon. Rivets can easily be broken. If there is pressure of the bales from inside the rivets can give way. D. W. 8 Ramchander who was a Sub Inspector of police at Kalyan Station has deposed that a report was received that an account of the opening of the door of wagon No. 5696, 15 bales of cloth have been stolen therefore he reached the place of occurrence and made some investigations in connection with that report. According to the statement of this witness four persons were challened in connection with this theft and were convicted to two months imprisonment under Sec. 411 of the Indian Penal Code. In cross-examination he has admitted that near the place where the bales were found no foot marks could be discovered on account of the rains. He also admitted that the rivets of the right side of this wagon were found broken and there was no lock on the left side. There was another witness examined on behalf of the defendants viz., D.W. 1 Vishwanath who was a booking clerk at Bori Bunder Railway Station in 1948 and who admitted in cross-examination that no locks were put on the wagon. It is significant to note that the first report about the theft of the bales in question having taken place had not been placed on the record. The telephonic message which was sent by I}. W. 2 Devisingh and which is Ex. A. 11 does not make any mention of any theft having ! taken place. Mr. Ghogali who was the guard of the goods train has not been examined and his report which is of course on the record remains unproved. Neither the police report nor the judgment of the Magistrate's court who convicted the four persons accused of theft has been placed on the file of this case. It is curious that the defendants did not take proper steps to prove the plea of theft by producing material documents and witnesses who were easily available to them. We are not impressed by the evidence of D. W. 2 Devisingh and we entertain serious doubts about any theft having taken place in the running train. He admits that the labels and the seals were intact when the train started at 1.50 A.M. from Bori Bunder Station. He further admits that these labels were intact even at the place where the train had stopped for two minutes between Thana and Dabra and then a little while after he saw bales falling down from the wagon. Neither any man was found inside the wagon nor were any foot marks indicating the entry or escape of any person from the wagon were found near that place. The weight of each bale was about 4 maunds and they could not have been carried by the thieves unless some arrangement for their transport was near at hand. No such arrangements were found at the time. Another important factor which heavily weighs against the defendants is that inspite of the fact that after the delivery of 251 bales in March, 1948 plaintiff had been repeatedly asking the Railway authorities to deliver the rest of the bales, but in none of their replies the fact of theft was disclosed. It is only after four years that in Ex. 4 dated 30th May, 1952 this fact is revealed. This creates a serious doubt about the defendants' case regarding theft having taken place on the night of 21st March, 1948. No explanation is forthcoming as to why this fact was not disclosed to the plaintiff earlier. In view of these circumstances and of the meagre evidence which has been placed on record on behalf of the defendants we cannot hold that the loss occurred on account of any theft in the running train. In this state of the evidence the learned District Judge was justified in giving his finding that the defendants have not satisfactorily proved that the goods were stolen. Learned counsel at the close of his arguments submitted an application for allowing him to produce further evidence to prove the fact of theft. No such request was made before the trial court. The application is not supported by an affidavit to explain the reasons for production of the documents at this last stage. Even the particulars of the documents which are now sought to be produced are not mentioned in the application. We do not see any reason to allow any additional evidence to be produced at this stage of the case, particularly when no such application was made before the trial court. As stated earlier the wagon in which these bales were loaded had only rivets on either side and no locks were put on the wagon as admitted by D. W.I and D.W. 3. The question that arises is as to whether the defendants as bailee had acted prudently in not putting locks on the wagon specially when its contents were very heavy and as admitted by Devisingh the rivets on the wagon could easily give way on account of the bales from inside. The degree of care which a bailee is required to take is given in sec. 151 of the Indian Contract Act which runs thus: - "In all cases of bailment the bailee is bound to take as much care of the goods bailed to him as a man of ordinary prudence would, under similar circumstances, take of his own goods of the same bulk, quality and value as the goods bailed". Now looking to the bulk and the value of the goods failure on the part of the railway administration to put any locks on the wagon is certainly an act which a man of ordinary prudence would not do under similar circumstances and in our opinion it amounts to wilful neglect on their part. Reference in this connection may be made to Bengal North-Western Railway vs. Bansidhar (1), and Jainarain, Lachminarain Vs. G. I. P. Rly. Co.(2). This contention has therefore, no force. As regards the compensation for the loss of 10 bales the plaintiff has claimed Rs. 7830/7/3 as the price of the cloth contained in them. In para 6 of the plaint the price of these bales was specifically mentioned by the plaintiff but the defendants did not plead that it was not valued correctly by the plaintiff. In Ex. 4 which is the defendants reply Rs. 760/3-have been accepted as price of one bale. The contention raised by the learned counsel is that the plaintiff should have proved the price of the cloth on the date on which the loss occurred to it. What the plaintiff has done in this case is that it has proved the value of the goods on the date they were despatched from Bori Bandar. In our opinion this contention has no force. It does not appear from any evidence on the record that the price or the cloth bad gone down after the date of consignment. The plaintiff has produced the Beejaks to prove the price for which these goods were purchased and we do not think why it should not be accepted as its correct value. There is no substance in the above argument and "we hold that the amount of compensation claimed by the plaintiff for the loss of 10 bales has been correctly assessed by the trial court.

Now we come to the question of limitation which has been argued at considerable length on both sides before us. The compensation claimed is firstly in respect of 10 bales which were not delivered to the plaintiff and secondly in respect of the shortage or damage to the cloth which occurred in some of the bales delivered to the plaintiff. Learned counsel at first argued that Art. 30 would apply to the suit claim including the claim for 10 bales which were not delivered to the plaintiff and relies upon Union of India Vs. Amarsingn (2), Gangadhar Ramchandar, a firm, Vs. Dominion of India(4), Oudh and Tirhut Railway Vs. Mrs. Karamchand Parasram(5), and the Dominion of India Vs. Batehuramiah Chetty & sons(6).

In Union of India Vs. Amar Singh, (3) their Lordships did not finally decide the point whether Art.30 or Art.31 applied but it was assumed that Art. 30 applied.

In Gangadhar Ram Chandar's case, (4) the facts were that 240 bags of rape seed were booked and all the 240 bags were delivered but out of these 7 had been cut and there was a resultant shortage of 3 maunds and 35 seers. This case is quite distinguishable as it was not a case of non-delivery of goods.

(3.)IN Oudh and Tirhut Railways case (5), Desai J on facts found the loss of goods proved and therefore held that Art. 31 was applicable while Beg J. with whom Mukerjee J. agreed held that loss of goods was not proved and Art. 31 applied to the circumstances of the case. This case also is of no assistance to the appellant.
The Dominion of India Vs. Batchu Ramaials Chetty and sons (6), is also a case in which all the packages were delivered to the plaintiff but the contents were short and damaged.

In our opinion Art.30 applies to those cases where there is a loss or injury to the goods while Art.31 refers to cases of non-delivery or delay in delivery of the goods. As we have already observed that the appellants have failed to show that there was any of goods so far as the 10 undelivered bales are concerned. We hold that Art.31 would, properly apply to the plaintiff's claim for non-delivery of these bales.

The next contention of the learned counsel is that the plaintiff's claim is beyond time even if Art.31 applies to it. Art.31 of the Indian Limitation Act reads: - Description of suit. Period of Limitation. Time from which period begins to run. Art. 31. Against a carrier for compensation for non-delivery or delay in, delivering goods. One year. When the goods ought to be delivered. The argument proceeds on the ground that in cases falling under this Article time would begin to run from the date when the goods ought to be delivered, a phrase occurring in the third column of the Article. According to him the phrase 'ought to be delivered' denotes a period within which the goods in the normal course are delivered by the carrier where no date of delivery is fixed by contract. According to him the normal period which is required for a consignment to reach Bikaner from Bori Bundar is one moth to if months according to the statement of P. W. 4 Durga Shanker who was a goods clerk at Bikaner.

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