UNION OF INDIA Vs. GIRRAJ PRASAD
LAWS(RAJ)-1952-11-9
HIGH COURT OF RAJASTHAN
Decided on November 21,1952

UNION OF INDIA Appellant
VERSUS
GIRRAJ PRASAD Respondents


Referred Judgements :-

SECRETARY OF STATE VS. DUNLOP RUBBER CO. LTD. [REFERRED TO]
G.I.P. RAILWAY VS. RADHA KISHAN JAI KISHAN [REFERRED TO]
M.A.P. PALANNICHAMI NADAR VS. G.G. OF INDIA IN COUNCIL [REFERRED TO]
HARYAN COTTON MILLS CO. LTD. VS. B.B. AND C.I. RAILWAY [REFERRED TO]
GOPIRAM GAURI SHANKAR VS. G.I.R. RAILWAY [REFERRED TO]
FIRM NAWAB BOOT HOUSE VS. SECYOF STATE [REFERRED TO]
GOVERNOR-GENERAL IN COUNCIL VS. KASIRAM MARWARI [REFERRED TO]



Cited Judgements :-

SETH SURAJBHAN VS. UNION OF INDIA [LAWS(RAJ)-1954-2-14] [REFERRED TO]
UNION OF INDIA VS. BIKANER TEXTILES [LAWS(RAJ)-1960-5-11] [REFERRED TO]


JUDGEMENT

Dave, J. - (1.)THIS is an appeal by the defendant against the judgment and decree of the District Judge, Bharatpur dated the 24th November, 1949.
(2.)THE plaintiffs' claim in the trial court was that on the 30th November, 1946, a consignment of seventeen iron pipes belonging to them was despatched from New Delhi Railway Station to Bharatpur under Invoice No. 97 R. R. No. 7857/63, that the goods should have reached Bharatpur ordinarily on the third day but instead of the goods being sent to Bharatpur they were misdirected to Gwalior, that when the plaintiff went to Gwalior he was told by the Station Master that the goods will be despatched when open wagons would be available, that the goods could not be delivered till the date of the suit on account of negligence or carelessness of the Railway and that a decree for Rs. 1329/8/- should be given against the defendant to compensate the plaintiffs, for their loss. THE defendant traversed the suit and raised several objections, whereupon the following issues were framed - 1. Whether the cost of the pipes is Rs. 1329/8/- and the plaintiffs are entitled to recover them? 2. Whether notice under sec. 80 C. P. C. was issued? 3. Whether notice under sec. 77 Indian Railway Act was given? Was it necessary? What is its effect? 4. Has this court no jurisdiction to try this case? 5. Whether Sadhu Ram is a partner in the firm of Girraj Prasad Babu Lal? 6. Is the suit within time? 7. Has the plaintiff right to sue? 8. To what relief the plaintiffs are entitled? THE trial court decreed the entire suit. This case was once heard in appeal by another Bench of this Court in January, 1951. It was argued at that time by the defendant-appellant that the trial court had given no finding on issue No. 7 regarding the plaintiffs' right to sue and thereupon the case was remanded to the trial court after clarifying the issue in the following language: - "whether the railway receipt was endorsed by Nigam Brothers in favour of the plaintiffs and they had a right to sue?
Both the parties were permitted to adduce their evidence on this issue and it was further directed that the defendant should also be given an opportunity to produce evidence regarding the fact that the goods did not reach Gwalior. The court was required to send the record after its findings on this point. The trial court has recorded its opinion to the effect that the plaintiffs are the endorsees and the bearers of the Railway receipt and they are, therefore, entitled to file and maintain the suits against the defendants. This finding has not been challenged now by the learned advocate for the appellant. He has abandoned all other objections and concentrated his argument only on two issues namely No. 1 and No. 6. Issue No. 6 relates to the question of limitation and therefore, it would be proper to decide it first.

It is contended by the appellant's learned advocate that this case is covered by Art. 31 of the Indian Limitation Act, whereby the period of limitation provided for bringing the suit is one year from the date when the goods should have been delivered.

It has been argued that according to the plaintiff himself, the goods should have reached Bharatpur within three days and therefore, the goods should have been delivered there on the fourth day and the period of limitation should be computed from that time. The consignment was sent on the 30th November, 1946 whereas the suit was filed on the 26th November, 1949 and, therefore, it was clearly time barred. From the respondent's side, it has been replied that on the representation of the plaintiff, the railway was making enquiries, that it did not give its final reply or refusal earlier than one year before the institution of the suit and therefore, the suit was well within time. It was pointed out that on the 5th February, 1947, the plaintiff wrote a letter to the Chief Traffic Manager, B. B. & C. L. Railway, Bombay intimating him that the goods were not received at Bharatpur, that an inquiry should be made and an early reply be given to them. To this a reply from the office of the Chief Traffic Manager, Bombay was received in March, 1947 to the effect that the plaintiffs should supply full description and number of packages booked by them and also whether the consignment was booked by goods or passenger train. After this the plaintiff went on writing registered letters but there was no written reply received from the defendant. The plaintiff Girraj Prasad came to know on oral inquiries that his goods had reached Gwalior and so in December, 1948 he went there. The Station Master told him that the goods will be sent when open wagons would be available. This showed that the defendant did not refuse to deliver the goods till December 1948. It is further pointed out that in the written statement which was based on the information received by that time it was pleaded that full information about the; goods was not available, that the consignment could not be traced out till when and therefore, the defendant will supply further particulars if any further information is received. This showed that the defendant did not give a clear refusal to deliver the goods even to the date of the written statement, and, therefore, they could not plead limitation. It was further replied that the plaintiffs' claim was also for conversion of his goods by the defendant and, therefore, the suit was also covered by Art. 48 of the Indian Limitation Act which provided three years period from the time when the property is wrongfully taken or injured or when the detainer's possession becomes unlawful.

The first point which confronts us, therefore, is whether Art. 31 or Art. 48 of the Indian Limitation Act would apply to this case, and next we have to see that in case, Art. 48 is not applicable whether the suit was beyond limitation under Art. 31. With regard to the first point, the appellant's learned advocate has contended that the suit as brought by the respondent was one for non-delivery of goods and not for conversion. Respondent's learned advocate on the other hand has argued that he had taken both the pleas of non-delivery and conversion in his claim. We find that in para No. 5 of the plaint although the plaintiffs had said that the Railway was also responsible for detaining and wrongful misappropriation of the consignment, but this was said only in passing reference and paragraph Nos. 4 and 9 of the plaint show that the claim was based on the basis of non-delivery. In para 9, it was specifically mentioned that the cause of action arose from 15th December, 1946 when the respondent should have ordinarily delivered the goods. Even if it be assumed for sake of argument that: the plaintiffs had alleged conversion of goods on the part of the defendant the question arises whether Art. 31 or Art. 48 of the Indian Limitation Act would be applicable. Art. 31 provides for claim "against a carrier for compensation for non-delivery of, or delay in delivering the goods, "while Art. 48 is" for specific moveable property lost, or acquired by theft, or dishonest misappropriation or conversion, or for compensation for wrongfully taking or detaining the same".

It is thus clear that Art. 48 is a general article while Art. 31 can be applicable only against a carrier. In the case of G. I. P. Railway Co. vs. Radhakishan Jaikishan and another (1) (A. I. R. 1926 Nag. P. 57.), it was held that - "a suit against a carrier for compensation for non-delivery of goods is governed by Art. 31 whether the non-delivery is due to conversion or to any other reason. " It was further observed that - "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 some body else. "

This opinion was based on the reasoning that the legislature intended to provide specifically 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. It was also considered that Art. 31 was a special article while Art 48 or 49 would be excluded by these provisions on the principle of "generalia specialibus non derogant. " The same view was expressed in the case of Secretary of State vs. The Dunlop Rubber Co. , Ltd. , Delhi (1) (A. I. R. 1925 Lahore p. 478. ). The appellant's learned advocate has referred to a case of Firm Nawab Boot House vs. Secretary of State (2) (A. I. R. 1935 All. p. 156.) and argued that in that case Art. 48 Indian Limitation Act was held to be applicable in the case of a claim for compensation for conversion of goods. In that case the above mentioned decision of the Nagpur High Court in G. I. P. Railway Co. vs. Radhakishan Jaikishan and another (3) (A. I. R. 1926 Nag. p. 57.) was referred to, but it was not followed because the claim in the case before that court was considered to be definitely one for damages for tools. The suit in the present case is not one for tools, and therefore the aforesaid ruling would not apply to it.

We are of the view that the principle of "generalia specialibus non derogant" cannot be easily ignored and where a suit falls both within a general article and a special article the latter should prevail over the former. In the view which we have taken the present case is governed by Art. 31 of the Indian Limitation Act.

Now the next point which calls for determination is from what date the period of one year's limitation under Art. 31 should be computed in the present case. The appellant's learned advocate has referred to the cases of M. A. P. Palanichani Nadar vs. Governor General of India in Council, through General Manager, South Indian Railway Trichinopoly (4) (A. I. R. 1946 Mad. p. 133.), The Governor General in Council owning the Madras and Southern Maharatta Railway represented by its managing partner Ramchandra Hanu-mantha Rao (5) (A I. R. 1950 Mad. p, 438.), and the Governor General in Council vs. Kasiram Marwari (6) (A. I. R. 1949 Pat. p. 268.), while the respondent's learned advocate has referred to the following cases:

Haryana Cotton Mills Company, Ltd. , Bhiwani vs. B. B. and C. I. Railway Co. , Bombay (7), and Gopi Ram Gouri Shankar vs. G. I. P. Railway Co. (8 ).

In the case of Secretary of State vs. Dunlop Rubber Co. , Ltd. , Delhi (2), it was held that - "under Art. 31 time runs from the date on which the goods ought to be delivered, and the question as to when the recovery of the plaintiff's goods became hopless is immaterial. "

In the next Lahore case of Haryana Cotton Mills Company, Ltd. , Bhiwani vs. B. B. and C. I. Railway Co. , Bombay (7) (A. I. R. 1927 Lah. p. 471.), the goods were consigned for carriage to railway, but they were not delivered to the consignee even on demand and further there was refusal on the part of the railway to give information as to the fate of the goods. It was held that "cause of action for such a suit arises when the railway refused, after reasonable time, to deliver the goods. "

(3.)IN the case of Gopi Ram Gouri Shankar vs. G. I. P. Railway Co. (8) (A I. R. 1927 Pat. p. 335.), four bales out of six bales consigned by the plaintiff were deli-vered on a certain date while the others could not be delivered and therefore, he had brought a suit for compensation. Under these circumstances, it was held that - "in a suit for non-delivery, where no portion of the consignment has been delivered, it is sometimes necessary to take evidence on the question of when the consignment ought to have been delivered, which must in any case be regarded as a question of fact, but 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 ought 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. "
In the case of M. A. P. Palanichami Nadar vs. Governor General of India in Council, through General Manager,, South Indian Railway, Trichinopoly (1) (A. I. R. 1946 Mad. p. 133.), relied upon by the appellants' learned advocate, a part of the consignment had been delivered on an earlier date and a part remained to be delivered in respect of which the railway company after making inquiries for a long time extending over a year - finally informed the consignee that the undelivered articles were not received. It was held that - "time to institute suit against the railway company for compensation of lost articles under sec. 80, Railways Act (1890) began to run under Art. 31, Limitation Act, from after a definite refusal or declaration of inability to deliver the lost goods. "

In the next Madras case Governor General in Council vs. Messrs Khadi Mandali (2) (A. I. R. 1950 Mad. p. 438.), the same view was followed. On the basis of these decisions, it has been contended by the respondent's learned advocate that since the appellants did not give a definite refusal or declaration of inability to deliver the goods they cannot plead limitation under Art. 31. We think that this reason is not correct.

In the case of the Governor General in Council vs. Kasiram Marwari (3) (A. I. R. 1949 Pat. p. 268.), relied upon by the respondent's learned advocate himself, it was observed by the learned Judges that - "the question "when the goods ought to be delivered" is essentially a question of fact. There is no 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 circumstance|s of the contract and the conduct of the parties. " Where no date was specified for delivery of goods consigned by railway and the correspondence between the parties showed that the consignor had received a reply from the railway authorities that the matter was being investigated and it was patent that the plaintiff had filed the suit tor damages for non-delivery within one year from the railway's refusal to deliver the consignment, it could not be held that the plaintiff had brought the suit more than a year from the expiry of the reasonable time within which the goods should have been delivered. "

We respectfully agree with these remarks and in our view the said observation if we may say so, lays down the correct law. Art. 31 of the Indian Limitation Act provides that the period of one year's limitation would run from the time "when the goods ought to be delivered. " The time when the goods ought to be delivered would be a question of fact in every case and it must be determined by the court with reference to the particular circumstances before it. In every case it cannot be said that the period of limitation would not begin to run unless there is a definite refusal or declaration of inability to deliver the goods by the opposite party. The language of the article should be interpreted as it stands and not as one may wish it to be. In cases where a specific time is agreed upon by the parties to the contract, the time when the goods ought to be delivered would be the time mentioned in such agreement, but where no such period is agreed upon and where there are no special circumstances, the time and the date when the goods ought to be delivered by the carrier should be the date when the goods should reach their destination in the usual and reasonable period of transit. For instance, if the goods consigned from a certain place by the consignor reach the place of the destination in the usual course, say within fifteen days, the goods ought to be delivered within that period and if the plaintiff in such case remains silent for more than one year from such date, he cannot with any justification argue after the expiry of that period that because the carrier did not refuse to deliver the goods, he cannot plead limitation. If,however, the consignor within the period of one year informs the carrier about the non-delivery of goods and the latter promises to deliver it after investigation & puts off the consignor from filing his claim then it is to be determined in each case as to when the goods ought to have been delivered by the carrier after the said reply. The starting point of limitation in such cases would depend upon further negotiations between the parties. In the Madras cases referred to above, it appears that there was a regular correspondence between the parties and since the defendant assured the plaintiff to make inquiries about the goods it was held that the time of limitation begins to run from after a definite refusal or declaration of inability to deliver the goods.

In the present case, the plaintiff-respondent had himself mentioned in his plaint that the goods which were consigned from Delhi on the 30th November, 1946 ought to have been delivered to him at Bharat-pur by the 15th December, 1946 because the consignment should have normally reached there before that period. The suit was filed on the 26th February, 1949 that is, more than two years and two months after the period when the goods ought to have been normally delivered and therefore, unless it is shown by the plaintiff that he was put off by the defendant from making a claim within a year his suit would be clearly time barred. The plaintiff respondent's learned advocate has asked that his client wrote to the Chief Traffic Manager Bombay a letter on the 5th February, 1947, and the Chief Traffic Manager, Bombay, sent its reply to him on the 20th March, 1947. After this the plaintiff kept on writing several letters but no reply was received and the plaintiff put off the claim because the defendants never gave a refusal. It may be pointed out that in the reply of the Chief Traffic Manager Bombay dated the 20th March, 1947 he had simply enquired from the plaintiffs to supply to him "full description and number of packages booked by him and also whether they were booked by goods or passenger train. " This letter does not show if the Chief Traffic Manager, Bombay had assured the plaintiff to make inquiry about the goods or that he had done anything to put off the plaintiff from filing his claim. He had simply asked for information from the plaintiff. At the most it may be said that the plaintiff could wait for a reasonable time after this letter, but when no further letter was received from the defendants by him, there was no justification for him to wait for an indefinite time. After this all the correspondence was one sided, that is on behalf of the plaintiff and he cannot justify the ex-tention of the period simply because he continued to write to the defendants. The plaintiff cannot extend the period by his own conduct; it should be the conduct of the opposite party.



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