Hegde, J. - (1.) This appeal by special leave arises from a suit for recovery of a sum of Rs. 29,254.86 P and interest. The appellants are original defendants Nos. 1 and 2 in the suit. Our of several issues framed in the suit, two issues were tried as preliminary issues. They are:(1) whether the suit is barred by limitation and (2) whether the plaintiff has any subsisting cause of action. The trial Court decided both those issues in favour of the appellants. But the High Court in revision set aside the decision of the trial Court and decided both those issues in favour of the plaintiff. Hence this appeal.
(2.) The suit in question came to be filed under the following circumstances. A consignment of tin plates was shipped for the plaintiff at New York in the sip belonging to the 1st defendant under a clean bill of lading, to be delivered at Cochin. It consisted of 15 skids of tin plates of gross weight 39100 lbs. At New York, the goods were shipped in s. s. "Examinister" (Flying Cloud) but at Colombo they were transhipped to another ship s. s. "Azumasan Maru". That ship arrived at Cochin on September, 1, 1967 and left the port on September 7, 1967. But the goods were not delivered to the plaintiff. They had been mixed up with other goods and they were no discovered for quite a long time. On May 9, 1968, the second defendant conducted a survey at quay side. Another survey was conducted by the 2nd defendant at the plaintiff's godown on June 4, 1968. The survey disclosed that there was short delivery of 4.349 metric tons of tin plates and that the tin plates weighing 11, 182 metric tons were rusty and damaged. Only 1,932 metric tons of tin plates were in sound condition. The delivery of the available goods was given to the plaintiff on May 9, 1968. The suit was filed on May 24, 1969. Between May 9, 1969 and May 23, 1969 the Court was closed for summer vacation. The question for consideration is whether the suit is barred by limitation and the plaintiff has no subsisting claim against defendants Nos. 1 and 2. Defendant 2 is said to be the agent of defendant No. 1.
(3.) Paragraph 6 of the Article III in Schedule to the Indian Carriage of Goods by Sea Act, 1925 (XXVI of 1925) provides tus: "Unless notice of loss or damage and the general nature of such loss or damage be given in writing to the carrier or his agent at the port of discharge before or at the time of the removal of the goods into the custody of the person entitled to delivery thereof under the contract of carriage or if the loss or damage be not apparent, within three days such removal shall be prima facie evidence of the delivery by the carrier of the goods described in the bill of lading." "The notice in writing need not be given if the state of the goods has at the time of their receipt been the subject of joint survey or inspection." "In any event the carrier and the ship shall be discharged from all liability in respect of loss or damage unless suit is brought within one year after the delivery of the goods or the date when the goods should have been delivered." "In the case of any actual or apprehended loss or damage, the carrier and the receiver shall give all reasonable facilities to each other for inspecting and tallying the goods.";