Jagmohan Lal, J. - (1.) The only point that was argued by Sri N. Banerji learned Counsel for the appellant in this case was that the suit was barred by limitation. His contention was that it was not a case of non-delivery of goods but was a case of losing or injuring the goods and as such it would be governed by Article 30 of the Limitation Act, 1908. Under that Article the prescribed period of filing the suit was one year from the date when the loss or injury occurred. It is argued on behalf of the appellant that evidently the alleged loss or injury has occurred in April, 1956 and as such the suit filed on 4-12-1959 was of the appellant had been accepted by the trial court but the barred by limitation under this Article. This contention owner appellate court took a different view. According to that court the suit was governed by Article 31 and not Article 30.
(2.) The brief facts so far as relevant for determining this controversy were that a consignment consisting of a bale of cloth had been booked from Kanpur for Colonelganj station in Gonda district on 13-4-1956. On 16-4-1956 a bale reached Colonelganj which, according to the railway administration, bore the number and mark of the railway receipt under which the plaintiff's consignment had been booked. The plaintiff, however, contended that it was not that consignment which had been booked by him but some different one and he insisted on an open delivery. On opening this bale it was found that instead of cloth it contained gunny bags and its weight was also much less than the weight of the consignment that had been booked. The plaintiff, therefore, did not take delivery and he made a complaint to the railway administration: The railway administration through their replies to the repeated letters sent by the plaintiff on the subject had been representing that the matter was under investigation and a definite reply would be given to the plaintiff regarding this consignment after the investigation had been completed. The last of such letters was dated 24-10-1958. The plaintiff then served a notice under Sec. 77 Railways Act and Sec. 80, C.P.C. on the railway administration demanding delivery of his consignment or its value. In reply to this notice the railway administration repudiated its liability by means of their letter dated 3-8-1959. It was under these circumstances that the plaintiff filed this suit on 4-12-1959.
(3.) The lower appellate court has further found as a fact that the bale which had reached Colonelganj station on 16-4-1956 and was offered to the plaintiff was not the consignment that had actually been booked but it was some different consignment. This is a finding of fact which has been recorded by the lower appellate court on appraisal of evidence and it cannot be assailed in this second appeal.;