D.Basu, J. - (1.) The suit out of which this second appeal arises was instituted by the plaintiff respondent No. 1 against two defendants, the Union of India representing old B. N. Railway at present Eastern Railway and the Commissioners to the Port of Calcutta, claiming compensation to the tune of Rs. 60,64,00 (Rupees Six Thousand and sixty-four) for non-delivery of two consignments of goods from Barajamda to the Kidderpore Dock described as K. P. Dock under the control of the Commissioners on the allegation the two consignments which were despatched on the 24th May, 1951 and the 5th June, 1951 respectively and were to be delivered by the Port Commissioners at the dock were not delivered at the usual date and that on the 5th December, 1951, the Port Commissioners informed the plaintiff respondent that the consignment in question had been mis-delivered by them to one H. K. Das Mangilal. The plaintiff pleaded that this was due to the negligence of the defendants and claimed damages against both. Both the defendants contested the suit. The trial Court dismissed the suit against the Railway and decreed the suit for Rs. 5652-4-0 (Rupees Five thousand six hundred and fifty two and annas four) against the Port Commissioners, rejecting their plea that the suit was barred by Section 142 of the Calcutta Port Act.
(2.) On appeal by the Port Commissioners, the Court of appeal below dismissed the appeal on the finding that Section 142 of the Act was not attracted at all inasmuch as that section extended only where the cause of action arose out of some positive act having been done by the Port Commissioners and not on account of some 'omission' as in the instant case to do something. This point has been reiterated on behalf of the respondent before us. But this question was thoroughly discussed by a Division Bench of this Court (to which one of us was a party) which was reported in (1964) 68 Cal WN 814, Commrs. for the Port of Calcutta v. Abdul Rahim Oosman and Co. After discussing all the previous authorities available and, in particular, certain Privy Council decisions, it was held that the expression 'act done' also included any omission to perform a duty within the scope of the statutory functions of the Port Commissioners. In fact, the Privy Council had in the case of Commrs. for the Port of Calcutta v. Corpn. of Calcutta, in 41 Cal WN 1317 = (AIR 1937 PC 306), specifically said that a case of omission to deliver goods would also come within the protection of Section 142 of the Act. It was further held that where Section 142 was applicable the Court could not go into the merits and either into questions of negligence and other circumstances which would ordinarily fasten liability upon a bailee. In short, Section 142 provided a complete defence or shield to the Port Commissioners in cases where it was applicable and the statutory period referred thereto had elapsed. This view taken in view of the case in 68 Cal WN 814 has been affirmed by another Division Bench in the case of the Commissioners for the Port of Calcutta v. Khaitan Sons and Co. Ltd. . We have not been referred to any other authority relating to this point but on behalf of the respondent we have been referred to certain other decisions relating to the cause of action which is the second point with which we have to deal with in this appeal.
(3.) In the plaint it was stated that the plaintiff's cause of action arose on the 5th December, 1951 when the Port Commissioners wrote a letter to the plaintiff informing him that the consignment had been mis-delivered to the said Mangilal. That letter in Ext. 5(a) before us curiously not only stated the fact of mis-delivery but asked the plaintiff to have the matter settled amicably with that third party who was in no way obliged to do that with respect to the plaintiff. Dating the cause of action from the 5th December 1951, there is no doubt that the suit was barred by limitation under Section 142 of the Port Act inasmuch as it had been filed on the 18th July, 1952, which was more than seven months from the 5th December, 1951. Nevertheless, it has been argued rather ably by Mr. Mukherjee, on behalf of the respondent, that though the plaintiff did not get delivery of the consignment within a reasonable time from the date of despatch of the goods which would have normally been delivered at the destination in question within a week or so, in the facts of the case the Port Commissioners have never denied their liability or refused to deliver the goods explicitly. From the letter in question which was referred to earlier Mr. Mukherjee argues that this amounted to telling the plaintiff that the matter was under enquiry and that, therefore, there has not been any refusal to deliver the goods as yet. Even assuming that that was the law it is not possible to construe the terms of the letter to mean that the Port Commissioners were going to hold the enquiry on the matter because they advised the plaintiff himself to settle the matter with the third party, which was nothing but a polite way of denying their own liability.;