- (1.) This rule is directed against an order passed by the Second Bench of the Court of Small Causes, Calcutta. The suit is for recovery of a sum of Rs. 2298/- towards the price of goods that had not been delivered to the plaintiff, Iron & Steel Co., Ltd. The plaintiff's case is that the Company is the owner of the suit consignment covered by Invoice No. 309, R R. No. 424412 dated 16th February, 1968 Ex-Burneo Siding to KP Dock. The consignment consisted of three wagons of Pig Iron, one of the wagons being No. SEKC 42995. It is alleged that the consignment was correctly weighed by the servants and agents of the Eastern Railway in their Railway weighbridge and the weight of the said consignment was found to be 24.400 Metric Tonnes. The weight was so recorded in the original RR and Railway Risk rate of freight was collected on the said weight. It is alleged that the consignment was intended for export by shipment by SS Angella through Messrs. Mahindra and Mahindra Limited, the handling agents of the plaintiff. It is alleged that the wagon carrying the suit consignment did not reach Kidderpur Dock in time due to negligence on the part of the Railway and as such could not be exported. The wagon was ultimately delivered to the plaintiff through its agent, Mahindra and Mahindra on 19th March, 1968. Prior to delivery the wagon was reweighed and a shortage of six tonnes was detected. The value was Rs. 2298/-. It is alleged that the shortage occurred due to the negligence on the part of the-Railway Administration or their servants. Notice was given under section 78B of the Indian Railways Act and the defendant having failed and neglected to compensate to the plaintiff for the said loss, the plaintiff has filed this suit for recovery of the aforesaid amount. It is alleged that the plaintiff stated in the plaint that the cause of action of the suit arose on 16th February, 1968 and thereafter from day to day up to 17th March, 1968 when the consignment was reweighed and delivery was given. The defendant Railway contested the suit denying, inter alia, all the allegations contained in the plaint and that the notice was bid and there was no loss of consignment and that the claim of the plaintiff was barred by limitation. The Courts below held that the suit was barred by limitation. Hence the Rule.
(2.) Mr. Arual Kumar Ghosal on behalf of the petitioner contended that the Courts below were wholly wrong in throwing out the suit as barred by limitation. It is argued that the period of limitation began to run from 19th March, 1968 when the delivery was given to the plaintiff's agent and the period of limitation must be computed from 19th March, 1968 and that Art. 10 of the Limitation Act, 1963 is applicable in the facts and circumstances of the present case. The point for consideration is whether Art. 10 or 11 of the Schedule to the Limitation Act, 1963 is applicable Art. 10 and 11 run as follows:- JUDGEMENT_29_LAWS(CAL)4_1975_1.html Article 11 provides for limitation for suit for compensation for nondelivery of, or delay in delivering the goods. In the present case there cannot be any doubt that the goods were not delivered. It appears to me that the short delivery was made in respect of the consignment and if it is a short delivery, Art. 11 and not Art. 10 is applicable. In my view, the Courts below rightly applied the principles laid down in (1) Boota Mal's case as out of the three consignments covered by the RR two were delivered to the petitioner on 18th February, 1968. As a part of the goods was delivered on 18th February, 1968, Art. 11 of the Limitation Act applied in the facts and circumstances of the cast. In my opinion, the words, "when the goods ought to have been delivered" must mean that the goods ought to have been delivered in the facts and circumstances on 18th February, 1968. The Supreme Court in the case reported in AIR 1962 SC 1716 ( Boota Mal v. Union of India) held that when the goods ought to be delivered would mean that a reasonable time must elapse for the carriage of goods from the place of dispatch to the place of destination and that the fact what is a reasonable time must depend upon the circumstances of each case and the further fact that the period of limitation on the expiry of reasonable time for the delivery of the goods ought to be delivered which is to be decided according to the circumstances of each case. In the present case a part of the goods was in fact delivered on 18th February, 1968. Therefore the balance of the goods ought to have been delivered in the facts and circumstances of the present case on 18th February, 1968 and as such in my opinion, the Courts below were right in applying the Article 11 of the Limitation Act. Mr. Ghosal relied upon a case reported in 59 C1VN 278 (Union of India v. Messrs. Gujrat Tobacco) in support of his contention. It has been held in the said case that for compensation for losing or injuring of goods carried by the carrier, time for claim for loss or injury of goods begins to run when the loss or injury occurs. In the said judgment it has also been held that as the lose or injury occurred during the transit of the goods by the carrier, the onus to prove the date of loss or injury is on the railway and if the railway fails to discharge the onus, the date of delivery to the party should betaken as relevant date of "loss or injury'' as the starting point of the limitation under Art. 30 of the old Limitation Act. Art. 30 of the old Limitation Act is now Art. 10 of the new Limitation Act excepting that the period of limitation at the moment is 3 years in place of one year under the old Act. In my opinion, 59 CWN 278 (Union of India v. Messers. G. Tobacco) does not support the contention put forward by Mr. Ghosal. Admittedly it is a case of non-delivery of goods and the limitation starts from the time when the goods ought to have been delivered. In the present case the goods ought to have been delivered on 18th February, 1968 when two wagons were delivered to the petitioner and as such, in my opinion, Art. 11 applies and the suit was filed beyond 3 years. The rule must, therefore, stand discharged. There will be no order as to costs.;