Das Gupta, J. - (1.) The only question raised for consideration in this appeal is whether the suit brought by the appellant for recovery of a sum of money as compensation for non-delivery of a consignment of Iron or Steel Files consigned at first from Karachi to Ladnum station and thereafter rebooked from Ladnum to Howrah Station was barred by limitation. The courts below found that the appellant would have been entitled to a decree for the amount claimed except for the fact that notice under Section 77 of the Indian Railways Act had not been properly served and also because the suit was barred by limitation. In that view, the suit was dismissed by the trial court and that dismissal was upheld by the court of appeal below,
(2.) Before us Mr. Bose who appeared for the respondent Union of India seated that he would not press the objection under Section 77 of the Indian Railways Act but would contend that the courts below were right in their conclusion that the suit was barred by limitation.
(3.) It is not disputed that Article 31 of the Limitation Act is applicable. That Article provides for a period of one year from the time when the goods ought to be delivered for such a suit for compensation for non-delivery. The real question in this case is what was the time when the goods ought to have been delivered. It is settled law that by the words "the time when the goods ought to be delivered" will not be interpreted by the courts to mean the time when according to the normal speed of delivery of similar goods the goods should be expected to be delivered. Where the carrier has agreed to deliver the goods by a certain date, that date may well be taken to be the time when the goods ought to be delivered. Even where no such date has been agreed upon, but there is a schedule from which it is possible to ascertain when consignments from one station would ordinarily be delivered at another station, there would be scope for arguing that the expiry of this period by which the consignment should ordinarily be delivered according to the schedule is the point of time which is meant by the time when the goods ought to be delivered. Where, as in the present case, no time for delivery has been agreed upon nor there is any schedule according to which the time of delivery can be ascertained, it will always be a difficult task to ascertain the time when the goods ought to be delivered. It is useful to remember that the time which a carrier like a Railway would take to deliver any consignment of goods depends on a number of variable factors; the availability of a sufficient number of wagons, the state of the Railway track, the probabilities of the train being delayed at intermediate stations will all play their part in deciding the time that will be taken for delivery. This, in my opinion, is the real reason behind the several decisions in the courts that the time when the goods ought to be delivered does not mean the time when they ought to be delivered in the "normal course". It was pointed out in Jainarain v. The Governor General of India, it has been held in a series of cases both in this High Court and other High Courts that "Where no time is fixed for delivery and where after the discovery of non-delivery, correspondence ensued between the consignor and the Railway authorities in the course of which the Railway goes on promising enquiries and never denying any liability, limitation does not begin to run till the correspondence ends either fruitlessly or with a final statement by the Railway of its inability to deliver or a final repudiation of the consignor's claim." It will in my opinion be wrong, however, to read into this statement of the law a view that there must be a final repudiation of the consignor's claim for compensation before the time when the goods ought to be delivered can be taken to have arrived. There may be cases where the correspondence shows that the Railway makes a definite statement that the goods are ready to be delivered. The mere fact that in such a case correspondence thereafter continues as regards any claim for compensation still pursued by the consignor cannot produce in my opinion any effect that the time when the goods ought to be delivered has not already arrived. It is only when the correspondence shows that the Railway has not finally stated either that the goods are ready to be delivered or that the goods will not be delivered at all that the question of a final repudiation of the claim might arise. Where there is a definite statement by the Railway that the goods are ready to be delivered, the date when that statement is made rightly or wrongly must, in my opinion, be taken to be the time when the goods ought to be delivered." Turning now to the correspondence in this case, we find that on the 31st of July 1950 the consignor through his lawyer wrote to the Chief Commercial Manager, East Indian Railway stating that when his representative went to the Howrah Station to take delivery of the goods on receipt of a Railway Receipt on the 11th July 1950 he was offered two broken and partly empty cases which were not really covering the goods. It was further stated that the Value of the goods including all charges and compensation was also mentioned and a request was added in these words: "Kindly file my clients' claim as detailed and settle same earlier either in exchange of the goods covered in Railway Receipt or pay value thereof in the alternative." The Chief Commercial Manager replied to this letter on the 22nd September 1950 in these words: "Ref: Your letter dated 3lst July 1950. The consignment under reference is available for delivery. I shall be glad if you please contact my Claims Inspector (Survey) Howrah who has instructions to grant you delivery." The consignor's reply to this letter was sent on the 4th of April 1951. There he reiterated his assertion 'that the goods that had been offered to him for delivery were not the goods which had been sent. He stated: "We were quite willing to take delivery of the goods as per your above Tetter and we found all the cases were broken and empty and this fact will be verified by your claims inspector in his report and so he could not manage to give us delivery and for this reason the case has been referred to you for consideration." The letter ended with this request: "Please pass our claim for Rs. 3240/- (Value of goods 3025/-, Freight and Demurrage paid by us Rs. 129/- and Rs. 85/6/-) plus interest until payment is received. In default of compliance within a week from, date the matter will be handed over to our Solicitors for necessary action, please note." The Chief Commercial Manager replied to this letter by his letter dated the 2nd June 1951 in these words: "Ref. Your letter dated 4-4-51. I have to inform you that the matter is still under enquiry with the Jodhpur Railway and I shall revert to the subject as soon as my enquiries are complete." It appears that the Chief Commercial Manager again wrote to the Consignor on the 28th October 1951 with reference to the letter dated the 4th April 1951 in these words: "The consignment in question has been lying undelivered since 27-4-50. Please note that if no instructions as to its disposal are received or delivery effected within 15 days from the date of this letter and all charges due thereon are paid, arrangements will be made to dispose of the same under Sections 55 and 56 of the Indian Railways Act IX of 1890, In the event of sale if the amount due to the Railway is not covered by the sale proceeds we shall look to you to make good the loss. Detail of charges:-- (1) Wharfage accrued upto 17-9-51. Rs 496- 8-0. (2) 4 Mds at As-/4/- per md. per day from 18- 9-51 until removal or sale of the consignment. As regards your contention that something other than the articles booked were found in the cases, I do not see my way to accept liability on this score as the contents were not examined at the forwarding end where the consignment had originally been lying undelivered and was rebooked from there at the sender's request.";