R.P.Mookerjee, J. - (1.) The plaintiff appellant had despatched on 14/4/1943 a consignment of goods consisting of 264 tins of cocoanut oil from Sahebbazar, a station on the Calcutta Port Rly. to Bankura a station on the Bengal Nagpur Ry. On April, 23, delivery was obtained by the consignor as the goods had been booked to self & it then transpired that 44 of the tins had been cut open & were completely empty. The total quantity of oil of which delivery could not be obtained was assessed before delivery of the remaining tins. On 6/4/1944, the present suit was filed claiming damages for the loss of the quantity of oil which had not been delivered. Before the suit was filed notice under Section 77. Railways Act, had been served on 15/1/1944. The claim was preferred against the Comrs. for the Port of Calcutta as also the Bengal Nagpur Rly. Administration & during the pendency of the suit the Governor-General in Council was also brought on the record as it was stated that the administration of the Bengal Nagpur Rly. had been taken over by, Govt. The Comrs. of the Port, pleaded that the loss or the damage had not occurred when the wagon in question was in the custody of this deft. Allegations of negligence & misconduct were also denied. It was further stated that as the consignment was covered by Risk Notes (A) & (B) & the wagon had been loaded by the consignor himself, the present action was not maintainable. Defence was also entered on behalf of the Administration for the Bengal Nagpur Ry, & subsequently by the Governor General in Council, but the defence as entered by this deft, need not be stated as the two Cts. have come concurrently to the conclusion that the loss did not occur while the wagon was in charge of the Bengal Nagpur Rly. Administration. The suit was decreed in part against deft. 1 alone.
(2.) An appeal was taken by the Comrs. to the Court of the Subordinate Judge, Bankura. During the hearing of the appeal, a new point was taken on behalf of the applt. It was maintained that the plaintiff's claim was barred under Section 142, Calcutta Port Act, III [3] of 1890 as limitation had begun to run from 23/4/1943 & the present suit had not been filed within three months from that date. The learned Subordinate Judge considered whether the point of limitation could be raised at the appellate stage & having found in favour of the deft. applt. the claim was found to have been barred. The suit was accordingly dismissed. The pltf. has preferred the present appeal.
(3.) It is contended on behalf of the applt. in the first place that the provisions contained in Section 142, Calcutta Port Act, are not attracted in the present case as under Section 112 of the same Act the provisions of the Indian Railways Act, 1890 are made applicable as also certain provisions of the Indian Contract Act. It is urged that Section 77, Railways Act, would be applicable. Under that section, notice in writing is to be given within six months from the date of the delivery of the goods which were placed in charge of the Rly. for carriage Section 142, Calcutta Port Act, which limits the period of limitation to three months only is, therefore, wholly inapplicable. Article 31, Limitation Act, will be attracted & the suit is accordingly within time.;