M.Y.EQBAL, J. - (1.) THIS appeal is directed against the judgment and decree dated 26th April, 1988 passed by Sub -Judge, Ist Court, Seraikella in Money Suit No. 33/60 of 1984 whereby he has dismissed the suit as barred by limitation.
(2.) THE plaintiff -appellant filed the aforementioned suit against the respondent -Railway Administration for realization of Rs. 51,612.43 paise being the loss and damages for short delivery of the consignment. Plaintiffs case is that on 15.7.1981 M/s. Ferro Alloy Corporation Ltd. booked the consignment under railway receipt No. 448609, invoice No. 3 from Garibidi railway station for its safe delivery to the plaintiff at Gamhariya railway station in South Eastern Railway. The consignment was booked under railway risk. The total valueof the consignment was Rs. 2,46,730.27 paise. The railway wagon was found in a broken condition in the destination station and consequently open delivery was taken on 17,8.1981. It is alleged that out of 361 bags 26 bags were found and delivered entirely empty. Consequently, short certificate was issued. The plaintiff, thereafter, served notice under Section 78B of the Indian Railways Act and also under Section 80, CPC and then instituted the suit. The defendant -respondent appeared and filed written statement taking various defences including that the suit is barred by limitation. The Court below, on the basis of the pleadings of the parties, framed the following issues : '(i) Is the suit as framed maintainable? (ii) Has the plaintiff got cause of action to sue? (iii) Is the suit barred by limitation? (iv) Whether the notices under Section 78B of the Indian Railways Act and under Section 80, CPC were served upon the defendants or its authority? (v) Whether the consignment was booked at railway risk and if whether the plaintiff is entitled to realise the amount as claimed for? (vi) Is the plaintiff entitled to any other relief?'
(3.) WHILE deciding issue No. (iv) the Court below has held that notices under Sections 78(B) of the Railways Act and Section 80 of the CPC were duly served upon the respondent. The Court below also decided issue No. (v) in favour of the plaintiff and held that the damage of the consignment and its loss took place due to misconduct and negligence of the Railway. However, issue No. (iii) with regard to limitation was decided against the plaintiff holding that open delivery of the consignment was taken on 17.8.1981 and the suit has been instituted on 5.11.1984. Accordingly, it is barred by limitation inasmuch as the suit has not been filed within three years from the date when the delivery was made to the plaintiff. The relevant portion of the finding of the Court below is reproduced hereinbelow : 'From perusal of the plaint it transpires that the open delivery of the consignment booked in favour of the plaintiff took place on 17.8.1981 as stated in para 5 of the plaint. The suit has been instituted on 5.11.1984. According to Article 10 of the Limitation Act the period of limitation is 3 years. Thus a plain reading of the plaint makes it clear that the suit was instituted after three years from the date when the delivery was made to the plaintiff on 17.8.1981. Therefore, I hold that the suit is hopelessly time barred. Thus, this issue is decided against the plaintiff.' ;