BOOTA MAL Vs. UNION OF INDIA

JUDGEMENT

(1.) THE following Judgment of the court was delivered by :

(2.) THIS appeal on a certificate granted by the Punjab High court raises a question as to the interpretation of Art. 31 of the Limitation Act. The appellant had brought a suit in forma pauperis for recovery of a sum of over Rs. 24,000.00 from the Union of India in connection with nondelivery of certain goods booker with the railway. The appellant was trading in Crujranwala, which is now in Pakistan, under the name and style of G. M. Bootamal and Company and also under the name and style of Gopal Metal Rollin(, Mills and Company he being the sole proprietor of both. On 5/08/1947, just before the partition the appellant handed over two consignments to the North Western Railway at Gujranwala for carriage to Jagadhari and these consignments were booked on the same day by two railway receipts. The consignments however did not reach Jagadhari. The appellant made inquiries and when no delivery was made he made a claim on the railway on 30/11/1947, for the price of the goods not delivered. Later, on 22/01/1948, the appellant gave notice to the railway under s. 80 of the Code of Civil Procedure in which it was said that the goods booked under the two railway receipts had not been delivered in spite of repeated reminders and demands from the officials concerned. It was further said that the value of the goods booked was Rs. 24,189/4.00 and that the railway was liable for this loss which was due to the negligence of the railway. It was further stated that the cause of action arose on August 21 and 30, 1947 and on subsequent dates when the appellant met with refusal. It was finally said that if the amount was not paid a suit would be brought against the railway. It seems however that in spite this notice correspondence went on between the appellant and the railway and on 1/12/1948, the railway informed the appellant that the two consignments were still lying at Gujranwala and that their despatch had been withheld by the North Western Railway due to restrictions imposed by the Pakistan government on export. The railway therefore requested the appellant to secure a permit from the Chief Controller , Exports and Imports, Karachi and also from the Custodian of Evacues Property West Punjab and to send the same to the Station Master Gujranwala to enable the goods being sent to Jagadhari. The appellant was also told that in case he failed to produce the requisite permits the consignments would be disposed of in accordance with the law in force in Pakistan, and the railway administration would not be responsible for any loss, damage or destruction to the goods. THIS seems to have been the end of the correspondence between the railway and the appellant, and the appellant brought the present suit on 13/12/1949.

(3.) LET us first see what these words in Art. 31 mean on a plain grammatical construction. It would be noticed that Art. 31 as it now stands after the Limitation Act of 1877 and 1909, governs two class of cases, namely, (i) where there has been no delivery of goods and (ii) where there has been delay in delivering goods. In both class of cases the time begins to run from the date when the goods ought to be delivered. These words therefore in column three of the Article must have a meaning which will apply equally to the two situations envisaged in column one. Whether there has been nondelivery or there has been delay in delivery, in either case limitation would run from the date when the goods ought to be delivered. Now it is not in dispute that if there is a term in a contract of carriage fixing when the goods have to be delivered that would be the time `when the goods ought to be delivered` within the meaning of the words used in the third column of Art. 31. The difficulty however' arises in that class of cases where there is no term in the contract of carriage, whether express or im. plied, from which the date on which the goods have to be delivered, can be inferred. It is in these cases that the question of interpretation of the words in the third column of Art. 31 seriously arises. But these words can only mean one thing whether it is a case of late delivery or of nondelivery. Reading the words in their plain grammatical meaning they are in our opinion capable of only one interpretation, namely, that they contemplate that the time would begin to run after a reasonable period has elapsed on the expiry of which the delivery ought to have been made. The words `when the goods ought to be delivered` can only mean the reasonable time taken (in the absence of any term in the contract from which the time can be inferred expressly or impliedly) in the carriage of the goods from the place of despatch to the place of destination. Take the case, where the cause of action is based on delay in delivering the goods. In such a case the goods have been delivered and the claim is based on the delay caused in the delivery. Obviously the question of delay can only be decided on the basis of what would be the reasonable time for the carriage of goods from the place of despatch to the place of destination. Any time taken over and above that would be a case of delay. Therefore, when we consider the interpretation of these words in the third column with respect to the case of non. delivery, they must mean the same thing, namely, the reasonable time taken for the carriage of goods from the place of despatch to the place of destination. The view therefore taken by some of the High courts that the time begins from the date when the railway finally refuses to deliver cannot ,be correct, for the words in the third column of Art. 31 are incapable of being interpreted as meaning the final refusal of the carrier to deliver. We may in this connection compare-the language used in the third column of Art. 31 with certain other articles of the Limitation Act which will show that. where the legislature intended that time should run from the date of refusal it has used appropriate words in that connection. For example, in Art. 18, which provides for a suit for compensation against government when the acquisition is not completed, the time begins to run from `the date of the refusal to complete`. Similarly, in Art. 78 which provides for a suit by the payee against the drawer of a bill of exchange which has been dishonoured by nonacceptance, time begins to run from `the date of the refusal to accept`. Again in Art. 131 which provides for a suit to establish a periodically recurring right,' the limitation begins to run `when the plaintiff is first refused the enjoyment of the righe'. Therefore, if the legislature intended that in case of non-delivery, the limitation would start on the final refusal of the carrier to deliver, such a case would have been provided for by a separate article and we would have found appropriate words in the third column thereof. The very fact that Art. 31 deals with both cases of non-delivery of goods and delay in delivering the goods shows that in either case the starting point of limitation is after reasonable time has elapsed for the carriage of goods from the place of despatch to the place of destination. The fact that what is reasonable time must depend upon the circumstances of each case and the further fact that the carrier may have to show eventually whatis the reasonable time for carriage of goods would .in our opinion make no difference to the interpretation of the words used in the third column of Art. 31. Nor do we think that their could be generally speaking any question of estoppel in the matter of the starting point of limitation because of any correspondence carried on between the carrier and the person whose goods are carried. But, undoubtedly, if the correspondence discloses anything which may amount to an acknowledgement of liability of the carrier that will give a fresh starting. point of limitation. A we have said already, the words in 'the third column refer to reasonable time taken for the carriage of goods from the place of despatch to the place of destination and this reasonable time generally speaking cannot be Affected by the subsequent conduct of the parties. We are therefore of opinion that the answer given by the full bench in the case of Aminchand Bholanath (supra) that `the limitation in such cases starts on the expiry of the time fixed between the parties and in the absence of any such agreement the limitation starts of the expiry of reasonable time which is to be decide according to the circumstances of each case,` is correct.