UNION OF INDIA Vs. NEW INDIA ASSURANCE CO LTD

JUDGEMENT

(1.) This is defendant's appeal against whom the suit was brought for compensation on account of short delivery of certain goods sent from Calcutta to Tatanagar, The consignment was booked on the 8th February, 1962, and arrived and was unloaded at the destination station Tatanagar on the 12th February, 1962 when the wooden box in which the consignment came was found to have been damaged. The plaintiffs took open delivery on the 12th March, 1962, and after serving the notice under Section 80 of the Civil Procedure Code they instituted the suit on the 11th May, 1963. The plaintiffs' suit was decreed by the trial Court and affirmed by the appellate Court. Both the courts took the view on the question of limitation against the defendant and held that under Article 31 of the Limitation Act fold) corresponding to Article 11 of the new Act the suit was not barred by limitation. Against this the defendant Union of India has come in appeal before this Court.

(2.) Learned counsel appearing for the appellant contended that in this case on the facts found, the consignment arrived at the destination on the 12th February, 1962. That was therefore the date on which the goods ought to have been delivered. The mere fact that the plaintiff asked for open delivery and took such delivery on the 12th March, 1962 will not change the time when the goods ought to have been delivered. I find great force in this contention. In a case where the date of delivery is not stipulated in the contract itself, what would be the reasonable time for such delivery ought to be gathpred from the circumstances of a particular case. Here the actual receipt of the consignment at the destination is not known, the date when delivery was taken, whether it is open or otherwise may afford the clue as to the time when the goods ought to have been delivered so as to indicate the starting time of the period of limitation within Article 31 of the Limitation Act (old). In the Instant case, there can be no doubt whatsoever and that was also to the knowledge of the plaintiffs as deposed to by their witness No. 2 that the consignment arrived at the destination on the 12th February, 1962, that date therefore, on the facts of the present case is the time when the consignment ought to have been delivered to the consignee and that would be the starting time of the period of limitation of one year. Learned counsel referred to the case of Mukhi Lal Prasad v. Union of India, 1964 BLJK 882 to support his contention. There the consignment was booked on the 28th April, 1961 and it had reached the destination on the 18th May, 1961. The consignee refused to take delivery on that day when he found that there had been damage to the consignment. He asked for open delivery which was given on the 1st July, 1961. The suit for compensation was instituted on 1st September 1961. Following the principles laid down in the case of Boota Mal v. Union of India, AIR 1962 SC 1716 it was held that the period of limitation under Article 31 ran in that case from the 18th May, 1961 when the consignment reached the destination and not from the date when" open delivery was taken. In my view that case is on all fours with the facts of the present case.

(3.) Learned counsel appearing for the plaintiff -respondent contended that the plaintiffs came to know of the short delivery only when they went to take open delivery "on 'the 12th March, 1962. The knowledge that there was a short delivery is not relevant for the purpose of computing the period of limitation. It may give the cause of action for claiming compensation for such short delivery but the period of limitation will run from the time after the lapse of reasonable period, after the booking of the consignment, when the goods ought to be delivered at the destination.