Judgment :- 1. The suit is to recover a sum of Rs. 1500/- being the value of goods entrusted for transport to Bombay with defendants 1 and 2 who were public carriers. Admittedly the goods were not delivered to the consignee, nor returned to the consignor. The defence, which found acceptance in the courts below, was of limitation under Art.31 of the Limitation Act. 2. The learned counsel for the appellant contends that Art, 31 is not applicable to the instant case for two reasons firstly, that the Article applies only to suits by consignees, and not by consignors; and secondly, the Article applies only to suits in tort and not to those based on breach of contract. Reliance was placed on the observations of Chatterjee, J. in Radha Shyam Basak v. Secretary of State for India (ILR. 44 Calcutta 16) to the effect that the "Article contemplates a suit by the party who is entitled to the delivery, viz., the consignee." 3. This dictum came up for consideration in Vally Mohammad Haji Gunny v. Nederland S. Navigation & Co. (AIR. 1924 Cal. 173), where Page, J. dissented from it and held: "The words of Art.31 are wide enough to include suits brought by consignor as well as by the consignee I am unable to see why any distinction should be drawn between a case of action for compensation for non-delivery by a consignor and one by a consignee" 4. In Chiranji Lal Ram Lal v. B.N. Ry. Co. Ltd. (AIR. 1925 Calcutta 559) also Page, J. reiterated his dictum in AIR. 1924 Calcutta 173 and held: "The legislature in enacting Art.31 was not minded to discriminate between a suit brought by a consignor and a similar suit brought by a consignee". 5. Banerji, J. in Muttsaddi Lal v. The Bombay, Baroda & Central India Rly. Co. (ILR. 42 Allahabad 390) had also observed: "It has been urged that Art.31 applies to a suit by a consignee and not, as in this case, by the consignor. This contention is, in my opinion, untenable. The Article is wide enough to include a suit brought by the consignor also. It provides for a suit for compensation for non-delivery, that is, a suit by a person who by reason of non-delivery has sustained loss. There may be cases in which it is not the consignee who sustains the loss, but the consignor. The Article is wide enough to include a suit brought by the consignor also. It provides for a suit for compensation for non-delivery, that is, a suit by a person who by reason of non-delivery has sustained loss. There may be cases in which it is not the consignee who sustains the loss, but the consignor. In such cases it would be a suit by the consignor for compensation for nondelivery". 6. The wording of the Article does not indicate any restriction as to the status of the person whose suits are covered by the Article. All that it enacts is that in suits "against a carrier for compensation for non-delivery of, or delay in delivering, goods" the suit shall be instituted within one year from the date "when the goods ought to be delivered". As the wording stands it covers all suits of the nature provided for therein, whether they be instituted by the consignor or by the consignee. 7. It is also contended that Art.31 applies only to actions ex contractu, and that suits ex delicto against public carriers are governed by Art.48 or 49 only. The contention is, of course, supported by Firm Nawab Boot House v. Secretary of State (AIR. 1935 Allahabad 156) where it has been observed that a suit for damages for wrongful conversion has to be distinguished from one for compensation for non-delivery and that Art.31 is not applicable to suits for damages for tort. The learned advocate for the appellant characterised this suit as one on conversion and relied on Secretary of State v. Simla Footwear Co. (AIR. 1935 Allahabad 601) in support thereof. But there the cause of action against the defendant, the railway company, was laid on its having sold the consigned goods and retained the proceeds with the company itself. The retention of the goods or their proceeds with the carriers contrary to the wishes of the consignor clearly makes a case in conversion. But there is no case for the plaintiff here that either the goods or their converted value is retained by the defendants. In fact, the finding of the court below, which is not challenged before me, is that part of the goods had been jettisoned when the 'Matchuva' was caught in a storm and the remaining goods had been misdelivered to a wrong person. In fact, the finding of the court below, which is not challenged before me, is that part of the goods had been jettisoned when the 'Matchuva' was caught in a storm and the remaining goods had been misdelivered to a wrong person. It follows therefore that there was no conversion of the goods by defendants 1 and 2 and as such a cause of action on conversion is not made out in this case. The test for conversion is not to see whether there was a failure to return the goods. Desai, J., (as he then was) observed in Martab Ali v. Union of India (AIR 1954 Bombay 297): "A carrier who on demand being made states that he could not return the goods because they were looted while in his possession cannot ipso facto be said to have been guilty of conversion. There must be at least some evidence of conduct of the defendant which shows that he not only possesses the goods but also intends to hold them in defiance of the plaintiff" Likewise is the case of inability on the part of the carrier to deliver the goods to the consignee on account of their being jettisoned or their being mis-delivered to a wrong person. Where the carrier has not appropriated the goods or their value for himself, either personally or through some nominee, it cannot be said that a case of conversion has been made out in respect of the goods. 5. The learned counsel for the appellant brought to my notice the ruling in Fakir Chand v. Secretary of State (19 Indian Cases 477) to the effect that a case of mis-delivery has to be distinguished from a case of non-delivery contemplated by Art.31 of the Limitation Act, I cannot agree. Non-delivery within the meaning of Art.31 means non-delivery as per the instructions or directions given to the defendant by the plaintiff. So far as the cause of action of the plaintiff is concerned, delivery according to his instructions alone arises for consideration. Where his instructions have not been carried out, it does not matter to him whether the carrier had delivered the goods to X or Y other than the named consignee. It follows therefore that a case of misdelivery is well within the expression 'non-delivery' so far as the applicability of Art.31 of the Limitation Act is concerned. 8. Where his instructions have not been carried out, it does not matter to him whether the carrier had delivered the goods to X or Y other than the named consignee. It follows therefore that a case of misdelivery is well within the expression 'non-delivery' so far as the applicability of Art.31 of the Limitation Act is concerned. 8. The contention that Art.31 of the Limitation Act applies only to suits ex-contractu but not to suits ex¬delicto has not appealed to me. I am in respectful agreement with the view expressed in Chiranji Lal Ram Lal v. B. N. Ry. Co. Ltd. (AIR 1425 Calcutta 559): "Art. 31 applies whether the claims in such suits arise ex-contractu or ex-delicto." In Agent of the Bengal Nagpur Railway Co. Ltd v. Hamir Mull Chagan Mull (AIR. 1925 Patna 727), Mullick, Ag. C. J, (as he then was) also held: "Whether the suit for non-delivery of goods is laid in tort or in contract, if compensation is claimed for non-delivery of goods entrusted to a carrier the period of limitation is one year as prescribed by Art.31." In Martab Ali v. Union of India (AIR. 1954 Bombay 297) Desai, J, (as he then was) held: "Art. 31 must apply to all cases of claims for non-delivery of goods irrespective of the question whether the suit is laid in contract or tort. Art.48 is a general Article and its application would be excluded by Art.31" 9. It follows therefore that Art.31 does in terms apply to the instant suit. There is no dispute that if Art.31 is to apply the suit is barred by limitation. It is found by the courts below that the correspondence between the parties showed that in 1944 itself, the plaintiff claimed compensation from the defendants for the loss of the disputed goods and that the defendants repudiated the same. Nonetheless, the suit was instituted only in 1947. 10. The decree of the court below dismissing the suit as barred by limitation under Art.31 of the Act is therefore right and is hereby affirmed. But in view of the conflict of authorities with regard to the applicability of Art.31, I do not mulct the appellant for costs of the respondents in this Second Appeal. Dismissed.