Ram Lal Pokar Dass v. Union of India — 1963 DIGILAW 50 (ALL)

JUDGMENT S.C. Manchanda, J. - This is a consignee's revision application against the order of the Additional Civil Judge Moradabad dated the 4th April 1961, allowing the appeal of the Union of India and holding that the plaintiff's suit against the Union of India, as owner of the Northern Railway was barred by time. 2. The plaintiff was a registered firm and carried on the business of Kirana at Sambhal. A consignment of 12 bags of various Kirana articles was despatched by Messrs. Pearey Lal Ramesh Kumar of Delhi to Sambhal on the 12th of February 1958, to the plaintiff as consignee. On the 22nd February 1958, one of the twelve bags was found to be loose. Its mouth was uncoloured whereas the mouths of all the other bags were coloured and none of them was loose. This bag also only weighed 1 Md. 22 Srs. as against 2 Md. 2 Srs., the weight of the other bags. The plaintiff, therefore, did not take delivery of this bag on 22-2-58, and asked for open delivery to be given. Open delivery of this bag was given on the 5th March 1958 and it was found that four packets containing cardamoms weighing 20 Srs. were short. The price of short weight of cardamoms according to the Bijak was Rs. 434-5-6. A claim for this amount was lodged on 4-10-1958. The plaintiff was informed that the Claims Inspector was enquiring into the matter and he would be informed on the completion of the enquiry. The plaintiff then served a notice under Sec. 80 of the C.P.C. on the 17th December 1958. The suit was filed on the 6th of February 1959 and the relief claimed was that owing to the non-delivery of the packets of the consignment the plaintiff had suffered a loss on account of profit and had expended Rs. 10 on the notice given to the defendant's. A decree for Rs. 487-5-6 was therefore claimed. 3. The defendants traversed these allegations except that open delivery of the consignment was given on the 5th March 1958. It was denied that the plaintiff had suffered any loss; that the suit is bad for want of proper notices under Sec. 77 of the Indian Railways Act and Sec. 80 of the C.P.C. 4. 487-5-6 was therefore claimed. 3. The defendants traversed these allegations except that open delivery of the consignment was given on the 5th March 1958. It was denied that the plaintiff had suffered any loss; that the suit is bad for want of proper notices under Sec. 77 of the Indian Railways Act and Sec. 80 of the C.P.C. 4. Several issues were struck and the material one for the purposes of this revision is only the fifth issue - Whether the suit is barred by limitation? As to this issue the trial court considered that a case of short delivery fell under Article 31 of the Limitation Act and as the railway administration had finally repudiated the claim of the applicants for non-delivery on the 24th November 1958, the suit having been filed on the 6th of July 1959, was within one year and therefore not barred by limitation. 5. On appeal the Additional Civil Judge held that Article 30 of the Indian Limitation Act applied to the case of short delivery as in the present case and the period of limitation would start to run from the date when the goods arrived at the destination and part delivery was taken on the 22nd February 1958 which is the date on which the plaintiff applicant had come to know of the loss. The suit having been filed on the 6th July 1939 it was therefore clearly barred by time. 6. Mr. D. P. Agarwal, the learned counsel for the applicant, has fairly conceded that in view of the recent trend of decisions, and in particular the Supreme Court decision in Jeth-mull Bhojraj v. D. H. Railway, A.I.R. 1962 S.C. 1979 the article applicable in the case of short delivery would be Article 30 of the Indian Limitation Act and not Article 31. He, however, contends that the point would still remain to be determined as to the date on which the loss as a result of short delivery could be said to have taken place and which would furnish the terminus a quo for the period of limitation under Article 30. 7. He, however, contends that the point would still remain to be determined as to the date on which the loss as a result of short delivery could be said to have taken place and which would furnish the terminus a quo for the period of limitation under Article 30. 7. He has relied on the decision of this Court in Jugal Kishore v. Jai Dev, AIR 1923 Allahabad 22 where it was observed that Article 30 applied to suits for compensation for lost or injured goods and the period is one year from the date when the loss or injury occurs and time begins to run from the time when the carrier lost or injured the goods and not from the time when the consignee may be said to have suffered loss; the burden of proving when the goods were lost was on the Government and it was not being proved that the goods were lost by them more than one year before the institution of the suit the claim was not barred by Article 30. These observations would obviously be only in the nature of obiter as this was a case which did not fall under Article 30 being out and out a case of complete non-delivery. In this case the goods were despatched from Bombay to Chunar but the goods never reached Chunar. This was, therefore, not a case of short delivery, as the present case, and is, therefore, clearly distinguishable. 8. The next case relied upon was Mohan Singh Chawan v. Henry Conder, I.L.R. 7 Bom. 478 where non-delivery of some of the bags consigned was not, per se, considered to be proof of the loss particularly as the onus of proving the loss was on the railway administration; the loss not having been intimated to the consignee the period of limitation under Article 30 would not begin to run. This, again, is not a case of short delivery from a bag which was delivered but non delivery of the entire bag or bags and therefore is of little or no assistance to the applicant in the present case. 9. This, again, is not a case of short delivery from a bag which was delivered but non delivery of the entire bag or bags and therefore is of little or no assistance to the applicant in the present case. 9. The Supreme Court in Jethmull Bhoirar's, A.I.R. 1962 S.C. 1979 has reiterated the view taken that the burden is on the railway administration, which wants to non-suit the plaintiff on the ground of limitation, to establish that the loss or injury occurred more than one year before the institution of the suit. That was a case of open delivery of 19 bales taken on the 12th of February 1947 and the suit was filed on the 9th of April 1948 i.e. within one year of the alleged short delivery when taken in conjunction with Sec. 15 of the Indian Limitation Act. The Railway Administration had contended that the suit was barred as the plaintiff had come to know of the loss to the goods much earlier in June 1946. The contention was repelled and it was held that the burden was on the Railway Administration to establish that the goods were lost at any time prior to the date when open delivery was taken by the consignee. This case, therefore, goes to show that the period of limitation in a case like the present, where open delivery was taken and short delivery is discovered, would be a case of loss and the period of one year of limitation would run from that date, it is true, that this case does not say so in so many words that the period of limitation would run under Article 30 of the Limitation Act from the date when open delivery is taken and loss is discovered, but from the dates given in the judgment, the necessary implication is that the date of taking open delivery is the date when the loss was notified. 10. There is also a case of the Madras High Court in Dominion of India v. Nagar Das & Co., AIR 1955 Madras 235 where Mack, J. held that where there was abstraction from a single bale which the consignee took under open delivery, Article 30 would govern such a case and the limitation would begin to run when the package is opened and some of its contents are found to have been abstracted in transit. In the Dominion of India v. B. R. C. and Sons, A.I.R. 1951 Mys. 68 it was held that the period of limitation would run when the shortage was discovered and the plaintiff could not have claimed extension of time on account of correspondence with the railway. Similarly, in Gangadhar Ram Chandra v. Dominion of India, AIR 1959 Calcutta 394 which was again a case of short delivery, it was held, that a suit for loss of goods in transit and the consequent short delivery would be governed by Article 30 and not by Article 31, and in the absence of any evidence to show as to when the loss actually occurred the date of the loss must be taken to be the date on which the loss was first discovered for purposes of determining the starting point of limitation. 11. For the reasons given above, I would hold that a case of short delivery by abstraction in transit of goods delivered falls to be governed by Article 30 and not Article 31 of the Limitation Act and the terminus a quo is the date when open delivery was taken and the loss discovered by the consignee. 12. The application is accordingly dismissed, but in the circumstances of the case the parties are left to bear their own costs in this Court and the courts below.