BRITISH AIRWAYS v. ART WORKS EXPORT LTD. — 1985 DIGILAW 297 (CAL)

M. M. DUTT, J. ( 1 ) THIS application under S. 115 of the Civil P. C. filed at the instance of the defendant No. 1, British Airways, a Public Limited Company, is directed against Order No. 19 dt. April 25, 1985 of the learned Judge, 4th Bench, City Civil Court, Calcutta dismissing the application of the petitioner under O. 7,r. 11 of the Civil P. C. ( 2 ) THE suit out of which this application arises has been filed by the plaintiff opposite party No. 1, Art Works Export Limited, on March 13,1984 in the City Civil Court, Calcutta against the defendant petitioner and the pro forma defendant opposite party No. 2, the Bank of India, inter alia, for the recovery of a sum of Rs. 23,235/- on account of damages, compensation and interest for wrongful loss caused by the defendant petitioner as carrier to the plaintiff opposite party No. 1. The case of the plaintiff opposite party No. 1 is that on Dec. 10, 1981, a consignment containing 2,400. pcs. 'mulberry Raw Silk 100% pure' hand printed stoles were despatched and/or shipped through the British Airways by air from Dum Dum Airport for discharge at Brussel. The Airways bill is dt. Dec. 10, 1981. The name of the consignee of the goods was Kredite Bank, Narkt Lakeren, Belgium, on account of M/s. Rachana Brugataat 113, 9100, Lakeren, Belgium. The value of the consignment was Rs. 13,000/ -. ( 3 ) UPON shipment of the said consignment through the defendant petitioner, the plaintiff opposite party No. 1 duly made out a bill of M/s. Rachana covering the value of the said consignment and thereupon duly made over the same to the banker of the plaintiff opposite party No. 1 being the pro forma defendant opposite party No. 2 along with the original consignee copy of the said consignment note with a request to the said Bank to collect the proceeds of the said bill on D. P. basis. The Bank was specifically instructed by and/or on behalf of the plaintiff opposite party No. 1 to make over the consignee copy of the said consignment note only upon payment of the value of the said bill. The Bank was specifically instructed by and/or on behalf of the plaintiff opposite party No. 1 to make over the consignee copy of the said consignment note only upon payment of the value of the said bill. ( 4 ) THE Bank duly forwarded and/or caused to be forwarded the said bill as also the consignee copy of the said consignment note to the consignee thereof for collection from the proceeds of the said bill, but the same were returned unpaid to the opposite party No. 2, the Bank. As far as the plaintiff opposite party No. 1 had been able to ascertain, the said bill as also the consignee copy of the said consignment note were still lying in the custody of the opposite party No. 2. In order to forward the said bill as also the consignee copy of the said consignment note to the consignee thereof in the manner as aforesaid, the plaintiff opposite party No. 1 had to incur bank charges to the tune of Rs. 443/ -. The defendant petitioner by a writing dt. Nov. 16, 1982 informed the plaintiff opposite party No. 1 that the said consignment had been collected by the consignee mentioned in the said consignment note on Dec. 23, 1981 at Brussel. ( 5 ) IT is the case of the plaintiff opposite party No. 1 that without surrender of the consignee copy of the said consignment note, the petitioner could not deliver the said consignment either to the consignee mentioned in the said consignment note or to any other person. The consignee of the said consignment note had confirmed to the Bank that it had neither received the said consignment nor authorised any person to receive the same and had, in fact, returned the said bill as also the consignee copy of the said consignment note to the Bank. ( 6 ) IT is alleged by the plaintiff opposite party No. 1 that the defendant petitioner in breach of the said contract of carriage as evidenced by the said consignment note, had wrongfully and illegally delivered the consignment covered by and under the consignment note to an unauthorised person and/or to a stranger to the said contract and thereby precluded the plaintiff opposite party No. 1 from obtaining the benefits of the said consignment and the value thereof. The further case of the plaintiff opposite party No. 1 is that by reason of the wrongful breach of the said contract of carriage by the defendant petitioner, the value of the said consignment has been lost to the plaintiff opposite party No. 1. ( 7 ) ON the basis, inter alia, of the aforesaid allegations, the plaintiff opposite party No. 1 also instituted the suit for the reliefs mentioned above. ( 8 ) AFTER receipt of the summons of the suit, the defendant petitioner entered or appearance and made an application under O. 7, R. 11 read with O. 1, R. 10 of S. 151 of the Civil P. C. praying for rejection of the plaint and/or striking out the name of the defendant No. 1 from the suit principally on two grounds, namely, that (i) there is no subsisting cause of action for the suit and that (ii) the suit is barred by the Carriage by Air Act, 1972, hereinafter referred to as 'the Act'. ( 9 ) THE learned Judge, after considering the averments of the plaint and submissions made on behalf of the parties, dismissed the said application for the rejection of the plaint. Hence, this application under S. 115 of the Civil P. C. by the defendant No. 1 petitioner. ( 10 ) MR. Subrata Roy, learned Counsel appearing on behalf of the petitioner has urged that the learned Judge should have rejected the plaint on the above two grounds. In support of his contention that there is no subsisting cause of action for the suit, the learned Counsel has drawn our attention to Art. 30 of the second schedule to the Act. Art. 30 reads as follows :"30 (1 ). The right to damages shall be extinguished if an action is not brought within two years, reckoned from the date of arrival at the destination, or from the date on which the aircraft ought to have arrived, or from the date on which the carriage stopped. (2) The method of calculating the period of limitation shall be determined by the law of the court seized of the case. " ( 11 ) IT is submitted on behalf of the petitioner that as the suit has been filed on March 13, 1984, that is to say, long after two years of the arrival of the goods at the destination on Dec. " ( 11 ) IT is submitted on behalf of the petitioner that as the suit has been filed on March 13, 1984, that is to say, long after two years of the arrival of the goods at the destination on Dec. 18, 1981, the right to damages on account of loss of goods has been extinguished in view of Art. 30 (1 ). Counsel submits that as there is no existence of any right to sue, so there is no subsisting cause of action for the suit and, accordingly, the suit should have been dismissed under Cl. (a) of O. 7, R. 11 of the Civil P. C. ( 12 ) WE are unable to accept the contention of the learned Counsel for the petitioner. Under Cl. (a) of O. 7, R. 11, the plaint shall be rejected where it does not disclose a cause of action. The plea of the petitioner that there is no cause of action for the suit is not same as to say the plaint does not disclose any cause of action, which is a ground for the rejection of the plaint. Indeed, the plaint discloses a cause of action. The correctness or otherwise of the allegations constituting the cause of action is beyond the purview of Cl. (a) of O. 7, R. 11. It is not the case of the defendant petitioner that the plaint does not disclose a cause of action but, as stated already, its case is that there is no cause of action for the suit which is not a ground for rejection of plaint under O. 7, R. 11 of the Civil P. C. This view finds support from a Bench decision of the Assam High Court in Santi Ranjan Das Gupta v. Dasuram Mirzamal, AIR 1957 Ass 49, where it has been laid down that a plea that there was no cause of action for the suit is something different from saying that the plaint itself did not disclose any cause of action. There is, therefore, no substance in the contention made in the instant case on behalf of the petitioner that the learned Judge should have rejected the plaint on the ground that there is no subsisting cause of action for the suit. There is, therefore, no substance in the contention made in the instant case on behalf of the petitioner that the learned Judge should have rejected the plaint on the ground that there is no subsisting cause of action for the suit. ( 13 ) THE second ground that has been urged on behalf of the petitioner is that the suit is barred by the provision of Art. 30 (1) of the Second Schedule to the Act. It is submitted that in view of Art. 30 (1), the right of the plaintiff opposite party No. 1 to sue for damages stood extinguished on the date the suit was filed. On the other hand, it is submitted by Mr. Chatterjee, learned Counsel appearing on behalf of the plaintiff opposite party No. 1 that in view of Art. 30 (2) of the Second Schedule to the Act, the right of the plaintiff to sue the defendant petitioner for damages was, prima facie, subsisting on the date the suit was filed. In other words, it is submitted that as under Art. 30 (2), the method of calculating the period of limitation shall be determined by the law of the Court seized of the case, the provision of the Limitation Act, 1963 will apply for the purpose of computing the period of two years mentioned in Art. 30 (1 ). In our opinion, in view of the provision of Art. 30 (2), it requires some consideration whether the suit is barred by Art. 30 (1) or not. It may be stated here that in the plaint the plaintiff opposite party No. 1 has pleaded acknowledgment by the defendant petitioner of its liability, and that the period of two years referred to in Art. 30 (1) should be computed after taking into consideration such acknowledgment. It is, therefore, difficult to say at this stage whether the suit is barred by the provision of Art. 30 (1) or not. Where on the face of the plaint a suit appears to be barred by any law, the Court shall dismiss the suit. But where it does not so appear, but requires further consideration or, in other words, if there be any doubt or if the Court is not sure and certain that the suit is barred by some law, the Court cannot reject the plaint under Cl. But where it does not so appear, but requires further consideration or, in other words, if there be any doubt or if the Court is not sure and certain that the suit is barred by some law, the Court cannot reject the plaint under Cl. (d) of O. 7, R. 11 of the Civil P. C. Both the grounds as embodied in Cls. (a) and (d) of O. 7, R. 11 must appear on the face of the plaint. In the instant case, however, it cannot be said that the plea of the defendant petitioner that the suit is barred by the provision of Art. 30 (1) of the Second Schedule to the Act appears on the face of the plaint in view of Art. 30 (1) read with Art. 30 (2) of the Second Schedule to the Act. ( 14 ) THE learned Counsel for the petitioner has placed much reliance upon a Bench decision of this Court in Jugolinija Rajia Jugoslavija v. Fab Leathers Limited, AIR 1985 Cal 193 . That was a case involving an interpretation of Art. III, R. 6 of the Schedule to the Carriage of Goods by Sea Act, 1925. R. 6 inter alia provides as follows :"in any event the carrier and the ship shall be discharged from all liability in respect of loss or damage unless suit is brought within one year after delivery of the goods or the date when the goods should have been delivered. " ( 15 ) IN the above Bench decision, it was held that as the suit was instituted beyond one year from the date of delivery of the goods, it was barred by the provision of Art. III, R. 6 of the Schedule to the Carriage of Goods by Sea Act, and that the plaint should be rejected under O. 7, R. 11 of Civil P. C. We are afraid, that decision is not applicable to the facts of the present case. In that case, there was no such provision as Art. 30 (2) of the Second Schedule to the Act which requires the Court not only to interpret the provision, but also the consider whether the plaintiff has been able to prove facts so as to avail himself of the said provision of Art. 30 (2 ). It is, therefore, neither permissible nor possible for the Court to reject the plaint under Cl. It is, therefore, neither permissible nor possible for the Court to reject the plaint under Cl. (d) of O. 7, R. 11 of the Civil P. C. that the suit is barred by R. 30 (1 ). ( 16 ) THE decision of the Supreme Court in East and West Steamship Co. v. S. K. Ramalingam Chettiar, AIR 1960 SC 1058 relied upon by the learned Counsel for the petitioner is also not applicable to the present case. In that case, the Supreme Court had to interpret the provision of R. 6 of Art. III of the Schedule to the Carriage of Goods by Sea Act, 1925. It was held that the words "discharged from liability" in R. 6 meant a total extinction of liability following upon an extinction of the right. This decision of the Supreme Court is, therefore, of no help to the defendant petitioner. ( 17 ) WE are, therefore, of the view that the learned Judge was justified in dismissing the application of the petitioner praying for the rejection of the plaint. No other point has been urged in this application. ( 18 ) FOR the reasons aforesaid, the application is dismissed. There will, however, be no order as to costs. ( 19 ) WE make it clear that we have not expressed any opinion on the merits of the case. PARITOSH KUMAR MUKHERJEE, J. :- I agree. Application dismissed.