Patna High Court
The Union Of India (Uoi) And Ors. vs Khemchand And Ors. on 12 August, 1958
Equivalent citations: AIR1959PAT114, 1958(6)BLJR677, AIR 1959 PATNA 114
JUDGMENT K. Dayal, J.
1. The appeal has come before us on a reference. It is by the defendants. It arises out of a suit for recovery of compensation for non-delivery of 130 maunds of potato. The total claim laid was at Rs. 6,150/- including the price of bags and interest. The goods were delivered to the Railway Administration on 30-9-1947, at Gauhati for carriage to Hajipur under parcel way bill No. 838133.
2. The case, as put forward in the plaint, is that a large volume of correspondence passed between the parties in the matter of the non-delivery of the goods, but the Railway authorities never said that they were not in a position to deliver the goods; rather they always held out a promise to the plaintiffs that their claim would be settled as soon as the inquiry into the matter was completed. A notice under Section 80 of the Code of Civil Procedure dated 7-10-1948 was duly sent.
Thereafter, the plaintiffs instituted Money suit No. 146 of 1948 in the Court of the Second Subordinate Judge, Muzaffarpur. That suit was dismissed on 19-9-1949 as premature, as it had been instituted before the expiry of two months from the date of the notice. Even during the pendency of the suit, the Traffic Manager, O. T. Railway, Gorakhpur (hereinafter to be referred to as the Traffic Manager) sent a letter for a reasonable settlement of the claim outside Court. Settlement was arrived at, but the amount was not paid. Hence the present suit.
3. The defence, on amongst others, was that the suit was barred by limitation that no second notice under Section 80 of the Code of Civil Procedure had been served and that the claim was highly exaggerated. The Court below, for reasons stated in the judgment, overruled the defence case, and decreed the suit in part as against defendant No. 1 only. The amount of damages was reduced and statutory interest was allowed from the date of institution of the suit till the date of the recovery of damages. The suit against defendant No. 2 was dismissed without costs. Hence the present appeal.
4. Perhaps, by some oversight, defendant No. 2 has also joined this appeal as an appellant. No point, however, on this score has either been raised or argued on behalf of either party.
5. The plaintiffs have filed a cross-objection for higher rates; but, at the time of hearing, this cross-objection was not pressed.
6. Mr. P.K. Bose, for the appellants, has submitted that the case is hit by Article 31 or the Limitation Act and the plaintiffs' suit should be dismissed as time barred. Mr. G.C. Mukherji, appearing for the respondents, has contended that, in the circumstances, it should be held that the claim was still within time. Mr. P.K. Bose has submitted that the consignment was booked on the 30th September, 1947. In the normal course, it was expected to reach the destination within a fortnight or a month, as contended by the plaintiffs.
Therefore, the suit should have been brought within fourteen months of that date. It is conceded that no time was fixed for the delivery. There are on the record a number of letters by the plaintiffs to the Traffic Manager and the replies thereto by the Traffic Manager to the plaintiff. Exhibit 6/P is a letter dated 25-10-1947 from the plaintiffs to the Traffic Manager, the material portion of which runs as follows :
"Sixty-five bags of potato were moved by parcel from Gauhati to Hazipur under the aforesaid Railway Receipt but the same has not so far been delivered to us.
Since, already the consignment has been unduly delayed in transit and so far there is no news as to its whereabouts shouts we request you to advise us a pay order for Rs. 5,525/- (Rupees five thousand five hundred and twenty-five) only ......"
Exhibit 6/E is another letter dated 12-3-1948 by the plaintiffs to the Traffic Manager, the relevant portion of which is as follows :
"In sending herewith a copy of my letter No. KS/3/47/574, dated 25-10-47, I would like to request you to kindly give its reply at your earliest and settle my claim of Rs. 5,525, failing which I will be compelled to take legal steps in the matter,"
Exhibit 2/D, dated 2-4-1948 is the acknowledgment of the Traffic Manager of the above letter and is in the following terms :
"I beg to acknowledge the receipt of your letter dated 12-0-48 regarding Gauhati to HajiPur, P.W.B. 838133 of 30-9-47. The matter is receiving my attention. Please send the original or copies of R/R and beejak duly certified by S. M. This is without prejudice."
Such correspondence continued and, on 13-8-1948, the Traffic Manager sent another letter to the plaintiffs (Ext. 2/B). It runs as follows :
"Regret very much for delay and have to say that the matter is under correspondence with the E. B. Railway and on receipt of their replies I shall let you hear finally."
Finding it difficult to get either the goods or the compensation, the plaintiffs sent a notice under section 80 of the Code of Civil Procedure to the General Manager, O. T. Railway, Gorakhpur, and another on 7-10-1948 (Vide Ex. 5). Thereafter, the plaintiffs instituted Money suit No. 146 of 1948 on the 26th November, 1948. The plaintiffs, before instituting the suit, had sent another letter to the Traffic Manager on 22-11-1948 (Ex. 6/A) for return of their railway receipt and Beejak to enable them to get the case settled through Court. The Traffic Manager, on 3-1-1949, i.e., after the institution of the suit, replied in his letter (Ex. 2/A) :
"The matter is still under correspondence with the E. B. Railway on receipt their (?) reply I shall let you have further (?) shortly."
Again, in his letter (Ex. 2) dated 5-4-1949, the Traffic Manager wrote to the plaintiffs as follows :
"Re : Gauhati to Hajeepur, P.W.B. No. 838133 of 30-9-47, 65 bags potatoes suit No. 146 of 1948. Sub-Judge's Court, Muzaffarpur, claim for Rs. 6150 due to non-receipt.
With reference to above suit filed by you. Will you please call at this office with original or certified copy of Beejak and Khata book to arrive at a reasonable settlement of the case out of court if possible. This is without prejudice."
It further appears from Exhibits 6/F and 6 dated the 9th and the 23rd June, 1949, respectively that the claim was settled but no payment was made. From the above documents, starring from Exhibits onwards, it appears that the plaintiffs wanted their goods or their money and the Railway Administration did not refuse delivery to the plaintiffs at any point of time but always kept the plaintiffs on hopes. On these facts, the question arises as to what meaning should be placed on the words 'when the goods ought to be delivered" in Col. 3 of Article 31 of the Limitation Act.
7. In Jugal Kishore v. G. I. P. Rly. Co., AIR 1923 All 22(2), Stuart and Sulaiman, JJ., held that, where no time was fixed for the delivery of goods and the correspondence between the parties showed that the matter was being inquired into and there was no refusal to deliver up to well within a year of the suit, then the, suit was not barred by Article 31', Limitation Act. Their Lordships observed :
"The treatment accorded to the plaintiff is unfortunately not the first which a consignee has had to suffer. When there was a delay in the arrival of the goods the plaintiffs started writing to both the companies, who delayed action by the plaintiff by informing him that the matter was under enquiry, A perusal of the lengthy correspondence that ensued shows that the plaintiff was all along made to believe that enquiry was being made."
This case was relied on and followed by a Division Bench of this Court in Governor-General in Council v. Kasiram Marwari, AIR 1949 Pat 268.
8. In Union of India v. Bansidhar Modi, AIR 1954 Pat 548 at p. 550, Das, J. (as he then was), held (Banerji, J. agreeing) as follows :
"In the case before us, there was protracted (correspondence between the plaintiff-respondent OD the one side and the two Railway Administrations on the other, and though the East Indian Railway Administration wrote a letter on 24-4-1944, they did not refuse to deliver the goods on that date. They merely said that an enquiry should be made from the Bengal Nagpur Railway Administration and that they themselves were making enquiries into the matter. The last letters which the plaintiff-respondent wrote were in the first week of September, 1944, and on 14-9-44, the suit was instituted. The decision in B. and N. W. Rly. Co. Ltd. v. Kameshwar singh, AIR 1933 Pat 45, is in point in the present case. It was observed in that case that the plaintiff was justified in waiting to bring his suit until the defendants had made it clear that they had no intention to deliver the goods. The further observations made in that case are also apposite :
'The defendants by a deliberate process of ignoring the plaintiff's repeated requests for attention to his claim misled him into delaying his suit and it is not open to them now to contend that the suit has been brought too late. In my opinion the attitude of the railway company has throughout been lacking in candour and their defence to this suit even in its most technical aspects has no merit' I do not wish to add any further observations of mine, and rest myself content with merely saying that those observations apply in the present case as well."
There also, their Lordships were considering the significance of the phrase "when the goods ought to be delivered."
9. In Mutsaddi Lal v. Governor-General in Council, AIR 1952 All 897 at p. 899, a Full Bench of the Allahabad High Court, while considering Article 31 of the Limitation Act, held as follows :
"If the goods do not reach the destination OD the date when in the normal course of affairs they are expected to reach there and the railway administration on being approached for delivery holds out hope to the plaintiff that the goods would be delivered and that the matter was being inquired into, then the starting point of limitation under Article 31 cannot be said to be the date on which the goods should have reached die destination in the normal course.
The phrase 'when the goods ought to be delivered' means the point of time at which the carrier undertakes to deliver the goods or the date when the carrier informs the consignee that it would be delivered or when the carrier communicates to tile consignee its inability to deliver the goods on a reasonable date that may be fixed on a consideration of events subsequent to the handling over of the consignment to the carrier for carriage.
* * * * * It is significant to note that the phrase is not followed by the phrase "in the normal course of business.' If the law contemplated only the period required in the ordinary course of business for the transit then the words 'in the ordinary course of business' should also have occurred there. The last Better from the railway administration to the plaintiff is dated 7-2-1944, in which it was said that the matter was receiving attention and the invoice was asked for. There has been no definite refusal so far by the railway administration to deliver the consignment. The suit was brought well within the one year from this last letter. It was, therefore, within time."
This Full Bench has relied on and approved the case of AIR 1923 All 22(2) (Supra).
10. In this case, it is said that the suit would foe well within time from the letter of the Traffic Manager (Ex. 2) dated 5-4-1949, by which the plaintiffs were invited to come to the office of the Traffic Manager for settlement of their claim.
11. Mr. Bose emphasised that, in this letter and other letters of the Traffic Manager, mention as made that "this is without prejudice." But, un-fortunately for him, similar acknowledgments were also made in the Full Bench case of the Allahabad High Court, referred to above, yet their Lordships took the view that the action was not barred. It is needless to multiply authorities on the point.
From the above Division Bench cases of this Court, which are binding on us, and the Full Bench case of the Allahabad High Court, the inevitable conclusion is that, where no time is fixed for the delivery of the goods and the correspondence between the parties shows that inquiries are being made and there is, no refusal to deliver up to well within a year of the suit, then the suit is not barred under Article 31 of the Limitation Act. These cases are clearly applicable to the facts of the present case.
12. Mr. Bose has further submitted that, at least, it should be held that the plaintiffs had knowledge on 26-11-1948, the date of the filing of the first suit, that the goods would not be delivered and, so, the present suit on 10-2-1950 was clearly barred, being beyond one year. But the appellant cannot take advantage of this in view of the letters of the Traffic Manager (Ex. 2/A and 2) dated 3-1-1949 and 5-4-1949 respectively, in which hopes were still extended to the plaintiffs for settling their claim and they were informed that inquiries in that respect were being made by the Railway Administration.
13. Mr. Bose then argued that the suit should be thrown out, as no notice under Section 80 of the Code of Civil Procedure had been served on the appellants before the filing of the present suit. There is no substance in this contention either. There is no such provision in the Code. Notice in respect of the act complained of was given under section 80 of the Code of Civil Procedure on 7-10-1948 (Vide Ex. 5), and the Previous suit was dismissed as not maintainable on 19-9-1949 (Vide Ext. A. the judgment of that suit). Besides, the object of the notice was well served and the appellants had sufficient opportunity to settle up the claims, as is apparent from the correspondence disclosed in the case.
14. Lastly Mr. Bose contended that, on the finding that the plaintiffs failed to prove that the potato (the consignment in question) had been purchased by them at Rs. 42 per maund at Shillong, they should get a decree at the rate of Rs. 20/-per maund; the rate admitted by the defendants. This was a question of fact on which the defendants conceded that damages should be assessed at a reasonable rate, On this concession, the Court below rightly granted a decree for damages at Rs. 31/- per maund.
15. Mr. Bose has argued no other point, and all the points raised by him have failed.
16. For the reasons stated above, I would dismiss both the appeal and the cross-objection. As the cross-objection was not pressed, there will be no order for costs. But the appeal is dismissed with costs. In the special circumstances of this case involving two hearings at two stages in this Court, we assess the/ hearing-fee of this Court at Rs. 350.
C.P. Sinha, J.
17. I entirely agree. I only wish to add that there is no merit in the contention of Mr. Bose that, as the goods in this case was a perishable article, the authorities on which my learned brother has placed reliance had no application. In my judgment, the contention has no substance. When the provisions of Article 31, which runs as follows :
Description of suit.
Period of limitation.
Time from which period begins to run.
Against a carrier for compensation for non-delivery of or delay in delivering, goods.
One year.
When the goods ought to be delivered."
are read together, it is clear that emphasis is on the carrier when he should have delivered the goods and not on the nature of the goods. Even in case of perishable articles, the plaintiff, in case of non-delivery within reasonable time, is entitled to make enquiry from the carrier as to when the goods would be delivered and he is certainly entitled to wait until a final reply is given to him by the carrier about the delivery of the goods.
If the plaintiff, by reasons of the carrier not giving a definite reply to his enquiry, waits long enough and then institutes the suit, which is within, one year from the date of the last communication received from the carrier, it cannot be said that the action is barred under Article 31 of the Limitation Act; the responsibility of the carrier for compensation for non-delivery has to be determined irrespective of the nature of the goods.