Delhi High Court
Japan Airlines vs M/S P & S Exports Corporation on 28 July, 2011
Author: Valmiki J. Mehta
Bench: Valmiki J.Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No.199/2002
% 28th July 2011
JAPAN AIRLINES ...... Appellant
Through: Ms. Vandana Khurana, Adv.
VERSUS
M/S P & S EXPORTS CORPORATION ...... Respondents
Through: Mr. Akshay Makhija with
Mr. Vikas Bhaduria, Advs.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
1. Whether the Reporters of local papers may be
allowed to see the judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported in the Digest?
VALMIKI J. MEHTA, J (ORAL)
1. The challenge by means of this Regular First Appeal under Section 96 of the Code of Civil Procedure (CPC) is to the impugned judgment dated 29.11.2001 of the Trial Court whereby the suit of the respondent/plaintiff for recovery against the appellant/airline/defendant was decreed for the amount of value of the consignment wrongly delivered by the agent of the appellant/defendant without the necessary authorization of the consignee/bank.
2. The facts of the case are that the appellant booked consignment of 155 packages of handicrafts vide Airway Bill no.131/38984842 dated 10.9.1982, weighing 2837 kgs. and valued at US$ RFA No.199/2002 Page 1 of 3 19,887. The appellant/defendant was required to inform the buyer of the goods as also the consignee of the goods on arrival of the goods at the destination. It, however, transpired that the agent airline of the appellant, i.e. United Airlines delivered the goods to M/s. Kumar Import Corporation without having retired the documents from the consignee/bank. The suit was therefore filed after serving a registered letter dated 13.10.1983 on the appellant.
3. All the aforesaid facts are not disputed before the Trial Court or even before this Court inasmuch as the Airway Bill specifically shows the consignee as the bank, however, the consignment was delivered to M/s. Kumar Import Corporation without any authorization from the consignee/bank.
4. Before this Court, as also before the Trial Court, basic stress was laid on the ground that the suit was barred by limitation by virtue of Rule 30 of the Second Schedule of the Carriage by Air Act, 1972. It was contended that the limitation period for claiming loss from the appellant/defendant was for a period of 2 years. It was stated that the suit was filed on 6.9.1985 whereas the consignment was booked on 10.9.1982. The Trial Court has decided the issue against the appellant by holding the suit within limitation relying upon the decision of a learned single Judge of this Court in the case of Federal Chemical Works Ltd. vs. M/s. Nutsco (Nigeria) Ltd. & Anr. 88 (2000) DLT 659 and as per which judgment, the provision of Rule 30 for an extinguishment of any right thereupon will only apply in case of any loss or damage to the goods, RFA No.199/2002 Page 2 of 3 and, Rule 30 will however not apply in case of negligence by the airlines of mis-delivery.
5. I may note that the decision of the single Judge has since been upheld by the Division Bench of this court in the case of Ethopian Airlines, New Delhi vs. M/s. Federal Chemical Works Ltd. AIR 2005 Delhi 158. The position in law therefore, so far as this Court is concerned, is that Rule 30 will not extinguish the right of action merely because the suit is not filed within 2 years. If the suit for recovery is based upon loss caused by wrongful delivery of the goods, as differentiated from any loss or damage to the goods by the carrier during the carriage , then the limitation period for a suit will be three years under the Limitation Act, 1963 and not two years as per the aforesaid Rule 30.
6. In view of the above, I do not find any merit in the appeal. The appeal is therefore dismissed, leaving the parties to bear their own costs. The Trial Court record be sent back. The amount deposited in this Court by the appellant be released to the respondent, along with accrued interest, if any, in satisfaction of the subject judgment and decree. CM Nos.552/02 & 1388/02
7. In view of the order passed in the main appeal, no orders are required to be passed in these applications. These applications stand disposed of.
JULY 28, 2011 VALMIKI J. MEHTA, J.
ak
RFA No.199/2002 Page 3 of 3