” Description of suit

Period of limitation

Time from which period begins to run

Art, 30 Against a carrier for compensation for losing or injuring goods.

One year

When the loss or injury occurs.

 

 

6. I have already reproduced the translation of paragraph 6 of the plaint wherein it was definitely alleged that although the defendant (respondent‑railway) bad put forward the pretext of accidental fire the entire responsibility for it lay on its shoulders because it did not take the necessary precautions for the safety of the goods. The heading of the plaint reads as follows :‑

 

“Suit for recovery of a sum of Rs. 27,738‑13‑0 towards the price of the cloth which was gutted in fire while in possession of the defendant because of the negligence and lack of care on the part of the defendant “

 

It is further clear that the factum of the loss by fire had become known to the appellant‑company on the 11th of May 1954, when a telephonic message was received to that effect from an official of the respondent‑railway by Mr. M. A. Hadi (P. W. 3), the appellant‑company’s representative at Karachi. There may have been some doubt as to how many bales had survived the damage wholly or partially, but the matter became absolutely clear when an assessment of the loss was made by the General Superintendence Company (Pakistan Limited), Karachi, on the 5th of July 1954 and when later the certificate (Exh. P. 14) showing the amount of the loss as assessed by General Super intendence Company was issued on the 12th of July 1954. Under Article 30, already quoted above, time starts running for a suit by the plaintiff against a carrier for compensation for losing or injuring the goods the moment the loss or injury occurs and the knowledge of the plaintiff as to that loss is immaterial. On a plain construction of the plaint in this case including the relief sought there is no doubt that the appellant‑company was seeking compensation against the respondent‑railway for losing or injuring its goods and the terminus a quo for that cause of action cannot be placed later than the 11th of May 1954, by which time the loss or the injury to the goods had admittedly taken place. The learned trial Judge has, however, applied Article 31 to the case and made only a passing reference to the fact that the result would be the same if Article 30 of the Limitation Act were to be held applicable because the injury to the goods was caused on the 11th of May 1954. The starting point of limitation under Article 31 is the time “when the goods ought to be delivered”. The learned trial Judge has held that in this case the goods were available for delivery on the 11th of May 1954, by which time they had reached their destination. There is some conflict of judicial authority on the construction of the words “when the goods ought to be delivered”. In Jugal Kishore v. Great Indian Peninsula Railway and another (68 I C 981), it was held that if correspondence between the parties shows that the matter was being inquired into and that there was no refusal to deliver well within a year of the suit, Article 31 of the Schedule I to the Limitation Act cannot be pleaded as a bar, for, in such a case it cannot be said that the suit was brought more than a year from the expiry of a reasonable time, within which the goods should have been delivered. In M: A. P. Palanichand Nadar v. Governor‑General of India‑in‑Council (A I R 1946 Mad. 133) it was observed that the time against the Railway company began to run under Article 31 Limitation Act, from after a definite refusal or declaration of inability to deliver the lost goods. One test of determining when the “goods ought to be delivered” was laid down by Kaikaus, J., as he then was, in the Federation of Pakistan v. Raja Fazal Dad Khan (P L D 1954 Lah. 635) by observing that “from any date on which the plaintiff could have filed his suit without being met by the plea effectively that the suit was premature, time would begin to run against him. He cannot have it both ways. He cannot say : I would have the right to file a suit but still the limitation would not begin to run’. That would be to give him more than a year for filing the suit and that is not the intention of Article 31.” In my view, the words “ought to be delivered” in Article 31 have to be interpreted on their plain meaning with reference to the facts of each case. The word “ought” connote an obligation a duty‑moral or contractual‑to do what is agree or is proper‑befitting or naturally expected. Where a time is specified in a carriage contract, goods have to be delivered at that specified time, but where no such period is specified, they ought to be delivered within a reasonable time, according to the natural expectations depending on the circumstances of each case, Where the goods are admittedly lost or damaged, there is no question of their delivery. The argument that the period during which a carrier may put off the settlement of the matter by promising an inquiry and giving hopes to the consignor of making compensation should be excluded from computation of the period under Article 31 amounts to the importation of an extraneous consideration into the context of that Article. A debtor may go on verbally assuring the creditor that he would pay his debt but that would not enlarge the period of creditor’s time to recover it in a Court of Law. Similarly, if the respondent‑railway in this case had allegedly been putting off the matter, promising to make an inquiry as to the amount of the loss suffered by the appellant company, the situation is not altered under Article 31 even if that Article be held applicable to the case, to stop the time running against the appellant‑company until the final refusal was made by the respondent‑railway on the 9th of December 1954. Time started running when the “goods ought to have been delivered” by the respondent‑railway and that was when the goods reached the destination on the 11th of May 1954 and became capable of delivery. But, as I have already stated above, 1n this case the real Article that applies is 30 and the appellant company’s suit should have been instituted under that Article within a year of the date of the loss and injury to the goods, viz. the 11th of May 1954, as the cause of action was based on loss and injury to the goods. In any case, the appellant‑company suit is hopelessly time‑barred, applying either of the two Articles, 30 or 31, even including the two months’ period of notice served by it on the respondent under section 80 of the Code of Civil Procedure. In the circumstances, we are constrained to dismiss this appeal, but leave the parties to bear their own costs.

 

K. B. A.

Appeal dismissed.

 

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