Ship (India) Private Ltd., New Delhi vs Associated Traders and Engineers Private Ltd., Delhi

D.K. Mahajan, J.—This petition for revision is directed against the order of the Additional Judge, Small Cause Court. Delhi, dismissing the plaintiff''s suit as barred by time. The plaintiff consigned goods to self but the goods were, in fact, for delivery to Messrs. Naib Lal-Shiv Nath Pershad of Mirzapur. The goods receipt was sent through Bank and was to be delivered by Messrs. Naib Lal Shiv Nath Pershad on payment of the price of the goods to the Bank. In the goods receipt there is a clear provision that the goods were to be delivered on production of the receipt. However, the goods were delivered to Messrs. Naib Lal-Shiv Nath Pershad contrary to the directions of the plaintiff. This has led to the present suit by the plaintiff for recovery of the price of the goods and other incidental expenses incurred by the plaintiff.

A preliminary objection was raised by the defendant that the suit was barred by time. An issue was framed as to whether the suit was within limitation. After recording evidence the trial Court came to the conclusion that the suit was barred by time. It came to the conclusion that the correct Article to apply was Article 31 and not 115 of the Limitation Act. Article 115 is a residuary Article and will apply only if Article 31 did not cover the case. Against this order, the present petition for revision has been preferred.

Learned counsel for the petitioner contends that article 31 does rot cover the case. His contention is that Article 31 will apply only where the non-delivery is not due to a tortious act on the part of the carrier. I am, however, unable to agree with this contention. The law seems to be well settled. It makes no difference for the applicability of Article 31 whether the compensation for non-delivery is claimed on the basis that there is a breach of the contract or that the carrier is guilty of a tort. Whatever the cause for non-delivery, if the suit is for compensation for non-delivery Article 31 will apply. Paragraph 9 of the plaint reads thus:

That the cause of action arose to the plaintiff against the defendant on several occasions when on demand being made after a reasonable time after the date of consignment of goods, the defendant failed to deliver the goods at destination to the plaintiff and lastly on 13th August, l956 when the notice period expired.

This claim is clearly covered by Article 31 of the Limitation Act. The very fact that in the body of the plaint it is recited that the goods have been delivered to Messrs. Naib Lal Shiv Nath Parshad in spite of the instructions to the contrary will make no difference. Reliance was placed by the learned counsel on a decision of the Allahabad High Court in Firm Nawab Boot House Vs. Secy. of State, . This decision has no applicability to the facts of the present case. In that case, a suit was brought for damages for wrongful conversion. That cannot be said in the present case. The next case on which reliance has been placed is Haryana Cotton Mills Company Ltd. v. B. B. & C. I. Railway Company AIR 1927 Lah 471. That case is again of no assistance to the plaintiff because section 77 of the Indian Railways Act fell for consideration and the Court was not considering Article 31 of the Limitation Act.

After giving the matter the consideration which it deserved, I am of the view that no fault can be found with the decision of the trial Court. This petition for revision accordingly fails and is dismissed, but I will make no order as to costs.

Petition dismissed.