The Governor-General in Council vs Khadi Mandali

Govind Menon, J.—The main and important point for consideration is whether the suit is barred under Article 30 or Article 31, Limitation

Act. The plaintiff''s suit was for recovery of the price of certain goods, namely, bales of cotton cloth which had been lost by the defendants who

are common carriers during the course of the transit of the articles from Rajapalayam to Guntur. It is common ground that the goods in question

were handed over to the South Indian Railway Company on 7th September 1944 at Rajapalayam for dispatch to Guntur. It is also proved beyond

doubt that these goods reached the Tondiarpet Marshalling Yard in the Madras City on the midnight of 17th September 1944 and that sometime

later the goods were lost. On enquiries made by the railway company, it was found that a gang of thieves had opened the wagon in the Yard and

carried away the packages. Since the goods were not delivered at the destination to the plaintiff, who was the consignee of these goods in proper

time, the suit was for recovery of a sum of money, being the price of the goods as the damages for non-delivery of the goods. Exhibits P-4 to P-22

are letters between the parties by which the question of non-delivery was discussed. The substance of this correspondence is that the plaintiff had

been writing to defendant 1, for the payment of the compensation amount and defendant l putting off the plaintiff''s claim by saying that the matter

was under consideration. Though defendant 1 knew as early as 20th September 1944 that the goods were lost, the information to that effect was

not passed on to the plaintiff and finally it was only on 20th September 1945 the plaintiff was informed of defendants 1''s inability to deliver the

goods as per Ex. P-2. This date should be taken as the crucial date on which the impossibility of performance of the contract was made known to

the plaintiff. The suit was filed on 1st August 1946. The question therefore is whether the lower Court is right in holding that the suit is barred by

limitation.

Article 30 of Schedule 1, Limitation Act contemplates cases where a suit is filed against a carrier for compensation for losing or injuring the

goods and in col. 3 the time from which period has to begin is mentioned as when the loss or in jury occurs. Article 31 contemplates suit against a

carrier for compensation for non-delivery or delay in delivering the goods and the time for filing the suit is one year from the date when the goods

ought to be delivered. There has been a large body of case law as to which of these articles has to be applied in the circumstances like the present,

and the preponderance of authority in this Court is to the effect that Article 31 is applicable. Therefore, what we have to see is what was the date

when the goods ought to be delivered. As the learned Subordinate Judge finds there is no date fixed on which the plaintiff was to be handed over

the goods in question at Guntur and therefore the proper period should be when the plaintiff was informed that he could not be given the goods,

and that was on 20th September 1945. In Palaniohami Nadar v. Governor-General of India in Council 1946 2 M. L. J. 148: A. I. R. 1916 Mad.

133, Yahya Ali J, had to consider a similar case. The learned Judge, after considering the case law on this topic, came to the conclusion that for a

suit against a railway company for compensation for non-delivery of goods consigned for transit, time under Article 31, Limitation Act (period of

one year from date when the goods ought to have been delivered) begins to run from after the definite refusal or declaration of inability to deliver

by the responsible railway company. The learned Judge followed two earlier decisions of this Court, namely, M. and S. M. Railway Co. Ltd. v.

Bhimappa,23 M. L. J. 511: 17 I. C. 419 and South Indian Railway Co. v. Narayana Iyer, (1921) 46 M. L. J. 302: A. I. R. 1921 Mad. 567. Very

recently, my learned brother, Mack J, had also to consider Malladi Seetharama Sastri Vs. The Hyderabad State, . In that particular case, a

merchant delivered the goods on 21st August 1941 to the railway company for carriage from Bezwada to Lahore, On 7th November 1914, the

merchant received a letter from the consignee that the goods have not reached him. Then the consignor sent a notice on 8th February 1945 to the

railway company complaining of the non-delivery of the goods and asking for payment of their value. No reply was vouchsafed to this letter.

Therefore, the consignor filed the suit on 31st October 1945 for recovery of the value of the goods, It was held that the suit was filed properly

within the period of limitation, namely, one year of the receipt of the information of non-delivery, and that there-fore the suit was not barred. The

learned Judge also considered the earlier decision of Yahya Ali J. in Palanichami Nadar v. Governor General of India in Council, 1915 2 M. L. J.

448: A. I. R. 1946 Mad. 133. In the present case, though Exs. P-4 to p-22 show that there was correspondence between the plaintiff and

defendant 1, defendant 1 company did not definitely and categorically state their inability to deliver the goods till 20 9-1945 and, in the

circumstances, following the decisions referred to above, namely, Palanichami Nadar v. Governor-General of India in Council, 1915 2 M. L J.

448 : A. I. R. 1946 Mad. 133 and Malladi Seetharama Sastri Vs. The Hyderabad State, , I am inclined to hold that the date from which limitation

has to be computed is when finally it was mentioned by defendant 1, that the delivery could not be made.

Mr. V. K. Ramanatha Aiyar, appearing for Messrs. King and Partridge on behalf of the Railway Company, has urged that these decisions being

by single Judges are not binding on me and that following certain decisions of the Lahore High Court and especially the decision in Secretary of

State v. Dunlop Rubber Co. 6 Lah. 301: A. I. R. 1925 Lah. 178, I must hold that the date from which the period of limitation should be computed

should be some reasonable period from the date when ordinarily the goods would have reached Guntur. In view of the circumstances that no date

was fixed for the delivery of the goods at Guntur, it cannot be said that it is possible for the Court to fix a possible date for such an act. In the cases

referred to by me above, the same question arose and both the learned Judges have held that the limitation should be computed only from the

period when the common carrier expressed the inability to deliver the goods. It seems to me that the decisions of those learned Judges enunciate

the correct proposition. Moreover, these decisions are founded upon the earlier decisions of this Court, one of which at least is a Bench case. M.

& S. M. Railway v. Bhimappa, 28 M. L. J. 511: 17 I. C. 419 is a decision of Benson O. C. J. and Sankaran Nair J, where the learned Judges

have held that the burden of proving, in a suit governed by Article 30, Limitation Act, the time when the goods entrusted to the railway company

ware lost is on the company. Waller J. has also held in The South Indian Railway Company Vs. S.P.R.S. Narayana Ayyar, that the Article of

limitation applicable to a suit by a consignee for damages for the loss of goods in transit is Article 31, the starting point being the date when the

railway company finally says that the goods cannot be delivered. In these circumstances and, considering the consensus of authority in this Court, I

do not think I will be justified in preferring the Lahore cases which lay down the view contrary to the Madras decisions. I am therefore of opinion

that the suit is not barred by limitation.

The next point urged is that according to the risk-note in Form z, which is marked as Ex. D. 1 (b), it should be proved that the damage or loss

arose from the misconduct on the part of the railway administration. Mr. Bamanatha Aiyar argues that in this case there has been no misconduct

whatever. The learned Subordinate Judge has considered the question and came to the conclusion that the failure to provide adequate safeguards

as well as the non-examination of the sentinals who were keeping watch over the goods in the Marshalling yard at Tondiarpet lead to the inference

of misconduct and wilful negligence on the part of the defendant. The finding regarding misconduct being on question of fact, I cannot interfere in

revision. There is no substance in the argument that misconduct or wilful negligence on the part of the railway company has not been proved.

The last argument of the learned counsel is based upon an interpretation of Section 75 as well as the second schedule of the Indian Railways

Act. According to Section 75, when any articles mentioned in the second schedule are contained in any parcel or package delivered to a railway

administration for carriage by railway, and the value of such articles in the parcel or package exceeds Rs. 100, the railway administration shall not

be responsible for the loss, destruction or deterioration of the parcel or package unless the person sending or delivering the parcel or package to

the administration caused its value and contents to be declared at the time of the delivery of the parcel or goods to the railway authority for the

transit. It is urged that in this case the consignor from Rajapalayam has not mentioned that the articles contained lace and that therefore the railway

company is not liable. According to the second schedule, item (c) relates to cloths and tissues and lace of which gold or silver forms part, etc., and

item (n) relates to lace and furs. It cannot be said that item (c) of the second schedule applies, because there is no evidence that the cloths

contained either silver or gold lace. Then we have to fall back upon item (n), that is, lace and furs. Unless the value of the lace or furs comes to Rs.

100 there is no necessity for declaring that amount and from the evidence in this case it is not possible to hold that the laces which are not of any

valuable kind are worth Rs. 100 at all. The learned Subordinate Judge was inclined to agree with the plaintiff''s version and held that the lace in

question was not of such value as to attract the operation of Schedule II of Section 75, Railways Act. (His Lordship after discussing the evidence

proceeded:)

Another complaint of the learned counsel for the petitioner is that the lower Court did not allow an opportunity for defendant 1 to examine one

Ganapathi who had stated somewhere that the value of the lace was more than Rs. 200. It is stated that an application for examining him was made

to the lower Court and that the learned Subordinate Judge rejected it. I am not satisfied that there was any irregularity in the learned Subordinate

Judge''s rejecting a very belated application to examine a witness who presumably may be on inimical terms with the plaintiff inasmuch as he had

already dismissed him. No other point has been argued in this revision petition, which is therefore dismissed with costs.

C. M. P. No. 7885 of 1949 : This is a petition for the admission of fresh documents in the civil revision petition as additional evidence. No

authority has been shown to me that the entire provisions of Order 41, Civil P. C., and especially Order 41, Rule 27 are applicable to the civil

revision petitions under the Provincial Small Cause Courts Act. I do not wish to base my decision on that point alone, as there are no justifying

circumstances which would allow me, even if Order 41, Rule 27 applies, to admit additional evidence in a civil revision petition. This civil

miscellaneous petition is therefore dismissed.