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General Manager, Oil Refineries Ltd. Vs. General Manager, S.E. Railways and ors. - Court Judgment

LegalCrystal Citation
Subject;Commercial;Limitation
CourtGuwahati High Court
Decided On
Case NumberFirst Appeal No. FA, 58 of 1973
Judge
ActsLimitation Act, 1908 - Schedule - Article 31
AppellantGeneral Manager, Oil Refineries Ltd.
RespondentGeneral Manager, S.E. Railways and ors.
Appellant AdvocateS.C. Bordoloi, Sulaiman, C.K.S. Barua and A. Hazarika, Advs.
Respondent AdvocateP.P. Duara and D. Choudhury, Advs.
DispositionAppeal allowed
Prior history
S.M. Ali, J.
1. This appeal arises from judgment and decree passed by Shri J. Singh Chetry, Asstt. Dist. Judge, Gauhati in M. Suit No. 9 of 1963 (M. S. 13 of 1972) dismissing the suit on contest against the plaintiff. Being aggrieved by the judgment and decree the plaintiff has come up in appeal before this Court.
2. The suit is for recovery of a sum of Rs. 16,473.65 p. due to loss caused to Use plaintiff for non-delivery of goods by the carriers.
3. On 4-8-1961 M/s. Hindusthan Steel Co. Ltd.
Excerpt:
.....a particular time cannot give start to the limitation period irrespective of the conditions and circumstances of the consignment as well as the function of carriage of the goods by the carrier..........suit is barred by limitation and also that the plaintiff could not establish its ownership of the suit goods. he therefore dismissed the suit,8. during arguments in this court the ownership of the suit goods was not disputed on behalf of the defendants. there is no denial on the part of the defendants, that they did not receive the goods of the plaintiff under railway receipt invoice no. 6/207302 dated 4-8-1961 in two wagons being no. s. e. 11759 and c. r. 31607. d. w. 1, shri phanindra nath uzir admits that the s. e. railways informed in march 1966 that it delivered 89 pieces of goods to the n. e. railways which carried the goods to gauhati on 24-10-1966 and carried it back to bongaigaon and delivered the same to the store-keeper. the finding of the court below regarding plaintiff's.....
Judgment:

S.M. Ali, J.

1. This appeal arises from judgment and decree passed by Shri J. Singh Chetry, Asstt. Dist. Judge, Gauhati in M. Suit No. 9 of 1963 (M. S. 13 of 1972) dismissing the suit on contest against the plaintiff. Being aggrieved by the judgment and decree the plaintiff has come up in appeal before this Court.

2. The suit is for recovery of a sum of Rs. 16,473.65 p. due to loss caused to Use plaintiff for non-delivery of goods by the carriers.

3. On 4-8-1961 M/s. Hindusthan Steel Co. Ltd. made over 194 pieces of M. S. Plates to the servants of first defendant being the General Manager of the South Eastern Railways at Rourkela for despatch of the same to Gauhati Bazar Ghat and for delivery of the same to the plaintiff. The consignment was made under Railway Receipt No. (invoice No.) 6/207302 dated 4-8-1961, in two wagons being S. E. 11759 and C. R. 31607.

4. Thereafter on 13-9-1961 a lot of 105 pieces of M. S. Plates contained by wagon No. C. R. 31607 was delivered to and received by the plaintiff. But the remaining M. S. Plates being 89 in number contained by the other wagon No. S. E. 11759 did not arrive at the destination. The plaintiff issued due notice to the defendants registering its claim respecting the non-delivery of 89 pieces of M. S. Plates. Some other wagons containing M. S. Plates under separate Invoice Receipts namely Invoice No. 10/207361 dated 12-8-1961 and Invoice No. 14/207512 dated 1-9-1961 were also despatched from the same Railway Station at Rourkela for the destination at Gauhati Bazar Ghat near about the same time for delivery to the plaintiff. Some of those wagons arrived at the destination earlier; but one lot of 138 pieces under Invoice No. 10/207361 and another lot of 144 plates under Invoice No. 14/207512 were delivered by the Railways on 6-2-1962 and 7-2-1962 respectively to the plaintiff at Indian Refineries Railway Siding, Noonmati. The plaintiff avers further that the 2nd defendant acknowledged notice for claim for the plaintiff by their letter dated 7-3-1962 and that the 3rd defendant wrote to the plaintiff on 17-5-1962 repudiating the claim of the plaintiff. They intimated the plaintiff that they had referred the claim of the plaintiff to the Railways concerned. According to the plaintiff the carriers were in correspondence with the plaintiff through their letters dated 6-11-1962 and 7-1-1963 with regard to delivery of the goods. The sub-agent of the 2nd defendant at Gauhati Bazar Ghat issued a short certificate to the plaintiff on 1-12-1962 regarding said 89 pieces of M, S. Plates. Notice under Section 80, C. P. C. was duly issued by the plaintiff.

5. The first defendant (General Manager of the South Eastern Railways) in his written statement contends inter alia that the suit is not maintainable as due notice was not served on the defendant. The defendant states that 2 K. C. Wagons No. 11759/S.E. and 31607/ CR. containing steel plates were booked under Invoice No. 6 R. R. 207302 dated 3/4-8-1961 from H. S. P. G. (Banda Munda) Railway Station to Gauhati Bazar Ghat. The consignment was loaded in the wagons and sealed by the senders. But the contents were not counted by the Railways. The plaintiff received the contents of Wagon No. C. R. 31607. The contents of Wagon No. S. E. 11759 were transhipped at Chakradharpur into Wagon No. N, R. 44249 which was made over to the adjoining Railways being Eastern Railways at Sitpur on 3-9-1961. Therefore, the defendant is not liable for any damages that might have been caused.

6. The 2nd defendant (The Joint Agent of M/s. R. S. N. Co. Ltd. and I. G. N. and Railway Co. Ltd. at Gauhati) in his written statement stated that he is merely an agent of the 3rd defendant. He further states that the Steamer Co. received the contents of Wagon No. C. R. 31607 for 105 pieces of M. S. Plates from the Port Commissioner, Calcutta which they carried to Gauhati Bazar Ghat and delivered to the plaintiff. The Steamer Co. never received the contents of Wagon No. S. E. 11759 containing 89 pieces of M. S. Plates from the contiguous system. The 3rd defendant (M/s. R. S. N. Co. Ltd. and I. G. N. and Railway Co. Ltd., Joint Claim Deptt., Calcutta) contends in its written statement that it received the contents of Wagon No. C. R. 31607 containing 105 pieces of M. S. Plates from the Port Commissioner, Calcutta which it carried to Gauhati Bazar Ghat and delivered to the plaintiff. It did not receive from its contiguous system 89 pieces of M. S. Plates contained in Wagon No. S. E. 11759.

7. On the pleadings of both sides the following issues were struck by the trial Court :--

(1) Whether the notices OB the defendants were served.

(2) Whether the defendants are liable for non-delivery of 89 M. S. Steel Plates.

(3) Whether the defendants are liable to pay damages as claimed.

(4) What other relief, the plaintiff is entitled to.

On behalf of the plaintiff one witness was examined and one was examined on behalf of the defendants. Both sides adduced documentary evidence. The learned Asstt. Dist. Judge found that the suit is barred by limitation and also that the plaintiff could not establish its ownership of the suit goods. He therefore dismissed the suit,

8. During arguments in this Court the ownership of the suit goods was not disputed on behalf of the defendants. There is no denial on the part of the defendants, that they did not receive the goods of the plaintiff under Railway Receipt Invoice No. 6/207302 dated 4-8-1961 in two wagons being No. S. E. 11759 and C. R. 31607. D. W. 1, Shri Phanindra Nath Uzir admits that the S. E. Railways informed in March 1966 that it delivered 89 pieces of goods to the N. E. Railways which carried the goods to Gauhati on 24-10-1966 and carried it back to Bongaigaon and delivered the same to the Store-keeper. The finding of the Court below regarding plaintiff's ownership of the suit goods is not correct. The plaintiff has established its ownership, of the suit goods. The only point debated by the parties before us was on the point of limitation.

9. Admittedly the present case falls under Article 31 of the old Limitation Act which prescribed that the period of limitation is one year against a carrier for compensation for non-delivery of or delay in delivering goods and that the limitation starts from the time when the goods ought to be delivered. To this one year, notice period of two months is to be added and the total period comes up to 14 months with effect from the time when the goods ought to be delivered. It is beyond dispute that the expression in the third column of Article 31 of the old Limitation Act envisages nothing but a reasonable time. The expression 'reasonable time' however has been the subject matter of discussion and decision in a long series of cases and this is the moot point to be decided in consideration of facts of the present case. In considering the reasonable time in a case of carriage of goods, regard should be had to the circumstances affecting the carriage, the traffic conditions prevailing at the time when the goods are given to the carrier and also those prevailing from that point of time till the time when the goods are ready for delivery at the destination are relevant for the purpose of determining the reasonable time. Even delay beyond control of the carrier, but not connected with any negligent conduct of the carrier should not be left out of consideration in deciding the issue. In Dominion of India V. Amin Chand, AIR 1957 Punj 49 (FB) which was referred to by the learned counsel for the respondents, it was held that no inflexible rules can be laid down as to when the goods ought to be delivered in a given case, where time is not expressly or impliedly fixed by contract between the parties and that the Court must decide the reasonable time within which the consigned goods ought to have been delivered having regard to all the circumstances of the case and evidence before it and then fix that date as the date from which the limitation under Article 31 of the Limitation Act should start. In Gajanand Rajgorai v. Union of India, AIR 1955 Pat 182 a similar view was expressed by their Lordships of the Division Bench in the following words-- 'Under Article 31 the period of Limitation is one year from the date when the goods ought to be delivered. As has been observed in the Governor General in Council v. Kashiram Marwari, AIR 1949 Pat 268, the question 'when the goods ought to be delivered' is essentially a question of fact. If no particular date is specified for delivery it must be determined as a matter of what is reasonable having regard to the circumstances of the contract and the conduct of the parties. Our attention was also drawn to Boota Mal v. Union of India, AIR 1962 SC 1716, wherein it was held that the expression used in 3rd column of Article 31 of the Limitation Act regarding the starting point of the limitation means the expiry of reasonable time to be decided by the Court taking into consideration all the circumstances of the case before it and also the subsequent correspondences unless they throw light on the question of determining the reasonable time for the carriage of goods from the place of despatch to the place of destination have no bearing in the matter of determining the reasonable time of delivery of goods. It was also held in that case, that reasonable time will depend upon the facts of each case and that in the absence of any special circumstances, the reasonable time would practically be the same between the two stations, as would normally, usually or ordinarily be taken for the carriage of goods from the one station to the other.

10. So, the circumstances that have to be considered in deciding the reasonable time are indubiously those that attended the act of carriage after the goods were handed over to the carrier till the goods are ready for delivery to the consignee at the destination. In otber words in determining the reasonable time of delivery taken by the carrier we should consider the normal period of carriage with relation to the prevailing conditions of carriage and in so doing the time ordinarily taken by the carrier in carrying like goods other than the suit goods from the same place of despatch to the same place of destination having been handed over to the carrier at about the same time, is a relevant factor in this connection.

11. In the light of the aforesaid position of law we are to proceed to determine the reasonable time in the present case. It was insisted on behalf of the respondent that 13-9-1961 should be the reasonable time when the 89 pieces of M. S. Plates should have been delivered to the consignee (plaintiff). The learned counsel for the respondent advanced the ground for this view, that the major portion of the consignment under R. R. 6/207302 dated 4-8-1961 was delivered to the consignee on this date. He also pointed out that the major part of the consignments for plaintiff under R. R. 10/207361 dated 12-8-1961 and R. R. No. 14/207512 dated 1-9-1961 being a total of 282 plates reached the plaintiff much earlier than 6-2-1962 or 7-2-1962, when two wagons carrying lesser portion of those consignments being a total of 278 pieces of M. S. Plates reached the plaintiff. Therefore according to him the time taken by the Railways in carrying last instalment of the goods cannot form the basis of calculating the reasonable time. These parts of the goods took about five months to reach the place of destination from the place of despatch. In support learned counsel relied on the Patna case (supra). In that case the entire consignment of 200 bags was delivered on 5-4-1950 and on weighment it was found that 8 of the bags of sugar did not contain as much sugar as they should have. So the entire quantity of sugar ought to have been delivered when the 200 bags of sugar were delivered to the consignee. Because the goods consigned which were in 8 bags could not have been delivered on any subsequent date separately. Learned counsel next referred to the case of Punjab (supra) in this connection. The issue that was posed in that case was whether in cases of non-delivery limitation starts only from the time when the carrier definitely refuses or expresses its inability to deliver the goods whether the goods are not delivered at all or are only partly not delivered, or whether the reasonable tune for the purpose of determining the starting point of limitation should be determined to be that which is normally or usually or ordinarily taken for this purpose. The decision arrived at in that case was that the Court must decide the reasonable time within which the consigned goods ought to have been delivered having regard to all the circumstances of the case and evidence before it and then fix that date as the date wherefrom limitation starts. So neither the Patna case nor the Punjab case is identical with the present case. Learned counsel also cited before us Union of India v. Meghraj, AIR 1958 Cal 434 in which it was held that when the major portion of the consignment of goods was delivered on 20-9-1948, the entire consignment having been booked on 28-6-1948, the undelivered remainder of the goods ought to have been delivered on 20-9-1948 itself. Their Lordships held 'It would in most cases be proper to hold in the absence of peculiar circumstances that the date when a major portion of the consignment was delivered would be the date when the rest of the consignment ought also to have been delivered.' It was in connection with the first consignment, out of two consecutive consignments and shortage of four bags of bidi tobacco out of thirteen bags was found and these four bags could not be expected to arrive at the place of destination separately. The second consignment was booked on 20-9-1948, nearly three months after booking of the first consignment. Therefore, in the case of short delivery of the first consignment, the arrival of second consignment could not have been taken in determining the reasonable time because due to the time gap between the two consignments the circumstances attending the carriage of the two consignments cannot be taken to be identical. In the Supreme Court case (supra) which was also relied on on behalf of the respondents, notice of compensation was given by the plaintiff to the Railways on 22-1-1948. But he brought the suit in Dec. 1949. In that case limitation period started from 22-1-1948 due to the notice having been issued on the date.

12. It is the contention of the learned counsel for the plaintiff that considering reasonable time in the present case the time of fee partial delivery of the goods of the connected consignment should not be the basis. He submitted that on 4-8-1961 the connected consignment was booked which was despatched in two separate wagons noted above, one of which carrying 105 plates reached the destination place on 13-9-61 and that on 12-8-61 and on 1-9-61 two more consignments of the same goods were booked which were carried in different wagons, the last two of which reached the destination place five months after iheir booking. Therefore, according to the learned counsel this span of five months should be taken as the normal period of carriage of goods between those two points by the Railway administration. On the other hand, learned counsel for the respondents pointed out the evidence of P. W. 1, Sri A. V. S. Nayar who says 'we received the said depleted goods on 13-9-1961. The remaining goods was to be received on the same date under normal circumstances'. This is no doubt the remark of a man of the consignee who must have been quite eager to get hold of the goods in transit at the earliest passible time. This, however, does not fix up the reasonable point of time in the present case.

13. As it is found that substantial portions of goods which were booked at the place of despatch within periods of 27 days and 8 days from 4-8-1961 when the suit goods were booked at the same place of despatch and that those goods reached the place of destination not before a period of 5 months, it is quite reasonable to think that the normal period of carriage of goods between the point of despatch and the point of destination is not less than five months having regard to the fact that the Railway administration has, not put up any explanation for such belated delivery in the form of abnormal or unusual circumstances attending carriage of those goods. This being so, it has been quite proper on the part of the plaintiff-appellant to add five months to 4-8-1961 when the suit goods were consigned to fix the point of time from which limitation would run. The suit was filed on 20-2-1963 and according to the aforesaid calculation the last date of institution of the suit was 4-3-1963. As found earlier while discussing the case law referred to on behalf of the respondents, the sole factor of major portion of the consigned goods reaching the destination at a particular time cannot give start to the limitation period irrespective of the conditions and circumstances of the consignment as well as the function of carriage of the goods by the carrier generally. One particular case of carriage respecting the time consumed by the carrier when there are other similar circumstances involving different periods of carriage before the Court, cannot form the exclusive factor of calculation of limitation period. It is also found that the consignee was in correspondence with the different systems of carriage with regard to the non-delivered goods presumably expecting that the goods would be delivered by the carrier within a reasonable time. In view of the correspondences mentioned in the pleadings of the plaintiff which however have not been denied by the other side, it is quite proper to think that the plaintiff was taking into consideration the late arrival of other consignments. He was, therefore, rather awaiting receipt of the goods in view of the fact that such delay generally occurs with the Railway carrier. We, therefore, hold that the reasonable time as calculated by the plaintiff has not been wrong and in that view the suit is not time barred.

14. The result is that the appeal is allowed on contest but with no cost. The impugned judgment and decree passed by the Assistant District Judge-2, Gauhati dated 8-9-1972 are set aside and the suit is decreed in favour of the plaintiff-appellant to the effect that the plaintiff-appellant is entitled to get Rs. 16,473/- from the first defendant-respondent as compensation for loss of the undelivered suit goods.


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