1. This petn. is to revise the judgment & decree in S. C. No. 83 of 1948-49 on the file of the learned Dist. J Civil Station, Bangalore. The facts of the case in brief ate as under : Six cases alleged to contain 'Aspro' bundles were booked on 1-8-1947 with M. S. & M. Rys. owned & managed by the petnr-deft. under invoice No 4165 Ex Salt Gotaurs Madras to Bangalore Cantonment with Risk Note Form A, by Messrs. J. L. Morrison Jones, India, Ltd., Madras to the pltf. When the goods were offered for delivery on 6-8-1947 to the pltf. one case was found damaged & when all the cases were opened, the contents of the consignment were said to have been short by Hi bundles of 'Aspro' of the value of Rs. 31-7-0 according to the pltf. The pltf. thereupon appears to have insisted on obtaining open delivery of the goods & the defts. agreed to do so without prejudice to their legal position, which reservation, it is averred, was not accepted by the pltf. Ultimately, when the goods were, in fact, taken delivery by the pltf., i.e. on 20 11-1947, delivery being without prejudice to the legal position of either party it was claimed by the pltf. that there was further shortage by 241/2 bundles of 'Aspro' The pltf. has, therefore, claimed Rs. 102 4 0, the value of 39 bundles of 'Aspro' together with Rs. 82 8 0 towards loss of interest on the amount invested on the goods. The deft, denied his liability for the condition in which the cases were received & delivered & for the shortage of 141/2 bundles of 'Aspro' as the pltf. was bound by the terms of Risk Note A as under the said Note, the deft. was not liable except on proof of the loss being due to the misconduct of the deft. co. The deft. did not admit any liability in respect of the further shortage of 241/2 bundles of 'Aspro' on the ground that it. was occasioned by the untenable attitude of the pltf who it is averred could have taken open delivery of the goods & accepted the offer of payment of Rs. 34-7-0 towards the shortage of 141/2 bundles of 'Aspro', without prejudice to the legal position of the deft. It was also asserted that the pltf's. claim for interest was untenable. The learned Dist. J. however, decreed the suit in respect of the value of 39 bundles of 'Aspro' with proportionate costs. This revn. petn. is against the said judgment & decree.
2. The point for consideration in this petn. is as to whether the deft. is liable for the shortage of goods discovered on 6-9-1947 & 20 11-1947 respectively. In regard to the shortage of 141/2 bundles of 'Aspro' found on 5-9.1947, the Rly. Administration offered to pay its value & sent a cash order for Rs. 84-7-0; the offer which was not withdrawn till the filing of the suit, amounted to an acknowledgment of the liability under Section 19, Limitation Act, on the part of the deft. & I am inclined to agree with the finding of the learned Dist. J. & held that the decree to that extent cannot be disturbed.
3. In regard to the claim foe the loss of 241/2 bundles, of 'Aspro' found on 20.11.1947 the question is whether it was due to the misconduct of the deft, or his servants in which case, the terms in the Risk Note A would be enforceable & the liability for the loss would be fixed on the deft. or whether it was occasioned by the unreasonable attitude of the pltf. in refusing to take delivery of the goods on 6-8-1947 in which case the suit would be barred by time Admittedly, the goods were received on 5-8-1947, & on 6-8-1947 when the pltf. went to take delivery of the goods he found that the planks of some of the cases of 'Aspro' had been broken & on 7-8-1947 he wrote to the Chief Commercial Manager of the deft. co. intimating the above fact & requesting him to issue instructions for open delivery of the goods. The pltf. is unable to show that he was entitled to insist on or get an open delivery of the goods whether by reason of any established principle of law or terms of contract; the deft, however, agreed to do so & gave necessary instructions for giving an open delivery of the goods. On 5 9 1947, the pltf. went to take delivery of the goods in accordance with the instructions but refused to do as on the ground that the Rly. authorities asked him to note in the delivery book without prejudice to the Rly's, legal position'. The conduct of the pltf. in refusing to take deli-very of the articles without prejudice to the Rly's legal position cannot by any means be said to be justifiable or reasonable, as it was in any event open to him to prefer his claim in a Ct. of law. It is admitted that the contract is covered by Risk Note A which is prescribed when the goods tendered for carriage are defectively packed as to render them liable to damage, & one of the terms therein is that the consignor holds the Rly. administration free from all responsibility for the condition in which the aforesaid goods may be delivered to the consigned at the destination & for any loss arising from the same except on proof that such loss arose from the misconduct on the part of the Rly. administration. There is no liability cast on the Rly. administration under Risk Note A to account for the loss, if any, but on the other hand, it throws the entire onus on the pltf. to prove misconduct on the part of the Rly. administration.
4. The further loss of 241/2 bundles of 'Aspro' found on 20-11-1947 is neither alleged, nor proved to be due to the misconduct on the part of the deft. or his servants & the mere fact that the deft, required the pltf. to take delivery of the goods without prejudice to his legal position cannot in any event be characterised as misconduct.
6. It is urged that the Rly. administration is responsible for the loss as the goods were left in their custody till 20-11-1947. It is not denied that the goods were ready for delivery on 6-8-1947. Even on 6-9-1947 the shortage was discovered to be only 141/2 bundles for which the Rly. administration admitted their liability. The goods had to be retained owing to the unreasonable attitude of the pltf. The pltf. should not have refused to take delivery or imposed his own conditions whatever remedy he may have had to enforce damages for the liability of the carriers. The proper remedy of the consignee is to take delivery of the damaged goods & claim damages thereafter. This aspect was the subject matter of decision by the Nagpur H. C. in Jusaf & Ismail Co. v. Governor-General in Council, A. I. R. (85) 1948 Nag. 65: (I. L. R. (1947) Nag. 335), wherein it was laid down thus:
'The consignee should take delivery of the consignment in the condition in which it is found after giving notice to the officer giving delivery as to its condition & then sue the Rly. Co for damage or shortage, if any. He baa no right in law to insist that either the Rly. Officer should make or he himself should be permitted to make an endorsement as to the damaged condition of the consignment in Rly. registers before taking delivery.'
6. The next point for consideration is about the bar of limitation. It is indisputable that the goods were presented to the pltf. to take delivery on 6-9-1947; the pltf. refused to take delivery on the ground that there was injury or damage to the cases & demanded open delivery as evidenced by his letter dated 7-8-1947. A reply was sent to him on 14-8-1947 acceding to his request, but he presented himself on 6-9-1947 & did not even then take delivery. He chose to enter into unnecessary correspondence & finally took delivery of the goods only on 20-11-1947. It is argued that since the question of his taking delivery was under correspondence, the point of time when the goods ought to have been delivered must be deemed to be 20-11-1947 & the suit would then be within time under Article 81, Limitation Act. Article 81 applies to a suit against a carrier for compensation for non-delivery of goods. The expression 'goods' has reference to the unit number of articles tendered for carriage & not to the details of its contents. 'Delivery' of the articles ordinarily implies the delivery of the number of articles entrusted; irrespective of the condition in which they are found. 'Non-delivery' would therefore mean the failure to deliver the unit number mentioned in the consignment either as a whole or in part; the expression 'short-delivery' connotes the delivery of articles short of the number consigned for delivery. In the present case, the packages consigned were six in number & all of them were delivered. The complaint is about the absence of a portion of the contents & not non-delivery of the cases or portion thereof. The argument that the absence of a portion of the contents of the cases consigned for delivery should be deemed as 'short-delivery' to that extent, & in consequence to be construed as 'non-delivery' as contemplated under Article 31, Limitation Act, does not commend itself. The shortage in the contents of the goods consigned is lessor injury to the goods. The article of the Limitation Act applicable to the circumstances of the present case is Article 30 & not Article 31. A period of one year is fixed under that provision & the time begins to run when the loss or injury occurs. The loss or injury to the goods was discovered on 6.8.1947 as admitted in the letter of the pltf. dated 7-8-1917. The pltf cannot claim extension of time on account of the correspondence--which was uncalled for--regarding open delivery he obtained, as observed in Secretary of State v. Neaz Ali Hamid Ali, A. I. R. (32) 1985 ALL 407 : (167 I. C. 46).
'Under Article 30, time begins to run from a perfectly definite date that is when the loss or injury occurs. Hence when it is clearly shown by the admission of the consignor's letter of 5-8-1931 that the loss bad occurred prior to that date, a suit brought on 15-10 1932 is clearly time-barred. In such a case pltf. cannot claim that limitation runs only from date of open delivery to him by the company.'
I am therefore of opinion that the present suit filed on 18.11-1918 is clearly barred by time as the loss was discovered on 6-8-1917 itself & time begins to run from that date alone.
7. In the result, the decree of the learned Dist. J. is modified by allowing the pltf 3. claim for Rs. 34-7-0 only. The rest of the suit claim is dismissed, parties bearing their own costs throughout.