Hombe Gowda, J.
(1) The only question for determination in this Second Appeal is whether or not the suit filed by the respondent for recovery of damages in respect of consignment of goods despatched from Agra to Shimoga is barred by limitationn. The decision on this point depends on our decision as to which of the Articles of the limitationn Act whether Article 30 or Article 31 of limitationn Act governs the case.
(2) The relevant facts are these: Sri Prakash Dall Mills of Agra consigned 200 bags of Toordhal to Shimoga and entrusted the goods to the present appellant and obtained the railway receipt. The railway receipt was endorsed in favour of the respondent to enable him to take delivery of the goods on arrival of Shimoga . The wagon containing the goods arrived at Shimoga on 31-7-1952. The respondent examined the goods and found that the bags containing the Toordhal had been damaged and there was some pilferage also. He , therefore, applied for and obtained open delivery of the goods. On 3-8-1952 the Commercial Inspector estimated the loss on account of the damage and also pilferage and made a copy of the estimated available to the plaintiff. The plaintiff thereafter filled up the claim form and applied to the appellant for recovery of a sum of Rs. 591--1--0 on account of the loss and damage caused it him. The appellant did not settle the claim. Therefore, the respondent issued coconut a notice calling upon the appellant to pay a sum of Rs. 709-10-0 being the value of the Toordhal short delivered and damaged and interest thereon from 31-7-1952 up to the date of suit which was filled on 12-8-1954.
The defendant- appellant resisted the claim of the plaintiff . He inter alia stated in his written statement that the suit filed by the plaintiff on 12-8-54 was barred by limitationn. The trial Court held that it is Article 31 of the limitationn Act that governed the case and that in view of the fact that the Railway Administration had acknowledged their liability under E exhibits P-and P-10, the suit filed by the plaintiff was within time. The appellant preferred an appeal against the decision of the trial Court and the appellate Court upheld the decision of the trial Court and dismissed the appeal filed by the appellant . It is against this decision that the present Second Appeal has been preferred by the appellant .
(3) It is clear from the facts narrated above that the claim advanced by the plaintiff --respondent was that 200 bags of Toordhal had been consigned by him from Agra to Shimoga and entrusted to the appellant----defendant and that there was a short delivery and damage caused to the goods. Prima facie Article 30 of the limitationn Act applies to the case since the loss or damage had been caused to the goods that were received on 3-8-1952. Under Article 30 of the limitationn Act, the plaintiff was bound to file the suit within one year when the loss or injury occurred to him, which as I have already stated was on 3-8-52. This suit was filed by the plaintiff for recovery of damages only on 12-8-54. So prima facie the suit is barred By limitationn.
It is on the basis that the appellant had in Exhibit P-7 and Exhibit P--10 admitted its liability that the Courts below came to the conclusion that the claim was not barred by limitationn. Exhibit P---7 is a reply sent by the Chief Commercial Superintendent dated 11-11-1952 in which he had called for the copies of the letters and enclosures on the ground that the originals were not traceable in his office. The commercial Superintendent had further stated in that letters that the respondent may intimate the rate per maund to enable him to take further action in the matter. He further stated that 'this is written without prejudice to Railway legal position.' There does not appear to be any acknowledgment of the liability in this letter. Even if it is assumed for the sake of argument that the letter amounts to an acknowledgment of liability, it does not in any help the respondent , for, the acknowledgment , if , any, was on 11-11-52. The present suit having been filed more than one year after this acknowledgment is prima facie barred by limitationn.
In so far as Exhibit P--10 is concerned, there is nothing in it to indicate that the appellant or the Commercial Superintendent, Madras acknowledged the liability in it in any manner. What all the Commercial Superintendent , Madras had done in the said letter was only a request to the respondent to send a copy of the original bill with its translations in English showing the rate per maund to enable him to take further action in the matter. There is absolutely nothing in that letter which indicates that the Commercial Superintendent had accepted the liability in any manner. This letter was sent to the respondent on 7-2-1953. Even if it is assumed that there is any indication of any acknowledgment of any liability on the part of the appellant in Exhibit P--10 ,it also does not any way save the limitationn, as, as already sated, the suit was filed on 12-8-54 more than one year after the receipt of this letter. The suit filed by the respondent was, therefore, barred by limitation nnnnnnn.
(4) Sri Tarakaram the learned counsel for the respondent having realise the position contended before us that it a Article 31 of the limitationn Act that governs the present case, it being a case of non delivery. He contented that in view of the fact that the entire quantity of goods under consignment was not delivered to the plaintiff and that the Railway Administration had refused to deliver the goods, it should be treated as a case of non delivery of goods and if that be so, it is Article 31 of the limitationn Act that governs the present case and the suit filed by the plaintiff on 12-8-54 is well within time. In support of his contention , he relied upon two decision reported in Raigarh Jute Mills Ltd. V. Commor. for the port of Calcutta : AIR1947Cal98 and Dominion of India v.S.G. Ahmad, AIR 1954 Nag 115. Those cases relate to pure and simple non-delivery of goods. There is no question of non-delivery in the present case. In the two cases relied upon by .Tarakaram there was no question of the goods having arrived at the place of destination and the shortage having been found in the goods as in the present case. The two cases do not in any way help the respondent .
Sri Naunjundiah, for the appellant , on the other hand cited a case which is exactly on all fours with case before as which is reported in Dominion of India v . Nagardas and Co. , : AIR1955Mad235 . In the case the goods consigned arrived at the place of destination. It was found that some pairs of dhoties had been abstracted or were found missing. As in this case the party applied for and took open delivery and it was ascertained that 140 pairs of dhoties were found to be missing from the bale. The plaintiff claimed damages by making an application in the prescribed form. After issuing the statutory notice under Section 80 of the code of Civil Procedure, he filed a suit for recovery of damages for loss of goods. The suit was admittedly filed beyond one year from the date when the plaintiff took open delivery of the goods. It was contended on behalf of the Railway Department that the suit filed by the plaintiff was barred by limitationn in view of the fact that the same had been filed more than one year after the plaintiff took delivery of the goods and that Article 30 of the limitationn Act governed the case. It was on the other hand contended on behalf of the plaintiff that it was Article 31 that governed the case and therefore, the suit filed by the plaintiff for recovery of damages, within one year after the Railway Authorities finally refused or failed to delivery the goods, was within them.
The learned Judge held that in the case of a claim against a railway administration for loss occurred by abstraction of dhoties out of a single bale, which the consignee took under open delivery, the suit is governed by Article 30 and not by Article 31 and the starting point of limitationn will be the date when the loss occurs, i.e. when on open delivery some of its contents are found missing. His Lordship further observed that had the bale not arrived at the station to which it was consigned, then the Article 30 would not be applicable and Article 31 would apply and the period of limitationn have been delivered. When an argument similar to the one that is advanced by Sri Tarakaram before us was advanced in that case of short delivery of goods should be treated as a case of non-delivery and that it is Article 31 that governed the case and hence a suit filed by the party for recovery of damages within one year from the date of such refusal or non-delivery on the part of the railway authorities, was within time, it was repelled by His Lordship in that case as follows:
' In cases such as this, where I have no hesitation in holding that Article 30 applies, if I accede to the learned advocate's contention that the limitationn period must commence from the date on which the railway administration expresses inability or refuses to delivery, in cases where they do not reply at all to notices, there would be no starting point of limitationn at all. The learned Subordinate Judge came to the conclusion that the Railway Administration had no available date for computing the period of one year under Article 31 and therefore the suit was not barred by time. That would means that the plaintiff could have filed the suit without any regard to time even 25 or 50 years hence.'
The facts of the case before us quite clear. It is a case wherein the entire quantity of 200 bags of Toordhal consigned from Agra had arrived at Shimoga on 31-7-52. The plaintiff on examination found some of the bags had been damaged on account of rain water getting into the waggon. He also found that some quantity of dhal had been abstracted by some one during transit and that, there was shortage. He, therefore, applied to the authorities for open delivery and for estimation of the loss occurred on that account. It cannot by any stretch of imagination be said that this is a case of non-delivery of goods. It is a pure and simple case of loss or damage of the goods delivered to the plaintiff . It is, therefore, a case governed by Article 30 of the limitationn Act and the suit is clearly barred by limitationn. The Courts below were entirely wrong in holding that the limitationn was saved on account of the acknowledgment of liability by the appellant in Exhibit P-7 and P-10. The appellant is, therefore, entitled to succeed in this appeal.
(4a) In the result, therefore, for the reasons stated above, this Second Appeal is allowed, and the decrees passed by the Courts below are set aside and the suit filed by the respondent against the appellant stands dismissed. In the circumstances of the case the parties are directed to bear their own costs throughout.
Das Gupta, C.J.
(5) I agree.
(6) Appeal allowed.