Stuart and Sulaiman, JJ.
1. This is a plaintiff's appeal arising out of a suit for recovery of damages for non-delivery of goods.
2. On the 28th of August, 1918, the plaintiff purchased certain bales of cloth at Bombay, which his commission agents made over to the G.I.P. Railway for transmission to Chunar, which is on the E.I. Railway line, and duly obtained a Railway receipt for it. The goods, however, never reached Chunar. Hence the claim.
3. Both the Railway companies pleaded the bar of limitation, and both tried to throw the responsibility on the other. The Gr. I. P. Railway Company asserted that the goods were handed over to the E.I. Railway, at Manikpur junction, while the E.I. Railway Company denied having received the goods at all. . At the trial no dispute was raised as to the amount of damages claimed, nor was any issue struck on the point.
4. Both the courts below have found that the plaintiff has not yet received the goods and has suffered loss; and further that the plea raised by the E.I. Railway Company that they never received the goods was incorrect, and that in fact the goods did arrive at Allahabad but, owing to a mistake made by the goods clerk, they were despatched to Chupra instead of Chunar; they have, however, reluctantly dismissed the claim as being time-barred and have directed the parties to bear their own costs.
5. The treatment accorded to the plaintiff is unfortunately not the first which a consignee has had to suffer. When there was a delay in the arrival of the goods, the plaintiff started writing to both the companies, who delayed action by the plaintiff by informing him that the matter was under inquiry. A perusal of the lengthy correspondence that ensued shows that the plaintiff was all along made to believe that inquiry was being made. A letter of the 25th of February, 1919, stated that the matter had been referred to the General Traffic Manager. One, of the 3rd of April, 1919, showed that the matter was still under inquiry. That, of the 19th of April, 1919, asked the plaintiff to be at the station to receive the goods.
6. On the 22nd of April, 1919, the plaintiff was required to send a copy of the bijak, and the letter of the 19th of June, 1919, told him that the matter was receiving 'special attention' and that of the 12th of July, 1919, that 'the subject was receiving best attention.'
7. In December, 1919, the plaintiff was asked to call personally. In January and February, 1920, the E.I. Railway Company was still asking for particulars of the contents of the bales. On the 31st of March, 1920, the suit was actually instituted.
8. The recital of these few dates alone is sufficient to. show that the plaintiff was never informed what had happened to the goods, whether they were lost, injured or misdelivered, nor was he told when and where they were lost or injured. On the other hand, he was all along assured that inquiry was being made, which naturally made him wait. This assurance was continued even after the expiry of the period of one year which is now pleaded as a bar. When the E.I. Railway Company, by its own conduct, made the plaintiff await the result of the inquiry, it is rather startling to find the plea of limitation raised in defence on its behalf. However, as the companies' agents have thought fit to raise the plea, we are bound to consider it. The defendant companies plead the bar of Articles 30 and 31 of the Limitation Act.
9. Article 30 applies to suits for compensation for losing or injuring goods, and the period is one year from the date when the loss or injury occurs. It is obvious that the article refers to losing or injuring goods by the carrier and not by the plaintiff, that is to say, time begins to run from the time when the carrier lost or injured the goods, and not from the time when the consignee may be said to have suffered loss. This was the view expressed by RATTIGAN, J., in Fakir Chand v. Secretary of Stale for India in Council (1913) 19 Indian Cases, 477, following an earlier case of the Punjab Chief Court. We agree with his view that the words ' against a carrier for losing or injuring goods' obviously suggest not a mere loss of the goods to the owner, which might be caused by misdelivery, but an actual losing of goods by the carrier himself. Now, as we have already remarked, the companies do not suggest when and where the loss took place. The burden of proving when the goods were lost was decidedly on the companies, and it not being proved that the goods were lost by them more than one year before the institution of the suit, the claim is not barred by Article 30.
10. Article 31 fixes one year from the date when the goods ought to have been delivered and applies to suits to recover compensation for non-delivery. It is to be noted that in the present case no time was fixed for the delivery of goods, and the correspondence between the parties shows that the matter was being inquired into and that there was no refusal to deliver, up to well within a year of the suit. In the circumstances of the case we are unable to hold that the suit was instituted more than a year from the expiry of a reasonable time within which the goods should have been delivered. This view is fully supported by the case of The Madras and Southern Maharatta Railway Co. v. Bhimappa (1912) 17 Indian Cases 419.
11. The courts below have relied on the case of Mutsaddi Lal v. Bombay, Baroda and Central India Railway Co. (1920) I.L.R. 42 All., 390. That was a peculiar case. The plaintiff had consigned the goods on the 16th of January, 1913, and in February, 1914, the plaintiff was distinctly informed that the goods were not lost but were lying in their lost property office as delivery had not been claimed by any one, and that he should take delivery there. And yet the suit was not instituted till the 7th of January, 1919, the plaintiff claiming extension of time because of a letter of the 17th of March, 1916, under which the company had offered to pay him something as compensation. Banerji, J., held that that letter did not amount to an acknowledgment of liability so as to give a fresh start. On that finding the claim was clearly barred by time. It is true that in the body of the judgment there is a remark which may suggest that limitation begins to run from the expiry of the ordinary period of transit, but that remark is an obiter dictum as the point was not a point which had to be decided in that appeal. It, however, finds support from an earlier case, Great Indian Peninsula Railway v. Ganpat Rai (1911) I.L.R. 33 All. 544 but this also is distinguishable from the present case. The judgment in that case does not show that the company had been assuring the plaintiff that inquiry was being made or that he waited in pursuance of such an assurance.
12. In the present case, when the plaintiff had all along been assured that inquiry was being made, and he had even hopes of recovering the goods till September, 1919, it cannot be said that his claim was filed more than a year after the date when the goods ought to have been delivered. We do not recognize any inflexible rule that time must begin to run from the expiry of the ordinary period of transit.
13. We are, therefore, of opinion that the claim is not barred by time. The result is that we allow the appeal, set aside the decrees of the courts below and decree the plaintiff's suit with costs in all courts.