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F.D.R. Footwear Vs. N.W. Railway and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1933All348
AppellantF.D.R. Footwear
RespondentN.W. Railway and ors.
Excerpt:
- .....the defendant railway administrations. the secretary of state is impleaded as the railways are state railways. it appears that two consignments were despatched by the plaintiff from agra to wazirabad. the first arrived on 27th january 1930 and the second on 9th february 1930. delivery was not taken of the consignments and ultimately they were sent to the lost property office and sold in the ordinary course of procedure. the plaintiff was informed that a certain sum stood to his credit as the sale proceeds, but he refused to accept the amount offered and filed the present suit on 3rd july 1931. it was pleaded that the suit was barred by limitation and the suit has been dismissed on this preliminary point.2. the article applied by the trial court was article 31 which gives a period of.....
Judgment:
ORDER

King, J.

1. This application arises out of a suit for compensation for nondelivery of certain property consigned by the plaintiff through the defendant Railway Administrations. The Secretary of State is impleaded as the railways are State Railways. It appears that two consignments were despatched by the plaintiff from Agra to Wazirabad. The first arrived on 27th January 1930 and the second on 9th February 1930. Delivery was not taken of the consignments and ultimately they were sent to the lost property office and sold in the ordinary course of procedure. The plaintiff was informed that a certain sum stood to his credit as the sale proceeds, but he refused to accept the amount offered and filed the present suit on 3rd July 1931. It was pleaded that the suit was barred by limitation and the suit has been dismissed on this preliminary point.

2. The article applied by the trial Court was Article 31 which gives a period of one year for a suit against a carrier for compensation for non-delivery of. or delay in delivering, goods and the period runs from the time when the goods ought to be delivered. The trial Court took the view that the goods ought to have been delivered when the consignments arrived at their destination and as the suit had been filed more than a year from the later of these dates, it was time barred. The first point taken is that Article 31 does not apply because Government is not a 'carrier' within the meaning of Article 31. It is pointed out that in Section 2, Carriers Act, 1865, the expression 'common carrier' is defined as denoting

a person other than the Government, engaged in the business of transporting for hire property from place to place, by land or inland navigation for all persona indiscriminately.

3. The argument is that Government is expressly excluded from the definition of 'common carrier;' so Article 31 cannot apply to a suit against a State Railway. In this case it appears that both the railways concerned, namely, N.W. Railway and the G.I.P. Railway are State Railways. I think there is no force in this contention. It is true that Government is excluded from the definition of 'common carrier' for the purpose of the Carriers Act 1865 but Article 31, Limitation Act, does not contain the expression 'common carrier;' it only applies to a 'carrier' and is therefore presumably of a wider meaning. I see no reason on the face of it why it should not apply to a State Railway and Article 31 has been applied to the case of a State Railway in Radha Shyam Basalt v. Secretary of State (1917) 44 Cal 16. I may also note that in Mutsadi Lal v. B.B. & C.I. Ry. Co. A.I.R. 1920 All 157 Article 31 was applied to a suit of this nature although it does not appear that the railway in question was a State Railway.

4. The next point taken is that even if Article 31 does apply, then a fresh starting point of limitation was given by a letter dated 9th December 1930 from the Agent, N.W. Railway, to the plaintiff informing the plaintiff that in the absence of instructions from him the consignments had been sold at the lost property office and that a sum of Rs. 170-5-0 was placed at his credit and would be paid to him on his furnishing a receipt in full. This letter no doubt informs the plaintiff that a certain sum, namely, the balance of the sale proceeds of the property was payable to him on certain conditions, namely, that he would accept it in full satisfaction of his claim, but it cannot in my opinion be taken as an acknowledgment of any liability for the price of the goods or compensation for any wrongful detention or compensation for non-delivery. The letter itself shows that the State Railway was all along willing to deliver the consignments and only resorted to selling them owing to the fact that no one took delivery and the plaintiff gave no instructions regarding the disposal of the property. I cannot treat this letter as such an acknowledgment of liability as would give a fresh starting point of limitation for a suit for compensation for non-delivery.

5. It has further been argued that the trial Court was not justified in dismissing the suit: in toto because the defendant had himself admitted liability to pay Rs. 178-5-0 and this amount at least should have been decreed. In my opinion, this contention also cannot be accepted. The Agent of the N.W. Railway certainly made an offer to the plaintiff to pay Rs. 178-5-0 in full satisfaction of his claim, but if is clear from the plaint itself that the plaintiff refused this offer and instituted the suit claiming a much larger sum. As the plaintiff refused the defendant's offer, which was only made on certain conditions, he cannot, I think, claim that this sum should have been decreed to him in any case, as if it had been offered unconditionally. I see no reason to interfere and dismiss the application with costs.


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