C.M. Lodha, J.
1. This is a defendant's revision against the judgment and decree dated 10-11-1971 passed by the Second Additional District Judge, Gwalior exercising powers under the Provincial Small Cause Courts Act.
2. The plaintiff's case is that it entrusted 315 empty gas cylinders to the defendant for being transported from Gwalior to Jaipur, where they were to be delivered to M/s. Sanghi Oxygen Co., but the defendant delivered in all 304 cylinders only to M/s. Sanghi Oxygen Co. at Jaipur in three instalments between 16-9-1965 and 18-11-1965. It is further alleged by the plaintiff that by pursuing the matter with the defendant they were able to recover 6 cylinders more on 20-9-1966. Though it was not clarified in the plaint, but the plaintiff's witness Jagdish Narayan when he came in the witness box explained that account of 4 cylinders was adjusted but one cylinder remained with the defendant. Thus the plaintiff claimed Rs. 300/- on account of the price of the empty cylinders and Rs. 597/- as compensation by way of hire charges at the rate of one rupee per week and thus filed a suit for recovery of Rs. 897/-.
3. The defendant denied having taken delivery of any empty cylinders from the plaintiff. The plaintiff produced Jagdish Narayan in his evidence but no evidence was produced on behalf of the defendant. Consequently, the lower court decreed the plaintiff's suit as prayed. Aggrieved by the judgment and decree passed by the court below, the defendant has filed this revision.
4. The learned counsel for the petitioner urged that the suit is barred by limitation on the plaintiff's own allegations. He has submitted that even a specific plea was taken in the written statement on the question of limitation and the point was also argued before the lower court but it has given no decision on it. 5. The first question which arises for consideration is as to which Article of the Limitation Act would apply to the case. The learned counsel for the petitioner has submitted that the suit will be governed by Article 11 of the Limitation Act, 1963 whereas the contention on behalf of the non-petitioner is that the suit will be governed by Article 10. Articles 10 and 11 of the Limitation Act, 1963 read as under:--
Against a carrier forcompensation for losing or injuring goods.
When the loss or injuryoccurs.
Against a carrier forcompensation for non-delivery of, or delay in delivering Roods.
When the goods ought tobe delivered.
It is crystal clear from the language of Article 10 that it would apply only to a case where compensation is claimed for losing or injuring the goods whereas Article 11 covers cases of nondelivery of goods for whatever reason. It has been held in some cases that non-delivery of the consignment means non-delivery of the consignment as a whole as contrasted with short delivery and that the case of short delivery which is equivalent to loss of the portion of the consignment undelivered is governed for the purposes of limitation by Article 30 of the Act of 1908 corresponding to Article 10 of the 1963 Act. (Refer to AIR 1961 Andh Pra 454 and AIR 1955 Mad 285). On the contrary, the view that such a case is governed by Article 31 of the 1908 Act corresponding to Article 11 of the 1963 Act has been taken in a few other cases (Refer to AIR 1963 Andh Pra 344; AFR 1962 Pat 428 and AIR 1961 Raj 211). But in Buta-mal v. Union of India, (AIR 1962 SC 1716) the Supreme Court has applied Article 31 of the Limitation Act of 1908 (corresponding to Article 11 of the 1963 Act) to a case where the bulk of the goods had been delivered and only a part remained to be delivered. Consequently, to the extent the High Court decision applied Article 30 of 1908 Act to such a case they must be held to be no longer good law. I am, therefore, of the opinion that the present case U governed by Article 11 of the 1963 Act.
6. Now, if Article 11 applies, which in my view does, the question is which is the starting point of limitation. As mentioned in column 3 of Article 11, the starting point of limitation will be the date when the goods ought to be delivered. In the present case, there is no difficulty in determining that date inasmuch as the plaintiff himself has stated in para No. 3 of the plaint that out of 315 cylinders handed over to the defendant, 304 were delivered to the consignee at Jaipur in three instalments from 19-9-1965 to 18-11-1965. All the 315 cylinders are alleged to have been delivered on different dates from 17-8-1965 to 3-9-1965. Thus the plaintiff's own allegation is that the whole bulk of 315 cylinders ought to have been delivered to the consignee on or before 18-11-1965. Thus 18-11-1965 must be held to be the starting point of limitation within three years of which the suit should have been filed. In other words, the last date for filing the suit was 18-11-1968. But the suit has been filed on 16-6-1969, that is after about seven months of the expiry of the period of limitation, and is consequently barred by limitation. In para 9 of the plaint the plaintiff has alleged that the cause of action arose on 20-9-1966 when six cylinders were delivered to it by the defendant and also on the expiry of the period of notice dated 6-8-1968 served by the plaintiff on the defendant. However, as already pointed out above, the starting point of limitation is not the date of service of the notice but it is the date on which the goods ought to be delivered. There is no dispute as to the date when the goods ought to be delivered as according to the plaintiff's own admission, the whole bulk should have been delivered on or before 18-11-1965. I have, therefore, no alternative but to hold that the suit is barred by limitation.
7. In view of my decision on the point of limitation it is not necessary to examine the other contentions raised on behalf of the defendant.
8. Accordingly, I allow this revision, set aside the judgment and decree passed by the lower court and hereby dismiss the plaintiff's suit as time-barred. But in the circumstances of the case, and looking to the conduct of the defendant, I leave the parties to bear their own costs throughout.