Bishambhar Dayal, C.J.
1. This is plaintiffs' second appeal.
2. The plaintiffs were the consignees of 13 bales of cloth out of which only 10 bales were delivered to them on 119th August 1961. Thus there was a shortage of three bales. The plaintiffs therefore filed a suit on 19th October 1962 for the recovery of the price and the loss in respect of these three bales. The trial court dismissed the suit on the ground of limitation, but held that the non-delivery of three bales was due to the misconduct of railway servants. It also held that if the suit had been within limitation then the plaintiffs would have been entitled to the price of these three bales namely Rs. 2,893.63 P., but not to any profit on these three bales. In appeal by the plaintiffs only the question of limitation was agitated, regarding which the first appellate court agreeing with the trial court held that the suit was barred by limitation. According to the court below, limitation for filing the suit would start from 18th August 1961 which was the date when the consignment arrived at the destination and not from 19th August 1961 when ten bales were actually delivered to the plaintiffs.
3. In this appeal learned counsel for the appellants has contended that the courts below erred in holding that the limitation started from 18th August 1961 when ten bales arrived at the destination station and not from 19th August 1961 when the other three bales ought to havebeen delivered to the plaintiff along with those ten bales delivered on that date.
4. Learned counsel for the respondent has contended that in this case old Article 30 would be applicable as this was a case of loss which became known on 18th August 1961 when ten bales arrived at the destination station and hence the cause of action arose on 18th August 1961.
5. I have heard learned counsel for both the parties and have come to the conclusion that this appeal must be allowed. The distinction between the old Arts. 30 and 31 was considered by their Lordships of the Supreme Court in Governor-General in Council v. Musaddi Lal, AIR 1961 SC 725. In paragraph 6 their Lordships observed as follows:--
'There are undoubtedly two distinctarticles. Arts. 30 and 31 in the first schedule of the Indian Limitation Act dealingwith limitation for suits for compensation against carriers. Article 30 prescribes the period of limitation for suitsagainst a carrier for compensation againstloss or injury to goods and Article 31 prescribes the period of limitation for suitsfor compensation against a carrier fornon-delivery or delay in delivering thegoods'.
In the present case the plaintiff's suit Is based on non-delivery of three bales of cloth. Obviously, therefore, Article 31 is applicable to the case. If goods had been delivered to the plaintiff in a damaged state and the claim had been on account of loss of or injury to the goods, then Article 30 would have been applicable. Their Lordships of the Supreme Court again in Boota Mal v. Union of India, AIR 1962 SC 1716 dealt with a case of non-delivery of goods and they applied Article 31 to the case. Interpreting the language of Article 31 and after considering a large number of cases, they came to the conclusion:
'As we have said already, the words in the third column refer to reasonable time taken for the carriage of goods from the place of despatch to the place of destination and this reasonable time generally speaking cannot be affected by the subsequent conduct of the parties. We are therefore of opinion that the answer given by the Full Bench in the case of Aminchand Bholanath. AIR 1957 Punj 49 (FB) that 'the limitation in such cases starts on the expiry of the time fixed between the parties and in the absence of any such agreement the limitation starts on the expiry of reasonable time Which is to be decided according to the circumstances of each case' is correct'.
Thereafter their Lordships proceeded to deal with the cases in which there was not a total loss of the consignment but a part of the consignment was delivered and a part thereof was not delivered, and in such cases it was observed as follows:--
'Further there may be no difficulty on finding out the reasonable time where bulk of the goods have been delivered and only a part has not been delivered, for in such a case in the absence of special circumstances it should be easy to see that the reasonable time is that within which the bulk of the goods have been delivered. We may in this connection refer to Union of India v. Meghraj Agarwala, AIR 1958 Cal 434 and Gajanand Rajgoria v. Union of India, AIR 1955 Pat 182 where it has been held that where a part of the consignment has been delivered, that should, in spite of the correspondence regarding inquiries and in the absence of circumstances leading to the contrary view, be taken to be the date when the goods ought to have been delivered as a whole within the meaning of those words in Article 31.'
Thus, the very words of Article 31 namely 'when the goods ought to have been delivered' necessarily lead in the present case to the conclusion that the other three bales ought to have been delivered along with the ten bales when they were delivered on 19th August 1961 and the limitation would naturally start from 19th August 1961.
6. Learned counsel for the Railway contended that the time requisite for the Roods to arrive at the destination was only up to 18th August 1961 and the consignee did not come to take delivery on 18th August 1961. He is therefore himself to blame and the limitation cannot start from 19th August 1961. Learned counsel for the appellant has contended that from, the record it is quite clear that the goods arrived at 17.45 hours on 18th August 1961 and it was not possible to take delivery on 18th August 1961 as delivery office was closed after 17 hours and, in these circumstances, if delivery was taken on 19th August 1961, it cannot be said that it was unduly delayed on account of the laches of the plaintiff.
7. Learned counsel for the Railway relied upon Union of India v. New India Assurance Co.. AIR 1969 Pat 154 and M. K. R. Chettiar & Co. v. Union of India. AIR 1971 Mad 34. Both these are cases in which the goods were delivered in damaged condition. They are not cases in which goods were not delivered at all, and are therefore distinguishable.
8. After considering the whole matter I am satisfied that the limitation should have been calculated from the 19th August 1961 when the missing three bales ought to have been delivered to the plaintiffs along with the other ten bales. The suit was, therefore, within limitation.
9. The order of dismissal of the suit passed by the courts below is accordingly set aside and the plaintiffs' suit is decreed for Rs. 2,893.63 P. with costs throughout. Permission to file Letters Patent Appeal is refused.