G.K. Misra, J.
1. Defendant is the petitioner. The plaintiffs case is that a consignment consisting of 219 bags of rice was despatched from Gunupur Railway Station to the plaintiff at Cuttack through the defendant-railway. The defendant delivered 180 bags on 21-9-59 and 33 bags on 31-1-59 to the plaintiff, and the rest 6 bags have not been-delivered. The plaintiff claimed Rs. 316/- as damages The defendant contested the suit only on the ground of limitation. The suit was filed on 26-4-60 and Section 80 notice was served on 9-1-60. According to the defendant, limitation begins from 21-1-59 when the 180 bags of rice were delivered, and after giving margin for 14 months, the suit is barred under Article 31 of the Limitation Act,
2. The learned S. C. C. Judge decreed the plaintiff's suit for Rs. 308/- holding that the suit is not barred by limitation. The learned Judge's finding is quoted as follows :
'In the instant case it is admitted by the defence witness D. W. 1 that the despatching station Gunupur being situated in narrow gauge, the consignment in question was despatched in several lots as the wagons in question in the narrow gauge are small ones. This also involves transhipment. At the time of delivery also the consignment has been delivered in two lots at interval of 10 says.
In such event, it is only natural to presume that not only the local railway authorities but the plff. as well could be expecting the remaining 6 bags to arrive later. This in fact was conceded by the learned defence advocate who urged that at best a period of 10 days may be allowed with effect from 31-1-59. In my view, till the grant of the shortage certificate Ext. 1 on 27-2-59 the railway must have held out hopes and the plff. must have been expecting for the remaining 6 bags to arrive. I am not able to agree with the defence lawyer that from 31-1-59 to 27-2-59 is an inordinately long time for the plaintiff to wait for the goods and the local delivery officers to hold out hopes for delivery of goods. In this particular circumstances of the case 27-2-59 shall be construed as the starting point of limitation'.
The finding of the learned S. C. C. Judge that the railway must have held out hopes, is contrary to his previous finding wherein he stated 'There is no oral and documentary evidence to show specifically that the railway held out hopes of the delivery of the remaining six bags of rice to the plaintiff'. 1 have also gone through the evidence in the case and there is absolutely no material that the railway held out hopes to the plaintiff as to when the remaining 6 bags of rice would be delivered.
It is elementary that a shortage certificate amounts to neither acknowledgment of liability nor holds out any hope to the plaintiff as to the time of delivery. A shortage certificate is merely evidence of the actual event that certain goods or articles have fallen short with reference to what the plaintiff states to have despatched. It is not also proof of the fact that the quantum of goods claimed to have been despatched was actually despatched unless the consignor proves the quantum of despatch. In certain cases it may be proof of actual loss, but not in all cases. For instance, where the articles are despatched inside a cover, what exactly were despatched is not within the knowledge of the railway excepting that a particular parcel was despatched. In this view of the matter, the learned Judge's finding is based on surmises and no evidence. The rest of the factors relied upon by the learned S. C. C. Judge that the articles had to be transhipped from a narrow gauge railway to a broad gauge railway and thefactum of delivery of most of the bags on two differentdates would not protect the suit from being hit by limitation.
3. As to the meaning and contents of Article 31 of the Limitation Act, which admittedly has application to the facts of this case, their Lordships of the Supreme Court have recently pronounced the law in an unreported decision, Boota Mal v. Union of India (Since reported in AIR 1962 SC 1716). Article 31 reads as follows:
Description of suit.Period of limitation.Time from which period begins to run.
31.Against a carrier for compensation for non- delivery of, or delay in delivering goods.
One year.When the goods ought to be delivered.
On this Article there was great difference of opinion as to its meaning.
Their Lordships examined the cases of different High Courts in India and laid down as follows:
'Reading the words in their plain grammatical meaning they are in our opinion capable of only one interpretation, namely, that they contemplate that the time would begin to run after a reasonable period has elapsed on the expiry of which the delivery ought to have been made. The words 'when the goods ought to be delivered' can only mean the reasonable time taken (in the absence of any term in the contract from which the time can be inferred expressly or impliedly) in the carriage of the goods from the piece of despatch to the place of destination.
Take the case, where the cause of action is based on delay in delivering the goods. In such a case the goods have been delivered and the claim is based on the delay caused in the delivery. Obviously the question of delay can only be decided on the basis of what would be the reasonable time for the carriage of goods from the place of despatch to the place of destination. Any time taken over and above that would be a case of delay. Therefore, when we consider the interpretation of these words in the third column with respect to the case of non-delivery, they must mean the same thing, namely, the reasonable time taken for the carriage of goods from the place of despatch to the place of destination. The view therefore taken by some of the High Courts that the time begins from the date when the railway finally refuses, to deliver cannot be correct, for the words in the third, column of Article 31 are incapable of being interpreted as meaning the final refusal of the carrier to deliver.'
The learned S. C. C. Judge exactly fell into the error which their Lordships of the Supreme Court cautioned against. Later on, their Lordships, further observed,--
'The very fact that Article 31 deals with both cases of non-delivery of goods and delay in delivering the goods shows that in either case the starting point of limitation is after reasonable time has elapsed for the carriage of goods from the place of despatch to the place of destination. The fact that what is reasonable time must depend upon the circumstances of each case and the further fact that the carrier may have to show eventually what is the reasonable time for carriage of goods would in our opinion make no difference to the interpretation of the words used in the third column of Article 31. Nor do we think that there would be generally speaking any question of estoppel in the matter of the starting point of limitation because of any correspondence carried on between the carrier and the person whose goods are carried. But, undoubtedly, if the correspondence discloses anything which may amount to an acknowledgment of liability of the carrier that will give a fresh starting point of limitation.
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 Dominion of India v. Aminchand Bholanath, (S) AIR 1957 Punj 49, 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.'
Applying this test there is no correspondence in this case disclosing any acknowledgment of liability and the shortage certificate is not a piece of subsequent conduct affecting determination of the reasonable time for the, carriage of goods from the place of despatch to the place of destination. On this test also it cannot be said that the reasonable time continues till the date of granting a shortage certificate. In fact, it has absolutely no connection with the concept.
4. Their Lordships also in categorical terms observed:
'It is rather difficult to understand how the subsequent correspondence between the Railway and the consignor or the consignee can make any difference to the starting point of limitation, when that correspondence only showed that the railway was trying to trace the goods. The period that might be taken in tracing the goods can have no relevancy in determining the reasonable time that is required for the carriage of the goods from the place of despatch to the place of destination. .......If the correspondence is only about tracing, the goods that would not be material in considering the question as to when the goods ought to have been delivered.
On the other hand if the correspondence discloses material which might throw light on the question of determining the reasonable time for carriage of the goods from the place of despatch to the place of destination, then it may be open to the court to take into account the correspondence. Further, if there is anything in the correspondence which has a bearing on the question of reasonable time and the railway wants to go back on that, to that extent the railway may be estopped from denying that. But the correspondence can only be taken into account to determine what would be the reasonable time and not to show that because of the subsequent conduct of the railway the reasonable time got extended by the time taken by the railway in tracing the goods. Where however the correspondence provides material from which reasonable time in a particular case may be found out the correspondence would be relevant to that extent.
For example, take a case where the correspondence shows that a certain bridge between the place of despatch and the place of destination has beer, destroyed on account of floods and that is the reason why the goods have not reached the place of destination. In such a case the correspondence may well be taken into account to find cut the reasonable time for the carriage of the goods in the circumstances. This will show that reasonable time will depend upon the facts of each case and that in the absence of any special circumstances the reasonable time would practically be the same between two stations as would normally or usually or ordinarily be taken for the carriage of goods from the one station to the other. Further there may be no difficulty in 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 goods have been delivered.'
5. It is manifest from the aforesaid dictum that unless special circumstances are made out, the reasonable time is that within which the bulk of the goods have been delivered. In this case 180 bags were delivered on 21-1-59. For the goods to come from Gunupur to Cuttack despite the fact that it involves transhipment from narrow gauge to broad gauge, the reasonable time would be about 5 days. The fact that 33 bags reached on 31-1-59 does not mean that the reasonable time for the goods to reach Cuttack would be 15 days. That may be a case of delay on the part of the defendant. At any rate, to think that for the 6 bags to reach Cuttack to Gunupur the reasonable time would be still beyond 31-1-59 would be somewhat fantastic. On the contrary, when 180 bags reached within 5 days the consignor or the consignee could be apprehensive as to why the rest did not reach within the reasonable time, and when 33 bags reached Cuttack on 31-1-59 one would be apprehensive that the other 6 bags may not reach at all. Therefore, there is no subsequent conduct on the part of the defendant in this case which has any material bearing on the question of determination of reasonable time for the goods to arrive from the despatching station to the delivery station. Mr. Sen contended that the fact that the goods came in instalments created an impression in his mind that the balance 6 bags would come in another instalment and the reasonable belief created in his mind is relevant for determination of the reasonable time. This contention is contrary to law. All the bags were despatched at a time and though due to transhipment goods might be coming in instalments, in principle it makes no difference as to the reasonable time for the arrival of the goods from the despatching station to the delivery station, and the observation of their Lordships that
'where the bulk of the goods have been delivered and only a part has not been delivered, 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'
apply with full force, to a case where the goods were delivered at a time but were coming in instalments, unless there is a special contract that goods would come in instalments. The fact that the defendant gave no reply to the notice under Section 77 of the Railways Act and Section 80 of the C. P. C. has no bearing on the question, of determination of the reasonable time.
6. I am of opinion that the reasonable time in this particular case would be that the goods would be expected to reach Cuttack on 21-1-59. At any rate, when the 6 bags did not reach on 31-1-59 when further 33 bags were delivered, the plaintiff ought to have thought that there is no chance of the goods further reaching Cuttack. The view taken by the learned S. C. C. Judge is contrary to law and he exercised his jurisdiction illegally in taking extraneous matters into consideration and not the correct law on the point. B. and N. W. Ry. Co. Ltd. v. Kameshwar Singh, AIR 1933 Pat 45, Union of India v. Messrs. Textile Trading Co., AIR 1960 Pat 102 and Lalchand Chowdhury v. Union of India, AIR 1960 Cal 270, cited by Mr. Sen are no longer sound after the Supreme Court decision.
7. In the result the Civil Revision is allowed with costs throughout. Hearing fee of Rs. 50/-.