R.N. Misra, J.
1. This is an appeal by the defendants against a reversing judgment of the lower appellate court in a suit for recovery of Rs. 3961.37 on account of non-delivery of goods consigned over the appellant Railways,
2. The plaintiff came forward with a case that he was a businessman and placed orders for cotton piece goods with a manufacturer at Mau. On 18-12-60, a consignment of cotton piece goods was despatched to Cuttack and the corresponding railway receipt was endorsed to the plaintiff. Mau is a railway junction on the North Eastern Railway Station, for delivery to the plaintiff. The plaintiff approached the authorities at the Cuttack Railway Station for taking delivery of the consignment, but until 17-1-61 endorsements were given on the railway receipt that the consignment had not arrived. On 20-1-61, the plaintiff was told that the consignment had arrived and the freight was collected from him with demurrage (wharfage) for 2 days as is evidenced by the money receipt (Ext. 1) and a chit was issued to him to take delivery of the consignment. The averments in the plaint show that the plaintiff's brother (P.W. 1) who had been deputed for the purpose could not find out the consignment meant for him and ultimately delivery could not be taken. On the footing that it was a case of non-delivery, a claim was lodged, notice was issued and the suit was filed on 17-3-62.
3. The defence taken by the two Railways was that there was defect in the notice, there was limitation under Article 31 of the Limitation Act, and the plaintiff had not been offered a different parcel than what was booked from Mau and was meant for him.
4. The trial Court came to hold that the plaintiff was entitled to the consignment and the proper consignment had not been offered, but it came to hold that the suit was barred by limitation. By applying the provisions of Article 31 of the Limitation Act of 1908, it found that limitation was to run from 20-12-60 and even if two months' time meant for notice be added to the period prescribed under that Article, the plaintiff was entitled to a total period of 14 months and, therefore, the suit having been filed beyond that period was barred by limitation.
5. An appeal was carried by the plaintiff and the learned Appellate Judge came to hold that the consignment in question was actually received at Cuttack on 17-1-61, and since there was no other evidence to find out what was the reasonable time limitation must be computed from that date. On that footing he came to hold that the suit was filed on the last day of limitation and was within time. Therefore, while reiterating the other findings of the trial Court he came to hold that the plaintiff's suit is to be decreed. It is against this reversing judgment of the lower appellate court that the Railways have come in appeal before this Court.
6. The only point that has been canvassed during the hearing of the appeal is one relating to limitation. It is not disputed that to the facts of the present case the limitation applicable is as provided under Article 31 of the Limitation Act, 1908. That Article provides:--
'Description of goodsPeriod of LimitationTime from which periodbegins to run.
31.Against a carrier for compensation for nondelivery of, or delay in delivering goods.
One yearWhen the goods ought to be delivered.'
The main point for consideration is as to what would be the point of time from which limitation of one year is to run. For that purpose, as quoted in the third column above, the limitation is to run from the date when the goods ought to have been delivered. Therefore, the question that is material is to find out what is the reasonable time for delivery of the goods in respect of a consignment from Mau junction to Cuttack Railway Station.
7. Two witnesses:-- One for the plaintiff and another for the defendants-- have been examined in this case. P.W. 1, the plaintiff's brother, has deposed thus:--
'I went several times to take delivery and each time I was told that the consignment has not reached. The endorsement of non-arrival was made on Ext. A till 17-1-61. On 20-1-61 I was told that the consignment has arrived. I made over Ext. A and paid the freight ............When I went to take delivery a parcel of smaller size was shown to me and a due slip was given to me. This is that due slip marked Ext. 2. With that slip I went to L.P.O. office, but I could not see my parcel. Railway wanted to deliver a different parcel to us, but I refused to accept it as there was no name of the consginor nor the private mark ............The consignment from Mau junction comes within one month to Cuttack.'
The witness for the Railways was a clerk of the Cuttack Railway Station and was examined as D.W. 1. He stated thus:--
'The suit consignment arrived at Cuttack on 20-12-61. This is the entry in the unloading book marked Ext. C .........It takes 3 to 4 days for a parcel to reach Cuttack from Mau junction. The suit consignment arrived at Cuttack on the third day. Demurrage (wharfage) is charged from the date of the receipt of the parcel if the party fails to take delivery. Under Ext. 1 demurrage has been charged for 2 days only. The suit consignment has been entered in the Delivery Book on 17-1-61 as it came with a memo but without receipt ..................Innumerable parcels are received from Mau Junction and all the consignments are noted in the delivery registers. The Delivery Register would show when the parcels are booked and when delivered. I have not followed any parcel from Mau junction to Cuttack.'
The question as to what is the reasonable time came to be examined by the Supreme Court in ATR 1962 SC 1716 (Boota Mal v. Union of India). Wanchoo, J., as he then was, speaking for the Court, said,
'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.'
It thus appears clear that what is reasonable time in a given case would depend upon the facts and circumstances of that case, the evidence led by the parties and the findings arrived at as a fact that a particular period would be the reasonable time for effecting the delivery whereafter time would commence to run under Article 31 of the Limitation Act.
8. As has been laid down by Subba Rao J., as he then was, in AIR 1960 SC 233 (Union of India v. Amar Singh) and by Mudholkar J. in AIR 1962 SC 1879 (Jetmull Bhojraj v. D. H. Rly. Co. Ltd.), the burden would be on the Railway Administration which wants to non-suit the plaintiff on the ground of limitation to establish as to what would be the reasonable time for a consignment to travel between Mau Junction and Cuttack Railway Station. Apart from the technical aspect of burden of proof, the Railway would be, between the two, in an advantageous position to establish the question of reasonable time as a fact. The evidence of D.W. 1 in this case would clearly show that there was enough material in its custody to place before the Court to help the Court to find as to what would be the reasonable time in respect of a consignment to travel between the two stations in question. Though the defendants were possessed of sufficient material, the same has not been placed before the Court and the Court has been deprived of the advantage of looking into the relevant data to come to record a finding as a fact as to what is the reasonable time on the basis of such material. Having withheld the material and having failed to lead evidence to help the Court to find as a fact what would be the reasonable time in the present case, the Railway Administration cannot be heard to contend that the suit is out of time particularly when the finding against them has been recorded on whatever material has been available on the record.
9. The learned Additional Subordinate Judge kept the legal perspective in view when he made an attempt to find what was the reasonable time in this case, Since the Railway Administration wanted to rely upon the only instance which formed the basis for the present action for the purpose of establishing to reasonable time, he examined the matter at length and ultimately concluded that the consignment in question had arrived on 17-1-61. Let me extract a part of his reasonings and the ultimate finding:--
'But on an examination of the evidence of P. W. 1 and the entry in the delivery register, I am unable to agree with the above conclusion of the learned Munsif. It is no doubt true that in the unloading register Ext. C there is an entry purported to have been made on 20-12-1960 showing arrival of the parcel on that date at Cuttack. But this entry tested with the entry in the delivery register and other evidence and circumstances of the case, it appears clear to me that the entry Ext. C-1 has been subsequently made. The evidence of D.W. 1 shows that the delivery register would only indicate when the parcels were booked and when delivered. But besides showing those two dates, as stated by the witness, there is a column for noting another date under the heading 'Receipt' on the right hand page to the immediate left of the column where the date of delivery is to be noted. In respect of the suit consignment besides the dates 18/12 and 20/1 which are the dates of booking and delivery respectively there is another date 17/1 written to the immediate left of the date 20/1 (the date of delivery). This date of 17/1 has not been explained by the D.W. 1. It cannot also be said to be the date of entry in this register, because, there is a date in the first column and it is 20/1. Further according to the evidence of D.W. 1, demurrage is charged from the date of receipt of the parcel if the party fails to take delivery of. But his evidence in this case is that in the instant case demurrage for two days has only been charged. He has not assigned any reason why this concession or favour was shown to the plaintiff. The learned counsel for the respondents, has contended that charging or non-charging of demurrage is not the criterion to fix up the date of arrival of the parcel. Demurrage is charged after expiry of a free period allowed to the owner to lift the goods from the parcel office. But he has not been able to cite any direct authority in support of his contention or to show that the statement by his own witness is contrary to rule or law. The realisation of demurrage for two days only, in my view, fits in with the plaintiff's case that the parcel had not reached prior to 17/1. There is also unimpeachable evidence of the plaintiff that he approached several times, to take delivery of the consignment and each time he was told that the consignment had not reached. The endorsement of non-arrival was made on Ext. A till 17-1-1961. On 20-1-61, he was told that the consignment had reached. The above unchallenged testimony of the plaintiff would undoubtedly show that the suit consignment had not reached till the endorsement on 17-1-1961 was made on Ext. A ............... For the reasons stated above I am not in a position to hold that the parcel had reached on 20-12-60 as alleged by the defence. On the other hand, from the plaintiff's evidence and the entry in the delivery register, the fact of endorsement on Ext. A, the assertion of the plaintiff that the parcel reached on 17-1-1961 is to be accepted.'
The realisation of demurrage or wharfage as Mr. Pal correctly puts it, for two days along with the entries and absence of explanation from D.W. 1 or non-examination of competent witnesses to explain the circumstances in which the entries were made leaves little scope to differ from the learned Appellate Judge on this score. I am, therefore, led to hold that the particular consignment arrived at Cuttack on 17-1-61. In the absence of any other material to show what is the reasonable time and having discarded the defence stand that the consignment in question had arrived within 3 days of despatch the reasonable time as a fact in the present case must be held to be about a month on the basis that what was consigned on 18-12-60 at Mau reached Cuttack on 17-1-61. Once a month's time, as is deposed to by P.W. 1. is accepted as the reasonable time, limitation must commence from 17-1-61. On that footing, the suit must be taken to be within limitation as one year plus the notice period of 2 months has to be taken into account.
10. There is another aspect of the case to be noticed at this stage. Ext. 2 was issued by the Railway Administration on 20-1-61. It reads to the following effect--
I/C. L.P.O. -- The Pkg. (package) lying at L.P.O. please refer to page No. (sic) of the (sic) list. You will find the entry on the right side ............
This endorsement clearly goes to show that the parcel was available on 20-1-61 and Mr. Misra for the plaintiff contends that this may also provide as a basis for negativing limitation and limitation may be said to run from this date. It is not very material to examine this aspect of the matter on account of the earlier finding already recorded that in the present case one month must be taken to be the reasonable time for the consignment to travel from Mau Junction to Cuttack Railway Station.
11. The aforesaid findings were sufficient to dispose of the case against the Railway administration. Another aspect was, however, seriously argued by Mr. Pal and I think, I should advert to it. As the learned Additional Subordinate Judge has observed, until 17-1-61 the Railway Authorities charged with the duty of delivering the consignment to the consignee had been representing to the plaintiff that the consignment in question had not arrived. Once in a particular case the authorised officer makes the representation that the consignment has not arrived and on the basis of such representation the consignee acts, would not a plea of estoppel be available to the consignee against the Railway Administration? To my mind, the answer is obvious and in the affirmative. Their Lordships of the Supreme Court in AIR 1962 SC 1716 referred to above have not negatived the plea of estoppel in such cases or in such circumstances. In AIR 1933 Pat 45 (B. & N. W. Rly. Co. Ltd. v. Kameswar Singh) the facts and circumstances were different and estoppel was found not to be available against the Railway on the facts of the said case. In the present case, I am led to aqcept the position that a clear/ case of estoppel is made out in relation to the non-receipt of the consignment until 17-1-61 and it is not open to the Railway Administration to establish that this very consignment had arrived earlier and on that basis 'what is reasonable time' can be established to the material prejudice of the consignee. It is to this limited extent that the plea of estoppel, according to me, can be raised. Such a position does not run counter to the ratio decided in AIR 1962 SC 1716.
12. On the aforesaid analysis of the matter, the lower appellate Court's decision seems to be unvulnerable and there is no merit in this Second Appeal The Second Appeal is, therefore, dismissed. The plaintiff's suit is decreed with costs throughout.
13. Leave, as prayed for under clause 10 of the Orissa High Court Order, is granted.