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Kerodimal Khandelwal Vs. Union of India (Uoi) - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtOrissa High Court
Decided On
Case NumberSecond Appeal No. 244 of 1961
Judge
Reported inAIR1963Ori188
ActsLimitation Act, 1908 - Schedule - Article 31; Code of Civil Procedure (CPC) - Sections 80
AppellantKerodimal Khandelwal
RespondentUnion of India (Uoi)
Appellant AdvocateR.N. Sinha, Adv.
Respondent AdvocateB.K. Pal and ;Bijoy Pal, Advs.
DispositionAppeal dismissed
Cases ReferredBoota Mal v. Union of India
Excerpt:
.....is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section..........be delivered.'in order to appreciate this contention, it is necessary to mention that ex. 4 is the suit notice under section 80, c. p. c. whereby the plaintiff lodged a claim for rs. 890/-exclusive of expenses and interest. ex. 5 dated 3rd march 1958 is the reply to the notice under section 80, c. p. c. which may be quoted -'with reference to your notice under section 80, c. p. c. dated 9-1-1958, addressed to the general manager of this railway, which has been forwarded to this office for disposal, i would inform you that the matter is under correspondence with the north eastern railway. i shall let you know further on this subject as soon as a final reply is received from the said officials.'mr. sinha conceded that unless ex. 5 is construed to create hopes in the mind of the plaintiff.....
Judgment:

G.K. Misra, J.

1. Plaintiff is the appellant against a reversing judgment. On 15th January 1957 plaintiff indented 110bags of sugar from Sakri to Amarda Road. The articles werebooked in two wagons. 100 bags reached the destinationand on 29th January 1957 these bags were delivered tothe plaintiff by defendant I. The other ten bags, which werebooked in another wagon, were not delivered at all. There-after the plaintiff served a Registered notice (Ex. 4) under Section 80, C. P. C. on defendant 1 on 9th January 1958. Areply was sent by defendant 1 under Ex. 5 dated 3rd March1958. The suit was filed on 23rd June 1958. Defendants2 and 3 were added as parties to the suit on 8th September1959.

2. Defendant 1 mainly contested the suit. The nondelivery and the quantum of damage were admitted. The validity of the notices under Section 77 of the Indian Railways Act and Section 80, C. P. C. was questioned and a plea was taken that the suit was barred by limitation.

3. The Courts below concurrently rejected the objection as to the validity of the notices under Sections 77, Railways Act, and 80, C. P. C. The Trial Court decreed the suit against defendant 1 alone holding that the suit was not barred by limitation and dismissed the suit against defendants 2 and 3. Defendant 1 alone filed the first appeal but the plaintiff did not file any appeal against defendants2 and 3. The Trial Court's decree against defendants 2 and 3 became final and conclusive. The lower Appellate Courtdismissed the suit holding that the suit was barred by limitation.

4. Mr. Sinha does not dispute the position that the suit would be barred by limitation unless it is accepted that Ex. 5 dated 3rd March 1958 extends the period of limitation under Article 31 of the Limitation Act which provides-

'Against acarrier for compensation for non-delivery of, or delay in delivering goods.

one year

When the goodsought to be delivered.'

In order to appreciate this contention, it is necessary to mention that Ex. 4 is the suit Notice under Section 80, C. P. C. whereby the plaintiff lodged a claim for Rs. 890/-exclusive of expenses and interest. Ex. 5 dated 3rd March 1958 is the reply to the notice under Section 80, C. P. C. which may be quoted -

'With reference to your notice under Section 80, C. P. C. dated 9-1-1958, addressed to the General Manager of this Railway, which has been forwarded to this office for disposal, I would inform you that the matter is under correspondence with the North Eastern Railway. I shall let you know further on this subject as soon as a final reply is received from the said officials.'

Mr. Sinha conceded that unless Ex. 5 is construed to create hopes in the mind of the plaintiff that the goods ought tobe delivered by defendant 1 within a reasonable time from the date of the receipt of that letter, Ex. 5 cannot extend the period of limitation. Bereft of any authority, on a bare perusal of this letter, there can absolutely be no deubt in one's mind that the letter is incapable of creating any such impression. The letter is a reply to the notice under Section 80, C. P. C. whereunder a claim for recovery of maney was made. The letter is very vague and general and merely intimates that the notice under Section 80, C. P. C. had been forwarded for disposal and the matter was under correspondence with the North Eastern Railway. The letter certainly does not create any impression that the goods non-delivered are still in existence and as to their location and time of arrival. On such a construction the period of one year prescribed under Article 31 cannot be extended on the basis that the plaintiff expected on the strength of this letter that the goods would reach within a reasonable time, thereafter.

5. It is unnecessary to refer to various decisions cited.The matter was fully discussed in a Bench decision of thisCourt reported in Balasore Textiles Distributors Association w.Indian Union, ILR 1960 Cut 1 : (AIR 1960 Orissa 119). Butthe matter has been authoritatively settled by a decisionof the Supreme Court in Boota Mal v. Union of India, AIR1962 S C 1716. The entire principle with regard to thesubsequent correspondence has been discussed in paragraph12 of the judgment. Their Lordships held that the correspondence can only be taken into account to determine whatwould be reasonable time and not to show that because ofthe subsequent condu'ct of the Railway the reasonable timegot extended by the time taken by the Railway in tracingthe goods. Where correspondence provides material fromwhich reasonable time in a particular case may be foundout, the correspondence would be relevant to that extent.As I have already said, Ex. 5 is wholly nebulous and throws no light on the question in issue. It cannot therefore extent period of limitation.

6. In the result the appeal fails and is dismissed without costs.


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