R.K. Das, J.
1. This is an appeal by tie Union of India, representing the South, Eastern Railways, against the confirming judgment of the Sub. Judge of Sambalpur dated 28th July, 1962, in a suit filed by the plaintiff for recovery of RS. 3999/- from the appellant.
2. The suit was filed by respondent Madhusudhan Sahu, the plaintiff in this case. According to him, he was carrying on business in cloth under the name and style of 'Orissa Cloth Stores' which was previously known as 'Madhusudhan 'Ramkumar Mahalaxmi Bastra Bhandar'. On 22-2-57 he placed an order for our bales of cloth on Messrs Shewchandri Muralidhar of Calcutta to be delivered at Rourkela Railway Station on South Eastern Railways.
The consignment was despatched from How-rah on 2-2-57 under R/R No. 37519 in the name of the consignee Madhusudhan Ramkumar. On 19-2-57 the consignee took delivery of only two bales and as there was shortage of two bales, he was given a shortage certificate (Ext. 5) by the Station Master, Rourkela. On 20-3-1957 and 1-2-1958 the plaintiff consignee gave due notice under Section 77 of the Indian Railways Act and Section 80 of the Code of Civil Procedure. Exts. 1 and 2, respectively and obtained necessary acknowledgments (Exts. 1(a) and 2(a) ) from the defdt. Railways.
As the goods or the value thereof was not delivered to the plaintiff, he filed the present suit on 8-4-59 for realising the aforesaid amount. The plaintiff claimed that on account of the negligence and misconduct on the part of the Railway authorities, he has been put to the loss of the goods. He also claimed that the suit is saved from limitation on account of the acknowledgments of the liabilities made by the railway authorities in their letters, Exts. 3 and 4 dated 3-1-1958 and 21-3-58.
3. The case of the defendant Railways was that notice was not in accordance with law, the suit was barred by limitation, and there was no negligence or misconduct on the part of the railway staff in carrying the consignment to thedestination.
4. The learned trial court held that by reason of the acknowledgment, Ext. 4 the suit is savedfrom being barred by limitation; the notices under Sections 77 and 80 as stated above, were duly served on the railway authorities. He also held that the plaintiff suffered this loss on account of the negligence on the part of the railway employees in carrying the goods to the Rourkela Railway Station. He thus decreed the suit.
5. Before the appellate Court two points were mainly taken by the unsuccessful defdt., viz., (i) There was divergence in the description ef the plaintiff as given in the plaint and that given in the notice under Section 80 of the C. P. C. and hence the suit was not maintainable; and (ii) Ext. 4 did not save limitation and the suit was barred under Article 31 of the Limitation Act.
6. The learned appellate Court found that there was complete identity between the person who gave notice under Section 80 and the plaintiff who filed the suit and there was no defecton that account and the suit was maintainable. He further held that Ext. 4 pot being an acknowledgment of liability of the railways, that letter did not save the limitation. He, however, held that this being a case of short delivery the suit is governed by Article 30 of the Limitation Ad aad the burden of proof is on the Railways to establish as to when exactly the loss occurred and since they have not proved the date of such loss the plaintiff's suit cannot be held to be time-barred.
He also held that even if Article 31 applies, the suit is not barred as the defendant on whom the burden lay to prove the date when the goodsought to be delivered to the plaintiff had failed to discharge that burden. He accordingly confirmed the decision of the trial Court. It is against this decision, the defendant represented by the Union of India, has come up in second appeal.
7. Mr. Pal, learned Counsel for the appellant, challenged the correctness of the decision of the courts below and contended that this being a case of short delivery, it is governed by Article 31 of the Limitation Act and limitation has to run from 19-2-57, the date of non-delivery of the two bales of cloth and as such the last date of filing the suit was 19-4-1958 (inclusive of the period of two months provided under Section 80 C. P. C.) and the suit having been filed on 8-4-1959, it was clearly barred by the law of limitation.
(ii) That the notice under Section 80, C. P. C. haying been given by one Madhusu'dhan Sahu Ramkumar and the suit having been filed by one Madhusudhan Sahu as the plaintiff, the suit is not maintainable; and
(iii) He also argued that the Exts. 3 and 4 could not have saved limitation.
8. At the outset I must say that the learned appellate Court has committed some errors of law and errors of records also. No doubt it is settled by authorities that in cases governed by Article 30 the onus is on the Railways to prove that the loss occurred beyond one year from the date of the suit so as to non-suit the plaintiff, but it is equally settled by authorities that Article 31 applies to cases of short delivery as in this case. At onestage he held; 'In the instant case time runs from 19-2-1957, the date of short-delivery.' This is held not because Article 30 applies, but on the basis that Article 30 applies and the defendant failed to prove the date of loss of the goods. He was further of the opinion that even if time runs from 19-2-1957 the suit is still within, time. Here there is a complete error of record. The suit is filed on 18-4-1959, and therefore it was dearly beyond 14 months (including of the notice period from 19-2-1957). Thus, the suit is clearly barred by limitation even on his own finding.
9. According to the plaintiff four bales of. cloth were consigned to him under R/R No. 37519 and that on 19-2-1957 only two bales were delivered to him and for this shortage of the other two b,ales he was given certificate, Ext. 5. He accordingly gave notices under Section 77 on 23-3-1957 (Ext. 1) and under Section 80, C. P. C. (Ext. 2) on 1-2-1958. The case of the defendant, however, was that this being a case of non-delivery of the two bales of cloth, it was governed by Article 31 of the Limitation Act and not Article 30 as held by the lower appellate Court. Article 31 of the Limitation Act runs thus :
'(31) Against a carier for one year when the goodscompensation for non- ought to be delivered.'delivery of, or delay indelivering goods.
Article 31 thus provides that a suit for compensation for non-delivery of, or delay in delivering the goods has to be filed within one year from the date 'when the goods ought to have been, delivered.' It is well-settled by authorities that to such cases of, non-delivery or short delivery, Article 31 applies and the period of limitation has be computed from the date when a portion of the consignment was delivered as that is the date on which the remaining goods 'ought to have been delivered' within the meaning of that Article.
10. In Gajanand Rajgoria v. Union of India, (S) AIR 1955 Pat 182 it was held that where a part of consignment has been delivered notwithstanding correspondence regarding the other part, made with the Railway authorities and in the absence of circumstances leading to a contrary view, the date of the part delivery of the consignment should be taken as the date when the goods ought to have been delivered within the meaning of Article 31.
The same view has been expressed in a case reported in Union of India v. Meghraj Agarwalla, AIR 1958 Cal 434. Their Lordships of the Supreme Court in a case reported in Bootamal v. Union of India, AIR 1962 SC 1716 approved this view and held that:
'The words 'when the goods, ought to be delivered' within the meaning of Article 31 can only mean the reasonable time taken in the carriage of goods from the place of despatch to the place of destination. There may be no difficulty in finding out the reasonable time where bulk of 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 'reasonable time isthat within which the bulk of the goods have been delivered'.
In a case of this court reported in Balasore Textile Distributors' Association v. Union of India, (B.N. Rly.) ILR 1960 Cut 1: (AIR 1960 Orissa 119) their Lordships held that a case of non-delivery of the entire consignment may stand on a different footing from the case of short delivery. iB the latter case, the date when the major portion of the consignment was delivered would, in the absence of peculiar circumstances, be the date 'when the rest of the consignment ought to have been delivered' and consequently limitation under Article 31 would run from the date when the short delivery took place. Thus in all cases oi short-delivery Article 31 was applied. In the absence of any special circumstances in this case, the limitation of one year would run from 19-2-1957, the date when the plaintiff received a part of the consignment and as such the suit is clearly, barred by limitation.
11. It was contended on behalf of the respondent that Exts. 3 and 4 being acknowledgments of liability by the defendant-railways, time has to run from the dates of these documents, and as such the suit is well within time, excluding the period of two months required under Section 80, C. P. C., the date of Ex. 4 being 21-3-58 and the suit having been filed on 18-4-1959.
This contention, however, cannot be accepted. Ext. 3 is a letter dated 3-1-1958 written by the defendant informing the plaintiff that 'the matter is under investigation.' Similarly in Ext. 4 dated 21-8-1958 the plaintiff was informed that 'the matter was receiving notice.'
None of these letters can be said to be an acknowledgment of the liability on the part of the defendant. They can at best be said to be acknowledgments of the plaintiff's enquiry regarding loss of the part of the consignment. Had there been any unconditional acceptance of the liability in any of the aforesaid documents, then the suit should have been deemed to have been filed within time.
12. Mr. Sen, learned counsel for the respondent, relied upon a decision of the Calcutta High Court reported in Jainarain v. Governor General of India, AIR 1951 Cal 462. In that case the learned Judge held that it is necessary that there should be specific and direct acknowledgment of the particular liability which is sought to be enforced and if there is an admission of facts oi which the liability in question is a necessary consequence, there would be an acknowledgment within the meaning of Section 19. The facts of that case are clearly distinguishable inasmuch as the defendant-railways in that case clearly admitted that one bundle of cloth was lying undelivered at the destination and they were liable for delivering the same. Their Lordships held that the non-deliyery being admitted, the suit was saved under Article 19 of the Limitation Act.
In this connection, it may be noted that this very decision of the Calcutta High Court has been noticed in the aforesaid decision of the Supreme Cosrt and their Lordships held:
'With respect, we find it difficult how in the face of clear words in the third column of Article 31the starting point of limitation can be changed because of the subsequent conduct of the railways which informed the consignor and the consignee that it was making enquiries to trace the goods.'
Thus, this decision of the Calcutta High Court does not appear to have been approved by their Lordships of the Supreme Court. While dealing, with the question whether correspondence made with the railways can save limitation, their Lord-ships observed:
'Under Article 31 whether there has been non-delivery or there has been delay in delivery in either case, limitation would run from the date 'when the goods ought to be delivered' which can only mean the reasonable time taken for carriage of goods from the place of despatch to the place of destination, in the absence of any term in the contract from which time can be inferred impliedly or expressly. The fact 'what is reasonable time'' must depend upon the facts of each case.'
Their Lordships held that if the correspondence discloses anything which may amount to an acknowledgment of the liability of the carrier that will give a fresh starting point for limitation. But if the subsequent correspondence is only about the tracing of goods, that will 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 materials which might throw light on the question of determining the 'reasonable time' for the carriage of goods from the place of despatch to the place of destinations, then it might be open to the Court to take into account the correspondence and the carrier will be estopped from denying that position. As already stated, Ext. 4 does not even afford a basis for calculating 'reasonable time' for the carriage of goods.
13. Mr. Sen contended that the present case will be governed by Article 30 and not by Article 31 of the Limitation Act. In support of his contention he relied upon a decision of the Supreme Court reported in Union of India v. Amar Singh, AIR 1960 SC 233. In that case a few of the consigned articles were offered to the consignee subject, to the condition of payment of certain sum due on account of freight and the consignee refused to take delivery of them and made a claim against the forwarding railway for compensation for non-delivery of goods and as the claim was not complied with, he instituted a suit against the Dominion of India. In that case their Lordships did not decide whether the case came under Article 30 or 31 of the Limitation Act and proceeded on the assumption that Article 30 applied and held that the burden is on the Railways who seek to non-suit the plaintiff on the ground of limitation to establish that the loss occurred beyond one year from the date of the suit. Hence that decision does not help the contention of Mr. Sen.
14. The applicability of both the Articles 30 and 31 has been discussed 'in a case reported in Dominion of India v. Batchu Ramiah Chetty and Sons, AIR 1951 Mys 68. In that case, some cases containing Aspro were booked and when the goods were offered for delivery, one case wasfound damaged and when all the cases were opened, some shortage of goods was found in the consignment. It was contended in that case that the absence of a portion of the contents of the eases consigned should be deemed as short delivery and to that extent it is non-delivery as contemplated under Article 31 of the Limitation Act. The learned Judge negatived that contention and held that it was a case under Article 30 as it was a case of shortage in the contents of the goods consigned and amounts to loss or injury to the goods and Article 31 did not apply. In other words, if it is a loss of units of articles, the case comes under Article 31 and in the case of loss in the contents of the units of a consignment, it is covered under Article 30. In the present case, it is a loss of two units of articles in the shape of two bundles of cloth; hence this case clearly comes under Article 31.
15. In a case reported in Jet Mull Bhojraj v. Barjeeling Himalayan Rly. Co. Ltd. AIR 1962 SC 1879 their Lordships held that;
'It seems to us that the appropriate articlewould be Article 30 and not Article 31, because whatthe appellant is claiming is compensation fordamages to the goods which were eventually delivered.'
In thatcase the suit was for recovery of damages that were caused in respect of 90 bales out of 250 bales of cloth delivered to the consignor. Thus, in view of the aforesaid position in law, I must hold that the suit is governed by Article 31 and therefore clearly barred by limitation.
16. I shall now deal with the question of invalidity of the notice under Section 80 of the Civil Procedure Code. It may be remembered that in the name of Madhusudhan Sahu Ramkumar the notice under Section 80, Civil Procedure Code was issued. But the plaintiff in this case has described himself as Madhusudhan Sahu who was carrying the business under the name and style 'Orissa Cloth Stores' previously named as Madhusudhan Ram-kumar Mahalaxmi Vandar. In the evidence, it is the case of the plaintiff that it was he who was carrying on the business under the name and style of Madhusudhan Ramkumar, Ramkumar being his son and the business being joint family business. Therefore the discrepancy in the description of the plaintiff in the plaint and in thenotice (Ext. 2) is manifest and the irresistible conclusion is that it was only the plaintiff Madhusudhan Sahu who was competent to give noticeunder Section 80.
In a case reported in S.N. Dutta v. Unionof India, AIR 1961 SC 1449 the notice underSection 80 was given by Messrs. S.N. Dutta and Co.and the suit was filed by S.N. Dntta, the soleproprietor of the business carried under the abovename and style. Their Lordships held that S. 80,according to its plain meaning, requires that thereshould be identity of the person who issues thenotice with the person who brings the suit.Where an individual carries on business in somename and style the notice has to be given by theindividual in his own name for the suit can Onlybe filed in the name of the individual.
Their Lordships further held that the person giving the notice was not the same as the person suing and that, therefore, Section 80 was not complied with, and they accordingly dismissed the plaintiff's suit. This being the position in law, the plaintiff in this case should have given the notice in his individual capacity and not in the name under which he was carrying on the business. Though an individual may be in certain circumstances can be sued in the name of the Firm of which he is a proprietor, he would not, however, have any right to sue in that name.
Mr. Sen, however, contended that under Section 5 of the Partnership Act, a father and son can form a partnership, but that is not the case of the plaintiff here. Reading the notice, Ext. 2 the prima facie impression that it gives is that it is a notice issued by a partnership firm, Madhusudhan Ramkumar whereas the claim in the plaint is only by an individual Madhusudhan Sahu. Thus the identity of the plaintiff has not been established as being the same person who gave the notice under Section 80 and thus, this defect in the name makes the notice ineffective and the suit not maintainable.
17. In the result, the order of the Court below is set aside, the appeal is allowed, and the plaintiff's suit is dismissed. There would, however, be no order for costs of this Court.