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K.C.Madan Lal and Co. Vs. the Jullundur Ex-service-man Motor Transport Co-operative Society Ltd. - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtDelhi High Court
Decided On
Case NumberCivil Revision Appeal No. 604D of 1962
Judge
Reported in8(1972)DLT118
ActsLimitation Act, 1908 - Sections 30
AppellantK.C.Madan Lal and Co.
RespondentThe Jullundur Ex-service-man Motor Transport Co-operative Society Ltd.
Advocates: Raj Kishan,; M.L. Dhawan and; B.R. Sabharwal, Advs
Cases ReferredIn Uinon of India v. Amar Singh
Excerpt:
commercial - recovery - section 30 and article 31 of schedule to limitation act, 1908 - suit filed by petitioner for recovering amount - petitioner's suit failed applying article 31 - revision - no evidence adduced that loss of goods occurred beyond one year from date of suit - point relating to limitation decided in favor of petitioner - suit instituted within limitation - petitioner entitled to recover concerned amount. - - therfor failed only on the ground of limitation......co-operative society limited jullundur (hereinafter referred to as the transport company) and messrs beauty palace, hoshiarpur (respondents i and 2) was dismissed by shri a.n. aggarwal, adeitional juage small cause court. against the order of shri aggarwal the plaintiff-firm filed the present revision, under section 25 of the provincial small cause court act. (2) i he facts cf the case are very simple. messrs k. c. madan lal & co. called for facility of reference as the petitioner, had on receiving an order from messrs beauty palace, hoshiarpur, delivered on the 27th may, 1960, two packages containing general merchandise goods at the delhi office of the transport company for being carried to hoshiarpur. the goocd's were booked as per goods receipt no. 29403. in the receipt the.....
Judgment:

Jagjit Singh, J.

(1) A suit brought by Messrs K. C. Madanlal & Co., Sadar Bazar, Delhi, a registered partnership firm through its partner Kapur Chand Jain, for recovering Rs. 780.00 from the Jullundur Ex-Servicemen Motor Transport Co-operative Society Limited Jullundur (hereinafter referred to as the Transport Company) and Messrs Beauty Palace, Hoshiarpur (respondents I and 2) was dismissed by Shri A.N. Aggarwal, Adeitional Juage Small Cause Court. Against the order of Shri Aggarwal the plaintiff-firm filed the present revision, under section 25 of the Provincial Small Cause Court Act.

(2) I he facts cf the case are very simple. Messrs K. C. Madan Lal & Co. called for facility of reference as the petitioner, had on receiving an order from Messrs Beauty Palace, Hoshiarpur, delivered on the 27th May, 1960, two packages containing general merchandise goods at the Delhi office of the Transport Company for being carried to Hoshiarpur. The goocd's were booked as per goods receipt No. 29403. In the receipt the consignee was shown as 'self'.

(3) The delivery was to be taken by Messrs Beauty Palace after get ting the goods receipt from the Hoshiarpur branch of the Punjab National Bank on payment of price of the goods. The petitioner, thereforee, sent the goods receip

(4) The bank prested the Hundi to Messrs Beauty Palace but it was not retired by them after paying the required amount. The bank, thereforee, did not deliver the goods receipt to Messrs Beauty Palace but returned it Along with the Hundi to the petitioner.

(5) On October 26, 1960, at the request of the petitioner, the Delhi, Branch of the transport company wrote to the Hoshiarpur office for rebooking the goods of G. R. No. 29403 to Delhi. The Hoshiarpur office then informed the petitioner, through a comunication dated January 20, 1961 that the goods had been delivered to 'the party' meaning thereby Messrs Beauty Palace. The petitioner was, however, asked-to intimate the amount which was due to it from the said party so that the amount be remitted.

(6) Asuit was instituted by the petititioner on September 13, 1961 for recovering Rs. 780.00 after adding bank charges, interest and notice charges. It was averred in the plaint that price of the goods had neither been paid by the Transport Company nor by Messrs Beauty Palace. None appeared on behalf of Messrs Beauty Palace, and as such respondent No.2was proceeded against ex parts. The Transport Company opposed the suit on the ground of limitation and on some other pleas. In paragraph 8 of the written statement it was averred that as desired by the plaintiff the goods were carried to Hoshiarpur and delivered to Messrs Beauty Palace. It was added that the said-consignee was understood to be holding a receipt for the payment made to the plaintiff.

(7) It was found by the Additional Judge, Small Cause court that the petitioner was a registered partnership firm and Shri Kapur Chand was entitled to sue as its partner. The petitioner was also held to have retained title in the goods and, thereforee, the right of disposal over them. A finding was also given, though that was no one's case, that delivery of the goods to Messrs Beauty Palace had not been proved. Regarding interest the petitioner was not held entitled to it. The point regarding limitation was decided against the petitioner by aprlying article 31 of the Indian Limitation Act. 1908 (Act No. 1X of 1908) The petitioners suit.therfor failed only on the ground of limitation.

ASalready mentioned above it was no one's case that the goo is were not delivered to Messrs Beauty Palace. Not only in the plaint that fact was mentioned but in the written-siatement of the transport company delivery of the goods to respondent No. 2 was specifically pleaded. On behalf of the Tran sport Company the manager of its Delhi branch, Shri Jeevan Singh, had appeared as awitness and deposed about the delivery of the goods to Messrs Beauty Palace. It was of course, admitted by him that the delivery of the goods was mile in the absence of the goo is receipts.

(8) There was thus no evidence whatsoever, on the basis of which it may have been hed that delivery of the goods was not made by the Transport Company to Messrs Beauty Palace, Hoshiarpur. In any event that being the stand of the Transport Company and their being no evidence to the contrary on behalf of the petitioner, the Transport Compady could not be allowed to defeat the petitioner's claim on the ground of limitation by assuming that there was no delivery of goods and consequently article 31 of Act Ix of 1908 was appliclble. That article applied to a suit against a career for compensation for non-delivery of or delay in delivery of goods.

(9) The view taken on the question of limitation was, in my opinion, not correct. The appropriate article of the Limitation Act to apply was 30 and not 31. Article 30 of Act No. 1X of 1' 08 provided a limitation of one year aganst a career for compensation for losing or injuring goods. The starting point of limitation was when the loss or injury occurred. In Hill Sawyers and Co. v. Secretary of State, it is held by a Full Bench that the word 'loss' in Chapter 7 of the Indian Railways Ace includes loss to the owner of goods made over to a railway Administration which have been mis.delivered and so have been lost to the person entitled thereto. The present case was also tnat of loss due to the goods having been mis-dlivered as the person to whom delivery was Sated to have been made was unauthorised and did not possess the goods receipt. Further the transport company did not produce any evidence to show on which date wrong delivery or mis-delivery was mace. In Uinon of India v. Amar Singh', their Lordships of the Supreme Court held that under article 30 the bur Jen is upon the defendant who seeks to non-suit the plaintiff on the ground of limitation to establish that. the loss occurred beyond one year from the date of this suit. As late as October 26, 1950 the Delhi office of the transport company had written to the Hoshiarpur office to re Book the goods to Delhi. Till then, thereforee the transport compny had not taekn the plea that the goods shad been delivered to Messrs Beauty Palace. It was only in the letter dated January 20, 1961 (Exhibit P/9) that such a plea was taken for the first time. In the absence of any evidence from the respondent's si ie that the loss of goods had o;currel beyond one year from the date of the suit, the point relating to limitation should have been decide ' in favor of the patitioner in the statment of Kapur Chand, the value of the goo is sent was mentioned to be Rs. 689.93 p. The suit having been instituted within limitation the petitioner is obviously entitled to recover that amount from the transport company. The revision is, thereforee, accepted and a degree for Rs. 689.93 is passed in favor of Messrs K. C. Madanlal and Co., and against the Jullundur Ex. Servicemen Motor Transport Co-operative Society Limited, Ladowali Road, Jullundur City, with prop rtionate costs throughout.


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