M. Madhavan Nair, J.
1. The suit is to recover a sunk of Rs. 1500/- being the value of goods entrusted for transport to Bombay with defendants 1 and 2 who were public carriers. Admittedly the goods were not delivered to the consignee, nor returned to the consignor. The defence, which found acceptance in the courts below, was of limitation under Article 31 of the Limitation Act.
2. The learned counsel for the appellant contends that Article 31 is not applicable to the instant case for two reasons firstly, that the Article applies only to suits by consignees, and not by consignors; and secondly, the Article' applies only to suits In tort and not to those based on breach of contract. Reliance was placed on the observations of Chatterjee, J. in Radha Shyam Basak v. Secretary of State, ILR 44 Cal 16 : (AIR 1917 Cal 640), to the effect that the 'Article contemplates a suit by the party who is entitled to the delivery, viz., the consignee.'
3. This dictum came up for consideration in Vally Mohamrnad Haji Gunni v. Nederland S. Navigation Co.. AIR 1924 Cal 173, where Page, J. dissented from it and held :
'The words of Article 31 are Wide enough to include suits brought by consignor as well as by the consignee .................. I am unable to Bee why any distinction should be drawn between a case of action for compensation for non-delivery by a consignor and one by a consignee.'
4. In, Chiranji Lal Ram Lal v. B. N. Rly. Co. Ltd., AIR 1925 Cal 559, also Page, J. reiterated his dictum in AIR 1924 Cal 173 and held:,
The legislature in enacting Article 31 was not minded to discriminate between a suit brought by a consignor and a similar suit brought by & consignee.
5. Banerji, J. in Mutsaddi Lal v. The Bombay, Baroda and Central India Rly. Co., ILR 42 All 890 : (AIR 1920 All 157), had also observed:
'It has been urged that Article 31 applies to a suit by a consignee and not, as in this case, by the consignor. This contention is, in my opinion, Untenable. The Article is wide enough to include a suit brought by the consignor also. It provides for a suit for compensation for non-delivery, that fa, a suit by a person who by reason of non-delivery has sustained loss. There may be caseg in which it is not the consignee who sustains the loss, but the consignor. In such cases it would be a suit by the consignor for compensation for nondelivery.'
6. The wording of the Article does not indicate any restriction as to the status of the person whose suits are covered by the Article. All that it enacts is that in suits 'against a carrier for compensation for non-delivery of, or delay in delivering, goods' the suit shall be instituted within one year from the date 'when the goods ought to be delivered'. As the wording stands it covers all suits of the nature provided for therein, whether they be instituted by the consignor or by the consignee.
7. It is also contended that Article 31 appliesonly to actions ex contractu, and that suits ex delicto against public carriers are governed by Article 48or 49 only. The contention is, of course, supported by Nawab Boot House v. Secretary of State,AIR 1935 All 156, where it has been observedthat a suit for damages for wrongful conversionhas to be distinguished from one for compensationfor non-delivery and that Article 31 is not applicableto suits for damages for tort. The learned advocatefor the appellant characterised, this suit as one onconversion and relied on Secretary of State v. SimlaFootwear Co., AIR 1935 All 601, in support thereof. But there the cause of action against the defendant, the railway company, was laid on its havingsold the consigned goods and retained the proceedswith the company itself. The retention of thegoods or their proceeds with the carriers contraryto the wishes of the consignor clearly makes acase in conversion. But there is no case for theplaintiff here that either the goods or their converted value is, retained by the defendants, In fact,the finding of the court below, which is not challenged before me, is that part of the goods hadbeen Jettisoned when the. 'Matchuva' was caughtIn a storm and the remaining goods had been, mis-delivered to a wrong person. It follows thereforethat there was no conversion of the goods by defendants 1 and 2 and as such a cause of actionon conversion is not made out in this case. Thetest for conversion is not to see whether there wasa failure to return the goods. Desai, J. (as hethen was) observed in 'Martab Ali v. Union ofInlia, AIR 1954 Bom 297 :
'A carrier who on demand being made states that he could not return the goods because, they were looted while in his possession cannot ipso facto he said, to have been guilty of conversion. There must be at least some evidence of conduct of the defendant which shows that he not only possesses the goods but also intends to hold them in defiance of the plaintiff .........,..'
Likewise is the case of inability on the part of the carrier to deliver the goods to the consignee on account of their being jettisoned or their being mis-delivered to a wrong person. Where the carrier has not appropriated the goods or their value for himself, either personally or through some nominee, it cannot be sail that a case of conversion has been made out in respect of the goods.
7a. The learned counsel for the appellant brought to my notice the ruling, in Fakir Chand v. Secretary of State, 19 Ind Gas 477 (Lah), to the effect that a case of mis-delivery has to be distinguished from a case of non-delivery contemplated by Article 31 of the Limitation Act. I cannot agree. Non-delivery within the meaning of Article 31 means non-delivery as per the instructions or directions given to the defendant by the plaintiff. So far as the cause of action of the plaintiff is concerned, delivery according to his instructions alone arises for consideration. Where his instructions have not been carried out, it does not matter to him whether the carrier had delivered the goods to X or Y other than the named consignee. It follows therefore that a case of mis-delivery is well within the expression 'non-delivery' so far as the applicability of Article 31 of the Limitation Act is concerned.
8. The contention that Article 31 of the Limitation Act applies only to suits ex contractu but not to suits ex delicto has not appealed to me. I am in respectful agreement with the view expressed in AIR 1925 Gal 559 :
'Article 31 applies whether the claims in such suits arise ex contractu or ex delicto.'
In Bengal Nagpur Railway Co. Ltd. v. Hamir Mull Chagan Mull, AIR 1925 Pat 727, Mullick, Ag. C. J., (as he then was) also held ;
'Whether the suit for non-delivery of goods is laid in tort or in contract, if compensation is claimed for non-delivery of goods entrusted to a carrier the period of limitation is one year as prescribed by Article 31.'
In AIR 1954 Bom 297, Desai, J., (as he then was) held:
'Article 31 must apply to all eases of claims for non-delivery of goods irrespective of the question whether the suit is laid in contract Or tort; Article 48 is a general Article and its application would be excluded by Article 31.'
9. It follows therefore that Article 31 does in terms apply to the instant suit. There is no dispute that if Article 31 is to apply the suit is barred by limitation. It is found by the courts below that the correspondence between the parties showed that in 1944 itself, the plaintiff claimed compensation from the defendants for the loss of the disputed goods and that the defendants repudiated the same Nonetheles, the suit was instituted only in 1947.
10. The decree of the court below dismissing the suit as barred by limitation under Article 31 of the Act is therefore right and is hereby affirmed. But in view of the conflict of authorities with regard to the applicability of Article 31, I do not mulct the appellant for costs of the respondents in this Second Appeal.