C.B. Bhargava, J.
1. This is a second appeal by the plaintiff in a suit for recovery of compensation, against the Union of India as representing the Northern. Railway.
2. Plaintiff's case was that on 1st May, 1948 one consignment of a bale of cloth was book ed from Ahmadabad for Jodhpur by Messrs. Bherulal Champalal under railway risk note form B. The Railway receipt for this consignment was assigned to the plaintiffs, but the railway administration failed to deliver the consignment to the plaintiff, at Jodhpur Railway Station. The plaintiff thereafter preferred a claim under Section 77 of the Indian Railways Act, but no delivery as given and its claim after some correspondence was finally repudiated on 4th August, 1950.
3. The defendant resisted the suit and inter alia pleaded that it was barred by limitation.
4. Several issues including that of limitation were framed, by the trial court. The trial court after considering the evidence of the parties decreed the plaintiff's suit holding that it was Instituted within time. This finding was reversed in appeal by the learned Senior Civil Judge, Jodhpur. The learned Judge held that the goods were consigned on 1st May, 1948 and in the ordinary course the delivery ought to have been made at the latest by 1st June, 1948. Besides the railway authorities informed the plaintiff by letter dated 30th June, 1949 that as it was a case of running train theft, the plaintiff's claim for loss was inadmissible. The learned Judge further held that the letter dated 30th June, 1949 (Ex. A1) give complete information to the plaintiff how the carrier dealt with the goods while in its possession, Therefore., the learned Judge held that the time in this case began to run if not from 1st June 1948 at least from 30th June, 1949 but in either case the suit having been filed after one year, was barred by limitation.
5. There car, be no manner of doubt that the present salt is for compensation for non-delivery of goods and the proper article of limitation applicable to such cases would be Article 31 of the Indian Limitation Act. Under this Article the period of limitation begins to run from the date on which the goods ought to have been delivered. As to what is the meaning of the words 'when the goods ought to be delivered there was formerly some controversy which has now been set at rest by a judgment of the Supreme Court in Boota Mal v. Union of India, AIR 1962 SC 1716and it has been held that the words when the goods ought to be delivered' can only mean one thing whether it is a case of late delivery or of non-delivery. Reading the words in their plain grammatical meaning, they are capable of only one interpretation, namely, that they contemplate that the time would begin to run after a reasonable period has elapsed on the expiry of which the delivery ought to have been made and the starting point of limitation would be after reasonable time had elapsed in the carriage of goods to the place of destination and this reasonable time generally speaking cannot be affected by the subsequent conduct of the parties. If the subsequent correspondence is only about tracing the goods that would 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 material which might throw light on the question of determining the reasonable time for the carriage of the goods from the place of despatch to the place of destination, then it may be open to the court to take into account the correspondence.
Judged in the light of the above observations, the present suit which was instituted on 2nd August, 1951, would be clearly out of limitation. The goods which were despatched from Ahmadabad on Ist May, 1948 ought to have been delivered at the latest as observed by the Court below by Ist June, 1948. There is no correspondence in this case which may throw light on the question of determining the reasonable time for the carrying of goods from the place of despatch to the place of destination. On the other hand the railway administration by letter dated 30th June, 1949 clearly informed the appellant that the goods were lost in a running train theft and further the railway administration was not liable for any loss occasioned as they were booked at the owner's risk.
6. The contention of Mr. Johari learned counsel for the appellant, however, is that in order to get a decree, the appellant was not only required to show that the goods were not delivered to it but further that they were lost on account of the misconduct of the employees of the railways because the consignor had signed a risk note in form B. It is pointed out that in cases where the consignor signs risk note form B, the railway administration is bound to disclose to the consignor how the consignment was dealt with, throughout It was in its possession or control and if necessary to give evidence thereof before the consignor is called upon to prove its contents. It is urged that the railway administration in the instant case supplied the above information only on 4th August 1950 and until then the plaintiff was not in a position to allege that the loss was due to the misconduct of the railway administration or its employees and therefore the cause of action for instituting the present suit only became completed on the receipt of the above information on 4th August, 1950 from which date the suit was filed within time.
In support of the above contention, learned counsel hag referred to Surat Cotton Spinning and Weaving Mills, Ltd. v. Secy, of State, AIR 1937 PC 152 Dwijendra Narain v. Joges Chandra, AIR1924 Cal 600, Ram Ranbijay Prasad Singh v. Mt. Bachia Kuari, AIR 1939 Pat 688 and India Trades Corporation v. Union of India, AIR 1937 Cal 153. In the first case the Privy Council observed that the obligation to disclose to the consignor how the consignment was dealt with arises at once upon the occurrence of either, of cases (a) or (b), and is not confined to the stage of litigation. There the railway company failed to submit the evidence of the guard which was a breach of its contractual obligation to give the evidence necessary for disclosure of how the consignment was dealt with. It was therefore held that:
'The court was entitled to presume, in terms-of Section 114(g), that the guard's evidence if produced would have been unfavourable to the Railway Company and that, in consequence, misconduct by complicity in the theft, of some servants of the company might fairly be inferred from the company's evidence.'
This case only explains the obligation of the railway administration to disclose bow the consignment was dealt with both before the institution of the suit as well as after it during the course of litigation and in case it is not done the court is empowered to draw adverse inference against the railway administration. The other cases referred to by the learned counsel only say with reference to the particular facts of those cases as to when the cause of action accrued in those cases. No decision having a direct bearing on the question raised has been cited to me. The question--therefore, is whether in cases where the consignor signs a risk note in form B the period of limitation does not begin to run only after the railway administration gives information how the consignment was dealt with throughout the time it was in its possession. Section 72 defines the responsibility of the railway administration as a carrier of animals and goods and says that
'the responsibility of the railway administration for the loss, destruction or deterioration of animals or goods delivered to the administration to be carried by railway shall, subject to the other provisions of this Act, be that of a bailee under sections 151, 152 and 161 of the Indian Contract Act, 1872.'
Formerly risk notes were signed under the provisions of Sub-section (2) of Section 72 which has now been repealed. Sub-section (2) provided, the execution of special agreement whereby the responsibility of the railway administration was limited. Risk note in form B contained terms of special agreement whereby the consignor paying a lower rate than he would otherwise be bound to pay in consideration of such lower charge agreed and undertook to hold the railway company harmless and free from all responsibility for any loss, destruction or deterioration of or damage to the goods. In other words signing of a risk note in form B by the consignor relieved the railway administration for loss except on proof of misconduct of their servants. But this immunity was subject to this condition that in case of non-delivery of the whole or part of the consignment they were bound to give evidence how the consignment was dealt with throughout the time it was in its possession or control. If therailway administration failed to discharge theabove obligation it is open to the courts to infereven in the absence of proof that loss was caused by the misconduct of their servants.
In the absence of a risk note the liability ofa railway is governed by sections 151 and 152of the Contract Act. Risk note is a special agreement under Sub-section (2) of Section 72 RailwaysAct and gives rise to independent rights and obligations namely immunity of the railway administration for the loss in the absence (SIC) proof of misconduct by its servants, and (SIC) right of theconsignor to ask for informal as to how theconsignment was dealt with and the failure ofthe railway administration to supp(SIC) such information to hold the railway administration liable forthe loss. But it does not mean that on the nondelivery of goods within a reasonable time nocause of action accrues to a consignor for anaction against the railway administration.
7. Learned counsel for the appellant frankly admits that if there had been no risk note in form B in the present case his case would have been fully covered by the judgment of the Supreme Court. It is only because of risk note in form B that the learned counsel contends that the cause of action was not complete until the railway administration gave information as to now the consignment was dealt with throughout the time it was in possession or control of the railway,
8. In my view the contention is not tenable. The period of limitation under Article 31 begins to run from the tune the goods ought to be delivered which means the reasonable time within which the goods ought to have been delivered and the running of time cannot remain suspended on the ground that the railway administration failed to discharge its obligation to supply information to the consignor as to how the consignment was dealt with. The obligation of the railway administration as a carrier should not be mixed up with the other agreement which only limits its responsibility as such, for the loss, destruction or deterioration of animals or goods. As stated earlier the two contracts give rise to independent obligations. I am, therefore, of the view that even though the consignor had signed the risk note in form B in the present case the limitation would still start running from the date the goods ought to have been delivered to It.
If the argument of the learned counsel for the appellant is accepted, then the period of limitation in such cases would fluctuate according to the time when the information is sought and supplied by the rail way administration. There might also be cases where the railway administration may not supply the required information at all, then what would be the starting point of limitation in such cases? To that there is no satisfactory answer. There is another ground against the plaintiff as remarked by the court below In this case that the railway administration by its letter dated 30th June, 1949 had informed the consignor that the loss of consignment was due to running train theft and as the goods were booked at the owners risk in form B it exonerated the railway from all responsibility for any loss, destruction or deterioration of or damage from any causewhatever, and further that its claim for compensation was not admissible.
The letter dated 4th August, 1950 does not give any further Information than what is contained in the letter dated 30th June, 1949. For all these reasons I do not find any force in the content on raised on behalf of the appellant and hold that the suit has been rightly dismissed by the first appellate court on the ground that it was barred by limitation.
9. This appeal, therefore, fails and is hereby dismissed with costs.
10. Learned counsel prays for leave to appeal which is refused.