1. This first appeal is filed on behalf of the defendants in a suit for recovery of Rs. 12,913/3/- and is directed against the judgment and decree of the District Judge, Bikaner dated 7th December, 1954.
2. The Bikaner Textile Merchants Syndicate Ltd., through its liquidators instituted a suit on 27-5-53 against the Union of India and the Northern, Western and Central Railways for recovery of Rs. 12,913/3/- as compensation for non-delivery, shortage and damage to their goods which were booked from Bori Bundar Railway Station to Bika-ner. It is alleged that out of a consignment of 265 bales of cloth which were booked on 19-1-48 251 bales were delivered to the plaintiff on 15-3-48. Out of the remaining 14 bales, 4 were delivered to the plaintiff on 18-10-49. The remaining 10 bales were not delivered at all.
It is alleged that the cloth in 14 bales out of the lot delivered on 15-3-1948 had become wet and damaged and the loss is assessed at Rs. 2,911/10/-. In seven bales out of the same lot it is alleged that there was a shortage of cloth worth Rs. 1299/14/9. In 4 bales which were delivered on 18-10-49 there was a shortage of cloth in two bales worth Rs. 871/12/6. Rs. 7830/7/3 are claimed as compensation representing the price of 10 bales of clothwhich were not delivered to the plaintiff. Accord- ing to the plaintiff the cause of action for filing thesuit arose on 30th May, 1952 when the defendantsfinally refused to give delivery of the goods.
3. Many pleas were taken in the written statement. It was contended that the liquidators had no right to file the suit. Notice under Section 80 of the Code of Civil Procedure was not valid. The suit was not filed within limitation and that the non- delivery of the goods was due to a running train theft and not on account of any negligence or carelessness on the part of the Railway Administration and the plaintiff is not entitled to the amount of compensation claimed by it,
4. The learned District Judge decided all the issues in favour of the plaintiff and decreed the plaintiff's full claim.
5. Aggrieved by the said decision the defendants have come in appeal and it has been contend- .ed before us--
(i) that the learned District Judge was in error in holding the suit to be within limitation,
(ii) that the non-delivery of 10 bales was due to a theft in the running train and not due to any default on the part of the Railways.
(iii) that the plaintiff has not proved the price of the goods claimed by it by any satisfactory evi- dence.
Though the questions regarding the validity of notice under Section 80 of the Code of Civil Procedure and the plaintiff's right to institute the suit were raised by the learned counsel at the time of arguments, yet finally they were not pressed before us and it is therefore not necessary to discuss them.
6. Before taking up the question of limitation which has been mainly argued before us we would like to dispose of the other two points urged on behalf of the appellant. It is urged by the learned counsel for the appellant that the plaintiff has in this case failed to prove that there was any negligence or carelessness on the part of the Railway Administration for the loss of 10 bales which Were not delivered to it. On the contrary there is sufficient evidence on the record to show that the loss was due to theft in the running train. (After perusing the evidence produced by the appellant in this respect, his Lordship rejected the contention of the appellant. His Lordship then proceeded):
In view of these circumstances and of the meagre evidence which has been placed on record on behalf of the defendants we cannot hold that the loss occurred on account of any theft in the running train. In this state of the evidence the learned District Judge was justified in giving his finding that the defendants have not satisfactorily proved that the goods were stolen. Learned counsel at the close of his arguments submitted an application for allowing him to produce further evidence to prove the fact of theft. No such request was made before the trial court.
The application is not supported by an affidavit to explain the reasons for production of the documents at this late stage. Even the particulars of the documents which are now sought to be produced are not mentioned in the application. We do not see any reason to allow any additional evidence to be produced at this stage of the case, particularly when no such application was made before the trial court. As stated earlier the wagon in which these, bales were loaded had only rivets on either side and no locks were put on the wagon as admitted by D. W. 1 and D. W. 3.
The question that arises is as to whether the defendants as a bailee had acted prudently in not putting locks on the wagon specially when its contents were very heavy and as admitted by Devi-singh the rivets on the wagon could easily give way on account of the pressure of the bales from inside. The degree of care which a bailee is required to take is given in Section 151 of the Indian Contract Act which runs thus :
'In all cases of bailment the bailee is bound to take as much care of the goods bailed to him as a man of ordinary prudence would, under similar circumstances, take of his own goods of the same bulk, quality and value as the goods bailed.'
Now looking to the bulk and the value of the goods failure on the part of the railway administration to put any locks on, the wagon is certainly an act which a man of ordinary prudence would not do under similar circumstance's and in our opinion it amounts to wilful neglect on their part. Reference in this connection may be made to B. N. W. Rly. v. Bansi Dhar, AIR 1926 Oudh 218 and Jai Narain, Lachhmi Narain v. G. I. P. Rly. Co., AIR 1930 Lah 37. This contention has therefore, no force. As regards the compensation for the loss of 10 bales the plaintiff has claimed Rs. 7830/7/3 the price of the cloth contained in them.
In para 6 of the plaint the price of these bales was specifically mentioned by the plaintiff but the defendants did not plead that it was not valued correctly by the plaintiff. In Ex. 4 which is the defendants' reply, Rs. 760/3/- have been accepted as price of one bale. The contention raised by the learned counsel is that the plaintiff should have proved the price of the cloth on the date on which the loss occurred to it. What the plaintiff has done in this case is that it has proved the value of the goods on the date they were despatched from Bori Bundar,
In our opinion this contention has no force. It does not appear from any evidence on the record that the price of the cloth had gone down after the date of consignment. The plaintiff has produced the Beejaks to prove the price for which these goods were purchased and we do not think why it should not be accepted as its correct value. There is no substance in the above argument and we hold that the amount of compensation claimed by the plaintiff for the loss of 10 bales has been correctly assessed by the trial court.
7. Now we come to the question of limitation which has been argued at considerable length on both sides before us. The compensation claimed is firstly in respect of 10 bales which were not delivered to the plaintiff and secondly in respect of the shortage Or damage to the cloth which occurred in some of the bales delivered to the plaintiff. Learned counsel at first argued that Article 30 would apply to the suit claim including the claim for 10 bales which were not delivered to the plaintiff and relies upon Union of India v. Amarsingh, AIR 1960 SC 233; Gangadhar Ram Chandra, a firm v. Dominion of India, AIR 1950 Cal 394; Oudh and Tirhut Rly. v. Mrs. Karamchand Paras Ram, AIR 1958 All 234; and Dominion of India v. Batchu Ramiah Chetty and Sons, AIR 1951 Mys 68.
8. In AIR 1960 SC 233 their Lordships did not finally decide the point whether Article 30 or Article 31 applied but it was assumed that Article 30) applied;
9. In Gangadhar Ram Chandra's case, AIR 1950 Cal 394 the facts were that 240 bags of rape-seed were booked and all the 240 bags were delivered but out of these 7 had been cut and there was a resultant shortage of 3 maunds and 35 seers. This case is quite distinguishable as it was not a case of non-delivery of goods.
10. In Oudh and Tirhut Railway case, AIR 1958 All 234, Desai J. on facts found the loss of goods proved and therefore held that Article 30 was applicable while Beg J. with whom Mukherjee J. agreed held that loss of goods was not proved and Article 31 applied to the circumstances of the case. This case also is of no assistance to the appellant.
11. The AIR 1951 Mys 68 is also a case in which all the packages were delivered to the plaintiff but the contents were short and damaged.
12. In our opinion Article 30 applies to those cases where there is a loss or injury to the goods while Art, 31 refers to cases of non-delivery or delay in delivery of the goods. As we have already observed that the appellants have failed to show that there was any loss of goods so far as the 10 undelivered bales are concerned. We hold that Article 31 would, properly apply to the plain-tiff's claim for non-delivery of these bales.
13. The next contention of the learned counsel in that the plaintiff's claim is beyond time even if Article 31 applies to it. Article 31 of the Indian Limitation Act reads :
Timefrom which period begins to run.
Art. 31. Against a carrier forcompensation for non-delivery or delay in, delivering goods.
When the goods ought to be delivered.
The argument proceeds on the ground that in cases falling under this Article time would begin to run from the date When the goods ought to be delivered -- a phrase occurring in the third column of the Article. According to him the phrase 'ought to be delivered' denotes a period within which the goods in the normal course are delivered by the carrier where no date of delivery is fixed by contract. According to him the normal period which is requir-ed for a consignment to reach Bikaner from Bori Bundar is one month to It months according to the statement of P. W. 4 Durga Shanker who was a goods clerk at Bikaner.
14. Learned counsel further urges that in cases where a part of the goods consigned have been delivered to the plaintiff it should be presumed that the part undelivered ought to have been delivered on the same date. According to him in such cases there is no room for extension of the period of limitation simply because some correspondence goes on between the plaintiff and the Railway authorities and the letter finally tells the former that the goods will not be delivered. He relies upon the following cases in support of his argument.
Balli Mal v. Dominion of India, AIR 1954 Punj 44; Dominion of India v. Amin Chand Bhola-nath, (S) AIR 1957 Punj 49 (FB); Gajanand Rajgoria v. Union of India, (S) AIR 1955 Pat 182; Sham-buram Agarwala v. Union of India, AIR 1958 Pat 118; Darjeeling Himalayan Rly. Co. Ltd. v. Jetmull Bhojraj, (S) AIR 1956 Cal 390; Union of India v. Meghraj Agarwala, AIR 1958 Cal 434; Gajadhar Shaw v. Union of India, AIR 1959 Cal 21; Secretary of State v. Dunlop Rubber Co. Ltd., Delhi, AIR 1925 Lah 478; Lok Chand v. Union of India, ILR 1958-8 Raj 855: (AIR 1959 Raj 231); Ram Ratan v. Union of India ILR 1958-8 Raj 1156; Gopi Ram Gouri Shankar v. G. I. P. Rly. Co., AIR 1927 Pat 335; Rajmal Pahar Chand v. Dominion of India, (S) AIR 1955 Puni 83.
15. On behlf of the respondent it is submitted that the starting point of limitation under Article 31 is when the Railway authorities finally refuse to deliver the goods and this principle equally applies to cases where part of the consignment has been delivered to the plaintiff. Reliance is placed on the following decision :
Union of India v. Girraj Prasad, ILR 1953-3 Raj 111, B. and N. W. Rly. Co. v. Kameshwar Singh Bahadur, AIR 1933 Pat 45; Governor General in Council v. Kasiram Marwari, AIR 1949 Pat 268; Madan Lall v. Union of India, AIR 1959 pat 165; Mutsaddi Lal v. Governor-General in Council, AIR 1952 All 897; Palanichami Nadar v. Governor-General in Council, AIR 1946 Mad 133; Governor General in Council v. Khadi Mandali, AIR 1950 Mad 438; Lalchand Chowdhury v. Union of India, AIR 1960 Cal 270; Dominion of India v. S. G. Ahmad, AIR 1954 Nag 115, Govt. of Mysore v. Kapurchand and Bros.; AIR 1953 Mys 16; Mana-sarovar Agencies v. Governor General in Council, AIR 1955 Mys 123; Union of India v. Adam Hajee Peer Mohammad Essack, AIR 1954 Trav-Co 362; Muhammadi Steamship Co. v. Keserishrih Vallab Das, AIR 1957 Trav-Co. 133; (S) AIR 1957 Punj 49 (FB).
16. It is not necessary to discuss each case separately but an examination of the cases cited on behalf of the parties reveals that there is a considerable divergence of opinion regarding the starting point of limitation under Article 31. Even in the same High Court the oPinion is not uniform. One view is that the time begins from the date when the goods ought to have been delivered in the normal course of business and where there is a part delivery of the goods it should be presumed that the undelivered part ought to have been deli-vered on the same date.
The other view is that in cases of non-delivery either of the whole consignment or of a part of it where there is a demand for the delivery of the goods by the the plaintiff and the Railway authorities hold out a promise to deliver the goods after they have made enquiries and when finally tell the plaintiff that the goods cannot be delivered, time begins to run when delivery of the goods is finally refused. Yet another view is that it is a question of fact in each case as to when the goods ought to be delivered and there is no hard and fast rule for fixing the starting point of limitation.
The phrase 'ought to be delivered' used in Article 31 does not mean ought to be delivered in the normal course. If the Legislature wanted to give that meaning to this phrase it could have said so by adding the words: in the normal course after the words 'ought to be delivered'. It is again a matter of common knowledge that the goods often do not arrive at the destination within the normal time due to several intervening factors. It may be that the wagon in which the goods are loaded is detained at a particular station or the goods are missent or a strike takes place or a breach occurs on the line.
If this view were to be accepted then the plaintiff will have to file a suit in such cases after the expiry of the normal time required for the delivery of the goods even though the chances of delivery may still be there. There will thus be a great risk of the suit being, thrown out as Premature. Again it may be that the plaintiff after the expiry of the normal time of the delivery enquires from the Railway authorities as to why the goods have not reached the destination and he is told that investigations arc going on and after their completion goods will be delivered to him.
Would it be justifiable for the plaintiff even in such cases to rush to the court as soon as the normal period for delivery of the goods expires? In our opinion this could not be the intention of the legislature in using the phrase 'ought to be delivered' in Article 31 of the Indian Limitation Act. It is true that in cases where no time of delivery is fixed the carrier is bound to deliver the goods within a reasonable time but what is reasonable time is a question of fact and depends on the facts and circumstances of each case.
With regard to cases where the view taken is that where part of the consignment has been delivered the time for filing a suit for compensation for the undelivered part would begin to run from the date of the part delivery we may say with great respect that this rule also cannot be universally applied. In case where the goods are carried in several wagons or where the railway authorities promise to deliver the remaining part after holding enquiries, this rule will obviously have no application.
In our opinion the correct view is that it is a question of fact in each case as to when the goods ought to be delivered depending upon the circumstances of each case. This would apply to those cases also where upon a demand being made by the plaintiff correspondence ensues and the Railway authorities hold out the promise to deliver the goods and in the end refuse to deliver or express their inability to deliver the goods because due to those circumstances plaintiff's right to bring an action is postponed by an act of the defendant and if he brings a suit he will be non-suited on the ground that there is still a chance of the goods being delivered to him.
To us that appears to be the correct interpretation of the phrase 'ought to be delivered' used in Article 31 of the Indian Limitation Act. The same view was taken in a Bench Decision of this Court in ILR 1953-3 Raj 111 which unfortunately was not brought to the notice of the learned Judges who decided ILR 1958-8 Raj 855 : (AIR 1959 Raj 231) and ILR 1958-8 Raj 1156. In ILR (1958) 8 Raj 855 : (AIR 1959 Raj 231) in fact it was not the Plaintiff's case that any promise was held out to him for the delivery of the part of the consignment and the case is distinguishable on this ground too.
In ILR 1958-8 Raj 1156 it was in fact a case where the whole consignment had been delivered and some shortage of goods was discovered and the observations made in that case appear to be obiter although in the earlier part of the judgment it was observed by the learned Judge that
'a question when the goods ought to be delivered in a case where there is no fixed time for delivery will be a question of fact depending upon the facts and circumstances of each case and which have to be established by the evidence.'
If We may say so with respect we agree with these remarks and this is exactly what was said in earlier cases of this Court in ILR 1953-3 Raj 111; In Mutsadilal's Case, AIR 1952 All 897, it was held that:
'The phrase 'when the goods ought to be delivered' means the point of time at which the carrier undertakes to deliver the goods or the date when the carrier informs the consignee that it would be delivered or when the carrier communicates to the consignee its inability to deliver the goads on a reasonable date that may be fixed on a consideration of events subsequent to the handing over of the consignment to the carrier for carriage.'
17. In (S) AIR 1957 Punj 49 (FB), on which both the parties rely the view taken in the earlier cases of that court in Dominion of India v. Khurana Bros., AIR 1951 Punj 254 and (S) AIR 1955 Punj 83 -- was overruled and it was observed that:
'Now when goods are handed over to a carrier there is no stipulation that the entire consignment will be Carried in the same wagon. The consignment may be carried in different wagons. Even if the goods are loaded at the starting station in one wagon they may be split up en route in view of traffic conditions. It is also Possible that in case of accident for example, flood, fire or collision etc. part of the goods salvaged may be delivered earlier than the remaining portion and yet both the portions may be delivered within reasonable time. It appears to me that the carrier is under an obligation to deliver the whole of the consignment as well as Part of the consignment within reasonable time and this time must be computed according to the circumstances of each case.'
'It may be and it can be said that generally it is that in many cases the fact that part of the consignment was delivered within certain time has ample bearing in deciding this matter, but it cannot follow as a matter of law that that time must be held to be reasonable time also for the undelivered part. I am therefore of the opinion that in cases of partial non-delivery or partial late delivery of the consignment also limitation under Article 31 starts on the expiry of reasonabe time when the goods ought to have been delivered and I say so with due respect to the Judges who have come to different conclusions in this matter.'
18. the same view has been expressed in other cases which have been relied upon by the learned counsel for the respondents and also in some of the cases relied on on behalf of the appellant. With great respect we prefer to accept the view which was expressed by the learned Judges of this Court in ILR 1958-3 Raj 111.
19. In the Present case as we have observed above 251 bales were of course delivered on 15th March, 1948 but on further correspondence 4 bales were again delivered on 18th October, 1949 i.e., after one year and seven months. The plaintiff still persisted in his demand for the delivery of the remaining bales and the defendants' reply vide Ex. 21 dated the 18th of January, 1950 was that the matter is under correspondence with the rail-way concerned and he would be advised in due course.
On 3rd April, 1950, vide Ex. 22, he was informed that the matter is receiving attention, on 3rd May, 1950 vide Ex. 23 he was again informed that the matter is receiving attention. On 16th May, 1950 vide Ex. 24 he was informed that the matter is under correspondence with the Railways concerned, on 26th June, 1950 vide Ex. 25 he was informed that the matter is still under enquiry with the foreign railways. It is by their letter Ex. 4 despatched on 30th May, 1952 that for the first time the defendants repudiated their liability.
The plaintiff in the plaint has specifically mentioned that the cause of action for filing the suit arose on the receipt of the defendant's letter Ex. 4. On these facts where part of the goods consigned was delivered one year and seven months after the delivery of the 251 bales and even after that the Plaintiff was being consistently told that the matter was still under enquiry with the Foreign railway it would be quite reasonable and consonance with the language used in Article 31 that the cause of action for filing of suit arose to the plaintiff when the railway authorities finally refused to deliver the goods. We, therefore, hold that the plaintiff's suit for compensation with regard to the delivery of 10 bales of cloth is within time having been filed within one year from the date of Ex. 4 as that is in the circumstances the reasonable time the goods ought to have been delivered.
20. We may here note that it was argued on behalf of the appellant that the plaintiff had not asked the railway authorities through its letters to give him the delivery of the goods but had only claimed compensation, and therefore, the correspondence and the final refusal on the part of the railway authorities would not extend the period of limitation. It would be sufficient to say in this connection that the defendant has not produced those letters and in their absence we cannot hold that no demand for the delivery of goods was made by the plaintiff.
No request to plaintiff for these documents was made by the defendants at the time when Exs. 18, 25 were admitted in evidence or at any later stage of the case. We are now this stage asked to permit the defendant to put in these letters. As we have already observed there are no sufficient ground to allow the defendants to put in additional evidence in appeal when no such request was made before the court. That apart we do not see any difference where instead of a demand for delivery of the goods a demand for compensation is made to the railway authorities. A demand for compensation only means that either the goods may be given or else compensation may be paid.
21. As regards the loss suffered by the plaintiff on account of shortage and damage to the goods by wet in other bales received by it on 15th March, 1948 and 18th October, 1949 it is urged by the learned counsel for the appellant that the proper article applicable would be Article 30 of the Indian Limitation Act and the court below was in error in applying Article 31 of the Limitation Act to this part also. On the other hand learned counsel for the respondents contends that to this part of the compensation also Article 31 would be applicable or at any rate this suit is within limitation on the basis of Ex. 4 in which the defendants made a promise to pay him the compensation in respect of this loss.
22. In our opinion on the principle set out above proper article applicable to this part of the claim would be Art 30 of the Limitation Act. This being so claim for Rs. 2911/10/-. Rs. 1,299/14/9 and Rs. 871/12/6 is clearly beyond the period of limitation prescribed under the said Article as the loss or injury to the goods occurred more than a year before the suit was filed.
23. As regards the respondent's contention that their suit should be taken to be within time on the basis of Ex. 4 it is to be noted that in this letter the railway authorities only offered to Pay compensation on certain terms which were not acceptable to the plaintiff. This is not a Promise of the kind mentioned in Section 25(3) of the Indian Contract Act. In our opinion the plaintiff cannot base his claim on this document.
24. The result is that this appeal is partly allowed. The judgment and decree of the learned District Judge is modified. The plaintiffs suit would now stand decreed for a sum of Rs. 7830/7/3 instead of Rs. 12930/13/6 as decreed by the court below. The plaintiff will get proportionate costs of both the courts. The defendants will pay this amount within a period of three month from today. Plaintiff's suit for rest of the amount is dismissed.