1. The plaintiff in the reference is the consignor of goods by the Madras Railway Company to a consignee at Bangalore. The goods were not delivered and there seems to have been a certain amount of correspondence and inquiry after them by plaintiff. But it came to nothing: apparently because it is common ground that the goods had not on them his correct address and that he stated thestation, at which he booked them, incorrectly. It has further been found that in the end the goods, which we're in the Railway Company's possession, were sold in the exercise of their right under Section 56 of the Indian Railways Act. The plaintiff is now suing to recover the surplus proceeds of that sale, which in the words of the section, the Railway Company is bound to render to the person entitled.
2. We are asked to decide what is the article of schedule 1 of the Limitation Act applicable to this suit. The plaintiff contends, and two learned Judges of the Small Cause Court have held, that article is No. 62 - 'For money payable by the defendant fb the plaintiff for money received by the defendant for the PLalntiff's use.' On the other hand, as one learned Judge has held, the Railway Company contends for the application either of Article 30 or 31, the two articles dealing with suits against a carrier. Article 30 may at once be dismissed from consideration because there is no question in the present case of loss or injury to goods. We therefore have to decide between Articles 31 and 62.
3. It is not disputed that Article 62 would apply in terms to the sale proceeds. The argument of Mr. R.N. Aiyangar on behalf of the Company is however that plaintiff, having a right of suit for compensation for non delivery of the goods, must be supposed to be now suing to enforce that right and that Article 31 is applicable. Mr. Aiyangar has relied strongly on the fact that Section 56 of the Indian Railways Act, is contained in Chapter VI thereof, dealing with the'working of Railways/whereas the responsibility of Railway Companies is dealt with in Chapter VII, and he has referred to the statement of His Lordship the Chief Justice in M. and S.M. Ry. Cy., Ltd. v. Haridos Banmali Doss I.L.R. (1919) Mad. 871 that Chapter VII must be taken, and was intended to cover the whole liability of the Railway Company including among other things the responsibility of the Railway Company for misdelivery by whatever reason caused. It is sufficient to observe that Section 56(2) and the procedure authorised therein were not in question in that case and there is no reason for assuming that it was present to the mind of his Lordship or that, if it had been brought to his notice, be would have used the same expressions.
4. As we read Section 56, it authorises the Railway Company to adopt a 'certain procedure and to hold a sale and gives a direction as to this disposal of the proceeds thereof. We cannot hold that that direction is merely moral or administrative. There is no reason why it should not confer a right to the surplus proceeds on the person referred to in the section as entitled to them. That person would be in the present case the plaintiff-There is further no reason why that right should not be enforced by a suit. Such a suit could not be brought until after the sale, that is, in the words of the third coloumn of the schedule, until after the date when the money was received for the plaintiff's use. The argument for the application of Article 31 can be supported only on the assumption that what the plaintiff is suing for is not merely the surples sale proceeds, but compensation for the non delivery of goods; and that is not how the plaintiff has described his claim. This distinction is material for compensation for the non delivery of the goods might very well be, and in fact very freequently would be much mare than the surplus sale proceeds. The two classes of suits are entirely distinct and, because the suit to which Article 31 would apply might have been available for the plaintiff, that is no reason why we should refuse to regard his suit as 'bne for the money referred to in Section 56(2) to which Article 62 would apply.
5. We hold that the suit is in time and answer the reference accordingly. The costs of this reference will be provided for in the decree.