(1) This revision petition arises out of a small cause suit instituted by the first and second respondents for the recovery of Rs. 550-76 on account of non-delivery of one case of goods by the petitioner out of 11 cases consigned to the first respondent through the third respondent steamship company. It is common ground that the petitioner the Port Trust of Madras, received the 11 cases of goods but did not deliver one case complained of by the first respondent. The second respondent-second plaintiff, with whom the goods had been insured had paid the claim amount and had become subrogated to the rights of the first respondent-first plaintiff. The suit was therefore filed by both the first and second respondents. The third respondent, Steamship Co., contended that the suit was not maintainable as against it inasmush as the particular consignment landed from the vessel had been taken delivery of by the petitioner-Port Trust, who also issued the tally receipt. The petitioner, Port Trust of Madras mainly contended that the claim against it was barred by time under S. 40(2) of the Madras Port Trust Act. The courts below negatived that contention and decreed the suit as against the petitioner herein. The Trustees of the port of Madras have presented this revision petition to revise the order of the courts below.
(2) In order to dispose of this petition, it is necessary to mention certain relevant dates. The steamer in question arrived on 29-9-1960 at Madras with all the 11 cases of goods consigned as ordered by the first respondent. The Port Trust authorities issued the B certificate intimating the short delivery of the one case on 29-12-1960. The Insurance Company obtained the necessary letter of subrogation on 1-8-1961. The present suit was filed on 8-8-1961, for the recovery of the value of the missing goods. The Port Trust authorities would contend that the suit was barred by limitation under S. 40(2) of the Madras Port Trust Act. The Port Trust authorities have also raised an additional ground that the suit is barred under S. 110 of that Act.
(3) Section 40(2) is to the effect that the Board shall not be in any way responsible for loss of or damage to goods of which it has taken charge, unless notice of such loss of damage shall have been given within one month of the date of the receipt given for the goods under sub-section (3) of S. 39. Section 39 (3) says that the Board shall, if required take charge of the goods for the purpose of performing the service and shall give a receipt in the form and to the effect prescribed from time to time by the Central Government. The contention of the Port Trust authorities is that the consignee--first respondent did not give notice within one month from the date of receipt of the goods and that, therefore, the suit is barred by limitation. The further contention is that the consignee did not file the suit within six months from the accrual of the cause of action and it is therefore barred under S. 110 of the Act. The contention of the plaintiff on the other hand, is that the suit is not barred by limitation as the second plaintiff obtained a letter of subrogation by payment of money on 1-8-1961 and that the suit was filed within six months from the said date. They further contend that S. 40(2) of the Act would not apply to the facts of the present case, because that section read with S. 39(3) would apply only to shipping companies and not to the consignee, for the notice contemplated in S. 40(2) refers to the notice to be given by the shipping companies. As far as S. 110 of the Act is concerned, the plaintiffs contention is that the limitation should not be taken from the date of issue of B certificate namely 29-12-1960, which merely informed the plaintiffs that one package had not been landed from the steamer finally they received a notice from the first defendant on 4-2-1961 that the goods had been landed and that they should refer to the Port Trust Authorities regarding their claim and that therefore the limitation would begin from the date namely 4-2-1961. They accordingly filed the suit after giving one month's notice in writing within the period of limitation. The simple question therefore, for consideration is whether the suit is barred by limitation.
(4) Ramamurti, J. had to consider the scope of S. 40(2) read with S. 39(3) of the Act in M/s Swastik Agency v. Madras Port Trust : AIR1966Mad130 . He seems to be of the view that S. 40(2) of the Act should be restricted in its application to cases in which the party has knowledge that the loss or damage has occurred to the goods even on the day, when the receipt is given to him under S. 39(3) of the Act, and that if the knowledge of the loss and the date of the receipt do not synchronise S. 40(2) would have no application, and the liability of the Port Trust for its carelessness or negligence can be enforced within the period prescribed under the general law of limitation. In agree. I am of the view that the provisions of S. 40 (2) read with S. 39(3) will not apply to the facts of the present case and they do not affect the consignee's rights. The said sub-sections can be used only against the owners of shipping companies or carriers, if they do not prefer a claim within one month from the date of receipt given for the goods landed from the steamer. Therefore I agree with the conclusions arrived at by the Courts below that S. 40(2) read with S. 39(3) will not apply to the facts of this case.
(5) The only other point for consideration is whether the suit is barred by limitation under S. 110 of the Act. Though this point was not taken in the Courts below, still as a question of law of limitation learned counsel for the port trust was permitted to raise this ground and argue it. Now it is settled law that according to S. 110 of the Act, a suit for recovery of loss or damage to the goods by reason of the negligence of the Port Trust should be filed within six months from accrual of the cause of action. (See Home Insurance Co. v. Trustees, Madras Port Trust : (1962)1MLJ340 and Trustees of the Port Trust, Madras v. Union of India : AIR1963Mad347 ). Section 110 says that no suit or other proceeding shall be commenced against any person for anything done without giving to such person one month's previous notice in writing of the intended suit and of the cause of such action. Now learned counsel for the plaintiffs would contend that having given such a notice in writing to the port trust authorities he could file the suit only after expiry of one month and within six months from the date of the expiry of such a notice given to the Port Trust, as contemplated in S. 110 of the Act. According to learned Counsel, it comes to this that the suit can be instituted within seven months including the period prescribed for the notice in writing to the Port Trust authorities. In order to support his proposition of law he cited the decision in Changalal Sakerlal v. President, Thana Municipality, : AIR1932Bom259 and contended that he is entitled to exclude the period of limitation prescribed in S. 110 of the Act. The facts in the Bombay case are these so far regarding the point of limitation. The Bombay District Municipal Act requires a suit to be commenced within six months of the Act complained of. The suit was for damages for malicious prosecution. The complaint was filed in 23-3-1923. The plaintiff was acquitted on 17-7-1923. The plaintiff issued notice to the municipality on 7-1-1924 and filed the suit on 16-2-1924. The cause of action was taken as 17-7-1923. The suit was brought within seven months from the date including one months notice under S. 167 to the six months given by the same section. The learned Judges observed thus at p. 140 (of ILR Bom): at p. 261 of AIR).
'Section 167 of the Bombay District Municipal Act says that no suit shall be commenced without one month's previous notice in writing nor after six months from the date of the act complained of. If this excludes the provisions of the Indian Limitation Act, above referred, to it excludes them by implication only and not expressly. In order to exclude them expressly it is necessary to add to S. 167 'the provisions contained in Ss. 4. 9 to 18 and 22 of the Limitation Act shall not apply, or words to that effect. The Legislature have not done this and therefore there is no express exclusion..... The effect is not to alter the period of limitation but to alter the date from which limitation is to be calculated. Under S. 15(2) of the Indian Limitation Act the period of the notice is to be excluded. Ordinarily this period is excluded and if the legislature wanted to make a special exception in the case of suits against a Municipality. It could have said so....I hold, therefore that S. 167 of the Bombay District Municipal Act is subject to S. 15(2) of the Indian Limitation Act, and therefore plaintiff is entitled to exclude the period of one month of notice from the period of limitation for this suit'.
If the above principles are applied to the facts of the instant case, the respondent's contention must be accepted, in that he would be entitled to exclude the one month's period contemplated under S. 110 of the Madras Port Trust Act. I therefore see no reason to differ from the conclusions arrived at by the courts below. The civil revision petition is dismissed with costs.
(6) Revision dismissed.