1. The plaintiffs carry on business at Raigarh in the Central Provinces. The defendants are the owners of a railway in Calcutta, their stations include Rathtola, Baghbazar, Chitpore and Cossipore and part of west Docks Junction. At Rathtola, the business of booking and despatch of freight is conducted by the Bengal Assam Railway on the defendants' behalf. At West Docks Junction the defendants' railway joins the Bengal Nagpur Railway; each railway administration is responsible for its respective, portion of the junction, and where trains pass from one system to the other.
2. The plaintiffs were the owners of a large quantity of jute. On 2nd February 1944, it was delivered to the Bengal Assam Railway at Eathtola, acting on the defendants' behalf, to be loaded into wagons and despatched to the plain, tiffs at Raigarh. The wagons would travel by the defendants' railway from Rathtola to West Docks where they would pass on to the Bengal Nagpur Railway to complete the journey. The defendants' railway receipt for the consignment is No. 043935; the jute was loaded into 4 covered wagons Nos. 41294, 768, 33395 and 33511. The wagons formed part of the defendants' 24 wagon train which left Rathtola on 2nd February 1944. On 16th February, the first three wagons arrived at Raigarh and their contents were delivered to the plaintiff. The fourth wagon, No. 33511, never arrived and the jute loaded in it was never delivered.
3. The consignment was made under Risk Note B, which contains the term of the contract between the parties. The relevant provisions, so far as material, are as follows:.Whereas the consignment...tendered by us...for despatch by the Railway administration to Raigarh Station under Railway Receipt No. 043935 of 2-2-44 is charged at a special reduced rate instead of at the ordinary tariff rate chargeable for such consignment, we, the undersigned, do, in consideration of such lower charge, agree and under-take to hold the said Railway Administration harmless and free from all responsibility for any loss, destruction,...to, the said consignment from any cause whatever except upon proof that such loss, destruction...arose from the misconduct of the Railway Administration's servant. Provided that in the following cases:
(a) Non-delivery of the whole of the said consignment or of the whole of one or more packages forming part of the said consignment...where such non-delivery is not due to accidents to trains or to fire...the Railway Administration shall be bound to disclose to the consignor how the consignment was dealt with throughout the time it was in its possession or control and if necessary, to give evidence thereof before the consignor is called upon to prove misconduct but if misconduct on the part of the Railway Administration or its servants cannot be fairly inferred from such evidence, the burden of proving such misconduct shall be upon the consignor.
4. In the plaint it is alleged the non-delivery of the jute in wagon No. 33511 was due to the misconduct of the defendants' servants and the plaintiffs claim Rs. 3207-5-6 damages for non-delivery. This sum is agreed by the defendants as the amount recoverable, subject to liability.
5. In their written statement, the defendants allege non-delivery was due to fire at West Docks Junction after they had made over the wagons containing the jute to the Bengal Nagpur Railway and misconduct by the defendants' servants is denied. It is further pleaded that notice under Section 77, Railways Act was not given by the plaintiffs to the defendants and that the suit is barred by limitation under the general law. A further plea under the Calcutta Port Act, 1890, was abandoned. The plaintiffs dispute that the jute in wagon No. 33511 was destroyed by fire.
6. The defendants' evidence regarding the despatch from Rathtola and their explanation for non-delivery of the jute can now be examined. Benarasi Singh, a way clerk employed by the Bengal Assam Railway (who conduct the defendants' business at Rathtola) said he loaded the plaintiffs' jute into four watertight covered wagons, including No. 33511. The jute was dry and in good condition. He labelled, sealed and rivetted the wagons, which formed part of a 24 wagon train taken over by the defendants at 5-30 P.M.
7. Manick Lal Dey is a number-taker employed by the defendants at West Docks Juncture. He said that at 2-20 A.M. on 3rd February the train was standing on a line in the defendants' part of the junction. Together with a man named D. Hori, a number-taker employed by the Bengal Nagpur Railway, he examined all the wagons of the train; they were in proper condition. Wagon No. 33511 was in the centre of the train, it was sealed and rivetted and there were no slits or crevices in it. He entered the serial numbers and other details of each wagon in his book, which Hori signed as 'T/O' (taken over) and he produced his book. This, he said, was the method by which the Bengal Nagpur Railway took over trains from the defendants. Dey added that when anything wrong is found, this is recorded in his book and he pointed out an entry, on another day, that a door of a wagon was open and the wagon was refused by the Bengal Nagpur Railway. He said the other number-taker signs his book after being satisfied a wagon is in proper condition.
8. Ram Janam Singh is an assistant yard master employed by the defendants at West Docks. He was on duty on the night of 2nd/3rd. February 1944. He said his duties include making over trains to the Bengal Nagpur Railway; wagons are checked jointly by number-takers of the two railways and they report to him in his office. On the morning of 3rd February, Dey and Hori reported to him regarding the train in question and Hori signed Dey's book in his presence. He added that he did not himself inspect the train.
9. Janam Singh continued that about 6 A.M. he was making his rounds of the junction and saw smoke rising from a slit in a door of wagon No. 33511, the train of which it formed part was still standing in the same position it had occupied earlier. He had the wagon detached and moved by one of the defendants' engines to the water column, which Dey said was also situate on the defendants' part of the junction. Janata Singh said he broke the seals and rivets, opened the doors and found the jute was on fire on all four sides. He tried to extinguish the fire for half an hour but was unsuccessful. About 6-5 A.M. or 6-10 A.M., he informed the defendants' fire brigade, which arrived at about 6-45 A.M. or 6-50 A.M. He was not present when the fire was extinguished, on arrival of the fire brigade it was still burning and he left to make out his diary in which he wrote that the jute in the wagon caught fire but did not mention any cause. He verbally reported the matter to the Yard Master whose name he could not recollect, and to the Superintendent when those officials arrived. As he was not present when the fire was extinguished he could not say whether any jute remained unburnt. Janam Singh added that about 7 A.M. he told Dey the wagon had caught fire. In regard to the fire, Dey said he saw wagon No. 33511 standing at the water column where the fire brigade were pouring water over it and he was some distance away at the time.
10. Before discussing the above testimony, it is convenient to refer to the evidence given for the plaintiffs and to some correspondence. Kanhaiyalal Kashuks is the plaintiffs' manager at Raigarh. He said on 16th February he took delivery of jute from the 3 wagons which arrived. Later he went to Raigarh station and asked the Station Master as to the missing wagon; no proper reply was received, he was told enquiries were being made 'and so on.'
11. Suresh Chandra Guha is the Calcutta representative of Messrs. Surajmull Nagarmull, who despatched the jute for the plaintiffs. He said he made enquiries at Rathtola regarding the missing wagon. On 28th March he was informed by the staff there that the wagon caught fire at West Docks, the contents were transhipped into two other wagons and sent to Baghbazar, then to Chitpore and finally to Cossipore - all of which are the defendants' stations. He was not informed before 28th March that the jute would not be delivered to the plaintiffs. On the same day he gave Mr. Kasaka the information which he had received. This witness was not cross-examined and his evidence is unchallenged.
12. On 28th March, the plaintiffs wrote to the Bengal Assam Railway. In their letter details are given of the consignment and non-delivery of wagon No. 33511 and that they had learnt on enquiry it had caught fire at West Dock Junction; reference is also made to removal to Baghbazar and Chitpore for disposal of the jute and a claim is made for Rs. 3207-5-6, with details, for non-delivery. On 31st May the Bengal Assam Railway replied that as the destination station was on the Bengal Nagpur Railway their claims officer was the competent authority to dispose of the case and to whom the plaintiffs' letter had been sent. Meanwhile, on 14th April, the plaintiffs wrote to the defendants enclosing a copy of their letter of 28th March to the Bengal Assam Railway and stating that the copy was sent for favour of the defendants' perusal and immediate action and intimation to the plaintiffs. On 20th April, the defendants acknowledged the plaintiffs' letter and stated the matter was receiving attention; on 4th May they wrote that the claim would be dealt with by the B & A Railway as the consignment was despatched from Rathtola one of the through traffic stations worked by the B. & A. Railway 'on our behalf.'
13. Evidently the matter relating to the plaintiffs' consignment of jute was the subject of correspondence between the defendants and the Bengal Assam Railway. On 31-1-1945, the defendants wrote to that railway; their letter is headed with the relevant identification of the consignment and states inter alia that:
While awaiting despatch to B.N. Rly., the wagon in question with its seals and rivets intact was seen to be on fire which was immediately put out. The fact that the seals and rivets were intact at the time of the fire indicates that the fire could only have resulted from spontaneous combustion which jute is susceptible to. There was no question of misconduct on the part of our staff and it was not considered necessary to hold a joint enquiry.
14. Firstly, as to whether the train had been handed over by the defendants and was in charge of the Bengal Nagpur Railway before the fire broke out. Whilst the serial numbers of the wagons and other details were noted in Dey's book and the other railway's number-taker signed the book, the train remained on the defendants' lines and in their portion of West Docks station and it was not moved to the other railway system. Janam Singh, and not the other railway's officials, took charge when fire was discovered, he had the wagon in which it occurred, moved to the water column, which is on the defendants' property, he tried to extinguish the fire and summoned the defendants' fire brigade who dealt with it. No one from the Bengal Nagpur did anything and Janam Singh did not say it was their responsibility to have done so. Hori was not called to bear out the taking over by his railway. Further in their letter of 31-1-1945, the defendants informed the Bengal Assam Railway that the wagon was seen to be on fire 'while awaiting despatch to B.N. Rly.' clearly showing that the wagon had not been handed over. At all times, the wagon and the whole train were on the defendants' railway under their charge and orders and they were responsible for the train. It is manifest, the Bengal Nagpur Railway had not taken over the train.
15. Now as to the question whether the plaintiffs' jute was destroyed by fire. The defendants have produced no contemporaneous record of its destruction or that the fire on the morning of 3rd February occurred to wagon No. 33511 or that the whole contents of the wagon were destroyed. Janam Singh said he entered the happening of the fire in his diary, but it has not been forthcoming. The fire to a railway authority's rolling stock and its contents must have been the subject of reports from officials at the station. On 4-5-1944, the defendants wrote to the plaintiffs that their claim would be dealt with by the Bengal Assam Railway and, on 31-1-1945, they informed the B. & A. Railway of some details regarding the fire. Those letters must have been written upon reports made by officials but none has been forthcoming. Janam Singh did not inspect the train during the early hours of 3rd February and did not produce his diary but nevertheless he was able to remember that the number of the wagon on fire was No. 33511. Incidentally, he said he could not recollect the name of the Yard Master, his immediate superior on that day, to whom he reported the fire. Dey said, from a distance he saw water being poured over the wagon at the water column, he did not go to it but yet he said he identified it as No. 33511. Wagons are almost identical in appearance from a distance unless there is some special distinguishing mark; he did not say this wagon was any different to others so as to enable him to recognise it after inspecting it in the dark some hours previously. The explanation for non-delivery of any part of the load in wagon No. 33511 is that it caught fire. It must follow that the suggestion is the whole load was destroyed. According to the defendants' letter of 31-1-1945 the fire to one of the plaintiffs' wagons was immediately put out. That does not accord with Janam Singh's evidence which is to the effect that he was engaged upon its extinguishment for about three quarters of an hour and the fire brigade took charge, when it was 3tiil burning. No witness was called for the defendants' fire brigade, which must record details of every fire it attends, to speak to the time taken to put out the fire, the number of the wagon concerned and whether any and, if so, what jute was saved from destruction or whether the whole was destroyed. Mr. Guha said he was told the load from the burnt wagon was transhipped into two other wagons and transported to the defendants' Cossipore Station. No oral evidence was given by the defendants regarding this removal, what, if any, jute remained undestroyed, or what was done with the transhipped jute. It would seem that if the contents were taken away, the condition of the jute justified this labour and expense and the jute had, at least, some value. The defendants never informed the plaintiffs by letter regarding the disposal of the salvage.
16. There is the withholding of contemporaneous records, which undoubtedly must exist, there is at the very least, the Assistant Yard Master's Diary. The absence of witnesses for the defendants, such as their fire brigade chief, the Yard Master at West Docks Station to whom Janam Singh said he reported the fire and who, he added, is the official responsible for salvage from a fire and of the Superintendent to whom, also, the fire was reported; these missing documents and witnesses can give rise only to the inference that if forthcoming they would not support the defendants' story. The evidence given by Janam Singh and Dey was not convincing and does not establish that the wagon which caught fire was No. 33511. I am not satisfied that that fire broke out in that, and not in any other wagon or that the fire, if it occurred, destroyed all the plaintiff's jute. In any event, according to the defendants' letter of 31-1-1945, written to the railway authority which conducted their business at Rathtola and, therefore, presumably their agents and not to any one making a claim upon them, the fire to one of the plaintiffs' wagons was extinguished immediately and that an enquiry was considered necessary. This suggests that the whole of the contents of the wagon was not destroyed; incidentally, although in the above letter the cause is attributable to spontaneous combustion, yet no evidence was given that jute is susceptible to that phenomenon. I do not believe the defendants' explanation that non-delivery was occasioned by the plaintiffs' jute having been wholly destroyed by fire.
17. The defendants' evidence was called to show that (1) the missing wagon was handed over to the Bengal Nagpur Railway and the defendants' responsibility for it had ceased and (2) the wagon load was destroyed by fire. This evidence was given pursuant to the terms of Risk Note B, proviso (a) of which relates to non-delivery not only of the whole consignment but also, of one or more packages forming part of it, where non-delivery is not due to fire. Wagon 33511 was loaded with packages forming part of the whole consignment and their non-delivery was not due to fire. In these circumstances the defendants are bound to give evidence how the consignment was dealt with throughout the time it was in their possession or control. Upon the findings which I have expressed, they have not disclosed what the risk note requires of them. The risk note further provides that if misconduct on the part of the defendants or their servants cannot be fairly inferred from their evidence, the burden of proving misconduct shall be upon the consignors (plaintiffs).
18. In Surat Cotton Spinning and Weaving Mills Ltd. v. Secy. of State their Lordships of the Privy Council considered the provisions of Risk Note B and, at p. 182 observed:
It is clearly for the (Railway) Administration to decide for themselves whether they have adduced all the evidence of such fair inference of misconduct. They will doubtless keep in mind the provisions of Section 114, Evidence Act.
Section 114 enacts that
The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.
Illustration (g) to the section provides that the Court may presume
that evidence which could be and is not produced, would, if produced, be unfavourable to the person who withholds it.
The illustration refers to presumptions raised from wilful withholding of evidence and the rule is expressed in the maxim 'Omnia praesumuatur contra spoliatorem.'
19. Here, no contemporaneous documents have been divulged; there must have been reports by the Yard Master and Superintendent at West Docks station and by the Fire Brigade Chief, there was certainly the diary entry made by Janam Singh. The statement in the plaintiffs' letter of 28th March, a copy of which was sent to the defendants, that the wagon was taken to Baghbazar and Chitpur (not quite the same but substantially similar to what Mr. S.C. Guha said he had been told by the staff at Rathtola), was not denied by the defendants in either of their replies to the plaintiffs' letter of 14th April enclosing that of 28th March. There must be records of this removal and of the state of the jute sent to Cossipore or Chitpur and of its disposal, but none has been forthcoming nor has any oral evidence been given by the members of the defendants' staff either of the removal of the jute or if its condition after the fire was extinguished or of its disposal. Risk Note B requires the defendants to give evidence how the plaintiffs' consignment was dealt with throughout the time it was in their possession or control; their evidence, such as it is, stops at the point where it is alleged the wagon was still on fire at the water column and the fire brigade were pouring water over it.
20. In M. & S.M. Ry. Co. Ltd. v. Garimela Satyanarayana & Sons ('38) 25 A.I.R. 1938 Mad. 206, non-delivery of goods by a railway administration was sought to be explained by their destruction by fire to a shed in which it was alleged they were kept; no documentary evidence was produced to support the oral testimony and the story was rejected. After pointing out that the railway had failed satisfactorily to establish that the goods were lost by fire, it was observed at p. 208 'From this it follows that they have failed to account as to how they dealt with the goods during the time they were in their possession and control' and later, 'having failed to account for the non-delivery thereof, the Railway Company is liable.' In Secy. of State v. Gulabchand , Kolhatkar A.J.C. observed, at p. 342, that when a Railway Administration does not give evidence, as required by Risk Note B, the Court will have no alternative but to presume misconduct from the failure.
21. In the present case the destruction of the jute by fire was sought to be shewn in order (1) to escape from the obligation to give the evidence required by provision (a) to the risk note and (2) to comply with that requirement. They have failed in each respect and have not carried out their obligation to give evidence how, the jute was dealt with by them throughout the time it was in their possession or control; they have not produced evidence which they could have produced; in those circumstances the pro. visions of Section 114(g), Evidence Act come into operation, which the Board, in Surat Cotton Spinning and Weaving Mills Ltd. v. Secy. of State , pointed out must be kept in mind by a Railway Administration; in that case their Lordships expressed the opinion that the absence of the. evidence of a Guard of a train, from which a theft had occurred, entitled the Court to presume that if produced it would be unfavourable to the railway, and, in consequence, misconduct by complicity in the theft of some servant or servants might fairly be inferred from the evidence which had been given. In my view, the withholding by the defendants of all contemporaneous documents and oral evidence as to their dealing with the jute in wagon No. 33511 during the whole time it was in their possession or control and the absence of satisfactory evidence establishing it was that wagon which was on fire and its contents wholly destroyed, brings Section 114(g), Evidence Act into operation. In those circumstances, it is fair to presume and infer that if all available evidence had been produced it would have shewn that the non-delivery of the plaintiffs' jute was occasioned by the misconduct of the defendants' servants. In River Steam Navigation Co. Ltd. v. Bisweshwar Kundu : AIR1928Cal371 , Mookerjee J. observed at p. 376 that when a carrier, to whom the Carriers Act applies, fails to discharge the burden cast upon him of disproving negligence, that is prima facie evidence of negligence; with respect I agree with that observation and consider it is in point here. Mr. Cammiade, for the defendants referred to H.C. Smith Ltd. v. G.W. Ry. Co. (1922) 1 A.C. 178. There, a carrier gave no evidence regarding the goods consigned and it was held that his refusal to account for their loss, was not evidence justifying the Court inferring that the loss arose from the wilful misconduct of the carrier's servants. In that ease the consignment, or risk note relieved the carrier from all liability except upon proof of wilful misconduct but it did not contain a provision, regarding the carrier's obligation to give evidence, which is found in Kisk Note B. That decision by the House of Lords is not therefore, applicable in the present instance.
22. In this connection, there is one further observation to be made. Risk Note B relieves the defendants from liability for loss, save upon proof of misconduct of their servants but the immunity given to them is subject to the proviso that in case of non-delivery of the whole or part of the consignment, the defendants are bound to give evidence how they dealt with the consignment throughout the time it was in their possession or control. The production of that evidence is a condition to be fulfilled by the defendants in order to avail themselves of the immunity given by the risk note. It is not sufficient for some evidence to be given, but the evidence must be comprehensive and relate to all the dealings with the consignment. In this case the condition has not been complied with and, therefore, the defendants cannot' avail themselves of the benefit given by the risk note. Although it is not so expressed, this seems to be the ratio decidendi in M. & S.M. Ry. Co. Ltd. Garimela Satyanarayana & Sons ('38) 25 A.I.R. 1938 Mad. 206. Having failed to observe the condition in the risk note, the defendants are liable for the loss, even in the absence of proof that it was caused by the misconduct by the servant, since the benefit of the risk note cannot be availed. Subject to the statutory defences raised in the written statement, and with which I will now deal, the plaintiffs are entitled to recover the amount claimed for nondelivery of their jute.
23. Section 77, Railways Act, provides that a person shall not be entitled to compensation for the loss of goods delivered to be carried unless his claim to compensation has been preferred in writing by him or on his behalf to the railway administration within six months from the date of the delivery of the goods for carriage by railway. The defendants contend that no claim was preferred to them by the plaintiffs within six months of 2-2-1944, when the jute was delivered to them for carriage.
24. It is beyond dispute that the plaintiffs' letter of 28th March 1944 to the Bengal Assam Railway is a claim to compensation within the section. A copy of that letter was enclosed in the plaintiffs' letter, dated 14th April 1944, to the defendants. The letter states that the plaintiffs addressed a letter to the B & A Railway for favour of payment of the value of the burnt jute, whereof a copy was sent therewith for favour of the defendants' perusal and immediate action and intimation to the plaintiffs. On 4th May the defendants wrote that the question of the claim would be dealt with by the B & A Railway as the consignment was despatched from Rathtola, which is one of the through traffic stations worked by the B & A Railway on the defendants' behalf. It is clear that the defendants treated the plaintiffs' letter of 14th April, and the enclosure as a claim made against them; they accepted; it as such; the effect of their letter of 4th May is that the claim, that is to say, the claim against the defendants, would be dealt with on their behalf by the Bengal Assam Railway. The statement in the plaintiffs' letter of 14th April that the copy was enclosed for the defendants' perusal and 'immediate action' can mean only that; they were requested to meet the claim, and that; it was preferred against them. In my opinion the plaintiffs complied with the requirements in Section 77, Railways Act.
25. Now as to whether the suit was brought within the statutory limitation period. It was instituted on 27th March 1945. Articles 30 and 31 each provides a limitation period of one year during which a suit must be filed against a carrier; the former Article relates to a claim for compensation for losing or injuring goods and the period commences when the loss or injury occurs; the latter Article relates to a claim for compensation for non-delivery of, or delay in delivering goods, and the period commences when the goods ought to be delivered.
26. Mr. Cammiade contended that Article 30 is the relevant one; he argued the plaintiffs' jute was lost by fire on 3rd February 1944, from which date limitation commenced and it expired on 2nd February 1945, prior to the institution of the suit. The claim in the suit is for damages for non-delivery; no objection was taken that the form or cause of action was incorrect or that the claim should have been for loss or injury. Further, upon the evidence, as already expressed, the defendants have not established that the jute was lost by fire. For these two reasons, I hold that Article 31, and not Article 80, is the relevant one and applies to the suit. In B. & N.W. Ry. Co. Ltd. v. Kameshwar Singh ('33) 20 A.I.R. 1933 Pat. 45, Terrel C.J. and Fazl Ali J. held that Article 31 applied to a claim in respect of non-delivery of a part of a consignment; with respect I agree with that decision. It follows that, to prevent defeat by the law of limitation, the suit must have been instituted within one year from when the jute in wagon 33511 ought to have been delivered by the defendants.
27. Mr. Cammiade contended that three of the four wagons having been delivered on 16th February 1944, that is the date when the missing wagon load ought to have been delivered; since that date is more than one year prior to the institution of the suit, it is barred by limitation. In support of this proposition he referred to and relied upon Gopiram Gauri Shankar v. G.I.P. Ry. Co. ('27) 14 A.I.R. 1927 Pat. 335 in which the opinion was expressed by a Division Bench, at p. 336, that where a greater part of a consignment had been delivered there is ordinarily no necessity to enter into evidence on the question when the balance ought to have been delivered because the time when the consignment, as a whole, ought to have been delivered is manifestly the time when the greater part of it arrived at its destination. In Rameshwar Dass Mali Ram v. E.I. Ry. Co. Ltd. ('23) 10 A.I.R. 1923 Pat. 298 Ross J., observed that when a consignment of 250 bags of flour was delivered short by 5 bags, limitation with respect to a claim for the 5 bags commenced to run on the date when the short delivery was made.
28. Contrary opinions ate found in other decisions. In Palanichami Nadar v. Governor-General in Council ('46) 33 A.I.R. 1946 Mad. 133, Yahya Ali J., reviewed the authorities and, at p. 136, expressed the opinion that time under Article 31 begins to run from after a definite refusal or declaration of inability to deliver and the cause of action arises when the owner of the goods (petitioner in that case) is made aware that there will be no further delivery of the undelivered part of the consignment. In M. & S.M. Ry. Co. Ltd. v. Bhimappa ('12) 23 M.L.J. 511 reference was made to a reasonable time within which, in the circumstances of the case, the goods should have been delivered. In Jugal Kishore v. G.I.P. Ry. 10 A.I.R. 1923 All. 22 Stuart and Sulaiman JJ., at p. 46, said they refused to recognise any inflexible rule that time must begin to run from the expiry of the ordinary period of transit; at p. 45 it was pointed out that the correspondence showed the matter was being enquired into and there was no refusal to-deliver until well within a year of the suit being instituted. B. & N.W. Ry. Co. Ltd. v. Kameshwar Singh ('33) 20 A.I.R. 1933 Pat. 45 was a claim in respect of non-delivery of part of a consignment of iron rods and it was observed, at p. 48, that when a delivery date is not prescribed, delivery is to be made within a reasonable time of despatch. S.I. Ry. Co. v. Narayan Iyer 11 A.I.R. 1924 Mad. 567 held that time began to run from the date when the railway finally said the goods would not be delivered.
29. Returning to the facts of the present case, no time for delivery was specified. Transit of goods on railways, more particularly during the war period, is subject to delay and goods handed to a railway in one bulk are frequently delivered by instalments spread over a considerable period. la such delivery it cannot be said that the railway is in default of its obligations by failing to deliver the whole at one and the same time. When one consignment is loaded in several wagons, they do not always reach the destination at the same time but often one wagon travels quicker and its contents are delivered before the others arrive. When that occurs, if a suit were immediately instituted, after arrival of one of several wagons, for the balance, it would be met with a plea that a reasonable time for delivery had not expired and the action was premature. I am unable to subscribe to the decision in Gopiram Gauri Shankar v. G.I.P. Ry. Co. ('27) 14 A.I.R. 1927 Pat. 335 that the time when a whole consignment ought to be delivered is the date upon which the major portion of it arrives at the destination. After 3 of the 4 wagons arrived at Raigarh, and when wagon No. 33511 had not reached that station, the plaintiffs' manager-enquired at that station. That was the correct and indeed, the best possible step to take. He was told that enquiry was being made; this clearly conveyed expectation of information being received and delivery taking place. Since no information was forthcoming at Raigarh, enquiry was made on the plaintiffs' behalf by Mr. Guha at Bothtola, from where the goods had been consigned. He was told on 28th March the wagon had caught fire at West Docks; but the date of the fire was not stated and he was further told the contents of the wagon had been sent to the defendants' Cossipore Station; information was not vouchsafed that none of the contents would not be delivered. After receiving the plaintiffs' claim for non-delivery the defendants wrote on 20th April 1944 that the matter was receiving attention; they did not even then say the goods had been totally destroyed and could not be delivered. Finally, on 4-5-1944 the defendants wrote that, on their behalf, the Bengal Assam Railway would deal with the plaintiffs' claim.
30. Upon those facts, the plaintiffs were unaware and were not informed before 28-3-1944 that the defendants would not deliver the jute, indeed from the information given to Mr. Guha conveyed by the defendants' letter of 20 4-1944 the plaintiff might well have assumed that some, even if not all, of the missing jute might reach them. In any event the earliest date when, from the meagre information given, a refusal or inability to deliver was conveyed, was 28th March before which, in my view a reasonable time for delivery had, not expired and, at the earliest, the limitation period commenced to run. With respect, I prefer to follow, the line of cases, cited above, commencing with Palanichami Nadar v. Governor-General in Council ('46) 33 A.I.R. 1946 Mad. 133 rather than those upon which Mr. Cammiade relied. The suit was instituted on 27-3-1945, within the period prescribed by Article 31. It follows that the claim is not barred by limitation. There will be a decree in the plaintiffs' favour for the amount claimed with costs.