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Rekhab Chand Somani Vs. the Union of India (Uoi) - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtKolkata High Court
Decided On
Case NumberSuit No. 4328 of 1951
Judge
Reported inAIR1960Cal152
ActsLimitation Act, 1908 - Schedule - Article 31
AppellantRekhab Chand Somani
RespondentThe Union of India (Uoi)
Appellant AdvocateM. Hazra, Adv.
Respondent AdvocateG.P. Kar, Adv.
DispositionSuit dismissed
Cases ReferredIn S. Kushal Chand and Co. v. Sree Ambica Steam Navigation Co
Excerpt:
- .....first letter relied on by the plaintiff is dated july 22, 1948 addressed to the chief commercial manager (claims), e. i. railway, 3 koila-ghat street, calcutta, by the plaintiff's pleader. the complaint in this letter is that the goods covered by l. l. t. no. 274819 of june 12, 1948 had not been delivered to the plaintiff and the price of the goods contained therein amounted to rupees 2500/-. the last two sentences of the letter read as follows:'my client, therefore, hereby prefers a claim with you for the recovery of the sum without any further reference. please expedite settlement of my client's said claim and obliged.'apparently there was no reply to this letter and on august 14. 1948, a reminder was given of theclaim for compensation for rs. 2500/- already preferred. the last.....
Judgment:

G.K. Mitter, J.

1. This is a suit against the Union of India for recovery of Rs. 2500/- as the value of the contents of a steel trunk made over to the East Indian Railway at Fairlie Place Booking Office for safe carriage to Napasar. The said parcel was covered by a receipt L. L. Ticket No. 274819 dated 12-6-1948. The plaintiff alleges that the parcel met despatch on Tune 13, 1948 in G. I. P. Wagon No. 15157 to Delhi but it was never delivered to him. He states in his plaint that by letter dated 19-2-1949 the servants of the defendant informed him that enquiries were being instituted and a report would be made on the subject but no such report was made in spite of reminders. This suit was instituted on September 6, 1951 after the service of notice under Section 77 of the Railways Act and Section 80 of the Code of Civil Procedure. Particulars of the contents of the trunk and their value are given in paragraph 8 of the plaint totalling Rs. 2504/8/-.

2. In the written statement which' was filed on 9-4-1952 the defence taken is that there was no negligence or default or breach of duty on the part of the defendant. The correctness of the particulars of paragraph 8 of the plaint is not admitted nor is the sufficiency or the validity of the notices referred to in the plaint. The plea of limitation is also taken.

3. Learned counsel for the defendant submitted that as the plaintiff's suit was bound to fail on the question of limitation, the suit should be decided on that preliminary issue. For the purpose of this issue, the parties did not choose to call oral evidence and were content to rely on the brief of correspondence which was marked Exhibit A by consent.

4. The first letter relied on by the plaintiff is dated July 22, 1948 addressed to the Chief Commercial Manager (Claims), E. I. Railway, 3 Koila-ghat Street, Calcutta, by the plaintiff's pleader. The complaint in this letter is that the goods covered by L. L. T. No. 274819 of June 12, 1948 had not been delivered to the plaintiff and the price of the goods contained therein amounted to Rupees 2500/-. The last two sentences of the letter read as follows:

'My client, therefore, hereby prefers a claim with you for the recovery of the sum without any further reference. Please expedite settlement of my client's said claim and obliged.'

Apparently there was no reply to this letter and On August 14. 1948, a reminder was given of theclaim for compensation for Rs. 2500/- already preferred. The last sentence of this letter runs:

'You are, therefore, requested to make necessary enquiry at your end and settle my client's-said claim at an early date.''

On 8-11-1948, a letter was addressed to the General Manager, E. I. R., stating that although the Chief Commercial Manager had been addressed on the subject twice, no reply had been received and unless the plaintiff's claim was settled within a reasonable time, he would be reluctantly compelled to take legal steps to recover the sum of Rs. 2500/-. No reply being received, the pleader sent a reminder to the General Manager on January 12, 1949 to the effect that his client would be compelled to file a suit. On January 29, 1949 the Chief Commercial Manager condescended to acknowledge-receipt of the letter dated 12-6-1948 and added 'the subject .... is receiving attention.' It will be noticed that there was no letter of June-12, 1948 that date being the date of the issue of the luggage ticket. It should also be noted that the plaintiffs pleader had never asked for the delivery of the parcel but had throughout maintained that his client had suffered damages to the extent of Rs. 2500/- and was making a claim in respect thereof. It cannot, therefore, be said that the subject matter of the enquiry was the tracing of the parcel but was the settlement of the plaintiff's claim for compensation. On February 19, 1949 the Chief Commercial Manager addressed a second letter to the plaintiffs lawyer and as the argument of the plaintiff's counsel was based mainly on this letter it is set out in extenso below:

'Further to this office letter of even No. dated August 4, 1948 I have to inform you that the consignment in question met despatch from. Howrah loaded in wagon G. I. P. 15157 to Delhi by 81 UP. on 13-6-1948. Further enquiries were being instituted and I shall revert to you on the subject shortly.'

This letter by itself certainly suggests that the Railway authorities were enquiring into the whereabouts of the parcel and expected to give some information to the plaintiff on the subject in the-near future. For nearly six months thereafter there was no correspondence and on August 2, 1949 the pleader wrote to the Chief Commercial Manager again to say that his client's claim had not even then been settled. The pleader further mentioned that 'the last date for filing claim in Court is 12-8-1948. You are, therefore, requested to settle my client's claim before 6th of this month as otherwise my client will be reluctantly compelled to file a suit for the recovery of his claim.' This letter shows that the client was not interested in tracing the goods at all but wanted compensation which he had already assessed. This letter was probably followed bv an interview with the Assistant Chief Commercial Manager for it is to be found that on November 11, 1949 the pleader wrote to the Chief Commercial Manager mentioning the interview. The-important portion of this letter runs as follows:

'let me know if the claim in this respect will be settled by you shortly? The Assistant Chief Commercial Manager in charge of the above case has been interviewed twice for settlement of the claim and although he had assured my client of speedy settlement, nothing has been done as yet. You are therefore requested to see that the above-claim is settled without any further delay.'

On July 3, 1951 the solicitor for the plaintiff took the matter up again and made a demand in writing claiming payment of Rs. 2500/- from the General Manager, E. I. R. This letter was servedas the statutory notice under Section 80 of the Civil Procedure Code.

5. Arguing the case on behalf of the plain-tiff Mr. Hajra relied chiefly on the decision of this Court in the case of Jainarain v. Governor General of India, : AIR1951Cal462 and in particular paragraph 17 thereof where Chakravartti, J. after taking notice of various judgments cited at the bar, observed that 'This impressive array of authorities seems to me to establish beyond doubt that the time when the goods ought to be delivered within the meaning of column 3 of Article 31 is not the time when they should have been delivered in the normal course, at least in a case where there is no time fixed for delivery, but the time when they ought to be delivered according to the subsequent promises by the railway which informs the parties that it is carrying on enquiries.' Earlier in his judgment the learned Judge said that

'it has however been held in a series of cases, both of this Court and other High Courts that where no time is Fixed for delivery and where after the discovery of non-delivery, correspondence ensues between the consignor and the Railway authorities in the course of which the railway goeson promising enquiries and never denying any liability, limitation does not begin to run till thecorrespondence ends either fruitlessly or with a final statement by the Railway of its inability to deliver or a final repudiation of the consignor's claim.'

6. In Palanichami v. Governor General of India, AIR 1946 Mad 133 after reviewing the authorities cited the conclusion arrived at by Yahya Ali, J. was mat 'the construction placed upon Article 31 that time begins to run from after a definite refusal or declaration of inability, to deliver by the responsibly railway company has to be upheld.' Reliance was placed by the learned Judge of the Madras High Court on Jugal Kishore v. G. I. P. Ry. Co., ILR 45 All 43: (AIR 1923 AH 22(2), M. and S. M. Ry. Co. Ltd. v. Bhimappa. 23 Mad LJ 511, S. I. Ry. Co. v. Narayana Iyer, AIR 1924 Mad 567 and B and N. W. Rv. Co. v. Kameswar Singh, TLR 12 Pat 67: (AIR 1933 Pat 45).

7. The above Allahabad decision as also the decision in Palanichami's case were examined by Chakravartti, J. who also referred to a judgment of Gentle, J. in Raigarh Jute Mills Ltd. v. Commrs. for the Port of Calcutta : AIR1947Cal98 .

8. Mr. Hajra relied on this line of cases and cited most of them in support of his argument that inasmuch the railway had stated in its letter of February 19, 1949 that it was making enquiries and had not thereafter informed the plaintiff or his pleader that there was no chance of delivery of the goods and had never finally repudiated the plaintiff's claim there can be no limitation under Article 31 of the Limitation Act. When I asked Mr. Hajra whether after the letter of 19-2-1949 the plaintiff could afford to wait for 5 years and then say that the claim was not barred by limitation Mr. Hajra had to agree that probably he could not go to that length. He argued that the plaintiff must be allowed a reasonable time after February 19, 1949 even if the railway had failed to make any report thereafter or neglected to answer any letter written on the subject afterwards. Mr. Hajra said that it would not be unreasonable for the plaintiff to presume that he should await further developments before filing his suit.

9. In my opinion, this line of argument is fallacious.

10. In view of the authorities of the different High Courts mentioned above Chakravartti. J.took the view that when the railway went on promising enquiries without denial of liability it would not be unreasonable to hold that the time within which the goods ought to be delivered had not then arrived. In Oudh and Tirhut Ry. v. Mrs. Karam-chand Paras Rani, : AIR1958All234 , a similar view was taken by two learned Judges of the Allahabad High Court. A contrary view was however taken by the Pull Bench of the Punjab High Court in Dominion of India v. Amin Chand, (S) . The learned Judges there held that 'the words when the goods ought to be delivered cannot be construed to mean when the carrier expresses its inability to or refuses to deliver the goods .... this construction does not appear to be in consonance with the intention of the Legislature.' In S. Kushal Chand and Co. v. Sree Ambica Steam Navigation Co, Ltd., 100 Cal LJ 45 where this question came up for discussion I observed that until a Full Bench decision of our Court on the point was given the former decisions of this Court ought not to be departed from. In that case the suit was filed on 3-4-1950 and after protracted correspondence the lawyers of the defendant admitted for the first time in a letter dated February 6, 1950 that the goods were lost. On the facts of that case I held that the suit was not barred by limitation.

11. But the position in the present suit is entirely different. The letter of February 19, 1949 cannot be considered by itself leaving out of account all the other letters written by the parties. The plaintiff or his pleader never made any demand that the parcel should he returned to him or inquiry instituted to trace the same. From the beginning the demand was one for compensation for Rs. 2500/- and insistence was made on early settlement of the claim. Even if after the receipt of the letter of February 19, the plaintiff or his lawyer was interested in getting the parcel back and had written tetters with that idea something might be urged in favour of the plaintiff's case. On August 2, 1949 the plaintiff's pleader informed the railwav authorities that limitation would begin to run from August 12 and the claim should therefore be settled by August 6. It appears that thereafter there were two interviews which related solely to the settlement of the plaintiffs claim. The idea of recovery of the parcel never arose in the plaintiff's mind at any time during the course of the correspondence. On August 9, 1949 the plaintiff had no delusions on the subject that he would never get his parcel back and the railway after February 19, 1949 did not do anything to induce a belief in the mind of the plaintiff that there was a possibility of the parcel being traced or recovered.

12. In my view the letter of February 19, 1949| has little bearing on the facts of this case on the determination of the question as to when the goods ought to be delivered. Even on the assumption that this letter should be construed as a promise on the part of the railway to institute or conduct enquiries and let the plaintiff know the whereabouts of the parcel the time when the goods ought to be delivered certainly began to run within a reasonable time thereafter and I would compute such time to be not later than six or eight weeks from that date. What made the plaintiff wait till September 1951 for the institution of the suit I fail to comprehend.

13. In my view the time when the goods ought to be delivered had expired long before November 1949 and the suit which was filed in September 1951 must be held to be barred by the law of limitation. The suit will be dismissed on thispreliminary ground and the plaintiff must pay thecosts of the suit.


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