1. These two Rules were obtained on behalf of the plaintiff to show cause why, the decision of the Small Cause Court Judge at Serampore holding, that the plaintiff's suit was barred; by limitation should not be set aside. The plaintiff can signed certain goods to the defendant Company on the 21st February 1920. These were delivered to the plaintiff who was himself the consignee on the 7th March 1920. Then certain other goods were made over to the defendant Company on the 15th March 1920, which were delivered to the plaintiff who was himself the consignee also in this case on the 8th April 1920. In each case the defendant Company did not deliver the entire quantity of goods which were made over to them for carrying and the plaintiff brought these two suits for damages for the non-delivery of the goods, both suits being instituted on the 22nd July 1921, Both the suits were thus brought after the lapse of one year from the time when the goods ought to have been delivered. The Small Cause Court Judge has held that the defendants were liable to pay compensation for this non-delivery but dismissed the suits on the ground that they were barred by limitation as they were governed by Article 31 of the Indian Limitation Act.
2. On behalf of the petitioner reliance is placed, on the following cases: Hassaji v. East India Railway Company 5 M. 388 : 6 Ind. Jur. 522 : 2 Ind. Dec. (N.C.) 269; Mohansingh Chawan v. Conder 7 B. 478 : Ind. Jur. 98 : 4 Ind. Dec. (N.S.) 322; Danmull v. British India Steam Navigation Co. 12 C. 477 : 6 Ind. Dec. (N.S.) 324 and Radha Sham Basak v. Secretary of State for India 34 Ind. Cas. 130 : 44 C. 16 : 23 C.L.J. 547 : 20 C.W.N. 790 in support of his contention that the proper Article to be applied to a suit such as this is Article 115 and not Article 31. All these cases except the last, reported in Radha Sham Basdk v. Secretary of State for India 34 Ind. Cas. 130 : 44 C. 16 : 23 C.L.J. 547 : 20 C.W.N. 790, were decided before Art, 31 of the Limitation Act was amended by the insertion of the words 'non-delivery of, or' in Article 31 of the Imputation Act in 1899. The defendants in all these cases contended that the suits were governed by Article 30 on the ground that they were really brought for the Carrier losing the goods. That contention was not accepted and it was ruled that the suits were for non-delivery of goods which was not provided for by Article 30, and as there was no special provision about non-delivery of goods, Article 115 was held to be applicable. Then in 1899 there was the amendment of Article 31 I have spoken to above, so as to include a suit for compensation against a Carrier for non-delivery of goods. The case reported in Radho Sham Basak v. Secretary of State for India 34 Ind. Cas. 130 : 44 C. 16 : 23 C.L.J. 547 : 20 C.W.N. 790 was decided after this amendment and that was also a case for compensation for non-delivery of goods by a carrier. With regard to the application of Article 31 in that case, it was found that there was no evidence as to when the goods ought to have been delivered, and it could not, therefore be said that the suit was brought after the period of limitation.
3. That would have been enough for the decision of the question. But petitioner here relies on certain observations made by Mr. Justice Chatterjee relying on the; cases reported in Mohansingh Chawan v. Conder 7 B. 478 : Ind. Jur. 98 : 4 Ind. Dec. (N.S.) 322 and Danmull v. British India Steam Navigation Co. 12 C. 477 : 6 Ind. Dec. (N.S.) 324 that it was a case of a breach of a written contract and was governed by Article 115 of the Limitation Act. Article 115, however, only applies to a suit for compensation for breach of any contract not specially provided for in the Act. I think, with great respect, that after the introduction of the provision for compensation for non-delivery of goods by the amendment of Article 31, those cases have been rendered inapplicable to such, a suit. In the case of Indian General Navigation and Railway Co. Ltd. v. Nanda Lal 3 Ind. Cas. 469 : 13 C.W.N. 85; it was held that Article 31 was applicable and that the older Bombay and Calcutta decisions do not now apply to such a case.
4. These Rules must, therefore, be discharged. But having regard to the fact that it was found by the Small Cause Court Judge that the defendants were liable for the non-delivery, I make no order for costs.