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Chiranji Lal Ram Lal Vs. B.N. Ry. Co. Ltd. - Court Judgment

LegalCrystal Citation
Subject Limitation
CourtKolkata
Decided On
Reported inAIR1925Cal559
AppellantChiranji Lal Ram Lal
RespondentB.N. Ry. Co. Ltd.
Cases ReferredEssoo Bhayaji v. The Steamship
Excerpt:
- .....no ground for placing a limited construction upon the language used in these articles, and in my opinion, article 31 applies whether the claims in such suits arise ex contractu or ex delictu. in my opinion, the weight of authority has always been in favour of the interpretation which i am disposed to give to the provisions of these articles {the great indian peninsula railway v. raisett chandmull (1895) 19 bom 165 and haji ajam goolam hoosein v. the bombay and persia steam navigation co. (1902) 26 bom. 562], but the intention of the legislature becomes manifest after the enactment of act x of 1899. by section 3 of that act the words 'non-delivery of or' were added to article 31 which before this amendment had been referable only to claims in respect of delay in delivering goods......
Judgment:

Page, J.

1. The decision of this suit involves the construction of Article 31 of the First Schedule of the Limitation Act (Act IX of 1908). The material facts are simple and undisputed. On the 9th October, 1919, the Bengal-Nagpur Railway Company agreed to carry for the plaintiff certain scantlings from Lapanga to Char-khidhari on the terms of Risk Note Form B. The plaintiff duly delivered the scantlings to the first defendant, the B.N. Ry. Co. at Lipanga Station and the goods were despatched therefrom as to 558 scantlings in wagon No. 2820 on the 12th October, 1919, and as to 328 scantlings in wagon No. 9656 on October the 12th. Wagon No. 2820 arrived at Charkhidhari sometime in December, 1919, and the goods therein were delivered to and accepted by the consignee Kooliram Dwarkadas. Notwithstanding repeated protests and demands by the plaintiff however, the defendants were not ready or willing to deliver the scantlings loaded in wagon No. 9656 until the 3rd March, 1921, when notice that the goods had been sent to Charkhidhari was received by the plaintiff. The plaintiff thereupon informed the defendants that he refused to take delivery of the scantlings as they had not been delivered within a reasonable time, and had become useless to him. Thereafter the goods were sold by the defendants, and the proceeds, after deducting the expenses in connection with the carriage, are being held to the use of the plaintiff. At the trial it was agreed between the parties that delivery of all these scantlings ought to have been made not later than the month of December, 1919. On the 29th July, 1922, the plaintiff commenced the present proceedings in which he claimed damages for non-delivery of the scantlings in wagon No. 9656. At the trial he abandoned the claim against the Bombay, Baroda and Central India Ry. Co., but continued the suit against the B.N. Ry. Co., with whom the contract of carriage had been made. The B.N. Ry. Co., contended that Article 31 was applicable to the plaintiff's claim, and that the suit which had not been commenced within a year after December, 1919, was barred by limitation. On the other hand, the plaintiff urged that Article 115 was applicable and that the suit was launched in time. In support of his contention Mr. B.C. Ghose on behalf of the plaintiff relied upon the following observations passed by Digamber Chatterjee, J., in the course of his judgment in Radha Shyam Basak v. The Secretary of State (1916) 44 Cal. 16. His Lordship said:-'Article 31 applied to suits against the carrier for compensation for non delivery of or delay in delivering the goods and the time for suit is one year from the time when the goods ought to have been delivered. I think this article has no application. In the first place this article seems to contemplate a suit by the party who is entitled to the delivery, namely, the consignee. Apart from this consideration, however, I think this is a case of breach of a written contract and Article 115 of the Schedule governs the case. It was so held in a similar case of Mohan Singh v. Henry Conder (1883) 7 Bom. 478, which was followed by Chief Justice Garth and Wilson, J. in the case of Danmull v. The British India Steam Navigation Co. (1886) 12 Cal 477.' If the propositions of law thus enunciated are correct it is admitted that the defence of limitation fails. The question which I have to determine is whether or not this statement of the law is well founded. Article 31 provides 'against the carrier for compensation for non-delivery of or delay in delivering goods-one year-when the goods ought to have been delivered.'

2. In considering what is the meaning which is to be attributed to the terms used in Article 31 it is necessary to bear in mind that there is considerable judicial authority in support of the view that Articles 30 and 31 relate only to claims which are not founded on contract and arise ex delictu and are not applicable to claims ex contractu [sea The British India Steam Navigation Co. v. Haji Mahommed Essac and Co. (1881) 3 Mad. 107 per Chief Justice and Innes, J., Danmull v. British India Steam Navigation Co. (1886) 12 Cal 477 per Garth C.J., Great Indian Peninsula Railway v. Raisett Chandmal (1895) 19 Bom 165 and Venkata Subba Rao v. The Asiatic Steam Navigation Co. (1915) 39 Mad. 1 per Seshagiri Ayyar, J.]- The foundation of the doctrine appears to be that 'although it is not easy to give a logical explanation for the arrangement of the articles in the Limitation Act it seems clear from their grouping and from the position of the residuary articles that compensation for torts hi provided separately from compensation for breaches of contract. I feel no hesitation, therefore, in holding that Article 31 does not relate to claims arising from contract'' [per Seshagiri Ayyar, J., Venkata Subba Rao v. The Asiatic Steam Navigation Co. (1915) 39 Mad. 1]. With great respect I can find no warrant for such a doctrine in the language in which the article is couched, and I agree with Farran, J., that 'the position of the article in the Schedule is to my mind a most fallacious guide. In part IV of the Schedule claims arising out of contract and claims arising out of tort are mixed together and certainly a claim under Article 31 is much more naturally based upon contract than upon tort: Great Indian Peninsula Railway v. Raiseti Chandmull (1895) 19 Bom 165. In my opinion, the legislature by enacting Articles 30 and 31 intended to limit the period within which suits of the nature indicated in the articles, must be commenced against carriers having regard to the special disadvantages under which carriers labour in resisting stale claims. I can see no ground for placing a limited construction upon the language used in these articles, and in my opinion, Article 31 applies whether the claims in such suits arise ex contractu or ex delictu. In my opinion, the weight of authority has always been in favour of the interpretation which I am disposed to give to the provisions of these articles {The Great Indian Peninsula Railway v. Raisett Chandmull (1895) 19 Bom 165 and Haji Ajam Goolam Hoosein v. The Bombay and Persia Steam Navigation Co. (1902) 26 Bom. 562], but the intention of the legislature becomes manifest after the enactment of Act X of 1899. By Section 3 of that act the words 'non-delivery of or' were added to Article 31 which before this amendment had been referable only to claims in respect of delay in delivering goods. Digamber Chatterjee, J., in support of the construction which he put upon Article 31 refers to the cases of Mohansing Chawan v. Henry Conder (1883) 7 Bom. 478 and Danmull v. The British India Steam Navigation Co. (1886) 12 Cal 477 but these cases were decided before Act X of 1899 became law, and, while no doubt they were correctly decided having regard to the provisions of Article 31 as it then stood, in my opinion, after enactment of Act X of 1899 these cases can no longer be regarded as authorities for the proposition that Article 115, and not Article 31, is applicable to claims against a carrier for compensation for the non-delivery of goods which he has undertaken to carry. With great respect to Digamber Chatterjee, J., to so hold would be not only to turn counter to the current of recent judicial decisions but to fail to give effect to the express language used in Article 31 [see Haji Ajam Goolam Hoosein v. Bombay and Persia S.N. Co. (1902) 26 Bom. 562, India General Navigation & Ry. Co. v. Nandalal Banik (1909) 13 C.W.N. 851, Great Indian Peninsula By. Co. v. Ganpat Rai (1911) 23 All. 544 and Mutsaddi Lal v. B.B. & C.I. Ry. Co. (1920) 32 All. 390]. The plaintiff further contended, upon the authority of the above case, that Article 31 'seems to contemplate a suit by the party who is entitled to the delivery, namely, the consignee,' It is to be observed that the learned Judge cites no authority and adduces no reasons in support of this proposition. Counsel for the plaintiff however, urged that Article 31 should be deemed to refer to the person who alone is entitled to take delivery, that is, the consignee but in my opinion, there is no substance in this contention. No such limitation is to be found in the language used, and, in my opinion, the legislature in enacting Article 31 was not minded to discriminate between a suit brought by a consignor and a similar suit brought by a consignee either of whom may suffer damage by reason of the failure of the carrier to delayer but thereby intended to lessen the special difficulties to which carriers are exposed in investigating long-deferred claims made against them in respect of the non-delivery of goods which they have undertaken to carry. The decision of the Court in Radha Shyam Basak's case (1916) 44 Cal. 16, to which Beachcroft, J., and Chatterjee, J., were parties may, I think, be supported on the ground that in that case no evidence was adduced to prove when the goods ought to have been delivered but, in my opinion, the propositions of law laid down by Chatterjee, J., upon which the plaintiff relies, are not well founded. For the above reasons with all due deference I am unable to hold that Article 115 is referable to the claim in the present case. It is unnecessary for me in this case to consider under what circumstances, if any, Article 49 of the Limitation Act may be relied upon in cases to which Article 30 or 31 is inapplicable. [Essoo Bhayaji v. The Steamship 'Shavitri' (1886) 11 Bom. 133 and Venkata Subba Rao's case (1915) 39 Mad. 1]. In nay opinion the period within which it was incumbent upon the plaintiff to commence proceedings to enforce his claim was determined by Article 31. The suit, therefore, is barred by limitation and must be dismissed with costs on Scale No. 2 including reserved costs.


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