1. The decision of this suit involves the construction of Article 31 of the First Schedule of the Limitation 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 Charkhidhari on the terms of Risk Note Form B. The plaintiff duly delivered the scantlings to the first defendant, the B. N. Ry. Co., at Lapanga Station, and the goods were despatched therefrom as to 550 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 Koaliram 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 these 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 Railway Company, 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 Digambar Chatterjee J. in the course of his judgment in Radha Shyam Basak v. Secretary of State for India (1916) I. L. R. 44 Calc. 16, 26. His Lordship said:
2. 'Article 31 applies to suits against a carrier for compensation for non-delivery of or delay in delivering, goods and the time for suit is one year from the time when the goods ought to be delivered. I think this article also 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 that this is a case of a breach of 'a written contract and Article 115 of the Schedule governs the case. It was so held in a similar caser Mohan Sing Chawan v. Henry Conder (1883) I. L. R. 7 Bom. 478. which was followed by Garth C. J. and Wilson J. in the case of Danmull v. British India Steam Navigation Co.' (1886) I. L. R. 12 Calc. 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
3. 'Against a carrier for (sic) when the goods compensation for (sic) ought to be non-delivery of, or one year, (sic) delivered.' delay in delivering, goods.
4. 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 delicto, and are not applicable to claims ex contractu (see The British India Steam Navigation Co. v. Hajee Mahomed Essack & Co. (1881) I. L. R. 3 Mad. 107, 110. per Chief Justice and Innes J., Danmull v. British India Steam Navigation Co. (1886) I. L. R. 12 Calc. 477, 480. per Garth C. J., Great Indian Peninsula Railway Co. v. Raisett Chandmull (1894) I. L. R. 19 Bom. 165, 188. and Venkata Subba Rao v. The Asiatic Steam' Navigation Co. (1915) I. L. R. 39 Mad. 1, 5, 6. 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 is provided for separately from compensation for breaches of contract. I feel no hesitation therefore hi holding that Article 31 does not relate to claims arising from contracts.'
5. 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 ate mixed together and certainly a claim under Article 31 is much more naturally based upon contract than upon tort,' Great Indian Peninsula Railway Co. v. Raisett Chandmull (1894) I. L. R. 19 Bom. 165, 188. 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 disadvantage 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 delicto. In my opinion, the weight of authority has always been in favour of the interpretation which I am disposed to give to the provision of these articles. (See Great Indian Peninsula Railway Co. v. Raisett Chandmull (1894) I. L. R. 19 Bom. 165, 188., Haji Ajam Goolam Hoosein v. Bombay and Persia Steam Navigation Co. (1902) I. L. R. 26 Bom. 562, 570. but the intention of the Legislature became 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. Digambar Chatterjee J. in support of the construction which he put upon Article 31 refers to the cases of Mohan Sing Chawan v. Henry Conder (1883) I. L. R. 7 Bom. 478. and Danmull v. British India Steam Navigation Co. (1886) I. L. R. 12 Calc. 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 the 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 Digambar Chatterjee J. to so hold would be not only to run 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 Steam Navigation Co. (1902) I. L. R. 26 Bom. 562, 570. the India General Navigation and Railway Co. v. Nandalal Banik (1909) 13 C. W. N. 851., Great Indian Peninsula Railway Co. v. Ganpat Rai (1911) I. L. R. 33 All. 544, 552., Mutsaddi Lal v. B. B. and C. I. By. Co. (1920) I. L. R. 42 All. 390. The plaintiff; farther 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 reason 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 deliver,---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 v. Secretary of State for India (1916) I. L. R. 44 Calc. 16. to which Chatterjee and Beachcroft JJ. 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 applicable. Essoo Bhayai v. the Steamship 'Savitri' (1886) I. L. R. 11 Bom. 133. and Venkata Subba Rao v. The Asiatic Steam Navigation Co. (1915) I. L. R. 39 Mad. 1. In my 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.