LACHMINARAYAN TARACHAND Vs. UNION OF INDIA

JUDGEMENT

(1.) The only question which arises for consideration in this Rule is whether the Plaintiff's claim for compensation against the Union of India represented by the Eastern Railway is barred by limitation. The Plaintiffs are the assignees of a consignment of Biri tobacco consisting of 400 bags despatched from Nepani Out Agency on the Southern Railway to Shalimar which was, at the material time, under the Eastern Railway. The consignment was booked at Nepani on April 18, 1952, and all the bags except five were delivered to the Plaintiffs on May 21, 1952, with a certificate of short delivery which contained the following entry:

(2.) On August 20, 1952, the Plaintiffs served a notice upon the General Manager of the Eastern Railway under Section 77 of the Indian Railways Act and, thereafter, some letters passed between the Plaintiffs and the Railway, of which two, dated December 15, 1952, ext. 6(a) and April 15, 1953, ext. 6(b) both of which were written by the Railway, are really important for the purposes of the present Rule. On February 26, 1954, the Plaintiffs filed the suit claiming Rs. 1,886-13-0 as compensation for the price of five bags together with Central Excise duty alleged to have been paid by them. The defence of the Railway was that the goods had been lost while in transit, because the consignment was tampered with by unknown miscreants while the train was in motion near Andul and that the Plaintiffs' claim was barred by limitation.

(3.) On the question of limitation, it was agreed between the parties in the courts below that Article 31 of the Indian Limitation Act would apply to the case. The trial court decreed the suit in part holding that limitation would run under Article 31 from April 15, 19-53, when the Railway finally repudiated its liability. On an application under Section 38 of the Presidency Small Cause Court Act, however, a Full Bench of Small Cause Court has reversed that decision and dismissed the suit in its entirety on the ground that limitation under Article 31 would run from May 21, 1952, that is, the date when the major part of the consignment was delivered to the Plaintiffs with a certificate of short delivery. Against that decree, the Plaintiffs have obtained the present Rule and Mr. Bhattacharya appearing for the Plaintiffs Petitioners have raised three points before me: (A) That the letters, exts. 6(a) and 6(b) written by the Railway constitute an acknowledgment of liability so as to give a fresh start of limitation under Section 19 of "the Indian Limitation Act, (B) that limitation under Article 31 runs from April 15, 1953, when the Railway finally denied its liability and (C) that the suit is governed by Article 30 of the Indian Limitation Act and as the railway has not proved when the less or injury occurred, the suit is not barred. I shall consider these points in the order in which they have been argued.