R K KANODIA Vs. UNION OF INDIA

JUDGEMENT

(1.) The only question raised for consideration in this appeal is whether the suit brought by the appellant for recovery of a sum of money as compensation for non-delivery of a consignment of Iron or Steel Files consigned at first from Karachi to Ladnum station and thereafter rebooked from Ladnum to Howrah Station was barred by limitation. The courts below found that the appellant would have been entitled to a decree for the amount claimed except for the fact that notice under Section 77 of the Indian Railways Act had not been properly served and also because the suit was barred by limitation. In that view, the suit was dismissed by the trial court and that dismissal was upheld by the court of appeal below,

(2.) Before us Mr. Bose who appeared for the respondent Union of India seated that he would not press the objection under Section 77 of the Indian Railways Act but would contend that the courts below were right in their conclusion that the suit was barred by limitation.

(3.) It is not disputed that Article 31 of the Limitation Act is applicable. That Article provides for a period of one year from the time when the goods ought to be delivered for such a suit for compensation for non-delivery. The real question in this case is what was the time when the goods ought to have been delivered. It is settled law that by the words "the time when the goods ought to be delivered" will not be interpreted by the courts to mean the time when according to the normal speed of delivery of similar goods the goods should be expected to be delivered. Where the carrier has agreed to deliver the goods by a certain date, that date may well be taken to be the time when the goods ought to be delivered. Even where no such date has been agreed upon, but there is a schedule from which it is possible to ascertain when consignments from one station would ordinarily be delivered at another station, there would be scope for arguing that the expiry of this period by which the consignment should ordinarily be delivered according to the schedule is the point of time which is meant by the time when the goods ought to be delivered. Where, as in the present case, no time for delivery has been agreed upon nor there is any schedule according to which the time of delivery can be ascertained, it will always be a difficult task to ascertain the time when the goods ought to be delivered. It is useful to remember that the time which a carrier like a Railway would take to deliver any consignment of goods depends on a number of variable factors; the availability of a sufficient number of wagons, the state of the Railway track, the probabilities of the train being delayed at intermediate stations will all play their part in deciding the time that will be taken for delivery. This, in my opinion, is the real reason behind the several decisions in the courts that the time when the goods ought to be delivered does not mean the time when they ought to be delivered in the "normal course". It was pointed out in Jainarain v. The Governor General of India, it has been held in a series of cases both in this High Court and other High Courts that