UNION OF INDIA AS OWNER OF NORTH EASTERN RAILWAY AND EASTERN RAILWAY ADMINISTRATION Vs. SK ABDUL MAJEED

JUDGEMENT

(1.) THIS application has been filed under lection 25 of the Provincial Small Cause Courts Act by the defendant. It arises out of a judgment and order of the learned Small Cause Court Judge, decreeing the plaintiff's suit for realisation of the plaintiff's claim arising out of non-delivery of a part of a consignment of soft coal booked from Barkakana to Kundwa Chainpur on the 2nd December, 1959. It appears that the goods booked from Barkakana were transhipped at Maruadih railway station and were loaded in two wagons, including one numbered 28020. THIS wagon reached the destination on the 25th December, 1959 and a part of the consignment booked, contained in wagon No. 28020, was delivered. The contents of the other wagon were not received by the plaintiff at any stage. Thereafter, the plaintiff gave notices under Section 77 of Railways Act and Section 80 of the Code of Civil Procedure, but ultimately, on the 31st May, 1962, the plaintiff's claim was repudiated by the defendant by Exhibit 8(a). THIS suit was filed on the 4th August 1962. One of the questions that arose before the learned trial Judge was whether the suit was barred by limitation or not. Upon a consideration of the evidence on record, the learned Small Cause Court Judge has held that the time for institution of the suit will run from the 31st May, 1962 and the suit instituted on the 4th August, 1962 was well within time. The relevant article of the old Limitation Act, which applies in this case, is Article 31, according to which the period of limitation is one year from the time when the goods ought to be delivered. Reference was made before the learned Judge to the decision of the Supreme Court in the case of Boota Mal v. Union of India, AIR 1962 SC 1716 (the same case as reported in 1962 BLJR 832) and the learned Judge has held that the decision of the Supreme Court assists the plaintiff's case for holding that the period of limitation should commence to run from the 3lst May, 1962.

(2.) HAVING heard learned counsel for the parties and having considered the documents upon which reliance has been placed, I am of the opinion that the decision of the Supreme Court goes against the contention raised on behalf of the plaintiff and it must be held that the present suit was barred by limitation. When one wagon load of coal out of the goods consigned was actually delivered on the 25th December, 1959, it ought to be held in this case that that was the day on which the goods booked on the 2nd December ought to have been delivered, although the bulk of the goods had not been delivered on the 25th December. If the goods consigned on the 2nd December had been put in two wagons at Maruadih and one wagon was delivered on the 25th December, there is no reason to hold that that date was not the date when all the goods ought to have been delivered. In any event, there is no evidence on record from which it can be concluded that if time starts when the reasonable period, which may be taken for the carriage of goods from the place of despatch to the place of destination, expires, the expiry of the reasonable period in this case fell within one year backwards from the 4th August, 1962, when the suit was instituted. In my opinion, the subsequent conduct of the Railway authorities disclosed by their correspondence on the record does not lead to any conclusion that such part of the goods which was not delivered, ought to have been delivered within, one year backwards from the 4th August, 1962. Learned counsel for the plaintiff-opposite party has relied upon the correspondence, which are Exhibits 8 series, and has submitted that Exhibit 8(d), dated the 25th August, 1960 and Exhibit 8(b), dated the 21st September, 1960, amount to acknowledgment of liability and Exhibit 8(c), dated the 5th October, 1961 also acknowledged liability of the Railway administration to the plaintiff, and when the hope of the plaintiff of obtaining the goods was encouraged by the Railway administration, the suit, instituted on the 4th August, 1962 was within one year of Exhibit 8(c) and it was, therefore, instituted within time. So far as Exhibits 8(d) and 8(b) are concerned, it is clear that the plaintiff cannot take any advantage of these correspondence, even if they amount to any acknowledgment of the liability, because the suit was instituted much later than one year from the 21st September, 1960. So far as Exhibit 8(c) is concerned, it is not possible to interpret this document as amounting to acknowledgment of liability on behalf of the Railway administration. All that Exhibit 8(c) stated was that the plaintiff might see some officer mentioned therein of Gorakhpur, if the plaintiff so desired. This letter appears to be in reply to some application dated the 4th October, 1961. But, that application is not on the record. It is, therefore, difficult to accept the argument of the learned counsel for the plaintiff-opposite party that limitation is saved because of Exhibit 8(c) dated the 5th October, 1961. So fur as the letter of repudiation, dated the 31st May, 1962 (exhibit 8 (a)) is concerned, this cannot be of any assistance to the plaintiff in connection with extending the period of limitation envisaged by Article 31. In my opinion, the learned trial Judge was in error in holding that limitation would fee taken to run from the 31st May, 1962. Thus, it must be held that the present suit was filed beyond time and it must be dismissed. The application is, therefore, allowed and the plaintiff's suit dismissed. In view of the circumstances, the parties must bear their costs throughout.