UNION OF INDIA Vs. JOGENDRA CHANDRA NAHA

JUDGEMENT

(1.) This is a defendant's second appeal and arises out of a suit for compensation filed by the plaintiff respondent, for short delivery of 121 pairs of shoes and some damage to 15 pairs out of the consignment of shoes contained in four cases. The total number of pairs packed in the four cases was 163. The consignment was booked on the 12th July, 1956 from Armanian Ghat to Argora, both despatching and the destination stations being on the Railway line of the South Eastern Railway. The consignment arrived at Argora on the 18th July, 3956. When the respondent went to take delivery of the consignment, he found the cases in a pilfered condition. He, therefore, asked for open delivery of the consignment, which was granted by the appellant on the 3rd August, 1956. The suit was filed on the 30th October, 1957, claiming 1,945 as the price of 121 pairs of shoes delivered short, Rs. 23/9/-on account of the damage to the 15 pairs, the damage assessed at the time of open delivery being 10% of the total value of the said 15 pairs, Rs. 25 on account of packing charges and Rs. 199/6/- on account of loss of profit at 10% on the total value of Rs. 1,993/9/-. The total claim in the suit was for a sum of Rs. 2192/15/-. The suit has been decreed in full by the trial court. The appeal preferred by the Union of India has been dismissed by the appellate court. Therefore, it has come to this court in second appeal.

(2.) Only two points were urged by Mr. P. K. Bose, Learned Counsel for the appellant, in support of the appeal (i) that the suit was barred by limitation and the courts below have committed an error in holding it otherwise, and (ii) that in any view of the matter a decree for the loss of profit at 10% ought not to have been granted, that is to say, a sum of Rs. 199/6/- should not have been included in the amount of compensation decreed.

(3.) It is to be pointed out at the outset that it is not a case of non-delivery, either of the whole of the consignment or of a part of the consignment in the sense of nondelivery of one or more full packages or cases; it is a case of short delivery which at times in some of the decisions has been characterised as non-delivery of a part of the consignment. In the instant case four cases were delivered, no doubt, but the full contents despatched in the four cases were not delivered. There was a short delivery of 121 pairs and 15 pairs were delivered in a deteriorated condition. In the situation, a question arises as to whether it is a case which should be governed by Article 30 of the Limitation Act 1908, with which we are concerned in this case or it would be a case which would be governed by Article 31. In either view of the matter, what would be the starting point of limitation.