VALLY MOHAMAD HAJI GUNNY Vs. NEDERLAND SNAVIGATION CO

JUDGEMENT

(1.) This a suit which is brought by the Plaintiff against the Defendants for damages for failure to deliver 879 baskets of hard molasses which the Defendants as common carriers had accepted for carriage, and had agreed to carry for the Plaintiff from Saurava in Java to be delivered to the Plaintiff at Calcutta. The goods were shipped under a bill of lading on the S.S. "Manada," and the steamship arrived in Calcutta on the 25 January 1920. Notice was given by letter by the Defendants to the Plaintiff on the 26 January 1920 that the goods were ready to be discharged. On the 26 the ship discharged certain goods on one of the quays at Calcutta. On the 27 she put out into the river, and her cargo was discharged there into lighters. The exact time which it took her to discharge the whole of her cargo is uncertain, but it was admittedly completed some considerable time before the 20 February 1920 when she left Calcutta.

(2.) The Plaintiff issued his plaint on the 7 June 1921, which is more than a year after the time by which the goods ought to have been delivered which was about the 27 to 30th January 1920. The Plaintiff framed his claim exclusively on contract being for damages for failure to deliver the goods. I refer to one or two paragraphs in the plaint: Para. 2. - In or about the mon January, 1920 the Plaintiff shipped 6936 crates and 2747 baskets of hard molasses on board the Defendant Company's steamship <JGN>Page</JGN> 2 of 5 "Manada" at Saurabya in Java. Para. 3. - The master of the said steamship received the said goods to be carried to Calcutta and there to be delivered to the Plaintiff, Freight for the said goods was paid by the Plaintiff. Para. 4. - On arrival of the said steamship at Calcutta aforesaid the Defendant Company delivered to the Plaintiff 6936 crates and 1868 baskets of molasses, but did not deliver to him 879 baskets of molasses. Para. 5. - The Plaintiff has demanded delivery of the said 879 baskets but the Defendant Company have failed and neglected to deliver the same. Para. 6. - By reason of the Defendant Company's wrongful failure to deliver the said 879 baskets as aforesaid the Plaintiff claims as damages from the Defendant Company a sum of Rs. 8,264-12-0 being the price of the said 879 baskets as also another sum of Rs. 1,239-9-7 as interest thereon calculated at the rate of 12 per cent, per annum from the 20 February 1920 to 20 May 1921. Para. 8. - The plaintiff's cause of action a rose not earlier than the 31 day of January 1920 in Calcutta. The Plaintiff, therefore, prays for, (a) such leave as aforesaid, (b) a decree for the said sum of Rs, 9,503-9-6 with interest, and (c) for costs.

(3.) Counsel for the Plaintiff, in the course of the hearing, admitted that under the circumstances of this case the only issue which could be determined was whether or not the cause of action was barred by limitation on the ground that if that issue was decided against him (and which should be first considered), all other issues which might be raised would become immaterial, and the time spent upon considering them would be wasted. Accordingly, a representative of the Defendants was called, and he stated in evidence the facts as to the arrival of the vessel at Calcutta, and the time during which she was discharging, and the date of her subsequent departure from Calcutta, which I have already referred to. Thereupon, the only question which it became incumbent upon me to determine was whether or not the cause of action for damages for non-delivery of the 879 baskets was barred by reason of the provisions of the Limitation Act.