CHIRANJILAL RAMLAL Vs. BNRY CO LTD

JUDGEMENT

(1.) The decision of this suit involves the construction of Art. 31 of the First Schedule of the Limitation Act (IX of 1908). The material facts are simple and undisputed. On the 9 October 1919, the Bengal Nagpur Railway Company agreed to carry for the plaintiff certain scantlings from Lapanga to Charkhidhari on the terms of Risk Note Form B. The plaintiff duly delivered the scantlings to the first defendant, the B. N. Ry. Co., at Lapanga Station, and the goods were despatched therefrom as to 550 scantlings in wagon No. 2820 on the 12 October 1919 and as to 328 scantlings in wagon No. 9656 on October the 12th. Wagon No. 2820 arrived at Charkhidhari sometime in December 1919 and the goods therein were delivered to and accepted by the consignee Koaliram Dwarkadas. Notwithstanding repeated protests and demands by the plaintiff however the defendants were not ready or willing to deliver the scantlings loaded in wagon No. 9656 until the 3 March 1921, when notice that the goods had been sent to Charkhidhari was received by the plaintiff. The plaintiff thereupon informed the defendants that he refused to take delivery of these scantlings as they had not been delivered within a reasonable time, and had become useless to him. Thereafter the goods were sold by the defendants, and the proceeds, after deducting the expenses in connection with the carriage, are being held to the use of the plaintiff. At the trial it was agreed between the parties that delivery of all these scantlings ought to have been made not later than the mon December, 1919. On the 29 July 1922 the plaintiff commenced the present <JGN>Page</JGN> 2 of 4 proceedings in which he claimed damages for non-delivery of the scantlings in wagon No. 9656. At the trial he abandoned the claim against the Bombay Baroda and Central India Railway Company, but continued the suit against the B. N. Ry. Co., with whom the contract of carriage had been made. The B. N. Ry. Co. contended that Art. 31 was applicable to the plaintiff's claim and that the suit which had not been commenced within a year after December 1919 was barred by limitation. On the other hand the plaintiff urged that Article 115 was applicable and that the suit was launched in time. In support of his contention Mr. B. C. Ghose, on behalf of the plaintiff relied upon the following observations passed by Digambar Chatterjee J. in the course of his judgment in Radha Shyam Basak V/s. Secretary of State for India (1916) I. L. R. 44 Calc. 16, 26. His Lordship said:

(2.) " Art. 31 applies to suits against a carrier for compensation for non-delivery of or delay in delivering, goods and the time for suit is one year from the time when the goods ought to be delivered. I think this article also has no application. In the first place this article seems to contemplate a suit by the party who is entitled to the delivery, namely, the consignee.... Apart from this consideration, however, I think that this is a case of a breach of "a written contract and Art. 115 of the Schedule governs the case. It was so held in a similar caser Mohan Sing Chawan V/s. Henry Conder (1883) I. L. R. 7 Bom. 478. which was followed by Garth C. J. and Wilson J. in the case of Danmull V/s. British India Steam Navigation Co." (1886) I. L. R. 12 Calc. 477. If the propositions of law thus enunciated are correct, it is admitted that the defence of limitation fails. The question which I have to determine is. whether or not this statement of the law is well-founded. Art. 31 provides

(3.) "Against a carrier for (sic) when the goods compensation for (sic) ought to be non- delivery of, or one year, (sic) delivered." delay in delivering, goods.