GOVERNOR-GENERAL IN COUNCIL Vs. KASIRAM MARWARI

JUDGEMENT

(1.) In the suit which is the subject to this appeal the plaintiff alleged that on 11th August 1942 a consignment of piece-goods had been booked from Nathnagar to be delivered to him at Jamaipur. The railway authorities failed to make delivery of the consignment in spite of repeated demands. The plaintiff, therefore, claimed a sum of Rs. 1050 as the price of the piece-goods. The defendant traversed the plaintiff's claim alleging that on 20 August 1942 the consignment was looted at SultangunJ by a violent mob. The defendant asserted that there, was no negligence on his part, and the plaintiff was not entitled to be compensated. The defendant further pleaded that the suit was barred under Art. 31, Limitation Act. The Subordinate Judge found that the defendant did not prove that the consignment was looted or destroyed on account of mob violence. He further held that the suit was not barred under Art. 31, Limitation Act. Accordingly he granted a decree in favour of the plaintiff. The Additional District Judge has affirmed the decree. The defendant has instituted this appeal. On his behalf learned Counsel presented three arguments.

(2.) In the first place, learned Counsel maintained that the lower Courts were erroneous to hold that the suit was not barred by limitation. Art. 81 provides for period of one year, from the date "when the goods ought to have been delivered". For the appellant it was pointed out that in para 2, of the plaint it was specifically stated that in ordinary course the goods should have been delivered on 15th August 1942. Learned Counsel argued that this ought to be the date from which the period of limitation ought to be computed. In support of that contention reference was made to Secretary of States. The Dunlop Rubber Co. Ltd. A.I.R 1925 Lah. 478. But that case must be clearly distinguished for one of the five bundles in question was actually delivered on 25 February 1921. The Court, therefore, inferred that the four remaining bundles ought to have been delivered on the same date which would hence be the date from which the period of limitation was to be computed. On the contrary, in Jugal Kishore V/s. G.I.P. Rly. A.I.R. 1923 All. 22, on 28 August 1918, the plaintiff made over certain bales of cloth to the Great Indian Peninsula Railway Company at Bombay for transmission to Chunar. As the goods did not arrive at Chunar, the plaintiff began to make enquiry about them both from the Great Indian Peninsula Rly. Company and from the East Indian Railway Company, to whose line the goods would in the ordinary course of business have been transferred. For considerably over a year the plaintiff was put off by various statements on the part of the Railway Administration to the effect that the matter was being enquired into. Ultimately he instituted a suit for damages on 31 March 1920. The Allahabad High Court held that in the circumstances the suit was not barred by limitation whether Art. 30, or Article 31, Limitation Act, 1908, was considered applicable to the facts. Now the question "when the goods ought to be delivered" is essentially a question of fact. We cannot recognise any universal or inflexibe rule that time must begin to run from the expiry of the ordinary period of transit. If no particular date is specified for delivery, it must be determined as a matter of what is reasonable having regard to the circumstances of the contract and the conduct of the parties. In the present case there is evidence that the plaintiff had written to the Chief Commercial Manager who replied that the matter was being investigated (letters Ex. 3 to 3F and 6 to 6B). Ultimately, on 1 February 1947, the Chief Commercial Manager informed, the plaintiff that the consignment was destroyed by mob violence (vide Ex. 16). It is patent that the ptaintiff filed the suit within one year from the defendant's refusal to deliver the consignment. In the circumstances of the case we are unable to hold that the plaintiff has brought the suit more than a-year from the expiry of a reasonable time within which the goods should have been delivered.

(3.) In the second place, learned Counsel for the appellant contended that no valid notice has been served under Section 77, Railways Act. It is however admitted that the plaintiff served notice (EX. 2) on the Chief Commercial Manager, Claims. Learned Counsel referred to Section 140, Railways Act, which provides that: Any notice authorised by this Act to be served on a Railway Administration may be served in the case of a Railway administered by the Government or a Native State on the Manager. For the appellant it was contended that the notice should have been served not on the Chief Commercial Manager but on the General Manager of the Railway Administration, Reference was made to E.I. Rly. Co. V/s. Bhimraj Srilal A.I.R. 1926 Pat. 413 in which the High Court held that the service of notice of the claim on the Traffic Manager was not a sufficient compliance with the requirements of Section 140, Railways Act. It is, however, unnecessary to examine the question whether the service of notice on the Chief Commercial Manager was adequate, for, in our opinion, no notice under Section 77 was necessary to be served in the present case. In Jaisram Ramrekha V/s. G.I.P. Rly A.I.R. 1929 Pat. 109 a Division Bench held that non-delivery did not constitute loss within the meaning of Section 77, and no notice under that section was necessary in a suit for damages for non-delivery of a consignment. Kulwant Sahay, J. referred to the Full Bench decisions Puran Das V/s. East Indian Railway Co. A.I.R. 1927 Pat. 234 in which the learned Judges expressed the opinion that the word "loss" did not include non-delivery in Bisk Note Form B. In G.I.P. Rly. V/s. Gopi Ram Gouri Shanker A.I.R. 1928 Pat. 270 the question was raised with reference to Section 77, and Ross J. after examining the decision considered that the word "loss" in that section did not include non-delivery. We are bound to adopt these previous decisions. In the present case, it is manifest, from the plaint that the plaintiff did not accept the defendant's claim that there was loot or loss. On the contrary, the plaintiff sued for compensation merely for non- delivery of the two consignments. In our opinion no notice under Section 77 of the Act was necessary to be served on the defendant.