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TMI Blog1967 (7) TMI 135X X X X Extracts X X X X X X X X Extracts X X X X ..... d the destination on the 25th December, 1955, and they were duly delivered to the plaintiff. The fifth package which contained a Ruston Diesel Locomotive did not, however, reach the destination until the 21st January 1956, when it was delivered to the plaintiff. The case put forward by the plaintiff was that the delay occurred on account of the fact that the consignment was carried in a goods train, and not in a parcel train, although the freight charged from the plaintiff was for carriage by a parcel train. The freight chargeable for carriage in a goods train was ₹ 2,308.69 paise. The plaintiff alleged that the agreement was for carriage of the consignment in a parcel train, but since it was carried in a goods train, the action of the defendant was wrongful and had caused loss to the plaintiff. There was some correspondence between the plaintiff and the railway administration in this connection, and ultimately the plaintiff instituted the present suit after service of notice upon the defendant under Section 80 of the Code of Civil Procedure on the 14th May 1959. The plaintiff's claim was made up of three items as follows: (a) ₹ 5,559.31 representing excess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ach of any contract, express or implied, not in writing registered and not herein specially provided for . The terminus a quo being when the contract is broken . As against this, the defendant sought to invoke Article 31 which governed a suit against a carrier for compensation for non-delivery of, or delay in delivering goods , and provided for a period of one year, to be computed from the time when the goods ought to be delivered . In this Court, when the appeal was placed for hearing before a learned Single Judge, learned counsel for both the parties abandoned their original stand, and while the plaintiff relied upon Article 120, instead of Article 115, the defendant relied upon Article 62. The learned Single Judge was of the opinion that the question as to which Article of the Limitation Act will be applicable, should be decided by a Division Bench, as no direct authority of this Court on the point was brought to his notice. That is how this appeal has come before us. 6. Before us, however, no endeavour was made on behalf of the plaintiff to invoke the six years' rule of limitation contained in Art 120. Mr Bose for the appellant, however, relied upon Article 62 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... meaning of Section 19 of the Limitation Act, and as such the suit filed within three years from the 2nd January 1957, was not barred by limitation. 7. The contents and the scope of Section 19 of the Limitation Act are no longer in doubt. In Tilak Ram v. Nathu, AIR 1967 SC 935 it was pointed out by their Lordships of the Supreme Court that the section requires (i) an admission or acknowledgement (ii) that such acknowledgement must be in respect of a liability in respect of a property or right (in) that it must be made before the expiry of the period of limitation and (iv) that it should be in writing and signed by the party against whom such property or right is claimed. Explanation I appended to the section provides that an acknowledgment may be sufficient though it omits to specify the exact nature of the property or right, or avers that the time for payment has not yet come or is accompanied by a refusal to pay or is coupled with a claim of set off. Their Lordships referred to an earlier decision of the Supreme Court in Shapoor Fre-doom Mazda v. Durga Prosad Chamaria. AIR 1961 SC 1236 where it was held that the statement on which a plea of acknowledgement is based must ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tionship between the parties in the letter Ext. 3/h, upon which the learned Advocate General has relied. The terms of the letter quite clearly do not contain an admission of the plaintiff's claim or an acknowledgment of liability in respect of it, nor it would be legitimate, in my opinion, to infer from the language employed in Ext. 3/h that the Chief Commercial Superintendent intended to admit the existence of jural relationship between the parties. The words If on examination the claim is found valid and payable cannot fairly be construed to mean that the claim which the plaintiff put forward was found to be valid or payable, or that there was a subsisting liability in respect of the claim which the plaintiff had lodged with the railway administration. The letter Ext. 3/h was really designed to enquire from the plaintiff as to how it would like the payment to be made in the event its claim being found valid and pay-able. The letter cannot be construed as conveying to the plaintiff that its claim had been found to be valid and payable or that there was a subsisting jural relationship between the parties. It was clearly indicated therein that the claim which the plai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the matter, the Chief Commercial Superintendent could never have intended to acknowledge the existence of jural relationship between the parties at the time when he wrote the letter Ext 3/h to the plaintiff. In my opinion, no part of the plaintiff's claim had been admitted in the letter Ext. 3/h, either expressly or by implication, and this is made further clear in the concluding words of the letter Ext. 3/h, which read This is without prejudice In other words, nothing was admitted in Ext. 3/h, and all that was said was that the claim would be examined, and in case it was found that to be valid and payable, then payment would be made in the manner desired by the plaintiff. 9. The learned Advocate General sought to rely upon the principle of the decision of the Privy Council in Maniram v. Seth Rupchand, (1906) 33 I A 165 (PC). That, however, was a case of a mutual, open and current account which from the very nature, involved reciprocal demands between the parties and of striking a balance. A right to have the account taken was inherent in the nature of the dealings between the parties, and that necessarily carried implied promise to pay. Those considerations do not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce of jural relationship between the parties. I, therefore, hold that Ext 3/h cannot be used as an acknowledgment of liability under Section 19 of the Limitation Act so as to give a fresh starting point of limitation for the plaintiff's suit. Therefore even if Article 62 applied, as urged by the learned counsel for the appellant, or Article 115 applied, as held by the Courts below the suit must fail on the ground of limitation. 12. Another question which has been raised by Mr. Bose is that the suit must fail for want of a valid notice under Section 77 of the Railways Act (now Section 78 B). That section, so far as it is relevant, lays down that a person shall not be entitled to a refund of an overcharge in respect of animals or goods carried by the railway unless his claim for refund has been preferred in writing by him or on his behalf to the railway administration within six months from the date of the delivery of the animals or goods for carriage by railway The lower appellate Court has held that the notice contemplated by Section 77 was not necessary as the present case is not for refund of an overcharge, but for compensation for loss arising out of breach of cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he side of the defendant there was no denial of authority of the Deputy Chief Commercial Superintendent to deal with the plaintiff's claim, and no attempt was made on behalf of the defendant to show that the Deputy Chief Commercial Superintendent was not an officer who was authorised to entertain such claim. In these circumstances, the lower appellate Court was amply justified in presuming, as it did that the notice under Section 77 was validly served upon a competent officer of the railway administration The second point raised by Mr Bose, accordingly, fails. 13. Mr. Bose also contended that under no circumstances, the plaintiff could have been entitled to a refund of the entire difference between parcel rate and goods rate, because at least up to Itarsi, the consignment was carried in a parcel train, and up to that point, therefore, the plaintiff was liable to pay parcel freight. I do not propose to express a concluded opinion on this point because, as I have already held, the suit must fail in its entirety on the ground of limitation. 14. In the result, the decision of the lower appellate Court is set aside and the plaintiff's suit is dismissed with cos ..... X X X X Extracts X X X X X X X X Extracts X X X X
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