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TMI Blog1960 (5) TMI 46X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 10 bales were not delivered at all. It is alleged that the cloth in 14 bales out of the lot delivered on 15-3-1948 had become wet and damaged and the loss is assessed at Rs. 2,911/10/-. In seven bales out of the same lot it is alleged that there was a shortage of cloth worth Rs. 1299/14/9. In 4 bales which were delivered on 18-10-49 there was a shortage of cloth in two bales worth Rs. 871/12/6. Rs. 7830/7/3 are claimed as compensation representing the price of 10 bales of cloth which were not delivered to the plaintiff. Accord- ing to the plaintiff the cause of action for filing the suit arose on 30th May, 1952 when the defendants finally refused to give delivery of the goods. 3. Many pleas were taken in the written statement. It was contended that the liquidators had no right to file the suit. Notice under Section 80 of the Code of Civil Procedure was not valid. The suit was not filed within limitation and that the non- delivery of the goods was due to a running train theft and not on account of any negligence or carelessness on the part of the Railway Administration and the plaintiff is not entitled to the amount of compensation claimed by it, 4. The learned District ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on to allow any additional evidence to be produced at this stage of the case, particularly when no such application was made before the trial court. As stated earlier the wagon in which these, bales were loaded had only rivets on either side and no locks were put on the wagon as admitted by D. W. 1 and D. W. 3. The question that arises is as to whether the defendants as a bailee had acted prudently in not putting locks on the wagon specially when its contents were very heavy and as admitted by Devi-singh the rivets on the wagon could easily give way on account of the pressure of the bales from inside. The degree of care which a bailee is required to take is given in Section 151 of the Indian Contract Act which runs thus : In all cases of bailment the bailee is bound to take as much care of the goods bailed to him as a man of ordinary prudence would, under similar circumstances, take of his own goods of the same bulk, quality and value as the goods bailed. Now looking to the bulk and the value of the goods failure on the part of the railway administration to put any locks on, the wagon is certainly an act which a man of ordinary prudence would not do under similar circu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adhar Ram Chandra's case the facts were that 240 bags of rape-seed were booked and all the 240 bags were delivered but out of these 7 had been cut and there was a resultant shortage of 3 maunds and 35 seers. This case is quite distinguishable as it was not a case of non-delivery of goods. 10. In Oudh and Tirhut Railway case Desai J. on facts found the loss of goods proved and therefore held that Article 30 was applicable while Beg J. with whom Mukherjee J. agreed held that loss of goods was not proved and Article 31 applied to the circumstances of the case. This case also is of no assistance to the appellant. 11. The AIR 1951 Mys 68 is also a case in which all the packages were delivered to the plaintiff but the contents were short and damaged. 12. In our opinion Article 30 applies to those cases where there is a loss or injury to the goods while Art, 31 refers to cases of non-delivery or delay in delivery of the goods. As we have already observed that the appellants have failed to show that there was any loss of goods so far as the 10 undelivered bales are concerned. We hold that Article 31 would, properly apply to the plain-tiff's claim for non-delivery of these ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... war Singh Bahadur Governor General in Council v. Kasiram Marwari ; Madan Lall v. Union of India AIR 1959 pat 165; Mutsaddi Lal v. Governor-General in Council ; Palanichami Nadar v. Governor-General in Council Governor General in Council v. Khadi Mandali, AIR 1950 Mad 438; Lalchand Chowdhury v. Union of India ; Dominion of India v. S. G. Ahmad, AIR 1954 Nag 115, Govt. of Mysore v. Kapurchand and Bros.; AIR 1953 Mys 16; Mana-sarovar Agencies v. Governor General in Council, AIR 1955 Mys 123; Union of India v. Adam Hajee Peer Mohammad Essack, AIR 1954 Trav-Co 362; Muhammadi Steamship Co. v. Keserishrih Vallab Das, AIR 1957 Tra 133; (S) AIR 1957 Punj 49 (FB). 16. It is not necessary to discuss each case separately but an examination of the cases cited on behalf of the parties reveals that there is a considerable divergence of opinion regarding the starting point of limitation under Article 31. Even in the same High Court the oPinion is not uniform. One view is that the time begins from the date when the goods ought to have been delivered in the normal course of business and where there is a part delivery of the goods it should be presumed that the undelivered part ought to have been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es where the view taken is that where part of the consignment has been delivered the time for filing a suit for compensation for the undelivered part would begin to run from the date of the part delivery we may say with great respect that this rule also cannot be universally applied. In case where the goods are carried in several wagons or where the railway authorities promise to deliver the remaining part after holding enquiries, this rule will obviously have no application. In our opinion the correct view is that it is a question of fact in each case as to when the goods ought to be delivered depending upon the circumstances of each case. This would apply to those cases also where upon a demand being made by the plaintiff correspondence ensues and the Railway authorities hold out the promise to deliver the goods and in the end refuse to deliver or express their inability to deliver the goods because due to those circumstances plaintiff's right to bring an action is postponed by an act of the defendant and if he brings a suit he will be non-suited on the ground that there is still a chance of the goods being delivered to him. To us that appears to be the correct interpre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g portion and yet both the portions may be delivered within reasonable time. It appears to me that the carrier is under an obligation to deliver the whole of the consignment as well as Part of the consignment within reasonable time and this time must be computed according to the circumstances of each case. It may be and it can be said that generally it is that in many cases the fact that part of the consignment was delivered within certain time has ample bearing in deciding this matter, but it cannot follow as a matter of law that that time must be held to be reasonable time also for the undelivered part. I am therefore of the opinion that in cases of partial non-delivery or partial late delivery of the consignment also limitation under Article 31 starts on the expiry of reasonable time when the goods ought to have been delivered and I say so with due respect to the Judges who have come to different conclusions in this matter. 18. the same view has been expressed in other cases which have been relied upon by the learned counsel for the respondents and also in some of the cases relied on on behalf of the appellant. With great respect we prefer to accept the view which wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n this connection that the defendant has not produced those letters and in their absence we cannot hold that no demand for the delivery of goods was made by the plaintiff. No request to plaintiff for these documents was made by the defendants at the time when Exs. 18, 25 were admitted in evidence or at any later stage of the case. We are now this stage asked to permit the defendant to put in these letters. As we have already observed there are no sufficient ground to allow the defendants to put in additional evidence in appeal when no such request was made before the court. That apart we do not see any difference where instead of a demand for delivery of the goods a demand for compensation is made to the railway authorities. A demand for compensation only means that either the goods may be given or else compensation may be paid. 21. As regards the loss suffered by the plaintiff on account of shortage and damage to the goods by wet in other bales received by it on 15th March, 1948 and 18th October, 1949 it is urged by the learned counsel for the appellant that the proper article applicable would be Article 30 of the Indian Limitation Act and the court below was in error in app ..... X X X X Extracts X X X X X X X X Extracts X X X X
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