Judgment:
ORDER
Daud, J.
1. This is plaintiff's appeal taking exception to the dismissal of a suit wherein it had claimed storage and unloading charges plus interest thereon totalling Rs. 54,957/-.
2. Defendant No.2 is a Corporation which took over defendant No. 1 and hereinafter two defendants shall be referred to as a single entity by the expression 'Corporation'. Plaintiff is a firm registered under the Partnership Act and carries on business as a public carrier of goods by road. It has a branch at Bombay and in July 1977 agreed to transport goods belonging to the Corporation at the rate of Rs. 2,400/- per truck load of 10 tonnes from Hapur in Uttar Pradesh to the Corporation's factory at Thanke. The goods on arrival were to be provided free storage space for a period of 3 but extended to 15 days at the plaintiff's Thane godown. On 16th July 1977, the Corporation entrusted to the plaintiff at Hapur in U. P. 8 truck-load consignments of mango juice for carriage to and delivery at Thane. The consignments aforementioned arrived at Thane on 19th or 20th July 1977 and actual delivery thereof was taken by the Corporation 17-9-1977. For the 45 days of unfree storage, plaintiff claimed a sum of Rs. 37,800/- worked out at the rate of 1 paisa per kg. per day. For the unloading charges a bill of Rs. 741/- was submitted to the Corporation but to no avail. The nonpayment of the storage and unloading charges led to an exchange of letters and notices between the parties. On 15-5-1978, under Ex.37 the Corporation was called upon to pay storage charges, demurrage charges for 45 days at 1 paisa per kg. per day totalling Rs. 37,800/- and Rs. 714/- representing unloading charges. A reply was given to the notice on 1st June 1978 which reply is at Ex. 35. The reply reads as follows:--
'Please refer to your notice dated 15th May, 1978 given by you on behalf of your client (plaintiff)..... In this regard it is to inform you that matter will be settled between our General Manager, Shri S. N. Khanna, who is on tour to Bombay.....'
The non-payment of storage and unloading charges led to the institution of the suit on 28-4-1981. The Corporation, amongst other defences, took the stand that the claim was barred by limitation. This contention having been sustained by the trial Judge leading to the suit's dismissal has occasioned the present appeal.
3. The short question for determination is whether the plaintiff's claim for demurrage and unloading charges was within limitation? We answer this point in the affirmative and our reasons for so doing are given below.
4. Section 18 of the Limitation Act, 1963 prescribes the effect of an acknowledgment in writing vis-a-vis liabilities for which the limitation has expired. Excluding the unnecessary words, this section reads as follows :--
'(1) Where, before the expiration of the prescribed period for a suti or application in respect of any property or right, an acknowledgment of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, or by any person through whom he derives his title or liabilities, a fresh period of limitation shall be computed from the time when the acknowledgment was so signed.
Explanation -- For the purposes of this section -- (a) 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, delivery, performance or enjoyment has not yet come or is accompanied by a refusal to pay, deliver, perform or permit to enjoy, or is coupled with a claim to set-off or is addressed to a person other than a person entitled to the property or right.
(b) the word 'signed' means signed either personally or by an agent duly authorised inthis behalf.'
It cannot be disputed that plaintiff provided storage space to the consignments beyond the free period mentioned in the consignment notes at Exs. 44 to 51. The goods arrived at Thane on 1-8-1977 and under the consignment notes had to be lifted by the Corporation within 15 days. Up to those 15 days no storage charges were to be claimed by the transporter viz. the plaintiff. But actual delivery was taken on 17-9-1977. Therefore for the extra period storage charges had to be paid at the rate set out in the consignment notes. It was argued that the rate and exact amount payable towards storage charges are matters not proved at the trial. We cannot agree with this submission inasmuch as a term in relation to the payment of storage charges and the rate, therefore, is set out in each consignment note. A contract of carriage is governed by the terms recited in the consignment note and there is nothing on record to indicate that the consignment notes figuring in this case did not govern the contract of carriage. Where plaintiff is in difficulty is, in regard to the amount admissible as unloading charges. It has not established the incurring of any expense for unloading of the consignments. Turning to the major question viz. whether Ex. 35 brings the claim within limitation, it was argued that the said communication makes no reference to the exact amount payable and to what the said liability relates. We do not see how such an ambiguity can be read into Ex. 35. To understand Ex. 35, one has to go to Ex. 37 to which Ex. 35 purports to be a reply. In Ex. 37, plaintiff was calling upon the Corporation to reimburse it for the storage and unloading charges quantified at Rs. 37,800/- and Rs. 7I4/- respectively. While replying to Ex. 37, the Corporation specifically said that the matter would be settled. The expression 'matter' used in Ex. 35 could not but refer to claims appearing in Ex. 37. In spite of the clear words used in Ex. 35 the author of that document entered the witness box, admitted that Ex. 35 bore his signature, but yet saw no difficulty in denying that it constituted an acknowledgment of liability. This is a surprising stand to have been taken by an Officer of a State Government's Corporation. The mere fact that the amount which was to be settled was not quantified or clarified, will not render Ex. 35 any the less an acknowledgment. To quote the words of the Explanation to S. 18 of the Limitation Act 'an acknowledgment may be sufficient though it omits to specify the exact nature of the property or right'. It will not be correct to say that there is an omission in Ex. 35 for the 'matter' referred to in Ex. 35, can be easily understood if Ex. 35 is as it must be correlated to Ex. 37. Such a correlation has to be made because Ex. 35 itself purports to be with reference to the communication contained in Ex. 37. D. W. 1's saying that Ex. 35 did not amount to an acknowledgment coupled with what were conceived to be ambiguities in Ex. 35, seem to have swayed the learned trial Judge to take a totally erroneous view of the matter. Even if Ex. 35 does not come to the aid of the plaintiff, there is S. 25(3) of the Indian Contract Act to which recourse can be had. This provision is in the following words :--
'An agreement made without consideration is void, unless--
(3) it is a promise, made in writing andsigned by the person to be charged therewith,or by his agent generally or specially authorised in that behalf, to pay wholly or in part adebt of which the creditor might have enforced payment but for the law for thelimitation of suit..... such an agreement is a contract.'
If Ex. 35 does not amount to an acknowledgment within the meaning of that expression appearing in S. 18 of the Limitation Act, the same certainly attracts sub-sec. (3) of S. 25 of the Indian Contract Act. Therefore, however looked at, the claim was within limitation and we so hold.
5. Plaintiff has claimed past interest at the rate of 12 per cent per annum on the storage charges. A notice had been given to the Corporation and the latter had promised to make amends. The filing of the suit was not something which the plaintiff undertook for the sake of satisfying a craving for litigation. The suit was forced upon the plaintiff and thetransaction being of a commercial nature there is no reason why plaintiff should have been deprived of interest at the rate claimed Even for the pendente lite and future, the rate of interest will be 12 per cent, though of course, on the principal sum adjudged.
6. The result of the foregoing discussion is our allowing the appeal, setting aside the dismissal of the suit and substituting the said dismissal by a decree worded thus:--
Defendant Corporation (defendant 2) do pay unto the plaintiff a sum of Rs. 51,732/- together with proportionate costs in both the Courts and bear its own. Rest of the plaintiff's claim is disallowed with the balance of the costs. Rs. 37,800/- from out of the decretal amount to carry interest at rate 12 per cent per annum from the date of the suit until realisation.
Order accordingly.