S. Barman, J.
1. In this second appeal the plaintiff,--a claimant against the Railways for short delivery of goods,--is the appellant from a reversing decision of the learned Additional Subordinate Judge, Cuttack, whereby he reversed a decision of the learned Munsif, First Court, Cuttack and dismissed the plaintiffs suit against the Railways.
2. The point involved in this appeal is one of limitation under Article 31 of the Limitation Act, in a suit against the Railways as carrier, for compensation for short-delivery in respect of a portion of a certain consignment of one bale of woollen goods, in the circumstances hereinafter stated. Theplaintiff carrying on business in cloth, and other articles indented certain woollen goods from certain woollen Mills despatched from Cawnpur Railway Station situated on the line of Northern Railway to be delivered ta him at Cuttack Railway Station on the line of South Eastern Railway.
On December 30, 1950 the plaintiff obtained open delivery of the said consignment but round some woollen goods out of the said one bate missing. Thereafter, necessary notices were sent as provided under the Railways Act. On August 22, 1951, a letter (Ext. 6) was sent on behalf of the Railway to the plaintiff which reads as follows :
'Dear Sirs,
Ex-Cawnpur to Cuttack
RRA 277442 of 21-11-50.
Please send me without prejudice the original Beejuk to enable me to dispose of the case early.
Plase note if I don't get the same within a fort-night, the papers will be tiled.
Yours faithfully,
Sd--Illegible.
For Claims Officer.'
In pursuance of the said request, the plaintiff sent the Beejuk to the Railways. Since thereafter, the plaintiff did not hear any further from the Railways; and after waiting for ten mouths, the plaintiff on June 23, 1952 that is to say, about eighteen months after short-delivery filed the suit for recovery of Rs. 834/8/- as per schedule to the plaint.
Four months after the suit was filed, there was an attempt to compromise the suit; but the proposal having been turned down, the compromise ultimately failed. The learned Munsif then decreed the suit in part for Rs. 600/2/- with proportionate costs. In appeal against the said decree, the learned Additional Subordinate Judge dismissed the suit holding that the suit is barred by limitation. Hence, this second appeal.
3. The only point pressed for consideration in this second appeal is the question of limitation. Article 31 of the Limitation Act provides, tor such suits, one year period of limitation from the time 'when the goods ought to be delivered'. Mr. L. E. Das Gupta, learned counsel for the plaintiff, contended that in such cases, it is difficult to say as to what will be the date on which the goods 'ought to be delivered'; this is essentially a question of fact in each case.
This point is, however, concluded by two recent Division Bench decisions of this Court where the question as to what is the date on which the goods 'ought to be delivered' within the meaning of Article 31 of the Limitation Act, was decided. It was considered as to whether the date on which the goods ought to be delivered is the date on which the short-delivery took place or whether it is the date on which the Railway finally repudiated the claim.
It was held that in cases of non-delivery either in full or in part if, in the subsequent correspondence with the claimant, the Railway held out hopes to him that the goods would be traced out and duly delivered, then time would run from the date on which the Railway finally declined to deliver the goods. It wag also noticed that in most cases, the Railway seldom gives an assurance that the goods would be delivered and that in general practice assoon as the claimant intimates about the non-delivery or short delivery of consignment to the Railway and registers his claim for compensation, the Railway, while acknowledging his claim sends him an ambiguous reply that the matter is receiving attention or the like; but eventually the Railway may repudiate the claim altogether; it is in such cases that difficulty arises as to what would be the date on which the goods ought to be delivered.
In these decisions, it was held that a case of nondelivery of the entire consignment may stand on a different footing from a case of short-delivery; in the latter case, the date when the major portion of the consignment was delivered, would, in the absence of peculiar circumstances, be the date when the rest of the consignment ought to have been delivered and consequently limitation under Article 31 would run from the date when the short-delivery took place. Balasore Textile Distributors Association v. Indian Union, ILR 1960 Cut 1 : (AIR I960 Orissa 119); Bamdeb v. Union of India, Second Appeal No. 6 of 11957 D/- 21-1-1960 (Orissa).
In the present case, Mr. L. K. Das Gupta relied on the position that the Railways, -- by asking for the Beejuk in their letter dated 22-8-1951 (Ext. 6), quoted above, with which request the plaintiff duly complied, -- induced the plaintiff to think that his claim was receiving consideration and thereby the plaintiff, was lulled to sleep over the matter, while limitation was imperceptibly running against the plaintiff. In fact, it was not until 23-6-1952 that the plantiff suddenly woke up, rushed to Court and filed the suit.
It is said that it was in the aforesaid circumstances that the plaintiff was misled into filing the suit out of time. It is argued that the letter asking for the Beejuk created in the plaintiff certain expectation that his claim was being attended. The learned counsel urged that the word 'ought' in Article 31, shows that the Railway has a moral duty to deliver and it was from this sense of moral duty that the Railway is to make an attempt to search for the missing goods which is likely to take time, and then finally, it may also be that the Railway may find the goods missing.
It is claimed on behalf of the plaintiff, that the time for this search, taken by the Railway, for finding out the missing goods, should be taken into account for computing the period of limitation. In other words, according to the plaintiff, the time for such search should be left out of consideration, that is to say, should be deducted for the purpose of computing the period of limitation. In Second Appeal No. 6 of 1957 D/- 21-1-1960 (Orissa) referred to above there was protracted correspondence with the Railway, who, after repeatedly informing the claimant that the matter was 'receiving special attention', ultimately repudiated the claim, on the ground that the loss of the goods was due to running train rob-bery. On those facts, shortly stated, it was still held that the suit was time-barred.
4. Mr. B. K. Pal, learned counsel for the Bail-way, contended that on the facts of the present case, the case of the Railways in defence to the suit was on a much stronger footing. Here, there was no correspondence between the Railway and the plaintiff complaining about short-delivery of the goods.The only letter is the letter on behalf of the Railways dated 22-8-1951 (Ext. 6) whereby the Railways asked for the Beejuk to enable them to dispose of the case early as aforesaid. The plaintiff was not given any hope in respect of his claim and therefore the plaintiff should not have entertained any expectation of the Railways considering his claim and thus he should not have made any delay in filing the suit.
The letter dated 22-8-1951 (Ext. 6) asking for the Beejuk could in no way be interpreted by the plaintiff, as raising in him any hope or expectation that the Railways were about to meet his claim. The words 'without prejudice' in the letter, go to show that the Railways were careful enough to protect themselves from any future suggestion that this letter amounted to holding out any hope or admission of the alleged claim on their part.
On this point Mr. Pal relied on a decision ot' the Nagpur High Court in G. I. P. Railway Co. v. Badhakissen Jaikissen, AIR 1926 Nag 57 where the words 'without prejudice' were interpreted. In that case it was held that the suggestion, made by the Railway that the matter in dispute might be settled 'without prejudice', cannot operate to extend limita-tion as it does not amount to acknowledgment of liability. In this context, Mr. L. K. Dasgupta on behalf of the plaintiff, interpreted the letter Ext. 6 as intended to mean that it kept the plaintiff under some expectation and he contended that it acted as-an estoppel. I do not think that having regard to the authorities cited above, this contention is tenable, in law.
5. Then Mr. B. X. Pal, also drew my attention to a peculiar feature in the present case, which distinguishes it, on facts, from many of the earlier decisions on the point, where the consignment involved contained many units, whether in the shape of several bales of goods or in the shape of consignment in different wagons. In such cases, where some of the units are found missing, different consideration may arise.
For instance, if under a consignment certain quantities of goods are sent by different wagons, one of which might foe missing then, in case of such short-delivery, the question arises as to when the goods ought to be delivered, within the meaning of Article 31, Keeping in view such cases, it becomes difficult, sometimes, to say as to what will be the date on which the goods ought to be delivered.
Thus it becomes essentially a question of fact in each ease as aforesaid. A case of non-delivery of the entire consignment may stand on a different footing from a case of short-delivery of a part of a certain consignment contained in only one single bale. In the present case the goods consigned were only one single bale of woollen goods and when the consignment reached the destination at Cuttack, that particular one bale was found torn, slack and tampered with, as alleged in the plaint. Thus, in the present case, the goods were in one unit, namely, one single bale and was not severable.
In other words, it, by itself, as a complete unit, was a composite whole contained in one bale. When in such cases, as in the present case, something is taken out from that bale, the case is different, because in such cases the date on which the goods ought to be delivered must, in the nature of things,be the date on which, on open delivery, some portion of the particular consignment, which was only one bale, was found damaged or missing. In case of such partial delivery in respect of a single bale, the date when the said bale was found partly damaged and partly missing, as in the present case, must be the date when the said bale 'ought to be delivered'. In a case like this, I do not see how the period of limitation can be extended by any stretch Of reasoning.
6. In this view of the matter, the decision of the learned Additional Subordinate Judge is upheld. The appeal is accordingly dismissed with costs.