1. The plaintiff in this reference is the consignor of goods for carriage by the Madras Railway Company to a consignee at Bangalore. The goods were not delivered and there seems to have been a certain amount of correspondence and inquiry after them by plaintiff. But it came to nothing apparently, because it is common ground that the goods had not on them his correct address and that he stated the station, at which he booked them incorrectly. It has further been found that, in the end, the goods which were in the Railway Company's possession were sold in the exercise of their right under Section 56 of the Indian Railways Act. The plaintiff is now suing to recover the surplus proceeds of that sale, which, in the words of the section, the Railway Company is bound to render to the person entitled.
2. We are asked to decide what is the article of Schedule 1 of the Limitation Act applicable to this suit. The plaintiff contends, and two learned Judges of the Small Cause Court have held, that the article is No. 62:
For money payable by the defendant to the plaintiff for money received by the defendant for the plaintiff's use.
3. On the other hand, as one learned Judge has held, the Railway Company contends for the application either of Article 30 or Article 31, the two articles dealing with suits against a carrier. Article 30 may at once be dismissed from consideration, because there is no question in the present case of loss or injury to goods. We, therefore, have to decide between Articles 31 and 62.
4. It is not disputed that Article 62 would apply in terms to the sale-proceeds. The argument of Mr. R.N. Ayyangar on behalf of the Company is, however, that plaintiff, having a right of suit for compensation for non-delivery of the goods, must be supposed to be now suing to enforce that right and that Article 31 is applicable. Mr. Ayyangar has relied strongly on the fact that Section 56 of the Indian Railways Act is contained in Chapter VI thereof, dealing with the 'Working of Railway,' whereas the responsibility of Railway Companies is dealt with in Chapter VII, and he has referred to the statement of His Lordship the Chief Justice in M. & S.M. Ry. Co., Ltd. v. Haridoss Banmalidoss I.L.R.,(1918) Mad., 871, that Chapter VII must be taken and was intended to cover the whole liability of the Railway Company, including among other things the responsibility of the Railway Company for misdelivery by whatever reason caused. It is sufficient to observe that Section 56(2) and the procedure authorized therein were not in question in that case and there is no reason for assuming that it was present to the mind of his Lordship or that, if it had been brought to his notice, he would have used the same expressions.
5. As we read Section 56, it authorizes the Railway Company to adopt a certain procedure and to hold a sale and gives a direction as to the disposal of the proceeds thereof. We cannot hold that that direction is merely moral or administrative. There is no reason why it should not confer a right to the surplus proceeds on the person referred to in the section as entitled to them. That person would be in the present case the plaintiff. There is further no reason why that right should not be enforced by a suit. Such a suit could not be brought until after the sale, that is, in the words of the third column of the schedule until after the date when the money was received for the plaintiff's use. The argument for the application of Article 31 can be supported only on the assumption that what the plaintiff is suing for is not merely the surplus sale-proceeds, but compensation for the non-delivery of goods; and that is not how the plaintiff has described his claim. The distinction is material. For compensation for the non-delivery of the goods might very well be, and in fact very frequently would be, much more than the surplus sale-proceeds. The two classes of suits are entirely distinct and, because the suit to which Article 31 would apply might have been available for the plaintiff, that is no reason why we should refuse to regard his suit as one for the money referred to in Section 56(2), to which Article 62 would apply.
6. We hold that the suit is in time and answer the reference accordingly. The costs of this Reference will be provided for in the decree.