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Revision Application No. 43 of 1979, decided on 3rd September, 1986.
‑‑‑Arts. 30 & 31‑‑Civil Procedure Code (V of 1908), S.115‑‑ Application‑‑Carriage of goods by sea‑‑Short delivery‑‑Suit for compensation‑‑Limitation‑‑Compensation for short delivery of one package out of consignment of 14 packages‑‑‑ Delivery of 13 packages taken by consignee on 8‑2‑1975‑‑Period of limitation being one year suit for compensation filed on 7‑5‑1976, held, was barred by time.
Gulzar Ahmed v. Sind Punjab Goods Transport Co. P L D 1966 (W.P.) Kar. 253; Abdul Jalil Chowdhury v. Muhammadi Steamship Company Ltd. and another P L D 1961 S C 340 and National Insurance Corporation v. National Shipping Corporation 1983 C L C 888 held not applicable.
Tasawur Ali Hashmi for Applicant.
Abid Inam for Respondents.
Date of hearing: 3rd September, 1986.
The goods were shipped from Shanghai (China) to Karachi. The consignment was delivered to respondent No. 1 for shipment to Karachi on board their vessel under a clean Bill of Lading, dated 26‑12‑1974. The said ship arrived at the port of Karachi on or about 8‑2‑1975 and discharged its cargo but the said consignment was short delivered by one package. The consignment was insured by the applicant and the applicant being the Insurance Company settled the claim of the consignee. According to the applicant the consignee executed a letter of subrogation in favour of the applicant and by virtue of the said letter of subrogation the applicant is entitled to recover the claim from the respondents. The respondent No. 2 are the agents of respondent No. 1 in Pakistan. The respondents in their written statement have denied the allegation of the applicant. They have stated that the vessel in question discharged its cargo including the entire consignment of the consignee and one package out of 14 packages was discharged under nil marks and consignee was asked to take delivery of the same but the consignee refused to take delivery of the same. The respondents have denied that KPT confirmed the shortlanding and even if the same was confirmed the alleged confirmation by KPT was wrong and the respondents were not liable thereto. The respondents have not admitted the shortage and acknowledged their liability. The pleading of the parties gave rise the following issues‑‑
(1) Whether the suit is time‑barred
(2) Whether one case was shortlanded or discharged with Nil marks
(3) What should the decree be
The learned trial Judge dismissed the suit of the applicant holding that the suit was barred by time. Reliance was placed on Article 30 of the A Limitation Act and Rule 6 of Article 30 of the Carriage of Goods by Sea Act.
The learned counsel for the applicant has contended that Article 31 of the Limitation Act would apply in this case and the finding of the trial Court that Article 30 of Limitation Act is applicable is incorrect.
The learned counsel for the respondents has not challenged the contention of the learned counsel for the applicant in this respect.
I see force in this connection. Articles 30 and 31 of the Limitation Act are reproduced below:‑‑
Article 30
Against a carrier One year When the loss year or
for compensation for injury occurs.
losing or injuring
goods.
Article 31
Against a carrier One year When the goods ought
for compensation for to be delivered.
non‑delivery of, or
delay in delivering
goods.
Article 30 would apply where the compensation for losing or injury goods was claimed whereas Article 31 would apply where the goods have not been delivered and the time would run when the "goods ought to be delivered". It is an admitted fact that the goods were to be delivered when the ship had arrived on 8‑2‑1975. The consignee had taken the delivery of 13 packages of goods on this date. It is alleged by the applicant that there is shortage of one package. The learned counsel for the applicant has referred to Exh. 15 which is a letter dated, 27th January, 1976 written by the respondent No.2 to the applicant wherein it has been written that their principal have granted three months rime extension for the claim of settlement. It is further written that this is without admission of liability of whatsoever nature. Thus the respondent No.2 has not admitted the liability. The liability must be expressly admitted in unequivocal terms but this letter Exh.15 does not show that the respondents have admitted their liability. The learned counsel has stated that this letter has extended period of limitation. He has referred to section 63 of the Contract Act which is not attracted in the present case. According to this provision the
every promisee may dispense with or remit, wholly or in part, the performance of the promisce made to him, or may extend the time for such performance, or may accept instead of it any satisfaction which he thinks fit. The satisfaction time for the performance of the contract may extend but in the letter Exh.15 the respondent has not admitted their liability or requested for extension of time for delivery of the goods. Under section 19 of the Limitation Act before the expiry of period prescribed for a suit and an acknowledgement of liability has been made in writing and signed by the parties, only then the period of limitation could be extended but as the liability has not been accepted, therefore, this letter Exh.15 would not extend the period of limitation. The goods ought to have been delivered on the arrival of the ship. Out of 14 packages of the goods 13 packages were delivered and, therefore, there was shortage of one package. It means the goods are delivered on 8‑2‑1975. The suit has been filed on 7‑5‑1976 i.e. admittedly barred by time.
The learned counsel for the applicant has referred to the case of Gulzar Ahmed v. Sind Punjab Goods Transport Co. P L D 1966 (W.P.) Kar. 253 where the expression "goods ought to have been delivered" interpreted as under:‑
"The expression 'when the goods ought to be delivered' in Article 31 of the Limitation Act really means that a consignee must be fixed with the knowledge that the goods are ready for delivery or that there is no likelihood to get its delivery so that he may be placed in a position to file a suit for compensation without being met by a plea that the suit was premature. That even can only happen when the Transport Company expresses its inability to deliver the goods or finally refuses to deliver the goods."
The authority is in applicable because in the case in hand the consignee has the knowledge about the delivery of the goods and in fact 13 packages had been delivered to him on that date. He has also referred to the case of Abdul Jalil Chaoudhury v. Muhammadi Steamship Company Ltd. and another P L D 1961 S C 340 wherein it has been observed as under:‑
"In the case of a contract of carriage of goods by sea, if there be in the contract a date fixed for delivery, that would be the terminus a quo for limitation. If, on the other hand, there be no date fixed reasonable time would have to be ascertained, and that would depend upon the particular circumstances of a case. However, the matter does not end there. The time for the performance of a contract is liable to be extended by the promisee as provided in section 63 of the Contract Act."
This authority is also of no help to the applicant because in the said case the time of delivery has been mentioned. He has also referred to the case of National Insurance Corporation v. National Shipping Corporation 1983 C L r, 888 but this authority is also not applicable.
The facts that the documents on record would clearly show that the suit was filed after the period of limitation. Thus there is no exception to the finding of the trial Court on this issue. This Revision Application has no force. The same is dismissed.
S . S . G . Petition dismissed.
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