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Civil Revision No. 715 of 1959, decided on 20th June 1961.

Art. 31‑Carriage of goods Short delivery‑Limitation begins to run from date when goods short delivered‑Promise by carrier to pay damages for short delivery ----will not change starting point of limitation.

Dada Ltd. v. R. S. N. Company Ltd. P L D 1958 Dacca 452 ref. S. C. Bose and Syed A. N. M. Nasiruddin for Petitioners.

S. M. Abbas for the Opposite‑Parties.

This Rule was obtained by the defendants against the deci sion of the Subordinate Judge, 2nd Court, Chittagong, decreeing the suit brought by the opposite‑party for recovery of a sum of Rs. 394‑6 as compensation for short delivery. The petitioner companies were the carriers in respect of 210 bags of sea salt weighing 420 maunds from Chittagong to Chandpur. The bags were delivered to the plaintiff on 10‑1‑57, but they were weighed on 17‑1‑57, and it was found that there was shortage of 52 traunds 23 seers and 8 chattaks of salt. The plaintiff thereafter submitted a claim and after some correspondence between the parties the present suit was filed on 21‑5‑58.

2. The defence of the defendants inter alia was that the suit was barred by limitation and that in view of Exh. D, the Risk. Notes, the plaintiff was not entitled to claim any compensation from the defendants. The learned Subordinate Judge negatived both the contentions of the defendants and decreed the suit for the full amount claimed by the plaintiff.

3. Two points have been raised in support of the Rule. The first being that the suit was clearly barred by limitation. It is contended that the present suit comes under Article 31 of the Limitation Act and it is submitted that the starting point of limitation would be the date when the goods were delivered to the plaintiff. The learned Subordinate Judge, however, has held that since the plaintiff wrote letters to the defendants and the defendants by their two letters intimated that the matter was being enquired into, the starting point of limitation would be the date when the last letter by the defendants was written. The defendants on 8‑2‑57 wrote Exh. 6 saying:

"The matter is receiving our attention without prejudice and we will revert in course due."

In Exh. 9, dated 3‑6‑57 the defendants said:

"We have to advise that the matter has been placed under enquiry, without prejudice and we will revert in due course."

According to the learned Subordinate Judge these two letters extended the period of limitation and as the suit was filed within one year from the date when the last letter by the defendants was written, the suit was within time under Article 31 of the Limita tion Act. The learned Subordinate Judge in this connection has relied on the decision of my learned brother Asir, J., in the case of Dada Ltd. v. R. S. N. Company Ltd. (P L D 1958 Dacca 452), and has held that in a suit against the carrier the period of limitation does not start to run so long as the carrier writes to the claimants to say that it is making enquiries in the matter and does not admit that the goods are lost. This decision was the subject‑matter of an appeal before the Supreme Court and it has been held that unless the claimants can make out a case of extension of the period for the performance of the contract by the carriers by contract between the parties or by conduct then the period of limitation will run from the date when the goods ought to have been delivered. The view that has been taken is that when there is no date fixed for the performance of the contract, then the contract is to be performed within a reasonable time and under Article 31 of the Limitation Act in the absence of any date fixed by the contract, the date when the goods are delivered in part, would ordinarily be the date when the goods ought to be delivered. It has been pointed out that this, however, is not an inexorable rule for it is possible that the carrier may for convenience or for some other reasons carry goods by more than one transport and in that case the reasonable time for delivery of the different installments of goods will be different. Their Lordships have pointed out that in a case of short delivery of goods if some whole package out of a consignment remain undelivered the case may be different. But where, however, all the packages arrive and the short delivery is due to different in weight there cannot be any question of the time running from a date, later than the date when the goods delivered. In the present case, the short delivery took place on account of difference in weight of the bags as they were booked and as they were found when delivery was given to the plaintiff. The two letters on which the learned Subordinate Judge has relied do not prove that there was any contract or a promise on the part of the defendants to deliver the remaining goods at a future date. The letters were written without prejudice to the defendants and all that they stated were that the matter was receiving their attention. If there was a promise to pay damages for the short delivery that will not change e the starting point of limitation under Article 31 of the Limitation Act. In that view of the matter as the suit was filed beyond one year from the date when the goods were delivered on 10‑1‑57, or, even on the 17‑1‑57, when the bags were weighed, the suit was clearly barred by limitation under Article 31 of the Limitation Act.

4. Another point has been urged by Mr. Bose in this case, that in view of Exh. D, the plaintiffs are not entitled to any compensation I am not, however, of the same view. In view of the provisions of section 8 of the Carriers Act, the defendants cannot take shelter under Exh. D.

5. In the result, therefore, the rule is made absolute. The judgment of the learned Subordinate Judge is set aside and the plaintiff's suit dismissed. In view of the facts of this case I direct each party will bear its own costs throughout.

K. B. A.

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