# Dominion o.f India v. Firm Aminchand Bholanath (F. B.)

- **Citation:** [1963] 1 S.C.R. 70
- **Court:** Supreme Court of India
- **Decided:** 1963
- **Case number:** Civil Appeal No. 507 of 1960
- **Bench:** P. B. Gajendragadkar, K. N. Wanchoo
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/dominion-o-f-india-v-firm-aminchand-bholanath-f-b-2630
- **Pages:** 16

## Headnote

Limitation-Suit ~ainst ca"ier for compensation for
non-delivery-Starting point-If limitation start• from final
refusal-Correspondence between parties, relevance of-Indian
Limitation Act, 1908 (9 of 1908) Ari. 31.,
On August 5, 1947, the appellant booked two consigments
by the N. W. Railway from Gujranwala, now in Pakistan, to
Jagadhari.
The consignments were not delivered and, on
January 22, 1948, the appellant gave a notice to the railway
under s. 80 of the Code of Civil Procedure claiming the value
cf the goods by way of compensation. It was stated in the
notice that the cause of action had arisen on August 21 and
30, 1947, when delivery was refused.
On December I, 1948,
the railway informed the appellant that the consignments
were still lying at Gujranwala and could be despatched on the
appellant obtaining the necessary permits from the Pakistan
authorities. On December 13, 1949, the appellant brought
a suit for compensation for non-delivery of the goods. The
respondent contended that the suit was beyond time as it was
not filed within one year from the time "when the goods ought
to be delivered" as prescribed by art. 31 of the Llmitation Act.
Held, that the suit was barred by time. The words
"when the goods ought to be delivered" in art. 31 bad to be
given their strict grammatical meaning and equitable . considerations were out of place.
Under art. 3~ limitation started
on the expiry of the time fixed between the parties for delivery
of the goods and in the absence of any such agreement the
limitation started after reasonable time had elapoed on the
expiry of which the delivery ought to have been made. The
reasonable time wa• to be'determincd according to the circumstances of each case. The view taken by some High Courts
that time 1:-egan to run from the date when the railway finally
refused to deliver was not correct ; where the Jegialaturc
intended that time should run from the date of refusal it had
used appropriate words in that connection.
The starting
point of limitation could not generally be affected by the
conduct of the parties or by the corresponclance between them,
unless it co.ntained an acknowledgment of liability by the
carrier or showed something affecting the reasonable time
In the present case delivery ought to have been made within
five or six months, as is also indicated by the s, 80 notice iPvcn
1 S.C.R. SUPREME COURT REPORTS
71
by the appellant and the suit was filed more than a year after
tha expiry of that time.
Dominion o.f India v. Firm Aminchand Bholanath (F. B.)
decided by Punjab High Court on May 2, 1956, approved.
Jugal Kishore v. The Great Indian Peninsular Railway
( 1923) I. L. R. 45 All. 43 ; Bengal and North Western Railway
Company v. Maharajadhiraj Kameshwar Singh Bahadur, (1933)
I. L. R. 12 Pat. 67, 77 ; .Tai Narain v. The Governor-Gentral of
India, A. I. R. (1951) Cal. 462; and Governor-General in
Oounr.il v. S. G. Ahmed, A. I. R. (1952) Nag. 77, disapproved.
Nagendranath v. Sure.Yh, A. I. R. (1932) P. C. 165 and
Genr.ral Accident Fire and Life J ssurance Uorporation Limited
v • .Janmahomed Abdul Rahim, A. I. R. (1941) P. C. 6,
referred to.

## Text

70
SUPREME COURT REPORTS [1963)
BOOTAMAL
v,
UNION OF INDIA
(P. B. GAJENDRAGADKAR and K. N. WANCHOO, JJ.)
Limitation-Suit ~ainst ca"ier for compensation for
non-delivery-Starting point-If limitation start• from final
refusal-Correspondence between parties, relevance of-Indian
Limitation Act, 1908 (9 of 1908) Ari. 31.,
On August 5, 1947, the appellant booked two consigments
by the N. W. Railway from Gujranwala, now in Pakistan, to
Jagadhari.
The consignments were not delivered and, on
January 22, 1948, the appellant gave a notice to the railway
under s. 80 of the Code of Civil Procedure claiming the value
cf the goods by way of compensation. It was stated in the
notice that the cause of action had arisen on August 21 and
30, 1947, when delivery was refused.
On December I, 1948,
the railway informed the appellant that the consignments
were still lying at Gujranwala and could be despatched on the
appellant obtaining the necessary permits from the Pakistan
authorities. On December 13, 1949, the appellant brought
a suit for compensation for non-delivery of the goods. The
respondent contended that the suit was beyond time as it was
not filed within one year from the time "when the goods ought
to be delivered" as prescribed by art. 31 of the Llmitation Act.
Held, that the suit was barred by time. The words
"when the goods ought to be delivered" in art. 31 bad to be
given their strict grammatical meaning and equitable . considerations were out of place.
Under art. 3~ limitation started
on the expiry of the time fixed between the parties for delivery
of the goods and in the absence of any such agreement the
limitation started after reasonable time had elapoed on the
expiry of which the delivery ought to have been made. The
reasonable time wa• to be'determincd according to the circumstances of each case. The view taken by some High Courts
that time 1:-egan to run from the date when the railway finally
refused to deliver was not correct ; where the Jegialaturc
intended that time should run from the date of refusal it had
used appropriate words in that connection.
The starting
point of limitation could not generally be affected by the
conduct of the parties or by the corresponclance between them,
unless it co.ntained an acknowledgment of liability by the
carrier or showed something affecting the reasonable time
In the present case delivery ought to have been made within
five or six months, as is also indicated by the s, 80 notice iPvcn
1 S.C.R. SUPREME COURT REPORTS
71
by the appellant and the suit was filed more than a year after
tha expiry of that time.
Dominion o.f India v. Firm Aminchand Bholanath (F. B.)
decided by Punjab High Court on May 2, 1956, approved.
Jugal Kishore v. The Great Indian Peninsular Railway
( 1923) I. L. R. 45 All. 43 ; Bengal and North Western Railway
Company v. Maharajadhiraj Kameshwar Singh Bahadur, (1933)
I. L. R. 12 Pat. 67, 77 ; .Tai Narain v. The Governor-Gentral of
India, A. I. R. (1951) Cal. 462; and Governor-General in
Oounr.il v. S. G. Ahmed, A. I. R. (1952) Nag. 77, disapproved.
Nagendranath v. Sure.Yh, A. I. R. (1932) P. C. 165 and
Genr.ral Accident Fire and Life J ssurance Uorporation Limited
v • .Janmahomed Abdul Rahim, A. I. R. (1941) P. C. 6,
referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 507 of 1960.
Appeal from the judgment and decree dated
March 19, 1958, of the Punjab High Court (Circuit
Bench) at Delhi in R: F. A. No. 299 of 1951.
K. L. Gosain, R ... Ganapathy lyer and G. Gopal,akri8lman, for the appellant.
B. Sen and P. D. Menon, for the respondent.
· 1962. March 27.
The Judgment of the Court
waH delivered by
WANCHOO, J:-This appeal on a certificate
granted by the Punjab High Court raises a question
as to the interpretation of Art. 31 of the Limitation
Act. The appellant had brought a suit. in forma
pauperis for recovery of a sum of ovQr Rs. 24,000/ ·
from the Union of India in connection with nondelivery of certain goods booked W:it.Q the railway.
The appellant was trading in Gujrah wa.la,' which -is
now in Pakistan, under the name and\style of G. M.
Bootamal and Company and also un~er the name
and style of Gopal Metal Ro1ling Mills anti Company
he being the sole proprietor of both. On August 5~
194-71 just before-the partition the appel1ant han~ed
ove~ two consignments to t,h(1 North \Vestem
1962
Bootamat
v.
Uni·m nf India
anchoo J.
Bootamal
y,
UniQn af lni io
wanchoo J.
72
SUPREME COURT REPORTS (1963)
Railway at Gujranwala for carriage to Jaga.dhari
and . these consignments were booked on the same
day by two railway receipts. The consignments
however di<l not reach .Tagadha.ri.
The appellant
made inquiries and when no delivery was ma.de he
made a claim on the railway on November 30, 1947,
for the price of the goods not delivered. Later, on
January 22, 1948, the appellant gave notice to the
railway under s. 80 of the Code of Civil Procedure
in whici it was said that tho goods booked under
the two railway receipts had not been delivered in
spite of repeated reminders and demands from the
officials concerned. It was further said that the
value of the goods booked was Rs. 24,189/4/- and
that the railway was liable for this loss which was
due to the negligence of the railway. It wa.s further
stated' that the cause of action a.rose on Augnst 21
and 30, 19!7 and on subsequent dates when the
appellant met with refu3al. It ·was finally said that if
the amount was not paid a suit would be brought
against the railway. It seems however that in spite
of this notice correspondence went on between the
appellant and the railway and on December 1, 1948,
the railway informed the appellant that the two
consignments were still lying at Gujranwala. and
that their despatch had been withheld by the
North Western Railway due to restrictions imposed
by the Pakistan Government on export. The railway
therefore requested the appellant to secure a permit
from the Chief Controller, Exports and Imports,
Karachi and also from the Custodian of Evacuee
Property West Punjab and to send the ea.me to the
Station Master Gujranwala to enable the goods
being sent to Jaga.dhari. The appellant was also
told that in case he failed to produce the requisite
permits the consignments would be disposed of in
accordance with the law in force in Pakistan, and
the railway administration would not be responsible
for any loss, damage or destruction to the goods.
'.J'flis seems to have been the end of the correspoq-
I S.C.R.
SUPREME COURT REPORTS
73
dence between the railway and the appellant, and
the appellant brought the present suit on December 13, 1949.
The suit was resisted by the Union of India
and a number of defences were raised with which
we are however not concerned in the present appeal.
As many as seven issues were framed by the trial
court, the most important being of limitation. The
trial court found in favour of the appellant on all
the issues including limitation and ga.ve him a decree
for Rs. 24,189/4/-. It however ordered the parties
to bear their own costs.
·Thereupon there was an appeal by the respondent to the High Court, and the main point pressed
there was that the· suit as filed on December 13,
1949, was barred by limitation. Under Art. 31 of
the Limitation Act time begins to run against a
carrier for compensation for non-delivery of or
delay in delivering goods from th~ time "when the
goods ought to be delivered". The question canvassed in the High Court was the interpretation of .
these words in Art. 31. It appears (that there had
been difference of opinion in the High Court as to
the meaning to be attached to these words in Art.31
and a reference had been made to a Full Bench in
another case,
namely, ·Dominion
o.f. India v.
Firm Aminchand Bholanath (C.A. 97of1949, decided
on May 2, 19lf6). In that reference the Full Bench
held that "the limitation under Art. 31 starts on
the expiry of the time :fixed between the parties and
in the absence of such agreement, the limitation
starts on the expiry of reasonable time which is to
be decided according to the circumstances of each
case.'' The High Court therefore followed the view
taken in that case and held after taking into
account the circumstances prevailing in August 194 7
that the goods ·ought to have been delivered at the
~oat within five or six months of the bookinir and
1S6B
BoolamaZ
y,
Union of India
W1ncho1 J.
1962
Booiamt1l
v.
Union of India
Wanohoo J•
74
SUPREME COURT REPORTS [1963)
therefore the suit was barred by limitation as it
~as. b~ought. in December
1949, the period of
hm1tat10n bemg only one year. The High Court
therefore allowed the appeal, set aside the decree of
the trial court and dismissed the suit. It however
ordered the parties to bear their costs.
As the case
involved a substantial question of law the High
Cour~ granted a certificate to the appellant; and
that 1s how the matter has come up befom us.
Article 31 reads as follows :-
Description of suit
xxx
31- Against a carrier
for compensation for
non-delivery of, or
delay in delivering,
goods.
Period of
limitation
Time fr.om
which period
beings to
run.
xxx
xxx
One year When the goods
ought to be
<folivered.
Its interpretation has been the subject of a
number of decisions by various High Courts in India
and the question that has been considered in these
decisions is as to the time from which the period
begins to run. Under the Article, the time begins
to run "when tho goods ought to be delivered" and
one should havo thought that there would be no
difficulty in finding out the meaning of these words.
Ordinarily, the words of a statute have to be given
their strict grammatical meaning and equitable
consideration3 are out of place, particularly in provisions of law limiting the period of limitation for
filing suits or legal proceedings. This was laid
down by the Privy Council in t.wo decisions in
1 S.C.R.
SUPREME COURT REPORTS
75
N agerulraooth v .Suresh,C )and General Accident Fire and
L·if e A8surance Corporation Limit,ed v. J anmahomed
.Abdul Rahim (2). In the first case the Privy Council
observed that ''the fixation of periods of limitation
must always be to some extent arbitrary ~nd may
frequently result in hardship. . But in construing
such provisions equitable considerations are out of
pJil.ce, and the strict grammatical meaning of the
words is the only safe guide". In the latter case it
was observed that "a limitation Act ought to receive such a construction as the language in 'its
plain meaning imports ............ Great hardship may
occasionally be caused by statutes of limitation in
cases of poverty, distress and ignorance of rights,
yet the statutory rules must be enforced according
to their ordinary meaning in these and in other like
cases."
Two lines of reasoning seem to have governed
the decisions of various High Courts on tl\e interpretation of these words in the third column of Art.
31. The first is based on the consideration that it
was for the railway to prove what time ought to be
taken for the delivery of the goods and therefore
limitation can only start when the railway says
finalJy that it cannot deliver the goods. The second
lino of reasoning seems to be based on the principle
of estoppel and is to the effect that where the railway
enters into correspondence and says that efforts
are being made to trace the goods the railway
would be estopped from pleading that the time began to run from sometime anterior to the period before the correspondence on the question came. to an
end. It may however be noted that though the
majority of the decisions follow these two lines of
reasoning and hold·that time begins to run only
when the railway finally refuses to deliver the
goods, here and there a dissentient note has also
been struck. We shall consider some of these cases
later.
{I) A.J.R, (1932) P.C. 165.
(2) A.f.R. (1941) p.c. 60
1962
Bootama'
v.
Union of India
WanchooJ.
IBU
••
Union of India
WatrcliooJ.
76
SUPREME COURT REPORTS [1963]
Let us first see what these words in Art. 31
mean on a. plain grammatical construction.
It
would be noticed that Art. 31 as it now stands after
the Limitation Act of 1877 and· 190S, governs two
class of cases, namely, (i) where there has been no
delive.ry of goods and (ii) whe.re there has been
delay in delivering goods. In both class of cases
the time begins to run from the date when the goods
ought to be delivered. These words therefore in
column three of the Article must have a. meaning
which will apply equally to the two situations envisaged in column one. Whether there has .been nondelivery or there has been delay in delivery, in
either case limitation would run from the date when
the goods ought to be delivered. Now it is not in
dispute that if there is a term in a contra.ct of carriage fixing when the goocl.s have to be delivered
that would be the time "when the goods ought to be
delivered" within the meaning of the words used in
the third column of Art. 31. ·rhe difficulty however
a.rises in that class of cases where there is no tern.
in the contract of carriage, whether express or implied, from which the date on which the goods have
to be delivered, can be inferred. It is in these cases
that the question of interpretation of the words in
the third column of Art. 3 l seriom!ly arises. But
these words can only mean one thing whether it is a
case of late delivery or of non-delivery. Reading
the words in their plain grammatical meaning they
are in our opinion capable of only one interpretation, namely, that they contemplate that the time
would begin to run after a reasonable period has
elapsed on the expiry of which the delivery ought
to have been made. The words "when the goods
ought to be deliyered" oa,n only mean the re~sona
ble time taken (m the absence of any term m the
contract from which the time can be inferred expressly or impliedly) in the carriage of the goods
from the place of despatch to the place of destina.-
tiop. Take the ca.1e, where the cause of action is
-
1 S.C.R.
SUPREME COURT REPORTS
77
based on delay in delivering the goods. In such a
case the goods have been delivered and the claim is
based on the delay caused in the delivery. Obviously the question of delay can only be decided on the
basis of what would be the reasonable time for the
carriage of goods Irom the place of despatch to
the place of destination. Any time taken over and
above that would be a case of delay. Therefore,
when we consider the interpretation of these words
in the third column with respect to the case of nondelivery, they must mea.n the samething, namely,
the reasonable time taken for the carriage af goods
from the place of despatch to the place of destination. The view therefore taken by some of the
High Courts that the time begirn:> from the date
when the railway finally refuses
~o deliver cannot
be correct, for the words in the third column of Art.
31 are incapable of beiug interpreted as meaning
the final refusal of the carrier to deliver. We may
in this connection compare the lang,uage used in the
third ~olumn of Art. 31 with certain other articles
of the Limitation Act which will show that where
the legislature intended that time should run from
the date of refusal it has used appropriate words in
that connection. For. example, in Art. 18, which
provides for a suit for compensation against Government when the acquisition is not ·completed, the
time begins to run from "the date of the refusal to
complete". Similarly, in Art. 78 which provides for
a suit by the payee against the drawer of a bill of
exchange which has been dishonoured by non-acceptance, time begins to run from''the date of the refusal to accept''. Again in Art. 131 which provides
for a suit to establish a periodically recurring right,
the limitation begins to run "when the plaintiff is
first refused the enjoyment of the right''. Therefore,
if the legislature intended that in case of non-delivery, the limitation would start on the final refusal
of the carrier to .deliver, E.juch a case would have
been provided for by a. separate article and we
1112
Bootamal
v.
(] nion of India
Wanclroo J.
19•2
~mol
••
Uwion of India
Wanchoo J.
78
SUPREME COURT REPORTS [1963)
would have found appropriate words in the third
column thereof. The very fact that Art. 31 deals
with both cases of non-delivery of goods and delay
in delivering the goods shows that in either ca.ee
the starting point of limitation is after reasonable
time has elapsed for the carriage of goods from the
place of despatch to the place of destination. The
fact that what is reasonable time must depend upon
the circumstances of each case and the further faot
that the carrier may have to show eventually what
is the reasonable time for carriage of goods would
in our opinion make no difference to the interpretation of the words used in the third column of Art. 31.
Nor do wc think that their could be generally
speaking any question of estoppel in the matter of
the starting point of limitation because of any correspondence carried on between the carrier and the
person whose goods are carried. But, undoubtedly, if
the correspondence discloses anything which may
amount to an acknowledgement of liability of the
oarrier that will give a fresh starting point of limitation. A' we have said already, the words ·in the
third column refer to reasonable time taken for the
carriage of goods from the place of despatch to the
place of destination and this reasonable time generally speaking cannot be affected by the subsequent
conduct of the parties. We are therefore of opinion
that the answer given by the Full Bench in the oase
of Aminchand BhdanatJi, (supra) that "the limitation
in such cases starts on the expiry of thii time fixed
between the parties and in the absence of any such
agreement the limitation starts of the expiry of
reasonable time which is to be decidetl according to
the circumstances of each oase," is correct.
We shall now consider some of the represen-.
ta.tive cases decided by High Courts in this connection. In JWJal Ki8hore v. The. <be.at Indian Penin8'111.a
Railway (1) it was observed that "when the X.I.
Ra.ilway Company, by its own conduct made the
(I) (1923) 1.L.R. 45 All. 43.
. I S.O.R. 1
SUPREME COURT REPO~Ts
79
plaintiff await the result of the inquiry, it is rather
startling
to find the plea of limitation raised in
defence on its behalf". It was further observed that
"the correspondence between the parties shows that
the matter was being inquired into and that there
was no refusal to deliver, up to well within a year
of the suit ; in the ciroumstances of the case we are
unable to hold that the suit was instituted more
than a year from the expiry of a reasonable tim_e
within which the goods should have been deb·
vered."
This decision seems to suggest that the meaning of the relevant words in the third column is
that limitation starts from the expiry of the reasonable time within which the goods should have been
delivered. But it has taken into account the subsequent conduct of the railway and the fact that there
was Iio refusal to deliver the goods till much later.
It was therefore held that as the suit was brought
within one year of the final refusal to deliver,
it was within time. With respect, it is rather difficult to understand how the subsequent correspondence between the railway and the consignor or the
consignee can make any difference to the starting
point of limitation, when that correspondence only
showed that the railway was trying to trace the
goois. The period that might be taken in tracing
the goods can have no relevance in determining the
reasonable ~ime that is required for the carriage of
the goods from the place of despatch to· the place
of destination.
In Bengal, and North W e8~rn Railway Company
v. Makarujadkiraj &meskwar Singh Bakadulr(1) it was
held that "the defendants (j.e. Railway) by a.
deliberate process of ignoring the plantiff's repeated requests for attention to his claim milled him
into delaying his suit and it is not open to them
( l) (1933) l.L.R. 12 Pat. 67, 77.
198B
Bootllmal
v~
Union •!India
Wanchoo J,
1962
Boot1mal
v,
Union of India
Wanchoo J,
80
SUPREME COURT REPORTS [1963)
now to contend that the suit has been brought too
late." This case seems to be based on estoppe!.
But here again we find it difficult to understand
how the starting point of limitation under Art. 31
could be changed because the railway ignored the
plaintiff's requests for attention to his claim.
In .J ai Narain v. 'l'he Go!'ernor-General of
India (1) it was held that "the time 'when the goods
ought to be delivered' within the meaning of Art. 31
is not the time when they should have been delivered in the normal course, at least in a case where
there is no time fixed for delivery, but tho time when
they ought to Im deli vernd according to the sub1mquent promises by tlw railway which informs the
parties thri,t it i~ carrying on enquiries." With respect we, find it difficult to find how in the face of
the clear words in the third column of Art. 31 the
starting point of limitation or.n be changed because
of the subsequent conduct of the railway, which
informed. the consignor or consignee that it was
making enquiries to trace the goods.
Finally in, Governor-General in Council v. S. G.
Ahmed('). it was held that "cannot be overlooked
that for some time the railway authorities themselves were hoping to deliver the remaining packages
and were making inquiries all along the route ..... ..
In such oases it is not fair to expect the plaintiff to
rush to Court with a suit without waiting for the
result of the inquiries. Limitation oan therefore
begin only when there was a definite statement by
the railway authorities that they were not in a
position to deliver the goods". With respect, this
case seems to read in the third column as if the
starting point of limitation is from the final refusal
of the railway to deliver the goods, when the actual
words eay that limitation starts from the time when
the goods ought to be delivered i.e. in the absence
of any term fixing the time in the' contract from
(I) A.J.R. (1951) Cal. 462.
(2) A.Lil. (~2) Na1. 77.
'1
'
I l S.C.R.
SUPREME COURT REPORTS
Si
the expiry of the reasonable time taken for carriage
from the place of despatch to the place of destination.
It was however urged for the appellant that
even though the won.ls in the third column plainly
mean that the time starts when the reasonable period
which may be taken for the carriage of the goods
from the place of despatch to the place of destination expires, the subsequent conduct of the railway
as disclosed in the correspondence that might pass
between the railway and the consignor or the consignee, might have a bearing on this reasonable time.
Now if the correspon~ence is only about tracing the
goods that would not be meterial in considering
the yuestion as to when the goods ought to he.ve
been delivered.
On the other hand if the. correspondence discloses material which might throw light
on the question of determining the reasonable time
for the carriage of the goods from the place of despatch to the place of destination, then it may be open
to the court to take into account the correspondence.
Further, if there is anything in the correspondence
which has a bearing on the question of reasonable
time and the railway wants to go back 9n that, to
that extent the railway may be estopped from
denying that. .But the correspondence can only-· be
taken into account to determine what would be the
reasonable time and not to show t,hat because of the
subsequent conduct of the railway the reasonable
time got extended by the time taken by the railway
in tracing the goods. Where however the corres~
pondence provides material from which reasonable
time in a particular case may be found out the
correspondence would be relevant to that extent.
For example, take a cttse where the correspondence
shows that a certain bridge between the place of
despatch and the place of destination has been
destroyed on account of floods and that is
the reason why the goods have not reached
J9fJ2
Boolomal
v.
Union of lntli•
-
Wancl'taoJ •
1961
Bpotamal
v.
Union of Indio
WanehooJ.
82
SUPREME COURT REPORTS [1963]
the place of destination. In such a case the correspondence may well be taken into account to find
out the reasonable time for the carriage of the
goods in the circumstances. This will show that
reasonable time will depend upon the facts of each
case and that in the absence of any special circumstances the reasonable time would practically be
the same between two stations as would normally
or usually or ordinarily be taken for the carriage
of goods from the one station to the other. Further
there may be no difficulty in finding out the reasonable time where bulk of the goods have been
delivered and only a part bas not been delivered,
for in such a case in the absence of special circumstances it should be easy to see that the reasonable
time is that within which the bulk of the goods
liave been delivered. We may in this connection
refer to Union of lndi,a v. Meghraj AgarwaUa (')and
Gajanand Rajgoria v. Union of India (') where it
has been held that where a part of the consignment
has been delivered, that should, in spite of the
correspondence regarding inquiries
and in the
absence of circumstances lee.ding to the contrary
view, be taken to be the date when the goods ought
to have been delivered as a whole within the meaning of those words in Art. 31. The view taken
therefore by
the High Court in Aminchand
Bholanath's caae as to the interpretation of the words
in the third column of Art. 31 is in our opinion
correct.
Let us therefore see what was the reasonable
time within which the goods ought to have reached
Jagadhari from Gujranwala in the present case.
The appellant himself in his replication stated that
the goods in ordinary course should have reached
Jagadhari before August 15, 1947. Further in the
notice that he gave on January 22, 1948, he stated
that the cause of action arose on August 21 and 30,
1947, and on subsequent dates when he met with
(I) A.1.R. (1938) Cal. 4U.
(2) A.l.R. (1955) Pat. 182.
1 S.C.R. SUPREME COURT REPORTS
S~
refusal to deliver the goods. The fact that the
appellant gave notice under s. 80 of the Code of
Civil Procedure in January 1948 in our opm1on
shows that even taking into account the extra-ordinary conditions prevailing on account of the
partition of India in August 1947; the appellant was
satisfy that the goods ought to have be~m delivered
before January 22, 1948 when he gave the notice.
If that was not so and if the ca.use of action had
not arisen, there was no reason why the appellant
should have given the notice under s. 80 in January
1948. We can see no difficulty therefore on the
facts of this case in agreeing with the High Court
that the goods ought to have been delivered even
taking iQ.to account the extraordinary circumstances
prevailing on account of partition within five or six
months of the date on whio~ they were sent, namely,
August 5, 1947. This is also borne out by the fa.ct
that the appellant gave noti~ o~ January 22, 1948
i.e. about 5-1 /2 months after the goods had been
consigned. In the ciroumstance8 1~he suit which was
brought in December 1949 would .. be clearly barred
by time, for we cannot take' the reasonable time
within which the goods ought to ,have been delivered
in the circumstances of this case,..~yond January 22,
1948, when th'~ notice under s. 80was given. As to
the correspondence between the p~rties it is enough
to say that there is notping in the correspondence
which has any bearing on the reasonable time taken
for the carriage of goods from Gujranwala to
Jagadhari. It is true that on December 1, 1948,
the appellant was informed by the Railway that the
goods were still lying in Gujranwala because of the
restrictions imposed by the Pakistan Government
and he was asked to get the necessary permits from
that Government; but that in our opinion has
nothing to do with the question of reasonable time
to be taken for the carriage of goods from Gujranwala to J agadhari. In the circumstances, the High
Court was right in holding that the suit was barred
b1 limitatioD UDder A.rt. 31.
1962
Booltlfll•I
'"
l.'ni011 of /rtdia
Wo,.cltoo J.
Bo(ltamdl
v.
Unio.11 of 11ulia
W111choo J.
84
SUPREME COURT REPORTS [1963)
Learnlld counsel for the appellant however
drew our attention to the Displaoed Persons ( Institution of Suits) Act(No. XLVII of l!J48) as amended
by the Displaced Persons (Institution of suits arnl
legal proceedings) amendment Act, (No. LXVIII of
1950) and contended t)lat the appellant being a
displaced person would be entitled to file this suit
under s. 8 of this Act as amended upto March 31,
1952. It appears that in para. 9 of the plaint, the
appellant relied on his being a displaced person in
order to give jurisdiction to the court in Delhi
where he filed the suit. But he does not seem to
have relied on his being a displaced person on the
question of limitation. Tho respondent in the
written-statement denied that the appellant was a
displaced person and nothing further happened with
respect to this aspect of the matter. Learned
counsel for the appellant urges that in fact the
appellant is a displaced person and would be entitled to the benefit of the Act of 1948 as amended by
the Act of 1950 and on that basis his suit would be
within time and that the suit might be remanded to
allow tp.e appellant to bring his case under the Act
of 1948 as amended. Ordinarily we would not have
allowed such a prayer when the point was not
raised in the plaint ; but considering that the
appellant claims to be a displaced person who is
registered in Delhi and also considering that he had
to file this suit in forrha pauperis probably on
account of the circumstances arising from the
partition of India, we think that the appellant
should be given a chance to prove his case under
the Act of 1!148 as amended by the Act of 1950. We
express no opinion on the question whether the
appellant. is a displaced person or whether he is
entitled to the benefit of the Act of 1948 as amended
by the Act of 1950. But we think in the interest
of justice he should be given a chance to bring his
case under the Act of 1948 as amended by the Act
of 1950 in the matter of l~mitation subject to his
1 S.C.R.
SUPREME OOURT REPORTS
85
paying all the costs incurred by the respondent upto date irrespective of the result of the suit.
We therefore allow the appeal and remand the
case to the trial· court for considering only the
question of limitation on the basis of the Displj:i.ced
Persons (Institution of Suits) Act, (No. XLVII of
1948) as amended by the Displaced Persons (Institution of suits an~ legal proceedings) Amendment
Act (No. LXVIII of 1950) after giving· parties a
chance to lead evidence in this connection, if necessary. If the court comes to the conclusion that the
suit is within time on the basis of these two Acts, a
decree for the a.mount claimed minus the costs
incurred upto -this date by the respondent will be
passed in favour of the appellant. If on the other
hand the court comes to tho conclusion that·the suit
is not within limitation even under these two acts
the suit will be finally dismissed. Costs incurred
hereinafter will be in the discretion of the court.
A ppe,al allowed •
. ::1 \VALIER L J. IYYAPP,AN & ANOTHER
v.
THE DHARMODAYAM COMPANY
(J. L. KAPUR,' K. C. DAS GUPTA and
RAGHUBAR DAYAL, JJ.,
Oorn.1KJny-Direetor a trustee and in a .fiduciary poaition-
'frust if could be created on anothera hand-Ucen,se-of irrevo;.
rAhle where there has been change of purpose -In'lian Easements.
Act 1882 (5 of 1882), sa. 60 (b), 62(/ ).
The respondent, a Company with charitable 6bjects
owned certain lands and the appellant who was the Chairman
of the Board of Directors, was asked to construct a building on
the said .land. It was subsequently found that the cost would
be more . than the estimated amount, which probably the
Company was not prepared to spend., At that stage the
J962
BootomaJ
v.
Union oj india
1962