# M/s BHAGWANDAS B. RAMCHANDANI v. BRITISH AIRWAYS

- **Citation:** [2022] 11 S.C.R. 539
- **Court:** Supreme Court of India
- **Decided:** 2022-07-29
- **Case number:** Civil Appeal No. 4978 of 2022
- **Bench:** K. M. Joseph, Pamidighantam Sri Narasimha
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/m-s-bhagwandas-b-ramchandani-v-british-airways-35687
- **Pages:** 46

## Headnote

Air Act, 1972 - Rule 30 - Limitation Act, 1963 - ss. 3, 29,
schedule - Does Limitation Act, 1963 apply to the period specified
in Rule 30 of the Second Schedule of the Carriage by Air Act, 1972
- Held: Rule 30 of the Second Schedule provides that the right to
damages will be extinguished if an action is not brought within a
period of two years from the dates mentioned in the rule -When
statutes are enacted to give effect to a treaty or convention, Articles
31 and 32 of the Vienna Convention becomes relevant for
interpretation of such statutes - Courts of law must endeavor to
maintain a uniformity of interpretation with courts of other
jurisdictions while interpreting international treaties and
conventions - The expressions, 'right' and 'extinguished' employed
by the Convention as adopted and incorporated by the Parliament
in Rule 30 of the Second Schedule clearly establishes the intention
of the law-giver that the right to damages would not subsist after
the expiry of the period mentioned therein - The expression in Rule
30(2) calculating the period of limitation is synonymous to the
expression computation of period of limitation provided in Part-III
of the Limitation Act, 1963 - High Courts (Delhi, Bombay and
Madras) across the country have also taken a similar view that the
Limitation Act will be excluded from operation for a claim under
Air Act - In view of the consistent interpretation of Article 29 of the
Convention adopted in different jurisdictions, for the purpose of
uniformity and also to subserve the purpose and object of the
Convention, this Court is of the view that Rule 30 (2) does not enable
applicability of exclusion of periods for the purpose of reckoning
the period of two years.
Limitation Act, 1963 - s. 29 - Whether the Air Act, 1972,
particularly Rule 30 of the Second Schedule expressly excludes the
applicability of the Limitation Act, 1963? Held: Where a period of
A
B
C
D
E
F
G
H
540
SUPREME COURT REPORTS
[2022] 11 S.C.R.
Limitation is prescribed in a special law, by virtue of Section 29 of
the Limitation Act, such period will apply as if it was provided in the
Schedule of the Limitation Act - Sub-Rule (2) of rule 30 must therefore
be interpreted harmoniously keeping in mind not only the content
of Sub-Rule (1) but also the purpose and object of the Convention
which is to bring about the unification of Rules relating to
International Carriage by Air - Rule 30 of the Carriage by Air Act
1972, expressly excludes the applicability of the Limitation Act,1963.
Dismissing the appeal, the Court
HELD :
Does Limitation Act, 1963 apply to the period specified in
Rule 30 of the Second Schedule of the Carriage by Air Act, 1972?
1. It is to be noticed that matters concerning the
international carriage of persons, baggage, or cargo performed
by aircraft for reward are the subject matter of International
Conventions. These are incorporated into our laws through the
Schedules to the Air Act, 1972. Section 3 of the Air Act, 1972
incorporates the Warsaw Convention, 1929 into the First Schedule
and specifically provides that it shall have the status of law in
India. Section 4 incorporates the Hague Protocol dated 28.09.1955
and provisions it in the Second Schedule and gives it the status
of law in India. Similarly, Section 4A brought into force in 2009
for giving effect to the Montréal Convention, 1999 incorporates
it in the Third Schedule to the Act and gives it the status of law in
India. [Para 10][552-F-G; 553-A-B]
2. The procedural law governing the institution and
adjudication of civil suits in India includes the Civil Procedure
Code,1908 as well as the Limitation Act, 1963. The Limitation
Act is a branch of adjectival law, and applies to all proceedings
which it governs from the date of its enactment. There is however
a well-established principle, which states that when the right itself
is extinguished, the provisions relating to limitation have no
application. A direct example where the right itself is
extinguished, c

## Text

_Characters 0–39,982 of 106,199. This is a partial read: ask again with offset=39982 for what follows._

A
B
C
D
E
F
G
H
539
 [2022] 11 S.C.R. 539
539
M/s BHAGWANDAS B. RAMCHANDANI
v.
BRITISH AIRWAYS
(Civil Appeal No. 4978 of 2022)
JULY 29, 2022
[K. M. JOSEPH AND
PAMIDIGHANTAM SRI NARASIMHA, JJ.]
Air Act, 1972 - Rule 30 - Limitation Act, 1963 - ss. 3, 29,
schedule - Does Limitation Act, 1963 apply to the period specified
in Rule 30 of the Second Schedule of the Carriage by Air Act, 1972
- Held: Rule 30 of the Second Schedule provides that the right to
damages will be extinguished if an action is not brought within a
period of two years from the dates mentioned in the rule -When
statutes are enacted to give effect to a treaty or convention, Articles
31 and 32 of the Vienna Convention becomes relevant for
interpretation of such statutes - Courts of law must endeavor to
maintain a uniformity of interpretation with courts of other
jurisdictions while interpreting international treaties and
conventions - The expressions, 'right' and 'extinguished' employed
by the Convention as adopted and incorporated by the Parliament
in Rule 30 of the Second Schedule clearly establishes the intention
of the law-giver that the right to damages would not subsist after
the expiry of the period mentioned therein - The expression in Rule
30(2) calculating the period of limitation is synonymous to the
expression computation of period of limitation provided in Part-III
of the Limitation Act, 1963 - High Courts (Delhi, Bombay and
Madras) across the country have also taken a similar view that the
Limitation Act will be excluded from operation for a claim under
Air Act - In view of the consistent interpretation of Article 29 of the
Convention adopted in different jurisdictions, for the purpose of
uniformity and also to subserve the purpose and object of the
Convention, this Court is of the view that Rule 30 (2) does not enable
applicability of exclusion of periods for the purpose of reckoning
the period of two years.
Limitation Act, 1963 - s. 29 - Whether the Air Act, 1972,
particularly Rule 30 of the Second Schedule expressly excludes the
applicability of the Limitation Act, 1963? Held: Where a period of
A
B
C
D
E
F
G
H
540
SUPREME COURT REPORTS
[2022] 11 S.C.R.
Limitation is prescribed in a special law, by virtue of Section 29 of
the Limitation Act, such period will apply as if it was provided in the
Schedule of the Limitation Act - Sub-Rule (2) of rule 30 must therefore
be interpreted harmoniously keeping in mind not only the content
of Sub-Rule (1) but also the purpose and object of the Convention
which is to bring about the unification of Rules relating to
International Carriage by Air - Rule 30 of the Carriage by Air Act
1972, expressly excludes the applicability of the Limitation Act,1963.
Dismissing the appeal, the Court
HELD :
Does Limitation Act, 1963 apply to the period specified in
Rule 30 of the Second Schedule of the Carriage by Air Act, 1972?
1. It is to be noticed that matters concerning the
international carriage of persons, baggage, or cargo performed
by aircraft for reward are the subject matter of International
Conventions. These are incorporated into our laws through the
Schedules to the Air Act, 1972. Section 3 of the Air Act, 1972
incorporates the Warsaw Convention, 1929 into the First Schedule
and specifically provides that it shall have the status of law in
India. Section 4 incorporates the Hague Protocol dated 28.09.1955
and provisions it in the Second Schedule and gives it the status
of law in India. Similarly, Section 4A brought into force in 2009
for giving effect to the Montréal Convention, 1999 incorporates
it in the Third Schedule to the Act and gives it the status of law in
India. [Para 10][552-F-G; 553-A-B]
2. The procedural law governing the institution and
adjudication of civil suits in India includes the Civil Procedure
Code,1908 as well as the Limitation Act, 1963. The Limitation
Act is a branch of adjectival law, and applies to all proceedings
which it governs from the date of its enactment. There is however
a well-established principle, which states that when the right itself
is extinguished, the provisions relating to limitation have no
application. A direct example where the right itself is
extinguished, can be evidenced in Section 11 as well as Section
27 of the Limitation Act, 1963. Section 11 deals with suits filed in
India with respect to contracts entered in foreign countries.
Following the Principle of lex fori, the Section provides that rules
of limitation provided in a foreign jurisdiction are not applicable.
A
B
C
D
E
F
G
H
541
However, the exception to this Rule is provided in Section 11
(2)(a), when the Contract i.e., the right itself expires. Similarly,
Section 27 also recognizes the principle of extinguishment of Right
to Property being an exception to the applicability of the
Limitation Act, 1963. [Para 12][554-B-E]
3. In view of the well-established position of law relating to
Lex Fori in International Law, with the equally well-established
exception arising out of the extinguishment of the right or the
liability itself, we will now examine the position in India as per
Rule 30 in the Second Schedule of the Air Act, 1972 relating to
liability of the carrier. [Para 14][558-A-C]
4. While Rule 29 speaks about judicial remedy for initiating
an action for damages, Rule 30 uses the expression right to
damages. It is in the context of right as against a remedy that the
purpose, object and meaning of Rule 30 is to be understood.
Further, Rule 30 also uses the expression "extinguishment" as
against "bar", which is generally used in the context of a remedy.
Therefore, the extinguishment is of right, that is, the right to
damages is the subject matter of Sub-Rule (1) of Rule 30. The
expressions, 'right' and 'extinguished' employed by the
Convention as adopted and incorporated by the Parliament in
Rule 30 of the Second Schedule clearly establishes the intention
of the law-giver that the right to damages would not subsist after
the expiry of the period mentioned therein. [Para 15.1][558-AC; 558-D-E]
5. Once the right to damages is extinguished upon the
expiry of two years reckoned from the three alternative dates
mentioned in the Rule itself, nothing would remain for
enforcement. Section 3 of the Limitation Act only bars the remedy,
but when the right itself is extinguished, provisions of the
Limitation Act have no application. For this reason, in The East
and West Steamship Co., this Court held that once the right of
liability is extinguished under the clause, there is no scope of
acknowledging the liability thereafter. [Para 15.2][559-C-D]
6. In its plain and simple language, Sub-Rule (2) seems to
adopt the applicability of the Limitation Act, 1963 as Courts in
M/S BHAGWANDAS B. RAMCHANDANI v. BRITISH
AIRWAYS
A
B
C
D
E
F
G
H
542
SUPREME COURT REPORTS
[2022] 11 S.C.R.
India exercise jurisdiction. 'The method of calculating the period
specified in Sub-rule (2) naturally relates to the period' specified
in Sub-rule (1). Sub-Rule (1) identifies and fixes two incidents.
The period of limitation and the date of commencement of the
said period (the three specified dates). Therefore, when the
period of limitation, as well as the date of commencement of the
said period, are already given, the method of calculation of the
period of limitation contemplated under Sub-Rule (2) must relate
to some other factor. However, without specifying the variable to
which the method of calculating the period, is to apply, Sub-rule
(2) merely provides that it "shall be determined by the law
applicable to the Court seized of the case." This has caused
uncertainty about the intent of the lawmakers, be it the
Convention or Rule 30 of the Second Schedule of the Act. [Para
16.2][559-F-H; 560-A-B]
7. Further, the expression in Rule 30(2) calculating the
period of limitation is synonymous to the expression computation
of period of limitation provided in Part-III of the Limitation Act,
1963. Part-III which relates to the exclusion of certain time
periods is to sub-serve a just cause based on public policy which
recognizes human vulnerabilities. Broadly, these periods relate
to (i) the date from which the period is to be reckoned (Section
12); (ii) the time taken for seeking to contest as a pauper, (Section
13); (iii) the bona fide period involved in the perusal of a remedying
the wrong Court (Section 14); (iv) fraud (Section 17); (v)
acknowledgment of debt (Section 18); (vi) admitted payments on
account of debt (Section 19); (vii) continuous breach etc. These
are the periods that can be excluded while computing the period
of limitation under the Limitation Act, 1963. [Para 16.3][560-BD]
8. The rival submissions surface due to an apparent conflict
between Sub- Rule (1) and Sub-Rule (2) of Rule 30 of the Second
Schedule. While Sub- Rule (1) extinguishes the right itself upon
the expiry of the period of two years, after which nothing would
remain for enforcement, Sub-Rule (2) seems to suggest that the
Court seized of the case can apply the law of limitation applicable
to its proceedings and entertain the suit of the proceedings. [Para
18][561-B-C]
A
B
C
D
E
F
G
H
543
9. In view of the uncertainty in the language of sub-article
(2) of Article 29, as in the case of Sub-Rule (2) of Rule 30 for
India, courts of law across jurisdictions were called upon to
consider the rival submissions on the construct of the said
provision. Learned counsels appearing for both the parties have
placed before us the decisions of foreign courts that have ruled
upon Article 29 and interpreted the said provision, more or less
consistently taking a view that the domestic laws of limitation
will have no bearing on the period of two years. [Para 29][569-CD]
10. The High Courts across the country have also taken a
similar view that the Limitation Act, 1963 will be excluded from
operation for a claim under the Air Act. The High Courts have
reasoned that the Air Act is a special statute and would thus prevail
over the Limitation Act, 1963, which is a general statute. The
High Court of Delhi in Air India Ltd. v. Tej Shoe Exports P. Ltd.
, Sailesh Textile Industries v. British Airways & Anr. , Indian
Airlines v. Angelique International Ltd. & Anr., Ethopian Airlines
v. Federal Chemical Works Ltd., the High Court of Madras in
M/s M.R.F Ltd. v. Singapore Airlines and Air India, Bombay
Airport v. Asia Tanning Co., and the High Court of Bombay, in
the judgment impugned before us, have all taken this view. [Para
40][576-E-G]
11. In the ultimate analysis, keeping in view the legislative
history of the Convention and in view of the consistent
interpretation of Article 29 of the Convention adopted in different
jurisdictions, for the purpose of uniformity and also to subserve
the purpose and object of the Convention, we are of the view
that Rule 30 (2) does not enable applicability of exclusion of
periods for the purpose of reckoning the period of two years.
[Para 43][577-G-H]
Whether the Air Act, 1972, particularly Rule 30 of the Second
Schedule expressly excludes the applicability of the Limitation Act,
1963?
12. While dealing with Issue No.1, we have held that the
right to damages itself is extinguished after the expiry of the
period of two years and therefore the provisions of the Limitation
M/S BHAGWANDAS B. RAMCHANDANI v. BRITISH
AIRWAYS
A
B
C
D
E
F
G
H
544
SUPREME COURT REPORTS
[2022] 11 S.C.R.
Act have no application as there is no right subsisting for
enforcement. In this context we have referred to Section 3 of the
Limitation Act which merely bars the remedy and not the right
itself, but when the statute extinguishes the right itself the
position is very different. We will however consider the present
argument of appellant as an alternative plea and proceed forthwith
to deal with the same. [Para 45][578-E-F]
13. Where a period of Limitation is prescribed in a special
law, by virtue of Section 29 of the Limitation Act, such period will
apply as if it was provided in the Schedule of the Limitation Act.
Consequently, the provisions of Sections 4 to 24 will apply for
the purpose of computation of period of limitation. This provision
is subject to a bright exception that the Limitation Act will not
apply if it is "expressly excluded" by the Special Act. [Para
46][578-F-H]
14. The Air Act, 1972 is an Act to give effect to various
International Conventions for the unification of certain Articles
relating to international carriage by air. The International
Conventions incorporated in the Act are the (i) Warsaw
Convention, 1929; (ii) The Warsaw Convention, 1929 as amended
by the Hague Protocol on 28.09.1955 and (iii) the Montréal
Convention, 1999. Section 3 of the Act incorporates the Warsaw
Convention into the Act as the First Schedule and specifically
provides it the status of law in India. Section 4 incorporates the
Hague Protocol and provisions it in The Second Schedule. Section
4A for giving effect to Montréal convention, provides The Third
Schedule to the Act and specifically provides the status of law to
these provisions. [Paras 50 & 51][581-B, E-F]
15. The Warsaw Convention as amended by the Hague
Protocol is a complete code within itself for all questions relating
to carriage by air by international carriages. Rule 1(1) provides
that the Hague Protocol shall apply to "all international carriage
of persons, baggage or cargo performed by aircraft for reward".
Rule 2 provides that the Convention will apply to carriage
performed by the State or by legally constituted public bodies.
Chapter II of the Convention (Rules 3 to 16) is entitled
"Documents of Carriage". Rule 3 relates to the documents that
A
B
C
D
E
F
G
H
545
a carriage of passengers must deliver. Rule 4 prescribes a
mechanism for baggage check. Rule 5 to 11 relates to the air
waybill in cases of cargo carriages. Rule 12 relates to the right of
the consignor to dispose of the goods in a manner that is not
prejudicial to the carrier. Rule 13 pertains to the rights of the
consignee upon the arrival of the goods. Rule 13(3) provides
that where there is a loss of goods, the consignee shall be entitled
to enforce the rights which 'flow from the contract of carriage'.
Rule 14 provides for the consequences of non- compliance of
Rule 12 and 13. [Para 52][581-F-H; 582-A-B]
16. The Chapter with which we are presently concerned
with is Chapter III which is titled 'Liability of the Carrier'. Rule
17 provides for the liability of a carrier for damages in the event
of death or wounding or other injuries caused to a passenger
while onboard the aircraft. Rule 18 envisages the liability of a
carrier in the event of destruction, loss, damage etc. of cargo.
Similarly, Rule 19 concerns the liability of a carrier upon delay in
the carriage of passengers, baggage or cargo. Rule 20 provides
for an equitable exemption to the carrier if he proves that he had
taken all necessary measures to negate the delay or damage.
Rule 21 is yet another equitable provision that protects the
carrier in cases of contributory negligence. Rule 22 specifies the
minimum liability of the carrier. Rule 23 nullifies all limits which
are lower than those provided in Rule 22. [Para 53][582-B-D]
17. The Convention certainly incorporated two variables
in the context of reckoning the period specified in Rule 30 (1) of
limitation. The first event relates to the time, which is a fixed
period of two years. The second event relates to the
commencement of cause of action which has been specified as
any of the three events being (i) arrival at the destination; or (ii)
date on which the aircraft ought to have arrived; or (iii) the date
on which the carriage stopped. Now, the only event that remains
is the date on which the action for damages is initiated as this
would depend upon the law of the Court seized of the case. Rule
30(2) specifically provides that "the method of calculating the
period will be determined by the law of the Court seized of the
case." This should necessarily follow for the reason that the
M/S BHAGWANDAS B. RAMCHANDANI v. BRITISH
AIRWAYS
A
B
C
D
E
F
G
H
546
SUPREME COURT REPORTS
[2022] 11 S.C.R.
period of two years for enforcing the right would be extinguished
if an action is not brought within the said period. [Para 57][583D-F]
18. This Court also note that giving effect to the meaning
of the words the 'law of the court seized of the case' would lead
to an anomalous situation where the law of every country would
be incorporated into the Convention, thereby defeating the
purpose of an International Convention which is to bring about
uniformity across the globe in the laws applicable to carriage by
air. Having considered the matter in detail, this Court is of the
opinion that Rule 30 of the Carriage by Air Act 1972, expressly
excludes the applicability of the Limitation Act, 1963. Issue No.2
is answered accordingly. [Para 58 & 60][583-F-G; 584-C]
Sailesh Textile Industries v. British Airways & Anr. 2003
SCC Online Del 318; Indian Airlines v. Angelique
International Ltd.& Anr. 2014 SCC Online Del 6825;
Ethopian Airlines v. Federal Chemical Works Ltd 2004
SCC Online Del 862 Air India, Bombay Airport v. Asia
Tanning Co. 2002 SCC Online Mad 802 - approved.
Punjab National Bank and others v. Surendra Prasad
Sinha 1993 Supp (1) SCC 499 : [1992] 2 SCR 528;
Hukumdev Narain Yadav v. Lalit Narain Mishra (1974)
2 SCC 133 : [1974] 3 SCR 31; Shanmugam v.
Commissioner for Registration [1962] 2 All E.R. 609 -
relied on.
M.R.F. Ltd. v. M/s Singapore Airlines Ltd. 2014 SCC
Online Mad 247; M/s Air India Bombay Airport and
Another v. M/s Asia Tanning Co. and Anr. 2002 SCC
Online Mad 802; The Shipping Corporation of India
Ltd., Bombay and Anr. v. Union of India 2004 SCC
Online Mad 489; The East and West Steamship
Company, Georgetown, Madras v. S.K. Ramalingam
Chettiar AIR 1960 SC 1058 : [1960] 3 SCR 820; Air
India Ltd. v. Tej Shoe Exporters P. Ltd. and Anr. 2013
SCC Online Del 3749; Gulf Air Company v. Nahar
Spinning Mills Ltd. and Others 1999 SCC Online P&H
915; Khadi Gram Udyog Trust v. Ram Chandraji
Virajman Mandir (1978) 1 SCC 44 : [1978] 2 SCR
A
B
C
D
E
F
G
H
547
249; Needle Industries (India) Ltd. and Anr. v. Needle
Industries Newey (India) Holding Ltd. and Ors (1981)
3 SCC 333 : [1981] 3 SCR 698; National Aviation
Company of India Ltd. v. Jatnadevi Tejraj Jain 2011
SCC Online Guj 7601; State of Kerelaand Ors. v. V.R.
Kalliyanikutty and Anr. (1999) 3 SCC 657 : [1999]
2 SCR 372; Prem Singh and Ors. v. Birbal and Ors.
(2006) 5 SCC 353: [2006] 1 Suppl. SCR 692- referred
to.
United Kingdom in Laroche v. Spirit of Adventure (UK)
Ltd. (2009) EWCA Civ 12; Fishman v. Delta Airlines
938 F. Supp. 228 (1996); Sidhu v. British Airways
[1997] 1 All ER 193; Philips v. Air New Zealand (2002)
EWHC 800; Fishman v. Delta Airlines 82 A.D. 2d 696;
Kahn v. Trans World Airlines (1981) 443 NYS 2d 79;
Bhatia v. Malaysian Airline System Berhad (2018) FCA
1471; Rukmaboye v. Lulloobhoy Motichand (1935) 5
HIA 234; RM. AR. AR. RM. AR. Ramanathan Chkttiar
and others v. K.M.CL.M. Somasundaram Chettiar and
Ors. (1964) 77 LW 399; R v. Secretary of State for the
Home Department exparte Adan, (1999) 4 All ER 774.
p. 785 (CA); R. (on the application of Mullen) v.
Secretary of State for the Home Department (2004) 1
All ER 65; Fothergill v. Monarch Airlines (1980) 2 All
ER 696; Morris v. KLM Royal Dutch Airlines [2001] 3
WLR 351; Zicherman v. Korean Air Lines Co. Ltd. 516
US 217, (1996), EI AI Israel Airlines Ltd. V. T.Y. Tseng
525 U.S. 155 (1999); Narayanan v. British Airways 2014
U.S. App. LEXIS 5173 : 747 F.3d 1125; Lorans v. Air
France (1977) 31 RFDA 268 Joseph v. Syrian Arab
Airlines 88 F.R.D. 530 (S.D.N.Y. 1980); Flanagan v.
McDonnell Douglas Corp 428 F. Supp. 770 (C.D. Calf.
1977) - referred to.
Case Law Reference
[1960] 3 SCR 820
referred to
Para 7.1
[1992] 2 SCR 528
relied on
Para 13.4
M/S BHAGWANDAS B. RAMCHANDANI v. BRITISH
AIRWAYS
A
B
C
D
E
F
G
H
548
SUPREME COURT REPORTS
[2022] 11 S.C.R.
[1978] 2 SCR 249
referred to
Para 13.5
[1999] 2 SCR 372
referred to
Para 13.5
[2006] 1 Suppl. SCR 692
referred to
Para 15.1
[1981] 3 SCR 698
referred to
Para 47
[1974] 3 SCR 31
relied on
Para 48
CIVIL APPELLATE JURISDICTION : Civil Appeal No.4978
of 2022.
From the Judgment and Order dated 02.02.2018 of the High Court
of Judicature at Bombay in Writ Petition No.6647 of 2014.
Vinay Navare, Sr. Adv., Pravartak Pathak, Ms. Gwen Karthika,
Ms. Abha R. Sharma, Advs. for the Appellant.
Ms. Ritu Singh Mann, Dheeraj K. Garg, Rajan K. Chourasia,
Advs. for the Respondent.
The Judgment of the Court was delivered by
PAMIDIGHANTAM SRI NARASIMHA, J.
1. Leave granted.
2.1 Carriage by Air Act, 1972, incorporates international air traffic
conventions of Warsaw, 1929, Hague Protocol, 1955, and Montréal
Convention, 1999 in the First, Second, and the Third Schedules of the
Act. Rule 30 of the Second Schedule, which incorporates the Hague
Protocol, provides that the right to damages will be extinguished if an
action is not brought within a period of two years from the dates mentioned
in the Rule. Sub-rule (2) of Rule 30 provides that the method of calculating
the period of limitation shall be determined by the law of the Court seized
of the matter. As Limitation Act, 1963 is the law applicable to the Courts
in India, it is contended on behalf of the consumers of the Airlines that
the exclusion of periods of limitation provided in the Limitation Act shall
apply for computation of the period of two years mentioned in Rule 30
(1).
2.2 Two substantial questions of law have arisen for our
consideration. The first relates to the applicability of the Limitation Act
when the right itself is extinguished, as against a barring of remedy, as
in the case of Section 3 of Limitation Act. The second question is whether
the provisions of the Carriage by Air Act, 1972 expressly exclude the
Limitation Act, 1963 as provided in Section 29.
A
B
C
D
E
F
G
H
549
2.3 On the first question, we have resolved the apparent conflict
between Sub-rule (1) and Sub-rule (2) of Rule 30 by referring to the
legislative history of the conventions as provided in the Vienna Convention
on the Law of Treaties, 1969. The travaux preparatoires leading to the
formation of the Convention establishes that the Convention sought to
exclude any interruption in the period of two years specified in the Article.
We have also followed the well-recognized principle that while
interpreting municipal laws giving effect to International Conventions,
Courts must endeavor to maintain uniformity in the interpretation in order
to sub-serve the very purpose of the Conventions. Having examined the
judgments of various jurisdictions, we are satisfied that they are in
consonance with the interpretation that we have adopted in construing
Sub-rule (2) of Rule 30. Sub-rule (2) in our opinion does not derogate
from the intent of Sub-rule (1) excluding the applicability of the Limitation
Act but merely empowers the Court to determine the period of two
years.
2.4 On the second question, after examining the provisions of the
Carriage by Air Act, 1972, we have held that Rule 30 expressly excludes
the Limitation Act as provided in Section 29.
Facts and Proceedings:
3. The Appellant is a sole proprietary concern engaged in the
business of imports and exports. The Appellant sent a cargo containing
fruits and vegetables from Mumbai to Canada via London by employing
services of British Airways1 on 04.01.2010. However, on 06.01.2010
due to bad weather conditions in London the flight could not depart to
Canada, as a result the fruits and vegetables were damaged and were
consequently destroyed. The Appellant lodged a claim for ` 1,70,221.56/
- with the Respondent. On 30.06.2010, the Appellant once again sent a
similar cargo containing fruits and vegetables from Mumbai to Canada.
Yet again, the cargo could not be sent due to packaging and other issues
and, as a consequence, the cargo had to be destroyed. The Appellant
raised a claim dated 20.07.2010 for ` 4,27,922/-. Acknowledging the
receipt of the notice, the Respondent sent a mail on 02.11.2010 offering
to settle the matter at 50% of the claim amount.
4. It is in the above-referred background that the Appellant
instituted a suit being OS No. 5164/2012 on 15.09.2012 before the City
1 hereinafter referred to as the 'Respondent'.
M/S BHAGWANDAS B. RAMCHANDANI v. BRITISH
AIRWAYS [PAMIDIGHANTAM SRI NARASIMHA, J.]
A
B
C
D
E
F
G
H
550
SUPREME COURT REPORTS
[2022] 11 S.C.R.
Civil Court, Mumbai for recovery of the amount of ` 9,17,642.56/-, with
interest at the rate of 21% per annum2. The Respondent filed written
statements stating inter alia that the suit is barred by limitation.
Before the Trial Court:
5. The Trial Court framed a preliminary issue on the ground of
limitation and by its judgment dated 05.02.2014 held that the suit is not
barred by limitation as the period prescribed in Rule 30 of the Second
Schedule to the Carriage by Air Act, 19723 could be calculated from
28.10.2010, that is, the date when the Respondent had acknowledged a
proposed settlement of the claim at 50% of the demand. For this purpose,
the Trial Court relied on Section 18 of the Limitation Act by taking it for
granted that the said Act is applicable to proceedings under the Air Act.
6. Aggrieved by the decision of the Trial Court on the preliminary
issue, Appellant filed a Writ Petition No. 6647/2014 before the High
Court of Bombay. By the judgment impugned herein, the High Court
allowed the Writ Petition holding that the suit is barred by limitation. The
reasoning adopted by the High Court is that the Air Act, 1972 being a
later and a special statute, will have an overriding effect over the earlier
and the general statute, being the Limitation Act, 1963.
Before the High Court:
7.1 The High Court relied on the decisions of the High Court of
Madras in M.R.F. Ltd. v. M/s Singapore Airlines Ltd.4, M/s Air India
Bombay Airport and Another v. M/s Asia Tanning Co. and Anr.5,
The Shipping Corporation of India Ltd., Bombay and Anr. v. Union
of India6, The East and West Steamship Company, Georgetown,
Madras v. S.K. Ramalingam Chettiar7, Air India Ltd. v. Tej Shoe
Exporters P. Ltd. and Anr.8 and Gulf Air Company v. Nahar Spinning
Mills Ltd. and Others9 which took the view that Carriage by Air Act,
2 For completion of the narration, it may be stated that the appellant had initially
approached the District Consumer Forum which took the view that the transaction is
commercial in nature and therefore, it did not have the jurisdiction. The appeal and
revision against that order were also dismissed, though on the ground of delay.
3 hereinafter referred to as 'Air Act, 1972'.
4 2014 SCC Online Mad 247.
5 2002SCC Online Mad 802.
6 2004 SCC Online Mad 489.
7 AIR 1960 SC 1058.
8 2013 SCC Online Del 3749.
9 1999 SCC Online P & H 915.
A
B
C
D
E
F
G
H
551
1972 excludes the applicability of Limitation Act. The High Court observed
that: -
"30. Thus, consistent view taken by the Apex Court and also
by various High Courts is that the Carriage by Air Act 1972,
being a special statute, enacted to give effect to the
international convention, the provisions thereof will have an
overriding effect. In view thereof, section 18 of the Limitation
Act, which is a general enactment, cannot have any application
in the present case to extend the period of limitation, which is
prescribed in Rule 30 of Schedule II of the Act."
7.2 As a consequence of such a decision, the High Court set
aside the decision of the Trial Court on the preliminary issue and held
that the suit is barred by limitation and dismissed the same.
Submissions:
8.1 Shri Vinay Navare, Senior Advocate, appearing for the
Appellant submitted that Section 29(2) of the Limitation Act provided
that unless the Limitation Act is expressly excluded, its provision applies
to any law prescribing a distinct period of limitation. He submitted that
Rule 30 of the Second Schedule of the Air Act, 1972 has not expressly
excluded the applicability of the Limitation Act. He further submitted
that Rule 30 (2) explicitly enables "method of calculating the period
of limitation" based on the law of the Court seized of the case. On this
basis, he urged that the provisions of the statutes are complementary to
each other and must be read harmoniously. He fairly brought to our
notice the judgment of the Court of Appeal in the United Kingdom in
Laroche v. Spirit of Adventure (UK) Ltd.10 and the judgment of the
Second Circuit of the United States Court of Appeals in Fishman v.
Delta Airlines11.In these cases, the Courts have taken the view that the
municipal laws governing the period of limitation are not to be applied
for claims made under the statutes based on international conventions.
Shri Navare distinguished these judgments on the ground that the statutory
position based on Section 29(2) of the Limitation Act read with correct
interpretation of Rule 30 of Second Schedule of the Air Act, 1972 would
stand on a different footing, and therefore these judgments are
distinguishable.
10 (2009) EWCA Civ 12.
11 938 F. Supp. 228 (1996)
M/S BHAGWANDAS B. RAMCHANDANI v. BRITISH
AIRWAYS [PAMIDIGHANTAM SRI NARASIMHA, J.]
A
B
C
D
E
F
G
H
552
SUPREME COURT REPORTS
[2022] 11 S.C.R.
8.2 Ms. Ritu Singh Mann, Advocate for the Respondent-Airlines,
primarily contended that the exclusion under Section 29(2) can be implied
from the provisions of the Air Act, 1972. The Learned Counsel relied on
the judgment of this Court in Hukumdev Narain Yadav v. Lalit Narain
Mishra12. In the written submissions, for the first time, the Respondent
sought to argue that it is Rule 35 of the Third Schedule and not Rule 30
of the Second Schedule of the Air Act, 1972 which will be applicable to
the case at hand13. Our attention was also drawn to the judgments of the
Courts in United Kingdom (Sidhu v. British Airways14, Philips v. Air
New Zealand15), the United States of America (Fishman v. Delta
Airlines16, Kahn v. Trans World Airlines17) and Australia (Bhatia v.
Malaysian Airline System Berhad18) to buttress the submissions.
Issues:
9. In view of the rival submissions, the following issues arise for
consideration:
1.
Does Limitation Act, 1963 apply to the period specified in
Rule 30 of the Second Schedule of the Carriage by Air Act,
1972?
2.
Whetherthe Air Act, 1972, particularly Rule 30 of the Second
Schedule expressly excludes the applicability of the
Limitation Act, 1963?
Issue No.1:
Does Limitation Act, 1963 apply to the period specified in
Rule 30 of the Second Schedule of the Carriage by Air Act, 1972?
10. It is to be noticed that matters concerning the international
carriage of persons, baggage, or cargo performed by aircraft for reward
are the subject matter of International Conventions. These are
12 (1974) 3 SCR 31.
13 The submission of the Respondent, taken for the first time in the written submission
that it is Section 4A and the Third Schedule of the Act, which is applicable need not
detain us as there is virtually no difference between Rule 35 of the Third Schedule and
Rule 30 of the Second Schedule. We will therefore proceed based on Second Schedule
only.
14 [1997] 1 All ER 193
15 (2002) EWHC 800 (Commercial Court).
16 Supra no. 11.
17 82 A.D. 2d 696: (1981) 443 NYS 2d 79.
18 (2018) FCA 1471.
A
B
C
D
E
F
G
H
553
incorporated into our laws through the Schedules to theAir Act, 1972.
Section 319 of the Air Act, 1972 incorporates the Warsaw Convention,
192920 into the First Schedule and specifically provides that it shall
have the status of law in India. Section 421 incorporates the Hague
Protocol dated 28.09.1955 and provisions it in the Second Schedule
and gives it the status of law in India. Similarly, Section 4A22 brought
into force in 2009 for giving effect to the Montréal Convention, 199923
incorporates it in the Third Schedule to the Act and gives it the status
of law in India.
11. Chapter III of the Second Schedule relates to, 'Liability of
the Carrier', which recognizes the principle of International Law of lex
fori, as per which suits and proceedings in the judicial for a of the member
nations are to be governed by the law of the Court in which the proceeding
is instituted24. This principle is recognized by Rule 29(2) of the Second
Schedule itself;
"Rule 29. (1) An action for damages must be brought, at the
option of the plaintiff, in the territory of one of the High
Contracting Parties, either before the Court having
jurisdiction where the carrier is ordinarily resident, or has
19 Section 3 : Application of Convention to India
(1) The rules contained in the First Schedule, being the provisions of the Convention
relating to the rights and liabilities of carriers, passengers, consignors, consignees,
and other persons, shall, subject to the provisions of this Act, have the force of law in
India in relation to any carriage by air to which those rules apply, irrespective of the
nationality of the aircraft performing the carriage.
20Convention for the Unification of Certain Rules Relating to International Carriage by
Air, Signed at Warsaw on 12 October 1929.
21Section 4 : Application of amended Convention to India
(1) The rules contained in the Second Schedule, being the provisions of the amended
Convention relating to the rights and liabilities of carriers, passengers, consignors,
consignees and other persons, shall, subject to the provisions of this Act, have the force
of law in India in relation to any carriage by air to which those rules apply, irrespective
of the nationality of the aircraft performing the carriage."
22Section 4A : Application of Montreal Convention to India
(1) The rules contained in the Third Schedule, being the provisions of the Montreal
Convention relating to the rights and liabilities of carriers, passengers, consignors,
consignees, and other persons, shall, subject to the provisions of this Act, have the force
of law in India in relation to any carriage by air to which those rules apply, irrespective
of the nationality of the aircraft performing the carriage
23Convention for the Unification of Certain Rules Relating to International Carriage by
Air, Signed at Montreal on 28 May, 1999.
24 Rukmaboye v. LulloobhoyMotichand (1935) 5 HIA 234.
M/S BHAGWANDAS B. RAMCHANDANI v. BRITISH
AIRWAYS [PAMIDIGHANTAM SRI NARASIMHA, J.]
A
B
C
D
E
F
G
H
554
SUPREME COURT REPORTS
[2022] 11 S.C.R.
his principal place of business, or has an establishment by
which the contract has been made or before the Court have
jurisdiction at the place of destination.
(2) Question of procedure shall be governed by the law of the
Court seized of the case."
12. The procedural law governing the institution and adjudication
of civil suits in India includes the Civil Procedure Code, 1908 as well as
the Limitation Act, 1963. The Limitation Act is a branch of adjectival
law, and applies to all proceedings which it governs from the date of its
enactment. There is however a well-established principle, which states
that when the right itself is extinguished, the provisions relating to limitation
have no application. A direct example where the right itself is extinguished,
can be evidenced in Section 1125 as well as Section 2726 of the Limitation
Act, 1963. Section 11 deals with suits filed in India with respect to
contracts entered in foreign countries. Following the Principle of lex
fori, the Section provides that rules of limitation provided in a foreign
jurisdiction are not applicable. However, the exception to this Rule is
provided in Section 11 (2)(a), when the Contract i.e., the right itself
expires. Similarly, Section 27 also recognizes the principle of
extinguishment of Right to Property being an exception to the
applicability of the Limitation Act, 1963.
13.1 The distinction between barring a remedy as exception is
well established, as can be seen in the following precedents. The
extinguishment of the right and its effect on limitation is well recognized
by courts of law. We may refer to some of the important precedents.
25 Section 11. Suits on contracts entered into outside the territories to which the
Act extends
(1) Suits instituted in the territories to which this Act extends on contracts entered into in
the State of Jammu and Kashmir or in a foreign country shall be subject to the rules of
limitation contained in this Act.
(2) No rule of limitation in force in the State of Jammu and Kashmir or in a foreign
country shall be a defence to a suit instituted in the said territories on a contract entered
into in that State or in a foreign country unless-
(a) the rule has extinguished the contract; and
(b) the parties were domiciled in that State or in the foreign country during the
period prescribed by such rule.
26 Section 27. Extinguishment of right to property
At the determination of the period hereby limited to any person for instituting a suit for
possession of any property, his right to such property shall be extinguished.
A
B
C
D
E
F
G
H
555
13.2 A similar issue as in the present case, arose for consideration
in TheEast and West Steamship Company v. S.K. Ramalingam
Chettiar27, where this Court had to consider 3rd Clause of Para 6 of
Article III in Schedule to the Indian Carriage of Goods by Sea Act,
192528 wherein, while interpreting the expression discharge from the
liability, this Court held as under: -
"....The question we have to decide is whether in saying that
the ship or the carrier will be "discharged from liability",
only the remedy of the shipper or the consignee was being
barred or the right was also being terminated. It is useful to
remember in this connection the international character of
these rules, as has been already emphasized above. Rules of
limitation are likely to vary from country to country. Provisions
for extension of periods prescribed for limitation would
similarly vary. We should be slow therefore to put on the word
"discharged from liability" an interpretation which would
produce results varying in different countries and thus keeping
the position uncertain for both the shipper and the shipowner.
Quite apart from this consideration, however, we think that
the ordinary grammatical sense of "discharged from liability"
does not connote "free from the remedy as regards liability"
but are more apt to mean a total extinction of the liability
following upon an extinction of the right. We find it difficult
to draw any reasonable distinction between the words
"absolved from liability" and "discharged from liability" and
think that these words "discharged from liability" were
intended to mean and do mean that the liability has totally
disappeared and not only that the remedy as regards the
liability has disappeared. We cannot agree with the learned
Judge of the Madras High Court that these words merely mean
that "that even though the right may inhere in the person
who is entitled to the benefits, still the liability in the opposite
party is discharged by the impossibility of enforcement."The
27 Supra no. 7.
28 "In any event the carrier and the ship shall be discharged from all liability in respect
of loss or damage unless suit is brought within one year after the delivery of the goods
or the date when the goods should have been delivered."
M/S BHAGWANDAS B. RAMCHANDANI v. BRITISH
AIRWAYS [PAMIDIGHANTAM SRI NARASIMHA, J.]
A
B
C
D
E
F
G
H
556
SUPREME COURT REPORTS
[2022] 11 S.C.R.
distinction between the extinction of a right and the extinction
of a remedy for the enforcement of that right, though fine, is
of great importance. The Legislature could not but have been
conscious of this distinction when using the words
"discharged from all liability" in an article purporting to
prescribe rights and immunities of the shipowners. The words
are apt to express an intention of total extinction of the liability
and should, specially in view of the international character
of the legislation, be construed in that sense. It is hardly
necessary to add that once the liability is extinguished under
this clause, there is no scope of any acknowledgment of
liability thereafter."
13.3 In RM. AR. AR. RM. AR.