A suit for damages for non-delivery of goods by a railway administration is not barred by limitation if the plaintiff was justified in waiting to bring his suit until the defendants had made it clear that they had no intention to deliver the goods.

Das, J.

1. This is a second appeal by the defendant, and arises out of a suit for recovery of damages on account of non-delivery of three bales of cloth by a carrier. The relevant facts are the following.

On 15-9-1943, a consignment of four bales of cloth was hooked by the plaintiffs agent at a station called Cawnpore on the East Indian Railway, as it was then called. The consignment was booked for a station called Ranchi on the then Bengal Nagpur Railway. On 24-12-1943, only one bale of cloth was delivered to the consignee; the other three bales of cloth were not delivered at all. The plaintiff respondent then gave a notice of his claim to the Bengal Nagpur Railway on 6-3-1944 and sent a copy of the said notice to the East Indian Railway Administration as well. A protracted correspondence then ensued. On 24-4-1944, the East Indian Railway Administration wrote to the plaintiff-respondent saying that an enquiry should be made from the Bengal Nagpur Railway Administration and that the East Indian Railway Administration was also making further enquiries into the matter.

On 3-6-1944, the Bengal Nagpur Railway Administration said that the consignment in question could not be traced and asked for further particulars. The plaintiff-respondent supplied further particulars, and on 27-7-1944, the Bengal Nagpur Railway Administration again wrote asking for some more details. The plaintiff-respondent gave more particulars by letters written in the first week of September, 1944. To these letters no reply was given. On 14-9-1944, the suit was instituted against the Bengal Nagpur Railway Administration. On 1-10-1944, the Bengal Nagpur Railway Administration was taken by the Government of India. On 2-12-1944, the Governor General of India in Council was substituted in place of the Bengal Nagpur Railway Administration.

On 7-5-1945, a written statement was filed on behalf of the Governor General of India in Council denying liability and refusing to deliver the remaining three bales of cloth, On 20-12-1945, the plaintiff-respondent filed a petition for amendment of the plaint in order to make it clear that the Governor General of India in Council was impleaded as owner of the East Indian Railway Administration as well. This petition was allowed on 4-1-1946, subject to limitation. On 4-5-1946, the Governor General of India in Council as representing the East Indian Railway Administration fifed another written statement. The suit was thereafter heard and decreed by the Additional Subordinate Judge of Ranchi. There was an appeal which was heard by the learned Additional Judicial Commissioner who dismissed the appeal.

2. As already stated, the appeal has been preferred by the defendant. Mr. P. K. Bose appearing on behalf of the appellant has taken the following points before us. He has addressed to us the contention that the suit was barred so far as the Governor General of India in Council representing the East Indian Railway Administration was concerned, In support of this contention, Mr. Bose has made the following submissions. He has pointed out that only one out of four bales of cloth was delivered on 24-12-1943, and on 24-4-1944 the East Indian Railway Administration wrote their first and last letter referring the consignor to the Bengal Nagpur Railway Administration. Mr. Boses submission is that the suit is governed by Article 31, Limitation Act, and under that Article the period of limitation is one year from the time when the goods ought to have been delivered. Mr. Bose argues that in the present case the goods ought to have been delivered on 24-12-1943 when one bale was made over to the consignee, and the period of one year should be counted from that date; alternatively, he has argued that even if the period of one year is counted from 24-4-1944, the date on which the East Indian Railway Administration wrote their first and last letter to the plaintiff-respondent, still the suit is barred by time; because the Governor General of I