The starting point of limitation for a suit for compensation for loss of goods consigned to a railway under Article 31 of the Limitation Act is the date when the goods ought to be delivered, which is generally the date when the carrier undertakes to deliver the goods or the date when the carrier informs the consignee that it would be delivered.

Kanhaiya Singh, J.

1. This is a Second Appeal by the plaintiff arising out of a suit for damages for loss of consignment, and the question raised in this appeal is one of limitation. The facts, so far as they are relevant for the present appeal, are as follows:

On 16-12-47, 37 bales of cotton piece-goods were consigned to the railway at Indore for carriage to Dhanbad under Risk Notes A and Z. The goods were to be delivered to the plaintiff. Out of 37 bales, 35 bales were delivered to the plaintiff on 8-1-48. As regards the remaining bales the plaintiffs sought and obtained open delivery on 20-1-48, when it was discovered that one bale was entirely missing and some articles cut of the other bale had been pilfered. On 5-4-48 the plaintiff made a claim to the railway in respect of Rs. 658/ 8/6 on account of the price and incidental costs in consequence of the loss of one bale and some articles out of the other bale. This is exhibit 1. On 24-7-48 the Railway Adminisitration sent to the plaintiff a reply, exhibit 1 (c), stating that the matter was under its special enquiry. Finally, on 11-2-49 the railway sent a reply repudiating liability on the ground that the loss was occasioned by running train robbery. The plaintiff then commenced the present action on 20-7-49. He alleged that this loss was due to misconduct on the part of the Railway Administration. The railway denied liability to pay damages on the ground, first, that there was no misconduct on the part of the Railway Administration or its officers, and, second that it was a case of running train theft. It pleaded also limitation.

2. Both the Courts concurrently held that the loss was due to misconduct on the part of the Railway Administration. They, however, found that the suit was governed by Article 31 of, the Indian Limitation Act and barred by limitation.

3. It will appear that the suit was brought within one year from 5-4-48 when the plaintiff made a demand upon the railway for payment of Rs. 658/8/6 as also from 11-2-49 when the railway finally refused to entertain the claim of the plaintiff. The suit was, however, out of time if the period is computed from either 8-1-48 when part-delivery was made or from 20-1-48 when open delivery was given and one bail was found missing and the other bale was found tampered. In the opinion of the Courts below the starting point of limitation was either 8-1-48 or 20-1-48, and in either case the suit was barred by time. Accordingly, they dismissed the suit.

4. Mr. A. C. Roy appearing for the appellant contended that in, the circumstances of this case the period of limitation must be computed from 11-2-49 when the Railway Administration gave the final reply refusing to pay the plaintiff compensation for the loss of the consignment. His submission was that when the plaintiff sent the letter dated 5-4-48 to the Railway Administration, the latter wrote in reply that the matter was under special enquiry, and therefore until the result of that enquiry was communicated to the plaintiff it was not necessary for the plaintiff to bring the suit, as he during that period all along expected that delivery of the missing articles would be made to him. He submitted further that in such a case the date of the final refusal on the part of the railway must be taken to be the date when the goods will be deemed not to have been delivered within the meaning of Article 31 of the Limitation Act.

Mr. P. K. Bose appearing for the respondent, however, contended that the starting point of limitation was 20-1-48 when the plaintiff was given open delivery. He further submitted that, strictly speaking, there was no correspondence between the plaintiff and the Railway Administration as to whether or not the goods would be delivered. The letter that the plaintiff addressed to the Railway Administration on 5-4-48 was in effect and essence a notice of the claim under Section 77 of the Indian Railways Act and what the Railway purported to say in its reply of d