When no time is fixed for the delivery of goods and the correspondence between the parties shows that inquiries are being made and there is no refusal to deliver up to well within a year of the suit, then the suit is not barred under Article 31 of the Limitation Act.

Kameshwar Dayal, J.

1. The appeal has come before us on a reference. It is by the defendants. It arises out of a suit for recovery of compensation for non-delivery of 130 maunds of potato. The total claim laid was at Rs. 6,150.00 including the price of bags and interest. The goods were delivered to the Railway Administration on 30-9-1947, at Gauhati for carriage to Hajipur under parcel way bill No. 838133.

2. The case, as put forward in the plaint, is that a large volume of correspondence passed between the parties in the matter of the non-delivery of the goods, but the Railway authorities never said that they were not in a position to deliver the goods; rather they always held out a promise to the plaintiffs that their claim would be settled as soon as the inquiry into the matter was completed. A notice under Section 80 of the Code of Civil Procedure dated 7-10-1948 was duly sent.

Thereafter, the plaintiffs instituted Money suit No. 146 of 1948 in the Court of the Second Subordinate Judge, Muzaffarpur. That suit was dismissed on 19-9-1949 as premature, as it had been instituted before the expiry of two months from the date of the notice. Even during the pendency of the suit, the Traffic Manager, O. T. Railway, Gorakhpur (hereinafter to be referred to as the Traffic Manager) sent a letter for a reasonable settlement of the claim outside Court. Settlement was arrived at, but the amount was not paid. Hence the present suit.

3. The defence, on amongst others, was that the suit was barred by limitation that no second notice under Section 80 of the Code of Civil Procedure had been served and that the claim was highly exaggerated. The Court below, for reasons stated in the judgment, overruled the defence case, and decreed the suit in part as against defendant No. 1 only. The amount of damages was reduced and statutory interest was allowed from the date of institution of the suit till the date of the recovery of damages. The suit against defendant No. 2 was dismissed without costs. Hence the present appeal.

4. Perhaps, by some oversight, defendant No. 2 has also joined this appeal as an appellant. No point, however, on this score has either been raised or argued on behalf of either party.

5. The plaintiffs have filed a cross-objection for higher rates; but, at the time of hearing, this cross-objection was not pressed.

6. Mr. P.K. Bose, for the appellants, has submitted that the case is hit by Article 31 or the Limitation Act and the plaintiffs suit should be dismissed as time barred. Mr. G.C. Mukherji, appearing for the respondents, has contended that, in the circumstances, it should be held that the claim was still within time. Mr. P.K. Bose has submitted that the consignment was booked on the 30th September, 1947. In the normal course, it was expected to reach the destination within a fortnight or a month, as contended by the plaintiffs. Therefore, the suit should have been brought within fourteen months of that date. It is conceded that no time was fixed for the delivery. There are on the record a number of letters by the plaintiffs to the Traffic Manager and the replies thereto by the Traffic Manager to the plaintiff. Exhibit 6/P is a letter dated 25-10-1947 from the plaintiffs to the Traffic Manager, the material portion of which runs as follows :

"Sixty-five bags of potato were moved by parcel from Gauhati to Hazipur under the aforesaid Railway Receipt but the same has not so far been delivered to us.

Since, already the consignment has been unduly delayed in transit and so far there is no news as to its whereabouts shouts we request you to advise us a pay order for Rs. 5,525/- (Rupees five thousand five hundred and twenty-five) only ......"

Exhibit 6/E is another letter dated 12-3-1948 by the plaintiffs to the Traffic Manager, the relevant portion of which is as follows :

"In sending herewith a copy of my letter No. KS/3/47/574, dated 25-10-47, I would like to request you to kindly give its reply at your earliest and se