The expression "when the goods ought to be delivered" occurring in Article 31 of the Limitation Act must be construed as meaning either when the defendant railway finally refused to pay the plaintiffs claim or when it held out final hopes and promised to inform the plaintiff finally shortly, but did not do so thereafter.

Raj Kishore Prasad, J.

1. The sole question for determination in the present appeal is a question of limitation. The question is when limitation is to commence under Article 31 of the Indian Limitation Act, in the case of non-delivery of goods, if no request for delivery of non-delivered goods has been made, but only a claim for compensation for non-delivery of the goods has been made in terms of Section 77, Indian Railways Act? In other words, in such a case, how is the expression "when the goods ought to be delivered" occurring in the third column of Article 31 to be construed to mean and when time would begin to run under Article31.

2. Plaintiffs have appealed from the judgment of Mr. T. P. Mukherji, Subordinate Judge of Darbhanga, dismissing their suit for damages for non-delivery of 120 bags of linseed weighing 273 maunds, which were despatched by them from Samastipur Railway Station, on the then O. T. Railway, for delivery at Lilloah, a station on the then E. I. Railway.

3. The above consignment was booked on the 121th June, 1948, and on the evidence it should have been delivered latest by the 30ih June, 1948, but it was never delivered to the consignee at all. The plaintiffs, the consignors, therefore, sent a notice under Section 77, Indian Railways Act, and thereafter several letters to the Railway Authorities of both the Railways, but they did not receive any reply promising delivery of the goods, or payment of the price thereof as claimed, and, therefore, they brought the present suit, out of which the present appeal arises for damages for non-delivery, after service of a notice under Section 80, Civil Procedure Code.

4. The suit was contested by the defendant railway on several grounds, but, on the present appeal, we are concerned only with one ground, and that is the question of limitation.

5. The learned Subordinate Judge found that as the consignment was not booked by the plaintiffs under any special contract in the shape of any risk note or the like limiting the liability of the Railway Administration for the loss thereof and as no evidence has been adduced by the Railways that the loss of the consignment took place in spite of the necessary care taken by them, the defendant was liable for damages for the loss, if the plaintiffs suit was not barred by limitation.

The learned Subordinate Judge, however, held that the suit was governed by Article31 of the Indian Limitation Act and as the consignment was booked on the 12th June, 1948, and, as the usual time taken in the transit from Samastipur to Lilloah was about 15 to 20 days, the Suit instituted on the 22nd November, 1949 was barred by limitation. On this finding the plaintiffs suit was dismissed.

6. In support of the appeal Mr. Lalnarayan Sinha, Government Advocate; very strongly contended that the view of the law taken by the court below is wrong and that in the circumstances of the present case limitation commenced to run from the 14th February, 1949, when the plaintiffs received the last letter (exhibit 5/c) from the Eastern Railway, and not from the 30th June. 1948, as wrongly held by the court below. Mr. Sinha contended that 14th February, 1949 should be taken to be the date when the goods ought to have been delivered, because the Railway in its last letter (Ext. 5/c) promised to let the plaintiffs know finally shortly as enquiries were under progress, but, actually thereafter the plaintiffs were never informed at all, and, therefore, after waiting for about nine months they were obliged to institute the suit on the 22nd November, 1949.

Mr. Sinhas argument was that in case of non delivery of goods even when a claim for compensation under Section 77, Railways Act, is made, and, finally the railway refuses either to deliver the goods or to pay the compensation, or, if the Railway says that the matter was receiving attention, but ultimately it does not inform the plaintiffs at all, the date of the last letter when the Railway promised to inform finall