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High Court Of Calcutta
M. M. DUTT, PARITOSH KUMAR MUKHERJEE
BRITISH AIRWAYS - Appellant
Versus
ART WORKS EXPORT LTD. - Respondent
C. O. 1365 Of 1985
Decided On : 07/23/1985
CARRIAGE BY AIR ACT, 1972 - SECTION 30 - REJECTION OF PLAINT - SUBSISTING CAUSE OF ACTION - LIMITATION - CALCULATION OF PERIOD - LAW OF THE COURT SEIZED OF THE CASE - ARTICLE 30(1) AND 30(2) OF THE SECOND SCHEDULE TO THE ACT - INTERPRETATION - APPLICABILITY OF LIMITATION ACT, 1963.
Fact of the Case:
Plaintiff filed a suit against the defendant, British Airways, for damages caused by the wrongful loss of a consignment of goods shipped through the defendant's airways. The defendant applied for rejection of the plaint under Order 7, Rule 11 of the Civil Procedure Code (CPC), contending that there was no subsisting cause of action and that the suit was barred by the Carriage by Air Act, 1972 (the Act).
Finding of the Court:
The court held that the plaint disclosed a cause of action and that the plea of no subsisting cause of action was not a ground for rejection of the plaint under Order 7, Rule 11(a) of the CPC. The court further held that the question of whether the suit was barred by the limitation period under Article 30(1) of the Second Schedule to the Act required further consideration and could not be determined at the stage of rejection of the plaint.
Issues: 1. Whether there was a subsisting cause of action for the suit? 2. Whether the suit was barred by the limitation period under Article 30(1) of the Second Schedule to the Act?
Ratio Decidendi: 1. The court held that the plaint disclosed a cause of action and that the plea of no subsisting cause of action was not a ground for rejection of the plaint under Order 7, Rule 11(a) of the CPC. 2. The court held that the question of whether the suit was barred by the limitation period under Article 30(1) of the Second Schedule to the Act required further consideration and could not be determined at the stage of rejection of the plaint. The court noted that Article 30(2) of the Second Schedule provided that the method of calculating the limitation period shall be determined by the law of the court seized of the case, and that this provision required consideration of whether the Limitation Act, 1963 would apply for the purpose of computing the period of two years mentioned in Article 30(1).
Final Decision: The court dismissed the defendant's application for rejection of the plaint.
( 1 ) THIS application under S. 115 of the Civil P. C. filed at the instance of the defendant No. 1, British Airways, a Public Limited Company, is directed against Order No. 19 dt. April 25, 1985 of the learned Judge, 4th Bench, City Civil Court, Calcutta dismissing the application of the petitioner under O. 7,r. 11 of the Civil P. C.
( 2 ) THE suit out of which this application arises has been filed by the plaintiff opposite party No. 1, Art Works Export Limited, on March 13,1984 in the City Civil Court, Calcutta against the defendant petitioner and the pro forma defendant opposite party No. 2, the Bank of India, inter alia, for the recovery of a sum of Rs. 23,235/- on account of damages, compensation and interest for wrongful loss caused by the defendant petitioner as carrier to the plaintiff opposite party No. 1. The case of the plaintiff opposite party No. 1 is that on Dec. 10, 1981, a consignment containing 2,400. pcs. 'mulberry Raw Silk 100% pure' hand printed stoles were despatched and/or shipped through the British Airways by air from Dum Dum Airport for discharge at Brussel. The Airways bill is dt. Dec. 10, 1981. The name of the consignee of the goods was Kredite Bank, Narkt Lakeren, Belgium, on account of M/s. Rachana Brugataat 113, 9100, Lakeren, Belgium. The value of the consignment was Rs. 13,000/ -.
( 3 ) UPON shipment of the said consignment through the defendant petitioner, the plaintiff opposite party No. 1 duly made out a bill of M/s. Rachana covering the value of the said consignment and thereupon duly made over the same to the banker of the plaintiff opposite party No. 1 being the pro forma defendant opposite party No. 2 along with the original consignee copy of the said consignment note with a request to the said Bank to collect the proceeds of the said bill on D. P. basis. The Bank was specifically instructed by and/or on behalf of the plaintiff opposite party No. 1 to make over the consignee copy of the said consignment note only upon payment of the value of the said bill.
( 4 ) THE Bank duly forwarded and/or caused to be forwarded the said bill as also the consignee copy of the said consignment note to the consignee thereof for collection from the proceeds of the said bill, but the same were returned unpaid to the opposite party No. 2, the Bank. As far as the plaintiff opposite party No. 1 had been able to ascertain, the said bill as also the consignee copy of the said consignment note were still lying in the custody of the opposite party No. 2. In order to forward the said bill as also the consignee copy of the said consignment note to the consignee thereof in the manner as aforesaid, the plaintiff opposite party No. 1 had to incur bank charges to the tune of Rs. 443/ -. The defendant petitioner by a writing dt. Nov. 16, 1982 informed the plaintiff opposite party No. 1 that the said consignment had been collected by the consignee mentioned in the said consignment note on Dec. 23, 1981 at Brussel.
( 5 ) IT is the case of the plaintiff opposite party No. 1 that without surrender of the consignee copy of the said consignment note, the petitioner could not deliver the said consignment either to the consignee mentioned in the said consignment note or to any other person. The consignee of the said consignment note had confirmed to the Bank that it had neither received the said consignment nor authorised any person to receive the same and had, in fact, returned the said bill as also the consignee copy of the said consignment note to the Bank.
( 6 ) IT is alleged by the plaintiff opposite party No. 1 that the defendant petitioner in breach of the said contract of carriage as evidenced by the said consignment note, had wrongfully and illegally delivered the consignment covered by and under the consignment note to an unauthorised person and/or to a stranger to the said contract and thereby precluded the plaintiff opposite party No. 1 from obtaining the benefits of the said consignment and th
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