1. The plaintiff, proprietor of M/s. Maxwall and Co., Chittoor Road, Ernakulam, is the revision petitioner. He instituted a suit for recovery of a sum of Rs. 29,254-85Ps, and interest from the defendants. The suit arose under the following circumstances:

2. A consignment of tin plates was shipped for the plaintiff in the ship belonging to the 1st defendant under a clean bill of lading, to deliver at Cochin, 15 skids of tin plates of gross weight 39100 Ibs. in the same condition in which the commodity was entrusted to them at New York. Originally the goods were sent through s. s. "Ex. Minister" (Flying Cloud); but contrary to the terms and conditions of shipment, the goods were transhipped at Colombo through another ship s. s. 'Azumasan Maru". According to the plaintiff, the goods were damaged even at the time of transhipment at Colombo due to neligence and misfeasance of the 1st defendant and their employees and agents. The ship s. s. "Azumasan Maru" arrived at Cochin Port on or about 19 67- The plaintiff authorised their agents to take delivery of the goods; but the consignment was unascertainable as the tin plates were completely loose, rusty and damaged and mixed up with other tin plates of other consignees. The claim bill was sub-mitted to defendants 1 and 2 on 61167. The 2nd defendant conducted the survey at Port Quay Side on 9 5 68 and at the plaintiff's godown on 4-6-68. The survey disclosed that the consignment was landed with less weight of 4.349 metric tons of tin plates and that the tin plates weighing 11.182 metric tons were rusty and damaged and only 1.932 metric tons of tin plates were in sound condition. Only at the time of survey the goods of the plaintiff could be ascertained and surveyed. Accordingly the delivery could be given only on 9568.

3. The defendants contended 'inter alia' that the claim is barred by limitation and that the plaintiff has no cause of action against them. According to them, the goods were discharged in the Cochin Port on or about 2nd to 7th September, 1967 and as the claim has been brought beyond one year from that date it is barred. The learned Subordinate Judge took up the question of limitation as a preliminary issue and has held by his order dated 21st July, 1970 that the plaint claim is time barred. Under clause (3) of Para 6 of Art.III of the Indian Carriage of Goods by Sea Act, 1925, the period of limitation is one year from the date of delivery of goods or the date when the goods should have been delivered. According to the learned judge, the suit having been filed more than one year after the ship left the port and after the submission of the claim, the cause of action has been extinguished and the suit is accordingly barred. The plaintiff .would maintain that limitation can run only from the date of delivery and as the goods were unidentifiable, delivery was possible only after the survey, which took place only on 9 5 68. The period of one year expired on 9 5 69; but as the vacation intervened, the suit was filed on the re-opening date, viz., on 24 5 69. Thus the suit is within time.

4. The question for consideration is whether for purposes of limitation the date to be taken into consideration is the date on which delivery was effected or the date on which the goods should have been delivered. This would take us to the further question whether the case on band is one of short delivery as distinguished from the entire failure to deliver. In the case of the former the limitation would run from the date of delivery, while in the latter case, limita-tion will run from the date when the goods should have been delivered. Clause (3) of Para 6 of Art. Ill of the the Schedule' to the Indian Carriage of Goods by Sea Act, 1925 (hereinafter referred to as the Clause) reads as follows:

"In any event the carrier and the ship shall be discharged from the liability in respect of loss or damage unless suit is brought within one year after delivery of the goods, or the date when the go