Suits are not liable to be dismissed on the ground notice had been issued beyond six months.

P. K. MISRA, J. :- These three appeals have been filed by the plaintiff against the common order passed by the learned single Judge arising out of C.S. Nos. 526 of 1997, 386 and 402 of 1998. The present respondent was the defendant No. 2 in C.S. No. 526 of 1997 and Defendant No. 1 in C.S. Nos. 386 and 402 of 1998. The suits were filed claiming different amounts from the defendants 1 to 4 jointly and severally.

2. The basic allegations in the plaint in each case were to the effect that the plaintiff is an exporter of cotton fabrics and was having regular transaction with third defendant organisation based in Kathmandu, Nepal. The plaintiff was making supply of various cotton fabrics. Consignments were made to the third defendant under separate invoices as per the terms of the contract. The first and second defendants, who are the transporters, are supposed to deliver the goods to the third defendant only after the third defendant makes the payment to the fourth defendant bank, by whom the Letter of Credit had been opened. It is further alleged that it is the responsibility of the defendants 1 and 2 not to handover the consignments to the third defendant without verifying the payment made by the third defendant to fourth defendant as the fourth defendant is the collecting bank through the bankers of the plaintiff. The goods had been sent through the Bankers of the plaintiff to the Bankers of the third defendant, namely, the fourth dependant. The primary duty of the defendants 1 and 2 is to deliver goods only after obtaining clearance from the fourth defendant. A grave mistake has been done by the defendants 1 and 2 by handing over the goods to the third defendant without making payment to the fourth defendant. In the clauses relating to consignment it has been clearly indicated that "This consignment will not be detained, diverted, re-routed or re-booked without consignee's bank's written permission". However, without the consent of the fourth defendant, the defendants 1 and 2 delivered the goods to the third defendant in collusion with the third defendant, which was unauthorised. In the Way Bill it was also indicated :

"The consignment covered by this Lorry Receipt shall be stored at the destination under the control of the Transport Operator and shall be delivered to or to the order of the Consignee Bank whose name is mentioned in the Lorry Receipt. It will under no circumstances be delivered to any one without the written authority from the Consignee Bank or its Order, endorsed on the Consignee Copy or on a Separate Letter of Authority."

It is the further case of the plaintiff that because of the unlawful delivery of goods, the plaintiff has sustained loss. It was further indicated that the plaintiff had issued notice dated 19-10-1995 claiming the entire amount payable in three transactions from the defendants 1 to 4 jointly and severally.

3. In the written statement filed by the first defendant, while not denying about the booking of the consignments, it was stated that the goods in question had not been delivered. It had been stated that the first defendant's counter part at Nepal is still keeping the goods in their godown and the goods have not been delivered to the third defendant. It was also stated that notice as contemplated under Section 10 of the Carriers Act had not been issued within the stipulated period of six months and, therefore, the suit was liable to be dismissed.

4. Defendant No. 2, the counterpart of the defendant at Calcutta, filed a written statement simply adopting the written statement of the first defendant.

5. Application Nos. 3042, 2492 and 2009 of 2000 in C.S. Nos. 526 of 1997, 386 and 402 of 1998 respectively were filed on behalf of defendant No. 1, namely, M/s. Prakash Transport, Chennai, (Defendant No. 2 in C.S. No. 526 of 1997) stating that the consignments having been made on 10-10-1994 and 6-1-1995 and since the alleged notice dated 19-10-1994 was beyond six months as contemplated in Sect