Exclusion of the notice period from the prescribed period for adjudging period of limitation.

This revision petition arises out of a small cause suit instituted by the first and second respondents, for the recovery of Rs. 550-76 on account of non-delivery of one case of goods by the petitioner out of 11 cases consigned to the first respondent through the third respondent steamship company. It is common ground that the petitioner, the Port Trust of Madras, received the 11 cases of goods but did not deliver one case complained of by the first respondent. The second respondent-second plaintiff, with whom the goods had been insured had paid the •claim amount and has become subrogated to the rights of the first respondent-first plaintiff. The suit was therefore filed by both the first and second respondents. The third respondent, steamship company, contended that the suit was not maintainable as against it inasmuch as the particular consignment landed from the vessel had been taken delivery of by the petitioner-Port Trust, who also issued the tally receipt. The petitioner, Port Trust of Madras mainly contended that the claim against it was barred by time under section 40 (2) of the Madras Port Trust Act. The Courts below negatived that contention and decreed the suit as against the petitioner herein. The Trustees of the Port of Madras have presented this revision petition to revise the order of the Courts below.

In order to dispose of this petition, it is necessary to mention certain relevant dates. The steamer in question arrived on 29th September, 1960 at Madras with all the 11 cases of goods consigned as ordered by the first respondent. The Port Trust authorities issued the ‘B’ certificate intimating the short delivery of one case on 29th December, 1960. The Insurance company obtained the necessary letter of subrogation on 1st August, 1961. The present suit was filed on 8th August, 1961 for the recovery of the value of the missing goods. The Port Trust authorities would contend that the suit was barred by limitation under section 40 (2) of the Madras Port Trust Act. The Port Trust authorities have also raised an additional ground that the suit is barred under section 110 of that Act.

Section 40 (2) is to the effect that the Board shall not be in any way responsible for loss of or damage to goods of which it has taken charge, unless notice of such loss or damage shall have been given within one month of the date of the receipt given for the goods under sub-section (3) of section 39. Section 39 (3) says that the Board shall, if required, take charge of the goods for the purpose of performing the service and shall give a receipt in the form and to the effect prescribed from time to time by the Central Government. The contention of the Port Trust authorities is that the consignee-first respondent did not give notice within one month from the date of receipt of the goods and that therefore the suit is barred by limitation. The further contention is that the consignee did not file the suit within six months from the accrual of the cause of action and it is therefore barred under section 110 of the Act. The contention of the plaintiffs on the other hand is that the suit is not barred by limitation as the second plaintiff obtained a letter of subrogation by payment of money on 1st August, 1961 and that the suit was filed within six months from the said date. They further contend that section 40 (2) of the Act would not apply to the facts of the present case, because that section read with section 39 (3) would apply only to shipping companies and not to the consignee, for the notice contemplated in section 40 (2) refers to the notice to be given by the shipping companies. As far as section 110 of the Act is concerned, the plaintiff’s contention is that the limitation should not be taken from the date of issue of ‘B ‘certificate, namely, 29th December, 1960 which merely informed the plaintiffs that one package had not been landed from the steamer finally they received a notice from the first defendant on 4th February, 1961