The cause of action for damages for non-delivery of goods arises on the date of issue of "C" certificate by the Port Trust declaring their inability to deliver the goods.

GANAPATIA PILLAI, J. :- This appeal is preferred against the decree of an Assistant Judge of the City Civil Court, Madras, awarding Rs. 7290-78 nP. as damages to the respondent railway, payable by the appellant, the Port Trust of Madras. A consignment containing among other packages one package in which six cast steel cross-heads were packed arrived in the port of Madras by S. S. "Clan Maclean" along with other goods on 17-9-1956. The number of packages that arrived by this steamer for the Southern Railway was a little more than 380. A tally receipt was duly issued by the Port Trust and the other packages were delivered to the consignee. But the package in question was missing although it was loaded in the port along with the rest of the consignment.

A claim was made for payment of the value of the goods contained in the missing package on 23-4-1957, by the letter sent by the railway to the Port Trust. A C certificate was issued by the Port Trust as required by the statute on 15-4-1957 regarding to the missing package. Two defences were taken to the action, one of limitation and the other repudiation of liability on the ground that the Port Trust had discharged its duties as a bailee and was not liable for the loss occasioned despite all care taken. The learned Judge negatived both the pleas and granted a decree. The first contention raised by the counsel for the appellant is that the suit was barred by limitation under S. 110 of the Madras Port Trust Act, since it was not brought within six months of the issue of the "C" certificate. Section 110 of the Act reads thus :

"No suit or other proceeding shall be commenced against any person for anything done, or purporting to have been done, in pursuance of this Act without giving to such person one months previous notice in writing of the intended suit or other proceeding, and of the cause thereto, nor after six months from the accrual of the cause of such suit or other proceeding."

We are not concerned here with one months notice but we are concerned with the period of limitation prescribed for the suit, namely six months, from the accrual of the cause of action for such suit. Counsel for the railway contends that the cause of action accrued only when the Port Trust denied liability for the claim made for the value of the goods under the letter sent by the railway (Ex. A-4) on 23-4-1957. According to him the repudiation of liability was made by the letter Ex. A-7 dated 31-8-1957, when the Port Trust denied liability for the claim made by the railway. Consequently, counsels contention is that six months from 31-8-1957 would be the period within which the suit ought to be filed.

There is no direct authority of this Court or any other High Court on the point. The cause of action for the suit must consist of the facts which give rise to the claim actually made in the plaint. The claim in this case consists of a demand for the return of the goods entrusted to the bailee or its value in case the moveable goods are not available for delivery. The Port Trust is in the position of a bailee when it takes charge of the goods landed in the Port for the purpose of effecting warehousing and delivery of the goods to the consignee. The bailee is expected to take care of the goods by storing them properly till delivery is asked for and in this case delivery was asked for even before November 1956, when all the other packages concerned in the consignment had been delivered.

The correspondence between the parties shows that since November 1956 the railway was insisting upon delivery and the Port Trust was putting off giving delivery on the excuse that it was searching the godowns warehouses for the package in question. Ultimately, the railway called upon the Port Trust to issue what is called "C" certificate by which the Port Trust declares that goods landed had been lost while in its custody. Such a "C" certificate was issued on 15-4-1957. The certificate runs in these terms :

"Shed Masters C