The reasonable time for delivery of goods under Article 31 of the Limitation Act, 1908 is that within which the bulk of the goods have been delivered.

G. K. MISRA, J.

( 1 ) DEFENDANT is the petitioner. The plaintiffs case is that a consignment consisting of 219 bags of rice was despatched from Gunupur Railway Station to the plaintiff at Cuttack through the defendant-railway. The defendant delivered 180 bags on 21-9-59 and 33 bags on 31-1-59 to the plaintiff, and the rest 6 bags have not been-delivered. The plaintiff claimed Rs. 316/- as damages The defendant contested the suit only on the ground of limitation. The suit was filed on 26-4-60 and Section 80 notice was served on 9-1-60. According to the defendant, limitation begins from 21-1-59 when the 180 bags of rice were delivered, and after giving margin for 14 months, the suit is barred under Article 31 of the Limitation Act,

( 2 ) THE learned S. C. C. Judge decreed the plaintiff's suit for Rs. 308/- holding that the suit is not barred by limitation. The learned Judge's finding is quoted as follows :

"in the instant case it is admitted by the defence witness D. W. 1 that the despatching station Gunupur being situated in narrow gauge, the consignment in question was despatched in several lots as the wagons in question in the narrow gauge are small ones. This also involves transhipment. At the time of delivery also the consignment has been delivered in two lots at interval of 10 says. In such event, it is only natural to presume that not only the local railway authorities but the plff. as well could be expecting the remaining 6 bags to arrive later. This in fact was conceded by the learned defence advocate who urged that at best a period of 10 days may be allowed with effect from 31-1-59. In my view, till the grant of the shortage certificate Ext. 1 on 27-2-59 the railway must have held out hopes and the plff. must have been expecting for the remaining 6 bags to arrive. I am not able to agree with the defence lawyer that from 31-1-59 to 27-259 is an inordinately long time for the plaintiff to wait for the goods and the local delivery officers to hold out hopes for delivery of goods. In this particular circumstances of the case 27-2-59 shall be construed as the starting point of limitation".

The finding of the learned S. C. C. Judge that the railway must have held out hopes, is contrary to his previous finding wherein he stated "there is no oral and documentary evidence to show specifically that the railway held out hopes of the delivery of the remaining six bags of rice to the plaintiff". 1 have also gone through the evidence in the case and there is absolutely no material that the railway held out hopes to the plaintiff as to when the remaining 6 bags of rice would be delivered. It is elementary that a shortage certificate amounts to neither acknowledgment of liability nor holds out any hope to the plaintiff as to the time of delivery. A shortage certificate is merely evidence of the actual event that certain goods or articles have fallen short with reference to what the plaintiff states to have despatched. It is not also proof of the fact that the quantum of goods claimed to have been despatched was actually despatched unless the consignor proves the quantum of despatch. In certain cases it may be proof of actual loss, but not in all cases. For instance, where the articles are despatched inside a cover, what exactly were despatched is not within the knowledge of the railway excepting that a particular parcel was despatched. In this view of the matter, the learned Judge's finding is based on surmises and no evidence. The rest of the factors relied upon by the learned S. C. C. Judge that the articles had to be transhipped from a narrow gauge railway to a broad gauge railway and the factum of delivery of most of the bags on two different dates would not protect the suit from being hit by limitation.

( 3 ) AS to the meaning and contents of Article 31 of the Limitation Act, which admittedly has application to the facts of this case, their Lordships of the Supreme court have recently pronounced the law in an unreported decision