Failure to comply with the limitation period and notice requirements under the Limitation Act and Section 80 of the Code of Civil Procedure resulted in the dismissal of the Plaintiff's suit.

R Kaushalendra Rao, J—The only question involved in this appeal by the Defendant is one of limitation.

2. The Plaintiff-Respondent booked a wagon-load of mangoes on the 12th July 1946 from Vellore to Madan Mahal. The wagon reached the destination on the 26th July 1946. Out of the consignment the Plaintiff took delivery of 20 maunds of mangoes which were sorted and found to be in good condition and the rest were not taken delivery of as they had become rotten. By Exhibit P-7 dated the 16th August 1946 the Plaintiff made a claim for compensation for the destruction or deterioration of the mangoes delivered to him. On the 7th April 1947 a notice under Section 80, Code of Civil Procedure was sent and in reply the G.I.P. Railway Administration refused to pay any compensation. The suit was instituted on the 14th July 1948. The Article of the Limitation Act applicable to these facts is Article 30 and that limitation commences when the loss or injury occurs. The injury occurred at any rate not later than the 26th July 1946 when it was discovered that the mangoes had become rotten and unfit for use.

3. Under Section 80 of the Code of Civil Procedure, no suit shall be instituted against the Government...until the expiration of two months next after the notice in writing has been delivered to or left at the office of...

Not only that the Plaintiff cannot institute the suit without giving such notice but he cannot institute a suit till the expiry of two months from the date of the receipt of the notice by the appropriate authority. Section 15(2) of the Limitation Act provides that in computing the period of limitation prescribed for any suit of which notice has been given in accordance with the requirements of any enactment for the time being in force, the period of such notice shall be excluded. In view of these provisions the Plaintiff was entitled to exclude the period of two months of the notice of the suit. The suit should therefore have been instituted not later than the 26th September 1947. This is not disputed by the Defendant.

4. The lower Court, however, has hold that the time taken for disposal of the Plaintiff's claim made under Section 77 of the Railways Act is to be excluded in computing limitation and accordingly the learned Judge excluded all the time from the 26th July 1946 to 21st July 1947. Reliance was placed on - M.A.P. Palanichami Nadar v. Governor-General of India in Council, 1946 AIR(Mad) 133. That case is clearly distinguishable. There a part of the consignment had been delivered on an earlier date and a part remained to be delivered in respect of which the Railway Company after making enquiries for a long time finally informed the consignee that the undelivered articles were not traceable. In such a case for compensation for non-delivery Article 31 of the Limitation Act is applicable and the limitation commences from the date the goods ought to have been delivered. Since the Railway Company was promising to make enquiries and did not notify the consignee of its inability to deliver the goods, the date of communication is the date when the goods ought to have been delivered. In the instant case Article 31 has no application. According to the Plaintiff the goods ought to have been delivered within a week of booking i.e., by the 19th July 1946. In this view the claim is obviously barred by time.

5. The learned Counsel for the Respondent has brought to our notice the decision in - B. & N.W. Railway Co. v. Ramsarup Lal Choudhury,1922 AIR(Pat) 549, where it was held that the consignee was entitled to deduct from the period of limitation the time given by him to the railway company to settle his claim made under Section 77 of the Railways Act. In that case the consignee had asked the railway company to settle his claim within 15 days. This time was excluded under Section 15(2) of the Limitation Act. With great respect to the learned Judges who decided that case, we are unable to accept this interpretation of Section