1. ' This suit for recovery of a sum of Rs.3,62,286.35 is filed by the plaintiff against the defendant on the basis of a letter of subrogation for non-delivery of two cases containing stores worth Rs.5,48,915.45.
2. The defendant on being served in the case filed an application under Order VII, rule 11, C.P.C. for rejection of the plaint on the ground that the suit as instituted on 10th September, 1983, is time- barred. The application under Order VII, rule 11, C.P.C. was, however, rejected by me on 5-2-1984, as after hearing the learned counsel for the parties I felt that in order to decide the plea of limitation it is necessary to record evidence in the case. While rejecting the above application I directed the defendant to file written statement within two weeks and further observed that after written statement is filed by the defendant the following issue will be tried as a preliminary issue in, the suit:- "Whether the suit is within time."
3. ' The written statement by the defendant has since been filed and accordingly the suit came up for hearing of preliminary issue on 2-4-1984.
4. ' The learned counsel for the parties did not produce any oral evidence on the above issue and by consent agreed that the documents filed by them with the plaint and the written statement and those produced in Court at the time of arguments may be accepted in evidence. I heard the learned counsel for the parties on the above preliminary issues and finding thereon is as follows:- ' It is an admitted position that in 1981, 54 cases containing defence stores were shipped from Merceilles, France to Karachi on the Ship "Rangamati". The said ship arrived at Karachi Port on 25- 7-1981, and thereafter discharged the cargo. Upon completion of the discharge of goods from the vessel it was found that two cases out of 54 were missing. The two cases could not be traced out in spite of best efforts by the Karachi Port Trust and the defendant. Ultimately Karachi Port Trust issued a short landing certificate dated 1-8-1982 confirming the short landing of two cases out of above consignment of 54 cases. On the basis of the above short landing certificate issued by the Karachi Port Trust the consignee lodged their claim with the defendant on 28-2-1982 but the defendant accepted the claim only for 'a sum of Rs.3,720. The consignee declined to accept the above amount offered by the defendant in full and final settlement of their claim. The plaintiff which is an Insurance company, in the meantime paid sum of Rs.3,62,286.35 to the consignee in settlement of their claim and obtained a letter of subrogation to file the present suit.It is common case of the parties, that the suit is governed under Article 31 of the Limitation Act which reads as under:-
31. Against a carrier When the goods ought for compensation One. Year to be delivered for non- delivery of, or delay in delivering goods.
5. ' From reading of above article of Limitation Act, it is quite clear that the suit against the carrier for compensation for non-delivery of goods is to be brought within one year from the date when the goods ought to be delivered. It is admitted before me that the vessel carrying about 54 cases of defence stores arrived at Karachi Port on 25-7-1981 and discharged the cargo by or about 24-8- 1981. It is accordingly contended on behalf of defendant that the suit for non-delivery of cases should have been instituted within one year from 24-8-1981, on which date the consignee became aware of the loss of two cases which were short landed. The learned counsel for the plaintiff on the other hand contends that the period of one year prescribed under Article 31 of the Limitation Act started from the date when the goods ought to be delivered and since the defendant informed the consignee by their letter dated 13-12-1982 that they have accepted the claim of the consignee in the sum of Rs.3,720, therefore, the date on which the delivery was finally refused by defendant was 13-12-1982, which is the starting point of limitation in this case. The expression "When the goods ought to be delivered" used in Article 31 of the Limitation Act has been subject of discussion in a number of cases. Reference in this connection may be made to the cases of River Steam Navigation Co. Limited v.Dada Limited PLD 1959 Dacca 672; Firm Mohammad Sadiq v. Federation of Pakistan PLD 1956 Lah. 1093; Abdul Jalil v. Muhammadi Steamship Co.PLD 1961 SC 340 and Hollan Bengal Burmah Line v. Dawood Corp. Ltd. PLD 1961 Dacca 39.
6. ' A reading of the above cases will show that the starting point of limitation under Article 31 is the date on which the consignee has notice that delivery cannot be given to him. In Abdul Jalil's case the Supreme Court while interpreting Artiele 31 of the Limitation Act made the following observations at pages 345 and 346 of the report which I respectfully reproduce here:- "We may point out that Article 31 of the Limitation Act is in almost identical terms with clause 6, and we see no reason to place on this clause an interpretation different from that which has been placed on Article 31. There are a large number of decisions under Article 31 wherein it has been held that limitation starts only when the Railway authority either refuses, or expresses its inability, to give delivery. There was almost a consensus of opinion on the point in pre-Partition India and after Partition the same view was taken in the West Pakistan High Court vide Firm Mohammad Siddiq Imam Din v. The Federation of Pakistan, a decision of S.A.Rehman, C.J. and A.R. Changez, J, where a number of cases are cited. Unfortunately, these decisions do not explain the basis on which this conclusion could be reached, or Article 31 does not speak either of refusal or of inability to deliver, but all these decisions can be shown to be correct on the ground that in these cases there was correspon dence going on between the carrier and the consignee, and the carrier was willing to give and the consignee was willing to take delivery, so that there was impliedly and extension of time till there was refusal to give delivery or expression of inability to do so."
7. ' Keeping in view the above principles I will now examine the facts of the present case in order to find out the date on which the plaintiff had notice that delivery of the two missing cases could not be given to them. The parties have produced the following documents by consent:-
(i) letter, dated 9th December, 1982, written to the consignee by the defendant in respect of claim of the consignee regarding two missing cases;
(ii) letter, dated 12th January, 1983, addressed to the consignee by the defendant in response to the letter of the consignee, dated 13th December, 1982;
(iii) letter of subrogation, dated 25-9-1983 issued to the plaintiff;
(iv) claim submitted by the consignee to the defendant in respect of two missing cases alongwith photo copy of the letter, dated 23rd September, 1982;
(v) bill of lading in respect of 54 cases;
(vi) original short landing certificate, dated 1-8-1982 and
(vii) a photostat of the letter, dated 6th November, 1982.
8. ' From the above documents it is sufficiently established that the matter was under negotiation with regard to the delivery of the two missing cases until 1-8-1982 when the Karachi Port Trust issued a short landing certificate to the consignee confirming the short landing of these two cases.
9. There is nothing on record to show that after 1st August, 1982, there was any further promise on the part of defendant to trace out the said two missing cases and offer their delivery to the consignee.
10. In these circumstances it is obvious that the consignee had notice on 1-8-1982 when the short landing certificate was issued to them by Karachi Port Trust, that the defendant was not in a position to offer them the delivery of the two missing cases and, therefore, the period of limitation started running on 1st August, 1982. The suit for compensation of non-delivery of the said consignment, accordingly, should have been instituted within one year of the said date, namely, 1st August, 1983. The present suit has been filed in this Court on 10th September, 1983, which is beyond one year and is, therefore, beyond time. The learned counsel for the plaintiff contended that since th claim for missing 2 cases was submitted to the defendant and they accepted the claim in the suit of Rs.3,720 on 9-12-1982, therefore, the period of limitation should be counted from that date.
11. The argument has no force. It is clear from reading of Article 31 of the Limitation Act, that the period prescribed for filing of suit for compensation for non-delivery of consignment starts running from the date when the goods ought to be delivered. The Courts have consistently interpeted the expression "When the goods ought to be delivered" as the date on which the consignees has notice that the goods could not be delivered to him. Therefore, the date of acceptance of claim of consignee by the defendant for loss of consignment has no relevance to the starting point of limitation for the suit under Article 31 of the Limitation Act. In the present case, the limitation for filing of the suit, started on 1st August, 1982, when short landing certificate was issued to the plaintiff by the Karachi Port Trust. The mere fact that consignee had prefer a claim on the basis of the above short landing certificate to the defendant which was under their consideration could not have the effect of reviving the period of one year prescribed under Article 31 of the Limitation Act for filing of suit, from the date of such acceptance of the claim by C the defendant. I, therefore, hold that the suit as instituted on 10th September, 1983 is beyond time and reject the plaint in the suit as time- barred. There will, however, be no order as to costs.