1. ' The Ministry of Defence had imported 36 cases weighing 7,437.8 Kgs., from Marseille to Karachi.,The consignment was shipped in entirety and good condition, and packing used was sufficiently strong, to withstand the voyage from Marseille to Karachi. The defendants carried the cargo on board their vessel m.v. Ocean Envoy under bill of lading No,29, dated 21-1-1980 and freight was charged on the basis of the statement contained in the bill of lading. It is alleged in the plaint that before acceptance of the said consignment for shipment, the defendants verified the description, quality, weight, and packing and in token of such satisfaction issued their bill of lading.
2. The said vessel arrived at Karachi on or about 7-2-1980 and discharged the cargo. It was discovered that the goods were not discharged in full quantity and one case No,79-4712 containing chambers weighing 1,230 kgs. Was short-landed. A short-landing certificate was also issued by X.P.T. On 4-2-1981. The consignee claimed from the defendants Rs,4,85,842 being the C & F value of the goods contained in the short landed cases and the insurance premium. According to the plaintiffs the defendants stated that they were making inquiry from the vessel's ports of call to trace the short-landed consignment and they extended the period of liability upto 30-6-1982 The claim was lodged with the plaintiff who executed the letter of subrogation on 1-7-1981. It is alleged that the defendants by several letters extended the period of liability upto 30-9-1982, but neither the goods were delivered, nor Rs,4,85,842 was paid. The plaintiff as subrogee of the consignees filed this suit for recovery of Rs,4,85,842 with interest and cost.
3. ' The defendants filed their written statement taking a preliminary objection that the suit is barred by time. The subrogation made in favour of the plaintiff was also denied, and it was further alleged that the suit is bad for non-joinder of necessary party namely K.P.T. The issuance of bill of lading and carriage of goods was admitted, but it was denied that 36 cases said to contain merchandise were accepted by the defendants under the bill of lading, dated 21-1-4980. It was denied that the price of the goods was mentioned in the list and the same is binding on the defendant. It is alleged that the goods were accepted in external order and condition for carriage and at the time of shipment it was clearly stated that the price of the goods was as declared by the shipper and the description of the goods was not admitted. Likewise the weight and the value was also denied. The weight was accepted for the purpose of calculation of freight. It was admitted that out of 36 cases received for carriage, one case was shown as short-landed by K P.T. The consignees lodged the claim, but it is denied that any ' promise was made or time was extended for inquiry. It is alleged that the defendant had taken full precaution as carrier. On the basis of the pleadings the following issues were framed:-
(1) Whether the suit is barred by limitation?
(2) Whether the plaintiff stood validly subrogated to all the rights and remedies of the consignee/insured at the time of filing of the subject suit?
(3) Whether the defendant can deny the particulars mentioned in the relevant bill of lading? If so to what extent and in regard to which particulars?
(4) Whether the relevant bill of lading was a valid bill of lading?
(5) Whether the defendant is liable to pay the plaintiff's claim in regard to the short-landing? If so to what sum?
(6) What should the decree be?
4. ' Both the parties proceeded with issue No,1 as preliminary issue. No evidence was led by any of the parties and they have relied only on documents filed by them.
5. ' Mr. Salahuddin, the learned counsel for the plaintiff contended that although the goods were discharged on 25-3-1980 the short-landing certificate was issued on 4-2-1981 and as the defendants had extended the time limit from 15-9-1981 for six months w.e.f. 7-8-1981 the suit is within time. On the other hand Mr. Sarmad Usmani, the learned counsel for the defendant has contended that if at all, the period of limitation . Should be computed from the date when the plaintiff came to know about the short-landing which would be when the short-landing certificate was issued on 4-2-1981, the suit is barred by time. He further contended that period of limitation could not be extended by the parties. In this regard reference can be made to a letter of defendants, dated 8-2-1981 from which it seems that the consignees by their letter, dated 17-1-1981 complained about the short-landing but the defendants asked them to make further inquiry at their ends and as well as from K.P.T. Therefore, it seems that on the plaintiff's own showing they were aware of the short-landing even before obtaining short-landing certificate from Karachi Port Trust. Reference can also be made to defendant's letter, dated 1-3-1981 in which a reference has been made to consignee's letter, dated 8-2-1981 regarding claim made by them, and they were asked to make inquiry from K .P.T. Where certain cases were lying in their custody. However, the consignees by their letter, dated 30-8-1981 insisted for payment of their claim. On 15-9 1981 the defendants again asked the consignees to make inquiry from K .P.T . It is to be noted that by a letter, dated 30-8-1981 the consignees had asked for extension of time limit upto 31-12-1981. The defendants replied, "however, as requested we hereby grant you further extension of time limit for six months w.e.f. 7-8-1981 without prejudice for the above claim". They asked for bill of lading and invoices in original for verification. The consignees stated that these documents have already been sent to them, but the defendants insisted that the original documents may be sent and this was without prejudice and without admission of any liability on their part. This is the entire correspondence between the parties for the purpose of issue involved in the suit.
6. ' According to the learned counsel for the plaintiffs as the time for delivery was extended for six months w.e.f. 7-1-1981 and the defendants failed to give the delivery, the plaintiffs were entitled to file suit within one year from 6-2-1982 and as the suit has been filed on 8-8 1982, it is within time.
7. The basic principle to be borne in mind is that the period of limitation fixed by law cannot be extended by consent of the parties. The vessel had arrived on 7-2-1980 and discharged the cargo.
8. The plaintiff had come to know about the short-landing immediately on the discharge of the goods. This is clear from the fact that on 15-7-1980 they had asked for a short-landing certificate from Karachi Port Trust, and the same was issued on 4-2-1981. Then there is correspondence between the parties in which the defendants were not agreeable to accept the claim of short- landing. The consignees then lodged their claim on 21-2-1981. Again the consignees asked to settle the claim by their letter on 30-8-1981. This correspondence continued when other documents were also called for by the defendants and ultimately when the defendants called for further facts and documents by their letter, dated 18 11-1981 they specifically stated that this was without prejudice and without admission of any liability on their part. The consignees in their letter, dated 30-8-1981 requested for an extension of time limit upto 31-12-1981. On 15-9-1981 the defendant stated that they are extending the time limit for six months i.e. Upto 6-2-1982 without prejudice. In the face of the fact that the consignees and the plaintiff had already filed their claim and were seeking compensation for the short-landed cargo, the extension of time was sought by them for no other reason, but to file the suit. The defendants have no , where stated that they were extending the period for payment of the plaintiff's claim. The extension so granted, therefore, cannot extend the period of limitation which is one year from the date when the ship arrived and discharged the goods when the consignee would have normally come to know about the short-landing. After that unless the defendants admit their liability in clear terms or undertake to give delivery of short- landed cargo on a future date the period of limitation cannot be extended. In this regard reference can be made to PLD 1975 Kar.
819. For these reasons by a short order passed earlier the suit was dismissed as barred by time.