1. ABDUL RAHIM KAZI, J.- The facts of the suit briefly are that the plaintiffs had imported .Textile Machinery from England as per Invoice No.1488 dated 10.9.1971 which Textile Machinery was packed by the Shipper in 136 cases. The said 136 cases were delivered to defendant No. 1, the carrier, at the port of Liverpool for carriage and delivery at Karachi. These cases were received by the defendant No. 1 in good order and condition which were shipped to Karachi as per vessel "RUPSA" vide Bill of Lading Norphlet 92 dated 24.9.1971 issued by the defendant No. 1. The vessel is said to have arrived at Karachi Port on 6.11.1971 and the consignment is also said to have been discharged about the same time. The defendant No. 1 issued the delivery order in consequence of which the consignment was delivered by the defendant No.3 to the plaintiffs but it was found that one case bearing No.293 was short-landed. The defendant No.3 issued such provisional short landing certificate on 30.12.1971 stating that the short landing of one case has been shown in the vessel. Out Turn Report. It is further contended by the plaintiffs that some of the cases delivered to the plaintiffs were also found in damaged condition and, therefore, survey was made through the Surveyors who submitted their survey report dated 12.1.1972 and consequently on 18.5.1972 the plaintiffs lodged the claim for 4221.80 for non-delivery of one case and for damage and loss as reported by the surveyors. The defendant No.2 is said to have admitted the plaintiffs claim for 504.85 plus Rs.2,077.34 for shortage/breakage and regarding one short-landed cases they advised the plaintiffs to pursue their claim against the defendant No. 1. According to the plaintiffs they had been pursuing their claim with the defendant No. 1 who twice extended the period of limitation for filing of the suit and through their various letters had been intimating the plaintiffs that their case was being considered. The various letters referred to by the plaintiffs in their suit are letters dated 2.11.1972,15.2.1973,16:2.1973,9.7.1973.30.7.1973,22.9.1973 and 6.8.1974. The plaintiffs then not having been compensated by the defendant No. 1 Filed the present suit on 5.8.1975. The defendants filed their respective written-statements denying the claim of the plaintiffs. However, the plea of limitation was also raised. The issues in the suit were settled on 4.9.1977 and the matter came up for evidence on 31.10.1990 when it was ordered by consent of the learned counsel for the parties that issues No. 1 and 9 may be heard as preliminary issues. It was also agreed by consent that the said issues to be heard and decided on the basis of pleadings and documents brought on record by the parties which for the specific purpose be treated to have been duly admitted. The said issues No. 1 and 9 are as under:- Issue No. 1:Is the suit barred by time?.
2. Issue No.9: Is the suit against the defendant No.3 barred under section 87 of the Karachi Port Trust Act?
3. I have heard learned counsel for the parties.
4. Issue No. 1.
5. Mr. M.H. Siddiqui, learned counsel for the plaintiffs, has submitted that in this case consignment is said to have been discharged within about one week's time of 6.11.1971, the date on which the vessel arrived at Karachi. He has further submitted that the suit is only with regard to compensation for short-delivery of one case containing textile machinery. According to the learned counsel the present case is governed under Article III Rule 6 of the Carriage of Goods by Sea Act and period of limitation is governed by Article 31 of the limitation Act where the claim for compensation is against the carrier and article 86 of the Limitation Act where the claim is based on the policy of insurance against the Def. No.2. The limitation in the first case is one year to be computed from the date when the goods ought to be delivered while in the second case the period of limitation is 3 years from the date of the occurrence causing loss. The learned counsel has further submitted that in view of the above letters it is evident that the defendant No. 1, carrier, had on two occasions extended the period of limitation for filing of the suit and through their subsequent letters they have been keeping plaintiffs on the hopes that their case is under consideration and there being no clear refusal on their part the limitation would be deemed to have been extended. He has placed reliance on the following cases:- 1) Abdul Jalil Chandhary vs. The Muhammadi Steamship Company Ltd, and another (PLD 1961 S.G.
6. 340), 2) Yousuf & Co, vs. Oriental Steam Co. (1987 CLC 9611.
7. 3) Gulzar Ahmad vs, Sindh Punjab Goods Transport Co. (PLD 1966 W.P. Karachi 253).
8. Mr. Khalid Rehman, learned counsel for the defendant has vehemently opposed the submission of the learned counsel for the plaintiffs. He has submitted that none of the abovesaid cited letters the defendant No. 1 had kept the plaintiffs on hopes but in almost the other letter the defendant No. 1 had clearly shown their inability to deliver the said missing case. He also pointed Out that at one stage defendant No. 1 had categorically asked the plaintiffs to accept 100 by way of compensation but the same was denied by them. He has further submitted that even if the first two letters as mentioned above to be taken to have purportedly extended the period of limitation, the same would be of no legal consequence as the defendant No. 1 could not extend the statutory period provided under Limitation Act. He has placed reliance on following cases:- 1) The Chittagong Steamship Corporation Limited vs. The Central Insurance Company Limited (P.L.A. No.174 of 1967), decided on 19.3.1985.
9. 2) Deutsche Dampschiffaharts-Gesellschaft and another vs. Central Insurance Co. Ltd. Karachi (PLD 1975 Karachi 819).
10. Mr. Abdul Rauf, learned counsel for the defendant No.2, Insurance company, has submitted that admittedly the loss of one case came to the knowledge of the plaintiffs at the time when consignment was OF leaded which was in the month of November 1971 or at the most on 30.12.1971 when the short- landing certificate was issued and the suit having been filed on 5.8.1975 is on the very face of it barred by limitation under Article 86 (b) of the Limitation Act.
11. I have considered the above submissions of the learned counsel for the parties, lt is an admitted position that the consignment was delivered at Karachi Port during about second week of November 1971 for which a short landing certificate was issued by K.P.T on 30.12.1971. Obviously, therefore, this date can be said to be termin us a quo for filing of the suit and a period of one year from . This date as provided under Article 31 of the Limitation Act would expire by second week of November 1972 or by 29.12.1972. Before taking up the legal aspect, I would first take up the abovesaid letters referred to by the plaintiffs counsel. The two letters i.e. 2.11.1972 and 15.2.1973 are alleged to have been written by the defendant No. 1 whereby they have extended the limitation up to 2.2.1973 and 2.5.1973. These letters show that this has been done by the defendant No.2 "without prejudice and without admission of any liability". Accordingly it cannot be said that defendant No. 1 by this letter has admitted the liability. It may be observed that the other letter dated 16.2.1973 shows that the defendant No. 1 had advised the plaintiffs to recover their loss from their Under- Writer while the letter dated 9.7.1973 shows that the defendant No. 1 had offered to pay a sum 100 being their maximum liability under the provisions of Carriage of Goods by sea Act. The other letters were being written by the defendant No. 1 -to the plaintiffs only in reply to their letters and cannot be said to have any effect on the period of limitation. Even if the same were to be treated as the extension of period of limitation the same would be of no legal consequence. In case of Abdul Jalil Chaudhry vs. The Muhammadi Steamship Company Ltd, and another (PLD 1961 S.C. 340) their lordships have observed of pages 345/346 as under:- "These are the considerations which, in our opinion, should govern the determination of the period of limitation in a case arising under clause 6 of Article III of the Schedule to the Carriage of Goods by Sea Act. 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- petition India and after Partition the same view was taken in the West Pakistan High Court vide Firm Muhammad Saddiq Imam Din v. The Federation of Pakistan (1), a decision of SA. Rahman, 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, for 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 correspondence going on between the carrier and the consignees, and the carrier was willing to give and the consignee was willing to take delivery, so that there was impliedly an extension of time till there was refusal to give delivery or excression of inability to do so."
12. The above observation of the Hon'ble Supreme Court were considered by Saeeduzzaman Siddiqui, J. (as his lordship then was) in case of National Insurance Corporation (1985 C.L.C. 360) wherein his lordship has held:- "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 It 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, It 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."
13. "In the present case, the limitation for filing of the suit, started on It August, 1982,\when short landing certificate was issued to the plaintiff by the Karachi Port Trust. The mere fact that consignee had profer 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 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."
14. In the above cited case of National Insurance Corporation a reliance may also be placed on the case of DEUTSCHE DAMPSCHIFF FAHARTS- GESELLSCHAFT AND ANOTHER VS. CENTRAL INSURANCE CO.
15. LTD. KARACHI (.PLD 1975 Karachi 819) wherein a Division Bench of this Court had held:- "But, in the instant case, as the consignee has received its cargo nearly two years before the respondent filed its suit, there can be no question o. Extending the time for the performance of the contract of affreightment, nor of entering into a fresh contract for the delivery of what had been delivered. Accordingly, the judgment cited is completely irrelevant to the instant case, and, as the consignee had admittedly received its cargo rearly two years before the respondent filed its suit, its claim is hit by limitation."
16. Lastly in the unreported. Judgment in the case of Chittagong Steamship Corporation Ltd. Vs. The Central Insurance Company Limited (LPA No.174/67) a learned Division Bench of this Court have taken into consideration the above cited case DEUTSCHE DAMPSCHIFFFAHARTS-GESELISCHAFT AND ANOTHER vs. CENTRAL INSRUANCE CO. LTD. KARACHI (PLD 1975 Karachi 819) and National Insurance Corporation vs. Pakistan National Shipping Corporation (1985 CLC 360) has observed:- "The extension of one year period contained in the above quoted telegramme Ex.8/16 and confirmed by the above appellants' agent by their above letter dated 19.6.1964 Ex.8/17 is of no legal consequence as the above agreement for extension of limitation period was not enforceable in law."
17. In view of the above discussion I am inclined to answer this issue in affirmative as against the defendant Nos. 1 & 2 holding the. Suit to barred by time Issue No.9.
18. On this issue Mr. Zahiruddin Khan, Barrister-at-Law appearing for the defendant No.3 has referred to the provisions of section 87 of the Karachi Port Trust Act which reads as under:- "
87. No suit 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 month's previous notice in writing of the intended suit and of the cause thereof, nor after six months from the accrual of the cause of such suit.
19. And, in the case of a suit for damages, if tender of sufficient amend? Shall have been made before the suit was brought, the plaintiff shall not recover more than the amount so tendered and shall pay all costs incurred by the defendant after such tender."
20. In view of the above legal position .The learned counsel for the plaintiffs has conceded that the suit against the defendant No.3 is barred by time.
21. In view of the above findings the suit is dismissed as barred by limitation with no order as to costs.