JUDGMENT
H.L. Tikku, J.
(1) Whether suit is time barred? (I-A) Whether suit filed is maintainable ?
(2) Issue Nos. 1 & 1-A; The only contention raised before me is that the suit on the face of it is time barred and thus, is not maintainable and is liable to be dismissed.
(3) The facts of the case as averred in the plaint, in brief, are that on 17.4.81, the plaintiff through its shipping agents entrusted the deft. two consignments for carriage & freight collect basis to the consignee M/s. Inwear Limited, Montreal (Canada), of the total value of Rs. 2,22,850.00 and the deft. M/s. British Airways issued airway bills which are dt. 17.4.81, pff. is stated to have not heard from the deft. regarding the arrival of the said consignments at the destination for a considerable period and made inquiries vide letter dt. 1.5.81 and its shipping agents vide letter dt. 9.5.81. It is admitted in the plaint that the deft. had vide letter dt. 18.8.81 informed the pff’s shipping agents to give instructions for alternate disposal of the consignments inasmuch as the consignee had refused to take delivery of the consignments. It is not necessary to refer to other facts stated in the plaint although ultimately the deft. intimated the pff. vide letter dt. 16.6.83 that as no instructions had been received for alternate disposal of the consignments the same had been given to a charitable organisation on 13.5.82, So, the pff. claims the amount in the suit with interest @ 10% per annum as compensation for the non delivery of the consignments.
(4) The learned counsel for the deft. has placed reliance on Rule, 29 of Schedule I of the Carriage by Air Act, 1972, which reads as follows: "THEright of damages shall be extinguished if an action is not brought within two years reckoned from the date of arrival at the destination or from the date on which the aircraft ought to have arrived or from the date on which the carriage stopped." (5) He has urged that in the present case, the suit having been brought on 3.12.84, is barred by limitation having been brought more than two years from the date goods arrived at the destination. He has placed reliance on judgment given in Suit No. 165/80. Maharani of India vs. M/s. British Airways Corp. D./9.4.87, by N.N. Goswamy, J. In the cited case, the goods had been delivered by the carrier without release order being received from the Bank. The documents appear to have been negotiated through the Bank. The suit was brought beyond two years of the arrival of the goods at the destination. The Single Judge relying on the aforesaid provisions held that the suit was barred by limi tation. However, these very provisions came up for consideration before D.R. Khanna, J. in M/s. Vij Sales Corp. vs. Lufthansa German Airlines, 1981(2) 2nd (Delhi) 749, and the Hon'ble Judge interpreted Rule 18 read with Rule 29 to mean that these provisions would come into play only if the goods of the consignments are either lost, destroyed partly or wholly or damaged in transit and in case goods are not covered by the said terms then the special limitation given in Rule 29 would not govern the case and ordinary provisions of the Limitation Act, i.e. Article 10 or 11 would cover the case. It is obvious that the right of damage stipulated in Rule 29 has to take its colour from the liability of the carrier indicated in Rule 18 which is : "THEcarrier is liable for damage sustained in the event of the destruction or loss of, or the damage to, any registered luggage or any goods, if the occurrence which caused the damage so sustained took place during the carriage by air.................." (6) It is evident that the case of no delivery of goods to the consignee is not covered by the words used in this particular Rule 18. Hence, the special limitation prescribed in Rule 29 would not cover the case of non delivery of goods. It would cover only the case where the goods have been damaged or lost and not where the goods are not in any manner damaged or lost but had reached the destination and had been delivered to a third person, may be an unauthorised person.
(7) Counsel for the deft. has made reference to American Export I. Lines Inc. vs. Joe Lopez . In this case, the Supreme Court was interpreting the provisions of Carriage of Goods by Sea Act, 1925. The provision which came up for consideration is differently worded than the provision in Rule 18 and Rule 29 of the Carriage by Air Act, 1972. In the Act under consideration by the Supreme Court, the case of non delivery of goods was stated to be covered by Clause (3) of para 6 of Article III. Hence, it was held that the special period of limitation would apply to such a case.
(8) Similarly in East and West Steamship Co. vs. S.K. Ramalingam , again the provisions which were considered were of the same Act as were considered by the Supreme Court in the latter judgment mentioned above. In my opinion, the ratio given in Vig Sales Corpn. (supra) appears to be more appropriate and I agree with the same. 1 would have referred the matter to the larger Bench in view of the conflict between the judgments of Khanna, J. and Goswamy, J., but as the present case can be disposed of on another point, so I do not think it useful to refer the matter to a larger Bench.
(9) Counsel for the defts. also cited Handicrafts Emporium vs. Pan American World Airways Mr 1984 Delhi 396. This was also a case of delivery of goods by the carrier to unauthorised persons and the Court was inter- pretating Rule 30 of the Second Schedule of the Carriage by Air Act, 197 , and held that the suit has to be brought within two years which are to be reckoned from the date of arrival of the the goods at the destination. I may mention that neither in this judgment delivered by Goswamy, J. the reasoning given in the earlier judgment of Khanna, J. have been noticed, rather that judgment appears to have been not cited before the Hon’ble Judges.
(10) Be that as it may, in the present ease, obviously if we are to hold that special period of limitation given in Schedule I of the Carriage by Air Act is not applicable then either Article 10 or Article 11 of the Limitation Act would apply. The present is a case of non-delivery of the consignment in accordanee with the airway bills and thus. Article 11 of the Limitation Act clearly applies which prescribes a period of three years for bringing a suit against the carrier for compensation for non delivery and the period is to commence from the date when the goods ought to be delivered. The words “ought to be delivered” have been interpreted by the Supreme Court in East and West Steamship Co. (supra), to mean the date when the goods should have been delivered and the same words were interpreted by the Supreme Court in Boota Mal vs. U.O.I., , to mean that the time would begin to run after a reasonable period had lapsed on the expiry of which the delivery ought to have been made. It was held that the words “when the goods ought to be delivered” can only mean that the reasonable time taken in the carriage of the goods from the place of dispatch to the place of destination. It was held that the fact what is the reasonable time must depend upon the circumstances of each case and the further fact that the carrier may have to show eventually what is the reasonable time for carriage of goods would make no difference to the interptetation of the words used in the third column of Article 31 (which is similar to Articles 10 and 11 of the present Limitation Act). So, in the present case, it is evident from the averments made in the plaint itself that the goods had reached the destination prior to 18.8.81; that the letter was issued by the defendant requiring giving of alternate instructions for disposal of the goods inasmuch as the consignee is stated to have refused to take delivery of the goods. The suit ought to have been filed at least within three years of of the said date and it has been filed beyond three years from the said date, then on face of it is barred by limitation. Issues are decided against the plaintiff.