ORDER
Shyamal Kumar Sen, J.
1. This is an application by the Shipping Corporation of India Limited, the defendant in the above suit for an order that the above suit be dismissed.
2. It is the ease of the petitioner that it appears from the plaint that the cause of action of the plaintiff is based on non-delivery and/or short landing of 28 pieces of tin-ingots stated to have been curried by the vessel, M. V. Vishava Madhuri (hereinafter called as the said vessel) under the Bill of Lading No. S/CAL/5 dt. Jan. 7, 1984. According to the plaintiff, the said vessel arrived at the Fort of Calcutta on Jan. 27, 1984 and that a Steamer Survey was conducted on Feb. 3, 1984 and upon such survey a quantity of 28 pieces of tin-ingots was found short.
3. It is the further case in the plaint that the Calcutta Port Trust has issued a short landing certificate in the prescribed form on May 7, 1984 certifying that the 28 pieces of tin-ingots were short landed.
4. The said vessel on that particular voyage sailed away from the Port of Calcutta on 28th Feb., 1984 after discharging all her cargo. Under Article III, Rule 6 of the Hague Rules which is statutorily recognised in India by the appropriate legislation known as Indian Carriage of Goods by Sea Act. 1925, the vessel is discharged from all its liabilities if no suit is filed within one year of the date when the goods were delivered or should have been delivered. In case of alleged short landing and/or short delivery, the time of one year, as judicially determined, is to be computed from the date when the vessel carrying the cargo stated to have been short landed, sails away from the Port on that particular voyage.
5. It is the contention of the petitioner that the suit has been filed beyond one year of the date when the goods were delivered or should have been delivered. It is not in dispute as appears from the plaint that the suit was filed beyond one year of the date when the goods were delivered or should have been delivered but in para 13 of the plaint the plaintiff has stated as follows : —
“The time limit of 12 months has been duly extended by 6 months by the defendant with effect from Jan. 27, 1985 vide Endorsement in writing dt. Jan. 24, 1985 made on the copy letter dt. 24th January 1985 of the plaintiff claiming such extension. In the premises, the defendant is not discharged from its liability to pay the said sum of Rs. 2,32,846.10p. to the plaintiff for reasons stated above.”
On the averment of the plaint itself it is admitted that the suit was filed beyond one year of the statutory period but only question is whether such time statutorily fixed can be extended as pleaded in para 13 of the plaint and what is the effect of Article III of Rule 6 of the Indian Carriage of Goods by Sea Act, 1925. The Article III of Rule 6 provides as follows : —
“Unless notice of loss or damage and the general nature of such loss or damage be given in writing to the carrier or his agent at the port of discharge before or at the time of removal of the goods into the custody of the person entitled to delivery thereof under the contract of carriage, or, if the loss or damage be not apparent, within three days, such removal shall be prima facie evidence of the delivery by the carrier of the goods as described in the bill of Jading.”
6. The learned Counsel appearing for the petitioner states that Article III Rule 6 actually is not a rule of limitation but it imposes a time limit of one year within which the suit has to be instituted and in default of which there will be a total extinction of liabilities. In fact the words used also in that article clearly states that in any event the carrier shall be discharged from all liability in respect of loss or damage unless the suit is brought within one year after delivery of the goods or the date when the goods should have been delivered. The learned Counsel submits that in view of the express provision in the statute there is total extinction of liability and there is no scope for such extension of time as has been pleaded in paragraph 13 of the plaint. The learned Counsel further submits that there is no scope for contracting out of the statute. In this connection, learned Counsel has cited several decisions of the Hon’ble Supreme Court and also of this Court. The learned Counsel has relied upon a case East and West Steamship Co., Georgetown, Madras v. Ramalingam Chettiar in support of his contention. At page 1065 of the said report the Supreme Court has dealt with the question whether the provision in Article III, Rule 6 is one of limitation or of extinction of right. In dealing with that question the Supreme Court also observed that if the provision was one of limitation there will be some scope for argument. In the facts of that case the period was extended by acknowledgment of liability within the meaning of Article 19 of the Limitation Act. The question that has to be decided is whether in saying that the ship or the carrier will be discharged from liability, only the remedy of the shipper or the consignee was being barred or the right also being terminated. The Supreme Court observed as follows : —
“It is useful to remember in this connection the international character of these rules, as has been already emphasised above. Rules of limitation are likely to vary from country to country. Provisions for extension of periods prescribed for limitation would similarly vary. We should be slow therefore to put on the word ‘discharged from liability’ an interpretation which would produce results varying in different countries and thus keeping the position uncertain for both the shipper and the ship-owner. Quite apart from this consideration, however, we think that the ordinary grammatical sense of ‘discharged from liability’ does not connote free from the remedy as regards liability’ but are more apt to mean a total extinction of the liability following upon an extinction of the right. We find it difficult to draw any reasonable distinction between the words “absolved from liability” and ‘discharged from liability’ and think that these words “discharged from liabilites” were intended to mean and do mean that the liability has totally disappeared and not only that the remedy as regards the liability has disappeared. We are unable to agree with the learned Judge of the Madras High Court that these words nearly mean that ‘that even though the right may inhere in the person who is entitled to the benefits, still the liability in the opposite party is discharged by the impossibility of enforcement’. The distinction between the extinction of a right and the extinction of a remedy for the enforcement of that right, though fine, is of great importance. The Legislature could not but have been conscious of this distinction when using the words ‘discharged from all liability’ in an Article purporting to prescribe rights and immunities of the ship owners. The words are apt to express an intention of total extinction of the liability and should, specially in view of the international character of the legislation, be construed in that sense. It is hardly necessary to add that once the liability is extinguished under this clause, there is no scope of any acknowledge of liability thereafter.”
7. The learned Counsel thereafter cited the case American Export Isbrandtsen Lines Inc. v. Joe Lopez, which reiterated the principle decided earlier by the Supreme Court (supra). The other case cited by the learned Counsel Konsumex v. Anand & Co., which was also an application for dismissal of the suit as the suit was filed beyond one year prescribed under the statute. There the learned Judge after considering the facts and circumstances of that case allowed the prayer of the petitioner and dismissed the said suit as the said suit was filed beyond one year. Against the said judgment of the learned Judge the plaintiff in the said suit preferred an appeal. The learned Counsel for the petitioner referred to the unreported decision in the said appeal of the Division Bench of this Court which affirmed the decision of the learned single Judge. While passing the said judgment the Division Bench held as follows : —
“It was next contended that by the express provision of the different articles, read in conjunction with Article 1(b), Article 2, Article 3, Article 5 and Article 6, dealing with special conditions, which it may not be quite possible to accept that contention that there was express provision of contracting out of any of this article, we are in agreement that all these articles indicate by necessary implication the intention of the legislature was that it was not possible to contract out any of these provisions, including Clause (6) of Article 3, which we have set out hereinbefore. If this is the position, then whether public rights could be waived or private rights could be waived and what should be differentia between private right and public right and we must observe that this point had been argued at great length and our attention was drawn to several authorities, including observations of Craies on Statute Law, 17th Edn. pp. 269, 270, 271, Maxwell 11th Edn., p. 376,378 and Crawford on Statutory Interpretation, p. 543 and also certain observations of Graver’s “Carriage By Sea” 12th Edn. at page 196 Article 196 onwards. For our present purpose it is sufficient to hold that in view of the nature of the application involved in Clause 6 and in the background of Brussel’s convention and preamble to the Indian Carriage of Goods by Sea Act and the observations of the Supreme Court referred to hereinbefore, that it is not possible to waive this right as such.”
The learned counsel for the plaintiff however strongly contended that the parties have extended the time fixed under the statute of one year as pleaded in Para 13 of the plaint. He also filed in Court xerox copy of the letter dt. 24th Jan., 1985, a letter from the Assistant Divisional Manager of the plaintiff addressed to the Shipping Corporation of India Ltd., 13, Strand Road, Calcutta requesting the Shipping Corporation of India Ltd. to extend the time for six months further from 27-1-1985 which was signed by one R. Dey, Officer-in-charge of the Shipping Corporation of India Ltd. The learned counsel submits that although the suit in the present case was filed after the expiry of one year still such extension so granted as appearing from the said letter dt. 24-1-1985 the suit isclearly within the time and the present application should be dismissed. The learned counsel further states that inasmuch as the time was granted by the Shipping Corporation of India Ltd. within the statutory period of one year the plaintiff is entitled to claim exemption from limitation on that ground and it is his further submission that the letter in fact constitutes an acknowledgment of liability and as such automatically extends the period of limitation. The learned counsel relied upon the Division Bench judgment of this Court , British Airways v. Art Works Export Ltd. wherein an application for dismissal of suit under Order 7, Rule 11 was dismissed by the learned City Civil Court and in an application under Section 115 the Division Bench of this Court did not interfere with said decision. The said decision was based on the Carriage by Air Act (69 of 1972), Sch. 2, Article 30(1 }(2). There the Division Bench of this Court held that in view of the provision of Article 30(2) it requires some consideration whether the suit is barred by Article 30(1) or not and it is difficult at this stage to say whether the suit is barred by the provision of Article 30(1) or not. There the Division Bench also discussed another decision of the Division Bench of this Court , Jugolinija Rajia Jugoslavia v. Fab Leathers Ltd. where the Division Bench dealt with the Article III Rule 6 of the Schedule of the Carriage of Goods by Sea Act, 1985 which is also the subject-matter of the present application. In interpreting the said Rule 6 of Article III of the Schedule to the Carriage of Goods by Sea Act, 1985, it was held by the Division Bench that the suit was instituted beyond one year from the delivery of the goods. It is barred by the provision of the Article 30, Rule 6 of the Carriage of Goods by Sea Act, 1985 and the plaint should be rejected under Order 7, Rule 11 of Civil F.C. The Division Bench in British Airways v. Art Works Export Ltd. (supra) came to the finding on the basis of Article 30(2) of the Carriage by Air Act and held that there is no such provision as Article 30(2) in the Second Schedule to the Carriage of Goods by Sea Act and as such the finding of the Division Bench in British Airways v. Art Works Export Ltd. (supra) cannot have any application in the facts and circumstances of this case.
8. The learned Counsel for the plaintiff-respondent strongly relied on unreported judgment delivered on Feb. 2, 1982 by the Division Bench consisting of the Hon’ble Mr. Justice Sabyasachi Mukharji and the Hon’ble Mr. Justice Suhas Chandra Sen in the case of Konsumex v. Anand and Co., (supra) where it has been held that if the provisions in the Carriage of Goods by Sea Act is intended to mean that a right was extinguished by operation of statute, in order to revive that right there must be an independent contract. He submits that an independent contract was created by which the time was extended as pleaded in Para 13 of the plaint.
9. I am unable to accept the said contention of the learned Counsel for the plaintiff for the reason that there was no such independent contract created as it appears from Para 13 of the plaint and also on the basis of the letter dt. Jan. 24, 1985 filed on behalf of the plaintiff. That letter only asks for extension of time for six months further to settle the claim which was endorsed by the Officer-in-Charge of the defendant with the mark ‘extension of six months granted’ That letter, in my opinion, does not create any independent contract nor confer any right in favour of the plaintiff to file the suit beyond the statutory period of one year.
10. Moreover, as held by the Supreme Court that there is a total extinction of liability after the expiry of the period of one year, no question of acknowledgment arises. In my view the said letter dt. 24th Jan., 1985 does not constitute any acknowledgment of liability also.
11. The learned Counsel further relied on the observation of the SupKeme Court (once the liability under this clause) that there is no scope of any acknowledgment of liability thereof to mean that since the letter was issued within the period of one year, this is an acknowledgment within the time and as such, time was properly extended. In my opinion, the learned Counsel has wrongly interpreted the Supreme Court judgment. If there is a total extinction of liability there is no scope for extension of time. However, in the present case, there is no acknowledgment of the liability also.
12. The unreported judgment of the Division Bench Konsumex v. Anand and Co., which was relied on by both the parties makes it clear that there is no provision for contracting out of the statute.
13. Moreover, the finding of the Supreme Court in American Export Isbrandtsen Lines Inc. v. Joe Lopez, (supra) and also in the case of East and West Steamship Co. George Town, Madras v. S. K. Ramalingam Chettiar, (supra) are also very clear on that question.
14. In premises, this application succeeds. There will be an order in terms of prayer (a) of the petition.
15. There will be no order as to costs.
16. The decree is to be drawn up expeditiously.