The Fertilisers and Chemicals Travancore Ltd. vs The Union Of India (UOI)

P.K. Shamsuddin, J.—Plaintiffs in O.S. No. 136 of 1980 on the file of the Court of Additional Subordinate Judge, Cochin, are the appellants in this appeal.

The suit was for recovery of Rs. 30,544.11 representing the insured value of two damaged Pan Segments. A consignment of four Pan Segments C.I.C. asting was consigned by M/s. Binny Ltd., Madras, under R.R. No. 286115 dated 31-5-1977/1-6-1977 for carriage at railway risk and for delivery at Cochin Harbour Terminus to the consignee, the 1st plaintiff. On 30-6-1977 the consignment reached Cochin Harbour Terminus and when the 1 st plaintiff went to take delivery of the same two pan segments were found broken. Therefore, the 1st plaintiff demanded open delivery of the consignment. Accordingly open delivery was given and the Divisional Commercial Inspector, Southern Railway, Cochin Harbous Terminus issued a certificate of damage dated 9-7-1977. The damage occured as a result of negligence and careless handling of the Rail way. 1 st plaintiff launched a claim petition with the defendant in respect of the two damaged pan segments on 1-8-1977. On 15-5-1978 a claim was preferred to the Chief Commercial Superintendent Southern Railway, for Rs. 35,663.18. Since the claim was not settled, a lawyer''s notice was sent on 26-3-1980 to the General Manager of the defendant-Railway claiming Rs. 30,544.11 towards the price of the two broken pan segments. The defendant did not settle the claim and hence the suit.

In the written statement the defendant denied plaintiff''s title to the suit consignment or the right to maintain the suit for recovery of compensation. It was also alleged that the plaintiff had not written the correct particulars, that the Railway had exercised due care and caution in the carriage of goods and there was no negligence on their part, that the remarks in the open delivery certificate did net amount to any admission of the liability of the defendant, that there was no valid notice u/s 78B of the Railways Act and Section 80 C.P.C. and that the claim was barred by limitation.

The trial court on a consideration of the evidence in the case, found that there was valid notice and the suit was maintainable, and that the plaintiff was entitled to compensation of Rs. 28,846.51 together with interest at 12% till realisation, but refuse to grant any relief on the ground that the suit was barred by limitation.

In this appeal, learned Counsel for the appellant challenged the finding of the trial court on the question of limitation. It is not disputed that the article which would apply to the case on hand is Article 10 of the Limitation Act It prescribes three years period for filing a suit against the carrier for compensation for loss or injury. The time from which period of limitation begins to run is stated to be when the loss or injury occurred. Delivery of the goods was on 9-7-1977. The suit was filed on 26-7-1980 i.e. beyond the period of three years. However, learned Counsel for the appellant relied on the provisions contained in Section 15(2) of the Limitation Act and contended that the notice period of two months prescribed u/s CPC for institution of a suit against the Government or against a public officer in respect of any act purporting to be done in his official capacity has to be excluded in view of Section 15(2) of the Limitation Act. Section 15(2) of the Limitation Act 1963 provides that in computing the period of limitation for any suit of which notice has been given or for which the previous consent or sanction of the Government or any other authority is required in accordance with the requirements of any law for the time being in force, the period of such notice or as the case may be, the time required for obtaining which sanction shall be excluded. It is not disputed that if two months are excluded then the suit was filed within the prescribed time. The lower court however held that notice period of two months cannot be excluded. In reaching this conclusion the lower court relied on the decision of the Supreme Court in Sri Amar Chand Inani Vs. The Union of India (UOI), . The Supreme Court said:

Section 80 of the CPC provides, among other things, that no suit shall be instituted against the Central Government, where it relates to a Railway, until the expiration of two months next after notice in writing has been delivered to or left at the Office of the General Manager of the Railway. It was not open to the plaintiff-appellant to wait till the 29th of December, for delivery of the notice and say that till the expiration of the two months from that date, no suit could be filed and that the suit is therefore, within the period of limitation though filed after 1 year and two months from the date when the injury was committed. Section 80 only prescribes a condition precedent for the institution of the suit and has nothing to do with the period of limitation for a suit except that u/s 15(2) of the Act, the period of notice can be deducted in calculating the period of limitation.

In my view there is nothing in the above decision to support the view taken by the lower court. On the other hand it really supports the contention of the counsel for the appellant that notice period is liable to be excluded in reckening the period of limitation.

The question of exclusion of period of notice u/s 80 CPC in terms of Section 15(2) of the Limitation Act, has come up for consideration in large number of cases See Ram Bihari Lal Vs. Dr. J.N. Shrivastava, Laxmichand v. Dominion of India and Anr. AIR 1955 Nag 265, Jai Singh v. Mansha Ram and Ors. AIR 1963 HP 31, M. Sultan Pillai and Sons, a registered partnership firm Vs. The Union of India (UOI) and Others, , State of Rajasthan Vs. Sube Singh, and Khedut Oil Cake Industries and Another Vs. Union of India, . In all these decisions it has been held that the period of notice u/s 80 has to be excluded in computing the period of limitation in view of Section 15(2) of the Limitation Act. In the light of the principles enunciated in those decisions it has to be held that the suit was not barred by limitation.

In the result, I allow the appeal, set aside the judgment and decree of the trial court and grant a decree in favour of the plaintiff for recovery of an amount of Rs. 28,846.51 with future interest at the rate of 6% per annum from the date of suit till realisation. The plaintiff will also be entitled to future interest at the rate of 5% per annum till date of realisation. There will be no order as to costs.