P L D 1961 Supreme Court 340 (PLP)

B. Z. KAIKAUS, J.‑This is a certificated appeal by one Abdul Jalil, Proprietor of the Begum Rice Mills, Chittagong, in a suit for damages for non‑delivery of a consignment sent from Karachi to Chittagong per "Al‑Murtaza Ali", a ship owned by the Muhammadi Steamship Company. The defendants to the suit were the Government of Pakistan, who control the jetty at which, according to the allegations of the carrier, the goods had been discharged, the Muhammadi Steamship Company, the carrier, and the General Machinery Stores; Karachi, who had shipped the consignment and was only a pro forma defendant. The trial Court found that goods did not. land at the jetty at all and granted a decree against the Muhammadi Steamship Company, respondent No. 1, in this appeal for Rs. 6,

650. On appeal by respondent No. 1 to the East Pakistan High Court, the suit was dismissed on the ground that it was time‑barred. A certificate for appeal to the Supreme Court was granted however on the ground that a question of law of general importance was raised although the value of the subject‑matter was below Rs. 10,

000. In the present appeal; the sole question for decision is whether the suit had been filed after the expiry .of the period of limitation. The Federation of Pakistan is shown as respondent No. 2 in this appeal, but no relief hag been claimed against it. The relevant facts are that the consignment in dispute which contained three cases of machinery goods was handed over by the General Machinery Stores, Karachi, to the Master of the ship "Al‑Murtaza Ali" per bill of lading No. 90, dated the 4th of April 1950, for delivery to the appellant at the Port of Chittagong. The ship reached Chittagong on the 30th of June 1950, and, after discharging its cargo at jetty shed No. 3, left the harbour on the 16th of July 1950. While the ship was still in the harbour the appellant applied to Messrs M. M. Ispahani & Co., the agents of respondent No. 1 at Chittagong, to give him the delivery order for the consignment, but this was refused on the ground that the appellant had to produce a weighment certificate before he could get the delivery order. This, it may be observed here, was in accord, with the bill of lading according to which the appellant had to pay any excess freight before he was entitled to delivery. The appellant applied to the Superintendent of Licence and Measurement Department on the 10th of July 1950, asking him to get the consignment weighed as without the weighment certificate the agent of respondent No. 1 would not give him the delivery order. However, the consignment could not be found at jetty shed No. 3 and on the 21st of July 1950, the appellant approached the Superintendent of Jetty, for information as to whether the consignment had been landed at the jetty. He was informed by a letter of the 26th of July that the consignment had not been landed. On the same day (it does not appear whether before or after the information from the Jetty Superintendent) the appellant wrote to Messrs M. M. Ispahani & Co., to have the consignment traced. There was after this, further and lengthy correspondence between the appellant, the agent of respondent No. 1, respondent No. 1 and the Jetty Superintendent. The agent of respondent No. 1. and respondent No. 1 persisted in their allegation that the goods had landed while the Jetty Superintendent continued to assert that the goods had not landed. Tally slips which were with respondent No. 1, were sent for by the Jetty Superintendent. They did contain reference to the consignment but according to the Jetty Superintendent they had been tampered with Respondent No. 1 and his agent still persisted in the stand they had taken. The appellant then asked the Jetty Superintendent to issue a short landing certificate but he was not prepared to grant one, unless the appellant possessed a delivery order. The agent of respondent No. I when approached for a delivery order, refused to give it on the ground that the goods must be re‑measured before the delivery order was issued. This created a deadlock. As the appellant states in his plaint, he was being driven from pillar to post. The delivery order could not be had without a measurement certificate; the measurement certificate could not be granted because the Jetty Superintendent did not accept the landing of goods and a short landing certificate could not be granted without a delivery order. The appellant could not make up his mind as to whether the goods had in fact landed. He would have been prepared to take action on the basis of a short landing certificate but the Jetty Superintendent was not prepared to give him one. The appellant did not know what to do. At one stage, the plaintiff issued a notice to respondent No. 1 through counsel in which it was stated that respondent No. 1 in collusion with Jetty authorities were causing a loss to the appellant. However, there was no real basis for the charge of collusion and this allegation in the notice was really more the outcome .of perplexity than the result of any enquiry and in the letter which the appellant sent to the Jetty Superinten dent after this notice he only said that the correct position was unknown to him, that he was very much vexed and that he requested the Jetty Superintendent to decide the matter either way. In reply to the notice respondent No. 1 advised the appellant to search for the goods in the Jetty. It does not appear whether there was any search but on the 12th of May‑1951, the appellant wrote to respondent No. 1 saying that the only way out of the deadlock was that it should issue to him a delivery order. Respondent No. 1 wrote back saying that it had instructed its agent who would do the needful and would solve the difficulties in respect of the missing goods. On the 17th of July 1951, respondent No. 1 wrote to the Jetty Superintendent that according to its stevedores the consignment had landed in full and signed tally slips showing such landing were in the Department of the Jetty Superintendent having been taken from the agent of respondent No. 1 by the Jetty Inspector, and that the Jetty Superintendent may kindly look into the matter. As the position of the Jetty Superintendent still was that the goods had not landed respondent No. 1 after getting back the joint tally slips issued a delivery order to the appellant on the. 26th of October 1951. The appellant secured a short landing certificate with the help of this delivery order on the 29th February 1952, and the present suit was filed on 2nd of July 1952. The position of respondent No. 1 in the trial Court was that the consignment had landed at the Jetty, and that the delivery order had been issued without any avoidable delay. On the issue as to the landing of the consignment the contest at the hearing was between respondent No. I and respondent No. 2 (Federation of Pakistan). Both of them led evidence but the issue was decided in favour of respondent No.

2. The provision of law which governs limitation in a suit like the present is contained in clause 6 of Article III of the Schedule to the Carriage of Goods by Sea Act No. XXVI of 1925, which runs : ‑ "

6. 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 the 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 lading. The notice in writing need not be given if the state of the goods has at the time of their receipt been the subject of joint survey or inspection. In any event the carrier and the ship shall be discharged from all liability in respect of loss or damage unless suit is brought within one year after delivery of the goods or the date when the goods should have been delivered. In the case of any actual or apprehended loss or damage, the carrier and the receiver shall give all reasonable facilities to each other for inspecting and tallying the goods." In accordance with this clause a suit is to be filed within a year of the "date when the goods should have been delivered." These words obviously, have reference to the time when it was the obligation of the carrier, in accordance with the terms of his contract, to deliver the goods, and this time has to be determined in accordance with the provisions of the Contract Act. A contract for carriage of goods being only a contract is subject to the provisions of the Contract Act except to the extent to which there may exist some special provision. In accordance with the Contract Act every contract is to be performed on the date which has been agreed to by the parties and, in the absence of such a date within a reasonable time. In the case of a contract of carriage of goods by sea, if there be in the contract a date fixed for delivery, that would be the terminus a quo for limitation. If on the other hand, there be no date fixed reasonable time could have to be ascertained, and that would depend upon the particular circum stances of a case. However, the matter does not end there. The time for the performance of a contract is liable to be extended by the promisee as provided in" section 63 of the Contract Act. Section 63 runs :‑ "Every promisee may dispense with or remit, wholly or in part the performance of the promise made to him, or may extend the time .for such performance, or may accept instead of it any satisfaction which he thinks fit." This section does not say that the consent of the promisor is also needed for extension, but that is obviously essential for if the promisor was not prepared to give performance at all any extension would be meaningless. However, the consent need not be express and may be implied. Similarly, extension by the promisee too may be only implied. The section will apply to a case where there is originally a date fixed for the performance as also to a case where no date has been fixed and the contract is to be performed within a. reasonable time. Therefore, in all cases of carriage of goods by sea the terminus a quo for limitation will be affected, if the promisee agrees to have performance at a date later than that originally fixed or later than that which constituted a reasonable time. At the same time, it is not even necessary that this extension of time by the promisee should take place before the expiry of the date on which the contract was to be performed, for the utmost that could be urged in a case where there is extension after the expiry of the original period would be that there was a fresh agreement rather than an extension and a fresh agreement for delivery would have no less effect than extension. If such 'fresh agreement be valid and binding it would give rise to a fresh cause of action and there would be a fresh terminus a quo for limitation when the carrier failed to perform the fresh agreement. There is no law which forbids a fresh agreement as to the time of performance in the case of carriage of goods by sea and therefore such an agreement would be binding and would constitute a new basis for calculation of the period of limitation. 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 under 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 (P L D 1956 Lah. 1093), a decision of S. A. Rahman, C. J. and A. R. Changez, J., where a number of cases are cited. Unfor tunately, 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 consignee, 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 expression of inability to do so. The present case appears to us to fall in the category of cases where there has been implied extension of time. The position of respondent No. 1 throughout was that the goods were lying at the jetty and that it was prepared to give delivery subject to the payment of any excess freight which may be determined on a re‑measure ment. The appellant, on the other hand, was throughout prepared to take delivery. In fact, he was all the time asking for delivery. Respondent No. 1 never refused nor ever expressed its inability to give the delivery, and ultimately it issued a delivery order. It is true that at one stage the appellant had given notice of a demand for damages accusing respondent No. 1 and the Jetty Superinten dent of collusion. But, in the circumstances of the present case, this notice has not altered the position as to the terminus a quo of limitation, because after the notice which was, as already stated more a result of the perplexing situation in which the appellant found himself than of a desire to file a suit the parties struck to the position they had already adopted, and while respondent No. 1 continued to say that it was prepared to give delivery and that the goods were lying at the jetty the appellant continued to express his willingness to receive the goods and only stated that they were not being found. In his letter dated the 12th May 1951, which was sent by the appellant to respondent No. 1 there is no reference even to the notice though details of all that had transpired between the parties are given. The attitude of respondent No. 1 was that it would render the appellant all help in getting delivery of the goods. Ultimately, respondent No. 1 gave him a delivery order which by itself involved an agreement to deliver the goods. Even if we were to hold that as the appellant had given notice of a suit for damages limitation had once begun to run, there was in this case a fresh agreement by the carrier to deliver the goods and there would be a fresh terminus a quo for filing a suit when the carrier failed to perform that agreement. This fresh agreement was implied in the correspondence subsequent to the notice and was expressly made by the delivery order. It may be pointed out here that the delivery order was within 7 months of the notice sent by the appellant and therefore it would not be possible for respon dent No. 1 to argue that by virtue of clause 6 which operates to discharge the carrier from all responsibility after a year, even the right of the appellant had at the time of the fresh agreement been extinguished and a fresh agreement was of no avail. The express agreement had been made at a time when the right of the appellant had in any case not been extinguished although the correct position is that even the implied agreement contained in. the correspondence previous to the delivery order could be the basis of a suit. If a party continues to represent that it is prepared to perform a contract into which it has entered, after the expiry of the period fixed for performance, it cannot contend that it was not bound to perform the contract, in the absence of a legal bar which deprives the undertaking of all legal effect. There is nothing in the Carriage of Goods by Sea Act which prevents the parties from making fresh binding agreements. It would be quite open to the carrier in a case, for instance, where the goods could not be found, to undertake to trace the goods and deliver them at such future date as may be agreed upon. Clause 6 is not intended to force the parties to come to Court. They can adjust their disputes in any manner they like and they can make fresh agreement in any difficult situation like the one that arose in the present case. There is another aspect of the matter. If respondent No. 1 is to be held to the representations which it made the suit cannot be time‑barred. It is to be observed that in a case where the goods are to be landed at a jetty which is not in the control of the carrier the obligation of the carrier to give delivery consists of two acts: (1) the landing of the goods at the jetty, and (2) issuing a delivery order to the consignee. If the continuous representation of respondent No. 1 that the goods had been landed were assumed to be correct then the terminus a quo for limitation will be the date when the carrier was bound to issue the delivery order but failed to do so, for limitation, starts from the failure of the carrier to carry out his obligation. Now it was the case of respondent No. 1 in the written' statement that there was no delay in issuing the delivery order. He said in his written statement that "agreeably to the terms and conditions of carriage as contained in the bill of lading this defendant wanted to re‑measure the goods before issuing a delivery order and this defendant granted the delivery order without any avoidable delay". When the appellant had approached the agent of respondent No. 1 or respondent No. 1 for a delivery order he had been told that a delivery order would be issued only on the production of a weighment certificate. This was quite in accord with condition No. 6 of the bill of lading which said, "The Company reserves the right of charging freight by weight measurement or value and of re‑measuring or re‑weighing the goods and charging the freight accordingly before delivery". The appellant had in comp liance with the demand tried to get a weighment certificate but had failed to do so. It may have been possible for the appellant to raise an objection that the carrier itself should get the goods re‑weighed but he did not raise that objection and acted as if it was he who was bound to produce the weighment certificate. If we are to accept the representations made by respondent No. 1, firstly, that goods had landed and, secondly, that it was the duty of the appellant to produce the re‑weighment certificate, there can be no doubt that respondent No. 1 made no default in issuing the delivery order. The respondent should be held to the representations which it made. These were representations on which the appellant acted Although the appellant did not fully accept that goods had landed, he did not at the same time reject this statement and it was on account of this statement that he failed to file a suit for had he filed a suit against respondent No. 1, the suit may have been dismissed on the ground that the goods had landed. It is not open to respondent No. 1 to resile now from the representations which it had made to the appellant and the appellant is entitled to claim that for the purpose limitation those representations should be regarded as being correct. In these circumstances, limitation would start only when the appellant secured a delivery order but the goods were not delivered to him in accordance with the delivery order. Learned counsel for the respondent has relied upon a judg ment of the Supreme Court of India in East & West Steamship Co. Georgetown v. Ramalingam Chettiar (A I R 1960 S C 1058) wherein it was held that the "date when the gods should have been delivered" is the date when the ship by which the goods were to be carried had left the port at which delivery was to be made. While the period mentioned in this judgment may ordinarily constitute a reasonable time, with great respect, it is not possible for us to accept a strict rule of this kind, for determining limitation under clause 6 of Article III. The parties may have agreed on a definite date and. the ship may have come to the port and left the port long before that date arrived; there will be no obligation at all on the carrier in such a case to give delivery before the fixed date, and time would run only from the fixed date. Even in a case where no date had been fixed the carrier may he unable to give delivery before the ship leaves the port; the ship may leave the port the very day it had discharged its cargo and the amount and nature of the cargo may be such that it may take the carrier weeks to give delivery ; physical causes may intervene, there may be storms, floods or earthquakes ; or labour may go on strike., At the same time, there may be a clause in the bill of landing, as there is in this case, that without re‑measurement delivery was not to be given because excess freight had to be paid and there may be reasons beyond the control of either party why the measurement of goods could not take place before the ship left the harbour, the measurement not being in the hands of either the carrier or the consignee, but of the Port authorities. Also, for one reason or other, the parties may enter into an express agreement to delay delivery. There may be a number of reasons why delivery could not be given before the ship left the harbour and we can only say that the question as to when delivery is to be made has to be decided in accordance with the provisions of the Contract Act which continues to govern the time when delivery is to be made. Another case relied upon by learned counsel for respondent No. 1 is The Karachi Steam Navigation Co. Ltd., v. Ebrahim Gani (P L D 1957 Kar. 315) wherein the proposition was laid down that the date from which period of one year for a suit for compensation is to be calculated is the date on which cargo is discharged by the Steam ship Company. . In view of what has been stated above, we are not prepared to accept to proposition laid down in this case. We have to observe, however, that there is in this case a reference to the Karachi Port Trust Act and it is stated that the Karachi Port Trust is a statutory bailee and that delivery to such statutory bailee amounts to delivery of the goods to the consignee. Reference in support of the proposition that the Trust holds on behalf of the consignee has only been made to section 47 of the Act wherein it is provided that to the Warehouse of the Karachi Port Trust goods are kept at the risk of the owner. This provision is not by itself sufficient to make the Port Trust the agent of the consignee. We have not found it necessary to go into the various provisions of the Karachi Port Trust Act to see how far the Port authorities can be said to hold the goods on behalf of the consignee, for it is sufficient to point out that at least in the present case the Port authorities who could not have delivered the goods without a delivery order from respondent No. 1 were not agents' of the consignee. The appeal is allowed. The decree of the High Court is set aside and that of the Subordinate Judge restored. The appellant will be entitled to his full costs in the High Court as well as in this Court, and in the trial Court he will have proportionate costs as ordered by the trial Court. A. H. Appeal allowed.