Japan Airlines vs M/S P & S Exports Corporation
2011 Latest Caselaw 3599 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           RFA No.199/2002

%                                                  28th July 2011

JAPAN AIRLINES                                    ...... Appellant
                            Through:    Ms. Vandana Khurana, Adv.

                            VERSUS

M/S P & S EXPORTS CORPORATION             ...... Respondents
                     Through: Mr. Akshay Makhija with
                              Mr. Vikas Bhaduria, Advs.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

    1.   Whether the Reporters of local papers may be
         allowed to see the judgment?

    2.   To be referred to the Reporter or not?

    3.   Whether the judgment should be reported in the Digest?


VALMIKI J. MEHTA, J (ORAL)

1.            The challenge by means of this Regular First Appeal under

Section 96 of the Code of Civil Procedure (CPC) is to the impugned

judgment dated 29.11.2001 of the Trial Court whereby the suit of the

respondent/plaintiff for recovery against the appellant/airline/defendant

was decreed for the amount of value of the consignment wrongly

delivered by the agent of the appellant/defendant without the necessary

authorization of the consignee/bank.


2.            The facts of the case are that the appellant booked

consignment      of   155    packages    of   handicrafts   vide   Airway   Bill

no.131/38984842 dated 10.9.1982, weighing 2837 kgs. and valued at US$


RFA No.199/2002                                                     Page 1 of 3
 19,887. The appellant/defendant was required to inform the buyer of the

goods as also the consignee of the goods on arrival of the goods at the

destination. It, however, transpired that the agent airline of the appellant,

i.e. United Airlines delivered the goods to M/s. Kumar Import Corporation

without having retired the documents from the consignee/bank. The suit

was therefore filed after serving a registered letter dated 13.10.1983 on

the appellant.


3.          All the aforesaid facts are not disputed before the Trial Court

or even before this Court inasmuch as the Airway Bill specifically shows

the consignee as the bank, however, the consignment was delivered to

M/s. Kumar Import Corporation without any authorization from the

consignee/bank.


4.          Before this Court, as also before the Trial Court, basic stress

was laid on the ground that the suit was barred by limitation by virtue of

Rule 30 of the Second Schedule of the Carriage by Air Act, 1972. It was

contended   that   the   limitation   period   for   claiming   loss    from   the

appellant/defendant was for a period of 2 years. It was stated that the

suit was filed on 6.9.1985 whereas the consignment was booked on

10.9.1982. The Trial Court has decided the issue against the appellant by

holding the suit within limitation relying upon the decision of a learned

single Judge of this Court in the case of Federal Chemical Works Ltd.

vs. M/s. Nutsco (Nigeria) Ltd. & Anr. 88 (2000) DLT 659 and as per

which judgment, the provision of Rule 30 for an extinguishment of any

right thereupon will only apply in case of any loss or damage to the goods,
RFA No.199/2002                                                        Page 2 of 3
 and, Rule 30 will however not apply in case of negligence by the airlines of

mis-delivery.


5.          I may note that the decision of the single Judge has since been

upheld by the Division Bench of this court in the case of Ethopian

Airlines, New Delhi vs. M/s. Federal Chemical Works Ltd. AIR 2005

Delhi 158.      The position in law therefore, so far as this Court is

concerned, is that Rule 30 will not extinguish the right of action merely

because the suit is not filed within 2 years.     If the suit for recovery is

based upon loss caused by wrongful            delivery of the goods, as

differentiated from any loss or damage to the goods by the carrier during

the carriage , then the limitation period for a suit will be three years under

the Limitation Act, 1963 and not two years as per the aforesaid Rule 30.


6.          In view of the above, I do not find any merit in the appeal.

The appeal is therefore dismissed, leaving the parties to bear their own

costs. The Trial Court record be sent back. The amount deposited in this

Court by the appellant be released to the respondent, along with accrued

interest, if any, in satisfaction of the subject judgment and decree.


CM Nos.552/02 & 1388/02


7.          In view of the order passed in the main appeal, no orders are

required to be passed in these applications.       These applications stand

disposed of.



JULY 28, 2011                                    VALMIKI J. MEHTA, J.

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