TMI Blog2018 (2) TMI 1450X X X X Extracts X X X X X X X X Extracts X X X X ..... ention (of 1929) for unification of rules relating to international carriage by air to which India is a signatory, and further to give effect to the Hague Protocol of 1955. The rule making authority has made its intention clear that in case of the claims under this Act, the provisions of this Act will prevail in respect of limitation and thereby excluded the application of the general law of limitation. Consistent view taken by the Apex Court and also by various High Courts is that the Carriage by Air Act 1972, being a special statute, enacted to give effect to the international convention, the provisions thereof will have overriding effect. In view thereof, section 18 of the Limitation Act, which is a general enactment cannot have any application in the present case to extend the period of limitation, which is prescribed in Rule 30 of of Schedule II of the Act. As admittedly in this case, action of filing the suit in the Court was not taken within two years from the date on which cause of action arose and as provisions of Section 18 of the Limitation Act, cannot be made applicable, the suit apparently is barred by limitation - petition allowed - decided in favor of petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Court accordingly framed preliminary issue on the point of limitation and after hearing arguments of both parties, the trial Court, vide its impugned order, was pleased to hold that the suit was not barred by limitation. 8] The only ground on which the trial Court held that the suit is not barred by limitation was the alleged acknowledgement of the claim by the petitioner in the reply to the notice dated 28.10.2010 in which the petitioner's advocate suggested to settle the claim at 50% of the claim amount. In view thereof, the trial Court held that as per Section 18 of the Limitation Act, the period of limitation is required to be computed from the time when the acknowledgement was signed and as acknowledgement is dated 28.10.2010, the suit filed on 6.9.2012, is within the period of two years, as per Rule 30 of schedule II of the Act and therefore, it is within limitation. 9] While challenging this order of the trial Court, the submission of learned counsel for the petitioner is that when a special statute like the the Carriage by Air Act, 1972 prescribes the period of limitation of two years, then the provisions of the general statute like the Limitation Act, 1963, can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spite of the subsequent general law. But where a clear intention to make a rule of universal application superseding the earlier special law is evident from the later general law, then the later general law, will prevail over the prior special law. (iv) Where a later special law is repugnant to or inconsistent with an earlier general law, the later special law will prevail over the earlier general law. 13] In the instant case, it is admitted that the Carriage by Air Act is a special enactment of the year 1972 and therefore later enactment to the general law of Limitation Act, which was enacted in 1963. Hence, as per above said Principle No.2, it will be necessary to ascertain the intention of the rule making authority to know which law should prevail. For this purpose, if one goes through the provisions of the said Act and the object and reasons for which the said Act was enacted, then it can be seen that the object of enacting the Carriage by Air Act 1972, was to provide a specific period of limitation and thereby to exclude the application of the Limitation Act. A cursory glance to the provisions of the Carriage by Air Act and the reading of the preamble of the Act makes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty has made its intention clear that in case of the claims under this Act, the provisions of this Act will prevail in respect of limitation and thereby excluded the application of the general law of limitation. 17] In the present case Airway bills, on which both parties have placed reliance and are produced on record also contain the same period of two years for filing such claim. Condition No.10 of the said Air way bill is material. It reads thus:- 10. Receipt by the person entitled to delivery of the cargo without complaint shall be prima facie evidence that the cargo has been delivered in good condition and in accordance with the contract of carriage. 10.1 In the case of loss of, damage or delay to cargo a written complaint must be made to Carrier by the person entitled to delivery. Such complaint must be made. 10.1.1 In the case of damage to the cargo, immediately after discovery of the damage and at the latest within 14 days from the date of receipt of the cargo. 10.1.2 In the case of delay, within 21 days from the date on which the cargo was placed at the disposal of the person entitled to delivery. 10.1.3 in case the non delivery of the cargo, wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respect, learned counsel for respondent has placed reliance on Section18 of the Limitation Act which reads as follows :- 18. Effect of acknowledgement in writing (1) Where, before the expiration of the prescribed period for a suit or application in respect of any property or right, an acknowledgement of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, or by any person through whom he derives his title or liability, a fresh period of limitation shall be computed from the time when the acknowledgement was so signed. (2) Where the writing containing the acknowledgement is undated, oral evidence may be given of the time when it was signed; but subject to the provisions of the Indian Evidence Act, 1872, oral evidence of its contents shall not be received. 22] Thus, the first submission of learned counsel for respondent is that in view of section 18 of the Limitation Act, the suit is within the limitation as it is filed within two years from the date of acknowledgement of the claim, and the trial Court has rightly held it to be so. 23] However, in my considered opinion, havi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in the instant suit, plaintiff relied upon the fact that the defendant has acknowledged its liability and hence it was urged that under Section 18 of the Limitation Act, the period has to be calculated from the date of acknowledgement. However, the said contention was rejected by the Madras High Court, relying upon the judgment of Apex Court in the case of East and West Steamship Company, Georgetown, Madras -vs- S.K. Ramalingam Chettiar [AIR 1960 SC 1058]. It was held that, though in the case on hand the plaintiff was corresponding with the defendants from 27.11.1979 onwards by writing letters and reminders under Exh. A-3 to A-51 and the defendants have acknowledged the same, in view of the peculiar provision prescribed in the Act for calculating the period of limitation, the plaintiffs ought to have filed their suit within a period of one year when the ship by which the goods were contracted to be carried has left the port at which the delivery was to be made . As it was not filed within period of one year, it was held that suit was barred by limitation. 27] The Carriage by Air Act, 1972 also contains the similar provision like the Carriage by Sea Act 1924. It is also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egislation . 30] Thus, consistent view taken by the Apex Court and also by various High Courts is that the Carriage by Air Act 1972, being a special statute, enacted to give effect to the international convention, the provisions thereof will have overriding effect. In view thereof, section 18 of the Limitation Act, which is a general enactment cannot have any application in the present case to extend the period of limitation, which is prescribed in Rule 30 of of Schedule II of the Act. 31] Learned counsel for respondent has, however, tried to place reliance on the judgment of the Apex Court, in the case of Trans Mediterranean Airways -vs- M/s Universal Exports and anr (2011) 10 SCC 316 . However, in the said case, as per clause 12 of the Conditions of Contract printed on the reverse of Airway bill, argument was advanced that if such complaint is not made within 120 days from the date of issue of the airway bill, then the claim extinguishes. In that respect, it was held that such condition cannot control the period of limitation provided under Rule 29(2) of the I schedule and Rule 30 of Schedule II of the Act. It was held that the claim will extinguish only if the action i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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