Can you claim remedy when your right is extinguished by operation of law?

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Shubham Budhiraja[1]

 

M/S A, importer & exporter, booked British Airways to send cargo of fruits and vegetables to Canada via London. Due to bad weather, the flight couldn't landed in Canada and goods damaged. British Airline offered to settle 50%. M/s A raised the claim and filed civil suit for recovery of damages. The Airline raised preliminary objection of limitation as suit was filed after expiry of 2 years, as stated in Rule 30 of Air act. The Trial court disallowed the objection stating that there is an acknowledgment of debt by Airline but High Court allowed the objection. Hon’ble Supreme Court confirmed the HC Judgment and held that Rule 30 extinguish the right. When right is not alive due to extinguished then remedy also extinguished. There is no remedy without right.[2]

 

(I)                 The Air Act, 1972 is an Act to give effect to various International Conventions for the unification of certain Articles relating to international carriage by air.

 

(II)               The International Conventions incorporated in the Act are the (i) Warsaw Convention, 1929; (ii) The Warsaw Convention, 1929 as amended by the Hague Protocol on 28.09.1955 and (iii) the Montréal Convention, 1999. Section 3 of the Act incorporates the Warsaw Convention into the Act as the First Schedule and specifically provides it the status of law in India. Section 4 incorporates the Hague Protocol and provisions it in The Second Schedule. Section 4A for giving effect to Montréal convention, provides The Third Schedule to the Act and specifically provides the status of law to these provisions.

 

(III)             The Convention certainly incorporated two variables in the context of reckoning the period specified in Rule 30 (1) of limitation. The first event relates to the time, which is a fixed period of two years. The second event relates to the commencement of cause of action which has been specified as any of the three events being (i) arrival at the destination; or (ii) date on which the aircraft ought to have arrived; or (iii) the date on which the carriage stopped. Now, the only event that remains is the date on which the action for damages is initiated as this would depend upon the law of the Court seized of the case.

 

(IV)              Rule 30(2) specifically provides that “the method of calculating the period will be determined by the law of the Court seized of the case.” This should necessarily follow for the reason that the period of two years for enforcing the right would be extinguished if an action is not brought within the said period.

 

(V)                Section 3 of the Limitation Act only bars the remedy, but when the right itself is extinguished, provisions of the Limitation Act have no application.

 

(VI)              The High Courts across the country have also taken a similar view that the Limitation Act, 1963 will be excluded from operation for a claim under the Air Act. The High Courts have reasoned that the Air Act is a special statute and would thus prevail over the Limitation Act, 1963, which is a general statute.

 

 


[1] Advocate, Delhi High Court [LLB,ACS,BCOM(H)], Budhirajalawchambers@gmail.com

[2] CIVIL APPEAL NO. 4978 of 2022, Supreme Court of India, Judgment dated 29/07/2022

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