Holding

Rule 30 of the Carriage by Air Act, 1972 expressly excludes the Limitation Act, 1963, and the right to damages is extinguished after the two‑year period, rendering the Limitation Act inapplicable.

Summary

The appellant, a cargo importer, claimed damages from British Airways for loss of perishable goods shipped from Mumbai to Canada, filing suit in 2012. The trial court held the claim was not time‑barred, but the Bombay High Court dismissed it, holding that the two‑year limitation under Rule 30 of the Carriage by Air Act, 1972 was governed by the Limitation Act, 1963. The Supreme Court examined whether the Limitation Act applies to the period specified in Rule 30 and whether Rule 30 expressly excludes the Limitation Act. Relying on the language of the Convention, the Vienna Convention on the Law of Treaties, and consistent Indian and foreign case law, the Court held that the right to damages is extinguished after two years and that Rule 30 expressly excludes the Limitation Act. Consequently, the Limitation Act cannot be invoked to extend or modify the two‑year period. The appeal was dismissed, leaving the High Court’s decision that the suit is barred by limitation intact.

Issues considered

Whether the Limitation Act, 1963 applies to the period specified in Rule 30 of the Second Schedule of the Carriage by Air Act, 1972.
Whether Rule 30 of the Second Schedule of the Carriage by Air Act, 1972 expressly excludes the applicability of the Limitation Act, 1963.

Legislation cited

Carriage by Air Act, 1972s. Rule 30 (Second Schedule)
Code of Civil Procedure, 1908
Limitation Act, 1963s. 11, s. 27, s. 29, s. 3

Subjects

Carriage by Air ActLimitation ActRule 30right to damagesextinguishmentinternational conventionlex foristatutory interpretationVienna Convention on the Law of Treatiestwo‑year limitation periodspecial vs general legislation

Judgment

[2022] 11 S.C.R. 539 539

M/s BHAGWANDAS B. RAMCHANDANI A
v.
BRITISH AIRWAYS
(Civil Appeal No. 4978 of 2022)
JULY 29, 2022 B
[K. M. JOSEPH AND
PAMIDIGHANTAM SRI NARASIMHA, JJ.]
Air Act, 1972 – Rule 30 – Limitation Act, 1963 – ss. 3, 29,
schedule – Does Limitation Act, 1963 apply to the period specified
in Rule 30 of the Second Schedule of the Carriage by Air Act, 1972 C
– Held: Rule 30 of the Second Schedule provides that the right to
damages will be extinguished if an action is not brought within a
period of two years from the dates mentioned in the rule –When
statutes are enacted to give effect to a treaty or convention, Articles
31 and 32 of the Vienna Convention becomes relevant for D
interpretation of such statutes – Courts of law must endeavor to
maintain a uniformity of interpretation with courts of other
jurisdictions while interpreting international treaties and
conventions – The expressions, ‘right’ and ‘extinguished’ employed
by the Convention as adopted and incorporated by the Parliament
in Rule 30 of the Second Schedule clearly establishes the intention E
of the law-giver that the right to damages would not subsist after
the expiry of the period mentioned therein – The expression in Rule
30(2) calculating the period of limitation is synonymous to the
expression computation of period of limitation provided in Part-III
of the Limitation Act, 1963 – High Courts (Delhi, Bombay and F
Madras) across the country have also taken a similar view that the
Limitation Act will be excluded from operation for a claim under
Air Act – In view of the consistent interpretation of Article 29 of the
Convention adopted in different jurisdictions, for the purpose of
uniformity and also to subserve the purpose and object of the
Convention, this Court is of the view that Rule 30 (2) does not enable G
applicability of exclusion of periods for the purpose of reckoning
the period of two years.
Limitation Act, 1963 – s. 29 – Whether the Air Act, 1972,
particularly Rule 30 of the Second Schedule expressly excludes the
applicability of the Limitation Act, 1963? Held: Where a period of H
539
540 SUPREME COURT REPORTS [2022] 11 S.C.R.

A Limitation is prescribed in a special law, by virtue of Section 29 of
the Limitation Act, such period will apply as if it was provided in the
Schedule of the Limitation Act - Sub-Rule (2) of rule 30 must therefore
be interpreted harmoniously keeping in mind not only the content
of Sub-Rule (1) but also the purpose and object of the Convention
which is to bring about the unification of Rules relating to
B International Carriage by Air - Rule 30 of the Carriage by Air Act
1972, expressly excludes the applicability of the Limitation Act,1963.
Dismissing the appeal, the Court
HELD :
C Does Limitation Act, 1963 apply to the period specified in
Rule 30 of the Second Schedule of the Carriage by Air Act, 1972?
1. It is to be noticed that matters concerning the
international carriage of persons, baggage, or cargo performed
by aircraft for reward are the subject matter of International
D Conventions. These are incorporated into our laws through the
Schedules to the Air Act, 1972. Section 3 of the Air Act, 1972
incorporates the Warsaw Convention, 1929 into the First Schedule
and specifically provides that it shall have the status of law in
India. Section 4 incorporates the Hague Protocol dated 28.09.1955
and provisions it in the Second Schedule and gives it the status
E of law in India. Similarly, Section 4A brought into force in 2009
for giving effect to the Montréal Convention, 1999 incorporates
it in the Third Schedule to the Act and gives it the status of law in
India. [Para 10][552-F-G; 553-A-B]
2. The procedural law governing the institution and
F adjudication of civil suits in India includes the Civil Procedure
Code,1908 as well as the Limitation Act, 1963. The Limitation
Act is a branch of adjectival law, and applies to all proceedings
which it governs from the date of its enactment. There is however
a well-established principle, which states that when the right itself
is extinguished, the provisions relating to limitation have no
G application. A direct example where the right itself is
extinguished, can be evidenced in Section 11 as well as Section
27 of the Limitation Act, 1963. Section 11 deals with suits filed in
India with respect to contracts entered in foreign countries.
Following the Principle of lex fori, the Section provides that rules
H of limitation provided in a foreign jurisdiction are not applicable.
M/S BHAGWANDAS B. RAMCHANDANI v. BRITISH 541
AIRWAYS

However, the exception to this Rule is provided in Section 11 A
(2)(a), when the Contract i.e., the right itself expires. Similarly,
Section 27 also recognizes the principle of extinguishment of Right
to Property being an exception to the applicability of the
Limitation Act, 1963. [Para 12][554-B-E]
3. In view of the well-established position of law relating to B
Lex Fori in International Law, with the equally well-established
exception arising out of the extinguishment of the right or the
liability itself, we will now examine the position in India as per
Rule 30 in the Second Schedule of the Air Act, 1972 relating to
liability of the carrier. [Para 14][558-A-C]
C
4. While Rule 29 speaks about judicial remedy for initiating
an action for damages, Rule 30 uses the expression right to
damages. It is in the context of right as against a remedy that the
purpose, object and meaning of Rule 30 is to be understood.
Further, Rule 30 also uses the expression “extinguishment” as
against “bar”, which is generally used in the context of a remedy. D
Therefore, the extinguishment is of right, that is, the right to
damages is the subject matter of Sub-Rule (1) of Rule 30. The
expressions, ‘right’ and ‘extinguished’ employed by the
Convention as adopted and incorporated by the Parliament in
Rule 30 of the Second Schedule clearly establishes the intention E
of the law-giver that the right to damages would not subsist after
the expiry of the period mentioned therein. [Para 15.1][558-A-
C; 558-D-E]
5. Once the right to damages is extinguished upon the
expiry of two years reckoned from the three alternative dates F
mentioned in the Rule itself, nothing would remain for
enforcement. 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. For this reason, in The East
and West Steamship Co., this Court held that once the right of
liability is extinguished under the clause, there is no scope of G
acknowledging the liability thereafter. [Para 15.2][559-C-D]
6. In its plain and simple language, Sub-Rule (2) seems to
adopt the applicability of the Limitation Act, 1963 as Courts in

H
542 SUPREME COURT REPORTS [2022] 11 S.C.R.

A India exercise jurisdiction. ‘The method of calculating the period
specified in Sub-rule (2) naturally relates to the period’ specified
in Sub-rule (1). Sub-Rule (1) identifies and fixes two incidents.
The period of limitation and the date of commencement of the
said period (the three specified dates). Therefore, when the
period of limitation, as well as the date of commencement of the
B
said period, are already given, the method of calculation of the
period of limitation contemplated under Sub-Rule (2) must relate
to some other factor. However, without specifying the variable to
which the method of calculating the period, is to apply, Sub-rule
(2) merely provides that it “shall be determined by the law
C applicable to the Court seized of the case.” This has caused
uncertainty about the intent of the lawmakers, be it the
Convention or Rule 30 of the Second Schedule of the Act. [Para
16.2][559-F-H; 560-A-B]
7. Further, the expression in Rule 30(2) calculating the
D period of limitation is synonymous to the expression computation
of period of limitation provided in Part-III of the Limitation Act,
1963. Part-III which relates to the exclusion of certain time
periods is to sub-serve a just cause based on public policy which
recognizes human vulnerabilities. Broadly, these periods relate
to (i) the date from which the period is to be reckoned (Section
E 12); (ii) the time taken for seeking to contest as a pauper, (Section
13); (iii) the bona fide period involved in the perusal of a remedying
the wrong Court (Section 14); (iv) fraud (Section 17); (v)
acknowledgment of debt (Section 18); (vi) admitted payments on
account of debt (Section 19); (vii) continuous breach etc. These
F are the periods that can be excluded while computing the period
of limitation under the Limitation Act, 1963. [Para 16.3][560-B-
D]
8. The rival submissions surface due to an apparent conflict
between Sub- Rule (1) and Sub-Rule (2) of Rule 30 of the Second
G Schedule. While Sub- Rule (1) extinguishes the right itself upon
the expiry of the period of two years, after which nothing would
remain for enforcement, Sub-Rule (2) seems to suggest that the
Court seized of the case can apply the law of limitation applicable
to its proceedings and entertain the suit of the proceedings. [Para
18][561-B-C]
H
M/S BHAGWANDAS B. RAMCHANDANI v. BRITISH 543
AIRWAYS

9. In view of the uncertainty in the language of sub-article A
(2) of Article 29, as in the case of Sub-Rule (2) of Rule 30 for
India, courts of law across jurisdictions were called upon to
consider the rival submissions on the construct of the said
provision. Learned counsels appearing for both the parties have
placed before us the decisions of foreign courts that have ruled
B
upon Article 29 and interpreted the said provision, more or less
consistently taking a view that the domestic laws of limitation
will have no bearing on the period of two years. [Para 29][569-C-
D]
10. The High Courts across the country have also taken a
similar view that the Limitation Act, 1963 will be excluded from C
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. The
High Court of Delhi in Air India Ltd. v. Tej Shoe Exports P. Ltd.
, Sailesh Textile Industries v. British Airways & Anr. , Indian D
Airlines v. Angelique International Ltd. & Anr., Ethopian Airlines
v. Federal Chemical Works Ltd., the High Court of Madras in
M/s M.R.F Ltd. v. Singapore Airlines and Air India, Bombay
Airport v. Asia Tanning Co., and the High Court of Bombay, in
the judgment impugned before us, have all taken this view. [Para
40][576-E-G] E

11. In the ultimate analysis, keeping in view the legislative
history of the Convention and in view of the consistent
interpretation of Article 29 of the Convention adopted in different
jurisdictions, for the purpose of uniformity and also to subserve
the purpose and object of the Convention, we are of the view F
that Rule 30 (2) does not enable applicability of exclusion of
periods for the purpose of reckoning the period of two years.
[Para 43][577-G-H]
Whether the Air Act, 1972, particularly Rule 30 of the Second
Schedule expressly excludes the applicability of the Limitation Act, G
1963?
12. While dealing with Issue No.1, we have held that the
right to damages itself is extinguished after the expiry of the
period of two years and therefore the provisions of the Limitation
H
544 SUPREME COURT REPORTS [2022] 11 S.C.R.

A Act have no application as there is no right subsisting for
enforcement. In this context we have referred to Section 3 of the
Limitation Act which merely bars the remedy and not the right
itself, but when the statute extinguishes the right itself the
position is very different. We will however consider the present
argument of appellant as an alternative plea and proceed forthwith
B
to deal with the same. [Para 45][578-E-F]
13. Where a period of Limitation is prescribed in a special
law, by virtue of Section 29 of the Limitation Act, such period will
apply as if it was provided in the Schedule of the Limitation Act.
Consequently, the provisions of Sections 4 to 24 will apply for
C the purpose of computation of period of limitation. This provision
is subject to a bright exception that the Limitation Act will not
apply if it is “expressly excluded” by the Special Act. [Para
46][578-F-H]
14. The Air Act, 1972 is an Act to give effect to various
D International Conventions for the unification of certain Articles
relating to international carriage by air. 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
E 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
F these provisions. [Paras 50 & 51][581-B, E-F]
15. The Warsaw Convention as amended by the Hague
Protocol is a complete code within itself for all questions relating
to carriage by air by international carriages. Rule 1(1) provides
that the Hague Protocol shall apply to “all international carriage
G of persons, baggage or cargo performed by aircraft for reward”.
Rule 2 provides that the Convention will apply to carriage
performed by the State or by legally constituted public bodies.
Chapter II of the Convention (Rules 3 to 16) is entitled
“Documents of Carriage”. Rule 3 relates to the documents that
H
M/S BHAGWANDAS B. RAMCHANDANI v. BRITISH 545
AIRWAYS

a carriage of passengers must deliver. Rule 4 prescribes a A
mechanism for baggage check. Rule 5 to 11 relates to the air
waybill in cases of cargo carriages. Rule 12 relates to the right of
the consignor to dispose of the goods in a manner that is not
prejudicial to the carrier. Rule 13 pertains to the rights of the
consignee upon the arrival of the goods. Rule 13(3) provides
B
that where there is a loss of goods, the consignee shall be entitled
to enforce the rights which ‘flow from the contract of carriage’.
Rule 14 provides for the consequences of non- compliance of
Rule 12 and 13. [Para 52][581-F-H; 582-A-B]
16. The Chapter with which we are presently concerned
with is Chapter III which is titled ‘Liability of the Carrier’. Rule C
17 provides for the liability of a carrier for damages in the event
of death or wounding or other injuries caused to a passenger
while onboard the aircraft. Rule 18 envisages the liability of a
carrier in the event of destruction, loss, damage etc. of cargo.
Similarly, Rule 19 concerns the liability of a carrier upon delay in D
the carriage of passengers, baggage or cargo. Rule 20 provides
for an equitable exemption to the carrier if he proves that he had
taken all necessary measures to negate the delay or damage.
Rule 21 is yet another equitable provision that protects the
carrier in cases of contributory negligence. Rule 22 specifies the
minimum liability of the carrier. Rule 23 nullifies all limits which E
are lower than those provided in Rule 22. [Para 53][582-B-D]
17. 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 F
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 G
would depend upon the law of the Court seized of the case. 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

H
546 SUPREME COURT REPORTS [2022] 11 S.C.R.

A period of two years for enforcing the right would be extinguished
if an action is not brought within the said period. [Para 57][583-
D-F]
18. This Court also note that giving effect to the meaning
of the words the ‘law of the court seized of the case’ would lead
B to an anomalous situation where the law of every country would
be incorporated into the Convention, thereby defeating the
purpose of an International Convention which is to bring about
uniformity across the globe in the laws applicable to carriage by
air. Having considered the matter in detail, this Court is of the
opinion that Rule 30 of the Carriage by Air Act 1972, expressly
C excludes the applicability of the Limitation Act, 1963. Issue No.2
is answered accordingly. [Para 58 & 60][583-F-G; 584-C]
Sailesh Textile Industries v. British Airways & Anr. 2003
SCC Online Del 318; Indian Airlines v. Angelique
International Ltd.& Anr. 2014 SCC Online Del 6825;
D Ethopian Airlines v. Federal Chemical Works Ltd 2004
SCC Online Del 862 Air India, Bombay Airport v. Asia
Tanning Co. 2002 SCC Online Mad 802 – approved.
Punjab National Bank and others v. Surendra Prasad
Sinha 1993 Supp (1) SCC 499 : [1992] 2 SCR 528;
E Hukumdev Narain Yadav v. Lalit Narain Mishra (1974)
2 SCC 133 : [1974] 3 SCR 31; Shanmugam v.
Commissioner for Registration [1962] 2 All E.R. 609 –
relied on.
M.R.F. Ltd. v. M/s Singapore Airlines Ltd. 2014 SCC
F Online Mad 247; M/s Air India Bombay Airport and
Another v. M/s Asia Tanning Co. and Anr. 2002 SCC
Online Mad 802; The Shipping Corporation of India
Ltd., Bombay and Anr. v. Union of India 2004 SCC
Online Mad 489; The East and West Steamship
G Company, Georgetown, Madras v. S.K. Ramalingam
Chettiar AIR 1960 SC 1058 : [1960] 3 SCR 820; Air
India Ltd. v. Tej Shoe Exporters P. Ltd. and Anr. 2013
SCC Online Del 3749; Gulf Air Company v. Nahar
Spinning Mills Ltd. and Others 1999 SCC Online P&H
915; Khadi Gram Udyog Trust v. Ram Chandraji
H Virajman Mandir (1978) 1 SCC 44 : [1978] 2 SCR
M/S BHAGWANDAS B. RAMCHANDANI v. BRITISH 547
AIRWAYS

249; Needle Industries (India) Ltd. and Anr. v. Needle A
Industries Newey (India) Holding Ltd. and Ors (1981)
3 SCC 333 : [1981] 3 SCR 698; National Aviation
Company of India Ltd. v. Jatnadevi Tejraj Jain 2011
SCC Online Guj 7601; State of Kerelaand Ors. v. V.R.
Kalliyanikutty and Anr. (1999) 3 SCC 657 : [1999]
B
2 SCR 372; Prem Singh and Ors. v. Birbal and Ors.
(2006) 5 SCC 353: [2006] 1 Suppl. SCR 692– referred
to.
United Kingdom in Laroche v. Spirit of Adventure (UK)
Ltd. (2009) EWCA Civ 12; Fishman v. Delta Airlines
938 F. Supp. 228 (1996); Sidhu v. British Airways C
[1997] 1 All ER 193; Philips v. Air New Zealand (2002)
EWHC 800; Fishman v. Delta Airlines 82 A.D. 2d 696;
Kahn v. Trans World Airlines (1981) 443 NYS 2d 79;
Bhatia v. Malaysian Airline System Berhad (2018) FCA
1471; Rukmaboye v. Lulloobhoy Motichand (1935) 5 D
HIA 234; RM. AR. AR. RM. AR. Ramanathan Chkttiar
and others v. K.M.CL.M. Somasundaram Chettiar and
Ors. (1964) 77 LW 399; R v. Secretary of State for the
Home Department exparte Adan, (1999) 4 All ER 774.
p. 785 (CA); R. (on the application of Mullen) v.
Secretary of State for the Home Department (2004) 1 E
All ER 65; Fothergill v. Monarch Airlines (1980) 2 All
ER 696; Morris v. KLM Royal Dutch Airlines [2001] 3
WLR 351; Zicherman v. Korean Air Lines Co. Ltd. 516
US 217, (1996), EI AI Israel Airlines Ltd. V. T.Y. Tseng
525 U.S. 155 (1999); Narayanan v. British Airways 2014 F
U.S. App. LEXIS 5173 : 747 F.3d 1125; Lorans v. Air
France (1977) 31 RFDA 268 Joseph v. Syrian Arab
Airlines 88 F.R.D. 530 (S.D.N.Y. 1980); Flanagan v.
McDonnell Douglas Corp 428 F. Supp. 770 (C.D. Calf.
1977) – referred to.
G
Case Law Reference
[1960] 3 SCR 820 referred to Para 7.1
[1992] 2 SCR 528 relied on Para 13.4

H
548 SUPREME COURT REPORTS [2022] 11 S.C.R.

A [1978] 2 SCR 249 referred to Para 13.5
[1999] 2 SCR 372 referred to Para 13.5
[2006] 1 Suppl. SCR 692 referred to Para 15.1
[1981] 3 SCR 698 referred to Para 47
B [1974] 3 SCR 31 relied on Para 48
CIVIL APPELLATE JURISDICTION : Civil Appeal No.4978
of 2022.
From the Judgment and Order dated 02.02.2018 of the High Court
of Judicature at Bombay in Writ Petition No.6647 of 2014.
C Vinay Navare, Sr. Adv., Pravartak Pathak, Ms. Gwen Karthika,
Ms. Abha R. Sharma, Advs. for the Appellant.
Ms. Ritu Singh Mann, Dheeraj K. Garg, Rajan K. Chourasia,
Advs. for the Respondent.
The Judgment of the Court was delivered by
D
PAMIDIGHANTAM SRI NARASIMHA, J.
1. Leave granted.
2.1 Carriage by Air Act, 1972, incorporates international air traffic
conventions of Warsaw, 1929, Hague Protocol, 1955, and Montréal
E Convention, 1999 in the First, Second, and the Third Schedules of the
Act. Rule 30 of the Second Schedule, which incorporates the Hague
Protocol, provides that the right to damages will be extinguished if an
action is not brought within a period of two years from the dates mentioned
in the Rule. Sub-rule (2) of Rule 30 provides that the method of calculating
the period of limitation shall be determined by the law of the Court seized
F of the matter. As Limitation Act, 1963 is the law applicable to the Courts
in India, it is contended on behalf of the consumers of the Airlines that
the exclusion of periods of limitation provided in the Limitation Act shall
apply for computation of the period of two years mentioned in Rule 30
(1).
G 2.2 Two substantial questions of law have arisen for our
consideration. The first relates to the applicability of the Limitation Act
when the right itself is extinguished, as against a barring of remedy, as
in the case of Section 3 of Limitation Act. The second question is whether
the provisions of the Carriage by Air Act, 1972 expressly exclude the
Limitation Act, 1963 as provided in Section 29.
H
M/S BHAGWANDAS B. RAMCHANDANI v. BRITISH 549
AIRWAYS [PAMIDIGHANTAM SRI NARASIMHA, J.]

2.3 On the first question, we have resolved the apparent conflict A
between Sub-rule (1) and Sub-rule (2) of Rule 30 by referring to the
legislative history of the conventions as provided in the Vienna Convention
on the Law of Treaties, 1969. The travaux preparatoires leading to the
formation of the Convention establishes that the Convention sought to
exclude any interruption in the period of two years specified in the Article.
B
We have also followed the well-recognized principle that while
interpreting municipal laws giving effect to International Conventions,
Courts must endeavor to maintain uniformity in the interpretation in order
to sub-serve the very purpose of the Conventions. Having examined the
judgments of various jurisdictions, we are satisfied that they are in
consonance with the interpretation that we have adopted in construing C
Sub-rule (2) of Rule 30. Sub-rule (2) in our opinion does not derogate
from the intent of Sub-rule (1) excluding the applicability of the Limitation
Act but merely empowers the Court to determine the period of two
years.
2.4 On the second question, after examining the provisions of the D
Carriage by Air Act, 1972, we have held that Rule 30 expressly excludes
the Limitation Act as provided in Section 29.
Facts and Proceedings:
3. The Appellant is a sole proprietary concern engaged in the
business of imports and exports. The Appellant sent a cargo containing E
fruits and vegetables from Mumbai to Canada via London by employing
services of British Airways1 on 04.01.2010. However, on 06.01.2010
due to bad weather conditions in London the flight could not depart to
Canada, as a result the fruits and vegetables were damaged and were
consequently destroyed. The Appellant lodged a claim for ` 1,70,221.56/ F
- with the Respondent. On 30.06.2010, the Appellant once again sent a
similar cargo containing fruits and vegetables from Mumbai to Canada.
Yet again, the cargo could not be sent due to packaging and other issues
and, as a consequence, the cargo had to be destroyed. The Appellant
raised a claim dated 20.07.2010 for ` 4,27,922/-. Acknowledging the
receipt of the notice, the Respondent sent a mail on 02.11.2010 offering G
to settle the matter at 50% of the claim amount.
4. It is in the above-referred background that the Appellant
instituted a suit being OS No. 5164/2012 on 15.09.2012 before the City
1
hereinafter referred to as the ‘Respondent’. H
550 SUPREME COURT REPORTS [2022] 11 S.C.R.

A Civil Court, Mumbai for recovery of the amount of ` 9,17,642.56/-, with
interest at the rate of 21% per annum2. The Respondent filed written
statements stating inter alia that the suit is barred by limitation.
Before the Trial Court:
5. The Trial Court framed a preliminary issue on the ground of
B limitation and by its judgment dated 05.02.2014 held that the suit is not
barred by limitation as the period prescribed in Rule 30 of the Second
Schedule to the Carriage by Air Act, 19723 could be calculated from
28.10.2010, that is, the date when the Respondent had acknowledged a
proposed settlement of the claim at 50% of the demand. For this purpose,
C the Trial Court relied on Section 18 of the Limitation Act by taking it for
granted that the said Act is applicable to proceedings under the Air Act.
6. Aggrieved by the decision of the Trial Court on the preliminary
issue, Appellant filed a Writ Petition No. 6647/2014 before the High
Court of Bombay. By the judgment impugned herein, the High Court
D allowed the Writ Petition holding that the suit is barred by limitation. The
reasoning adopted by the High Court is that the Air Act, 1972 being a
later and a special statute, will have an overriding effect over the earlier
and the general statute, being the Limitation Act, 1963.
Before the High Court:
E 7.1 The High Court relied on the decisions of the High Court of
Madras in M.R.F. Ltd. v. M/s Singapore Airlines Ltd.4, M/s Air India
Bombay Airport and Another v. M/s Asia Tanning Co. and Anr.5,
The Shipping Corporation of India Ltd., Bombay and Anr. v. Union
of India 6, The East and West Steamship Company, Georgetown,
F Madras v. S.K. Ramalingam Chettiar7, Air India Ltd. v. Tej Shoe
Exporters P. Ltd. and Anr.8 and Gulf Air Company v. Nahar Spinning
Mills Ltd. and Others9 which took the view that Carriage by Air Act,
2
For completion of the narration, it may be stated that the appellant had initially
approached the District Consumer Forum which took the view that the transaction is
commercial in nature and therefore, it did not have the jurisdiction. The appeal and
G revision against that order were also dismissed, though on the ground of delay.
3
hereinafter referred to as ‘Air Act, 1972’.
4
2014 SCC Online Mad 247.
5
2002SCC Online Mad 802.
6
2004 SCC Online Mad 489.
7
AIR 1960 SC 1058.
8
2013 SCC Online Del 3749.
H 9
1999 SCC Online P & H 915.
M/S BHAGWANDAS B. RAMCHANDANI v. BRITISH 551
AIRWAYS [PAMIDIGHANTAM SRI NARASIMHA, J.]

1972 excludes the applicability of Limitation Act. The High Court observed A
that: -
“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 an B
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 Schedule II of the Act.”
7.2 As a consequence of such a decision, the High Court set C
aside the decision of the Trial Court on the preliminary issue and held
that the suit is barred by limitation and dismissed the same.
Submissions:
8.1 Shri Vinay Navare, Senior Advocate, appearing for the
Appellant submitted that Section 29(2) of the Limitation Act provided D
that unless the Limitation Act is expressly excluded, its provision applies
to any law prescribing a distinct period of limitation. He submitted that
Rule 30 of the Second Schedule of the Air Act, 1972 has not expressly
excluded the applicability of the Limitation Act. He further submitted
that Rule 30 (2) explicitly enables “method of calculating the period E
of limitation” based on the law of the Court seized of the case. On this
basis, he urged that the provisions of the statutes are complementary to
each other and must be read harmoniously. He fairly brought to our
notice the judgment of the Court of Appeal in the United Kingdom in
Laroche v. Spirit of Adventure (UK) Ltd.10 and the judgment of the
Second Circuit of the United States Court of Appeals in Fishman v. F
Delta Airlines11.In these cases, the Courts have taken the view that the
municipal laws governing the period of limitation are not to be applied
for claims made under the statutes based on international conventions.
Shri Navare distinguished these judgments on the ground that the statutory
position based on Section 29(2) of the Limitation Act read with correct G
interpretation of Rule 30 of Second Schedule of the Air Act, 1972 would
stand on a different footing, and therefore these judgments are
distinguishable.
10
(2009) EWCA Civ 12.
11
938 F. Supp. 228 (1996)
H
552 SUPREME COURT REPORTS [2022] 11 S.C.R.

A 8.2 Ms. Ritu Singh Mann, Advocate for the Respondent-Airlines,
primarily contended that the exclusion under Section 29(2) can be implied
from the provisions of the Air Act, 1972. The Learned Counsel relied on
the judgment of this Court in Hukumdev Narain Yadav v. Lalit Narain
Mishra12. In the written submissions, for the first time, the Respondent
sought to argue that it is Rule 35 of the Third Schedule and not Rule 30
B
of the Second Schedule of the Air Act, 1972 which will be applicable to
the case at hand13. Our attention was also drawn to the judgments of the
Courts in United Kingdom (Sidhu v. British Airways14, Philips v. Air
New Zealand15), the United States of America (Fishman v. Delta
Airlines16, Kahn v. Trans World Airlines17) and Australia (Bhatia v.
C Malaysian Airline System Berhad18) to buttress the submissions.
Issues:
9. In view of the rival submissions, the following issues arise for
consideration:

D 1. Does Limitation Act, 1963 apply to the period specified in
Rule 30 of the Second Schedule of the Carriage by Air Act,
1972?
2. Whetherthe Air Act, 1972, particularly Rule 30 of the Second
Schedule expressly excludes the applicability of the
E Limitation Act, 1963?
Issue No.1:
Does Limitation Act, 1963 apply to the period specified in
Rule 30 of the Second Schedule of the Carriage by Air Act, 1972?
10. It is to be noticed that matters concerning the international
F
carriage of persons, baggage, or cargo performed by aircraft for reward
are the subject matter of International Conventions. These are
12
(1974) 3 SCR 31.
13
The submission of the Respondent, taken for the first time in the written submission
that it is Section 4A and the Third Schedule of the Act, which is applicable need not
detain us as there is virtually no difference between Rule 35 of the Third Schedule and
G Rule 30 of the Second Schedule. We will therefore proceed based on Second Schedule
only.
14
[1997] 1 All ER 193
15
(2002) EWHC 800 (Commercial Court).
16
Supra no. 11.
17
82 A.D. 2d 696: (1981) 443 NYS 2d 79.
18
H (2018) FCA 1471.
M/S BHAGWANDAS B. RAMCHANDANI v. BRITISH 553
AIRWAYS [PAMIDIGHANTAM SRI NARASIMHA, J.]

incorporated into our laws through the Schedules to theAir Act, 1972. A
Section 319 of the Air Act, 1972 incorporates the Warsaw Convention,
192920 into the First Schedule and specifically provides that it shall
have the status of law in India. Section 421 incorporates the Hague
Protocol dated 28.09.1955 and provisions it in the Second Schedule
and gives it the status of law in India. Similarly, Section 4A22 brought
B
into force in 2009 for giving effect to the Montréal Convention, 199923
incorporates it in the Third Schedule to the Act and gives it the status
of law in India.
11. Chapter III of the Second Schedule relates to, ‘Liability of
the Carrier’, which recognizes the principle of International Law of lex
fori, as per which suits and proceedings in the judicial for a of the member C
nations are to be governed by the law of the Court in which the proceeding
is instituted24. This principle is recognized by Rule 29(2) of the Second
Schedule itself;
“Rule 29. (1) An action for damages must be brought, at the
option of the plaintiff, in the territory of one of the High D
Contracting Parties, either before the Court having
jurisdiction where the carrier is ordinarily resident, or has
19
Section 3 : Application of Convention to India
(1) The rules contained in the First Schedule, being the provisions of the Convention
relating to the rights and liabilities of carriers, passengers, consignors, consignees, E
and other persons, shall, subject to the provisions of this Act, have the force of law in
India in relation to any carriage by air to which those rules apply, irrespective of the
nationality of the aircraft performing the carriage.
20
Convention for the Unification of Certain Rules Relating to International Carriage by
Air, Signed at Warsaw on 12 October 1929.
21
Section 4 : Application of amended Convention to India
(1) The rules contained in the Second Schedule, being the provisions of the amended F
Convention relating to the rights and liabilities of carriers, passengers, consignors,
consignees and other persons, shall, subject to the provisions of this Act, have the force
of law in India in relation to any carriage by air to which those rules apply, irrespective
of the nationality of the aircraft performing the carriage.”
22
Section 4A : Application of Montreal Convention to India
(1) The rules contained in the Third Schedule, being the provisions of the Montreal
Convention relating to the rights and liabilities of carriers, passengers, consignors,
G
consignees, and other persons, shall, subject to the provisions of this Act, have the force
of law in India in relation to any carriage by air to which those rules apply, irrespective
of the nationality of the aircraft performing the carriage
23
Convention for the Unification of Certain Rules Relating to International Carriage by
Air, Signed at Montreal on 28 May, 1999.
24
Rukmaboye v. LulloobhoyMotichand (1935) 5 HIA 234. H
554 SUPREME COURT REPORTS [2022] 11 S.C.R.

A his principal place of business, or has an establishment by
which the contract has been made or before the Court have
jurisdiction at the place of destination.
(2) Question of procedure shall be governed by the law of the
Court seized of the case.”
B
12. The procedural law governing the institution and adjudication
of civil suits in India includes the Civil Procedure Code, 1908 as well as
the Limitation Act, 1963. The Limitation Act is a branch of adjectival
law, and applies to all proceedings which it governs from the date of its
enactment. There is however a well-established principle, which states
C that when the right itself is extinguished, the provisions relating to limitation
have no application. A direct example where the right itself is extinguished,
can be evidenced in Section 1125 as well as Section 2726 of the Limitation
Act, 1963. Section 11 deals with suits filed in India with respect to
contracts entered in foreign countries. Following the Principle of lex
fori, the Section provides that rules of limitation provided in a foreign
D
jurisdiction are not applicable. However, the exception to this Rule is
provided in Section 11 (2)(a), when the Contract i.e., the right itself
expires. Similarly, Section 27 also recognizes the principle of
extinguishment of Right to Property being an exception to the
applicability of the Limitation Act, 1963.
E 13.1 The distinction between barring a remedy as exception is
well established, as can be seen in the following precedents. The
extinguishment of the right and its effect on limitation is well recognized
by courts of law. We may refer to some of the important precedents.
25
Section 11. Suits on contracts entered into outside the territories to which the
F Act extends
(1) Suits instituted in the territories to which this Act extends on contracts entered into in
the State of Jammu and Kashmir or in a foreign country shall be subject to the rules of
limitation contained in this Act.
(2) No rule of limitation in force in the State of Jammu and Kashmir or in a foreign
country shall be a defence to a suit instituted in the said territories on a contract entered
into in that State or in a foreign country unless-
G (a) the rule has extinguished the contract; and
(b) the parties were domiciled in that State or in the foreign country during the
period prescribed by such rule.
26
Section 27. Extinguishment of right to property
At the determination of the period hereby limited to any person for instituting a suit for
possession of any property, his right to such property shall be extinguished.
H
M/S BHAGWANDAS B. RAMCHANDANI v. BRITISH 555
AIRWAYS [PAMIDIGHANTAM SRI NARASIMHA, J.]

13.2 A similar issue as in the present case, arose for consideration A
in TheEast and West Steamship Company v. S.K. Ramalingam
Chettiar27, where this Court had to consider 3rd Clause of Para 6 of
Article III in Schedule to the Indian Carriage of Goods by Sea Act,
192528 wherein, while interpreting the expression discharge from the
liability, this Court held as under: - B
“….The question we have to decide is whether in saying that
the ship or the carrier will be “discharged from liability”,
only the remedy of the shipper or the consignee was being
barred or the right was also being terminated. It is useful to
remember in this connection the international character of C
these rules, as has been already emphasized above. Rules of
limitation are likely to vary from country to country. Provisions
for extension of periods prescribed for limitation would
similarly vary. We should be slow therefore to put on the word
“discharged from liability” an interpretation which would
D
produce results varying in different countries and thus keeping
the position uncertain for both the shipper and the shipowner.
Quite apart from this consideration, however, we think that
the ordinary grammatical sense of “discharged from liability”
does not connote “free from the remedy as regards liability”
but are more apt to mean a total extinction of the liability E
following upon an extinction of the right. We find it difficult
to draw any reasonable distinction between the words
“absolved from liability” and “discharged from liability” and
think that these words “discharged from liability” were
intended to mean and do mean that the liability has totally F
disappeared and not only that the remedy as regards the
liability has disappeared. We cannot agree with the learned
Judge of the Madras High Court that these words merely mean
that “that even though the right may inhere in the person
who is entitled to the benefits, still the liability in the opposite
G
party is discharged by the impossibility of enforcement.”The

27
Supra no. 7.
28
"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 the delivery of the goods
or the date when the goods should have been delivered.”
H
556 SUPREME COURT REPORTS [2022] 11 S.C.R.

A distinction between the extinction of a right and the extinction
of a remedy for the enforcement of that right, though fine, is
of great importance. The Legislature could not but have been
conscious of this distinction when using the words
“discharged from all liability” in an article purporting to
B prescribe rights and immunities of the shipowners. The words
are apt to express an intention of total extinction of the liability
and should, specially in view of the international character
of the legislation, be construed in that sense. It is hardly
necessary to add that once the liability is extinguished under
this clause, there is no scope of any acknowledgment of
C liability thereafter.”

13.3 In RM. AR. AR. RM. AR. Ramanathan Chkttiar and others
v. K.M.CL.M. Somasundaram Chettiar and Ors.29, it was held as
follows: -
D “It is a well-accepted rule of International Law that all matters
of procedure will be governed by the law of the country in
which the Court where any legal proceeding is initiated is
situate. Statutes of limitation in so far as they prescribe periods
within which claim should be enforced, whereby the remedy
E alone is barred, are regarded as merely procedural.

But there may be provisions in such statutes which extinguish
the rights of the parties. S. 28 of the Indian Limitation Act is
an instance where on the remedy being barred the right to
property also stands extinguished. In such a case, that is,
F where there is no right alive by reason of its extinguishment
by a statute there could obviously be nothing to be enforced
in that country or in any foreign country. Provisions of that
kind cannot be regarded as merely procedural as they create
or destroy substantive rights of parties. This principle has
G been recognised in a statutory-form in S. 11 (2) of the Indian
Limitation Act.”

13.4 In Punjab National Bank and others v. Surendra Prasad
Sinha30, this Court held:
29
(1964) 77 LW 399.
30
H 1993 Supp (1) SCC 499.
M/S BHAGWANDAS B. RAMCHANDANI v. BRITISH 557
AIRWAYS [PAMIDIGHANTAM SRI NARASIMHA, J.]

“5. …The rules of limitation are not meant to destroy the rights A
of the parties. Section 3 of the Limitation Act 36 of 1963, for
short “the Act” only bars theremedy, but does not destroy the
right which the remedy relates to. The right to the debt
continues to exist notwithstanding the remedy is barred by
the limitation. Only exception in which the remedy also B
becomes barred by limitation is that the right itself is destroyed.
For example, under Section 27 of the Act a suit for possession
of any property becoming barred by limitation, the right to
property itself is destroyed. Except in such cases which are
specially provided under the right to which remedy relates in
other case the right subsists. Though, the right to enforce the C
debt by judicial process is barred under Section 3 read with
the relevant article in the schedule, the right to debt remains.
The time barred debt does not cease to exist by reason of
Section 3. That right canbe exercised in any other manner
than by means of a suit. The debt is not extinguished, but the D
remedy to enforce the liability is destroyed. What Section 3
refers is only to the remedy but not to the right of the creditors.
Such debt continues to subsist so long as it is not paid….”

13.5 The principles laid down in the above referred precedents
are consistently followed in decisions of this Court in Khadi Gram Udyog E
Trust v. Ram Chandraji Virajman Mandir31, State of Kerela and Ors.

31
(1978) 1 SCC44.
“4. ……There is ample authority for the proposition that though a debt is time-barred,
it will be a debt due though not recoverable, the relief being barred by limitation. F
In Halsbury’s Laws of England (Third Edn.) Vol. 24 at p. 205, Article 369, it is stated
“except in the cases previously mentioned, the Limitation Act, 1939 only takes away the
remedies by action or by set-off; it leaves the right otherwise untouched and if a creditor
whose debt is statute-barred has any means of enforcing his claim other than by action
or set-off, the Act does not prevent him from recovering by those means”. The Court of
appeal in Curwen v. Milburn [(1889) 42 Ch D 424] Cotton, LJ said:”Statute-barred
debts are dues, though payment of them cannot beenforced by action.”The same view G
was expressed by the Supreme Court in Bombay Dyeing and Manufacturing Co. Ltd.
v. State of Bombay [AIR 1958 SC 328: 1958 SCR1122 : (1958) 1 Lab LJ 778] where it
held that the statute limitation only bars the remedy but does not extinguish the debt,
except in cases provided for by Section 28 of the Limitation Act, which does not apply to
a debt.”
H
558 SUPREME COURT REPORTS [2022] 11 S.C.R.

A v. V.R. Kalliyanikutty and Anr.32 and also in Prem Singh and Ors. v.
Birbal and Ors.33.
14. In view of the well-established position of law relating to Lex
Fori in International Law, with the equally well-established exception
arising out of the extinguishment of the right or the liability itself, we will
B now examine the position in India as per Rule 30 in the Second Schedule
of the Air Act, 1972 relating to liability of the carrier. Rule 30 is of the
Air Act, 1972 is extracted as under:-
“30. (1) The right to damages shall be extinguished if an action
is not brought within two years, reckoned from the date of
C arrival at the destination, or from the date on which the aircraft
ought to have arrived, or from the date on which the carriage
stopped.
(2) The method of calculating the period of limitation shall
be determined by the law of the Court seized of the case.”
D Analysis of Sub-Rule (1) of Rule 30:
15.1 While Rule 29 speaks about judicial remedy for initiating an
action for damages, Rule 30 uses the expression right to damages. It is

32
(1999) 3 SCC 657
E “15. It has been submitted before us that the statute of limitation merely bars the remedy
without touching the right. Therefore, the right to recover the loan would remain even
though the remedy by way of a suit would be time-barred. Reliance was placed on Khadi
Gram Udyog Trust v. Ram ChandrajiVirajman Mandir, (1978) 1 SCC 44 in this
connection. The Court there observed that though a debt may be time-barred, it would
still be a debt due. The right remains untouched and if a creditor has any means of
enforcing his right other than by action or set-off, he is not prevented from doing so.
F In Punjab National Bank v. Surendra Prasad Sinha [1993 Supp (1) SCC 499] this
Court held that the rules of limitation are not meant to destroy the rights of parties.
Section 3 of the Limitation Act only bars the remedy but does not destroy the right which
the remedy relates to. Excepting cases which are specifically provided for, as for example,
under Section 27 of the Limitation Act, the right to which the remedy relates subsists.
Though the right to enforce the debt by judicial process is barred, that right can be
exercised in any manner other than by means of a suit. For example, a creditor’s right
G to make adjustment against time-barred debts exists.”
33
(2006) 5 SCC 353.
“11. Limitation is a statute of repose. It ordinarily bars a remedy, but, does not extinguish
a right. The only exception to the said rule is to be found in Section27 of the Limitation
Act, 1963 which provides that at the determination of the period prescribed thereby,
limited to any person for instituting a suit for possession of any property, his right to
H such property shall be extinguished.”
M/S BHAGWANDAS B. RAMCHANDANI v. BRITISH 559
AIRWAYS [PAMIDIGHANTAM SRI NARASIMHA, J.]

in the context of right as against a remedy that the purpose, object and A
meaning of Rule 30 is to be understood. Further, Rule 30 also uses the
expression “extinguishment” as against “bar”, which is generally used
in the context of a remedy. Therefore, the extinguishment is of right,
that is, the right to damages is the subject matter of Sub-Rule (1) of
Rule 30. The expressions, ‘right’ and ‘extinguished’ employed by the
B
Convention as adopted and incorporated by the Parliament in Rule 30 of
the Second Schedule clearly establishes the intention of the law-giver
that the right to damages would not subsist after the expiry of the
period mentioned therein.
15.2 Once the right to damages is extinguished upon the expiry of
two years reckoned from the three alternative dates mentioned in the C
Rule itself, nothing would remain for enforcement. 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. For
this reason, in The East and West Steamship Co.34, this Court held that
once the right of liability is extinguished under the clause, there is no D
scope of acknowledging the liability thereafter.
15.3 This is the position of law is obtained from the plain language
of Sub-Rule (1) of Rule 30. The position is however very different when
we proceed further to consider Sub-Rule(2) of Rule 30.
Sub-Rule (2) of Rule 30: E

16.1 Sub-Rule (2) is extracted as under: -
“(2) The method of calculating the period of limitation shall
be determined by the law of the Court seized of the case.”
16.2 In its plain and simple language, Sub-Rule (2) seems to adopt F
the applicability of the Limitation Act, 1963 as Courts in India exercise
jurisdiction. ‘The method of calculating the period specified in Sub-
rule (2)naturally relates to the period’ specified in Sub-rule (1). Sub-
Rule (1) identifies and fixes two incidents. The period of limitation and
the date of commencement of the said period (the three specified dates). G
Therefore, when the period of limitation, as well as the date of
commencement of the said period, are already given, the method of
calculation of the period of limitation contemplated under Sub-Rule
(2) must relate to some other factor. However, without specifying the
34
Supra no. 7. H
560 SUPREME COURT REPORTS [2022] 11 S.C.R.

A variable to which the method of calculating the period, is to apply, Sub-
rule (2) merely provides that it “shall be determined by the law
applicable to the Court seized of the case.” This has caused uncertainty
about the intent of the lawmakers, be it the Convention or Rule 30 of the
Second Schedule of the Act.
B 16.3 Further, the expression in Rule 30(2)calculating the period
of limitation is synonymous to the expression computation of period of
limitation provided in Part-III of the Limitation Act, 1963. Part-III which
relates to the exclusion of certain time periods is to sub-serve a just
cause based on public policy which recognizes human vulnerabilities.
C Broadly, these periods relate to (i) the date from which the period is to
be reckoned (Section 12); (ii) the time taken for seeking to contest as a
pauper, (Section 13); (iii)the bona fide period involved in the perusal of
a remedying the wrong Court(Section 14);(iv) fraud (Section 17); (v)
acknowledgment of debt (Section 18); (vi) admitted payments on account
of debt (Section 19); (vii)continuous breach etc. These are the periods
D
that can be excluded while computing the period of limitation under the
Limitation Act, 1963.

17.1 It is in the above-referred context that Shri Navare, learned
counsel appearing on behalf of the Appellant has emphasized the
E affirmation of the Limitation Act to proceedings under the Air Act, 1972
as per the plain language of Rule 30(2) and submitted that the expression,
‘method of calculating limitation period’ in Rule 30(2) is akin to the
expression ‘for the purpose of determining any period of limitation’
provided in Section 29(2) of the Limitation Act. He contends that the
Sub-Rule (2) of Rule 30 specifically incorporates Limitation Act into the
F legal regime of the Air Act, 1972.
17.2 On the other hand, Ms. Ritu Singh Mann, relied on Section
29(2) of the Limitation Act to submit that the provisions of the Limitation
Act are expressly excluded by the special law of the Air Act, 1972. The
written submissions emphasized the purpose and object of the
G
International Conventions, which provided for ‘collective State action
for further harmonization and codification of certain rules
governing international carriage by Air’. It is then submitted that if
courts of every signatory state were to interpret the provisions of the
Convention in their own way, then the very purpose of achieving uniformity
H
M/S BHAGWANDAS B. RAMCHANDANI v. BRITISH 561
AIRWAYS [PAMIDIGHANTAM SRI NARASIMHA, J.]

in application of the Conventions would be lost. For the first time in the A
written submissions, the Respondent has taken a plea that it is Rule 35
of the Third Schedule and not Rule 30 which will be applicable. However,
on consideration we do not find any notable difference between the two
and hence, we would proceed to refer Rule 30 of the Second Schedule
in our further analysis. B
18. The rival submissions surface due to an apparent conflict
between Sub-Rule (1) and Sub-Rule (2) of Rule 30 of the Second
Schedule. While Sub-Rule (1) extinguishes the right itself upon the
expiry of the period of two years, after which nothing would remain
for enforcement, Sub-Rule (2) seems to suggest that the Court seized C
of the case can apply the law of limitation applicable to its proceedings
and entertain the suit of the proceedings. We will now analyze and
interpret Rule 30 of the Second Schedule.

19.1 However, before we proceed to interpret Rule 30, it is
necessary to clear certain doubts about the applicability of the correct D
Schedule. While the suit was instituted on the assumption that it is Rule
30 of the Second Schedule adopting the Warsaw Convention, 1929 as
amended by the Hague Protocol, 1955 would be applicable to the
proceedings, the Trial as well as the High Court and even the parties
assumed that this is the correct Rule that would apply to the facts of the E
case. It is for the first time in the written submission that the Respondent
stated that it is Rule 35 of the Third Schedule of the Montréal Convention,
1999 that will apply to the facts of the case. The change in the stand is
apparently due to the deletion of two words “of limitation” occurring in
Sub-Rule (2) of the Second Schedule from the same provision introduced
under Rule 35 of the Third Schedule. Based on this minor change the F
Appellant advanced an argument in the written submission that the
conscious deletion of the expression “of limitation” clarifies the position
that Sub-Rule (2) only relates to a period of two years and has got
nothing to do with “a period of limitation” and therefore, the Limitation
Act has no application. G
19.2 A comparative statement of the Third Schedule relatable to
the Warsaw Convention, 1929, Warsaw Convention as amended by
Hague Protocol, 1955, and the Montréal Convention of 1999 is reproduced
herein for ready reference: -
H
562 SUPREME COURT REPORTS [2022] 11 S.C.R.

A Rule 29 Schedule I Rule 30 Schedule II (Article Rule 35 Schedule III (Article
(Article 29 of the Warsaw 29 of the Warsaw Convention 35 of the Montreal Convention,
Convention, 1929) as amended by Hague 1999)
Protocol, 1955)

The right of damages shall be (1) The right to damages shall (1) The right to damages shall
extinguished if an action is not be extinguished if an action is be extinguished if an action is
brought within two years, not brought within two years, not brought within a period of
reckoned from the date of reckoned from the date of two years, reckoned from the
B arrival at the destination, or arrival at the destination, or date of arrival at the
from the date on which the from the date on which the destination, or from the date
aircraft ought to have arrived, aircraft ought to have arrived, on which the aircraft ought to
or from the date on which the or from the date on which the have arrived, or from the date
carriage stopped. carriage stopped. on which the carriage stopped.

(2) The method of calculating
(2) The method of calculating the period shall be determined
the period of limitation shall by the law of the Court seized
C be determined by the law of of the case.
the Court seized of the case.

19.3 It would be apparent from the above that even after the
deletion of the expression “of limitation” in the Montréal Convention of
1999, the difficulty persists in as much as Sub-Rule(2) talks about the
method of “calculating the period” and as such a period must necessarily
D
relate to the period of two years as specified in Sub-Rule (1) of Rule 30.
Calculation of the period for an action for damages would necessarily
involve law of Limitation as that is an adjective statute governing suits
and other proceedings instituted in India. Even assuming that the deletion
of the expression brings more clarity to the scope and ambit of the Rule,
E that will be confined to Rule 35(2) of the Third Schedule and the difficulty
would continue to prevail with respect to the period during which Rule
30 of the Second Schedule operates. It is, therefore, compelling and the
primary duty of the Court to analyze, interpret and declare the true and
correct meaning of the said provision.
F Interpretation
20. Our task is to decipher and declare the correct meaning and
purport of Rule 30 of the Second Schedule of the Act. Schedule Two of
the Act merely incorporates the Warsaw Convention, as amended by
the Hague Protocol, 1955. It is well known that incorporation of a
G Convention or a treaty into municipal laws is normally carried out in
three ways and the status that it enjoys depends on the nature of
incorporation. Referring to the Use of International treaties in Part
XIV under Section 221, Francis Bennion35 observed as under:
35
See, Bennion on Statutory Interpretation, 6th Edition, 2013. [Part XIV: The Informed
Interpretation Rule (Legislative History), pg. 632.]
H
M/S BHAGWANDAS B. RAMCHANDANI v. BRITISH 563
AIRWAYS [PAMIDIGHANTAM SRI NARASIMHA, J.]

“(1) An international treaty may have three different kinds A
of status, considered as a source of law-
(a) an Act may embody, whether or not in the same
words, provisions having the effect of the treaty
(in this Code referred to as direct enactment of
the treaty); B
(b) an Act may say that the treaty is itself to have
effect as law, leaving the treaty’s provisions to
apply with or without modification (in this Code
referred to as indirect enactment of the treaty);
(c) the treaty may be left simply as an international C
obligation, being referred to in the construction
of a relevant enactment only so far as called for
by the presumption that Parliament intends to
comply with public international law.
(2) Whichever status a treaty has, its provisions may be D
referred to as an aid in the interpretation of a relevant
enactment. So too may its preparatory work (travaux
preparatoires), the decision on it of foreign courts (la
jurisprudence) and the views on it of foreign jurists (la
doctrine).”
E
21. Vienna Convention on Law of Treaties, 1969 can be referred
to as a “treaty on treaties”. It establishes comprehensive rules,
procedures, and guidelines for how treaties are defined, drafted, amended,
interpreted, and generally operated. Section 3 of Vienna Convention
relates to interpretation of treaties, of which Articles 31 and 32 are
relevant for our purposes and are extracted herein below for ready F
reference.
“SECTION 3. INTERPRETATION OF TREATIES
Article 31: General rule of interpretation
1. A treaty shall be interpreted in good faith in accordance
G
with the ordinary meaning to be given to the terms of the
treaty in their context and in the light of its object and purpose.
2. The context for the purpose of the interpretation of a treaty
shall comprise, in addition to the text, including its preamble
and annexes:
H
564 SUPREME COURT REPORTS [2022] 11 S.C.R.

A (a) any agreement relating to the treaty which was made
between all the parties in connection with the conclusion
of the treaty;
(b) any instrument which was made by one or more parties
in connection with the conclusion of the treaty and accepted
B by the other parties as an instrument related to the treaty.
3. There shall be taken into account, together with the context:
(a) any subsequent agreement between the parties regarding
the interpretation of the treaty or the application of its
provisions;
C
(b) any subsequent practice in the application of the treaty
which establishes the agreement of the parties regarding
its interpretation;
(c) any relevant rules of international law applicable in
D the relations between the parties.
4. A special meaning shall be given to a term if it is established
that the parties so intended.”
22. Apart from Article 31, it is also important for us to note Article
32 which relates to “Supplementary means of Interpretation”.
E “Article 32: Supplementary means of interpretation
Recourse may be had to supplementary means of
interpretation, including the preparatory work of the treaty
and the circumstances of its conclusion, in order to confirm
the meaning resulting from the application of article 31, or to
F determine the meaning when the interpretation according to
article 31:
(a) leaves the meaning ambiguous or obscure; or
(b) leads to a result which is manifestly absurd or
G unreasonable.”
23. When statutes are enacted to give effect to a treaty or
convention, Articles 31 and 32 of the Vienna Convention becomes
relevant for interpretation of such statutes 36.The court must be
36
R v. Secretary of State for the Home Department exparte Adan, (1999) 4 All ER 774.
p. 785 (CA);
H
M/S BHAGWANDAS B. RAMCHANDANI v. BRITISH 565
AIRWAYS [PAMIDIGHANTAM SRI NARASIMHA, J.]

untrammeled by notions of its national legal culture, for the true, A
autonomous and international meaning of the treaty. And, there can only
be one true meaning.37 One event of adaptation of this method occurred
in the case of Fothergill v. Monarch Airlines38, in construing the
Carriage by Air Act, 196139 in the United Kingdom which was enacted
to give effect to the Warsaw Convention. The House of Lords held that
B
in dealing with such an Act, a purposive construction should be applied
and reference could be made to the opinion of international jurists as
also to travaux preparatoires of the convention in a limited sense.40
24. Following Article 32 authorizing recourse to supplementary
means of interpretation, including preparatory works of a treaty, we will
now proceed to examine the legislative history of Article 29 of the Warsaw C
Convention, 1929 which eventually was modified in 1955 in the Hauge
Protocol and thereafter by the Montréal Convention in 1999. The original
draft of this clause as of 1929 occurred as Article 28 was as under:
“28. The right of damages shall be extinguished if an action
is not brought within two years, reckoned from the date of D
arrival at the destination, or from the date on which the
aircraft ought to have arrived, or from the date on which the
carriage stopped.
(2)”the manner of calculating the period of limitation, as well
as the causes for suspension and interruption of the period E
of limitation, shall be determined by the law of the forum
court.”
25.1 The above draft fell for consideration before it was adopted
in the convention as Article 29. The member States deliberated on the
proposed Articles of the Carriage by Air Convention between 4th to 12th F
October, 1929 in Warsaw. During the process, the members deliberated
on Article 28 on 07.10.1929. At that time, Republic of Italy raised the
following objection with respect to the draft Article:
37
R. (on the application of Mullen) v. Secretary of State for the Home Department
(2004) 1 All ER 65, p. 84)
See further, Justice G.P. Singh, Principles of Statutory Interpretation. 14 th Edition, pg
G
693.
38
(1980) 2 All ER 696.
39
The Act sets out the convention in a schedule in two parts. Part I sets out the English
text and Part II, the French text. In case of inconsistency, the Act says that the French
text is to prevail.
40
(1980) 2 All ER 696: (1981) AC 251. H
566 SUPREME COURT REPORTS [2022] 11 S.C.R.

A “The period of time, in order that there be interruption of the
period of limitation, varies with the country, and it is very
difficult for the shipper, the consignor to know when the
interruption or the suspension begins. Despite the period of
two years fixed for the period of limitation, he must always
wait until this period of limitation runs and this period of two
B
years which is necessary to give some kind of tranquility is
modified.
Moreover, the system which we have proposed becomes very
simple; if two years after the accident no action has been
brought, all actions are extinguished. As a consequence, the
C second paragraph would disappear, and it would be
necessary to modify the first paragraph in adding some words
to better render the formula. We get across the meaning, but,
from the French point of view, perhaps the wording needs to
be reexamined.”41
D It was further elaborated in their memo that:
“If one considers that the period of limitation is long enough
and that, particularly taking into account the causes of
suspension, it may, according to the law of several countries,
be prolonged indefinitely, it’s not a good idea to refer the
E determination of the aforementioned causes to the law of the
court chosen by the plaintiff. Perhaps the law of the aircraft’s
nationality could constitute a surer and more just element of
determination vis a vis the carrier. The above-cited
disadvantages could be eliminated in a more radical fashion
F in substituting for the period of limitation a period of forfeiture.
This would render the second paragraph useless. Moreover,
one must add, after the word ‘instituted’ the phrase ‘under
penalty of forfeiture’42.”
25.2 Their objection stemmed from the concerns expressed by
shippers, who would be subjected to multiple jurisdictions without any
G
clarity with respect to the position of law in each jurisdiction. It is in this
context, that the Italian Delegation sought amendment of Article 29
seeking immunity from interference on the ground of limitation, which
41
Robert C.; Legrez Horner, Didier, Translators. Second International Conference on
Private Aeronautical Law, October 4-12, 1929, Warsaw: Minutes (1975) at p.110.
42
H Ibid. Pg 112-113.
M/S BHAGWANDAS B. RAMCHANDANI v. BRITISH 567
AIRWAYS [PAMIDIGHANTAM SRI NARASIMHA, J.]

varies from jurisdiction to jurisdiction, causing great amount of uncertainty. A
In reply, the Delegation from France stated:
“MR. RIPERT (France): I am not at all opposed to the Italian
proposal, but it is aimed, in the final analysis, only at the
causes of suspension of the period of limitation, which must
disappear. It must, all the same, be indicated that it’s the law B
of the forum court which will fix how, within the period of
two years, the court will be seized, because in all the countries
of the world suits are not brought in the same way.
One has to act within two years; who will fix the beginning of
the suit? A text is necessary which says that it will be the
forum court which will say if the suit was properly begun. In C
France, there is the pretrial conference; in other countries
referral to the civil court is indispensable; but I am very much
of the opinion that we must eliminate the interruption of the
period of limitation, and I ally myself with the Italian proposal.
MR. MOTONO (Japan): I’d like to point out one question of D
wording. The liability action means interruption of the period
of limitation.
MR. RIPERT (France): Exactly, it’s because the suit is not
introduced in all countries in the same way that it has to be,
that the forum court will indicate how it must be introduced.”43 E
25.3 After the deliberations, Sub-Article (2) was modified and in
its place, the following clause was inserted and the Convention was
brought into force. Thus, Article 29 in its present form is as under:
“Article 29
1. The right to damages shall be extinguished if an action is F
not brought within two years, reckoned from the date of arrival
at the destination, or from the date on which the aircraft ought
to have arrived, or from the date on which the carriage
stopped.
2. The method of calculating the period of limitation shall be G
determined by the law of the Court seized of the case.”
26. We must at this stage mention a minor fact, which has no
bearing on the issue that we are concerned with but it is necessary to
make a reference to it. We have noticed that sub-article (2) of Article 29
43
Ibidpg 111. H
568 SUPREME COURT REPORTS [2022] 11 S.C.R.

A of the Warsaw Convention, 1929 does not find place in Rule 29 as
incorporated in Schedule I of the Indian Carriage by Air Act, 1934. After
independence, when the Parliament enacted the Carriage by Air Act,
1972, after repealing the 1934 Act and incorporated the Warsaw
Convention, 1929 in First Schedule. Here also sub-article (2) of the
Warsaw Convention is missing in Rule 29. However, Second Schedule
B
incorporating the Warsaw Convention, as amended by the Hague
Protocol, 1955 consisting of the Article 29 (1) and (2) is fully incorporated
in Rules 30 (1) and (2) in the Second Schedule. We need not say anything
more than this after noting the minor variation.
27. The legislative history of the Warsaw Convention coupled
C with the deliberations at the International Conferences as a result of
which the draft got modified and took the shape as it stood in Article 29
of the Convention, lends sufficient clarity to the purpose and object of
introducing sub-article (2) to Article 29, which is to exclude the suspension
of any period of limitation. As noticed in the conference, suits are not
D brought in the same way across jurisdictions and therefore this deliberation
is specifically left to the forum Court to fix and determine the beginning
of the suit or the proceeding.
28. This position is well articulated in the judgment of the Appellate
Division of the Supreme Court of New York in Kahn v. Trans World
E Airlines44.
“Moreover, it is equally clear from the delegates’ discussion
that the only matter to be referred to the forum court by
paragraph 2 of the present article 29 was the determination
of whether the plaintiff had taken the necessary measures
F within the two year period to invoke that particular court’s
jurisdiction over the action. An obvious example of the need
for such a provision is the difference between the method of
commencing an action in the New York State courts as opposed
to the Federal courts. Thus, in New York, depending upon
the forum chosen, the plaintiff in an action governed by the
G Warsaw Convention must either effect service upon the
defendant (CPLR 304) or file a complaint in the Federal
District Court (Fed Rules Civ Pro, rule 3 [in US Code, tit 28,
Appendix] within the time limited by article 29, i.e., two years.

44
H Supra no. 17.
M/S BHAGWANDAS B. RAMCHANDANI v. BRITISH 569
AIRWAYS [PAMIDIGHANTAM SRI NARASIMHA, J.]

Accordingly, regardless of whether or not the Convention itself A
“creates” any causes of action, it is readily apparent that the
time limitation incorporated in article 29 was intended to be
in the nature of a condition precedent to suit, and that it was
never intended to be extended or tolled by infancy or other
incapacity. In addition, such an intent on the part of the
B
draftsmen is fully consistent with one of the Convention’s over-
all purposes-that of establishing “a uniform body of world-
wide liability rules to govern international aviation.”
29. In view of the uncertainty in the language of sub-article (2) of
Article 29, as in the case of Sub-Rule (2) of Rule 30 for India, courts of
law across jurisdictions were called upon to consider the rival submissions C
on the construct of the said provision. Learned counsels appearing for
both the parties have placed before us the decisions of foreign courts
that have ruled upon Article 29 and interpreted the said provision, more
or less consistently taking a view that the domestic laws of limitation will
have no bearing on the period of two years. Before we consider these D
judgments, it is important to restate a well-recognized principle that courts
of law must endeavor to maintain a uniformity of interpretation with
courts of other jurisdictions while interpreting international treaties and
conventions.
30. The need for a uniform policy and a global approach has been E
underlined by the House of Lords in Morris v. KLM Royal Dutch
Airlines45 and in a number of other decisions.46
“81. In an ideal world the Convention should be accorded
the same meaning by all who are party to it. So, case law
provides a further potential source of evidence. Careful F
consideration needs to be given to the reasoning of courts of
other jurisdictions which have been called upon to deal with
the point at issue, particularly those which are of high
standing. Considerable weight should be given to an
interpretation which has received general acceptance in other
jurisdictions. On the other hand, a discriminating approach G
is required if the decisions conflict, or if there is no clear
agreement between them.”
45
[2001] 3 WLR 351
46
Zicherman v. Korean Air Lines Co. Ltd.,516 US 217, (1996), EI AI Israel Airlines
Ltd. V. T.Y.Tseng 525 U.S. 155 (1999). H
570 SUPREME COURT REPORTS [2022] 11 S.C.R.

A 31. Having said so, we will now refer to some leading judgments
on the issue from the jurisdictions of the United Kingdom, United States
of America and Australia which examined Article 29 of the Warsaw
Convention.
United Kingdom
B 32. The Supreme Court of the United Kingdom passed a judgment
in Laroche v. Spirit of Adventure47 where it examined the history of
Article 29 of the Warsaw Convention and held that it provided a
substantive time bar and not a procedural time bar. It further held that
the Warsaw Convention provides a code that is exclusive of any resort
C to the Articles of domestic law. The Court traced the history of the
provision as above and ultimately held that the Warsaw Convention sought
to adopt the position suggested by the Republic of Italy. It was held,
“70. The judge was in my view, right to hold at [48] to [51]
that article 29(2) does not permit the 2 year period to be
D suspended, interrupted or extended by reference to domestic
law. The only thing that it leaves for determination by the
court seized of the case is the calculation of the precise dates
of the beginning and end of the relevant two year period and
the determination of whether the action has been brought
within that two year period.
E
71. In reaching his conclusion on this issue, the judge had
regard to what was said in the travaux preparatoires to the
Warsaw Convention in relation to what became article 29.
The first draft of what became article 29(2) was in these terms:

F “The method of calculating the period of limitation, as well
as the causes of suspension and interruption of the period
of limitation, shall be determined by the law of the court
having taken jurisdiction” (emphasis added).
72. The Italian delegation objected that the words in italics
made “the legal situation of the carrier too uncertain”. The
G
Italians later proposed deleting the second paragraph so that
“after two years any action dies and is no longer admissible”.
Their reasoning was that “the period of time, in order that
there be interruption of the period of limitation, varies with
47
Supra no. 10.
H
M/S BHAGWANDAS B. RAMCHANDANI v. BRITISH 571
AIRWAYS [PAMIDIGHANTAM SRI NARASIMHA, J.]

the country, and it is very difficult for the shipper, the A
consignor to know when the interruption or the suspension
begins”. Their proposal was “very simple; if two years after
the accident no action has been brought, all actions are
extinguished”. After further discussion, the Italian proposal
was adopted. These discussions were in plenary session. It
B
seems that the matter was raised again in committee, when it
was decided to accept the modified Italian proposal to adopt
the wording “the liability action must be instituted under pain
of forfeiture within a period of two years”. Despite the
puzzling French contribution at that stage that “one
determines at the same time the periods of interruption and C
of limitation. We are in agreement in substance”, the Italian
proposal was adopted. There was then yet further discussion
which led to the adoption of article 29 in the form in which it
was finally signed.
73. Although it is difficult to follow the minutiae of these D
negotiations, in my view it is clear that the signatories to the
Warsaw Convention intended to adopt the Italian proposal
that, in the interests of certainty, at the expiry of the two-year
period, all claims under the Convention would be
“extinguished” and that the only matters for determination
by the court seized of the matter would be determination of E
the dates and whether the action was brought within the two-
year period. This is a powerful indicator that the words of
article 29(1) mean what they say and that the two-year period
is not subject to suspension, interruption or extension in any
circumstances. F
74. So to interpret article 29(1) would also further the object
of the Convention that it was to be “a uniform international
code, which could be applied by the courts of all the high
contracting parties without reference to the rules of their own
domestic law”: see per Lord Hope in Sidhu v British Airways G
Plc [1997] AC 430, 453C-D.
75. I also accept the submission of Mr Lawson that this
interpretation is consistent with the rule that a general
provision (such as article 29(2)) cannot give validity to a rule
of procedure of the court seized of the case that is in conflict H
572 SUPREME COURT REPORTS [2022] 11 S.C.R.

A with an express provision of the Convention. As Phillips LJ
said in Milor S.R.L v British Airways Plc [1996] QB 702,
707E: “by way of example, if the procedural law of the chosen
forum imposed a 12 month limitation period, it does not seem
to me that this could displace the two year period of limitation
laid down by article 29 of the Convention.
B
76. As regards US jurisprudence, the decision of New Pentax
v Trans World relied on by Mr Davey is a first instance
decision. In the subsequent decision of Fishman v Delta Air
Lines Inc 132 F 3d 138, the Court of Appeal of the same
circuit rejected the proposition that article 29(2) permitted
C the limitation period to be determined in accordance with the
lex fori. In reaching this conclusion, the court had regard to
the travaux preparatoires to the Warsaw Convention and
reached the same conclusion on their meaning and effect as
I have done at [73] above. Although New Pentax does not
D appear to have been cited in Fishman, the latter is a decision
of a superior court.”
33. A similar view has been taken in a number of other judgments48
in the United Kingdom.
United States of America
E
34. The Second Circuit of the Court of Appeals in the United
States of America in Fishman v. Delta Air Lines Inc49, a burn injury
was inflicted on an infant by an air hostess. The infant, through her
mother, brought an action against the airline after a period of 2 years,
claiming that the local limitation law suspends limitation for infants. The
F Court of Appeals also traced the history of the provision in the Warsaw
Convention to find that:
“Almost every court that has reviewed the drafting minutes of
the Convention, including the district court in this case, has
rejected the contention that Article 29(2) incorporates the
G tolling provisions otherwise applicable in the forum. See, e.g.,
Castro v. Hinson, 959 F. Supp. 160, 163 (E.D.N.Y. 1997);
Fishman, 938 F. Supp. at 230; Royal Ins. Co., 834 F. Supp. at
48
See, Sidhu v. British Airways (1997) 2 WLR 26; Philips v. Air New Zealand (2002)
EWHC 800 (Commercial Court).
49
H Supra no. 11.
M/S BHAGWANDAS B. RAMCHANDANI v. BRITISH 573
AIRWAYS [PAMIDIGHANTAM SRI NARASIMHA, J.]

636; Kahn, 443 N.Y.S.2d at 87. The minutes reveal that the A
drafters of the Convention specifically considered and rejected
a proposed provision that would have allowed the limitations
period to be tolled according to the law of the forum court.
See R.C. Horner and D. Legrez, Minutes of the Second
International Conference on Private Aeronautical Law, 110-
B
13 (1975); Kahn, 443 N.Y.S.02d at 86-87; Royal Ins. Co.,
834 F. Supp. at 636. As the district court recognized, the main
concern of the drafters in rejecting the tolling proposal was
“to remove those actions governed by the Convention from
the uncertainty which would attach were they to be subjected
to the various tolling provisions of the laws of the member C
states.” Kahn, 443 N.Y.S.2d at 87. Moreover, the debates over
the language ultimately adopted in Article 29 indicate that
the only matter to be referred to the forum court by subsection
2 of Article 29 was “the determination of whether the plaintiff
had taken the necessary measures within the two-year period
D
to invoke that particular court’s jurisdiction over the action.”
35. Similarly, the Court of Appeals for the Ninth Circuit of the
United States of America in Narayanan v. British Airways50 affirmed
the position under the Warsaw Convention and found that the Montreal
Convention also envisages the same position. It was held,
E
“The drafting history of the Warsaw Convention also reveals
that the drafters intended Article 29 to operate as a statute of
repose, which, “like a jurisdictional prerequisite, extinguishes
a cause of action after a fixed period of time … regardless of
when the cause of action accrued.” Albillo-De Leon v.
Gonzales 410 F.3d 1090, 1097 n.5 (9th Cir. 2005). The drafters F
considered – and rejected – a proposal that would have
allowed the limitations period to be tolled in accordance with
the law of the forum court. See R.C. Horner and D. Legrez,
Minutes of the Second International Conference on Private
Aeronautical Law, 110-13 (1975); see also Fishman, 132 F.3d G
at 144 (observing that “[a]lmost every court that has reviewed
the drafting minutes of the [Warsaw] Convention … has
rejected the contention that Article 29(2) incorporates the
tolling provisions otherwise applicable in [a] forum [state]”.
50
2014 U.S. App. LEXIS 5173: 747 F.3d 1125 H
574 SUPREME COURT REPORTS [2022] 11 S.C.R.

A Instead, the Warsaw Convention’s drafters adopted a “very
simple” proposal advanced by the Italian delegation: “if two
years after the accident no action has been brought, all actions
are extinguished.”
…
B Consistent with this history, the prevailing view among courts
across jurisdictions is that the Montreal Convention’s limitation
period operates as a condition precedent to suit and, as such,
is not subject to equitable tolling.”
36. The Supreme Court of New York also came to a similar
C conclusion in Kahn v. Trans World Airlines Inc.51 In this case, the Court
had occasion to examine the history of the provision once again. It looked
into the travaux preparatoires and found that the provision was debated
and based on the debates, it held that:
“Based upon the foregoing, it is abundantly clear that the
D delegates to the Warsaw Convention expressly desired to
remove those actions governed by the Convention from the
uncertainty which would attach were they to be subjected to
the various tolling provisions of the laws of the member States,
and that the two-year time limitation specified in article 29
E was intended to be absolute — barring any action which had
not been commenced within the two-year period. Moreover, it
is equally clear from the delegates’ discussion that the only
matter to be referred to the forum court by paragraph 2 of
the present article 29 was the determination of whether the
plaintiff had taken the necessary measures within the two-
F year period to invoke that particular court’s jurisdiction over
the action. An obvious example of the need for such a
provision is the difference between the method of commencing
an action in the New York State courts as opposed to the
Federal courts. Thus, in New York, depending upon the forum
G chosen, the plaintiff in an action governed by the Warsaw
Convention must either effect service upon the defendant
(CPLR 304) or file a complaint in the Federal District Court
(Fed Articles Civ Pro, Article 3 [in US Code, tit 28, Appendix])
within the time limited by article 29, i.e., two years.”
51
H Supra no. 17.
M/S BHAGWANDAS B. RAMCHANDANI v. BRITISH 575
AIRWAYS [PAMIDIGHANTAM SRI NARASIMHA, J.]

Australia A
37. The Federal Court of Australia, in Bhatia v. Malaysian Airline
System Berhad52 followed the judgments in Laroche and Kahn and held
that the local limitation law will not apply in view of Article 29(1) of the
Warsaw Convention. It was held in Para 34:
“34. The Convention has as its purpose the uniformity and B
certainty of the law, among its signatories, in relation to
(relevantly) personal injury suffered by passengers in the
course of international air carriage to which it applies. The
rights created by the Convention (given the force of law in
Australia) are rights enjoyed by persons referred to as
“passengers”. The corresponding liabilities are imposed upon C
persons referred to as “carriers”. The word “action” in Art
35 must be given a construction that advances the object of
providing certainty in the legal relationship between these
two persons. The “right to damages” subject to extinguishment
under Art 35, may naturally be understood as referring to D
the right possessed by one person that is enforceable against
another person having a corresponding liability. It follows
that the steps necessary to bring an “action” must include
steps sufficient to invoke the jurisdiction of a court to
determine the controversy concerning the respective rights
and liabilities of the first person in relation to the second. E
Thus, the words “brought” and “action” must be understood
as referring to a process by which the disputed rights and
liabilities of the two persons come before a court for
adjudication.”
38. We have come across one decision of France’s Cour de F
Cassation in Lorans v. Air France53 which has taken a different view
of the matter. However, the decisions that we have referred have
considered the issue from all perspectives including the decision of the
French Court, and did not accept the reasoning adopted therein. It is
also important to mention that there are some decisions of the US Courts
G
in the case of Joseph v. Syrian Arab Airlines 54 and Flanagan v.
McDonnell Douglas Corp55 which have also not deliberated the issue
52
Supra no. 18.
53
(1977) 31 RFDA 268: (Cour de Cassation [Assemblee Pleniere] Jan,14, 1997).
54
88 F.R.D. 530 (S.D.N.Y. 1980).
55
428 F.Supp. 770 (C.D. Calf. 1977). H
576 SUPREME COURT REPORTS [2022] 11 S.C.R.

A in detail on arriving at the interpretation as is done in the cases that we
have referred to hereinabove. Excluding these minor variations, an
overwhelming majority of the decisions have taken an informed view
that Article 29 excludes and is intended to exclude the application of
municipal legislations, excluding the periods of limitation.
B 39. So far as India is concerned there is no direct decision of this
Court on the Air Act, 1972. The closest we get is the decision of this
Court under the Indian Carriage of Goods by Sea Act, 1925, which fell
for interpretation inEast and West Steamship Co. v. S.K. Ramalingam
Chettiar56, where this Court had observed that “Rules of limitation are
likely to vary from country to country. Provisions for extension of
C periods prescribed for limitation would similarly vary. We should
be slow therefore to put on the word “discharged from liability” an
interpretation which would produce results varying in different
countries and thus keeping the position uncertain for both the
shipper and the shipowner…It is hardly necessary to add that once
D the liability is extinguished under this clause there is no scope of
acknowledgment of liability thereafter. Apart from this, we have
certain decisions of the High Courts that have interpreted Rule 30 of the
Second Schedule of the Act.
Decisions of our High Courts on Rule 30, Second Schedule:
E 40. 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. The High Court of Delhi in Air India
F Ltd. v. Tej Shoe Exports P. Ltd.57, Sailesh Textile Industries v. British
Airways& Anr.58, Indian Airlines v. Angelique International Ltd.&
Anr.59, Ethopian Airlines v. Federal Chemical Works Ltd.60, the High
Court of Madras in M/s M.R.F Ltd. v. Singapore Airlines61 and Air
India, Bombay Airport v. Asia Tanning Co.,62 and the High Court of
Bombay, in the judgment impugned before us, have all taken this view.
G 56
Supra no. 7.
57
Supra no. 8.
58
2003 SCC Online Del 318 (at paras 10 to 15).
59
2014 SCC Online Del 6825 (at para 16).
60
2004 SCC Online Del 862 (at para 15).
61
Supra no. 4.
62
H 2002 SCC Online Mad 802 (at para 7).
M/S BHAGWANDAS B. RAMCHANDANI v. BRITISH 577
AIRWAYS [PAMIDIGHANTAM SRI NARASIMHA, J.]

41. There is only one decision that has taken a different view of A
the matter, and that is the decision of the High Court of Gujarat in National
Aviation Company of India Ltd. v. Jatnadevi Tejraj Jain,63. The High
Court reasoned that Article 30(2) of Schedule II makes the law of the
Court seized of the matter applicable and the law of the Court seized of
the matter in India is the Limitation Act, 1963. It was held:
B
“10. The aforesaid Rule provides that right to damages shall
be extinguished if the action is not brought within two years
from the date on which the aircraft ought to have arrived at
or stopped. However, sub-rule (2) expressly provides that the
calculation of the period of limitation shall be as per the
method determined by the law of the Court seized with the C
case. Therefore, it is apparent that after applying the method
as provided by the law of the Court, the period of 2 years is
to be counted, and thereafter, the right to damages shall get
extinguished if the action is not brought within the said period
of 2 years. The law of the Court seized with the case is the D
Limitation Act, 1963. Part III of the Limitation Act provides
for computation of the period of limitation, which can be said
as at par with the method of calculation of the period of
limitation. Section 14 of the Act provides for exclusion of the
time of proceeding bona fide in Court without jurisdiction.
Therefore, while computing the period of limitation of two E
years, in our view, section 14 of the Limitation Act would
apply.”
42. We have already considered the true and correct meaning of
Rule 30 (2), or as the case may be Rule 35 (2) of the Third Schedule by
referring to the Conventions, coupled with travaux preparatoires. The F
Gujarat High Court has not considered the matter in the right perspective
while interpreting Rule 35 (2).
43. In the ultimate analysis, keeping in view the legislative history
of the Convention and in view of the consistent interpretation of Article
29 of the Convention adopted in different jurisdictions, for the purpose G
of uniformity and also to subserve the purpose and object of the
Convention, we are of the view that Rule 30 (2) does not enable
applicability of exclusion of periods for the purpose of reckoning the
period of two years.
63
2011 SCC Online Guj 7601 (at para 10). H
578 SUPREME COURT REPORTS [2022] 11 S.C.R.

A Issue No. 2
Whether the Air Act, 1972, particularly Rule 30 of the Second
Schedule expressly excludes the applicability of the Limitation Act,
1963?
44.1 On this issue Shri Navare made a two-prong submission.
B Rule 30 of Second Schedule in terms reiterates the applicability of Section
29 of the Limitation Act and at the same time the Air Act, 1972 being a
special law, the provisions of Limitation Act apply as there is no express
exclusion.
44.2 Shri Navare submits that firstly, there is no provision
C whatsoever in the Air Act expressly excluding the applicability of the
Limitation Act. For this reason, the provisions of the Limitation Act must
apply as a matter of public policy. Secondly, Rule 30 (2) of the Air Act in
terms reiterates the applicability of the Limitation Act. In the written
submissions he has highlighted the fact that Section 29 of the Limitation
D Act is very different from Section 39 of the Limitation Act, 1980 of the
United Kingdom.
44.3 On the other hand Ms. Ritu Singh Mann has submitted that
the Air Act, 1972 excludes the applicability of the Limitation Act.
45. While dealing with Issue No.1, we have held that the right to
E damages itself is extinguished after the expiry of the period of two years
and therefore the provisions of the Limitation Act have no application as
there is no right subsisting for enforcement. In this context we have
referred to Section 3 of the Limitation Act which merely bars the remedy
and not the right itself, but when the statute extinguishes the right itself
F the position is very different. We will however consider the present
argument of ShriNavare as an alternative plea and proceed forthwith to
deal with the same.
46. Where a period of Limitation is prescribed in a special law, by
virtue of Section 29 of the Limitation Act, such period will apply as if it
was provided in the Schedule of the Limitation Act. Consequently, the
G
provisions of Sections 4 to 24 will apply for the purpose of computation
of period of limitation. This provision is subject to a bright exception that
the Limitation Act will not apply if it is “expressly excluded” by the
Special Act. Section 29 of the Limitation Act to the extent that is
necessary is as under: -
H
M/S BHAGWANDAS B. RAMCHANDANI v. BRITISH 579
AIRWAYS [PAMIDIGHANTAM SRI NARASIMHA, J.]

“29. Savings A
(1)…..….
(2) Where any special or local law prescribes for any suit,
appeal or application a period of limitation different from
the period prescribed by the Schedule, the provisions of section
3 shall apply as if such period were the period prescribed by B
the Schedule and for the purpose of determining any period
of limitation prescribed for any suit, appeal or application
by any special or local law, the provisions contained in
sections 4 to 24 (inclusive) shall apply only in so far as, and
to the extent to which, they are not expressly excluded by C
such special or local law.”
47. The statutory requirement of express exclusion is considered
by this Court in a number of decisions.64 Express empowerment is not to
be understood in a pedantic manner. Express empowerment is to be
gathered from the provisions of the statute. In Shanmugam v. D
Commissioner for Registration65, the Privy Council held that:
“It is argued that the Act does not contain the “express
provision” required by the Interpretation Ordinance to make
it applicable. Their Lordships do not agree. Upon the meaning
of the words “express provision” counsel relied upon in re E
Meredith and stated that it must be provision the applicability
of which did not arise by inference. He argued that there was
no “express provision” as no reference had been made to
pending proceedings. Their Lordships are of the view that it
is correct to state that express provision is provision the
applicability of which does not arise by inference. The F
applicability, however, of the provision under discussion to
the present case does not arise by inference; it arises directly
from the language used. The Fact that the language used is
wide and comprehensive and covers many points other than
the one immediately under discussiondoes not make it possible G
to say that its application can arise by inference only. To be
“express provision” with regard to something it is not
64
Needle Industries (India) Ltd. and Anr. v. Needle Industries Newey (India) Holding
Ltd. and Ors(1981) 3 SCC 333.
65
[1962] 2All E.R. 609.
H
580 SUPREME COURT REPORTS [2022] 11 S.C.R.

A necessary that that thing should be specially mentioned; it is
sufficient that it is directly covered by the language however
broad the language may be which covers it so long as the
applicability arises directly from the language used and not
by inference therefrom. The argument fails.”
B 48. In Hukumdev Narain Yadav v. Lalit Narain Mishra66, the
Court held as under: -
“17. ……….Even assuming that where a period of limitation
has not been fixed for election petitions in the Schedule to
the Limitation Act which is different from that fixed under
C Section 81 of the Act, Section 29(2) would be attracted, and
what we have to determine is whether the provisions of this
Section are expressly excluded in the case of an election
petition. It is contended before us that the words “expressly
excluded” would mean that there must be an express reference
made in the special or local law to the specific provisions of
D the Limitation Act of which the operation is to be excluded.
As usual the meaning given in the Dictionary has been relied
upon, but what we have to see is whether the scheme of the
special law, that is in this case the Act, and the nature of the
remedy provided therein are such that the Legislature intended
E it to be a complete code by itself which alone should govern
the several matters provided by it. If on an examination of the
relevant provisions it is clear that the provisions of the
Limitation Act are necessarily excluded, then the benefits
conferred therein cannot be called in aid to supplement the
provisions of the Act. In our view, even in a case where the
F special law does not exclude the provisions of Sections 4 to
24 of the Limitation Act by an express reference, it would
nonetheless be open to the Court to examine whether and to
what extent the nature of those provisions or the nature of the
subject-matter and scheme of the special law exclude their
G operation.”
49. Following the principle laid down in Hukumdev67, we will now
examine the relevant provisions of the Air Act, 1972, its Schedules, and
66
(1974) 2 SCC 133.
67
Supra no. 66.
H
M/S BHAGWANDAS B. RAMCHANDANI v. BRITISH 581
AIRWAYS [PAMIDIGHANTAM SRI NARASIMHA, J.]

Rule 30, in particular, to see if these provisions have the effect of expressly A
excluding the applicability of the Limitation Act.
Carriage by Air Act, 1972
50. 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. The Preamble of the Act B
states:
“An Act to give effect to the Convention for the unification of
certain rules relating to international carriage by air signed
at Warsaw on the 12th day of October, 1929 and to the said
Convention as amended by the Hague Protocol on the 28th C
day of September, 1955 1 [and also to the Montreal
Convention signed on the 28th day of May, 1999 and to make
provision for] applying the rules contained in the said
Convention in its original form and in the amended form
(subject to exceptions, adaptations and modifications) to non- D
international carriage by air and for matters connected
therewith.”
51. 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 E
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. F
52. The Warsaw Convention as amended by the Hague Protocol
is a complete code within itself for all questions relating to carriage by
air by international carriages. Rule 1(1) provides that the Hague Protocol
shall apply to “all international carriage of persons, baggage or
cargo performed by aircraft for reward”. Rule 2 provides that the G
Convention will apply to carriage performed by the State or by legally
constituted public bodies. Chapter II of the Convention (Rules 3 to 16) is
entitled “Documents of Carriage”. Rule 3 relates to the documents
that a carriage of passengers must deliver. Rule 4 prescribes a mechanism
for baggage check. Rule 5 to 11 relates to the air waybill in cases of
H
582 SUPREME COURT REPORTS [2022] 11 S.C.R.

A cargo carriages. Rule 12 relates to the right of the consignor to dispose
of the goods in a manner that is not prejudicial to the carrier. Rule 13
pertains to the rights of the consignee upon the arrival of the goods. Rule
13(3) provides that where there is a loss of goods, the consignee shall be
entitled to enforce the rights which ‘flow from the contract of carriage’.
Rule 14 provides for the consequences of non-compliance of Rule 12
B
and 13.
53. The Chapter with which we are presently concerned with is
Chapter III which is titled ‘Liability of the Carrier’. Rule 17 provides
for the liability of a carrier for damages in the event of death or wounding
or other injuries caused to a passenger while onboard the aircraft. Rule
C 18 envisages the liability of a carrier in the event of destruction, loss,
damage etc. of cargo. Similarly, Rule 19 concerns the liability of a carrier
upon delay in the carriage of passengers, baggage or cargo. Rule 20
provides for an equitable exemption to the carrier if he proves that he
had taken all necessary measures to negate the delay or damage. Rule
D 21 is yet another equitable provision that protects the carrier in cases of
contributory negligence. Rule 22 specifies the minimum liability of the
carrier. Rule 23 nullifies all limits which are lower than those provided in
Rule 22.
54. Rule 24 stipulates that any action for damages “can only be
E brought subject to the conditions and limits set out in these
rules”.Rule 25 relates to the vicarious liability of the carrier. Rule 26
provides that a servant/agent of a carrier shall be exempted from liability
if he proves that he acted within the scope of his employment. Rule
27(1) specifies that receipt of baggage or cargo is prima facie proof of
its good condition. Rule 27(2) provides that where the goods are damaged,
F a complaint must be made within 7 days of the date of receipt of baggage
and 14 days from the date of receipt of cargo. Rule 27(3) provides that
a complaint shall be made in writing. Rule 27(4) further provides that if
no complaint is made within the period specified, no action shall lie against
the carrier except in cases of fraud. Rule 28 stipulates that the legal
G representatives of a deceased person can bring an action for damages.
Rule 29 is the jurisdictional clause, and provides that the action may be
brought in the territory of one of the State Parties, either before the
court of the domicile of the carrier or of its principal place of business or
where it has a place of business through which the contract has been
made, or before the court at the place of destination. Rule 29(2) stipulates
H
M/S BHAGWANDAS B. RAMCHANDANI v. BRITISH 583
AIRWAYS [PAMIDIGHANTAM SRI NARASIMHA, J.]

that the ‘questions of procedure shall be governed by the law of the A
court seized of the case.’
55. Rule 30, which is the fulcrum of the case, may be extracted in
full:
“30. (1) The right to damages shall be extinguished if an action
is not brought within two years, reckoned from the date of B
arrival at the destination, or from the date on which the
aircraft ought to have arrived, or from the date on which the
carriage stopped.
(2) The method of calculating the period of limitation shall
be determined by the law of the Court seized of the case.” C

56. Chapters IV, and V are not of much relevance to the case at
hand. Suffice it to say that they are machinery provisions that do not
affect the interpretation of Rule 30.
57. The Convention certainly incorporated two variables in the D
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 E
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.Rule30(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 F
enforcing the right would be extinguished if an action is not brought
within the said period.
58. We may also note that giving effect to the meaning of the
words the ‘law of the court seized of the case’ would lead to an
anomalous situation where the law of every country would be
G
incorporated into the Convention, thereby defeating the purpose of an
International Convention which is to bring about uniformity across the
globe in the laws applicable to carriage by air.
59. Sub-Rule (2) must therefore be interpreted harmoniously
keeping in mind not only the content of Sub-Rule (1) but also the purpose
H
584 SUPREME COURT REPORTS [2022] 11 S.C.R.

A and object of the Convention which is to bring about the unification of
Rules relating to International Carriage by Air. The intention behind Article
35(2) was merely to fix the date on which the suit (or action) has ‘begun’
and the date on which limitation expires, as per the laws of the country.
The example given by the French Delegation makes this position clear
as it was to accommodate provisions such as pre-trial conferences. As
B
stated above, in India, such a position could possibly arise if the legislature
envisages mandatory pre-trial mediation. It is in order to accommodate
for this eventuality that the law-makers left some room for the domestic
law to operate.
60. Having considered the matter in detail, we are of the opinion
C that Rule 30 of the Carriage by Air Act 1972, expressly excludes the
applicability of the Limitation Act,1963. Issue No.2 is answered
accordingly.
61. For the reasons stated above, the Appeal arising out of SLP
No. 16767 of 2018, from the judgment of the High Court of Judicature at
D Bombay in WP No. 6647 of 2014 is accordingly dismissed. The parties
shall bear their own cost.
62. We place on record the valuable assistance given by Shri
Vinay Navare, assisted by Shri Pravartak Pathak, Advocate, Ms. Gwen
Karthika, Advocate and Ms. Abha R. Sharma, AOR for the Appellants
E and Ms. Ritu Singh Mann for Respondent assisted by Shri Dheeraj K.
Garg, Advocate and Shri Rajan K. Chourasia, AOR.

Ankit Gyan Appeal dismissed.
(Assisted by : Rahul Rathi, LCRA)
F

G

H