Karnataka High Court
Giriraj M Kotian vs M/S Somu And Company on 13 August, 2024
Author: V Srishananda
Bench: V Srishananda
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NC: 2024:KHC:32755
RFA No. 760 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
REGULAR FIRST APPEAL No.760 OF 2015 (MON)
BETWEEN:
1. GIRIRAJ M KOTIAN,
S/O LATE MUDDANNA,
AGED 58 YERS,
PROPRIETOR,
M/S. GURUDEV TRANS LINES,
KOTTARA CHOWKI ASHOKNAGAR POST,
MANGALORE-575 006.
...APPELLANT
(BY SRI PRITHVI RAJ.G FOR SRI G BALAKRISHNA SHASTRY,
ADVOCATES)
AND:
1. M/S SOMU AND COMPANY,
SOMU CENTER,
NO.20, 29TH MIAN II STAGE,
B T M LAYOUT,
Digitally BANGLAORE-506 076.
signed by
MALATESH REPTD. BY ITS GENRAL MANAGER SRI K MANI
KC ...RESPONDENT
Location:
HIGH (BY SRI B R SREENIVASA GOWDA, ADVOCATE-ABSENT)
COURT OF
KARNATAKA THIS RFA IS FILED UNDER SECTION 96 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 27.01.2015
PASSED IN OS NO.7311/2002 ON THE FILE OF THE C/c III
ADDL. CITY CIVIL & SESSIONS JUDGE, BENGALURU, (CCH 25)
DECREEING THE SUIT FOR RECOVERY OF MONEY.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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NC: 2024:KHC:32755
RFA No. 760 of 2015
CORAM: HON'BLE MR JUSTICE V SRISHANANDA
ORAL JUDGMENT
Heard Sri Prithviraj, for Sri G.Balakrishna Shastry, learned counsel for the appellant.
2. Appeal is by the defendant challenging the decree passed in O.S.No.7311/2002 dated 27.01.2015 on the file of the III Addl. City Civil and Sessions Judge (CCH-25), Bengaluru.
3. Facts in brief which are utmost necessary for disposal of the appeal are as under:
Plaintiff being the proprietary concern, was dealing with industrial and pharmaceutical chemicals. Plaintiff entrusted the job of transporting 9490 kgs of ISO PROPYL ALCOHOL to the defendant under Invoice No.0560 dated 07.07.2001 valued in a sum of Rs.4,18,471.04 which had to be lifted from Mangaluru port and to be delivered to M/s Sekhsaria Chemicals Limited, Thane, Bombay.
4. Defendant had entrusted the transportation of the said chemical to M/s Eagle Tankers, Bombay. The material that was to be transported was lifted from Mangaluru port through -3- NC: 2024:KHC:32755 RFA No. 760 of 2015 tanker No.GJ-7X/9464 owned by M/s Eagle Tankers who was the contractor appointed by the defendant.
5. Defendant received the fax message on 21.07.2001 from M/s Sekhsaria Chemicals Limited, Thane, informing the plaintiff that they have rejected the material since it contained 38.1% of water as against standard limit of 0.02%. The plaintiff immediately lodged a complaint with the defendant requesting the defendant to make good the value of the transported material i.e., Rs.4,18,471.04.
6. They received a debit note from the consignee i.e., M/s Sekhsaria Chemicals Limited, Thane, claiming a sum of Rs.16,939/- towards Octroi charges on 30.07.2001. M/s Eagle Tankers lodged a complaint on 30.07.2001 with the jurisdictional police against the driver of the tanker No.GJ- 7X/9464 -Mr.Mohammed Sadik. They came to know that driver had removed the chemical and mixed water in it and then had abandoned the vehicle and ran away.
7. Defendant had written a letter to M/s Eagle Tankers on 01.08.2001 to set right the damage caused to the plaintiff. On behalf of M/s Eagle Tankers, an official by name Mr.Ram -4- NC: 2024:KHC:32755 RFA No. 760 of 2015 Kailash had also lodged a complaint against the driver of the tanker on 08.08.2001. Thereafter, plaintiff had informed M/s Eagle Tankers on 11.08.2001 asking to dispose of the contaminated chemicals at Bombay itself.
8. M/s Trans Ocean Marine and General Survey Agencies, Bombay, has given a detailed report dated 01.10.2001 with regard to the contamination of the chemicals. Thereafter, letter was written to the defendant on 29.12.2001 to arrange for payment of invoice amount of Rs.4,18,471.04 in addition to Rs.16,939/- towards Octroi charges and to settle the amount immediately.
9. When matter stood thus, on 30.01.2002, M/s Eagle Tankers had sent a demand draft for Rs.1,04,500/- in favour of plaintiff towards the value of contaminated material and in turn, on 06.02.2002, the defendant sent the said demand draft to the plaintiff.
10. Thereafter, letter was addressed to the defendant on 18.02.2002 to make good the balance amount of Rs.3,30,910/- and also sent a reminder on 22.05.2002. -5-
NC: 2024:KHC:32755 RFA No. 760 of 2015
11. There was no compliance to the callings of the said letter. Therefore, legal notice came to be issued. Legal notice was replied by the defendant by sending untenable reply which necessitated the plaintiff to file the suit.
12. After receipt of suit summons, defendant appeared before the Court and maintained that the role of the defendant was only to fix a transporter at the request of the plaintiff. Therefore, suit is bad for non joinder of necessary parties and also there was no liability on the part of the defendant to make good the amount claimed in the suit and sought for dismissal of the suit.
13. Learned Trial Judge after considering the rival contentions of the parties, raised the following issues:
(i) Was 9490 kg of ISO PROPYL ALCOHOL covered under invoice No.0560 dated 7.7.2001 valued at Rs.4,18,471.04 ps. entrusted to defendant's sub-
contractor M/s Eagle Tankers for being transported from Mangalore and delivered to M/s Seekharia Chemicals Ltd., Thane, damaged during transit as alleged in para-4 of the plaint?
(ii) Is defendant liable to pay Rs.3,30,910/- towards balance value of goods damaged, to plaintiff? -6-
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(iii) Is defendant liable to pay interest on the said value at 18% p.a.?
(iv) Is plaintiff entitled to claim Rs.16,939/- by way of Octroi charges?
(v) Does defendant prove that his only job was to arrange a transporter for transporting plaintiff's goods to Thane from Mangalore, and his job ended on arranging transporter contractor-M/s Eagle Tankers, Mumbai?
(vi) Is the said loss recoverable from Insurance Company?
(vii) Is suit bad for non-joinder of M/s Eagle Tankers and National Insurance Co.?
14. In order to prove the case of the plaintiff, plaintiff got examined the authorized person of the plaintiff Company viz., Sri R.Prabhu as P.W.1 and placed on record 23 documentary evidence comprising of Special Power of Attorney dated 25.10.2006, Invoice dated 07.07.2001, debit note, certificates of analysis, letter dated 29.12.2009 written by plaintiff to defendant, letter of M/s Eagle Tankers addressed to defendant dated 30.01.2002, letter of the defendant dated 06.02.2002 to plaintiff, letters of plaintiff addressed to defendant dated 18.02.2002 and 22.05.2002, letter of National Insurance Ltd., addressed to plaintiff dated 22.06.2002, letter of defendant -7- NC: 2024:KHC:32755 RFA No. 760 of 2015 addressed to plaintiff dated 24.06.2002, legal notice caused on behalf of plaintiff to defendant dated 18.09.2002, reply notice dated 19.10.2002, copy of invoice dated 07.07.2001, letters addressed by plaintiff to National Insurance Company Ltd., Bengaluru, dated 21.07.2001 and 02.08.2001, letters of Marine and General Survey Agencies addressed to the plaintiff dated 01.10.2001 along with the particulars of survey carried, letter of the plaintiff addressed to the defendant dated 25.05.2002, postal acknowledgement, postal receipt and certificate of Marine and General Survey Agencies.
15. Detailed cross-examination of witness for plaintiff did not yield any positive material so as to disbelieve the case of the plaintiff especially having given deduction of Rs.1,04,500/- which was sent by M/s Eagle Tankers to the defendant, who inturn sent the same to the plaintiff.
16. Burden of proving issue No.5 was on the defendant. In that regard, on behalf of defendant, Sri Giriraj M.Kotian, Proprietor of M/s Gurudev Trans Lines, was examined as D.W.1, who filed affidavit in lieu of examination-in-chief, reiterating the contents of the written statement. -8-
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17. He was cross-examined in part and he did not turn up for further cross-examination. Therefore, his evidence was struck off.
18. Thereafter, learned Trial Judge heard the parties in detail and after noting the oral and documentary evidence placed on record and in the absence of any contra evidence especially with regard to issue No.5, decreed the suit of the plaintiff, as under:
"Plaintiff's suit is decreed with costs.
The defendant is directed to pay a sum of Rs.4,06,385/- together with interest at 18% p.a. on the principal sum due of Rs.3,30,910/- from the date of suit till realization."
19. Being aggrieved by the same, defendant is in appeal, on the following grounds:
The judgment and decree under appeal is opposed to law, facts and evidence in the case.
The Court below has erred in holding that Plaintiff had entrusted materials worth Rs.4,18,471.04 to the Defendant and that M/s Eagle Tankers is the sub contractor of the Plaintiff. Trial Court has erred in holding that Defendant has failed to prove that he had only arranged a transporter for transporting Plaintiffs goods to Thane from Mangalore.-9-
NC: 2024:KHC:32755 RFA No. 760 of 2015 Trial Court has failed to note that Plaintiff has not produced any agreement, lorry invoice or any other document showing that Plaintiff has placed orders, with the Defendant for transporting the materials from Mangalore to Thane. Exhibit P-2 is the invoice produced by the Plaintiff. Even exhibit P-2 do not shows that defendant was given orders or was entrusted with the materials. It only shows that Tanker No.GJ-7X9464 belonging to M/s Eagle Tankers was engaged by the Plaintiff. P.W.1 has admitted that GJ- 7x9464 was owned by M/s Eagle Tanker.
Defendant is not a transporter nor the defendant is a carrier. There is nothing in evidence to show that Plaintiff had engaged the defendant as a contractor for transporting the goods. There is nothing in evidence to show that M/s Eagle Tankers was a sub contractor, engaged by the Defendant to transport the goods.
Plaintiff only wanted a carrier to transport the goods and sought the help of the defendant and defendant only gave the details and particulars of the carrier viz., M/s Eagle Tankers. Such an act of the Defendant do not creates any transaction or contract between the Plaintiff and the Defendant so as to cloth the liability on the defendant to transport the goods.
The Trial Court has failed to note that there is no privy or a proposal, offer and acceptance of the work of transportation of the goods of the plaintiff, in between the Plaintiff and the Defendant. In the absence of such proof contract cannot be inferred.
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NC: 2024:KHC:32755 RFA No. 760 of 2015 Any contract without consideration is void under Section 25 of the Contract Act. Plaintiff has not stated that there was any consideration fixed or paid between the parties for the task of transporting the goods. There is no evidence either by way of pleading or in evidence oral or documentary to show that any consideration is paid or any advance is paid for the work.
The Trial Court has failed to note that the work of entrusting the goods require an agreement in writing by virtue of Section 4 and Section 6 of the carriers act, 1865. The Contract has to be signed by the owner or by some person authorized by him. Similarly when goods are entrusted to the defendant for transport entrustment of goods is to be evidenced by any documents signed by or on behalf of the Defendant No such documents are produced.
P.W.1 who was examined on behalf of the Plaintiff totally exhibited his ignorance about the work of entrusting the transportation of material to the defendant. P.W.1 has stated that he do not know the defendant and he is not aware as to who is the transporter of the goods from Mangalore to Thane. He has further stated that Exhibit P-2 is the document regarding entrusting the goods to the Defendants but exhibit P-2 do not contain any signature of the defendant. On the other hand D.W.1 was not even fully cross examined and nothing is elicited to show that work was entrusted to the defendant. The suggestion to the defendant was that Plaintiff did not request the defendant in writing for arranging the transportation of the goods and the said suggestion was agreed do not means that orally
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NC: 2024:KHC:32755 RFA No. 760 of 2015 there was such an agreement. Oral agreement was not pleaded in the plaint.
Trial court has erred in awarding 18% interest which is very much on the higher side. Past and future interest are awarded at 18% which is illegal and arbitrary."
20. Learned counsel for the appellant, reiterating the grounds urged in the appeal memorandum, contended that the Trial Court has grossly erred in decreeing the suit of the plaintiff inasmuch as, there was no privity of contract between the plaintiff and the defendant and at the request of the plaintiff, defendant only to arrange a transport agency to lift the ISO PROPYL ALCOHOL from Mangaluru port to consignee at Thane, Mumbai. Therefore, saddling the liability on the defendant without arraigning M/s Eagle Tankers as a party to the suit has resulted in miscarriage of justice.
21. He also pointed out that non joinder of necessary party has resulted in grave defect in the suit which has been totally ignored by the learned trial judge while passing the impugned judgment and sought for allowing the appeal.
22. He also pointed out that there was no concluded contract between plaintiff and defendant and therefore there was no
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NC: 2024:KHC:32755 RFA No. 760 of 2015 liability on the defendant to make good the suit claim which has been clearly mentioned in the reply notice and sought for allowing the appeal.
23. None appears for the respondent even though Sri B.R.Srinivasa Gowda, Advocate has been engaged on behalf of the respondent.
24. Having heard the learned counsel for the appellant, this court perused the material on record, meticulously.
25. On such perusal of the material on record, the following points arise for consideration.
(i) Whether plaintiff had successfully established that he had contacted the defendant for lifting 9490 kg ISO PROPYL ALCOHOL covered under Invoice No.0560 dated 07.07.2001 valued at Rs.4,18,471/- and while transporting the said ISO PROPYL ALCOHOL, there was a mischief played by the driver of a tanker and what was supplied to the customer of the plaintiff is contained 38.1% of water in it, whereby whole chemical got contaminated and rightly rejected by consignee, resulting in right of plaintiff to claim damages against defendant?
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(ii) Whether defendant has proved that he had only acted as a liaisoning agent between plaintiff and M/s Eagle Tankers and there was no privity of contract between the plaintiff and defendant so as to be liable for suit claim?
(iii) Whether the defendant establishes that the suit is bad for non joinder of necessary parties?
(iv) Whether the impugned judgment suffering from legal infirmity or perversity, thus calling for interference by this Court?
(v) What order?
25. Regarding Point Nos.1 to 4: In the case on hand, the invoice dated 07.07.2001 and debit note marked at Ex. P.3 are not in dispute. According to the defendant, the role of the defendant is that of liaisoning between plaintiff and defendant. In order to establish the same, there is no written request placed on record by the defendant which is said to have been given by the plaintiff to the defendant.
26. Admittedly, Ex.P-2 contains the registration number of the lorry. Who fixed said lorry for and on behalf of the plaintiff is a fact which assumes a greater significance in the facts and circumstances of the case.
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27. Admittedly, Ex.P-2 contains that the consignment is to be lifted from Mangaluru Port to Sekhsaria Chemical Limited, at Thane, Mumbai. Plaintiff's name is mentioned as importer. Ex.P.3 is the debit note wherein, M/s Sekhsaria Chemical Limited has sought for sum of Rs.16,939/- towards Octroi charges. The correspondence marked at Ex.P.6 addressed to the defendant-M/s Gurudev Tans Lines clearly shows that the plaintiff has made a claim of Rs.4,18,471.05 + Rs.16,939/- towards Octroi charges.
28. A reply is received vide Ex.P.7 whereunder, a demand draft in a sum of Rs.1,04,500/- has been drawn in favour of M/s Somu and Co., and same is paid towards contaminated material transported by M/s Eagle Tankers. For ready reference, contents of Ex.P.7 is culled out hereunder:
To, Date:30.01.2002
M/s Gurudev Transline,
Mangalore.
Dear Sir,
As per your instruction we are enclosing herewith a Demand Draft vide our D.D.No.865126 dated 30.1.2002
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NC: 2024:KHC:32755 RFA No. 760 of 2015 for Rs.1,04,500/- in favour of M/s Somu & Co.-Bangalore towards contaminate material transported by our tanker. Please along with the receipt & oblige. Thanking you, Yours faithfully, For Eagle Tankers Sd/-
Partner
29. In the teeth of Ex.P.7, the contentions taken by defendant that there was no privity of contract between the plaintiff and defendant cannot be countenanced in law.
30. Admittedly, the consignment was not properly transported and there is a complaint filed with jurisdictional police by the defendant, as well as authorized representative of M/s Eagle Tankers, against the driver of the lorry about the mischief committed by the driver.
31. This Court does not find on record any material as to what is the result in regard to police complaint. Copy of the police complaint is also not forthcoming on record, filed by defendant wherein defendant could have stated that he only
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NC: 2024:KHC:32755 RFA No. 760 of 2015 acted as a liasoning agent between plaintiff and M/s Eagle Tankers. If that were to be so, there was no necessity for the defendant to lodge the police complaint at an undisputed point of time.
32. All these factors when viewed cumulatively, the invoice amount of Rs. Rs.4,18,471.05 along with octroi charges are to be made good by the defendant to the plaintiff which has been rightly appreciated by the learned Trial Judge in the impugned judgment.
33. Insofar as non joinder of necessary parties, is concerned, the learned Trial Judge in paragraph No.21 of the impugned Judgment, has held as under:
"21. The defendant has contended that Plaintiff's suit is bad for non-joinder of M/s. Eagle Tankers and National Insurance Company. As discussed by me while answering on the above issues, the defendant on its own had given the job of transporting the chemicals to its Sub-contractor M/s.Eagle Tankers. There are no materials placed by the defendant before the Court to show that on the request of the Plaintiff, the defendant entrusted the job of transporting the chemicals to M/s. Eagle Tankers at owner's risk. The loss sustained here is required to be made good to the Plaintiff by the defendant only and if it is recoverable, in turn, the defendant can recover the
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NC: 2024:KHC:32755 RFA No. 760 of 2015 same either from the Sub-contractor- M/s. Eagle Tankers or from the National Insurance Company. Furthermore, as rightly pointed out by the Counsel for the Plaintiff, a part payment made to M/s Eagle Tankers of Rs.1,04,500/- towards contaminated material transported by the tanker, has been given to the Plaintiff through defendant. In these circumstances, neither M/s. Eagle Tankers nor the National Insurance Company are proper or necessary parties, in my considered view. Hence, I have no hesitation to answer this issue in the negative."
34. In view of contents of Ex.P.7 extracted supra, at the most, M/s Eagle Tankers must be construed as a sub contractor of the defendant.
35. When there is no contra evidence placed on record by the defendant inasmuch as the evidence of D.W.1 was struck off for his non appearance for further cross-examination, the issue No.5 has been held against defendant by the Trial Court.
36. In view of the foregoing discussion, point No.1 is answered in the affirmative, point Nos.2 to 4 are answered in the negative.
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NC: 2024:KHC:32755 RFA No. 760 of 2015 REG. POINT No.5:
37. In view of finding of this Court on point Nos.1 to 4 as above, the following:
ORDER i. Appeal is meritless and is hereby dismissed.
ii. No order as to costs.
Sd/-
(V SRISHANANDA)
JUDGE
kcm
List No.: 1 Sl No.: 73