Delhi District Court
M/S The New India Assurance Co. Ltd vs M/S Goyal Transport on 11 October, 2011
IN THE COURT OF SHRI J.P.S. MALIK : ADDITIONAL DISTRICT
JUDGE04 : SOUTH DISTRICT : SAKET COURT COMPLEX
NEW DELHI
Suit No. 30/11
IN THE MATTER OF :
M/S THE NEW INDIA ASSURANCE CO. LTD. ............Plaintiff
Versus
M/S GOYAL TRANSPORT ..............Defendant
ORDER
1 This is an application under order 1 rule 10 CPC as well as under order VII rule 11 CPC, filed by defendant no. 2, M/s RFCL Ltd.
2 A suit has been filed by the plaintiff company, M/s The New India Assurance Co. Ltd. for recovery of Rs. 10,27,558/, but no claim has been made as against applicant/defendant no. 2. As per the case of the plaintiff, the defendant no. 2, M/s RFCL Ltd. had obtained a Marine Cargo Policy for a period from 01/12/2007 to 30/11/2008 with respect to their consignment, being transported to the various parts of the country. On 08.02.2008, the truck no. HR38K8520 belonging to defendant no. 1, a common carrier, while carrying the consignment of medicines booked by defendant no. 2 collided with another vehicle near village Badheri Rajputan, Distt. Haridwar and damage was caused to consignment booked by defendant no. 2. Pursuant to the claim lodged by defendant no. 2 on 11.02.2008, the claim of defendant no. 2 for the loss suffered, to the tune of Rs. 6,92,960/ was cleared by the plaintiff company and defendant no. 2, being insured had issued a letter of subrogation and Special Power of Attorney dated 19.05.2008 in favour of the plaintiff. The present suit has Contd. ....2/ // 2 // been filed by the plaintiff company, on the strength of as letter of Subrogation and Special Power of Attorney issued by defendant no. 2 to recover the claim amount, which was paid by the plaintiff company to defendant no. 2, from defendant no. 1. It is stated that upon submission of letter of subrogation and Special Power of Attorney dated 22.05.2008, a sum of Rs. 6,91,959/ was paid by the plaintiff company to defendant no. 2.
3 The application has been moved by defendant no. 2 on the ground that defendant no. 2/applicant was merely owner of the consigned goods that were damaged by defendant no. 1, no relief has been claimed against defendant no. 2/applicant by the plaintiff and as per letter of subrogation and Special Power of Attorney dated 19.05.2008, defendant no. 2/applicant has assigned, transferred and abandoned all their actionable rights, title and interest in the goods and proceedings thereof in favour of the plaintiff.
4 In reply to the application filed, it is stated that suit is maintainable against defendant no. 2, since letter of subrogation and Special Power of Attorney dated 19.05.2008 were issued by defendant no. 2 in favour of the plaintiff and insurance company had a right to file a suit against defendant no. 1 by impleading the consignee/owner of the goods as a defendant.
5 Arguments were heard on behalf of the plaintiff company as well as defendant no. 2. The plaintiff company has filed a suit against the defendant only by virtue of letter of subrogation and Special Power of Attorney dated 19.05.2008 and is only representing defendant no. 2 by virtue of said letter of subrogation and Special Power of Attorney. The suit Contd.....3/ // 3 // filed by plaintiff on the strength by substitution of Special Power of Attorney against defendnat no. 2/applicant, is not competent, as in the absence of subrogation, the plaintiff company has no privy of contract with defendant no. 1 and has no independent right to institute any proceeding against defendant no. 1. No claim as such has been made against defendant no. 2. Ian the circumstances, it is held that suit filed by the plaintiff company, as against defendant no. 2 is not maintainable. The plaint filed by the plaintiff company as against defendant no. 2 is rejected.
Announced in the open Court (J.P.S. MALIK) on 01.11.2011 ADJ04 : SOUTH DISTRICT All pages signed NEW DELHI : 01.11.2011
IN THE COURT OF SHRI J.P.S. MALIK : ADDITIONAL DISTRICT JUDGE04 : SOUTH DISTRICT : SAKET COURT COMPLEX NEW DELHI Suit No. 30/11 IN THE MATTER OF :
M/S THE NEW INDIA ASSURANCE CO. LTD. ............Plaintiff Versus M/S GOYAL TRANSPORT ..............Defendant ORDER 1 This is an application under order VII rule 11 CPC, filed by defendant no. 1 company for rejection of the plaint filed on the ground that this court has no territorial jurisdiction to adjudicate the suit filed.
2 A suit has been filed by the plaintiff company, M/s The New India Assurance Co. Ltd. for recovery of Rs. 10,27,558/, but no claim has been made as against applicant/defendant no. 2. As per the case of the plaintiff, the defendant no. 2, M/s RFCL Ltd. had obtained a Marine Cargo Policy for a period from 01/12/2007 to 30/11/2008 with respect to their consignment, being transported to the various parts of the country. On 08.02.2008, the truck no. HR38K8520 belonging to defendant no. 1, a common carrier, while carrying the consignment of medicines booked by defendant no. 2 collided with another vehicle near village Badheri Rajputan, Distt. Haridwar and damage was caused to consignment booked by defendant no. 2. Pursuant to the claim lodged by defendant no. 2 on 11.02.2008, the claim of defendant no. 2 for the loss suffered, to the tune of Rs. 6,92,960/ was cleared by the plaintiff company and defendant no. 2, being insured had issued a letter of subrogation and Special Power of Contd. .....2/ // 2 // Attorney dated 19.05.2008 in favour of the plaintiff. The present suit has been filed by the plaintiff company, on the strength letter of Subrogation and Special Power of Attorney issued by defendant no. 2 to recover the claim amount, which was paid by the plaintiff company to defendant no. 2 from defendant no. 1. It is stated that upon submission of letter of subrogation and Special Power of Attorney dated 22.05.2008, a sum of Rs. 6,91,959/ was paid by the plaintiff company to defendant no. 2. 3 In the reply to the application filed, it is stated that suit filed by the plaintiff is not maintainable as against defendant no. 2 because of letter of subrogation and Special Power of Attorney dated 19.05.2008 issued by defendant no. 2 in favour of the plaintiff. Further, it is stated that defendant no. 2 was having title in the goods, which were to be delivered by defendant no. 1 company at Delhi.
4 Arguments were heard on behalf of the plaintiff company as well as defendant no. 1. I hold as under:
5 The suit filed by the plaintiff company as against defendant 2 M/s RFCL Limited is not maintainable, since plaintiff company has only stepped into shoes of defendant no. 1 after letter of subrogation and Special Power of Attorney was executed by defendant no. 2 in favour of the plaintiff company. In the application filed, it is claimed by defendant no. 1 company that defendant no. 1 is company not having any office at Delhi and is neither residing nor working for gain within the jurisdiction of this court and is having its head office at Secundarabad and branch office at Haridwar, which is not disputed on behalf of the plaintiff company.
Further, it is claimed on behalf of defendant no. 1 company in the reply filed that agreement between defendant no. 1 and defendant no. 2 was entered into at Haridwar. The material was booked by defendant no. 2 at Haridwar. The accident resulting into the loss occurred at Roorki and so, Contd.....3/ // 3 // there was no cause of action having arisen within the jurisdiction of this court. In reply, the plaintiff company had admitted the factual position but asserted that cause of action had arisen within the jurisdiction of this court stating that it was defendant no. 2, who was residing in Delhi, working for gain in Delhi and Power of Attorney and letter of subrogation in favour of the plaintiff was executed at Delhi. After having held that suit of the plaintiff is not maintainable as against defendant no. 2 and plaint as against defendant no. 2 was rejected by separate order of the date, no cause of action has arisen within the jurisdiction of this court. Further as per the certificate of facts dated 28.03.2008, it was the court in Secundarabad City alone, which was to have jurisdiction in respect of all claims and disputes arising between the parties, which is not disputed on behalf of the plaintiff company. In view of the above, it is held that this court has no territorial jurisdiction to entertain the suit filed. Instead of rejecting the plaint filed under order VII rule 11 CPC, plaint is directed to be returned to the plaintiff company for filing before the court having jurisdiction.
Announced in the open Court (J.P.S. MALIK)
on 01.11.2011 ADJ04 : SOUTH DISTRICT
All pages signed NEW DELHI : 01.11.2011
Suit no. 30/11
01.11.2011
Present: Proxy for counsel for the plaintiff.
Proxy for counsel for the defendant.
Vide separate order of the date, the application under order VII rule 11 CPC as well as under order 1 rule 10 CPC, moved by defendant no. 2 is allowed and the plaint filed against defendant no. 2 is rejected.
Vide separate order of the date, the application under order VII rule 11 CPC, moved by defendant no. 1 is allowed to the extent that instead of rejection of the plaint filed, same be returned to the plaintiff company holding that the court has no territorial jurisdiction to entertain the suit filed.
Matter is adjourned to 15.11.2011 for further proceedings.
(J.P.S. MALIK) ADJ04 : SOUTH DISTRICT NEW DELHI : 01.11.2011