Supreme Court - Daily Orders
Central Warehousing Corp. (A Govt. Of ... vs M/S Acme Fluoro Polymers Ltd.. on 11 May, 2023
Bench: A.S. Bopanna, Dipankar Datta
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.7021/2011
CENTRAL WAREHOUSING CORP. APPELLANT(S)
(A GOVT. OF INDIA UNDERTAKING)
VERSUS
M/S ACME FLUORO POLYMERS LTD. & ORS. RESPONDENT(S)
O R D E R
The Appellant-Corporation is before this Court assailing the order dated 08.04.2011 passed by the National Consumer Disputes Redressal Commissions, New Delhi (for short `NCDRC’) in O.P. No. 204 of 1995. The respondent herein had filed a complaint before the NCDRC claiming that they be compensated in respect of the damage to the consignment of imported machinery entrusted to the appellant herein for storage in the bonded warehouse. In that regard, the amount was quantified at Rs.1,22,70,000/- and claimed with interest.
The NCDRC at the first instance, through its order dated 05.07.2004 had allowed the claim to the extent of Rs.61,44,000/-. The Appellant-Corporation had assailed the same before this Court. This Court in Civil Appeal No. 6290 of 2004, through its order dated 10.09.2009 had set aside and remitted the matter to NCDRC to consider the matter in terms of Signature Not Verified the order passed by this Court and dispose of the matter. Digitally signed by Rajni Mukhi Date: 2023.05.17 10:19:53 IST Reason: 1 It is in that view the NCDRC has re-considered the matter and disposed of the same through its judgment dated 08.04.2011 whereby the NCDRC has once again directed the appellant herein to pay a sum of Rs. 61,44,000/- with interest @ 12 % per annum w.e.f. 01.02.1996. The appellant therefore, claiming to be aggrieved is before this Court.
It is the common case of the parties that the respondent No.1 herein had entrusted consignment of machinery to be kept in the bonded warehouse. At that point, since there was no covered space available, it was kept in the open space. The goods had however been agreed to be cleared by May, 1995. However, when the goods were lying in the warehouse belonging to the appellant herein beyond the agreed period, there was heavy rains and flash floods on 11.07.1995 which continued for about 3 to 4 days. During the said period since the soil beneath certain iron coils which had been kept adjacent to the machinery entrusted by the appellant had eroded the coils had fallen over the machinery and had caused damage to the machinery. It is in that light the Respondent no.1 complained to the NCDRC that such damage caused to them is for want of care by the appellant, as such they are to be compensated by the appellant herein.
At the first instance, as already noted the NCDRC had awarded the amount of Rs. 61,44,000/-. In the appeal filed by the appellant herein before this Court it was contended that the role of the appellant was only that of a bailee and as 2 such, section 151 of the Indian Contract Act, 1872 (For short `Act’) would get attracted. In that circumstance if the appellant herein indicates that they had exercised sufficient care and the damage occurred was beyond their control, they cannot be held liable for any damage to the goods which has happened due to natural calamity.
This Court having taken into consideration that aspect, had remitted the matter to reconsider the same in that background. It is no doubt true that this Court had also indicated that in addition to the said point the parties may take such other or further points as they may be advised. From a perusal of the order impugned it would indicate that the consideration ultimately was on the aspect relating to Section 151 of the Act and the liability if any arises so as to fasten the same on the appellant.
In the above background, we have heard learned senior counsel for the appellant as also learned counsel for the respondents No. 1 and 2 and perused the order impugned in great detail.
It is noted that since essentially the facts were not in dispute the question which had been adverted to is with regard to whether the appellant had exercised due care as contemplated under Section 151 of the Contract Act. While dealing with this aspect of the matter, the NCDRC has adverted to the same as more particularly noticed in paragraphs 17 to 19 of the order impugned. From a perusal of the same it is seen that the NCDRC has placed reliance on the judgment in the case of Patel 3 Roadways Limited Vs. Birla Yamaha Ltd. reported in (2000) 4 SCC 91 and has arrived at the conclusion that the appellant has not exercised due care as required to be done and as indicated in the said judgment. On this aspect of the matter, learned senior counsel for the appellant contended that the said decision was rendered in the background of the care required to be exercised by the Carrier of goods as provided under the Carriers Act in view of section 9 thereto which has been misapplied to the instant case. In that regard, learned senior counsel has relied on the decision in the case of ‘Union of India Owning Southern Railway rep. by its General Manager, Madras Vs. the United India Fire and General Insurance Co. Ltd. & Anr.” reported in AIR 1981 Madras 162 to point out that in the said decision the issue relating to bailment and the care that is required by the Bailee in a warehouse has been considered and in that circumstance after detailed consideration of Section 151 of the Act it has been held that the person in-charge of the warehouse is not expected to anticipate the failure on the part of consignee to remove the goods in the period agreed and the untoward would happen thereafter. Further with regard to the natural cause, learned senior counsel has also contended, but for the floods, the coils which had been placed next to the consignment which belonged to the respondent would not have fallen and the damage would not have occurred.
Therefore, in such circumstance, the same was beyond the control of the appellant. Hence, insofar as the care as 4 required and provided for under Section 151 of Act in the present facts and circumstances, we see no negligence on the part of the appellant to hold them liable. The agent of the consignee had consented for open storage, sought storage for three months from March, 1995, agreed to remove the same by May, 1995 and did not make sure of appropriate insurance. Though it is contended on behalf of respondent No.1 that as per Customs Act they can store the goods upto one year, there was no other understanding reached beyond May, 1995 nor request made for closed space.
Learned counsel for the respondent No.1, in addition to the said contention sought to contend before us that the appellant in the complaint had specifically indicated that through the Bill dated 6.7.1995 which was sent to the respondent No.1 by the appellant, apart from the storage charges which was indicated therein, the insurance charges from 1.4.1995 to 7.7.1995 was also indicated at Rs.30,154/-. In that view it is contended by him that in the circumstance when the goods had been kept in the ware house and a bill claiming the insurance charges was issued, it was necessary that the indemnification should be made by the appellant if not insurer.
On the said aspect, we note that firstly after the matter was remitted back to the NCDRC allowing all contentions to be urged, no such contention has been put forth therein. Be that as it may, there is no other material brought on record to indicate that such policy existed and therefore a claim in that regard is being made. Though learned counsel for the 5 respondent No.1 sought to refer to the Objection Statement filed by the appellant herein before the NCDRC to contend that the charges as claimed and as contended by the appellant in para 8 of the complaint has been admitted, we see no such categorical admission on behalf of the appellant made in the Objection Statement. Therefore, in that circumstance, more particularly when the claim itself was not on that aspect of the matter, we see no reason to advert further into the same.
We also take note that the warehouse concerned is a bonded warehouse and the imported consignment which was kept therein is subject to the provisions of the Customs Act. The respondent No.3 contends that they have a charge over the said consignment and the same cannot be removed from the warehouse without obtaining appropriate orders from the Customs Authority. However, we see no need to advert into the details herein since at this point it is brought to our notice that the respondent No.1/Company is in liquidation and if any right is claimed by respondent No.3 or the Official Liquidator, the same is to be made in accordance with law before the Court concerned which is in seisin of the liquidation proceedings. Such liberty is however reserved.
Therefore, having taken note of all these aspects of the matter and also having kept in view the nature of consideration made by the NCDRC, the liability fastened on the appellant is more on assumption and pre-conceived notion rather than based 6 on the fact situation involved herein. Therefore, we are unable to sustain the order passed by the NCDRC. We accordingly set aside the order dated 08.04.2011 passed by the NCDRC in O.P. No. 204 of 1995.
The appeal is, accordingly, allowed.
...................J. (A.S. BOPANNA) ...................J. (DIPANKAR DATTA) NEW DELHI MAY 11, 2022 7 ITEM NO.102 COURT NO.9 SECTION XVII-A S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Civil Appeal No.7021/2011 CENTRAL WAREHOUSING CORP. Appellant(s) (A GOVT. OF INDIA UNDERTAKING) VERSUS M/S ACME FLUORO POLYMERS LTD.. & ORS. Respondent(s) (IA No.81230/2017-INTERVENTION/IMPLEADMENT) Date : 11-05-2023 This matter was called on for hearing today. CORAM : HON'BLE MR. JUSTICE A.S. BOPANNA HON'BLE MR. JUSTICE DIPANKAR DATTA For Appellant(s) Mr. Jayant Bhushan, Sr. Adv.
Mr. Shaiwal Srivastava, Adv.
Mrs. Rachna Gupta, AOR For Respondent(s) Mr. M. Srinivas R. Rao, Adv.
Mr. Abid Ali Beeran P., Adv.
Mr. Sarath S. Janardanan, Adv.
Mrs. Sudha Gupta, AOR Mr. Rameshwar Prasad Goyal, AOR Ms. Celeste Agarwal, Adv.
Mr. Mohan Babu Agarwal, Adv.
Ms. Akansha Agarwal, Adv.
Mr. Balbir Singh, A.S.G. Mr. Mukesh Kumar Maroria, AOR Mr. Naman Tandon, Adv.
Ms. Swarupama Chaturvedi, Adv.
Ms. Sansriti Pathak, Adv.
UPON hearing the counsel the Court made the following O R D E R The Civil Appeal is allowed in terms of the signed order. Pending application(s) alongwith application for impleadment shall stand disposed of.
(RAJNI MUKHI) (DIPTI KHURANA)
COURT MASTER (SH) ASSISTANT REGISTRAR
(SIGNED ORDER IS PLACED ON THE FILE)
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