Delhi District Court
Cs - 897/17 vs J.C.B. India Ltd on 19 August, 2017
IN THE COURT OF SH. GURVINDER PAL SINGH:
ADDITIONAL DISTRICT JUDGE 01 SOUTH EAST
DISTRICT, SAKET COURTS, NEW DELHI.
CS - 897/17
Tashi Chopel Bhutia S/o. Phurden Lama
R/o. West Sikkim, Post Office and Police
Station, Geyzing, West Sikkim - 737111.
..........Plaintiff
Sh. Phurden Lama
S/o. Late Kee T Shering Bhutia
R/o. West Sikkim, Post Office and Police Station
Geyzing, West Sikkim - 737111.
(Since earlier arraigned plaintiff no.1 Sh. Phurden Lama S/o. Late Kee T
Shering Bhutia had expired on 02.02.2014 and the Legal Representatives of the
deceased/ plaintiff no.1 have not been brought on record, in terms of the
statement of Counsel for plaintiffs on 18.09.2014, so for plaintiff no.1 Sh.
Phurden Lama, the suit stands abated)
VERSUS
1. J.C.B. India Ltd.
23/7, mathura Road, Ballabgarh
Haryana - 121004 and also carrying on
business at B11, 2nd Floor
Mohan Cooperative Industrial Estate
Mathura Road, New Delhi 110044.
2. MAGMA Shrachi Finance Ltd. "(Previously
Named Magma Leasing Ltd.) (a company
incorporated under the Companies Act 1956,
CS - 897/2017 Tashi Chopel Bhutia Vs. JCB India Ltd. & Ors. page 1 of 28
having its Registered Office at 24, Park Street
4th Floor, Park Center, Kolkata - 700016.
and also carrying on business from its Zonal
Office at A - 193, Okhla Industrial area
New Delhi - 110020.
3. H.P. Cargo Movers Pvt. Ltd.
A company registered under the Companies
Act, 1956 having its Registered Head Office
at Cottage No. 31, 1st Floor,
West Patel Nagar, New Delhi - 110008.
..........Defendants
Date of Institution : 22.08.2008
Date of Arguments : 13.07.2017
Date of Judgment : 19.08.2017
JUDGMENT
1. Sh. Phurden Lama, Plaintiff no. 1 who had filed the present suit for recovery against the defendants, had expired on 02.02.2014 and plaintiff no.2 Sh. Tashi Chopel Bhutia is the son of plaintiff no.1 who proceeded with the case against the defendants but legal representatives of Sh. Phurden Lama were not brought on record, consequent upon his expiry. Plaintiffs had filed the suit for recovery of a sum of Rs. 31,80,000/ on account of part payment of price of goods paid, for loss and damage arising from non delivery of goods sold, interest and cost of the suit from the defendants.
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2. Adumbrated in brief the facts of the case of plaintiffs are :
Plaintiffs are Registered Government Contractors of Sikkim. The defendant no.1 is engaged in the business of manufacturing and selling heavy duty Service Utility Vehicle including Track Excavators under its brand name JCB JS80 Track Excavator (hereinafter referred to as the Track excavator) which is essentially required and used for construction work, viz. Construction of public road and highways. The defendant no.2 is engaged in Non Banking business, providing finance to facilitate sale and purchase of machines and goods under hire purchase agreement for gain. Defendant no.3 is engaged in the business of transportation for gain. The defendants are involved with each other having common business interest understanding and relationship.
3. The defendant no.1 offered to sell to the Plaintiff's brand New Track Excavator manufactured in its factory, with all fittings at the total price/consideration of Rs. 23,05,000/ with Rs. 50,000/. F.O.C. inclusive of all taxes and freight charges, F.O.R. Siliguri and to that effect, defendant no.1 issued Quotation dated 28.10.2006 through its business representative, Pali Automotive Pvt. Ltd., Siliguri, West Bengal addressed to Plaintiff no.2 containing the detailed terms and condition and CS - 897/2017 Tashi Chopel Bhutia Vs. JCB India Ltd. & Ors. page 3 of 28 price of the Track Excavator manufactured by the defendant no.1 offered for sale to the plaintiffs with finance to be provided and paid by defendant no.2 with which it has business understanding, under an agreement to be entered separately between the plaintiffs and the defendant no.2 on the term of repayment of the amount finance in easy monthly installment with interest. The plaintiffs being in urgent need of the said Track excavator, in executing their contract work in hand and in getting further business were induced to accept the defendant no.1's offer of sale of the said Track excavator with finance to provided by defendant no. 2 to be delivered at Siliguri at West Bengal by defendant no.1 and to that effect the plaintiffs issued purchase order dated 4th November, 2006 accepting the offer of sale of the said Track excavator made by defendant no.1 and agreeing to purchase the said Track Excavator at the agreed price of Rs. 23,05,000/ inclusive of all taxes and freight charges F.O.R Siliguri. The defendant no.1 in addition to payment of the agreed quoted freight charge of Rs. 34,000/ also directed the plaintiff to pay a further sum of Rs. 1000/ alongwith the agreed fright charge on account of handling, loading and unloading and plaintiff paid the same by demand draft baring no. 574305 dated 07.11.2006 drawn on SBI, Gangtok. Further, plaintiffs paid a sum of Rs. 4,55,000/ to defendant no.2 by DD no. 574304 dated 07.11.2006, drawn on CS - 897/2017 Tashi Chopel Bhutia Vs. JCB India Ltd. & Ors. page 4 of 28 SBI, Gangtok.
4. The defendant no.2 by making representation to the plaintiffs to secure payment of the agreed monthly installments on account of repayment of the balance consideration/price of the said Track Excavator represented to have been paid to defendant no.2 obtained three signed Blank cheques from the plaintiff with the assurance that the same would be held as security and presented and encashed by filling up the amount of installment in case of default of payment of the installments. The defendant no2 which represented to have paid the balance price of the said Track Excavator under Hire Purchase agreement also did not intimate the plaintiff's the payment of the balance price of the said Track Excavator to defendant no.1 and also did not intimate the plaintiff the dispatch of the said Track Excavator by defendant no.1 from its factory at Ballabgarh to Silliguri for delivery to the plaintiffs.
5. It is further averred that plaintiff was entitled to have the delivery of the said Track Excavator in good running condition. And the defendants no. 1 and 2 were jointly and severally liable to deliver the said Track Excavator. However, the defendant no.1 failed to deliver the said Track excavator to the plaintiffs in Siliguri and also willfully neglected to deliver the documents of CS - 897/2017 Tashi Chopel Bhutia Vs. JCB India Ltd. & Ors. page 5 of 28 the said track excavator or the Insurance cover note and the policy and receipt of payment of premium.
6. It is further averred that on 07.12.2006, the plaintiffs were informed over the telephone that the said Track excavator for delivery to the plaintiffs in Siliguri had fallen from the Truck on the way at Bihar. The plaintiffs on getting the news came to Siliguri and found the said Track Excavtor dumped at a site in total damaged and unusable condition. Plaintiffs refused to accept delivery of damaged Track Excavator and the men of defendant no.3 left the damaged Track excavator at the site in Silliguri without taking receipt of delivery from the plaintiffs on the invoice without handing over any documents of title and other documents and left Silliguri. The plaintiff no.1 wrote letter dated 29.12.2006 to defendant no.1 and intimated the damaged condition of the said Track Excavator dispatched by defendant no.1 and expressed inability to take delivery of the same . Plaintiffs also wrote to defendant no.2 vide letter dated 29.12.2006 intimating the damage of the said Excavator in Bihar and called upon to not to pay the balance price of the said Excavator to defendant no.1. However, the defendants did not respond to the said letters of the plaintiffs. In view of the admitted non delivery of the said Track excavator and non response to the letter of the plaintiff requesting repair and /or CS - 897/2017 Tashi Chopel Bhutia Vs. JCB India Ltd. & Ors. page 6 of 28 replacement and delivery of the said Track excavator and in action thereof, the plaintiffs by letter dated 07.01.2007 addressed to the defendants no.1 and 2 cancelled the purchase order of the said Track excavator dated 04.11.2006.
7. It is further averred that plaintiffs to prevent the defendant no.2 in committing fraud in encashing the three blank signed cheques given as security for payment of the agreed installments on account of repayment of the price of the excavator represented to have been paid, lodged an FIR dated 19.07.2007 with the Local Police Station, at Geyzing, West Sikkim, which was registered as General Diary no. 174/Geyzing Police station dated 19.07.2008.
8. The plaintiffs by notice dated 11.04.2008, demanded refund of the advance part payment of the price of the said Track excavator being Rs. 4,55,000/ paid to the defendant no.2 and Rs. 35,000/ paid to defendant no.1 on account of freight charge handling, loading charge with interest and Rs, 26,90,000/ for payment of loss and damage suffered on account of hire charge paid for hiring the Track excavator. The defendants no.1 and 2 despite receipt of the said notice did not deny their liability to refund and pay the loss and damage claimed . The defendants have acted in breach of trust and are jointly and severally liable CS - 897/2017 Tashi Chopel Bhutia Vs. JCB India Ltd. & Ors. page 7 of 28 to pay the claim of the plaintiffs. Resultant, had been this suit.
9. Defendant no.1 filed written statement denying the averments made by the plaintiff. It is averred that there is no privity of contract between plaintiff no.2 and the defendant no.1. It is averred that defendant no.1 deals with various finance companies who finance machinery for various customers and that in all these dealings the finance companies act on behalf of and as agents of the customers. It is submitted that the plaintiff no.1 placed a purchase order for the Track Excavator on 04.11.2006 for a total amount of Rs. 23,05,000/ with all taxes and freight charges FOR Siliguri. The purchase order provided that the plaintiff would issue a comprehensive insurance cover note including transit insurance prior to the dispatch of the machine. The plaintiff had also an arrangement with the defendant no.2 who was financing the purchase of the machine by the plaintiff no.1. It is further averred that defendant no.2 issued a Delivery Order dated 20.11.2006 under which they had agreed to finance an amount of Rs. 19,16,000/ out of the total cost of the machine. The Delivery Order forwarded by the defendant no.2 to the defendant no.1 provided that the invoice was to be made out in the name of the plaintiff no.1 under finance arrangement with the defendant no.2. The payment was to be made thirty days from the date of delivery of the vehicle CS - 897/2017 Tashi Chopel Bhutia Vs. JCB India Ltd. & Ors. page 8 of 28 and it was specifically provided that the transit and comprehensive insurance was to be borne by the plaintiff no.1. The defendant no.1 dispatched the goods in accordance with the instructions of the plaintiff on 24.11.2006 and raised invoice being Invoice no. 6610007219. The machine was dispatched on 24.11.2006 through HP Cargo Movers Pvt. Ltd. who were the transporters for the said machine in accordance with the request of the plaintiff no.1 who had made a separate payment of Rs. 35,000/ by way of Draft no. 574305 towards freight charges from the factory gate of the defendant no.1 to Siliguri. The plaintiff no.1 also sent a Cover Note of the insurance taken out by the plaintiff no.1 under which the period of insurance was 16.11.2006 to 15.11.2007. So far as the defendant no.1 is concerned, the sale was complete as the goods left the factory gate and were handed over to the transporter for delivery to the plaintiff no.1 and that the defendant no.1 also received the balance payment of Rs. 22,70,000/ from the defendant no.2 on 28.12.2006, in terms of the arrangement.
10. It has been denied that the defendants are involved with each other or have any common business interest understanding or relationship. The defendant no.1 is not aware of the contents of the Hire Purchase Agreement between the plaintiff and the defendant no.2. It is denied that the defendant no.1 or any of its CS - 897/2017 Tashi Chopel Bhutia Vs. JCB India Ltd. & Ors. page 9 of 28 agents obtained any signatures on blank papers or non judicial stamp papers. It is further averred by defendant no.1 that the plaintiff having come to know about the damage to the Track excavator on 07.12.2006 waited till 29.12.2006 to inform the defendant no.1 about the damage. It was for the plaintiff to make a claim on the insurance company since in terms of the contract, the transit insurance was to be taken by the plaintiff. The defendant no.1 cannot be held liable for such damage since they had dispatched a fully working Track excavator in terms of the purchase order placed by the plaintiff. It is prayed that the plaint filed by the plaintiff be dismissed with exemplary cost.
11. Defendant no.2 also filed written statement in which it has also denied the averments made by the plaintiff submitting that the Sole Arbitrator has already been passed an Award dated 11.07.2008 for a sum of Rs. 21,74,541/ in favour of the defendant no.2 and against the plaintiff and his son alongwith interest @ 36% per annum from the date when they failed to pay the monthly installments in terms of the said agreement and thereafter 24% per annum till the entire awarded amount is realized and as per the award passed by the sole arbitrator the said amount is to be recovered from the plaintiff.
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12. It is further averred that the plaintiffs approached the defendant no.2 at its registered office at 24, Park Street, Kolkatta in the month of November/December, 2006 as they were desirous of taking a Commercial Vehicle Make JCB JS Machine on hire purchase basis. Based upon the documents furnished by the plaintiffs, the defendant no.2 sanctioned the loan amount of Rs. 20,86,221/ vide hire purchase agreement dated 11.12.2006 for a period of 35 months commencing on or about 01.01.2007 and the said amount was disbursed for purchasing the aforesaid Commercial vehicle. The plaintiffs made payment of premium for transit insurance and the transporation of the said vehicle was accordingly duly insured. After availing the loan facility the plaintiff failed to regularize the payment as per the schedule of the hire purchase agreement and the cheques issued by him towards the monthly hire charges were got bounced. It is further averred that the defendant no.2 had no knowledge and/or notice of such alleged accident until much later. By this time, the defendant no.2 had already made payment of the entire consideration to the dealer of JCB India Ltd. and that the the defendant no.2 having performed its obligations was entitled to payments in terms of the hire purchase agreement. The intentions of the plaintiffs were dishonest from the very beginning which is clear from the conduct of the plaintiffs towards the payment of monthly hire charges. The defendant CS - 897/2017 Tashi Chopel Bhutia Vs. JCB India Ltd. & Ors. page 11 of 28 no.2 had issued notices through their counsel for demanding the overdue amount but after receipt of the said notice, the plaintiff failed to make the payment. The defendant no.2 terminated the said agreement by giving a notice dated 14.03.2008 and demanded payment to the tune of Rs. 21,74,541/, then due as well as recovery of the said asset but the plaintiffs did not make the said amount after receipt of legal notices. The defendant no.2 had filed the claim petition before the sole arbitrator and the sole arbitrator passed an award in favour of the defendant no.2 on 11.07.2008. The defendant no.2 had filed an application under Section 9 of the Arbitration and Conciliation Act before the High Court at Calcutta and diverse orders were passed in the same including appointment of a Receiver to take possession of the said equipment in question. The plaintiffs have however challenged the award passed by the arbitrator by filing an application under Section 34 of the Arbitration and Conciliation Act 1996 and defendant no.2 is contesting the same.
13. It is denied by defendant no.2 that the plaintiffs have handed over the blank documents to the defendant no.2 . It is further denied that defendant no.2 is liable to deliver the said Track Excavator to the plaintiffs in Siliguri in good condition. It is submitted that after receiving the amount, the defendant no.1 is CS - 897/2017 Tashi Chopel Bhutia Vs. JCB India Ltd. & Ors. page 12 of 28 liable to deliver the said machine to the plaintiffs and not the defendant no.2. It is further averred that the defendant no.2 being the financer of the vehicle has already released the finance amount to the defendant no.1 in terms of the Hire purchase agreement and the plaintiffs are liable to make the payment towards the loan amount to the defendant no.2 but they have failed to comply with the terms and conditions of the agreement executed by them. Therefore, the plaintiffs are not entitled for any amount as prayed for from the defendant no.2.
14. Since none appeared on behalf of defendant no.3, defendant no.3 was proceeded exparte on 24.07.2009.
15. Plaintiff filed replications to the Written Statements of defendants no. 1 and 2 in which he reiterated the facts of the suit and denied the averment of written statement made by defendants no. 1 and 2.
16. During the course of admission/denial of documents on 15.09.2009, the documents Ex. P1 to P7, filed by plaintiff were admitted by Ld. Counsel for defendant no.1, which are as follows :
(i) Quotation dated 28.10.2006 having price schedule for JCB CS - 897/2017 Tashi Chopel Bhutia Vs. JCB India Ltd. & Ors. page 13 of 28 JS80 Track Excavator, admitted as Ex. P1.
(ii) Another copy of Quotation dated 28.10.2006 having price schedule for JCB JS80 Track Excavator, admitted as Ex. P2.
(iii) Purchase Order dated 04.11.2006 for JCB JS80 Track Excavator, admitted as Ex. P3.
(iv) Another copy of Purchase Order dated 04.11.2006 for JCB JS80 Track Excavator, admitted as Ex. P4.
(v) Copy of Demand draft bearing no. 574305 dated 07.11.2006 drawn on State Bank of India, admitted as Ex. P5.
(vi) Another copy of Demand draft bearing no. 574305 dated 07.11.2006 drawn on State Bank of India, admitted as Ex. P6.
(vii) Catalogue of Track Excavator of the defendant no.1, admitted as Ex. P7.
17. Ld. Counsel for plaintiff also admitted the documents Ex. D1 and D2, filed by defendant no.1, which are as follows :
(i) Purchase Order dated 04.11.2006 for JCB JS80 Track Excavator, admitted as Ex. D1.
(ii) Courier receipt of Blazeflash Couriers Ltd., admitted as Ex.
D2.
18. From the pleadings of the parties, following issues were framed on 21.02.2011:
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(a) Whether the suit is liable to to rejected on account of not being signed, verified and instituted validly by the plaintiff no.1? OPD.
(b) Whether there is no privity of contract between the plaintiff no.2 and the defendant no.1? OPD.
(c) Whether the plaintiffs are entitled to a decree for a sum of Rs. 31,80,000/ from the defendants? OPP.
(d) If the Issue no. (c) is decided in affirmative, whether the plaintiffs are entitled to interest @ 18%, if so, on what amount and for what period? OPP.
(e) Relief.
Vide Order dated 15.09.2011, following additional issue was framed :
(f) Whether the subject Track Excavator was delivered to the plaintiff by the defendant no.2?
19. In evidence, plaintiff no.1 was examined as PW1 vide video conferencing as well as vide detailed affidavit Ex PW1/1. PW1 relied upon documents viz., (i) The original quotation dated 28.10.2006 issued by Pali Automotive Pvt. Ltd. Agent of defendant no.1 Ex. P1 and its copy Ex. P2 ; (ii) The purchase order bearing reference no. PL/JCB/SLG/JS80/2006 dated 04.11.2006 bearing signatures of plaintiff no.1 as Ex. P3; (iii) Photocopies of the original demand draft no. 574305 dated CS - 897/2017 Tashi Chopel Bhutia Vs. JCB India Ltd. & Ors. page 15 of 28 07.11.2006 drawn on State Bank of India, Siliguri as Ex. P5;
(iv) Photocopy of the original letter dated 29.12.2006 addressed and signed by plaintiff no. 1 to the Executive Director of defendant no.1 as Ex. PW1/F; (v) Photocopy of the original letter dated 29.12.2006 addressed to the defendant no. 2 by plaintiff no.1 as Ex. PW1/G ; (vi) The copy of complaint of plaintiff no.1 registered under G.D. Entry no. 174 dated 19.07.2008 at police station Geyzing as Ex.PW1/H; (vii) Photocopy of the letter dated 07.01.2007 addressed to the defendant no.1 canceling the purchase order with copy to defendant no.1's Agent Palli Automotive Pvt. Ltd. as Ex. PW1/I; (viii) notice dated 11.04.2008 of Advocate of plaintiff no.1 with acknowledgment due cards received on return with postal endorsement of seal and bearing the endorsement and receipt of the defendant no.1 and 2 collectively as Ex. PW1/J ;
(ix) Original receipts of hire charge of track excavator locally hired dated 15.03.2007, 30.06.2007, 31.07.2008 bearing the signature of the Vendors/suppliers as Ex. PW1/K (colly).
20. Plaintiff no.2 also got examined himself as PW2 and deposed similar to plaintiff no.1 and relied upon the documents as relied upon by PW1. Plaintiff also got examined Sh. Ramesh Basnot, Manager of N.B. Dahal, Gayzing, West Sikkim as PW3 vide his affidavit Ex. PW3/A. Plaintiff also got examined Sh. Suresh CS - 897/2017 Tashi Chopel Bhutia Vs. JCB India Ltd. & Ors. page 16 of 28 Agarwal who was in the business of Gayzing, West Sikkim vide his affidavit Ex. PW4/A.
21. Defendant no.1 got examined Sh. Sanjay Gupta, Authorised Representative of defendant no.1 as DW1 vide affidavit Ex. D1W1/1 and relied upon documents viz., (i) the Purchase Order dated 04.11.2006 as Ex. D1W1/A; (ii) copy of the Machine Despatch Instruction/Checklist on Loading as Ex. D1W1/B; (iii) copy of Tax Invoice as Ex. D1W1/C; (iv) copy of delivery challan of the Track Excavator issued by defendant no.3 as Ex. D1W1/D.
22. Defendant no.1 also got examined Sh. Sushil Kumar KV as D1W2 vide affidavit Ex. D1W2/A and relied upon documents viz. (i) The Purchase Order dated 04.11.2006 as Ex. D1;
(ii) Copy of the machine dispatch instruction/checklist on loading as Ex. D1W2/B.
23. Defendant no.2 got examined Sh. Sunil Griwan as D2W1 vide affidavit Ex. D2W1/A and relied upon documents viz. (i) Copy of Power of attorney as Ex. D2W1/1; (ii) Hire Purchase agreement as Ex. D2W1/2; (iii) Legal Notice dated 14.03.2008 with postal receipts as Ex. D2W1/3; (iv) Letter of reference dated 26.03.2008 with postal receipts as Ex. D2W1/4; (v) Copy CS - 897/2017 Tashi Chopel Bhutia Vs. JCB India Ltd. & Ors. page 17 of 28 of the Award dated 11.07.2008 as Ex. D2W1/5; (vi) Copy of Orders dated 11.08.2008 as Ex. D2W1/6 and Order dated 01.10.2008 as Ex. D2W1/7.
24. Defendant no.1 has relied upon the following precedents :
(i) Dunlop Pneumatic Tyre Company Ltd. Vs. Selfridge and Company Ltd. (1915) AC 847
(ii) K. Gopalasamy Chetty & Ors. Vs. Selliamman Koil Co op. House Site Society Ltd. MANU/TN/0314/2002
(iii) Murlidhar Chiranjilal Vs. Harishchandra Dwarkadas and Anr. MANU/SC/0113/1961
25. I have heard arguments addressed by Sh. Neguive Ahmed and Sh. Atanu Saikia , Ld. Counsel for plaintiff; Sh. Manoj Arora, Ld. Counsel for defendant no.1; and have given thoughts to the rival contentions put forth, pleadings of the parties, evidence and have also examined the record of the case.
26. My issue wise findings are as under :
Findings on Issues (a) and (b)
(a) Whether the suit is liable to be rejected on account of not being signed, verified and instituted validly by the plaintiff no.1? OPD.
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(b) Whether there is no privity of contract between the plaintiff no.2 and the defendant no.1? OPD.
PW1 in his deposition vide video conferencing elicited that he is the proprietor of his concern whereas his son Plaintiff no.2 takes care of the business but is not his employee nor his partner. The purchase Order Ex. P3 and copy Ex. D1, both dated 04.11.2006, was placed by plaintiff no.1 upon defendant no.1 for purchase of JCB JS 80 Excavator for an amount of Rs. 23,05,000/ with all taxes and freight charges FOR Siliguri. The said purchase order also inter alia provided that plaintiff would issue a comprehensive insurance cover note including transit insurance prior to dispatch of the machine. The said machine was got financed by the plaintiff from defendant no.2. Defendant no.2 issued delivery order under which they agreed to finance a sum of Rs. 19,16,000/ out of total cost of the machine. The delivery order forwarded by defendant no.2 to defendant no.1 provided that the invoice was to be made out in the name of plaintiff no.1 under finance agreement with defendant no.2. Transit and comprehensive insurance was to be borne by the plaintiff no.1. D1W1 elicited that in accordance with the instructions of plaintiff, the machine was dispatched vide instruction checklist, Ex. D1W1/B on 24.11.2016 by defendant no.1 who raised invoice Ex. D1W1/C. Defendant no.3 was the transporter for said machine. D1W1 also elicited that at the request of plaintiff CS - 897/2017 Tashi Chopel Bhutia Vs. JCB India Ltd. & Ors. page 19 of 28 no.1, the machine was transported through defendant no.3 and it was plaintiff no.1 who made separate payment of Rs. 35,000/ by way of Demand Draft bearing no. 574305 towards freight charges from the factory gate of the defendant no.1 to Siliguri. D1W1 further elicited that Plaintiff no.1 also sent a cover note of the insurance taken out by the plaintiff no.1 under which the period of insurance was 16.11.2006 to 15.11.2007. As per D1W1, the sale was complete in so far as defendant no.1 was concerned when the goods left the factory gate and were handed over to the transporter /defendant no.3 for delivery to the plaintiff no.1 and thereupon in terms of arrangement, defendant no.1 received the balance payment of Rs. 22,70,000/ from the defendant no.2 on 28.12.2006.
27. Purchase Order Ex. P3 and Ex. D1 find clear mention of the said purchase order to be issued by only plaintiff no.1 and not plaintiff no.2. In crossexamination, plaintiff no.2/PW2 candidly admitted of having not personally placed the order for the Track Excavator with the defendant no.1 and such order was signed by the father of PW2 i.e. PW1. PW2 also candidly admitted that there was no written agreement between him and defendant no.1 for supply of the Track Excavator. Further PW2 elicited that it was his father who had applied for the loan but they did not receive any amount from defendant no.2. PW2 CS - 897/2017 Tashi Chopel Bhutia Vs. JCB India Ltd. & Ors. page 20 of 28 further elicited that defendant no.3 was never hired by plaintiffs and also admitted the fact that plaintiffs never issued any notice to defendant no.3 before filing of the suit.
28. Order I Rule 1 CPC embodies that all persons may be joined in one suit as plaintiffs where any right to relief in respect of or arising out of the same act or transaction or series of acts or transaction is alleged to exist in such persons, whether jointly, severally or in the alternative. Ex. P3 and Ex. D1, purchase order of date 04.11.2006 have proved on record that the purchase order was placed only by plaintiff no.1 who as sole proprietor worked as government contractor in the Sikkim and had so placed the purchase order for Track Excavator on defendant no.1. There existed no privity of contract between plaintiff no.2 and defendant no.1. Plaint is signed and verified by plaintiff no.2 and supported by affidavit of plaintiff no.2. Neither alongwith the plaint or later, any written authorisation has been proved by plaintiff no.2, PW2 for having been so authorised by plaintiff no.1 to sign, verify and file the plaint for and on behalf of his father/plaintiff no.1. Neither plaintiff no.2 was an employee nor partner in the business carried on by plaintiff no.1. In the case of Dunlop Pneumatic Tyre Co. Ltd. (supra), it was held that only a person who is a party to a contract may sue on it. Stranger to a contract has no right to enforce the contract in personam. In the case of K. Gopalasamy CS - 897/2017 Tashi Chopel Bhutia Vs. JCB India Ltd. & Ors. page 21 of 28 Chetty & Ors. (supra), it had been held that to enforce a contract or set up a defence basing on the contract, there must be a privity of contract as mentioned under Section 2(d) of the Contract Act. No one, but the parties to the contract are entitled under it and the contracting parties may confer rights or benefits upon the third party in the form of promise or to perform a service or a promise not to sue.
29. Order VI Rule 14 of The Code of Civil Procedure, 1908 provides that every pleading has to be signed by the party and his pleader (if any). Proviso to Rule 14 of Order VI embodies that where a party pleading is, by reason of absence or for other good cause, unable to sign the pleading, it may be signed by any person duly authorised by him to sign the same or to sue or defend on his behalf. Nothing has been placed on record to construe and prove that signatory PW2, plaintiff no.2 to the plaint was in any manner duly authorised by plaintiff no.1 to sign, verify and file the plaint on behalf of plaintiff no.1. No power of attorney given by plaintiff no.1 in favour of plaintiff no.2 has been filed nor proved. Nowhere in plaint, it is pleaded nor proved that by reason of absence or for other good cause, plaintiff no.1 was unable to sign the plaint.
30. Defendant no.1 has been able to discharge its onus on both CS - 897/2017 Tashi Chopel Bhutia Vs. JCB India Ltd. & Ors. page 22 of 28 issues (a) and (b). There exists no privity of contract between the plaintiff no.1 and defendant no.1. The plaint has not been signed, verified and instituted validly by plaintiff no.1.
31. On 18.09.2014, the Ld. Counsel for plaintiff had informed the Court that plaintiff no.1 had expired on 02.02.2014. Also was stated by Ld. Counsel for plaintiff that LRs of plaintiff no.1 do not want their impleadment as Plaintiff no.2 is the son of plaintiff no.1 who shall continue accordingly with the suit.
32. Order XXII Rule 2 and 3 CPC prescribe the procedure where one of the several plaintiffs dies. In accordance thereof when where within the time limit by law viz. the period of 90 days of date of death of such plaintiff, no application is made for substitution of the LRs of such deceased plaintiff when the right to sue survives, then the suit shall stand abated so far as the deceased plaintiff is concerned. In view of the afore elicited submissions of Ld. Counsel for plaintiff and in the fact of the matter that no application for substitution of the legal representatives of plaintiff no.1 was filed nor pressed, after his afore elicited expiry, within period of 90 days of death of plaintiff no.1 or even later, so the suit stands abated so far as deceased/plaintiff no.1 is concerned.
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33. As afore elicited, there is existing no privity of contract between plaintiff no.2 and defendant no.1 with regard to purchase of the Track excavator and the plaint has not been signed, verified and instituted validly by plaintiff no.1, the suit is liable to be dismissed. Issues (a) and (b) are decided in favour of defendants and against the plaintiff.
Findings on Issue (c) & (f)
(c) Whether the plaintiffs are entitled to a decree for a sum of Rs. 31,80,000/ from the defendants? OPP.
(f) Whether the subject Track Excavator was delivered to the plaintiff by the defendant no.2?
34. Plaintiffs have filed this suit for recovery of Rs. 31,80,000/ and in para 45 of the plaint, the particulars of the claim as laid are as under : S. No. PARTICULARS AMOUNT (Rs.)
1. On account of refund of advance part payment 4,55,000/-
of the price of the excavator paid to defendant no.2.
2. On account of refund of freight carriage charge, 35,000/-
handling and loading charge
3. Loss and damage suffered due to non delivery 26,90,000/-
and payment of hire charge on account of hiring of Track Excavator in completing the work in hand from Jan 2007 - 2008 Interest @ 18% Total 31,80,000/-
CS - 897/2017 Tashi Chopel Bhutia Vs. JCB India Ltd. & Ors. page 24 of 28
35. No part of consideration sum of the purchase of Track Excavator was given by either of the plaintiffs to defendant no.1 It is the submission of Ld. Counsel for defendant no.1 that consideration in regard to the TrackExcavator was made by defendant no.2 to defendant no.1 and the ownership of the machine belonged to defendant no.2; which was made clear from the litigation between the plaintiff and defendant no.2 in the High Court of Calcutta which had referred the matter to Arbitration and the Arbitrator had held that the owner of the vehicle was defendant no.2. In the proceedings in AP No. 157/2008 (Magma Shrachi Finance Ltd. Vs. Phurdan Lama), a Receiver had been appointed and by Order dated 01.10.2008, the machine was sold by the Receiver for Rs. 13 lakhs and the amount of Rs. 13.59 lakhs was handed over under the order of the High Court of Calcutta to defendant no.2.
36. The Track Excavator was dispatched after instructions/ checklist Ex. D1W1/B vide delivery challan, copy Ex. D1W1/D on 24.11.2006 through transporter defendant no.3. No document for delivery of the Track Excavator to plaintiffs had been proved by defendants. Vehicle carrying the Track Excavator met with an accident in transit. It is proved on record that the CS - 897/2017 Tashi Chopel Bhutia Vs. JCB India Ltd. & Ors. page 25 of 28 Track Excavator was not delivered to plaintiff by any of defendants. Issue (f) is decided in favour of the plaintiff accordingly.
37. An insurance policy had been taken by plaintiff no.1 with regard to the TrackExcavator for transit and it was open to insured to claim from the insurer the losses/damages in part or full qua TrackExcavator in transit due to accident. Section 73 of the Indian Contract Act, 1872, inter alia in explanation provides that in estimating the loss or damage arising from breach of contract, the means which existed of remedying the inconvenience caused by non performance of the contract, must be taken into account.
38.Evidence of plaintiff is shorn of any fact proved of plaintiff having done anything to mitigate his losses despite having a valid insurance policy for transit. No claim laid on insurance company was brought to fore. Letter Ex. PW1/G dated 29.12.2006 of plaintiff no.1 sent to defendant no.2 embodies inter alia the fact that the insurance company has seen the condition of the machine and plaintiff no.1 was told that insurance shall make reimbursement to the party i.e. plaintiff no.1. What had been done by plaintiff no.1 to claim insurance, the fate of any such claim has not surfaced in the evidence led.
CS - 897/2017 Tashi Chopel Bhutia Vs. JCB India Ltd. & Ors. page 26 of 28 Accordingly, for not having mitigated his losses, plaintiff is debarred from claiming any part of damages arising out of his neglect. Reliance placed on the law laid down in the case of Murlidhar Chiranjilal (supra).
39. In this fact of the matter in the backdrop of findings on issues
(a) and (b), plaintiff no.2 is held not entitled for sum of Rs. 31,80,000/ or any part thereof from any of the defendants. Issue no. (c) is decided against the plaintiff and in favour of the defendants.
Findings on Issues no. (d)
(d) If the Issue no.(c) is decided in affirmative, whether the plaintiffs are entitled to interest @ 18%, if so, on what amount and for what period? OPP.
40. In view of the findings on Issue (c), since plaintiff is held not entitled for any part of the sum claimed from any of the defendants, plaintiff is held not entitled for any interest also.
Relief
41. In view of my findings with respect to issues no. (a), (b), (c) CS - 897/2017 Tashi Chopel Bhutia Vs. JCB India Ltd. & Ors. page 27 of 28 and (d), the suit of the plaintiff is dismissed. Parties to bear their own costs. Decree sheet be prepared accordingly. File be consigned to record room.
Announced in the open (GURVINDER PAL SINGH) Court on 19.08.2017. Additional District Judge 01(SE), Saket Courts, New Delhi. (sm) CS - 897/2017 Tashi Chopel Bhutia Vs. JCB India Ltd. & Ors. page 28 of 28