Telangana High Court
M/S.Gati Cargo Management Services vs M/S.Samkrg Pistons Limited on 13 March, 2024
THE HONOURABLE SRI JUSTICE SAMBASIVARAO NAIDU
C.C.C.A.NOS.209 AND 229 OF 2018
COMMON JUDGMENT:
Being aggrieved by the common Judgment dated 20.12.2017 in O.S.Nos.80 and 81 on the file of the I Additional Chief Judge, City Civil Court, Secunderabad, M/s Gati Corporation Limited and Gati Cargo Management Services (for short, 'Gati Corporation')-appellant herein has filed these two appeals under Section 96 of Code of Civil Procedure, 1908 (for short, 'C.P.C.') assailing the said common Judgment on various grounds.
2. Gati Corporation has filed a suit in O.S.No.80 of 2005 against M/s Samkrg Pistons Limited (for short, 'Samkrg Pistons') for recovery of Rs.2,23,272/- and the said Samkrg Pistons has filed another suit vide O.S.No.81 of 2005 against Gati Corporation for recovery of Rs.5,00,000/- towards shortage in consignment along with interest at the rate of Rs.40,000/- from the date of transaction till the date of filing as well as Rs.5,00,000/- as damages towards mental agony faced by it due to theft of its stock worth Rs.5,00,000/-.
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3. In fact, Samkrg Pistons has filed suit vide O.S.No.21 of 1999 against Gathi Corporation on the file I Additional District Judge, Visakhapatnam. But subsequently, after transfer of the said suit, the same was re-numbered as O.S.No.81 of 2005 and tried along with O.S.No.80 of 2005 filed by Gati Corporation and both the suits were disposed of under a common Judgment dated 20.12.2017 by the trial Court.
4. As could be seen from the impugned common Judgment, the suit filed by Gati Corporation vide O.S.No.80 of 2005 has been dismissed while the suit filed by Samkrg Pistons vide O.S.No.81 of 2005 was partly decreed by directing the Gati Corporation to pay a sum of Rs.5,00,000/- with interest at the rate of interest 6% per annum from the date of suit till the realization.
5. Being not happy with the said Judgment, Gati Corporation has filed these two appeals vide CCCA Nos.209 and 229 of 2018. Since the above appeals are against the same common Judgment and the contentions are inter-related, a common Judgment would suffice for disposal of both the appeals.
6. Before adverting to the grounds on which these appeals are filed, it is just and necessary to refer the contentions of both the parties in above referred original suits since two 3 different suits filed by the same parties were disposed of under a common Judgment, it is proposed to decide both the appeals under a common Judgment in order to avoid confusion and for better understanding.
7. As already stated in the previous paragraphs, O.S.No.80 of 2005 has been filed by Gati Corporation on the ground that they were engaged in the business of transportation of goods and cargo from one place to another and the said Samkrg Pistons has been availing the services of Gati Corporation through its various branches and they used to send consignments to various destinations, as per terms entered between the parties. Gati Corporation has intimated that Samkrg Pistons have to pay bills within 30 days from the date of bill and it has to pay interest at the rate of 24% per annum for the bills paid beyond the stipulated period. Said Gati Corporation has claimed that Samkrg Pistons was irregular in clearing the outstanding amounts, and that there was an outstanding amount of Rs.2,23,272/- under 27 various bills, thereby, sought for recovery of the said amount together with interest at the rate of 24% per annum.
8. The record further shows that Samkrg Pistons has filed the suit in O.S.No.21 of 1999 against Gati Corporation on the ground that they are manufacturers and suppliers of piston rings 4 and they used to send their stock to various places by availing the services of Gati Corporation and in the same practice they sent stock worth Rs.50,00,000/- to one M/s Bajaj Auto Limited during the months of January, 1998 to June, 1988 from their Visakhapatnam Branch by Gati Corporation. However, they received a complaint from their customer that there was shortage of stock worth Rs.5,00,000/- and they came to know that the same stock was available at Ravulapalem with various mechanics and unauthorized persons and on enquiry they came to know that staff of Gati Corporation have stolen the stock and sold the same in the open market. Even though they sent information to Gati Corporation, there was no proper response, as such they lodged a complaint with the police, Amalapuram Police Station. Therefore, Samkrg Pistons sought for recovery of value of stolen stock along with the damages and interest.
9. After receiving summons in the suit filed by Gati Corporation in O.S.No.80 of 2005, Samkrg Pistons has filed written statement admitting the business transactions between both the firms and they have claimed that they used to provide business worth Rs.4,00,000/- to Rs.5,00,000/- in every month. Samkrg Pistons has further claimed that Gati Corporation failed to submit proof of delivery of goods, therefore, Gati Corporation is 5 not entitled to claim transportation charges and that they have also claimed that Gati Corporation raised double bills and they have already filed suit in O.S.No.21 of 1999 for recovery of Rs.10,40,000/- for non-delivery of goods to the concerned as per their request and they have obtained attachment before Judgment and prayed for dismissal of O.S.No.80 of 2005.
10. The record further unfolds that the suit filed by Samkrg Pistons vide O.S.No.21 of 1999 has been subsequently, transferred and tried along with the suit i.e., O.S.No.80 of 2005 and as per the written statement filed by Gati corporation, it was claimed that Samkrg Pistons did not issue mandatory notice required under Section 10 of Carriers Act, 1865 within six months and there was no mention about the loss caused to them and that the suit was filed only as a counter blast and sought for dismissal of the suit.
11. The trial Court has framed the following issues in O.S.No.80 of 2005 and the following issues in O.S.No.81 of 2005 In O.S.No.80 of 2005:
1) Whether the consignment booked by Gati Corporation in February, 1998 reached the destination?
2) Whether the Gati Corporation is entitled for suit caim? 6
3) To what relief?
In O.S.No.81 of 2005:
1) Whether the Samkrg Pistons is entitled to recover a sum of Rs.10,40,000/- with subsequent interest at 12% per annum till the date of realization as prayed for?
2) Whether the suit is not maintainable for want of notice under Section 10 of Carrier Act, 1865 as pleaded in the written statement?
3) To what relief?
Even though separate issues have been framed the trial Court has disposed both the suits under the common Judgment, which is impugned in the present appeals.
12. Gati Corporation has filed these two appeals on the following grounds:
a) The common Judgment and decree of the trial Court was rendered without proper understanding of the pleadings as well as oral and documentary evidence produced by the parties. There was no proper appreciation of the law on the subject as cited by Gati Corporation. The trial Court disposed of the suits on surmises and presumptions and that the trial Court ought to have seen that when the said Samkrg Pistons claimed the shortage of stock, there was no mandatory notice as required under Section 10 of Carriers Act, 1865 within six months claiming the loss caused to 7 them. There was no compliance regarding the shortage of the stock as such the suit filed for recovery of damages is not maintainable.
b) The trial Court ought to have seen that Gati Corporation has filed O.S.No.80 of 2005 for recovery of Rs.2,23,272/- being transportation charges of the stock. The trial Court miserably failed to answer the counter claim filed by the Gati Corporation in O.S.No.81 of 2005. The trial Court having noticed the filing of the counter claim by the Gati Corporation herein did not even bother to either to decree or dismiss the counter claim. The trial Court did not frame appropriate issues with regard to the counter claim filed by Gati Corporation and no appropriate issues were framed in O.S.No.80 of 2005, in as much as, it is admitted case of Samkrg Pistons that the consignment was booked by them and admittedly they did not pay the bill amount and there was no issue with regard to the failure of issuing mandatory notice under Section 10 of Carriers Act, 1965.
c) The trial Court failed to see that there is no scrap of paper to show that their consignee has intimated to them that he did not receive the goods sent by the Samkrg Pistons 8 through them, thereby, the case of the Samkrg Pistons could have been rejected.
d) Gati Corporation further claimed that the trial Court mixed up the documents filed by Samkrg Pistons and read them as if documents filed by the Gati Corporation and the whole of the approach of the trial Court is not in the spirit of pleadings of both the parties. The trial Court simply bressed aside the evidence of PW.2 and on the ground of personal knowledge giving evidence on the basis of the record, thus, erroneous, in as much as, Gati Corporation is a company carrying on surface transportation business in payment of bills is admitted fact needs no evidence.
13. In the light of the grounds on which these two appeals are filed, the following points that would emerge for determination in these appeals are:
1) Whether the suit filed by Samkrg Pistons is not maintainable for want of notice under Section 10 of Carriers Act, 1865?
2) Whether Gati Corporation is able to prove that they are entitled to recover Rs.2,23,272/-?
3) Whether the trial Court failed to answer the counter claim filed by Gati Corporation?
4) Whether the trial Court failed to appreciate the contentions of Gati Corporation?9
5) Whether the common Judgment in O.S.Nos.80 and 81 of 2005 is sustainable?
14. These two appeals are directed against the common Judgment of the trial Court in two suits filed by the parties ie., Gati Corporation filed suit claiming recovery of some amount on the ground that there was failure in payment of charges. Whereas, Samkrg Pistons has filed one suit for recovery of costs of stocks, which were entrusted to Gati Corporation and which was not delivered at the intimated destination and also an amount of Rs.5,00,000/- as compensation for causing mental agony etc. The trial Court having conducted trial in both the suits separately but in view of the points involved in both the suits are in respect of the transactions between the two firms, disposed of both the suits under a common Judgment.
15. As could be seen from the impugned Judgment and as per the evidence placed by both the parties, there was no dispute about the entrustment of stock by Samkrg Pistons to Gati Corporation. Even though Gati Corporation has filed the suit on the ground that they are entitled for passing a decree in their favour, however, Samkrg Pistons was without producing certified copies of criminal record as well as documents to establish that there was failure on the part of Gati Corporation in delivering the 10 pistons at the destination. As per the record including the FIR and charge sheet though the case was registered against the driver and other responsible persons, it was ended in acquittal. Still some acceptable material is required to believe that the stock that was entrusted by Samkrg Pistons to Gati Corporation for delivery to its customer viz., Bajaj Auto Limited was not delivered and the same was sold at a cheaper price in the area near Ravulapalem.
16. As rightly observed by the trial Court, the only witness examined on behalf of Gati Corporation was not able to give details as to how Gati Corporation is entitled to recover the loss of Rs.2,23,272/-. Even though two witnesses were produced by Gati Corporation, in view of their failure to produce PW.1 before the trial Court, the chief-affidavit of PW.1 was eschewed and Smt.Jaya Lakshmi was examined as PW.2. In the cross-examination of PW.2, she testified that she was giving evidence on the basis of the record but not in a position to substantiate the claim as to how Gati Corporation is entitled to recover the above said amount.
17. While filing the appeals, Gati Corporation had claimed that the trial Court failed to answer their counter claim but as could be seen from paragraph No.27 of the impugned Judgment, the trial Court has observed that though Gati Corporation had filed counter claim, it is not certain about the amount due from 11 Samkrg Pistons and the counter claim is filed only as a counter blast and not in good conscience. As rightly observed by the trial Court, absolutely there is no evidence produced by Gati Corporation to show that Samkrg Pistons had knowledge about the consignment of goods about the non-delivery of the consignment goods before February, 1999.
18. As per the evidence of DW.2, who was working under one Sri AVSN Murthy, they have received call from M/s Bajaj Auto Limited informing the shortage of stock and DW.2 along with the said Sri AVSN Murthty, Administrative Officer have enquired and they came to know that the piston rings of their company were available in open market at Amalapuram, thereby, they lodged a complaint before the police. It was elicited from PW.2, she has no personal knowledge about the transactions between Gati Corporation and Samkrg Pistons. According to PW.2, who was Assistant Manager in Gati Corporation the above referred legal affairs were looked after by some other department, thereby, the evidence of PW.2 may not help Gati Corporation to prove their claim. However, on the other hand, the evidence of DWs.1 and 2 and Exs.B.1 to B.39 proved the contentions raised by Samkrg Pistons.
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19. After meticulously analyzing the entire material placed before this Court, and be it viewed from any angle, this Court is of the considered opinion that the trial Court has rightly dismissed the suit filed by Gati Corporation while passing an decree in favour of Samkrg Pistons, therefore, the appeals are devoid of merits and are liable to be dismissed.
20. In the light of the peculiar facts and circumstances narrated hereinbefore, these appeals are dismissed. There shall be no order as to costs.
Pending miscellaneous application, if any, shall stand closed.
___________________________________ JUSTICE SAMBASIVARAO NAIDU DATED 13.03.2024 YNK