Gauhati High Court
Anjali Dutta Barman vs Planters Airways Ltd on 24 July, 2017
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM &
ARUNACHAL PRADESH)
RFA 33 of 2008
SMTI. ANJALI DUTTA BARMAN & ORS. .....Petitioners
-Versus-
PLANTERS ARIWAYS LIMITED .....Respondent
BEFORE HON'BLE MR. JUSTICE KALYAN RAI SURANA Advocates for the Petitioners : Mr. K. Agarwal, Sr. Advocate.
: Mr. B. Das.
Advocates for the Respondents : Mr. U. Dutta.
Date of hearing : 13.07.2017
Date of judgment and order : 24.07.2017.
JUDGMENT AND ORDER (CAV)
Heard Mr. K. Agarwal, learned Senior counsel assisted by Mr. B. Das, learned counsel appearing for the appellant. Also heard Mr. U. Dutta, learned counsel appearing for the respondent.
2) This appeal under Section 96 of the Code of Civil Procedure is directed against the judgment and decree dated 25.07.2008 passed by the learned Civil Judge, Dibrugarh in M.S. No. 38/1997. The respondent was the plaintiff in the suit and the present appellants were arrayed as the defendants No. 1, 2 and 4 respectively in the said suit. The appellant- defendant No. 1 is the proprietress of the appellant No. 3 (defendant No.4) firm. The appellant- defendant No. 2 is the husband of appellant No. 1. The defendant No. 3 in the suit was alleged to be an employee of appellant No. 1 and 4, but he died during the pendency of the suit.
RFA 33/2008 Page 1 of 24Therefore, no decree was passed against the defendant No. 3. The respondent- plaintiff is a road transporter/ carrier of goods.
3) The case in brief is that the respondent had instituted the said suit for recovery of money from the appellant on account of goods delivered by the respondent owned by Colgate Palmolive (India) Ltd. to the appellants in good faith. However, the appellants did not retire the consignment notes in respect of four consignments in question from the concerned bank. Therefore, the consignor, namely, Colgate Palmolive (India) Ltd. adjusted the dues receivable by the respondent against the transportation charges.
4) The present appellants, who were defendant No. 1, 2 and 4 in the suit, had totally denied the receipt of goods. The defendant No. 3 (since deceased) had taken stands that he was working as a labourer with the appellant No. 1 and 3 and he had received the goods as a representative of the appellant. The following issues were framed in the case:
1. Whether the suit is barred by limitation?
2. Whether the court has jurisdiction to try the suit?
3. Whether the suit is bad for non-joinder and mis-joinder of defendant No. 2?
4. Whether the plaint is duly signed and verified by proper person?
5. Whether the four consignments of the products of proforma defendant No. 5 were entrusted with the plaintiff by the profroma defendant to be carried to and deliver to the defendant No. 4 at Dibrugarh on the condition that the delivery shall be effected by the defendant No. 4 on retiring the consignment receipt from bank on payment of value?
6. Whether the plaintiff effected the delivery at Dibrugarh without obtaining the consignment note?
7. Whether the defendant No. 4 failed to retire the documents on payment from bank and the defendant No. 5 realized the value of the suit consignment from the plaintiff?RFA 33/2008 Page 2 of 24
8. Whether the plaintiff is entitled to get the decree as prayed for?
9. To what other relief/reliefs the parties are entitled?
5) In course of the trial, the respondent had examined three witnesses. The appellant examined two witnesses. The deceased defendant No. 3 had filed evidence on affidavit of two witnesses including himself. Although as per the impugned judgment, the learned trial court has recorded that the D.W. 3 and 4 were not cross-examined by the plaintiff, the trial records reveal that the D.W. 3 (i.e. defendant No. 3) expired on 08.07.2007 and D.W. 4 had not appeared before the court for his cross examination. As per the learned trial court's record, prior to the death of the defendant No.3, due to the continued absence of the D.W. 3 and 4, by order dated 16.03.2007, their prayer for adjournment was rejected and the evidence of the defendant's side was closed. On perusal of trial court's record, it appears that the counsel for the defendant No. 3 vide petition No. 1335/2007 dated 20.07.2007 had duly informed the court about the death of defendant No. 3. However, this Court could not find any order by the learned trial court about the abetment of suit against the deceased defendant No. 3. However, in the impugned judgment, it is mentioned that the plaintiff had not taken any steps for substitution of the legal representatives of the deceased defendant No. 3 and hence, the suit had abated against the defendant No. 3. On the basis of evidence laid by the parties, all the issues were decided in the favour of the respondent/plaintiff and the suit was decreed against the appellants and in favour of the respondent by holding that the respondent was entitled to recover a sum of Rs.8,98,128.46 from the appellants.
6) Aggrieved by the judgment and decree impugned herein, the appellant had preferred this appeal on various grounds. The respondent has appeared and contested the appeal.
7) The learned Senior Counsel for the respondent has submitted that the plaint was signed and verified by unauthorized person, who neither had any RFA 33/2008 Page 3 of 24 power or authority to file the plaint and verify the pleadings and nor any attempt was made to prove his authority. It is further submitted that the master- servant relationship between the appellants and the deceased defendant No. 3 could not be proved. It is submitted that the appellant No.2 was admittedly a government servant and was working as a Food Inspector and had nothing to do with the business of his wife and he was not in the management of the proprietorial firm. Moreover, it was submitted that the four disputed consignments were sent by the consignor i.e. proforma defendant No.5 to "self" and, as such, the consignee would also be the said Company but in the present case, the respondent could not prove that the appellants were the owner or consignee in respect of the said four consignments in question and no evidence was led to show that the said consignment of goods were either intended to be delivered to the appellants or that the appellants had produced consignment notes to claim delivery of the said consignments.
8) It is also submitted that the respondent led no evidence to show that the appellant was the owner of the consignment and therefore, the respondent claim for money was not at all maintainable. It is also submitted that the appellant No.4 firm was the dealer/ distributor of the proforma defendant No.5 i.e. Colgate Palmolive (India) Ltd., and, as such, whenever their consignment arrived, the respondent had the practice of intimating the appellant No.1 about arrival of consignment and as a token of proof, the signature of the appellant No.1 obtained in the reverse of the transporter's copy of the consignment note and it was specifically denied that the said signature was not on account of receipt of the delivery of the goods, which could not have been parted by the respondent without the consignee's copy. It is further submitted that although the defendant No. 3 has made a statement in his written statement about receiving the goods as labourer for the appellants, there is no specific admission as regards the four specific consignments in issue and that the defendant No. 3 has only made a general statement and that the learned trial court had relied on the statement made by the plaintiff's witness and unproved statement made by RFA 33/2008 Page 4 of 24 the defendant No. 3 in his written statement without support of any documentary evidence and therefore, the finding on the issues were not sustainable as there was no cause of action for filing the suit. It is submitted that the master and servant relationship between the appellant No.1 and defendant No.3 was not proved and therefore, assuming that the consignment was collected by the defendant No.2, the same was unauthorized and no liability could be saddled on the appellants. The learned Senior Counsel for the appellant has made his submissions on the inadmissibility of the various exhibits to fix any liability on the appellants. He has also referred to the evidence of the witnesses and has pointed out his version of inconsistencies in the oral evidence.
9) The learned counsel for the respondent by denying the argument advanced by the learned Senior Counsel for the appellant, has argued in support of the findings recorded as well as the judgment delivered by the learned trial court. It is submitted that there in the present case in hand, in his written statement, the defendant No. 3 has admitted that he had been working under the instructions of appellants No. 1 and 2, as such, no burden was shifted on the respondent to prove the delivery of each and every consignment to the appellants, as because by the admission made by the deceased defendant No.3, the existence of the master- servant relationship between the appellants and the deceased defendant No.3 had been proved. It is submitted that this being a civil case, the respondent had to show that their case was quite probable and a civil suit can be decreed on preponderance of possibility and not on strict proof 'beyond reasonable doubt' as per the principles followed in a criminal trial. It is submitted that the consignment of goods was taken by the appellants from the respondent and admittedly when the consignment note was not retired from the concerned bank, there was a loss of goods from the respondent's end. Therefore, there is nothing on record for disputing the stand of the respondent that against the value of goods sent by the Proforma Defendant No.5 was recovered from the respondent against the freight carriage charges receivable from the consignor of RFA 33/2008 Page 5 of 24 goods. Hence, it was argued that the impugned judgment and decree was correctly passed.
10) On the basis of the contention of the counsel for both sides, following points of determination has arisen in the present appeal.
i. Whether the plaint was signed, verified and filed by a proper person? ii. Whether the respondents could prove the delivery of goods covered by the consignment to the appellants herein?
iii. Whether the judgment and decree passed by the learned trial court is sustainable on facts of law?
11) In order to determine the above points, this Court proposes to re- appreciate the decision of the learned trial court on the nine issues famed by it in course of trial.
12) In respect of issue No. 1 the learned trial court had held that the four consignments in issue were sent from Guwahati to Dibrugarh on 21.11.1994, 23.11.1994, 05.12.1994 and 08.12.1994 respectively. The said consignment notes are marked as Ext.-2 to Ext.-5. The Ext.-6 to Ext.-9 are the request letters for delivery of consignment. While Ext.6 to Ext.8 are dated 27.01.1995, 03.12.1994, 17.12.1994, the Ext.-9 is undated. As per the said consignment notes, the goods covered by Ext.-2, Ext.4, and Ext.6 are stated to be delivered to the appellants on 05.12.1994, 18.01.1995, 27.01.1994. However, in respect of delivery of consignment covered by Ext.-3, the date of delivery is not mentioned. Therefore, the issue No. 1 as to whether the suit was barred by limitation, has been correctly decided by the learned trial court as the suit was filed on 17.11.1997.
13) In respect of issue No. 2, i.e. whether the court had jurisdiction to try the suit, it is seen that as per Ext.-2 to Ext.-10 as well as Ext.-A, all those RFA 33/2008 Page 6 of 24 documents go to show that the transaction was at Dibrugarh. Hence, the issue No. 2 appears to have been correctly decided in favour of the plaintiff.
14) In respect of issue No. 3, i.e. whether the suit is bad for non-joinder and mis-joinder of defendant No. 2, this Court has observed that as there is an allegation in the plaint that the defendant No. 2 had participated in the business of his wife at that point of time, although he was a Government employee. However, no documentary evidence was proved in this case to conclusively show that the appellant No.2 had participated in the said business, except for oral evidence of PWs. Be that as it may, mis-joinder of the appellant No.2 cannot be a ground to dismiss the suit, and therefore, no infirmity can be found in the decision in the said issue by the learned trial court. It is correctly decided that the suit is not bad for non joinder of necessary parties.
15) In respect of issue No. 4, whether the plaint is duly signed and verified by proper person, before appreciating the materials on record, it would be appropriate to refer to the provisions of Order VI Rule 14 of the Code of Civil Procedure (CPC for short), which requires that every pleading shall be signed by the party and his pleader (if any). It is provided that whether the party pleading is, by reason of absence or for other good case, unable to sign the pleading, it may be signed by any person duly authorized by him to sign the same or to sue or defend on his behalf. In the present case, the respondent being a company must sign by human agency. Hence, under the provisions of Order XXIX Rule 1 CPC, it is provided that in suits by or against corporation, any pleading may be signed and verified on behalf of the corporation by the Secretary or by any Director or other Principal Officer of the Corporation who is able to depose to the facts of the case.
16) In the present case in hand, the plaint was signed and verified by one Shri Kumar Nath Bhattacharjee, Manager, Corporate Affairs. However, he did not appear one of the witnesses in the case. PW-1 was one Amal Kumar Choudhury, RFA 33/2008 Page 7 of 24 Circle Officer of the respondent/plaintiff, PW-2 was one Sri Subhash Banerjee, who was also an employee of the respondent company, and PW-3 was one Sri Badal Rai, who was the then Branch Manager of the respondent company. The respondent- plaintiff did not take any steps to prove the Power of Attorney, or Letter of Authority, or a resolution adopted by the Board of Directors. The PW-1 had proved Memorandum of Association and Articles of Association as Ext.-1. There is nothing in Ext.-1 to show that Shri Kumar Nath Bhattacharjee, Manager, Corporate Affairs, the person signing and verifying the plaint had the authority to do so. The learned trial court on the basis of oral evidence of PW-1 had held that the person being the Manager, Corporate Affairs was entrusted by the plaintiff authority to sign and verify the plaint by holding that the defendants have not shown anything by which it could be said that the plaint is not duly signed and verified by the person, decided the issue in favour of the plaintiff.
17) In this connection, the learned counsel for the appellant has relied on the case of State Bank of Travancore Vs. Kingston Computers India Pvt. Ltd., (2011) 11 SCC 524. The relevant paragraph 11 is quoted below:
"11. The trial Court analyzed the pleadings and evaluated the evidence produced by the parties, referred to authority letter dated 2.1.2003 issued by Shri Raj K. Shukla in favour of Shri Ashok K. Shukla and observed:
"A perusal of the aforesaid authority letter shows that Shri Raj K. Shukla in his capacity as CEO of the plaintiff company had authorised Shri A.K. Shukla to sign, verify and file the present suit. Apart from this authority letter, the plaintiff company has not filed on record any board resolution authorising Sh. A.K. Shukla to sign, verify and institute the present suit. The plaintiff has also not filed on record its memorandum/articles to show that Shri Raj Kumar Shukla had been vested with the powers or had been given a general power of attorney on behalf of the company to sign, verify and institute the suit on behalf of the RFA 33/2008 Page 8 of 24 company. The present suit, therefore, has been filed merely on the strength of the authority letter Ex.PW1/A............"
18) Per-contra, the learned counsel for the respondent has relied on the case of United Bank of India vs. Naresh Kumar and Ors., (1996) 6 SCC 660. The relevant paragraphs 8 to 15 are quoted below:
"8. In this appeal, therefore, the only question which arises for consideration is whether the plaint was duly signed and verified by a competent person.
9. In cases like the present where suits are instituted or defended on behalf of a public corporation, public interest should not be permitted to be defeated on a mere technicality. Procedural defects which do not go to the root of the matter should not be permitted to defeat a just cause. There is sufficient power in the Courts, under the Code of Civil Procedure, to ensure that injustice is not done to any party who has a just case. As far as possible a substantive right should not be allowed to be defeated on account of a procedural irregularity which is curable.
10. It cannot be disputed that a company like the appellant can sue and be sued in its own name. Under Order 6 Rule 14 of the Code of Civil Procedure a pleading is required to be signed by the party and its pleader, if any. As a company is a juristic entity it is obvious that some person has to sign the pleadings on behalf of the company. Order 29 Rule 1 of the Code of Civil Procedure, therefore, provides that in a suit by against a corporation the Secretary or any Director or other Principal officer of the corporation who is able to depose to the facts of the case might sign and verify on behalf of the company. Reading Order 6 Rule 14 together with Order 29 Rule 1 of the Code of Civil Procedure it would appear that even in the absence of any formal letter of authority or power of attorney having been executed a person referred to in Rule 1 of Order 29 can, by virtue of the office which he RFA 33/2008 Page 9 of 24 holds, sign and verify the pleadings on behalf of the corporation. In addition thereto and de hors Order 29 Rule 1 of the Code of Civil Procedure, as a company is a juristic entity, it can duly authorise any person to sign the plaint or the written statement on its behalf and this would be regarded as sufficient compliance with the provisions of Order 6 Rule 14 of the Code of Civil Procedure. A person may be expressly authorised to sign the pleadings on behalf of the company, for example by the Board of Directors passing a resolution to that effect or by a power of attorney being executed in favour of any individual. In absence thereof and in cases where pleadings have been signed by one of it's officers a Corporation can ratify the said action of it's officer in signing the pleadings. Such ratification can be express or implied. The Court can, on the basis of the evidence on record, and after taking all the circumstances of the case, specially with regard to the conduct of the trial, come to the conclusion that the corporation had ratified the act of signing of the pleading by it's officer.
11. The courts below could have held that Sh. L.K. Rohatgi must have been empowered to sign the plaint on behalf of the appellant. In the alternative it would have been legitimate to hold that the manner in which the suit was conducted showed that the appellant bank must have ratified the action of Sh. L.K. Rohatgi in signing the plaint. If, for any reason whatsoever, the courts below were still unable to come to this conclusion, then either of the appellate courts ought to have exercised their jurisdiction under Order 41 Rule 27 (1) (b) of the Code of Civil Procedure and should have directed a proper power of attorney to be produced or they could have ordered Sh. L.K. Rohatgi or any other competent person to be examined as a witness in order to prove ratification or the authority of Sh. L.K. Rohatgi to sign the plaint. Such a power should be exercised by a court in order to ensure that injustice is not done by rejection of a genuine claim.RFA 33/2008 Page 10 of 24
12. The Courts below having come to a conclusion that money had been taken by respondent no.1 and that respondent no.2 and husband of respondent no.3 had stood as guarantors and that the claim of the appellant was justified it will be a travesty of justice if the appellant is to be non suited for a technical reason which does not go to the root of the matter. The suit did not suffer from any jurisdictional infirmity and the only defect which was alleged on behalf of the respondents was one which was curable.
13. The court had to be satisfied that Sh. L.K. Rohatgi could sign the plaint on behalf of the appellant. The suit had been filed in the name of the appellant company; full amount of court fee had been paid by the appellant bank; documentary as well as oral evidence had been led on behalf of the appellant and the trial of the suit before the Sub Judge, Ambala, had continued for about two years. It is difficult, in these circumstances, even to presume that the suit had been filed and tried without the appellant having authorised the institution of the same. The only reasonable conclusion which we can come to is that Sh. L.K. Rohatgi must have been authorised to sign the plaint and, in any case, it must be held that the appellant had ratified the action of Sh. L.K. Rohatgi in signing the plaint and thereafter it continued with the suit.
CONCLUSIONS:
14. The suit of the appellant had been dismissed because issue no.1 had been decided against it. Counsel for the parties have not challenged the decision of the lower appellate court on the other issues, which decision was affirmed by the High Court when it dismissed the second appeal in limine. For the reasons stated hereinabove we hold that issue no.1 was wrongly decided and this being so the appellant was entitled to a decree in view of the decision of the lower appellate court on the other issues.RFA 33/2008 Page 11 of 24
15. The appeal of the appellant is, accordingly, allowed in the aforesaid terms. The effect of this would be that the suit of the appellant would be decreed in accordance with the decision of the lower appellate court on the other issues which that court had decided in favour of the appellant. The appellant will also be entitled to costs."
19) With full respect of both the above citations, the case of United Bank of India (supra), was prior in point of time and delivered by Division Bench of the Hon'ble Apex Court and the case of State Bank of Travancore (supra), being later in point of time by the Hon'ble Coordinate Bench of the Apex Court, this Court is inclined to accept the ratio of the Hon'ble Apex Court in the case of United Bank of India (supra), and therefore, the defect in verification, if any is liable to be held as a curable defect.
20) However, this Court finds that on facts, the case of United Bank of India (supra) does not come to the aid of the respondent. The specific requirement of Order XXIX Rule 1 CPC is that any pleading signed and verified by the Secretary or by any Director or other Principal Officer of a Corporation and the mandate of a law is that such person would be able to depose to the facts of the case. There is no evidence on record that the said person, namely, Shri Kumar Nath Bhattacharjee was the Secretary or any Director or other Principal Officer of the respondent Company. However, in the case of a bank, there is no dispute that the Manager of a Bank is not the authorized agent of the Bank. But, in the present case, the said Shri Kumar Nath Bhattacharjee did not stand at the dock to depose on behalf of the respondent Company. Thus, he is found to have not acted in accordance with the provisions of Order XXIX Rule 1 CPC, which mandates that the person who signs and verifies the pleadings must be able to depose on behalf of the Company. Under the circumstances, it was required for the PWs to prove their authority to give evidence on behalf of the respondent company.
RFA 33/2008 Page 12 of 2421) This leads to another question as to whether another witnesses can come forward to give oral evidence of the availability of due authorization by the respondent company to Shri Kumar Nath Bhattacharjee. Plaintiff's evidence shows that the three PWs, who had appeared for the respondent/plaintiff did not depose that they were having personal knowledge about the existence of power or authority of Shri Kumar Nath Bhattacharjee. Moreover, none of those PWs had deposed that they were either connected with the management of the respondent company, or had participated in the Board of Director's meeting where it was resolved to give power to Shri Kumar Nath Bhattacharjee to represent them in the suit. Under the circumstances, the PWs could not have been personally aware of the purported existence of authority of the said person to sign and verify pleading. Therefore, in the opinion of this court, none of the witnesses could have tendered the evidence about the authorization of the said person from their own knowledge. A Company can only bestow an authority on a person through document and without any document being proved, oral evidence about existence of authority to represent a Company is not admissible.
22) Moreover, in the case of United Bank of India (supra), it was a case of recovery of money from the bank and therefore, the Hon'ble Apex Court had observed that public interest cannot be permitted to be and on technical ground and, as such, it was directed that the appellate court could have permitted additional evidence under Order XLI Rule 27(1)(b) CPC to be brought on record. However, in the present case in hand, there is no element of public interest involved. Moreover, the case of United Bank of India (supra), was cited by the learned counsel for the respondent and therefore, the respondent is aware that the defect of authorization could be cured under the provisions of Order XLI Rule 27(i)(b) CPC, yet the respondent has not taken any steps to cure the said defect. No application has been filed under Order XLI Rule 27(1)(b) to file any additional evidence. In light of the strong objection raised by the appellants as regards maintainability of the suit on the ground of lack of authorization, if additional evidence was allowed to be laid, it would amount to allow the respondent to cure RFA 33/2008 Page 13 of 24 the defect even in the absence of any initiative from their own side. If such an application would have been filed, then perhaps the case of United Bank of India (supra) could have been come to their aid. Moreover, in the case of Union of India Vs. Ibrahim Uddin & Ors., (2012) 8 SCC 148, the Hon'ble Apex Court has held that the application for additional evidence under Order XLI Rule 27 CPC is required to be heard at the hearing of appeal. Hence, there was no impediment for the respondent to file an application for additional evidence and then press the case of United Bank of India (supra). In the opinion of this Court, the case of United Bank of India (supra) cannot be of any aid to the respondent as the person who had signed, verified and filed the plaint did not come to depose as witness. One such person came as witness, then only the court may, in appropriate case, invoke the provisions of Order XLI Rule 27(1)(b) CPC to call for additional evidence, but when such evidence is not at all there, the court would not have power to suo-motu allow the respondent to cure the defect by permitting an unlisted witness, namely, Shri Kumar Nath Bhattacharjee to come and depose at an appellate stage. Therefore, this Court is of the unhesitant view that this is not a fit and proper case where suo motu powers should be exercised under the provisions of Order XLI Rule 27(1)(b) CPC to allow the respondent to cure the defect by producing unlisted witness and documentary evidence. Therefore, this Court is constrained to disagree with the finding of the learned trial court on this issue No.4 and it is held that the respondent/plaintiff has not been able to prove that the plaint was signed and verified or filed by an authorized person.
23) The issues No. 5, 6 and 7 are taken up together as common questions and evidence are involved.
a. In respect of issue No.5, the learned court below had referred that the defendant No.3 had filed his affidavit evidence of one Sri Tapas Naha (DW-4) and himself (DW-3), but they were not cross examined. In this regard, it is seen that said witnesses did not appear for there cross examination and, as such, as per order dated 16.03.2007, the RFA 33/2008 Page 14 of 24 evidence the defendant No.3 and 4 was closed and their evidence was also expunged. Later on, the said defendant/DW-3 had died on 08.07.2007.
b. The learned trial court relied on the evidence of the plaintiff's witnesses and accepted oral evidence of PW-1 that Proforma Defendant No. 5 used to send goods through them as consignor', making self as consignee. As per PW-1, there was a verbal direction to the Guwahati Branch to transport goods to Dibrugarh. The learned Trial Court accepted the said evience and held that verbal direction is also a direction. However, no person from the consignor's office was examined to prove delivery of consignment by them to Guwahati office of the respondent for onward transportation to Dibrugarh on verbal instructions. Secondly, assuming that the consignment notes were sent through bank, then in that case, if the said 4 (four) consignment notes were not retired from the bank, then at least the bank would send back the consignment to the consignor at Guwahati, but no effort was made to prove the said returned original consignment note with bank's endorsement of return. Thirdly, the Ext.2 to Ext.5 are admittedly the transporter's copy of consignment note, which does not prove actual arrival of goods at Dibrugarh. Fourthly, the PW-1, PW-2 and PW-3 had all admitted in their cross examination that the Respondent maintains stock register as well as delivery register. These original documents were also not proved. Fifthly, it is also seen that the PWs did not prove any document by which the consignor i.e. Colgate Palmolive (India) Limited had demanded return of goods on return of original consignment note by the bank, or money against the value of consignment in lieu of the failure to return consignment. Therefore, on these five counts, even the pre-ponderence of probability of despatch of goods from Guwahati and its arrival at Dibrugarh has not been demonstrated.
RFA 33/2008 Page 15 of 24c. In another view of the matter, the DW-1 has maintained a stand that on arrival of goods, the respondent used to intimate them and in token thereof, she signed in the reverse of the consignment notes. The PW-1 has admitted in his cross examination that the appellant No.1 never visited their office. Therefore, the consignment notes was signed by the appellant No.1 at her shop. This also does not prove the actual transportation of goods from Guwahati to Dibrugarh. d. Transportation of goods are documented. It cannot be accepted that the transportation was done on verbal instruction, because then there would be no document to be retired from the bank. Therefore, in the absence of any documentary evidence of transportation, the oral evidence of the PWs stand excluded by virtue of section 92 of the Evidence Act, 1872. Hence, this court cannot concur with the decision of the learned trial court on this issue No.5.
e. In respect of issue No.6, as to whether the respondent- plaintiff effected the delivery at Dibrugarh without obtaining the consignment note, it is seen from the evidence of PW-1 that he had stated that the consignor used to send consignment notes and documents in the bank and the parties are required to release the original consignment note from the bank by paying the value thereof. With that evidence, the respondent could not have delivered the consignment to the appellant. The DW-1 has stated that she had signed in the reverse of the consignment notes as token of receipt information of consignment. The evidence of PW-1 has admitted in his cross examination that the appellant No.1 the DW-1 has maintained a stand that on arrival of goods, the respondent used to intimate them and in token thereof, she signed in the reverse of the consignment notes. The PW-1 has admitted in his cross examination that the signatures at Ext.2(2), 3(1), 4(1) and 5(2) had been obtained from the office of the defendant - appellant No.1, similarly, the PW-2 and PW-3 also admitted that appellant No.1 did not come to their office. Thus, it is clear that the RFA 33/2008 Page 16 of 24 appellant No.1 did not take delivery of the consignment. The PW-3 had stated in his cross examination that Anjali Dutta Barman (Appellant No.1) is the proprietor of Appellant No.3 firm and her husband Amarendra Narayan Barman (Appellant No.2) took delivery of the consignment by signing on behalf of the appellant No.1. Thus, there is contradiction as to whether the Ext.2(2), 3(1), 4(1) and 5(2) were actually the signature of appellant No.1, or they were signatures of appellant No.2 impersonating appellant No.1. The PW-1 had admitted in his cross examination that in Ext.6 to Ext.9 i.e. request letters for delivery that the consignment be delivered without consignment notes. PW-2 stated that he was the superior amongst the three employees in the Tinsukia Branch. He admitted that there is no provision of making delivery without first receiving the consignment note and that if Branch Manager so wishes, he may make delivery of goods to a party of his choice without the consignment notes. PW-3 also stated that prior to these consignment, the appellant No.3 firm was given delivery of goods without consignment on a couple of occasions, but he admitted that no documents in suport of the said statement has been submitted in court. PW-2 stated in his cross examination that after 10/15 days of first consignment, the next consignment was delivered and similarly, after 10/15 days, the 3rd and after 10/15 days, the 4th consignment was deivered, but he had not informed the appellants that without previous consignment note, no further consignment would be delivered. All three PWs were in unison to state that goods were taken by defendant No.3 (since deaceased). The contents of Ext.6 to Ext.9 is that the goods may be delivered to the 'undersigned', i.e. appellant No.1, but the goods were delivered to defendant No.3. The learned Senior counsel for the appellants has referred to the Ext.6 from record, where it was written that goods be delivered to defendant No.3, but then his name is struck off by pen, yet, goods are delivered to him. There is no explanation in the RFA 33/2008 Page 17 of 24 evidence of the three PWs, why despite request in the said letters i.e. Ext.6 to Ext.9, when the request was to deliver goods to the 'undersigned' i.e. appellant No.1, the said goods were delivered to the defendant No.3. Thus, the stand of the appellant was quite probable that the intimation of arrival of goods were informed to the appellants by taking signature of appellant No.1 in the reverse, but then goods were not delivered to the appellant No.1, who was to receive the goods as per Ext.6 to Ext.9.
f. The cumulative effect of the evidence of the three PWs is that the absence of delivery register, absence of proof of any loss of money being recovered by the Proforma Defendant No.5 i.e. Colgate Palmolive (India) Ltd. from the friegnt charges, as sought to be projected, and the absence of proof of return of consignment note back to the said proforma defendant lead to conclusion that goods were not delivered to the appellants. The learned trial court relied on the written statement and the evidence- on- affidavit of Defendant No.3 that he was a casual employee of appellants, but it lost track of the fact that the evidence of defendant No.3 had been closed and expunged and, as such, the statements made in the written statement could have been taken only as an admission of receiving consignment, but his evidence could not be seen as an admission against the co- defendants i.e. the appellants herein. Hence, on appreciating the evidence of the PWs as indicated above, this court does not gree with the finding of the learned trial court on this issue No.6. g. Moreover, in respect of issue No.6, it is seen that the learned trial court has held that though the DW-1 denied that the appellant No.1 ahd received the goods by Ext.2 to 5, but failed to substantiate the same. Thus, it appears that the learned trial court had shifted the burden of proving the negetive on the appellants, which is not sustainable.
RFA 33/2008 Page 18 of 24h. In respect of issue No.7, as to whether the defendant No.4 failed to retire documents on payment from the bank and the defendant No.5 realized the value of the suit consignment from the plaintiff, as per the evidence as appreciated herein before, it is seen that the respondent- plaintiff did not lead any evidence to prove return of documents back to the consignor i.e. to proforma defendant No.5. Moreover, there is no documentary exhibit to show that (i) there was any demand by the proforma defendant about return of documents by bank, (ii) request for return of the consignment on the ground that consignment notes were not retired, but returned back, (iii) proof of demand of money by the proforma defendant No.5, (iv) adjustment of friegnt charges towards value of the suit consignments. The learned trial court accepted the oral evience of the PWs that inspite of repeated demands and requests the appellants herein had failed and neglected to produce consignee's copy of consignment note after retiring the same from the banks, but except for an advocate's notice (Ext.10), which was promptly replied vide Ext.A, no other requests or demands were proved. As per the finding recorded by the learned trial court, oral and documentary evidence on record showed payment and adjustment of value of consignment and, as such, accepted that the proforma defendant No.5 had adjusted a sum of Rs.6,98,548.05 from the resopndent- plaintiff and had been demanding a further sum of Rs.1,99,580.45. However, there is no documentary evidence on record for the same. Hence, the said finding is not substantiated by evidence on record. Therefore, in the opinion of this court, none of the (i) to
(iv) mentioned above could have been done verbally and, as such, in the absence of any documentary proof of any of the above four links, the decision of the learned trial court on issue No.7 is not found to be sustainable. The learned trial court has further held that that there was no oral or documentary evidence on part of the appellants- defendants that they released the documents on payment to the bank, RFA 33/2008 Page 19 of 24 which is once again a negetive fact, which cannot be proved by the appellants as it was never their case that they retired documents of any consignment from bank. Therefore, the finding of the learned trial court on issue No.7 is not found sustainable.
24) In respect of issue No. 8 and 9, i.e. whether the plaintiff is entitled to get the decree as prayed for and to what other relief/ reliefs the parties are entitled to, this court is of the view that as the plaintiff has not been able to prove (i) arrival of consignment at Dibrgarh, (ii) return of consignment notes by the concerned bank back to the proforma defendant, (iii) delivery of goods to appellants, (iv), receipt of demand of money from the proforma defendants, and
(v) adjustment of value of consignment by the proforma defendant from any money payable to the respondent, as discussed above, the respondent- plaintiff is not entitled to any relief against the appellants.
25) There is yet one aspect, on which there was no issue framed before the trial court and no evidence was led, which is - whether the title over any consignment got transferred to the respondent or whether the respondent as a carrier/ transporter is entitled to sue for value of consignment. In this regard, the opinon of this court is that the owner of the consignment was the proforma defendant No.5, assuming that they were to recover any money from the respondent, then it would be required for them to book such loss on account of loss lost in transit in order to recover such loss from the transporter. The Carriage by Road Act, 2007 (by which Carriers Act, 1865 was repealed), does not contain any provision under which the road carrier/ transporter became entitled to sue for value of goods transported. As per the provisions of section 8(3) thereof, it is provided that the consignor shall indemnify the common carrier against any damage sufferred by him by reason of incorrectness or incompleteness of the particulars on the goods forwarding note. As per section 9(3), the goods receipt shall be the prima facie evidence of weight or measure or other particulars of th egoods and number of packages stated therein and under RFA 33/2008 Page 20 of 24 the provisions of section 9(4) thereof, the goods receipt shall include an undertaking by the common carrier about the liability under section 10 or section
11. The provisions of section 11(1) provides for liability of the common carrier for loss of, or damage to any consignment, shall be limited to such amount as may be prescribed having regard to its value, freight or nature of goods, documents or articles of consignment. The conditions limiting exonerating the liability of the common carrier is provided in section 12 of the said Act. Section 15 provides for the right of the common carrier in case of consignee's default. Thus, there is no provision under the said Carriage by Road Act, 2007, by which without transfer of ownership over the goods carried, a transporter i.e. the respondent was entitled to sue for value of goods. In this case, the proforma defendant No.5 was both the consignor and the consignee. In the absence of any proof of loss having actually been sufferred, and/or unless the respondent could satisfactorily prove that after it settled the loss of the proforma defendant No.5, it became the de- facto owner of the goods covered by the suit consignment, the claim as made in the suit was not maintainable. However, these issues was never raised in the trial and nor the decision of this court on the various issues framed by the learned trial court is influenced by above, these points are not required to be decided, as the claim made in the suit is otherwise also not found to be sustainable. These observations has been made only as a passing remark, having no bearing with the decision making process as this court is conscious that the appellate court is not entitled to make out a case not pleaded and as the same was not the subject matter of an issue, as such, the same cannot be decided by the court.
26) A further issue was raised by the learned Senior Counsel for the appellants that the all the documentary exhibits proved by the respondent- plainitff were photocopies. However, per contra, the learned counsel for the respondent has submitted that the objection as to the admissibility of the documents could have been raised at the time of cross exmination of PWs and for the second time in course of final hearing under the provisions of proviso to Sub-Rule (1) of Rule 4 of Order XVIII CPC, because photocopies were not RFA 33/2008 Page 21 of 24 admissible in evidence. But, when the said two opportunities were lost at the trial stage, it would be deemed as if the appellants had waived their objection and, as such, it is held that the respondents cannot be non- suited on account that their exhibits were photocopies at the appellate stage.
27) In this regard, in the case of Nandkishore Lalbhai Mehta Vs. New Era Fabrics Pvt. Ltd. & Ors., (2015) 9 SCC 755. In this case, the Hon'ble Supreme Court of India has quoted the following passage from the case of R.V.E. Venkatachala Gounder Vs. Arulmigu Viswesaraswami & V.P. Temple, (2003) 8 SCC 752:-
"20. ... The objections as to admissibility of documents in evidence may be classified into two classes: (i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as 'an exhibit', an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken when the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The latter proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not RFA 33/2008 Page 22 of 24 serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the latter case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in a superior court." (emphasis in original)
15. On a careful consideration of the whole matter, we feel that serious mistakes were committed in the case at all stages. The trial court should not have "marked" as exhibits the xerox copies of the certificates of registration of trade mark in face of the objection raised by the defendants. It should have declined to take them on record as evidence and left the plaintiff to support its case by whatever means it proposed rather than leaving the issue of admissibility of those copies open and hanging, by marking them as exhibits subject to objection of proof and admissibility. The appellant, therefore, had a legitimate grievance in appeal about the way the trial proceeded."
28) Therefore, there is no room for doubt that when a document is per se not admissible in evidence, being a photocopy, the learned trial court ought not to have permitted admission of photocopy as exhibits. In view of the ratio of the above referred case of R.V. E. Venkatachala Gounder (supra), the objection as to RFA 33/2008 Page 23 of 24 admissibility of photocopies as exhibits No. 2 to 10 is accepted. The said exhibits are held to be inadmissible in evidence. This court is bound by the ratio of the said case that merely because a document has been marked as 'an exhibit', an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision.
29) In view of the discussions above in respect of issue No.4, the first point of determination i.e. whether the plaint was signed, verified and filed by a proper person, the same is held in the negetive by holding that the plaint was not signed and verified by a proper person.
30) In respect of the second point of determination, i.e. whether the respondent could prove the delivery of goods covered by the consignment to the appellants herein, in view of the discussion on issues No. 5 to 6, the same is decided in the negetive and against the respondent.
31) In respect of the third point of determination, i.e. whether the judgment and decree passed by the learned trial court is sustainable on facts of law, in view of the discussions on issue No. 5 to 7, this court is constrained to hold that the claim of the respondent- plaintiff as well as the impugned judgment and decree dated 25.07.2008 passed by the learned Civil Judge, Dibrugarh is not sustainable on facts and in law and, as such, the same is set aisde and reversed. Resultantly, the suit is dismissed. The parties are left to bear their own cost.
32) Let the LCR be returned.
JUDGE
Mkumar.
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