Delhi District Court
New India Insurance Company Ltd vs M/S Sahni Road Carriers on 5 September, 2007
1
IN THE COURT OF SH. GIRISH KATHPALIA,
ADDITIONAL DISTRICT JUDGE, DELHI
SUIT NO.038/02
1. NEW INDIA INSURANCE COMPANY LTD.
DELHI REGIONAL OFFICE: II
GULAB BHAWAN
BAHADURSHAH ZAFAR MARG
NEW DELHI-110002
2. M/s BHARTI TELECOM LTD.
QUTUB AMBIENCE, NEAR QUTUB MINAR
H-5/12, MEHRAULI ROAD,
NEW DELHI-110030 .....PLAINTIFFS
versus
M/s SAHNI ROAD CARRIERS
199, KAMLA MARKET
NEW DELHI-110002. .....DEFENDANT
AND
SUIT NO.39/02
1. NEW INDIA INSURANCE COMPANY LTD.
DELHI REGIONAL OFFICE: II
GULAB BHAWAN
BAHADURSHAH ZAFAR MARG
NEW DELHI-110002
2. M/s BHARTI TELECOM LTD.
QUTUB AMBIENCE, NEAR QUTUB MINAR
H-5/12, MEHRAULI ROAD,
NEW DELHI-110030 .....PLAINTIFFS
versus
CS/038/02 & connected cases Page 1 of 29 pages
2
M/s SAHNI ROAD CARRIERS
199, KAMLA MARKET
NEW DELHI-110002. .....DEFENDANT
AND
SUIT NO.40/02
1. NEW INDIA INSURANCE COMPANY LTD.
DELHI REGIONAL OFFICE: II
GULAB BHAWAN
BAHADURSHAH ZAFAR MARG
NEW DELHI-110002
2. M/s BHARTI TELECOM LTD.
QUTUB AMBIENCE, NEAR QUTUB MINAR
H-5/12, MEHRAULI ROAD,
NEW DELHI-110030 .....PLAINTIFFS
versus
M/s SAHNI ROAD CARRIERS
199, KAMLA MARKET
NEW DELHI-110002. .....DEFENDANT
AND
SUIT NO.045/03
1. NEW INDIA INSURANCE COMPANY LTD.
DELHI REGIONAL OFFICE: II
GULAB BHAWAN
BAHADURSHAH ZAFAR MARG
NEW DELHI-110002
2. M/s BHARTI TELECOM LTD.
QUTUB AMBIENCE, NEAR QUTUB MINAR
H-5/12, MEHRAULI ROAD,
NEW DELHI-110030 .....PLAINTIFFS
CS/038/02 & connected cases Page 2 of 29 pages
3
versus
M/s SAHNI ROAD CARRIERS
199, KAMLA MARKET
NEW DELHI-110002. .....DEFENDANT
DATE OF INSTITUTION:29/04/2002
ARGUMENTS CONCLUDED ON:24/08/2007
DATE OF DECISION:05/09/2007
Counsel for Plaintiff no.1: Sh. R.K. Ram, Advocate
Counsel for Plaintiff no.2: Sh. Ankit Shrivastava, Advocate
Counsel for Defendant: Sh. K.N. Bhendwal, Advocate
JUDGMENT
1. The above noted suits being based on same cause of action and involving similar set of pleadings were consolidated by my learned predecessor vide orders dated 29/07/02 followed by 29/01/04, thereby declaring the suit no.38/02 to be the lead case in which composite evidence was directed to be recorded. These suits arose out of same roadside accident, but in view of four different categories of consignments, four separate suits were preferred by the plaintiff. Hence, this common judgment.
2. As pleaded in the plaints, plaintiff no.1 is a public sector insurance company, which has brought the present suits signed, verified and instituted through its Deputy Manager Mr. Atul Jerath. Plaintiff no.2 is the insured of CS/038/02 & connected cases Page 3 of 29 pages 4 plaintiff no.1 and had subrogated its rights in respect of the present claims in favour of plaintiff no.1 vide a letter of subrogation, besides a power of attorney, as such plaintiff no.2 is only a proforma party. Defendant is a common carrier of goods from one place to another by road in India for hire and reward.
3. As per plaintiffs, the plaintiff no.2 got its imported goods insured with plaintiff no.1. Besides, plaintiff no.2 had also procured certain indigenous goods which were probably not insured. Material received by plaintiff no.2 from various suppliers was kept at their transit godown in Okhla, New Delhi on or before 12/01/98.
4. On 13/01/98, plaintiff no.2 entrusted the above said imported as well as indigenous goods consisting of 342 packages with the defendant while declaring an invoice value of Rs.36,17,578/- for dispatch from New Delhi to Ludhiana. As per plaintiffs, the defendant accepted the invoice value of goods and loaded the consignment in tempo no.PCL-430, which was dispatched vide GR dated 13/01/98, ex New Delhi to Ludhiana.
CS/038/02 & connected cases Page 4 of 29 pages 5
5. On reaching near village Kumashpur-Bahalgarh crossing in district Sonepat, Haryana on 13/01/98 the ill fated tempo met with an accident, allegedly due to negligence of the defendant and the same caught fire after getting over turned. As a result of fire, entire consignment being transported got destroyed.
6. Plaintiff no.2 got the quantum of loss assessed by way of survey through M/s A.K. Govil & Associates. The total loss assessed by the said surveyor in all these four cases is to the tune of Rs.15,26,378/- inclusive of the professional fees of Rs.16,520/- paid to the surveyor.
7. As per plaintiffs, the defendant acknowledged its liability by issuing a non delivery certificate. Plaintiff no.2 also served on the defendant a notice dated 19/01/98 in terms with section 10, Carriers Act. Since the defendant failed to settle the dispute, plaintiff no.2 lodged its claims pertaining to these four suits with the plaintiff no.1, the insurer, who paid the total amount of Rs.15,26,378/- to the plaintiff no.2 towards the loss suffered by the latter. On the basis of a letter of subrogation issued by plaintiff no.2 in favour of plaintiff CS/038/02 & connected cases Page 5 of 29 pages 6 no.1, the present four suits have been filed after issuing the presuit legal notice dated 22/08/99 which failed to evoke response.
8. As pleaded in the plaint itself, prior to bringing this suit plaintiffs had filed a complaint before the Delhi State Consumer Disputes Redressal Commission (hereinafter referred to as "the Hon'ble State Commission") on 30/06/99 for recovery of the entire claim. But during pendency of the said complaint, Hon'ble Supreme Court held in civil appeal no.13387/96 decided on 01/02/2000 that marine subrogation claim cases fall beyond the jurisdiction of consumer courts. As such, the consumer complaint was withdrawn from the Hon'ble State Commission on 19/10/2000 with liberty to file civil suits for money recovery. Hence, as per plaintiffs in view of section 14 of the Limitation Act, the present suits are within limitation period.
9. In its written statements, the defendant took a preliminary objection that the suits are hopelessly time barred; the plaints have not been signed, verified and instituted by competent person; the suits are without cause of action; and CS/038/02 & connected cases Page 6 of 29 pages 7 no notice as stipulated under section 10, Carriers Act was served on the defendant.
10. Defendant denied that plaintiff no.1 is the insurer of the goods being transported or plaintiff no.2 has subrogated any right in favour of plaintiff no.1. Defendant denied that on 13/09/98 plaintiff no.2 entrusted any goods with the defendant. Defendant also denied having accepted any invoice value or having loaded the consignment in tempo vide GR no.21967 dated 13/01/98 ex New Delhi to Ludhiana and specifically pleaded that the defendant never had any concern with the tempo no.PCL 430 or with GR no.21967. As per defendant, apparently plaintiff no.2 has fabricated the GR.
11. Defendant also pleaded that it never joined the alleged survey conducted by M/s A.K. Govil & Associates and challenged the report of the surveyor. Defendant denied having acknowledged any liability to pay damages to the plaintiffs and pleaded that the loss certificate is a forged document.
12. Defendant pleaded that plaintiffs are not entitled to exclusion of time spent before the Hon'ble State Commission under section 14 Limitation Act in view of the provisions under CS/038/02 & connected cases Page 7 of 29 pages 8 Order XXIII CPC.
13. Plaintiffs filed replications, denying the defendant's pleadings and reaffirmed the plaint contents.
14. On the basis of pleadings, my learned predecessor framed the following consolidated issues in all the cases:-
1. Whether the suit of the plaintiff is barred by limitation? OPD
2. Whether suit of the plaintiff has been filed by duly authorised person? OPP
3. Whether there is no notice under section 10 of the Carriers Act? OPD
4. Whether suit is without cause of action? OPD
5. Whether plaintiff has no right to file the present suit?
OPD
6. Whether plaintiff is entitled to recovery of the suit amount? OPP
7. Whether plaintiff is entitled to interest, if so at what rate and what amount? OPP
8. Relief
15. In support of their plaints, plaintiffs examined four witnesses while defendant opted not to adduce any evidence.
16. Plaintiffs' two witnesses, namely Mr. Rajesh Kalra (examined before my learned predecessor) and Mr. Atul Jerath (examined before me) were numbered PW1 only. But testimony CS/038/02 & connected cases Page 8 of 29 pages 9 of both these witnesses remained inchoate as they failed to turn up after getting their examinations deferred for want of documents. Perusal of record reflects that despite numerous opportunities, last opportunities and even imposition of cost during the period between 29/07/02 (when issues were framed) and 24/04/07 (when PE was closed), the said witnesses did not restep into the box. Copies of various order sheets were even sent to the Chairman cum Managing Director of plaintiff no.1 in order to ensure diligence on the part of plaintiff no.1 but that also failed to evoke any response. Rather, as reflected from order dated 27/06/06, Counsel for plaintiff expressed helplessness, stating that despite his repeated efforts plaintiff no.1 has not been sending the witnesses. After copies of repeated subsequent orders were sent to the CMD of plaintiff no.1 as regards imposition of cost, the plaint signatory Mr. Atul Jerath appeared in the box on 02/11/06 and was partly examined; his examination was deferred as counsel for plaintiffs needed permission to lead secondary evidence. Thereafter, even Mr. Jerath never reappeared and application of plaintiff no.1 for leading CS/038/02 & connected cases Page 9 of 29 pages 10 secondary evidence was dismissed with heavy cost vide detailed order dated 12/03/07, which order was upheld by the Hon'ble Delhi High Court in CRP no.133/07 vide order dated 01/08/07. Despite that, plaintiff no.1 sought permission to examine some other witness instead of Mr. Jerath on a strange ground that the witness Mr. Jerath would have to come from Bombay. That request also was declined by detailed order dated 12/03/07, also upheld vide order dated 01/08/07 of Hon'ble High Court. Even thereafter, no evidence was brought and by detailed order dated 24/04/07, plaintiffs' evidence had to be closed. Under these circumstances, being inchoate testimony of PW1 Mr. Rajesh Kalra and Mr. Atul Jerath cannot be read at all.
17. PW2 Mr. A.K. Govil is the surveyor, who deposed that on 14/01/98 on instructions from plaintiff no.1 he conducted survey of the damaged/burnt consignment. Since majority of goods had got badly charred and got converted into a lump, he advised plaintiff no.2 to send the goods to Delhi for further inspection. On 15/01/98 further inspection of the damaged material was done in details and separate reports were CS/038/02 & connected cases Page 10 of 29 pages 11 prepared as regards the material imported against direct payment and material imported against letter of credit.
18. Since PW2 was examined in chief by way of affidavit before my learned predecessor, in the chief affidavit a number of documents were marked exhibits Ex.PW2/1-10 in the testimony of the surveyor PW2, which documents otherwise could not be proved by him as the same were neither authored nor received by him except his reports Ex.PW2/7&8. Those documents Ex.PW2/1-6 and Ex.PW2/9&10 cannot be read here.
19. In his cross examination, PW2 stated that he had no technical knowledge as an expert in automobile engineering. From cross examination of PW2, it also appears that his chief affidavit was prepared simply by copying down the plaint itself, due to which even those facts which could not have been in the knowledge of the witness were testified in the chief affidavit. PW2 admitted that the documents on which his report is based were neither signed nor prepared in his presence and that he had not been engaged by plaintiff no.2. PW2 admitted that he was not a summoned witness and CS/038/02 & connected cases Page 11 of 29 pages 12 rather had been attending the court for past four dates. PW2 once stated that some of the goods had been stolen away but then said that the entire goods got damaged in fire. He did not produce negatives of the photographs forming part of his reports and admitted that the assessment of quantum of loss was done not at the site but in Delhi, where the goods had been brought in unpackaged condition. He denied the suggestion that the reports were prepared by him without physical verification of the damaged consignment.
20. Testimony of PW2 at the most goes to establish that his group conducted survey of a burnt consignment and delivered their reports Ex.PW2/7&8 to plaintiff no.1.
21. PW3 Mr. Anup Khatri is the authorised representative of plaintiff no.2, who placed on record a copy of board resolution in his favour as Ex.PW3/A and deposed on oath contents of the plaint. But in his cross examination, PW3 admitted that he personally did not deal with this case, as such he had no personal knowledge of facts pertaining to this claim. He also admitted having brought neither the original book of minutes of meeting of board of plaintiff no.2 which CS/038/02 & connected cases Page 12 of 29 pages 13 authorised him nor any other original document.
22. Testimony of PW3 also fails to be of any help to the plaintiff no.1. Even this witness failed to produce the original policy of insurance, allegedly issued by the plaintiff no.1 as regards the consignment allegedly sent through the defendant.
23. No other evidence was brought in this case. I have heard learned counsel for both the sides, who took me through the entire record. My findings on the issues framed are as under:-
ISSUE NO.1:-
24. As mentioned above, in its written statement the defendant took a preliminary objection that the present suits are hopelessly time barred. Perusal of record would reflect that my learned predecessor treated the issue under consideration as a preliminary issue and vide detailed order dated 23/01/03 decided the same in favour of plaintiff. The said order of my learned predecessor was challenged in CR no.427/03 before the Hon'ble Delhi High Court. Vide order dated 08/02/06, Hon'ble Delhi High Court set aside the order dated 23/01/03 of my learned predecessor and remanded the case back, CS/038/02 & connected cases Page 13 of 29 pages 14 holding the issue under consideration to be a mixed question of law and fact which could not be tried as preliminary issue.
25. As per para 22 of the plaint, cause of action to file the present suits arose on 13/01/98 when the goods were entrusted to the defendant for being transported. Admittedly, the suits were filed on 29/04/02, beyond the prescribed period of three years of limitation. Plaintiffs explained that from 30/06/99 to 19/10/2000, the matter was being pursued by plaintiff no.1 by way of a consumer complaint before the Hon'ble State Commission and that period must be excluded in view of section 14, Limitation Act while computing the period of limitation for filing these suits.
26. My learned predecessor in his order dated 23/01/03 upheld the above argument and granted the plaintiffs benefit of time spent before the Hon'ble State Commission from where the plaintiffs had to withdraw their complaint in view of judgment dated 01/02/2000 of the Hon'ble Supreme Court holding that consumer courts do not have jurisdiction in such matters.
27. Hon'ble Delhi High Court in revision set aside the CS/038/02 & connected cases Page 14 of 29 pages 15 said order of my learned predecessor and held that in order to avail benefit of section 14, Limitation Act plaintiffs have to prove on record that the proceedings before the Hon'ble State Commission were being prosecuted bonafidely and with diligence. Hon'ble Delhi High Court remanded the matter with following observation:
"Learned trial court while examining question of applicability of section 14 of the Limitation Act, 1963 has not specifically gone into and examined the question whether the respondent no.1 was bonafidely prosecuting the complaint with due diligence even after the judgment of the Supreme Court in the case of OBEROI FORWARDING AGENCY (supra) was pronounced on 01/02/2000 and was available with the authorities concerned. Learned trial court was required to examine this aspect and come to a conclusion whether even after passing of the said judgment, the time taken by the respondent no.1 of more than eight months to withdraw the said case on 19/10/2000 was justified. Accordingly, I set aside the impugned order dated 23/01/03 and restore the matter back to the learned trial court to re-examine the entire matter with CS/038/02 & connected cases Page 15 of 29 pages 16 reference to the date 01/02/2000 when the judgment in the case of OBEROI FORWARDING AGENCY (supra) was pronounced and the conduct of the respondent no.1 after passing of the said judgment till the complaint was withdrawn on 19/10/2000. After examining the material and evidence placed by the parties, learned trial court will decide whether or not the entire period upto 19/10/2000 or a part of the period should be excluded under section 14 of the Limitation Act." (underlining is mine)
28. It is trite that bar created by section 3 of the Limitation Act on entertaining a time barred suit is subject only to the provisions contained in sections 4 to 24 of the Act. Where the delay in institution of a proceeding does not fall under the conditions stipulated in one or more of the said provisions, the proceedings fall prey to section 3. Present suits seek shelter under section 14(1) of the Limitation Act, which stipulates as under:
"In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or of appeal or revision, against the defendant shall be excluded, where the CS/038/02 & connected cases Page 16 of 29 pages 17 proceeding relates to the same matter in issue and is prosecuted in good faith in a Court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it."
Scrutiny in the present suits revolves around only the italicized components of section 14(1) since on rest of the ingredients, parties are not at issue.
29. In the case of KERALA STATE CIVIL SUPPLIES CORPORATION vs MGM TRANSPORTS, 2005(2) RCR(Civil)172, a Division Bench of Hon'ble Kerala High Court held as under:
"So far as the applicability of Section 14 of the Act is concerned, the following have to be proved: (1) The plaintiff must have been prosecuting another civil proceeding with due diligence. (2) The earlier proceeding and the later proceeding must be founded on the same cause of action and (3) The former proceeding must have been prosecuted in good faith in a court which from defect of jurisdiction or other cause of like nature is unable to entertain it."
(emphasis supplied)
30. In the case of KOCHHAR CONSTRUCTION WORKS vs DDA, 1999(1) RAJ 254 (Del), Hon'ble Delhi High Court held:
"The only provision that could probably be said CS/038/02 & connected cases Page 17 of 29 pages 18 to be applicable herein is the provisions of Section 14, i.e. time taken by the petitioner in pursuing a remedy elsewhere. The said section states that in computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceedings whether in a court of first instance or in appeal or revision against the defendant shall be excluded. However, in order to get the benefit of the aforesaid provision the petitioner has to prove that the aforesaid proceedings in another court was being prosecuted by the petitioner in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain. The word 'good faith' is defined under the Limitation Act itself, wherein it is defined as nothing shall be deemed to be done in good faith which is not done with due care and attention. Therefore, good faith means such action which is done with due care and attention."
31. In the case of ASSISTANT COMMISSIONER ANTI EVASION COMMERCIAL TAXES, BHARATPUR vs M/S AMTEK INDIA LIMITED, Appeal (Civil) No. 896 of 2007 decided on CS/038/02 & connected cases Page 18 of 29 pages 19 22/02/2007 by the Hon'ble Supreme Court, bench constituted by Hon'ble Justice Dr. Arijit Pasayat and Hon'ble Mr.Justice S.H. Kapadia (judgment available on the website www.supremecourtofindia.nic.in) it was held thus:
"Whether an act has been done in good faith would depend upon the factual scenario. In order to establish "good faith", it has to be established that what has been imputed concerning the person claiming it to be so, is true. "Good Faith" according to the definition in Section 3(22) of the General Clauses Act, 1897 means a thing, which is in fact done honestly whether it is done negligently or not. Anything done with due care and attention, which is not malafide is presumed to have been done in 'good faith'.
'Good Faith' is defined under Section 2(h) of the Limitation Act, as 'good faith'- nothing shall be deemed to be done in good faith which is not done with due care and attention.
Dealing with a case under the Indian Limitation Act, 1963, this Court held that the expression 'good faith' as used in Section 14 means "exercise of due care and attention". In the context of Section 14, the expression 'good CS/038/02 & connected cases Page 19 of 29 pages 20 faith' qualifies prosecuting the proceeding in the court, which ultimately is found to have no jurisdiction. The finding as to good faith or the absence of it is a finding of fact. [See DEENA vs BHARAT SINGH, (2002) 6 SC 336]"
32. Even in order dated 08/02/06, while allowing the revision filed by the defendant, Hon'ble Delhi High Court on the basis of judicial precedents observed that section 14 of the Limitation Act grants exclusion of time taken in pursuing remedy before a court having defective or no jurisdiction but the exclusion is allowed only if the court is satisfied that party concerned was prosecuting the earlier matter with due diligence and in good faith.
33. In spite of the above noted legal position, as explained by the Hon'ble High Court while allowing the revision petition, no evidence at all was adduced on behalf of the plaintiffs.
34. Admittedly, judgment of the Hon'ble Supreme Court in the case of OBEROI FORWARDING AGENCY vs NEW INDIA ASSURANCE CO. LTD., reported as AIR 2000 SC 855 came on 01/02/2000. The present plaintiff no.1 was party to the CS/038/02 & connected cases Page 20 of 29 pages 21 proceedings before the Hon'ble Supreme Court. When the said judgment came from the apex court, admittedly the present plaintiff no.1 was in a consumer complaint before the Hon'ble State Commission. As observed by the Hon'ble High Court in order dated 08/02/06, plaintiff no.1 would have taken some time to read and understand the judgment of the Hon'ble Supreme Court and to take necessary steps to withdraw the consumer court proceedings. It is this evidence which was expected from the plaintiffs that could have established that plaintiff no.1 had been prosecuting the consumer complaint in good faith and with due diligence. It is for this very reason that Hon'ble High Court observed that this court is required to examine as to whether time of more than eight months taken by the present plaintiff no.1 to withdraw the consumer complaint was justified or not. But as mentioned above, absolutely no evidence was adduced on behalf of plaintiff no.1 to show as to when the Supreme Court judgment was circulated amongst the concerned officials of plaintiff no.1; what steps were taken thereafter; what opinions were obtained; how much time was spent on the exercise, if not on CS/038/02 & connected cases Page 21 of 29 pages 22 day to day basis, at least stage wise before withdrawal of the consumer complaint.
35. Even after withdrawal of the consumer complaint on 19/10/2000, the present suit was filed on 29/04/02 and there is no explanation for this period. I am conscious that if plaintiffs are allowed benefit under section 14, Limitation Act they need not explain the time taken during 19/10/2000 to 29/04/02. But this explanation would become relevant in establishing diligence or otherwise on the part of plaintiffs.
36. As per law laid down in the above judicial pronouncements, the word 'good faith' in section 14 of the Limitation Act has to draw its meaning from section 2(h) of the Act itself which defines good faith as an act done with due care and attention. In the present context, in order to qualify for shelter under section 14, the plaintiffs ought to have brought some evidence that the consumer proceedings were conducted by them with diligence and after the judgment dated 01/02/2000 of the Hon'ble Supreme Court, plaintiff no.1 acted with due care and attention in moving the machinery for withdrawal of the consumer complaint. CS/038/02 & connected cases Page 22 of 29 pages 23 Plaintiffs were required, even as per the order dated 08/02/06 of the Hon'ble High Court, to explain what took them eight months after the apex court judgment to withdraw their consumer complaint. But no evidence was brought.
37. Learned counsel for plaintiff no.1 argued that since the Hon'ble State Commission granted liberty to file fresh suit while permitting the present plaintiff to withdraw the consumer complaint, as such the present suit cannot be dismissed on technical grounds. I fail to agree with the argument. The Hon'ble State Commission passed no such orders that the suit cannot even be tested on point of limitation. Grant of liberty to file fresh suit cannot cure the limitation defect. Order XXIII Rule 2 CPC clearly stipulates that in any fresh suit instituted on permission granted under Order XXIII Rule 1 CPC, the plaintiff shall be bound by law of limitation in the same manner as if the first suit had not been instituted.
38. As observed by the Hon'ble High Court in order dated 08/02/06, when on 30/06/99 plaintiff no.1 filed consumer complaint, there were certain decisions in favour of the CS/038/02 & connected cases Page 23 of 29 pages 24 insurance company which justified the consumer complaint. As such, period from 30/06/99 to 01/02/2000 (when the judgment in OBEROI FORWARDING case was pronounced) can be excluded under section 14 of the Limitation Act. But in order to earn exclusion of period between 01/02/2000 to 29/04/02 (when the suits were filed) plaintiffs had to lead evidence to show their bonafide and due diligence. As mentioned above, plaintiffs brought absolutely no evidence on these aspects.
39. To sum up, cause of action as per plaintiffs' own pleadings arose on 13/01/98 and limitation to file the present suits expired on 13/01/01 while the suits were filed on 29/04/02. Since despite repeated opportunities over a span of five years plaintiffs brought absolutely no evidence to show that plaintiff no.1 had been prosecuting the consumer complaint in good faith and with due diligence even after 01/02/2000, plaintiffs cannot be granted exclusion of time from 01/02/2000 till 29/04/02. However, since at the time when consumer complaint was filed by the present plaintiffs on 30/06/99, the legal position as observed by Hon'ble Delhi CS/038/02 & connected cases Page 24 of 29 pages 25 High Court in order dated 08/02/06 was that the complaint was maintainable before the Hon'ble State Commission, plaintiffs can be granted exclusion of time from 30/06/99 to 01/02/2000. Computing these periods from 13/01/98 to 29/06/99 and then from 02/02/2000 to 29/04/02, it is obvious that the suits were filed beyond limitation period.
40. In view of above discussion, issue no.1 is decided against the plaintiffs and it is held not proved that the suits are within limitation period.
ISSUES NO.2-7:-
41. Since the suits can be disposed of on the findings above, the issues under consideration need no discussion. Even otherwise, as mentioned above, plaintiffs brought absolutely no evidence as regards authority of the plaint signatory and all other aspects. As rightly pointed out by learned counsel for defendant, even the document alleged to be noticed under section 10, Carriers Act was addressed to Sahani Tempo Transport Service and not the defendant, hence there is no notice under section 10, Carriers Act to the defendant and consequently no cause of action. Plaintiffs have CS/038/02 & connected cases Page 25 of 29 pages 26 also brought no evidence as regards connection between the defendant and tempo no.PCL 430 or GR no.21967 (whereunder the consignment was allegedly dispatched) in order to counter the defendant's specific pleadings that it had no concern at any time with the said tempo or the GR. Plaintiffs did not even placed on record the original insurance policy, which is the foundation of this suit.
42. On account of total absence of evidence, the issues under consideration are decided against the plaintiffs. ISSUE NO.8 (RELIEF):-
43. During final arguments, learned counsel for defendant emphasised that the defendant was unnecessarily dragged in this litigation over a period of more than five years, as such the defendant is also entitled to compensatory costs in view of section 35A of the Code of Civil Procedure. Learned counsel for plaintiff did not address on this aspect.
44. Under section 35A CPC, if in any suit the defendant objects that the claim or a part thereof is false or vexatious to the knowledge of the plaintiff and if thereafter against the defendant such claim is disallowed, the court may after CS/038/02 & connected cases Page 26 of 29 pages 27 recording its reasons for holding such claim to be false or vexatious make order for payment of costs by way of compensation to the defendant.
45. As discussed above, defendant specifically denied having transported the consignment in question. Defendant even denied having any connection whatsoever with the tempo or the goods receipt whereunder the consignment was allegedly dispatched. Defendant also denied having received any notice under section 10, Carriers Act. The suit remained pending for more than five years but for reasons best known to plaintiff no.1, no evidence was led. Even the plaint signatory Mr. Jerath did not step into the box despite repeated opportunities, last opportunities, imposition of cost and even communication of adverse orders to Chairman cum Managing Director of plaintiff no.1. To add to it, the reasons advanced for refusal to examine the plaint signatory were as frivolous as "the witness would have to come from Bombay". Throughout, it was observed and also communicated to the Chairman cum Managing Director of plaintiff no.1 that indulgence was being shown keeping in mind the only aspect of involvement of CS/038/02 & connected cases Page 27 of 29 pages 28 public money. Despite all that, no appropriate evidence was brought on account of absolute lethargy, if not a conscious effort of the officials of plaintiff no.1 to defeat their own claim. As mentioned above, even the evidence adduced on behalf of plaintiffs over a span of five years was too vague and too little. Despite repeated opportunities plaintiffs did not even produce the original insurance policy. I am satisfied that the present suits are false as well as vexatious, for which the defendant was unnecessarily dragged. And the defendant is definitely entitled to be compensated with costs of Rs.3,000/- under section 35A, CPC in each suit in addition to the costs incurred by the defendant on these suits to be paid by plaintiff no.1. However, issue of recovery of the compensatory costs from salaries of erring officials of plaintiff no.1 is left to the wisdom of their superior officers.
46. In view of above findings, the suits are dismissed as time barred. Costs, including compensatory costs of Rs.3,000/- in each suit shall be paid to the defendant by the plaintiff no.1.
47. Decree sheets be accordingly drawn up and files be CS/038/02 & connected cases Page 28 of 29 pages 29 consigned to record room, after placing copy of this judgment in each of the files.
ANNOUNCED IN THE OPEN COURT ON 05th September 2007 (GIRISH KATHPALIA) ADDL. DISTRICT & SESSIONS JUDGE DELHI CS/038/02 & connected cases Page 29 of 29 pages