Andhra Pradesh High Court - Amravati
Essemm Logistics vs Darcl Logistics Limited And Another on 7 August, 2019
Author: T. Rajani
Bench: T. Rajani
* SMT JUSTICE T. RAJANI
+ CIVIL REVISION PETITION No.7480 2017
% 07.8.2019
# Essemm Logistics, represented by its
Managing Partner, Mrs. B.Nagamani
... Petitioner
Vs.
$ DARCL Logistics Limited, and another
.... Respondents
! Counsel for the petitioner: Sri Dantu Srinivas
Counsel for the Respondent No.1: Sri N.Ashwani Kumar
Counsel for the Respondent No.2: Not necessary party
<Gist :
>Head Note:
? Cases referred:
1. 2006 ACJ 441 = (2004) 11 SCC 545
2
HIGH COURT OF ANDHRA PRADESH :: AMARAVATI
CIVIL REVISION PETITION No.7480 of 2017
Between:
Essemm Logistics, represented by its
Managing Partner, Mrs. B.Nagamani
... Petitioner
Vs.
Palle Srinivasulu and others
.... Respondents
Date of Judgment Pronounced: 07.8.2019
Submitted for Approval:
SMT JUSTICE T. RAJANI
1. Whether Reporters of Local newspapers Yes/No
may be allowed to see the judgments?
2. Whether the copies of judgment may be Yes/No
marked to Law Reporters/Journals?
3. Whether Their Ladyship/Lordship wish to Yes/No
see the fair copy of the Judgment?
3
SMT JUSTICE T. RAJANI
CIVIL REVISION PETITION No.7480 of 2017
ORDER:
This civil revision petition is filed under Article 227 of the Constitution of India, assailing the order dated 21.9.2017 by virtue of which the Court of VI Additional District Judge, Visakhapatnam, allowed I.A.No.783 of 2014 in O.S. No.79 of 2013, which was filed by the first respondent-plaintiff, under Order VII Rule 11 read with Sections 94 / 151 of the Code of Civil Procedure, 1908 (CPC), to reject the counter claim.
2. The counter claim was filed by the petitioner-first defendant seeking for loss of business opportunity due to diversification of the Cargo from Gangavaram Port to Paradeep Port, loss of reputation and the loss on account of idling of men, machine and overheads. The suit was filed by the first respondent herein seeking for a decree for the specified amount, on the ground that the plaintiff began to transport the goods for the defendants based on their representations of oneness to various destinations, and during the period of October to December 2011, the work orders, to which the suit relates, were placed on the plaintiff and the goods were transported from Visakhapatnam to various destinations in Chattisgarh. The bills and invoices were submitted for payment but the same were not honoured or paid by the defendants. The petitioner herein, who is the first defendant, filed counter-claim, contending that it has 4 been a reputed transporter since nine years, second respondent-second defendant is one of the leading importing agencies. The first defendant works on a back-to-back business with formal work orders, for the second defendant. The first defendant facilitates second defendant to plan and execute all its operations. The plaintiff is a Transporting company. The representatives of the plaintiff approached first defendant and assured that they would regularly arrange the fleet and make arrangement for Cargo transportation without any default. The first defendant entered into a contract with M/s.SEPCO Electrical Power Construction Corporation, which is one of the EPC Contractors, for erecting and commissioning of power projects worldwide. The importer- owner M/s.KSK Mahanandi Power Company Limited purchased Project materials from M/s.SEPCO and the above Project Cargo was signed and dispatched under Bill dated 03.10.2011 through a Vessel, MV Ocean Hero from Shanghai Port, China to Gangavaram Port, Visakhapatnam. The said Project Cargo was received at Gangavaram Port. The second defendant, being the Clearing Agent, was entrusted with the receipt of the Cargo. Out of the total consignment entrusted to the plaintiff, they loaded certain material. Normal duration for transportation of the Cargo from Gangavaram to the destination of the Project site of M/s.KSK was ten days, but the Cargo, in this case, was not delivered within the said time. The customer of the first defendant informed the first 5 defendant that the Cargo covered by the above stated DC was not delivered to them at their Project site located near Nariyara Village, Chattisgarh. But, on enquiries, the representatives of the plaintiff have confirmed about the non- delivery of the Project Cargo and during that time they delivered a copy of the acknowledgement, which states that the New Port Police Station has received a complaint from Mr.Sushil Kumar Tiwari, Branch Manager of plaintiff- company. After receipt of the said copy, the first defendant came to know about the irregularities committed by the representatives of the plaintiff. The first defendant did not initiate any action against the plaintiff, since they were in dialogue with them. The plaintiff was involved in non- compliance of the essential terms of the contract. Due to non-delivery of the Cargo by the plaintiff, the Project works of the first defendant's customer are severely affected and huge loss is caused to them. The first defendant was constrained to raise demand on 04.3.2013 as a final chance, after repeated demands to pay Rs.14,32,27,592/- towards value of the undelivered Cargo, damages due to loss of business opportunity and loss of reputation on account of non-delivery of the Cargo. In the counter-claim, the first defendant, having stated so, has restricted its claim only for the loss of business opportunity, loss of reputation and loss on account of idling men etc. 6
3. The Court below, by considering that notice under Section 10 of the Carriers Act, 1865, which is a mandatory, was not issued prior to raising counter-claim and hence, rejected the counter-claim.
4. Assailing the said order of rejection, this revision is preferred on the grounds that the counter-claim is not filed to recover the value of any goods lost or damaged and hence Section 16 of the Carriage by Road Act, 2007 is not applicable. The remedy to claim damages is a common law remedy and hence the provision relating to issuing a notice under this Act is not applicable. Filing of counter-claim to recover damages from the plaintiff is governed by the provision of the CPC and hence Section 16 of the Carriage by Road Act is not applicable. The trial Court has mixed up a remedy under the Carriage by Road Act and a common law remedy and got confused about the real issue involved in the counter claim. A combined reading of Sections 10, 12 and 16 of the Carriage by Road Act would clearly show that the period mentioned in Section 16 is applicable only when a suit or other legal proceeding is initiated to recover the value of goods lost or damaged and not to any other cases. The trial Court ought to have seen that in the counter-claim, the second defendant clearly divided the claim for damages into three categories and none of them deal with value of recovery of goods lost or damages. On the above grounds, the revision petitioner seeks to set aside the impugned order. 7
5. Heard Sri Dantu Srinivas, learned counsel for the petitioner-second defendant and Sri N.Ashwani Kumar, learned counsel for the first respondent-plaintiff. The second respondent herein is shown as not necessary party.
6. The counsel for the petitioner assails the impugned order vehemently, on the ground that the Court below failed to see that the claim made by the petitioner is not in respect of the claims, which are mentioned under Section 16 of the Carriage by Road Act, 2007. The order of the Court below reflects that it considered the case as one under the Carriers Act and held that notice under Section 10 of the Carriers Act, 1865 is mandatory and without the said notice counter-claim cannot be filed. Somehow, in the grounds of appeal, it is mentioned as the Carriage by Road Act, 2007. Even the counsel for the petitioner, at the stage of arguments, also relies on Section 16 of the Carriage by Road Act, 2007 while in fact it is Section 10 of the Carriers Act, 1865, which is relevant. Both the sections, however, mandate that a notice is to be issued prior to filing any suit against the carrier in a civil court.
7. The counsel for the petitioner contends that the reliefs claimed by the petitioner have to be dealt with under common law and hence, the Carriers Act cannot be applied to the counter-claim, and it cannot be rejected on the ground that notice as mandated under Section 10 of the Carriers Act is 8 not issued. A reading of Section 10, no doubt, shows that it applies to a suit, which is instituted against a common carrier for the loss of, or injury to, goods (including container, pallets or similar article of transport used to consolidate goods) entrusted to him for carriage. But the counsel for the first respondent argues that in the common written statement filed by defendants 1 and 2, the petitioner herein has taken a plea that no notice was served on him as required by the Carriers Act and hence, having invoked the provisions of the Carriers Act, the petitioner cannot now contend that his counter-claim does not come within the purview of the Carriers Act. In the considered opinion of this Court, the said contention does not estop the petitioner from taking the plea that he does not come under the Carriers Act, as, according to him the claim made by the petitioner is under the Carriers Act and hence, his contention might have been that notice as mandated under the Carriers Act is required. But, his contention with regard to his counter-claim is that it does not come within the purview of the Carriers Act. Section 10 of the Carriers Act, as already observed, requires notice to be given if a suit is filed for the loss of, or injury to the goods entrusted to the carrier for carriage. But, the counsel for the respondent relies on a judgment of the Supreme Court in Arvind Mills Ltd., vs. Associated Roadways1, which is rendered in a consumer case. From the said judgment, it can be seen that the claim 1 2006 ACJ 441 = (2004) 11 SCC 545 9 was made in the Consumer Court by the petitioner therein against the respondent, which is a common carrier, seeking for compensation for the loss suffered by the petitioner because of the respondent effecting delivery of the goods entrusted to it by the petitioner without obtaining the original lorry receipts from the consignee. From the above facts, which are stated in the above judgment, it can be understood that the claim was not for the loss of goods or for the damage of goods. But, it was for the violation of the procedure for delivery of goods, which can be understood to be in obtaining of original lorry receipt from the consignee. The Supreme Court, in the said case, which is not filed for loss of goods or damage of goods, held that notice under Section 10 of the Carriers Act is mandatory. Hence, in the above circumstances, this Court, bound by the judgment of the Supreme Court, has to hold that the notice under Section 10 of the Carriers Act is mandatory even if the claim is not in respect of the loss and damages caused to the goods.
8. The counsel for the petitioner raises a tricky argument by raising a question, "whether in a case where the house of someone is damaged by a carrier, the victim would be forced to give a notice to the carrier as mandated by Section of the Carriers Act?". In the light of the above judgment of the Supreme Court, the answer has to be as follows. If the claim of the plaintiff touches upon the consignment and the services of the carrier in respect of the said consignment, the 10 claim comes within the purview of the Carriers Act, though the claim does not specify that it is filed under Carriers Act and if the claimant is a stranger to the transaction with the carrier, the claim can be brought within the purview of common law. With the above, this Court concludes that the order impugned does not require any interference.
9. Accordingly, the civil revision petition is dismissed. As a sequel, the miscellaneous applications, if any pending, shall stand closed.
___________________
SMT T. RAJANI, J
August , 2019
NOTE:
L.R. Copy be marked.
(By order)
YSp