Delhi District Court
Shri Mahavir Prasad vs M/S Delhi Kanpur Golden on 18 January, 2017
IN THE COURT OF SHRI VINAY SINGHAL
ADDITIONAL DISTRICT & SESSIONS JUDGE,
JUDGE, MACT-2, (CENTRAL), DELHI.
Suit No.16378-16
Shri Mahavir Prasad
S/o Late Sh. Ganga Ram
Prop. M/s Mahavir Garments
IX/7111, Guru Nanak Gali,
Gandhi Nagar,
Delhi-110031.
........PLAINTIFF
Versus
M/s Delhi Kanpur Golden
Transport Co. (Regd.),
Through its Prop. Shri Kaka Babu
6516 Qutab Road,
New Delhi-110055.
.......DEFENDANT
Date of filing of Suit : 11.01.2011
Judgment pronounced on :18.01.2017
Suit No.1637816 Shri Mahavir Prasad Vs Delhi Kanpur Golden Page 1 of 12
PART-A
PLAINT
The present plaint has been filed for the recovery of Rs.
11,55,518/- alongwith interest and cost. Brief facts as stated in the
plaint are as below:-
1.The plaintiff who is the proprietor of M/s Mahavir Garments stated to have purchased goods from the Defendant No. 2 (since deleted as per statement of the plaintiff dated 23/07/2012) to the tune of Rs.11,55,518/- as per the details given in Para No. 2 of the plaint.
2. As per plaintiff he made the entire payment of the goods by way of Rs. Eight Lacs by three different cheques and remaining amount by cash, as per the details given in Para No. 3 of the plaint.
3. The defendant no. 2 entrusted the goods, purchased by the plaintiff to the defendant No.1 for their delivery at Delhi to the plaintiff.
4. It is pertinent to mention that the said goods were entrusted to the defendant No.1 by virtue of 52 GRs of different dates.
5. As per plaint the said goods were lying in the godown of the defendant No. 1 at Delhi after being transported from Gorakhpur Office of the Defendant No. 2.
6. On 12/04/2011, the Defendant No.1 showed a fire in his godown where the goods in question were destroyed.
7. On 13/05/2011, the Defendant No. 1 ask for the copy of GR alongwith the details of the goods which was supplied by the plaintiff.
Suit No.1637816 Shri Mahavir Prasad Vs Delhi Kanpur Golden Page 2 of 128. On 25/07/2011, the plaintiff served a demand notice upon the defendant no. 1 calling upon him to make a payment of Rs. 11,55,518/- towards compensation which is the cost price of the goods and the copy of the said notice was also served upon the defendant no. 2. As per the plaintiff, the defendant No. 1 did not comply with the said legal notice.
9. Hence, the present suit.
PART-B DEFENCE
10. The defendant No. 1 took the preliminary objection that there is no privity of contract between him and the plaintiff as no freight charges were paid by the plaintiff to it.
11. The defendant No. 1 also took the preliminary objection to the effect that the valuation of the goods entrusted to it was not disclosed in the GR and as such by virtue of the provision of The Carriage by Road Act, 2007, the plaintiff can at the most claim 10% of the freight only.
12. The defendant No. 1 though admitted that the goods were entrusted to it by the defendant No. 2 for transportation to Delhi BUT it was the plaintiff himself who failed to take the delivery of the same despite numerous calls made to him on behalf of the defendant No. 1 and accordingly, it is submitted by the defendant No. 1 that as soon as it has intimated the plaintiff w.r.t the goods having reached Delhi and the subsequent failure on the part of the plaintiff to take delivery of the same, the duty of the defendant No. 1 comes to an end and in fact it is the defendant no. 1 who also did not charge the Suit No.1637816 Shri Mahavir Prasad Vs Delhi Kanpur Golden Page 3 of 12 rent from the plaintiff for storing the goods for a long period despite not required to do so.
13. The defendant No. 1 also denied the service of the legal notice to it and accordingly denied any liability on its part towards the claim of the plaintiff.
14. As already stated in Para No. 1 above, the plaintiff had chosen to delete the defendant No. 2 from the array of the parties vide statement dated 23/07/2012.
PART-C ISSUES
15. From the pleadings of parties the issues were framed vide order dated 11/10/2012
1) Whether the plaintiff is entitled to decree of Rs. 11,55,518/-
along with interest from the defendant no. 1 as alleged?OPP
2) Whether there is no cause of action in favour of plaintiff as alleged?OPD
3) Whether the plaintiff has concealed material facts from the court as alleged, if so to what effect?OPD
4)Whether the suit is not maintainable as alleged?OPD
5)Whether the suit is barred by provisions of Carrier Act as alleged?OPD
6)Whether the suit is not properly valued for the purpose of court fee and jurisdiction as alleged?OPD
7)Relief Suit No.1637816 Shri Mahavir Prasad Vs Delhi Kanpur Golden Page 4 of 12 PART-D PLAINTIFF EVIDENCE
16. The plaintiff examined himself only as PW-1 and deposed along the lines of the plaint and proved the following documents:-
a) Legal Demand Notice dated 25/07/2011 Ex PW1/1
b) Postal Receipts Ex PW1/2 & Ex PW1/3
c) Letter dated 23/05/2011 Ex PW1/4
d)Carbon Copy of original G.R. No. (s). 282473 to 282480 Ex PW1/5 to Ex PW1/21
e) Letter dated 11/05/2011 vide which bilties was sent Ex PW1/22
f) Carbon copies of GRs Ex PW1/23 to Ex PW1/76
17. The defendant had cross examined the PW-1 on the aspect that the goods were not meant to be delivered to the plaintiff as the name of the plaintiff or his firm stand not mentioned on the GR BUT as the defendant in the WS has admitted that the goods were transported by it from Gorakhpur to Delhi and it intimated to the plaintiff about the goods having reached Delhi, the cross examination on this point in the opinion of the Court need not be referred as the same is of no value.
18. During cross examination, it is admitted by the plaintiff that the goods were duly insured by the defendant no. 2 but he did not lodge any claim with the insured company qua the same.
19. In fact on further cross examination in response to a suggestion to the effect that the plaintiff has already claimed the insurance and accordingly is not producing the copy of the insurance claim/paper, the plaintiff on its own has not come Suit No.1637816 Shri Mahavir Prasad Vs Delhi Kanpur Golden Page 5 of 12 forward to produce the same on record.
20. The plaintiff also admitted that he has got no documentary proof in order to show that the value of the goods purchased by him from the defendant no. 2 was/is Rs. 11,55,518/- as he has stated that he has got no document to prove the said amount.
21. The plaintiff also admitted that he was informed about the dispatch of the goods but as no time for taking the delivery of the same from the transporter was fixed, he did not take the delivery.
PART-E DEFENDANT EVIDENCE
22. The Defendant no. 1 examined its proprietor Sh. Kaka Babu as DW-1 who also deposed along the lines of defence taken in the written statement.
23. The said DW-1 denied the receipt of letter dated 13/05/2011 Ex PW1/4.
24. The DW-1 again retreated in his cross examination that the goods were destroyed in a fire.
Suit No.1637816 Shri Mahavir Prasad Vs Delhi Kanpur Golden Page 6 of 12PART-F FINDINGS/CONCLUSION
25. After considering the pleadings on record, the evidence led and the arguments advanced, the court has come to the conclusion that the present suit is liable to be dismissed on account of the issue wise decision herein under:
ISSUES No. 4 & 54)Whether the suit is not maintainable as alleged?OPD
5)Whether the suit is barred by provisions of Carrier Act as alleged?OPD
26. Both these issues are taken up simultaneously being interconnected.
27. The first defence taken by the defendant No. 1 is to the effect that there is no privity of contract between it and the plaintiff.
28. It is an admitted fact that the consignor in the present case was the defendant No. 2 as it is admitted in the plaint as well as in the cross examination of PW-1 that the goods were entrusted by the defendant No. 2 to the defendant No. 1 and it was the defendant No. 2 who made payment of the freight as well as the insurance of the goods.
29. Accordingly, as per the definition of the 'Consignor' as provided in the Section 2(d) of The Carriage By Road Act, 2007, the 'Consignor' can only be the defendant No. 2.
30. This observation also gains strength from the fact that despite specific question put to the PW-1 plaintiff during cross examination w.r.t proving his claim of value of goods, he has categorically stated that he does not have any documents in Suit No.1637816 Shri Mahavir Prasad Vs Delhi Kanpur Golden Page 7 of 12 possession to show the same and also further admitted that he has got no document to show payment of transpiration charges for the goods in question to the defendant No. 1.
31. Further more the plaintiff has chosen to delete the defendant No. 2 from the array of parties vide statement dated 23/07/2011.
32. Even if the plaintiff has chosen to delete the defendant No. 2, there was no bar upon him to summon the defendant No. 2 as one of its witnesses to prove that the transportation charges were not paid by the defendant No. 2 or if paid, they were paid by the defendant No. 2 on behalf of the defendant No. 1, in order to clothe himself with the garment of consignor.
33. In the absence of proving himself as consignor of the goods, the present suit filed by the plaintiff is not maintainable as Section 10 to 12 of the Carriage By Road Act, 2007 dealing with the liability of the carrier only talks about the right of the consignor.
34. Now the question arose as to whether the plaintiff can be covered by the term 'Consginee'.
35. The answer is NO as the GR Ex PW1/5 to Ex PW1/56 do not bear the name of the plaintiff as consignee but rather against the column 'Consignee', the word used is "Self" which means the defendant No. 2 who has been named as consignor in the said exhibits.
36. Accordingly, it stands proved that the suit filed by the plaintiff is not at all maintainable even if it is admitted by the defendant No. 1 that the delivery of the goods were meant to be received by the plaintiff.
Suit No.1637816 Shri Mahavir Prasad Vs Delhi Kanpur Golden Page 8 of 1237. Further more, as per the provision of Section 16 of the Carriage By Road Act, 2007, the present suit can be filed only if a written notice stand served upon the common carrier within 180 days from the date of booking of consignment by the consignor.
38. The GRs are Ex PW1/5 to EX PW1/56.
39. PW1/21-PW1/28 bears the date of 04.12.2010.
40. PW1/29 to PW1/33 bears the date of 05.12.2010.
41. PW1/36 to PWA1/39 berars the date of 09.12.2010.
42. PW1/5 to PW1/12, PW1/15- PW1/20, PW/40-46 bears the date of 10.12.2010.
43. PW1/13-14 bears the date of 11.12.2010.
44. PW1/51-52 bears the date of 13.12.2010.
45. PW1/53-56 bears the date of 15.12.2010.
46. PW1/43-35 bears the date of 18.12.2010.
47. PW1/49-50 bears the date of 12.01.2011.
48. PW1/47-48 bears the date of 14.01.2011.
49. Accordingly, the notice should have been served w.r.t. the GR for the month of December, 2010 for the date 04,05,09,10,11,13,15 & 18 of December, 2010 by their respective dates of June ,2011.
50. Similarly for the GRs for the date of 12,14 of January, 2011, notices should have been served by their respective date of 12,14 of July, 2011.
51. As per the plaintiff he had served a demand letter dated 13.05.2011 on 23.05.2011 upon the defendant No.1.
52. The said letter is sought to be exhibited as PW1/4.
53. The receipt of said letter has been denied by the defendant No.1 during his cross examination.
Suit No.1637816 Shri Mahavir Prasad Vs Delhi Kanpur Golden Page 9 of 1254. In view of the denial of receipt of said letter EX PW1/4, the responsibility was of the plaintiff to prove its service upon defendant No.1.
55. The plaintiff has miserably failed to prove the service of the same as the same was not sent either by post or courier nor the plaintiff has examined any person who has personally delivered the said letter upon the defendant No.1.
56. Accordingly, Ex PW1/4 is of no consequence.
57. The proper legal notice on behalf of the plaintiff was legal notice dated 25.07.2011 Ex PW1/1 served through registered post receipt Ex PW1/3.
58. The said legal notice dated 25.07.2011 Ex PW1/1 having been dated and dispatched after expiry of limitation of 180 days from the date of booking of consignment ( dates already detailed in earlier Paras), the said notice is of no consequence and hence the suit of the plaintiff is barred by section 16 of the Carriage by Road Act, 2007.
59. Accordingly, in view of the above findings, the issue No 4 & 5 are decided against the plaintiff and in favour of the defendant. ISSUE No.6
6) Whether the suit is barred by provisions of Carrier Act as alleged?OPD
60. The plaintiff has filed the suit for the recovery of Rs.
11,55,518/- and had paid court fee of Rs 13600/- and accordingly, the court has come to the conclusion the suit has been properly valued for the purpose of court fee and jurisdictions.
61. Issue No 6 is decided in favour of the plaintiff.
Suit No.1637816 Shri Mahavir Prasad Vs Delhi Kanpur Golden Page 10 of 12ISSUE No.3
3) Whether the plaintiff has concealed material facts from the court as alleged, if so to what effect?OPD
62. Indeed as already discussed while deciding the issue No 4 & 5, it has proved on record that the plaintiff has concealed material facts ie the invoices against which the goods had been allegedly purchased by him from the defendant No 2 as well as the copy of the insurance policy vide which the goods were insured.
63. These facts were very much material to be proved on record by the plaintiff in order to sustain his claim.
64. Issue No. 3 is accordingly decided in favour of the defendant and against the plaintiff.
ISSUES NO. 1 & 21)Whether the plaintiff is entitled to decree of Rs. 11,55,518/- along with interest from the defendant no. 1 as alleged?OPP
2) Whether there is no cause of action in favour of plaintiff as alleged?OPD
65. In view of the outcome of Issues No 4 & 5, the court has come to the conclusion that there is no cause of action in favour of the plaintiff and the plaintiff is not entitled for the decree of recovery.
66. Issues No 1 & 2 are accordingly decided in favour of the defendant and against the plaintiff.
Suit No.1637816 Shri Mahavir Prasad Vs Delhi Kanpur Golden Page 11 of 12ISSUE No.7 Relief
67. In view of the outcome of Issue No.1 to 5, the suit of the plaintiff stand dismissed with no order as to cost.
68. Decree sheet be prepared accordingly.
File be consigned to Record Room.
Announced in open court (VINAY SINGHAL) on 18.01.2017 Judge MACT-2 (Central), Tis Hazari Courts, Delhi.
Suit No.1637816 Shri Mahavir Prasad Vs Delhi Kanpur Golden Page 12 of 12