Defendant vs Logistic Transport Of India Private ... on 31 October, 2017

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Tripura High Court

Defendant vs Logistic Transport Of India Private ... on 31 October, 2017

[6] The suit and the counter claim were thus fundamentally confined to the issue of the ownership of those iron RSA. No. 80 of 2011 & RSA. No. 34 of 2012 Page 3 of 14 bars of varied denomination measuring 3.192 MT., which according to the plaintiff-respondent is a part of the consignment which they transported by the vehicle bearing registration No. AS-01-L-1973 from the yard at Gauripur Amingaon, Guwahait, Assam. The said carriage commenced on 18.06.2008. The suit property as referred was as under:

                                            (i)      8 mm TATA TISCON Bar (SD-Fe 500) 70 pices
                                            = 315 kg
                                            (ii)     10 mm TATA TISCON Bar (SD-Fe 500) 44
                                            pices = 330 kg
                                            (iii)    12 mm TATA TISCON Bar (SD-Fe 500) 84
                                            pices = 882 kg
                                            (iv)     16 mm TATA TISCON Bar (SD-Fe 500) 90
                                            pices = 1665 kg
                                            Total weight = 3.192 MT.

              [7]                The said consignment was being transported under

invoice No. 449 dated 18.06.2008 according to the plaintiff- respondents at the instance of North Eastern Mercantile Limited for M/s Subhas Ch. Dey of Office Tilla, Dharmanagar. Having received the above consignment, the plaintiff-respondents issued the consignment note No. 22677 dated 18.06.2008 which was assessed at Rs. 10,3,299/-. The said consignment was entrusted the same to one Monoj Debnath, son of Sankar Debnath of R. K. Pur, South Tripura District, the driver of the vehicle having registration No. AS-01-L-1973. The driver of the vehicle arrived at Churaibari check post on 25.06.2008 and the said consignment was checked and found physically conforming to the invoice. Hence, the vehicle was allowed to enter into the State of Tripura with the sale tax permit vide No. 181447.

RSA. No. 80 of 2011 & RSA. No. 34 of 2012 Page 4 of 14 [8] It was found that the said driver did not report to the consignee, M/s Subhash Ch. Dey of Office Tilla, Dharmanagar and did not deliver the said consignment to the consignee. On 02.07.2008 from another driver of the plaintiff-company namely, Arun Kumar Tiwari it came to knowledge of the plaintiff that one truck loaded with iron rod was standing on Assam-Agartala Road at Sidangcherra under Kumarghat P.S. with registration No. AS-01-E- 74973 which according to the said driver is a tempered registration number.

[9] At once, the owner of the vehicle bearing No. AS-01-L- 1973 namely Gurprem Singh was called. He drove to Sidangcherra on 04.07.2008 and found the vehicle was not in serviceable condition and the driver of the said vehicle was not available. But Kumaghat P.S. arranged guarding of the said loaded vehicle. The police authorities seized those materials in the vehicle and shifted the materials to another vehicle bearing registration No. AS-01-AC- 1299 and took those materials in their custody. [10] After weighment, it was found that the consignment was of 16.020 MT. (Tata Tiscon) and the materials measuring 4.110 MT. rod (Tata Tiscon) was missing from the total consignment. One information was received from the Panisagar P.S. that the said police station seized 3.192 MT. (Tata Tiscon) from Tilthai village in terms of G.D. Entry Nos. 287 and 289 dated 08.07.2008. RSA. No. 80 of 2011 & RSA. No. 34 of 2012 Page 5 of 14 [11] The seized iron rod as described by the Panishagar P.S. is as under:

"i. 8 mm TATA Tiscon Bar SD (fr-500) 70 pices. = 315 kg.

ii. 10 mm TATA Tiscon Bar SD (fr-500) 44 pices. = 330 kg.

iii. 12 mm TATA Tiscon Bar SD (fr-500) 84 pices. = 882 kg.

iii. 16 mm TATA Tiscon Bar SD (fr-500) 90 pices. = 1665 kg.

Total weight = 3.192 MT.

The iron bar of different denomination (Tata Tiscon Bar SD (fe-500) weighing 3.192 MT, and the ownership of those iron bars are the subject matter of the suit. [12] The said seizure was reported to the Sub-Divisional Judicial Magistrate, Dharmanagar, North Tripura by the investigating officer who was investigated the PNS P.S. Case No. 55 of 2008 under Sections 419/204/407/379 of IPC. The defendant- appellant made a prayer to the Sub-Divisional Judicial Magistrate, Dharmanagar, North Tripura on 25.07.2008 claiming the ownership of the seized iron rod. The plaintiff-respondent had also submitted a petition on 15.10.2008 before the Sub-Divisional Judicial Magistrate, North Tripura, Dharmanagar claiming that the iron bars be released to the consignee. By the order dated 07.02.2009, the Sub-Divisional Judicial Magistrate, Dharmanagar, had directed to deliver those consignment to the plaintiff-respondents represented by one Lal Bahadur Yadav.

[13] Being aggrieved by the said order, the defendant- appellant filed the revision petition before the Sessions Judge, North Tripura, Kailashahar and the same was registered as Crl. Rev. P. RSA. No. 80 of 2011 & RSA. No. 34 of 2012 Page 6 of 14 No. 2(1) of 2009. By the judgment and order dated 04.05.2009, the Sessions Judge, allowed the revision petition and set aside the order dated 07.02.2009 passed in Misc. Case No. 111 of 2008 by the sub- Divisional Judicial Magistrate.

[14] In the said judgment it has been observed that the ownership of the said materials, which would be hereinafter referred to as the suit property, should be determined by the Civil Court. For such purpose, both the plaintiff and the defendant should approach the Civil Court of the competent jurisdiction. None had challenged that order of the Sessions Judge and hence, the suit has been filed by the plaintiff-respondent and the counter claim by the defendants- appellants.

[15] For purpose of adjudicating the dispute raised both in the suit and the counter claim respectively being T.S. 19 of 2009 and T.S. 25 (CC) of 2009, several issues were framed. But the fundamental issues as framed in the suit are as under:

"(iii) Whether the suit property was recovered from the possession of the defendant?

(iv) Whether the plaintiff is entitled to have the suit property as the owner thereof?"

In the counter claim the fundamental issue as framed is under:

"(ii) Whether the counter claimant is entitled to have the suit property as owner thereof?"

[16] Thereafter, the adjudication was for deciding the ownership of the suit property. The trial court by the common judgment and order dated 15.12.2009 dismissed both the Title Suit RSA. No. 80 of 2011 & RSA. No. 34 of 2012 Page 7 of 14 and the counter claim on the ground that the principal consigner company namely, Eastern North Mercantile Ltd., Guwahati was not made party and the plaintiff being the bailer as the carrier agent of the said principal consigner cannot get back the property to their custody without making the principal consigner arraigned as the party. The counter claim was dismissed as the trial court disbelieved the cash memos (Exhibit-A series) relied upon by the defendant- counter claimants.

[17] Apart that, according to the trial court, for non examination of the persons who issued the cash memos and for lack of material particulars connecting the cash memos with the said materials, the counter claim cannot be entertained. [18] Against the common judgment and order dismissing the suit being T.S. 19 of 2009, the plaintiff-respondents filed the appeal under Section 96 of the CPC being T.A. 01 of 2010 in the Court of the Addl. District Judge, North Tripura, Dharmanagar, whereas the defendant-counter claimants being aggrieved by the said judgment filed another appeal being T.A. No. 02 of 2010 from the said judgment delivered in T.S. (C.C) 25 of 2009. [19] Both the appeals were tagged together for obvious reasons and by the common judgment and decree dated 04.06.2011, the suit was decreed and the counter claim was dismissed. The objection raised by the defendant-counter claimants in respect of the RSA. No. 80 of 2011 & RSA. No. 34 of 2012 Page 8 of 14 suit being filed by the authorized agent or his competence to depose in the trial was under scrutiny in the appeal.

[20] Having duly read the deed of power of attorney, the first appellate court came to the conclusion that the said authorized agent was competent and as such the opinion of the trial court in this regard was interfered by the first appellate court. Finally, on the aspect of the non-joinder of the necessary parties, the first appellate court has categorically observed that for non joinder of North Eastern Mercantile Ltd., the principal consigner or M/s Subhash Ch. Dey, the consignee, the suit cannot fall. The appeal was therefore, decided on merit in respect of the title of the suit property.

[21] Having appreciated the evidence led by the parties, particularly the reply of one Atika Ranjan Nath enclosed with the Exhibit-1 where Atika Ranjan Nath denied that the defendant- counter claimant to be his subcontractor as claimed by the defendant before the police. It may be noted that the same was the basis of releasing the seized materials to the plaintiff-respondent by the order dated 07.02.2009 by the Sub-Divisional Judicial Magistrate.

[22] Moreover, the defendant in cross-examination, according to the first appellate court, has admitted that he does not have any documentary evidence to prove that he is a contractor. But RSA. No. 80 of 2011 & RSA. No. 34 of 2012 Page 9 of 14 he claimed that he purchased those iron bars from M/s Mahanam Iron and Steel, Colonel Chowmohani, Agartala, by Exhibit-A series. But none from M/s Mahanam Iron and Steel came to vouch that the iron bars seized from the defendants as claimed was purchased by them.

[23] Elaborate discussion has been made on that aspect by the first appellate court and thereafter it has been observed as under:

"The cash memos (Exhibit-A series) relied upon by the defendant/counter claimant cannot also be relied upon by the court for non examination of the person who issued the cash memos and for lack of material particulars connecting the cash memos with the seized material. Admittedly, the defendant/counter claimant is a textile merchant. His claim that he was a sub contractor under one Artika Ranjan Nath and purchased the suit property for construction purpose has also appeared to be false. The cash memos produced by him in support of purchase are not also proved in due manner to connect the cash memos with the suit property which were seized by police during investigation of PNS P.S. Case No. 55 of 2008. There is also no proof that the suit property was seized from his possession. Rather it is proved that the suit property was seized in part from Tilthai Bazar and in part from Nowagaon on Tilthai Ananda Bazar road. Moreover, I have no reason to disbelieve PW-2 and PW-3 who are police officers, regarding the fact that the suit property was not recovered from the possession of the defendant/counter claimant.

In view of what is discussed above, I hold that the suit property was not recovered from the possession of the defendant/counter claimant namely Upendra Debnath and as such he is not entitled to have the suit property as owner thereof."

[24] On the basis of the evidentiary materials, the first appellate court observed that the plaintiff is entitled to get the possession of the suit property not as a strict owner of the property but as an authorized carrier so that he my discharge his obligation by transporting the property to its destination i.e. the consignee. RSA. No. 80 of 2011 & RSA. No. 34 of 2012 Page 10 of 14 [25] The said common judgment and order has been challenged by these two appeals being RSA. No. 80 of 2011 and RSA No. 34 of 2012. To avoid any sort of confusion, it may be further noted that RSA. No. 80 of 2011 emerges from T. A. No. 01 of 2010, the appeal filed by the plaintiff-respondent, whereas, the RSA. No. 34 of 2012 emerges from the T.A. No. 02 of 2010 filed by the defendant-counter claimants.

[26] At the time of admitting the RSA. No. 80 of 2011 the following substantial question was framed by the order dated 06.11.2014 which is as under:

"Whether the first appellate court was correct in admitting the Exbt. 1 and reading the same for purpose of determining the title of the suit property? [27] At the time of admission of RSA. No. 34 of 2012 the following substantial question was framed by this Court on 06.11.2014:

"Whether the first appellate court was correct in affirming the judgment of the trial court as regards the title of the suit property without properly evaluating the cash memos? Exbt. A series, which have been brought in the evidence by the counter claimant showing that those properties were purchased by them?

[28] As already discussed, Exbt. 1 series in T.S. 19 of 2008 is the inquiry report dated 31.12.2008 by the investigating officer namely Jayanta Kumar Dey (PW-2). PW-2 has admitted the said certified copy in the evidence saying that the original is lying in the case record in the court of the Sub-Divisional Judicial Magistrate, Dharmanagar. Even though the cross-examination was carried out, but no objection was raised in respect of admission of the said documents. Since the document is admissible document, now RSA. No. 80 of 2011 & RSA. No. 34 of 2012 Page 11 of 14 regarding its admissibility no objection can be permitted as it would be apparent that no such objection was raised before the first appellate court as well.

[29] That apart, PW-3, Sri Kamalendu Bhowmik, the second investigating officer had categorically stated that the report as submitted by PW-2 was dispatched by him to the court of Sub- Divisional Judicial Magistrate, Dharmanagar and he had signed the report as the officer In-charge and the forwarding authority. The trial court has recorded his examination in chief, the part of which reads as under:

"I signed the report as Officer-in-charge of the P.S. as forwarding authority. The witness has identified Exbt. 1 Atika Ranjan Nath of Kanchanpur informed me in writing during an enquiry in C/W made on the basis of a demand notice filed by one Upendra Debnath that no Upendra Debnath of Tilthai was ever engaged by him as Sub-contractor because engagement of Sub-Controctor was not permissible by CPWD manual. The letter of Atika Ranjan whereby has informed me about this fact is lying with the C/D of PNS P.S. Case No. 55 of 2008."

[30] In the cross examination, PW-3 denied the suggestion, contrary what was contended in the examination-in-chief. It is apparent that the defendant's claim is that he had collected those iron bars for the purpose of executing a subcontract for one Atika Ranjan Nath. But Atika Ranjan Nath had completely denied any such transaction with the defendant-appellant. [31] Both the courts below have denied to admit the cash memos issued by one M/s Mahanam Iron and Steel Colonel Chowmohani, Agartala inasmuch as those are not admitted by the RSA. No. 80 of 2011 & RSA. No. 34 of 2012 Page 12 of 14 person who issued it and as such there cannot be any amount of dispute as much as the case memos are not public documents. The procedure is well laid down under Section-67 of the Evidence Act, how to admit a private documents. Even there is no claim that there was any attempt to admit those cash memos following the said procedure.

[32] Therefore, this Court does not find any infirmity in refusing to admit those documents. Hence, the concurrent finding in respect of dismissal of the counter claim warrants no interference from this Court. Whether the declaration that the plaintiff- respondent is entitled to get the custody of the materials is liable to be interfered is a question to be decided in the perspective as stated above.

[33] This Court has scrutinized the Exhibit-1 document and is clearly of the view that the iron bars were not seized from the custody of the defendant, those were seized from two different places and those places cannot be held to be 'custody' of the defendant.

[34] That apart, the letter dated 17.06.2008, Exhibit-2, the invoice dated 18.06.2008, Exhibit-3, the consignment note No. 22677 dated 18.06.2004, Exhibit-4, the sales tax permit No. 181477, Exhibit-5 and the manifest dated 12.06.2008, Exhibit-6 are the documents admitted in the evidence and those clearly demonstrate RSA. No. 80 of 2011 & RSA. No. 34 of 2012 Page 13 of 14 that the transportation was incomplete and the materials were in custody of the plaintiff-respondent.

[35] Moreover, from the simple arithmetic, it is apparent that the seized iron bars and the iron bars left in the vehicle in the stationary condition is equal to the quantity which was consigned in the said transaction. It thus gives a strong probability of the ownership of the consigned iron bars in favour of the consignee. As the transportation is yet to be complete, it tilts in favour of the transporter, inasmuch as during such transaction, the possessory right lies with the transporter.

[36] In this regard the Apex Court in M. Kallappa Setty vs M.V. Lakshminarayana Rao, reported in 1972 SC 2299 has unequivocally laid down the law by stating that "where the plaintiff is in possession of the suit property he can, on the strength o his possession, resists interference from defendant who has no better title than himself and get injunction restraining the defendant from disturbing his possession."

Having appraised the records afresh, this Court is of the view that there is no infirmity in the findings returned by the first appellate court by the impugned common judgment and hence, both the appeals are dismissed for being bereft of merit. Draw the decree accordingly and send down the LCRs thereafter.

JUDGE A. Ghosh RSA. No. 80 of 2011 & RSA. No. 34 of 2012 Page 14 of 14

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Tripura High Court