Madras High Court
M/S.Haytrans (India) Ltd vs M/S.Amrit Se Air Express Pvt. Ltd on 30 November, 2017
Author: D.Krishnakumar
Bench: D.Krishnakumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 30.11.2017 CORAM THE HONOURABLE MR. JUSTICE D.KRISHNAKUMAR S.A.No.306 of 2014 and M.P.No.1 of 2014 M/s.Haytrans (India) Ltd., Rep.by Mr.Kumar, Accounts Manager, Carrying on business at New No.2, Old No.33, 9th Lane, Dr.Radhakrishnan Salai, Mylapore, Chennai-600 004. ... Appellant Vs 1. M/s.Amrit Se Air Express Pvt. Ltd., Rep. by its Branch Manager, Having its Registered Office at No.221, Sant Nagar, East of Kailash, New Delhi-110 065, Having its Branch Office at No.75/3A, Giriappa Road, T.Nagar, Chennai-600 017. 2. M/s.Marine Logistic Carrying on business at No.6, 4th Floor, Old No.130, Thambu Chetty Street, Chennai-600 001. ... Respondents Prayer: Second Appeal filed under Section 100 of C.P.C., against the judgment and decree dated 06.11.2012 made in A.S.No.252 of 2012 on the file of the I Additional District Judge, City Civil Court, Chennai, confirming the Original Judgment and Decree dated 13.09.2011 made in O.S.No.9098 of 2008 on the file of the III Assistant Judge, City Civil Court, Chennai. For Appellant : Mr.R.S.Varadarajan For 1st Respondent : Mr.S.Thankasivan for Mr.S.Dharsaiya For 2nd Respondent : Mr.B.Manimaran J U D G M E N T
The respondent herein has filed a suit in O.S.No.9098 of 2008 before the III Assistant Judge, City Civil Court, Chennai for recovery of Rs.9,52,281/- together with interest at the rate of 18% per annum from the date of plaint till the date of realisation.
2. In the aforesaid suit, the appellant/1st defendant has filed written statement wherein the appellant specifically denied the contract said to have been entered into between the 1st defendant and the plaintiff. The 2nd respondent/2nd defendant also filed written statement before the court. After examining the evidence of both sides, the trial court has decreed the suit in favour of the 1st respondent/plaintiff. Challenging the aforesaid judgment and decree, the 1st defendant has filed an appeal in A.S.No.252 of 2012 before the V Additional Court, City Civil Court, Chennai. The aforesaid appeal suit was dismissed. Challenging the aforesaid judgment and decree, the appellant/1st defendant has filed this second appeal before this Court.
3. In the second appeal, the following question of law has been raised by the appellant:
(a) Are the Courts below correct in decreeing the suit against the 1st and 2nd defendants jointly and severally on the grounds that the Appellant/1st Defendant did not adduce evidence to disprove the claim of the 1st Respondent/Plaintiff inspite of the fact that P.W.1 deposing for 1st Respondent/Plaintiff categorically admitted in cross examination that the Plaintiff's claim was only against the 2nd Defendant for double payment made and that they had no claim against the Appellant/1st Defendant, which admitted fact is not required to be proved by the Appellant as per Section 58 of the Evidence Act ?
4. According to the learned counsel for the appellant, the 1st appellant/1st defendant had filed the detailed written statement in the aforesaid suit. It is the specific case of the appellant/1st defendant that there is no privity of contract between the plaintiff and the 1st defendant. The 1st defendant did not entrust any containers to the plaintiff and there is no contract entered between the plaintiff and the 1st defendant. It is only the 2nd defendant/respondent dealing with the plaintiff. In this regard, there is no specific denial on the part of the plaintiff refuting the allegation. According to the appellant, P.W.1 in the witness box admitted that no relief has been sought for against the 1st defendant/appellant herein and therefore the suit against the 1st defendant is liable to be dismissed. Further, the counsel for the appellant also drawn the attention of this Court on relying upon the evidence of PW1. On perusal of the deposition of PW1, wherein, PW1 has stated as follows:-
1k; gpujpthjpaplk; ,Ue;J eh';fs; ,uz;lhk; Kiw jtWjyhf brYj;jpajw;fhd bjhif jpUg;gp nfl;ljw;fhd Mjhuk; ,e;j tHf;fpy;
jhf;fy; bra;atpy;iy vd;why; rhpjhd;/ 1k; gpujpthjpaplk; ,Ue;J eh';fs; 18 fz;bla;dUf;fhd fl;lzk; nfl;ftpy;iy/ 17 fz;bla;dUf;fhd fl;lzk; jhd; nfl;Ls;nshk;/ th/rh/4 go eh';fs; jhf;fy; bra;j tpjk; cs;s 17 fz;bla;dUf;fhd fl;lzk; 1k; gpujpthjp 2k; gpujpthjpf;F brYj;jptpl;lhh; vd;w tptuk; cs;sJ/ v';fSila Mtzg;go v';fsplk; 1 fz;bla;dUf;fhd fl;lzk; 2k; gpujpthjpaplk; 17 fz;bla;dUf;fhd fl;lzKk; Mf 18 fz;bla;dUf;fhd fg;gy; bjhif 1k; gpujpthjp brYj;jptpl;lhh; vd;why; rhpjhd;/ nkYk; th/rh/5 y; 2k; gpujpthjp v';fSf;F mDg;gpa fojj;jpy; 1k; gpujpthjpaplk; ,Ue;J 17 fz;bla;dUf;fhd ruf;F fl;lzj;ij tNy; bra;J tpl;lhh; vd;W cs;sJ vd;why; rhpjhd;/ /////// //////////////////////////////////////////////////////////////////////////// eh';fs; cz;ikapy; o2tplk; ,Ue;J 17 fz;bla;dUf;fhfj; jhd; nfl;fpnwhk; mjw;Fj; jhd; ,e;j tHf;F/ Mifahy; ,e;j tHf;F o1f;F vjpuhf ve;j ghpfhuKk; nfl;ftpy;iy vd;why; rhpjhd;/ v';fSf;Fk; 1k; gpujpthjpf;Fk; xg;ge;jk; VJk; ,y;yhj epiyapy; mth;fSf;F vjpuhf v';fs; tHf;F epiy epw;f jf;fJ vd;why; rhpay;y/
5. The trial court while deciding the issue No.3, viz., whether there is any privity of contract between the plaintiff and the 1st defendant, failed to consider the evidence of PW1, wherein PW1 admitted that there is no relief sought for against the 1st defendant. On the contrary, the trial court has simply rejected the case of the 1st defendant/appellant that the appellant/1st defendant has not entered into the witness box and adduce evidence in respect of Ex.A2 and decreed the suit in favour of the respondent/plaintiff. The said judgment also confirmed by the appellate court without considering the burden of proof lies on the plaintiff and the plaintiff himself adduced evidence in favour of the 1st defendant.
6. The learned counsel for the respondent vehemently contended that the evidence of PW1 clearly shows that the relief against the defendants are jointly and severally responsible to pay the aforesaid amount. Both the courts are concurrently held in favour of the respondent/plaintiff that the plaintiff is entitled to recover the said amount jointly and severally. Therefore, the second appeal is liable to be set aside.
7. Heard the learned counsel for the appellant and the learned counsel for the respondents and perused the materials available on record.
8. It is seen from the evidence of PW1, during cross-examination, P.W.1 categorically stated that :
''1k; gpujpthjpaplk; ,Ue;J eh';fs; ,uz;lhk; Kiw jtWjyhf brYj;jpajw;fhd bjhif jpUg;gp nfl;ljw;fhd Mjhuk; ,e;j tHf;fpy;
jhf;fy; bra;atpy;iy vd;why; rhpjhd;/ 1k; gpujpthjpaplk; ,Ue;J eh';fs; 18 fz;bla;dUf;fhd fl;lzk; nfl;ftpy;iy/ 17 fz;bla;dUf;fhd fl;lzk; jhd; nfl;Ls;nshk;/ th/rh/4 go eh';fs; jhf;fy; bra;j tpjk; cs;s 17 fz;bla;dUf;fhd fl;lzk; 1k; gpujpthjp 2k; gpujpthjpf;F brYj;jptpl;lhh; vd;w tptuk; cs;sJ/ v';fSila Mtzg;go v';fsplk; 1 fz;bla;dUf;fhd fl;lzk; 2k; gpujpthjpaplk; 17 fz;bla;dUf;fhd fl;lzKk; Mf 18 fz;bla;dUf;fhd fg;gy; bjhif 1k; gpujpthjp brYj;jptpl;lhh; vd;why; rhpjhd;/ nkYk; th/rh/5 y; 2k; gpujpthjp v';fSf;F mDg;gpa fojj;jpy; 1k; gpujpthjpaplk; ,Ue;J 17 fz;bla;dUf;fhd ruf;F fl;lzj;ij tNy; bra;J tpl;lhh; vd;W cs;sJ vd;why; rhpjhd;/ /////// //////////////////////////////////////////////////////////////////////////// eh';fs; cz;ikapy; o2tplk; ,Ue;J 17 fz;bla;dUf;fhfj; jhd; nfl;fpnwhk; mjw;Fj; jhd; ,e;j tHf;F/ Mifahy; ,e;j tHf;F o1f;F vjpuhf ve;j ghpfhuKk; nfl;ftpy;iy vd;why; rhpjhd;/ v';fSf;Fk; 1k; gpujpthjpf;Fk; xg;ge;jk; VJk; ,y;yhj epiyapy; mth;fSf;F vjpuhf v';fs; tHf;F epiy epw;f jf;fJ vd;why; rhpay;y/
9. Further, it is very clear from the written statement that the 1st defendant has denied the contract said to have been entered in to between the plaintiff and the 1st defendant. The plaintiff has not denied the above statement made in the written statement. Therefore, in the light of the provisions of C.P.C., and also in the light of the decision of the Hon'ble Supreme Court it is held that when there is no denial on the part of the plaintiff which amounts to the statement made by the defendant deemed to have been accepted by the plaintiff. Further, at the time of deposition, the plaintiff himself admitted that there is no relief sought against the 1st defendant. Therefore, the judgment passed by the courts below are liable to be set aside.
10. In the light of the above facts, the judgment and decree passed by the court below are set aside in sofar as the 1st defendant/appellant is concerned, it is made clear that the 1st respondent can proceed the decree against the second defendant in the suit, it is admitted, since the 2nd respondent has not preferred any appeal, the said decree has become final. The question of law framed in the second appeal is answered in favour of the appellant.
11. In view of the above, this second appeal succeeds and the same is allowed. No costs. Consequently, connected miscellaneous petition is closed.
30.11.2017 Index:Yes / No Speaking/Non-speaking Order ssn To
1. The I Additional District Judge, City Civil Court, Chennai.
2. The III Assistant Judge, City Civil Court, Chennai.
D.KRISHNAKUMAR, J., ssn S.A.No.306 of 2014 and M.P.No.1 of 2014 30.11.2017