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Prag Oil Mills Depot Vs. Transport Corporation of India and anr. - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtOrissa High Court
Decided On
Case NumberSecond Appeal No. 39 of 1975
Judge
Reported inAIR1978Ori167; 46(1978)CLT89
ActsCode of Civil Procedure (CPC) , 1908 - Sections 20 and 99 - Order 6, Rules 14 and 15 - Order 30, Rule 1
AppellantPrag Oil Mills Depot
RespondentTransport Corporation of India and anr.
Appellant AdvocateS.C. Sinha, Adv.
Respondent AdvocateM. Patra, ;K.C. Panda and ;B. Misra, Advs. (R. 2)
DispositionAppeal allowed
Cases Referred(Radha Kishen v. Wali Md
Excerpt:
.....but who on account of misinterpreting a certain deed is under the impression in good faith that he is duly authorised, as in thig case, the plaint cannot be rejected under order 7, rule 11. the defect is a mere irregularity, and does not affect the jurisdiction of the court, and can be cured by the party or his duly authorised agent signing and verifying it. it is well settled that where more than one court have jurisdiction to entertain a suit, the parties by agreement can restrict the forum of institution of the suit to one of such courts. ' no importance or credit can be attached to that sentence in view of the other facts on record stated above which clearly indicate that the said statement in cross-examination is incorrect. in the written statement it was stated that the..........the finding of both the courts below that there was shortage of 68 pieces of washing soap in the suit consignment, and the admitted facts that no shortage certificate was granted to the plaintiff by defendant no. 2 and consignment in question was not delivered to the plaintiff, the lower appellate court was not justified in granting a decree only for rs. 4.15 paise with proportionate costs.in this case admittedly the consignment was never delivered to the plaintiff. admittedly the plaintiff paid the freight for the consignment to defendant no. 2, but it did not take delivery of the consignment. the plaintiff's case for not taking delivery of the consignment is that some of the packing cases were found in a broken and damaged condition in the godown of defendant no. 2 and on suspicion.....
Judgment:

S. Acharya, J.

1. The plaintiff has preferred this appeal.

2. The plaintiff is a registered partnership firm carrying on business at Cut-tack with its head office at Aligarh. Defendant No. 1 is a common carrier who carries on business of transporting goods on hire or on payment of freight. Defendant No. 2 is the Cuttack branch of defendant No. 1. One M/s. Jethmal Ramkumar of Ranchi despatched 14 cases of washing soap through the defendants under receipt No. 9967 dated 27-5-71 for delivery of the same to the plaintiff at Cuttack. The plaintiff paid Rs. 93.30, the freight for transporting the said washing soap, to defendant No. 2 under money receipt No. 44621 on 11-6-71. Soon thereafter the plaintiff's man went to the godown of defendant No. 2 to take delivery of the said consignment. The facts stated so far are not disputed.

3. The plaintiff's case in short is that in the defendant's godown the plaintiff's man found some of the packing cases in completely broken condition and a substantial portion of the contents therein had been pilfered or removed. So he insisted on the defendants' employees for open delivery of the said goods and to grant a shortage certificate as per the actual delivery. But as the defendants' men refused to grant any shortage certificate, the plaintiff's man had to come back without taking delivery of the said goods. Thereafter the plaintiff itself or its lawyer sent registered letters to the defendants' firm at Cuttack asking the latter to give open delivery of the said goods and to pay damages for the actual shortage, but defendant No, 2, instead of giving open delivery of the articles to the plaintiff, gave evasive replies and directed the latter to take delivery of the goods as they were on payment of demurrage, wharfage and other charges and to contact the different offices of the defendants at different places as the defendants did not deliver the goods to the plaintiff by taking evasive pleas, the plaintiff was obliged to file the present suit.

4. Defendant No. 1 did not contest the suit and was set ex parte.

Defendant No. 2 in its written statement refuted all the averments in the plaint. According to this defendant, the plaintiff's allegations are all baseless and false; the consignment in question was in perfect condition and there was absolutely no breakage of or shortage in the same. It is also stated in the written statement that as per the terms and conditions mentioned in the consignment note (Ext. E) of the Transport Corporation of India on which the goods were consigned only a Civil Court in the city of Calcutta has the jurisdiction to entertain any suit in respect of any claim arising under that receipt, and the Civil Court at Cuttack has no jurisdiction to entertain any suit in this connection,

5. The trial court found that a consignment worth Rs. 700/- had been despatched by M/s. Jethmal Ramkumar of Ranchi to the plaintiff. A shortage of 68 pieces of washing soap was detected in the said consignment when it was in the defendant's godown at Cuttack. But defendant No. 2 did not grant any shortage certificate to that effect to the plaintiff though the plaintiff was entitled to the same. It found that the plaintiff was to get damages from the defendants only in respect of the said 68 pieces of washing soap, and its claim of Rs. 1400/- was not justified. After arriving at the said findings it at last held that in view of the terms of the contract between the parties in this respect, as seen from the consignment note Ext. E, the plaintiff's suit in respect of this matter was cognizable only in a civil court in Calcutta and not in any court at Cuttack. On the above ground of lack of jurisdiction of the court the suit was dismissed,

6. The appellate court has found that the Civil Court at Cuttack, within whose jurisdiction the cause of action arose in its entirety and where the contesting defendant resided and carried on business, has jurisdiction to try this suit and the plaintiff is not bound by condition No. 17 on the consignment note Ext. E. Accepting the finding of the trial court that a shortage of only 3 kgs. of washing soap was detected at the defendants' godown at Cuttack, it finds that defendant No, 2 was prepared to grant a shortage certificate to that effect if the plaintiff took delivery of the consignment on payment of the demurrage and other charges accrued due till that date, and the plaintiff was not justified in refusing to take delivery of the consignment on payment of the said charges. On the finding of the shortage of 3 kgs. in the said consignment the court below has granted a decree only for Rs. 4.15 Paise with proportionate costs throughout against the defendants.

7. At the outset Mr. Patra, the learned counsel for respondent No. 2, urged that the suit was liable to be dismissed as the plaint was not signed or verified in accordance with law. In the written statement the maintainability of the suit on this ground was not challenged. This point was also not agitated in the trial or in the first appellate court. The plaintiff no doubt is a partnership firm. Therefore, under Order 30, Rule 1, C.P.C. the plaint should have been signed and verified by all or any one of the partners of the said firm. As per Rule 14 of Order 6, C. P. C. if a party pleading is, by reason of absence and for other good causes, unable to sign the pleadings as per the rule to that effect, then the pleadings in his behalf may be signed by any other person duly authorised by him to sign the same or to sue or defend on behalf of the former. As per Rule 1 of Order 30, the plaint in this case should have been signed by one of the partners. So under Rule 14 of Order 6 any person duly authorised by one such partner of the firm can sign the plaint or can also sue on behalf of the firm. If because of the word 'shall' in sub-rule (2) of Rule 1 of Order 30 it is said that the provision thereof is mandatory, as urged by Mr. Patra, then the provisions of Rules 14 and 15 of Order 6 will become inapplicable to suits filed in the names of firms, for which proposition there is no sanction in the Code. That apart, Mr. Patra's proposition would lead to hard and unneces--sarily inconvenient consequences for suits by or against such firms.

In this case the plaint has been signed and verified by Tarachand Agarwal who was the manager and power of attorney holder of the plaintiff at the relevant time. That being so, the non-signing of the plaint by one of the partners of the firm is not such a defect as to entail the dismissal of the suit on that ground. Neither in the trial court nor in the appellate court the above question was raised. The trial court could have returned the plaint to the plaintiff for proper presentation if the above objection would have been raised in that court. Moreover, nothing was or even now is suggested to show that on account of the presentation of the plaint by the manager of the firm the defendants have any way been prejudiced in this case, or it has resulted in failure of justice.

In the decision reported in AIR 1954 SC 340 (Kiran Singh v. Chaman Faswan) their Lordships have observed (at p. 342):--

'......when a case had been tried by a a Court on the merits and judgment rendered, it should not be liable to be reversed purely on technical grounds, unless it had resulted in failure of justice, and the policy of the legislature has been to treat objections to jurisdiction both territorial and pecuniary as technical and not open to consideration by an appellate Court, unless there has been a prejudice on the merits.'

In the decision reported in AIR 1956 Hyd 133 (Radha Kishen v. Wali Md), Bilgrami, J. has observed as follows (at p. 135):--

'The plaint cannot be rejected under this rule merely because it is in some way defective, or not strictly in accordance with law. It is true that the grounds for rejection given in Order 7, Rule 11 are not exhaustive, and the plaint can be rejected for reasons not specified in Clauses (a) to (d) of Rule 11, but then, defect for which it is rejected should not be such as is curable by amendment, and nothing more than an error of procedure.

To my mind if the plaint has been signed by a person not duly authorised, but who on account of misinterpreting a certain deed is under the impression in good faith that he is duly authorised, as in thig case, the plaint cannot be rejected under Order 7, Rule 11. The defect is a mere irregularity, and does not affect the jurisdiction of the Court, and can be cured by the party or his duly authorised agent signing and verifying it.'

Moreover, the above defect, if it is at all a defect, does not affect the merits of the case or the jurisdiction of the court to try the suit, and so the decision in the suit cannot be set aside on that account. Section 99, C. P. C. provides as follows :--

'No decree to be reversed or modified for error or irregularity not affecting merits or jurisdiction.

No decree shall be reversed or substantially varied nor shall any case be remanded in appeal on account of any misjoinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court.'

On the above considerations I hold that the above contention of Mr. Patra is without any merit.

8. It was next urged by Mr. Patra that in view of condition No. 17 printed on the back side of the consignment note (Ext. E) it was incumbent on the plaintiff to institute the suit in a competent court in Calcutta, and that the Cuttack Court had no jurisdiction to entertain this suit.

In this case it is at first to be noted that the aforesaid condition No. 17 in Ext. E cannot be said to be a part of any contract between the parties to the suit as there is no proof of the fact that the plaintiff at any time had agreed to the said term.

Apart from that fact, the consignment in question was handed over by the consignor to the defendant-company at Ranchi for transporting the goods to Cut-ack and for delivering the same to the consignee at Cuttack. Accordingly, a part of the cause of action arose within the jurisdiction of a competent court at Ranchi, and another part arose within the jurisdiction of a competent court at Cuttack. Accordingly, Under Section 20(c), C. P. C. the competent court at Ranchi or Cut-ack has jurisdiction to try this suit. Under Section 20(a) C. P. C. a suit can also be instituted in a Court within the local limits of whose jurisdiction the defendant, or each of the defendants, where there are more than one at the time of the commencement of the suit, actually or voluntarily resides or carries on business or personally works for gain. The defendant-company comes within the word 'corporation' in Explanation 2 attached to Section 20, C. P. C., and as per that explanation it should be deemed that the defendant-company is carrying on business at its sole or principal office in India or, in respect of any cause of action arising at any place where it has also a subordinate office at such place. Therefore, a suit relating to any matter arising out of the consignment in question could have been instituted in a competent Court in Ranchi, Cuttack or in a Court at a place where the defendant-company has its sole or principal office. It is well settled that where more than one court have jurisdiction to entertain a suit, the parties by agreement can restrict the forum of institution of the suit to one of such courts. But the parties by agreement cannot confer jurisdiction on a court which has no inherent jurisdiction to entertain a suit. There is nothing on record to show that any civil court in Calcutta had, on any legal consideration, jurisdiction over this suit. In the plaint the address of defendant No. 1, i. e. the company itself, is shown as 'Umsohsum Road Shillong.' At the top of Ext. E, the consignment note, it is stated that the registered office of the defendant-company is at 'Umsohsum Road, Shillong.' In none of the documents exhibited on behalf of the defendants, or in the written statement filed by defendant No. 2, there is anything to indicate that the defendant-company had its sole or principal office in Calcutta at the relevant time. In Exts. 3 and C, two of the letters written on behalf of defendant No. 2 to the plaintiff, it is stated that the Record and Claim Office of the defendant-company is at Secunderabad in Andhra Pradesh. D W. 1, an officer of the defendants and the only witness examined on their behalf, did not state in his examination-in-chief that the company had its sole or principal office in the city of Calcutta. Both the courts below have arrived at the concurrent finding that Calcutta is in no way connected either with the plaintiff or with any of the defendants. No cause, of action in respect of the matter in question arose in any manner in Calcutta. D. W. 1 in a short and solitary sentence, appearing out of context in his cross-examination, has of course stated that-- 'Our head office is at Calcutta.' No importance or credit can be attached to that sentence in view of the other facts on record stated above which clearly indicate that the said statement in cross-examination is incorrect.

Apart from the above consideration, defendant No. 1 has not entered appearance in this suit. Defendant No. 2, the Cuttack Branch of the said company, is only contesting the suit. The cause of action of this suit directly arose at Cuttack. The actual facts in connection with the matter in question were known only to the men and officers of the plaintiff and defendant No. 2 who dealt with the said matter at Cuttack. Therefore, on the ground of balance of convenience also this suit was properly instituted in a competent court at Cuttack having inherent jurisdiction to entertain this suit.

On the above considerations the aforesaid contention about lack of jurisdiction of the court which tried the suit is without any weight or substance.

9. It was contended by Mr. Sinha, the learned counsel for the appellant, that in view of the finding of both the courts below that there was shortage of 68 pieces of washing soap in the suit consignment, and the admitted facts that no shortage certificate was granted to the plaintiff by defendant No. 2 and consignment in question was not delivered to the plaintiff, the lower appellate court was not justified in granting a decree only for Rs. 4.15 Paise with proportionate costs.

In this case admittedly the consignment was never delivered to the plaintiff. Admittedly the plaintiff paid the freight for the consignment to defendant No. 2, but it did not take delivery of the consignment. The plaintiff's case for not taking delivery of the consignment is that some of the packing cases were found in a broken and damaged condition in the godown of defendant No. 2 and on suspicion of shortage due to pilferage of the ariticles from inside the said broken packing cases the plaintiff's man demanded a shortage certificate by actual weighment of the consignment as it was then in the godown. On behalf of the defendant No. 2, two conflicting cases were made out, one in the written statement and the other at the hearing of the suit. In the written statement it was stated that the consignment was in perfect condition in all respects, without any signs of damage or breakage, and there was no chance or possibility of any pilferage from the said consignment. Having said so in the written statement, D. W. 1, the only witness examined on behalf of defendant No. 2, has admitted in his examination-in-chief itself that when the plaintiff's representative informed him that some of the packing cases were in a broken condition, physical verification of the consignment was made, and it was found that some of the nails on the packing cases had been removed or broken. He further admitted that as the plaintiff's representative suspected pilferage from the packing cases the consignment was weighed and shortage of 3 kgs. therefrom was detected. In the letters sent by defendant No. 2 to the plaintiff's advocate there is also admission of the above facts. It is asserted in the plaint and also in the deposition of P. W 1. the manager of the plaintiff, that the plaintiff's agent did not take delivery of the consignment as the defendant's man did not issue any shortage certificate even though the packing cases were found in a broken and damaged condition. On the admitted fact that some of the packing cases of the consignment had been damaged and some shortage of the contents therein was actually detected, it wfas incumbent on the defendants to issue a shortage certificate in favour of the plaintiff indicating therein the actual shortage in the said consignment. There is no documentary evidence to show that shortage certificate was actually given or even offered to the plaintiff's agent on the date he paid the freight for the said consignment and wanted to take delivery of the same. The uncorroborated testimony of D. W. 1 that a shortage certificate was offered to the plaintiff's agent on that date does not inspire confidence, specially in view of the contradictory stand taken by defendant No. 2 in its written statement that there was absolutely no damage, shortage or pilferage in the said consignment. On the materials on record I am convinced that no shortage certificate was issued by defendant No. 2 in favour of the plaintiff on 11-6-1971 though shortage actually was detected in the consignment and the plaintiff's agent insisted on such a certificate for taking delivery of the said consignment in that condition.

From the letters exchanged between the plaintiff and/or his lawyer and defendant No. 2, which are on record, it is quite evident that defendant No. 2 always insisted that a certificate of facts would be granted to the plaintiff only if the latter took delivery of the consignment on payment of demurrage, wharfage and labour expenses. As the shortage certificate demanded by the plaintiff's agent on 11-6-1971 was not given to him on that date on the admitted fact of shortage in the said consignment and the plaintiff's agent was ready and willing to take delivery of the consignment on that date if the shortage certificate had been granted at that time, it was not legal and proper on the part of defendant No. 2 to demand payment of demurrage, wharfage and labour expenses from the plaintiff for giving delivery of the consignment with a shortage certificate on a later date. On 11-6-1971 the plaintiff was entitled to take delivery of the consignment as all charges in respect of that consignment had already been paid by the plaintiff to defendant No. 2. The plaintiff's agent did not take delivery of the consignment only because a shortage certificate of the admitted shortage was not given to him. The non-delivery of the consignment was therefore occasioned due to the refusal of defendant No. 2 to grant the shortage certificate. The uncorroborated testimony of D. W. 1 for the first tune during his examination in court that shortage of only 3 kgs. was detected in the said consignment on 11-6-1971 does not inspire confidence specially in view of defendant No. 2's total denial in its written statement of any shortage in or any damage of the said consignment and absence of any documentary evidence supporting D. W. 1's statement to the above effect. Apart from that fact, defendant no. 2 having refused to furnish any shortage certificate to the plaintiff on 11-6-1971 could not, in the facts and circumstances of this case, have demanded demurrage, wharfage and labour expenses for retaining the goods in its godown after 11-6-1971. Therefore, the persistent demand of defendant No. 2 for payment of wharfage, demurrage and labour charges to release the consignment in question was uncalled for and illegal, and so the plaintiff was justified in not taking delivery of the consignment on payment of the said illegal charges demanded from it. As the non-delivery of the consignment resulted only due to the aforesaid illegal demand, the defendants have to pay to the plaintiff at least the price of the said consignment together with the freight paid on the same with interest. The value of the goods in the consignment as is seen from Ext. E, the consignment note, was Rs. 700/-. Admittedly, the plaintiff paid Rs. 93.90 to defendant No. 2 on 11-6-1971 towards freight and other charges on the said consignment. There is no evidence on record regarding other loss or expenses incurred by the plaintiff due to the non-delivery of the said consignment. Therefore, the plaintiff is entitled to a decree for realisation of the aforesaid two amounts (Rs. 700/- + Rs. 93.90), i. e. Rs. 793.90, with interest thereon at the rate of 6 per cent per annum from 11-6-1971 up to the date of realisation of the same from the defendants. A decree in favour of the plaintiff-appellant be drawn up accordingly.

10. The appeal, therefore, is allowed, with costs.


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