IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF JULY, 2019 BEFORE THE HON’BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY R.F.A.No.1187 OF 2011 BETWEEN:
M/s. Adarsha Packaging Pvt. Ltd., A company registered under the Indian Companies Act, 1956, P.O. Box No.6802, Chicka Begur Gate, Hosur Main Road, Bengaluru-560 068, Rep. by its Managing Director.
(By Sri.H. Ramachandra, for Sri. H.R.Ananthakrishnamurthy and Associates) AND:
M/s. Trans India International Ltd., A Company registered under the Indian Companies Act, 1956, Zonal Office, Swathi Complex, 1st Main Road, 2nd Block (Next to Textile Co-operative Bank), Sudhamanagar, Bengaluru-560 027.
…Appellant (By Sri. R. Anandkumar, for Sri. Sundaramurthy and Sundaramurthy, for Caveator/Respondent) …Respondent **** This Regular First Appeal is filed under Section 96 of the Code of Civil Procedure, 1908, against the judgment and decree dated:30-03-2011 passed in O.S.No.7284/2003 on the file of the XXXI Additional City Civil Judge, Bangalore City, (CCH No.14), dismissing the suit for recovery of money.
This Regular First Appeal coming on for Hearing this day, the Court delivered the following:
J U D G M E N T This is a plaintiff’s appeal. The appellant had instituted a suit against the present respondent in the Court of the XXXI Additional City Civil Judge, Bangalore City (CCH-14) (hereinafter for brevity referred to as “Trial Court”) in O.S.7284/2003 for recovery of a sum of `89,887-50 with interest at the rate of `18% per annum thereupon.
2. The summary of the case of the plaintiff in the Trial Court was that, the plaintiff is a manufacturer of packaging materials. It had consigned 670 printing corrugated boards for its transport from Bengaluru to Noida with the defendant Company which is a transport operator. The goods were valued for a sum of `52,260/- and were delivered to the defendant on 19-02-1999, who raised a consignment note in that regard bearing No.14935. The consignee - M/s. BPL Ltd. was in urgent need of these goods, as such, it had requested the defendant to deliver the goods as early as possible.
It was informed by M/s. BPL Ltd. by its letter dated 08-10-1999 to the plaintiff that they have not accepted the goods tendered to them by the defendant since there was delay in delivery of the goods. The said consignee - M/s. BPL Ltd. has stated that the goods were offered for its delivery to it only on 19-09-1999, after delay of seven months. As such, it has returned the goods without accepting the delivery of the same.
The plaintiff has further contended that it brought the same to the notice of the defendant, who agreed to refund the value of the goods at `52,260/-, however, it postponed the payment. Despite issuance of legal notice, since the defendant did not meet the demand, the plaintiff was constrained to institute a suit for recovery of money from the defendant.
3. In response to the summons served upon it, the defendant - Company appeared through its counsel and filed its Written Statement where it has denied all the plaint averments. However, it stated that it had tendered the goods for delivery on 26-02-1999, but the same was refused by the Stores Officer of the consignee - Company and thereafter the defendant immediately addressed a letter dated 27-02-1999 to the plaintiff informing about this fact. The defendant stated that there was no delay on its part in transporting the goods. However, it was the consignee who refused to accept the delivery of the goods. The defendant denied its liability to pay any amount to the plaintiff much less a sum of `52,260/-. On the contrary, it contended that the goods are stored in the store house of the defendant Company and the plaintiff can collect those goods which are in good condition after paying the demurrage and storage charges. The defendant more specifically contended that the suit was hopelessly barred by limitation. It also stated that it was not issued with any notice under Section 10 of the Carriers Act by the plaintiff before institution of the suit.
4. Based on the pleadings of the parties, the Trial Court framed the following issues for its consideration:-
“1) Whether the plaintiff proves that the defendant was under obligation to transport 670 corrugated boards manufactured by them to the consignee, i.e. M/s. BPL Ltd., C-33, Phase II, Noida- 201305, Dist. Gaziabad, U.P. vide invoice No.1181? dated 19.2.99 as early as possible?
2) Whether the plaintiff further proves that the defendant made delayed delivery to the said consignee on 19.9.99?
3) Whether the defendant proves that the consignee, i.e. M/s. BPL Ltd., is a necessary party?
4) What order or decree?”
In order to prove its case, the plaintiff Company got examined one Sri. C. Vijayakumar as PW-1 and got marked documents at Exs.P-1 to P-10. On behalf of the defendant Company, one Sri. M.M. Usman Ali was examined as DW-1 and documents from Exhibits D-1 to D-3 were got marked.
5. After hearing both sides, the Trial Court in its judgment and decree dated 30-03-2011 while answering issue Nos.1 and 2 in the ‘affirmative’ and issue No.3 in the ‘negative’, dismissed the suit of the plaintiff as not maintainable, as barred by limitation. It is against the said judgment and decree, the plaintiff has preferred this appeal.
6. The Lower Court records were called for and the same are placed before this Court.
7. Heard the arguments of the learned counsel for appellant, learned counsel for the respondent and perused the material placed before this Court including the memorandum of appeal and the impugned judgment.
8. For the sake of convenience, the parties would be henceforth referred to with the ranks they were holding before the Trial Court respectively.
9. Learned counsel for the appellant/plaintiff in his argument submitted that the Trial Court has committed an error by dismissing the suit as barred by limitation, without there being any issues framed regarding limitation.
He further submitted that, it is Article 15 of Schedule I of the Limitation Act, 1963 that is applicable, but not Article 11 of the said Act.
He also submitted that Ex.D-3 is a concocted document and it had never been served upon the plaintiff muchless on the date shown upon it.
In support of his submission that the suit instituted by the plaintiff was not barred by limitation, learned counsel relied upon two judgments of the Co-ordinate Benches of this Court, one rendered in the case of Ananth Agarbathi Co. Vs. East India Transport Agency reported in MANU/KA/0655/2004 and another unreported judgment in the case of National Seeds Corporation Ltd. Vs. M/s. Economic Transport Organisation in R.F.A.No.32/1999 disposed of on 21-01-2003.
10. Per contra, learned counsel for the respondent/defendant in his argument submitted that as per Ex.D-3, the goods were delivered to the consignee on 26-02-1999. However, even if Ex.D-3 is discarded and not accepted, still, even according to the plaintiff, the goods were tendered for delivery on 19-09-1999, which is evident from the letter of the consignee M/s. BPL Ltd. which is marked as Ex.P-5. If at all the plaintiff Company intended to institute the suit, it should have filed the same within three years from the said date and since the suit has been filed much later on, the Trial Court has rightly dismissed the suit of the plaintiff as not maintainable.
Learned counsel further submitted that, no notice under Section 10 of the Carriers Act was issued and served upon the defendant, as such also, the suit of the plaintiff was not maintainable.
11. The Trial Court has answered issue Nos.1 and 2 in the ‘affirmative’ thereby holding that the plaintiff has proved that the defendant was under an obligation to transport 670 printed corrugated boards to the consignee i.e. M/s. BPL Ltd. at Noida, vide invoice dated 19-02-1999. It also held that the plaintiff has further proved that the defendant has made a delayed delivery of the said consignment to the consignee on 19-09-1999. The findings of the Trial Court on those issues have not been disputed by the defendant/respondent herein.
12. As submitted by the learned counsel for the defendant/respondent in his argument, he is not challenging the finding of the Trial Court on issue Nos.1 and 2, however, he confines his argument only on the point of limitation.
13. Similarly, learned counsel for the plaintiff/appellant also has canvassed his argument only on the point of limitation. As such, this Court need not re-analyse or re-appreciate the findings of the Trial Court on issue Nos.1 and 2.
14. The first argument of the learned counsel for the plaintiff/appellant is that, Ex.D-3 is not served upon the plaintiff at any point of time and that it is a concocted or created document. He also submitted that the defendant has not produced any telephone bill to show that, over telephone, it had contacted the plaintiff- company about the non-acceptance of the goods by the consignee which was canvassed by the defendant in its letter at Ex.D-3.
15. A perusal of the letter at Ex.D-3 would firstly go to show that, it is a letter addressed by the defendant-company to the plaintiff-company and shown to have been dated 27-02-1999, wherein the defendant has claimed that it had taken the goods consigned in consignment Note No.14935 to the address of the consignee i.e. M/s. BPL Ltd. Noida, however, the concerned Stores Officer there refused to accept their consignment. The plaintiff/consignor was requested to take up the matter at its end and to inform the defendant as to the further action to be taken by it in the matter. The said letter at Ex.D-
3 has been denied and disputed by the plaintiff- company in its evidence as PW-1. in his Examination-in-chief itself, since a reference to the said letter was made by defendant in its Written Statement. However, it is worth to be noticed that, the said document at Ex.D-3 was not confronted to PW-1 in his cross- examination, as such, it was no where suggested to PW-1 in his cross-examination drawing his attention to Ex.D-3 that, any such letter was written by the defendant to the plaintiff.
Secondly, the said letter at Ex.D-3 is dated 27-02-1999 admittedly. Thereafter, the defendant has written a letter to the plaintiff as per Ex.P-2 which is dated 15-07-2000. Had really the defendant written the letter at Ex.D-3 earlier to the said letter at Ex.P-2, then, there should have been necessarily a mention about its earlier letter at Ex.D-3 in its subsequent letter addressed to the plaintiff, at Ex.P-2. However, there is no mentioning about its alleged previous letter at Ex.D-3 in its subsequent letter dated 15-07-2000 at Ex.P-2. This also clearly goes to show that the defendant has not written any such letter in Ex.D-3 to the plaintiff. DW-1 in his cross- examination had admitted that there is no acknowledgement with the defendant to show that the said letter at Ex.D-3 was served to the plaintiff. Had really Ex.D-3 was written by the defendant and sent to the plaintiff, then, being a Company having business transactions, it was expected of it to obtain an acknowledgement for having served a copy of the said letter upon the plaintiff. Further, according to DW-1, the said letter was delivered to the plaintiff by hand. In such an event, it is expected of the defendant to obtain an acknowledgement for having served the said document/letter to the plaintiff. As such also, it has to be necessarily held that Ex.D-3 does not inspire any confidence to believe in it, as such, it cannot be believed that on 27-02-1999, the defendant had informed the plaintiff about the consignee refusing to accept the delivery of the goods.
16. The other document which speaks about the tendering of goods for its delivery by the defendant to the consignee is the document at Ex.P-5. The said document is not disputed from the defendant’s side. Ex.P-5 is a letter by the consignee i.e. M/s. BPL Ltd., Noida written to the plaintiff. In the said letter, the consignee - M/s. BPL Ltd. has clearly and specifically mentioned that the goods sent to it by the plaintiff through the defendant were tendered to it for delivery only on 19-09-1999 i.e.
seven months after the date of invoice, as such, they did not accept the material and returned the same to the transporter. Therefore, the material that is placed in this matter to show the alleged tender of the goods is primarily the letter at Ex.P- 5 which goes to show that an attempt for delivery by the defendant to the consignee was made for the first time only on 19-09-1999. However, for the reason mentioned in Ex.P-5, the consignee - M/s. BPL Ltd. has not accepted the said goods.
17. It is further the case of the plaintiff that, it also got issued a legal notice to the defendant, a copy of which is produced at Ex.P-8. The said legal notice is dated 04-08-2000. The learned counsel for the plaintiff while addressing his argument further mentioned that the postal acknowledgement at Exs.P-9 and P-10 would go to show that the copy of the legal notice was served upon the defendant.
The defendant has denied the receipt of any legal notice alleged to have been sent to it by the plaintiff. Ex.P-8, no doubt, is shown to be a copy of legal notice sent by post calling upon defendant company to pay to it a sum of `52,260/- and interest at the rate of `18% per annum there upon. But no postal receipt is produced to show that the said notice was sent to the addressee. No doubt, the plaintiff has produced two postal acknowledgement cards and got them marked as Exhibits P-9 and P-10. However, PW-1 who has got marked those two Exhibits has nowhere stated as, to depict what he was getting those two documents marked as Exhibits. When a document does not speak about itself as to what it denotes, then, it is necessary for the person producing the said document to explain the context under which he is producing and marking the document in his evidence and what he intends to establish or prove by producing such a document. As such, mere production and marking of a document is not by itself sufficient to hold that in the instant case, there was due service of legal notice upon the defendant. The said view further gets strengthened by the fact that, admittedly, the legal notice is dated 04-08-2000, whereas, both the postal acknowledgement cards are dated 17-05-2000, i.e. nearly three months prior to the date of issuance of the legal notice. It is unimaginable that three months prior to the date of issuance of legal notice, the addressee under the legal notice receives the said legal notice.
Thirdly, though the legal notice at Ex.P-8 is shown to have been sent on behalf of the plaintiff- Company, but it is sent by the Advocate for the plaintiff. As such, naturally, the postal acknowledgement cards ought to have carried on them the address of the sender of the legal notice, i.e. the Advocate of the plaintiff, but not the name and address of the plaintiff Company itself.
18. Added to the above, nothing was elicited in the cross-examination of DW-1 to show that, the said legal notice was served upon the defendant – Company. Not even a bare suggestion in this regard was made to DW-1 in his cross- examination. Therefore, it cannot be held that a legal notice as per Ex.P-8 was served upon the defendant.
19. In the light of the above, when the legal notice under Ex.P-8 was not proved to have been served upon the defendant- Company, the only date upon which the next cause of action accrues to the plaintiff to institute the suit is, the alleged refusal of the goods by the consignee i.e. M/s. BPL Ltd. which was on 19-09-1999. For non- delivery of the goods by a carrier, institution of the suit is required to be made by the consignor or the aggrieved party within three years as required under Article 11 of Schedule I of the Limitation Act, 1963. Though learned counsel for the appellant/plaintiff contends that it is Article 15 that is attracted here, I am not inclined to accept the same for the reason that, Article 15 of Schedule I of the Limitation Act speaks about the price of goods sold and delivered to be paid for, after the expiry of a fixed period of credit. Since in the instant case, it is nobody’s case that the goods were sold to the defendant by the plaintiff much less on credit basis and the case of the plaintiff was that, the goods were entrusted to the defendant for its carriage from Bengaluru to Noida, it is not Article 15, but it is Article 11 of Schedule I of the Limitation Act that applies.
20. Learned counsel for the appellant/plaintiff relied upon a decision of a co- ordinate bench of this Court in the case of National Seeds Corporation Ltd. (supra) and contended that, the suit can be instituted on any date and the defendant is liable to pay the suit claim.
In the said case, the contention of the appellant was that the goods entrusted to the respondent for their transportation which were gunny bags were not at all delivered to the consignee, though it was agreed that it would be delivered at the door of the consignee. Therefore, observing that in the absence of any evidence to show that the defendant had made any attempt to deliver the goods to the plaintiff’s premises, the Court held that the defendant was liable to pay the cost of the gunny bags and also interest on the amount payable including the tax.
The question involved in the present case differs from the one in the case of National Seeds Corporation Ltd. (supra). Here, the question is not about the non- delivery of the goods, but it is about the delayed delivery of goods. As observed above, the goods were tendered for their delivery by the defendant to M/s. BPL Ltd., however, with a delay of seven months. It is for the alleged delay, the consignee has refused to accept the goods stating that, the very purpose of ordering for the purchase of goods has frustrated. Thus, the case on hand since being on a separate and different facts and circumstances of the case, the said judgment in the case of National Seeds Corporation Ltd. (supra) would not enure to the benefit of the appellant/plaintiff.
21. The other judgment relied upon by the learned counsel for the appellant/plaintiff is in the case of Ananth Agarbathi Co. (supra). In the said case, a co-ordinate bench of this Court was pleased to observe with respect to Article 11 of the Limitation Act that, where there is no time fixed for delivery of the consignment, the actual date of delivery should be reckoned for the purpose of limitation.
Relying upon this judgment, learned counsel for the appellant/plaintiff submitted that in the case on hand also, since there was no actual date of delivery of goods, the date of legal notice itself has to be construed as the date of cause of action in computing the period of limitation.
22. The said argument of the learned counsel for the appellant/plaintiff is not acceptable for the reasons that:
[i] According to the plaintiff – Company itself, as pleaded by it in its plaint as well in the evidence as PW-1, the goods were entrusted for their transportation from Bengaluru to Noida and delivered to the defendant on 19-02-1999 making it clear to the defendant/transporter that the goods have to be carried on an urgent basis and there was very much urgency involved. The same is the evidence of PW-1 also who has reiterated that the defendant was informed that the goods were to be delivered on an urgent basis. Thus it is not that the goods can be delivered at any point of time, but it has to be delivered urgently;
[ii] DW-1 in his cross-examination has admitted a suggestion as ‘true’ that for transporting the goods from Bengaluru to Noida, they require seven to eight days’ time. That means the plaintiff – Company itself was aware that the maximum outer limit of time for delivery of the goods from Bengaluru to Noida was seven to eight days, within which period, it was expecting the goods to be delivered to the consignee;
[iii] The letter of consignee i.e. M/s. BPL Ltd., which is at Ex.P-5 goes to show that, it has refused to accept delivery of goods on the ground that there was delayed delivery of the goods. According to the said letter, the goods were tendered to it for delivery only on 19-09-1999, which, according to the author of the said letter, with a delay of seven months after its consignment for transportation by the plaintiff. Thus, by 19-09-1999 itself, the consignee had treated that there was enormous and abnormal delay in delivery of the goods.
In that background, even in the absence of non-mentioning of a specific date or the actual date of delivery, it has to be inferred that, the goods were required to be delivered within seven to eight days and the consignment was entrusted to the defendant by the plaintiff believing that the goods would be delivered to the consignee within the said period of seven to eight days. Further, it was also made known to the defendant that, on an urgent basis the goods were required to be delivered. Therefore, mere non- mentioning of the exact date of the actual delivery of the goods cannot be construed in favour of the plaintiff - Company as giving it a scope to make use of the date under the alleged legal notice as the date of cause of action for it to institute the suit.
In the case of Ananth Agarbathi Co. (supra), the facts of the case was not the question of delayed delivery of goods, but, it was the non delivery or short delivery of goods. Thus, the facts and circumstances of the present case differs from the one in the case of Ananth Agarbathi Co. (supra). Further, even if is accepted that the actual date of delivery would be reckoned for the purpose of limitation, still, according to Ex.P-5, the goods were tendered to it for delivery on 19-09-1999. If three years’ limitation period from the date of 19-09-1999 is taken into consideration, as per Article 11 of Schedule I of the Limitation Act, 1963, then, the said period of limitation expires on 19-09-2002. Whereas the suit in the instant case has been filed on 09-10-2003, which is even after the said alleged actual date of delivery. Therefore, the judgment of the co-ordinate bench in the case of Ananth Agarbathi Co. (supra) would also not enure to the benefit of the appellant/plaintiff. Thus, it is clear that the plaintiff - Company had instituted the suit beyond the period of limitation.
23. In addition to the above, what also cannot be ignored of the fact is that, the plaintiff - Company has not issued any notice to the defendant – Company, which is a carrier regarding non- delivery of the goods which was required to be issued under Section 10 of the Carriers Act, 1865, as this Section was prevailing then. For this reason also, the suit of the plaintiff has to be treated as not maintainable.
24. Even though the learned counsel for the appellant/plaintiff has submitted that, no specific issue was framed regarding the limitation question, but, I am of the view that the existing issues, more particularly, issue No.2 covers the said aspect of limitation and parties have led their evidence covering the aspect of limitation. As such, mere non-framing of a specific issue on the point of limitation would not take away the evidence on the said point which is already on record and the existing issues covering said aspect of limitation is implied with them.
25. The Trial Court after perusing the material placed before it and appreciating the evidence in its proper perspective, since has given an appropriate finding, I do not find any reason to interfere in it.
As such, I proceed to pass the following:-
O R D E R [i] The appeal is dismissed;
[ii] The judgment and decree dated 30-03-2011 passed in O.S.No.7284/2003 by the learned XXXI Additional City Civil Judge, Bangalore City, (CCH No.14), is hereby confirmed;
[iii] There is no order as to costs.
Registry to transmit a copy of this judgment along with the Lower Court records to the concerned Trial Court, without delay.
Sd/- JUDGE BMV*