IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN WEDNESDAY, THE 1ST APRIL 2009 / 11TH CHAITHRA 1931 RSA.No.626 of 2004 (G) ---------------------------- AS.21/2001 of ADDL.SUB COURT, KOCHI-V OS.617/1996 of PRL.M.C., KOCHI .................... DEFENDANTS/APPELLANTS/APPELLANTS ------------------------------------------------- 1. VEEBROS FREIGHT CARRIERS, TRANSPORT CONTRACTORS, VI/1182, STAR JUNCTION, COCHIN-2 REPRESENTED BY ITS PARTNER MR.PREMKUMAR. 2. MR.PREMKUMAR, PARTNER, VEEBROS FREIGHT CARRIERS, TRANSPORT CONTRACTORS, VI/1182, STAR JUNCTION, COCHIN-2. BY ADV. SRI.K.N.SIVASANKARAN SRI.V.V.ASOKAN SRI.SUNIL SHANKER PLAINTIFF/RESPONDENT/RESPONDENT ----------------------------------------------- ESHITA AGENCY, PROPRIETRIX MRS.ASHA GAUR VI/454, BAZAAR ROAD, KOCHI-2, REPRESENTED BY POWER HOLDER MR.KRISHNA DEV GAUR, S/O. DP GAUR, 8/758, SHANTHI NAGAR, KOOVAPADAM, KOCHI-2. ADV. SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE FOR R1 SRI.K.JAYAKUMAR FOR R1 SRI.P.B.KRISHNAN FOR R1 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 01/04/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ R. S. A. No.626 of 2004 ------------------------------------------------ Dated this the 1st day of April, 2009 JUDGMENT The defendants who are a public carrier and one of its Partners who were defendants in O.S.617/96 on the file of the Munsiff's Court, Kochi are the appellants in this RSA, they having lost their defence concurrently in both the courts below. The respondent is the plaintiff. 2. The respondent instituted the suit aforesaid claiming damages from the appellants who are public carriers inter alia on the following allegations:- Plaintiff is a proprietory concern carrying on business as commission agents dealing in rubber, latex etc. and having its office at Kochi and the first defendant is a firm engaged in business as transport contractors with its head office at Kochi and R. S. A. No.626 of 2004 -2- the second defendant is a partner of the first defendant. Plaintiff entrusted with the defendants for transport from Karimba to Bahadurgah 9000 kilograms of rubber on 13/10/94 under Ext.A1 consignment note issued by the second defendant. The consignment was worth Rs.3,23,700/-. As per Ext.A8 notice of the plaintiff, the consignee of the consignment was Indian Overseas Bank, Kochi. The defendant had undertaken to deliver the goods only to the consignee or to the order of the consignee bank. The documents relating to the goods were sent by the plaintiff through their bankers M/s Indian Overseas Bank negotiating the bill with the bank and availing finance. The documents sent through the bank were not retired by the party to whom the goods were despatched namely M/s Manocha Polimers Ltd., New Delhi. The documents were therefore, returned as dishonoured by the R. S. A. No.626 of 2004 -3- plaintiff's bank since payment was not forthcoming. Plaintiff enquired with the defendants, but they were not giving any reply. The goods were however, not available with the defendant at the destination. However, in the meantime, market rate of rubber shot up. The defendants were not able to give delivery of the goods entrusted by the plaintiff. They transferred the goods without permission of the plaintiff or the consignee bank. After constant approach the defendants gave the plaintiff two demand drafts for a total value of Rs.3,23,700/- in lieu of the goods, the said amount being the invoice value of the goods. Those were received by the plaintiff on 02/05/95. The bankers of the plaintiff on return of the documents in relation to the goods debited an amount of Rs.43,899/- as interest and Rs.1,515/- as handling charges to the account of the R. S. A. No.626 of 2004 -4- plaintiff. It affected the reputation of the plaintiff with their bankers adversely and was declined enhancement of credit limit. The defendants though undertook to pay to the plaintiff the loss so incurred, failed to keep up the undertaking. Therefore, plaintiff issued Ext.A4 notice on 30/05/95 to the first defendant, but that was returned unserved. Again on 19/08/95 notice through lawyer was issued to the defendants demanding payment of the amount, but the defendants have not complied with the demand. Further, plaintiff was to receive 'C' form under the Central Sales Tax Act for claiming necessary exemptions; but by reason of the acts of the defendants the plaintiff could not receive the 'C' form from the consignee of the goods at Delhi and this will render them liable to pay tax and penalty. The defendants are therefore, liable to pay the amount with interest at 18% R. S. A. No.626 of 2004 -5- per annum and hence, the suit for realisation of a total amount of Rs.45,414/- with interest, cost etc. 3. The defendants resisted the suit by filing written statement contending that the suit is not maintainable; that they are carriers engaged in business as transporters; that on the representation of the plaintiff goods were accepted on the basis of information conveyed by the consignor; that the value of the goods entrusted is not Rs.3,23,700/- as it was represented by the plaintiff that the consignment is part of a large quantity agreed to be purchased by the consignee; that when the goods reached the destination there was dispute between the consignee and the consignor and the consignee did not honour the document; that the defendants came to understand that the plaintiff refused to despatch the balance R. S. A. No.626 of 2004 -6- goods due to hike in market rate; that after discussion with the plaintiff and the consignee by the defendant, plaintiffs suggested to deliver the materials and collect value of goods through the defendant and accordingly, the defendant delivered the goods and collected demand drafts being the value of the goods transported and sent the same to the plaintiff; that after obtaining the amount and contrary to the assurance, the plaintiff did not return the lorry receipt; that the plaintiff never approached the defendant for taking delivery of the materials and it is incorrect to say that the defendant transferred the goods without permission of the plaintiff or the consignee bank; that the goods were being delivered to the consignee as directed by the plaintiff; that the plaintiff has not suffered any loss on account of the transportation of the consignment by the R. S. A. No.626 of 2004 -7- defendants; that if at all any loss is caused, they have to recover the amount from the consignee; that cause of action if any, is only against the consignee; that the consignee is a necessary party to the suit; that if the bank has debited interest from the account of the plaintiff the plaintiff has to recover such amount from the consignee and the defendants are not liable for the amount; that the allegation that plaintiff has not received 'C' form is absolutely false; that the plaintiff cannot initiate any action against the defendant either for interest alleged to have been paid by him to the bank or by way of sales tax; that the defendant acted only as per the direction of the plaintiff; that the transaction between the parties are based on contract and is not commercial in nature and the suit has to be dismissed. R. S. A. No.626 of 2004 -8- 4. On the above pleadings the trial court raised necessary issues for trial and considering the evidence adduced at trial which consisted of oral evidence of PW1/the power holder of the proprietrix of the plaintiff agency and of DW1 the second defendant and documentary evidence Exts.A1 to A12(a) decreed the suit as prayed for with interest and costs from the defendants and their assets. Appeal filed as A.S.21/01 before the first appellate court by the defendants assailing the decree and judgment so passed by the trial court was dismissed with costs by the first appellate Judge concurring with the findings of the trial court. Hence, this RSA. 5. It is vehemently contended before me by the learned counsel for the appellant that the courts below have concurrently decreed the suit on a wrong appreciation of the nature of the transaction of bill discounting and the R. S. A. No.626 of 2004 -9- rights of parties thereunder; that the consignee ought to have been made a party to the suit as the consignee is a necessary party; that the amounts debited from the account of the plaintiff by their bankers on account of non-honouring of the discounted bill by the consignee at Delhi are not amounts payable by the defendants by way of damages; that as per Ext.A10 agreement executed between plaintiff and the consignee, the plaintiff has ceased to be the owner of the goods despatched to the consignee and that in any event, for want of proper notice under Section 10 of the Carriers Act the suit should have been dismissed. 6. The learned counsel for the appellant has advanced all the above arguments without sufficient materials in evidence to buttress his arguments. The case that is alleged by the respondent/plaintiff in short is only that R. S. A. No.626 of 2004 -10- goods were entrusted with the defendants who are carriers under Ext.A1 lorry receipt dt.13/10/94; that the goods were intended to be delivered over to M/s Manocha Polimers Ltd., New Delhi; that Ext.A9 Hundi drawn by the plaintiff on M/s Manocha Polimers Ltd., New Delhi was discounted with the Cochin branch of the Indian Overseas Bank; that Ext.A9 was returned under Ext.A2 memo on 03/05/95 by the Cochin branch of the Indian Overseas Bank along with Ext.A3 debit advice debiting an amount of Rs.3,69,114/- from the account of the plaintiff; that enquiries made revealed that the goods in the consignment was transferred by the defendants to someone unauthorisedly; that the defendants paid the bill amount of Rs.3,23,700/- by two demand drafts on 02/05/95, but that the amount debited from the account of the plaintiff by their bankers by way of interest amounting to R. S. A. No.626 of 2004 -11- Rs.43,899/- and the further amount of Rs.1,515/- as handling charges are amounts which represent damages suffered by the plaintiff on account of the unauthorised action of the defendants in dealing with the goods contrary to the directions of transporting the same and delivering it to M/s Manocha Polimers Ltd., New Delhi. 7. The liability of the defendants as carriers is absolute, they having admitted having received the goods covered by Ext.A1 lorry receipt for transport and delivery to M/s Manocha Polimers Ltd., New Delhi. The question is only as to whether they have delivered the goods to the said consignee M/s Manocha Polimers Ltd., New Delhi. Apart from the contentions in the written statement and the deposition of DW1, there is absolutely nothing brought out in evidence in the case that as contended by the defendants there was R. S. A. No.626 of 2004 -12- any dispute between the consignee M/s Manocha Polimers Ltd. and the plaintiff in the matter of taking delivery of the goods in the consignment transported under Ext.A1 or that on instructions from the plaintiff they delivered the goods in the consignment to M/s Manocha Polimers Ltd., New Delhi after receiving the value of the goods covered by the bill from them and were making payment of that amount to the plaintiff under two demand drafts on 02/05/95. According to the plaintiff, on their enquiry the goods was not available at the office of the defendants at New Delhi. If at all as contended by the defendants, the goods had arrived at their office at New Delhi, evidence will be there to that effect at the Delhi office of the defendants. However, if at all as contended by them there existed any difference of opinion between M/s Manocha Polimers Ltd., New Delhi R. S. A. No.626 of 2004 -13- and the plaintiff and that was mediated upon by them and accordingly, on the plaintiff's instruction the goods in the consignment were delivered by them to Manocha Polimers Ltd. themselves, for that also evidence will be there at the Delhi office of the defendants. Further, apart from acknowledgment in their registers regarding delivery of the goods to M/s Manocha Polimers Ltd. there will be letter also from M/s Manocha Polimers Ltd. regarding their taking delivery of the goods by making payments to the defendants of the bill amount. If as is contended by the defendants, the demand drafts were given by Manocha Polimers Ltd. and it is not that the defendants themselves were taking demand Drafts and delivering it to the plaintiff, evidence in that behalf also will be available with the concerned bank. No attempt is made by the defendants to get down the required records R. S. A. No.626 of 2004 -14- from the concerned bank or to cite and examine as witness responsible persons from Manocha Polimers Ltd. to give evidence with supporting documents in proof of their having taken delivery of the goods in the consignment under Ext.A1 lorry receipt. It is the case of the plaintiff that after despatch of the goods the cost of rubber shot up in the market and that the defendants parted with the goods to someone unauthorisedly. The fact that there was hike in the market rate in the value of the goods involved in the consignment is admitted also by the defendants in para 3 of the written statement though under a different circumstance with a view to develop their contentions. The defendants would have been placed in a still worse situation had the suit been framed for damages for misappropriation of goods entrusted with them for transport. In the instant case, there is no such claim R. S. A. No.626 of 2004 -15- advanced and the claim is only for recoupment of loss sustained by the plaintiff for reason of Ext.A9 Hundi not having been taken delivery of by the consignee M/s Manocha Polimers Ltd., New Delhi though the Bank had made payments to the plaintiff discounting the said Hundi. Obviously, consignee Manocha Polimers Ltd. will not honour the Hundi making payments under the bill to the Delhi branch of the plaintiff's bankers M/s Indian Overseas Bank if goods had not arrived at all at the Delhi office of the defendants. In commercial practice it is only on the consignee being intimated by the carriers of arrival of the goods that they clear the bill/Hundi from the bank and take delivery of the goods. In the instant case, that has not happened and it was consequently that under Ext.A2 memo dt.03/05/95 the Indian Overseas Bank returned the bill along with Ext.A3 debit advice R. S. A. No.626 of 2004 -16- debiting an amount of Rs.3,69,114/- from the account of the plaintiff. The loss so sustained by the plaintiff is on account of the non-delivery of the goods covered by Ext.A1 lorry receipt by the defendants to the consignee Manocha Polimers Ltd., New Delhi. Out of the above amount, it is common case that under two demand drafts an amount of Rs.3,23,700/- is paid by the defendants to the plaintiff on 02/05/95. It is for the balance amount that the suit is laid. The defendants who are at fault in not delivering the goods which resulted in damage to the above extent of Rs.3,69,114/- to the plaintiff is bound to indemnify the plaintiff by making payment of so much amount. They having made payment of only Rs.3,23,700/- and the suit has been filed only for the balance amount they were bound to make payment of the said amount to the plaintiff with interest and cost as claimed. R. S. A. No.626 of 2004 -17- The decree passed by the courts below concurrently granting the above relief to the respondent/plaintiff deserves only to be upheld and there is absolutely no merit in this RSA. The substantial questions of law formulated in the memorandum of appeal on which is this appeal seen to have been admitted by this Court on 03/07/06 in view of my discussions above are not substantial questions of law having any bearing on the decision in the suit. 8. In the result, confirming the decree passed concurrently by the courts below, I dismiss this RSA with costs to the respondent. K.P.BALACHANDRAN, JUDGE kns/-