1 srk IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO. 1614 OF 2003 Prakash R. Shenal Proprietor of M/s Sterling Engineering Co. B-15, Satyam Shopping Centre, M.G. Road, Ghatkopar East, Bombay – 400 077. and presently residing at 203, Highlands, Building No.4, Lokhandwala Township, Akurli – Kandivali East, Mumbai – 400 101. .. Plaintiff vs Tata Engg. And Locomotive Co. Ltd., Registered under Companies Act, 1956 having its registered office at Bombay House, 24, Homi Modi Street, Bombay 400 001. .. Defendant .. Mr. Prakash Shenal, plaintiff in person. Mr. Sanjay Kothari with Avinash Joshi i/b Mulla & Mulla for the Defendant. .. CORAM: A.S.OKA,J DATE: 5th November, 2009 JUDGMENT: 1 The plaintiff has instituted this suit for recovery of a sum of Rs.4,63,428.57 as per the particulars of the claim set out in Exhibit “E” to 2 the plaint. The plaintiff is claiming interest at the rate of 24% per annum compounded on a quarterly basis on Rs. 46,330.22 from the date of the institution of the suit till payment/realization. 2 According to the case made out in the plaint, the defendant company is a manufacturer of Tata Hitachi brand Excavators and other earth moving machineries. The defendants company is selling various machines, spare parts and accessories. According to the case of the plaintiff, he purchased in the year 1991 a Tata Hitachi Excavator Model UH-083. According to the plaintiff, he purchased the Excavator under SIDBI bill discounting scheme. The case of the plaintiff is that 10 Hundis countersigned by his bankers were issued to the defendant and the said Hundis were honoured and paid. It is contended that apart from other spare parts, the plaintiff purchased from the defendant-company cylinder seal kits required for the Excavator purchased by the plaintiff under invoice dated 8th November, 1993. According to the plaintiff, in the last week of April, 1994 the arm seal of the Excavator started leaking. When an attempt was made by the plaintiff to replace the seal kits, it was found that the seal kits sold by the defendant-company were not suitable and were not matching with the original seal kit of the arm cylinder. 3 3 The plaintiff by his letter dated 3rd May, 1994 addressed to the defendant-company brought this fact to the notice of the defendant. According to the plaintiff, he talked to one Mr. K. Gupta of the defendant- company at Hyderabad on the same day in the noon. According to the plaintiff, the defendant accepted that the seal kits were over sized. According to the plaintiff along-with letter dated 3rd May, 1994 he tried to forward the removed seal to Bombay office of the defendant-company. On the said letter, one Mr. M.M. Jacob of the defendant-company made an endorsement that the plaintiff should forward new kits supplied to him so that the old kit which was removed from the Excavator as well as new kits can be examined and thereafter a letter can be issued to approach Hyderabad office. According to the plaintiff along-with letter dated 4th May, 1994, he forwarded two new kits allegedly purchased by him under invoice dated 8th November, 1993 to the Bombay office of the defendant-company. According to the plaintiff notwithstanding further reminders, the defendant-company failed to replace the said over sized seal kits. According to the plaintiff he approached the Consumer Disputes Redressal Forum by filing a complaint. The complaint was not entertained on the ground that the same was not maintainable. An Appeal preferred against the said order was dismissed by the State Commission. According to the plaintiff, a Revision Application 4 preferred by him before the National Consumer Commission which was rejected on the ground that the plaintiff not being a consumer, he is not entitled to maintain the complaint. Thereafter, the present suit is filed by the plaintiff. The basic claim in the suit filed by the plaintiff is for recovery of sum of Rs.46,330.22 being the cost of the seal kits allegedly purchased under invoice dated 8th November, 1993. The plaintiff is claiming interest on the said amount at the rate of 24% per annum from 5th May, 1994 to 25th March, 2003. The said interest amount comes to Rs. 2,67,098.35. According to the plaintiff, as the seal kits were not replaced, the Excavator could not be used and he suffered loss to the tune of Rs. 1,50,000/-. That is why the plaintiff has claimed a decree in the sum of Rs. 4,63,428.57 together with further interest on the principal amount of Rs. 46,330.22. 4 The suit is contested by the defendant-company by filing written statement. The first contention raised is that suit was barred by law of limitation. The second contention is that the invoice on which reliance is placed by the plaintiff shows that kits were purchased by him at Hyderabad. It is contended that the documents produced by the plaintiff shows that the kits were being used at Panvel out side of the territorial ordinary original jurisdiction of this court. It is submitted that even if it is assumed that a part 5 of the cause of action arose within the jurisdiction of this Court, a leave under clause XII of the Letters Patents has not been obtained. Another contention raised by the defendant-company is that the plaintiff has neither paid the full price of the Excavator nor of the spare parts. It is contended that only when the defendant-company started demanding the balance amount, the plaintiff filed complaint before the District Consumer Redressal Forum. The defendant-company relied upon the orders of the District Consumer Redressal Forum, State Commission, National Commission and observations made therein against the petitioner/plaintiff. The defendant- company denied that the alleged seal kits purchased by the plaintiff were not matching with the old set of seal kits. It is stated that when the old kits were examined by the office of the Hyderabad, it was found that the same contained incomplete and non-genuine parts and therefore, the same were returned along-with letter dated 4th May, 1994 to the plaintiff. It is submitted that there was no question of any reimbursement or replacement. The defendants prayed for dismissal of the suit. 5 Issues were settled on 5th February, 2009, It is marked as “A”, which read thus: (1)Whether the Suit is barred by the Law of Limitation? 6 (2)Whether this Court has territorial jurisdiction to try this Suit? (3)Whether there was leakage in the Arm Seal of the Excavator supplied by the Defendant to the Plaintiff? (4)Whether the Defendant was liable to replace the machine sold to the Plaintiff or any part thereof? (5)Whether the Plaintiff had made payment of the full purchase price of the Excavator Model UH – 083 purchased by the Plaintiff from the Defendant as also of the spare parts purchased by the Plaintiff or whether the Plaintiff’s claim is malafide made for repairs and replacement upon the Defendant demanding from the Defendant the purchase price of the Excavator? (6)What reliefs, if any, is the Plaintiff entitled to? 6 The plaintiff adduced evidence by filing his own affidavit in lieu of examination-in-chief. He produced certain documents. The plaintiff was cross-examined on commission. The defendants have not adduced any evidence. 7 The plaintiff appearing in person submitted that the Consumer Forum dismissed the complaint filed by the plaintiff on the ground that the same was not maintainable and it is not dismissed on merits. He pointed out that the very fact that the invoice dated 8th November, 1993 was issued by the defendant- company shows that the price of Rs. 46,330.22 was paid by the plaintiff. He submitted that original invoice must be available with the Sales 7 Tax Department and defendant-company has not adduced any evidence to show that the price of the kits sold under invoice was not received by the defendant- company. He submitted that the documents produced by the plaintiff shows that two seal kits purchased under the said invoice were returned to the defendant-company and the defendant-company neither replaced the seal kits nor have refunded the price of the seal kits. He submitted that in view of the section 14 of the Limitation Act, 1963 (hereinafter referred to as ’the said Act’) the time spent by him in prosecuting the proceeding of the complaint before Consumer Redressal Forum will have to be excluded in as much as he prosecuted the said proceedings in a bonafide manner. He submitted that merely because he was using the Excavator for commercial purpose, he did not cease to be a consumer. He submitted that he was all along under impression that he is a consumer, therefore, he prosecuted the said proceedings. As far as the issue of jurisdiction is concerned, he submitted that when the seal kits were purchased, the equipment was given on hire and therefore, the person from Nandyal collected seal kits that is why the address of Nandyal appears on the invoice. He submitted that order was placed in Bombay and the amount was paid in Bombay and therefore, the entire cause of action arose in Bombay. 8 8 The learned counsel appearing for the defendant-company submitted that there is no evidence on record to show that the seal kits in dispute were purchased under the invoice dated 8th November, 1993. He submitted that no evidence has been adduced to show that the price of the seal kits was paid by the plaintiff to the defendant-company. He pointed out that the invoice dated 8th November, 1993 relates to three other items apart from the seal kits and the amount payable Rs. 46,330.22 includes the price of the three other items. He invited my attention to the cross examination of the plaintiff and submitted that the stand taken by the plaintiff is dishonest, in as much as seal kits numbers have been specifically mentioned in the invoice. He submitted that there is nothing on record to show that the plaintiff had placed an order for the supply of seal kits relating to the Excavator purchased by him. He submitted that this is a case of no evidence. He placed reliance on certain decisions of the Apex Court and this Court. He submitted that the proceeding before the Consumer Redressal Forum was not prosecuted by the plaintiff in bonafide manner. Therefore, the plaintiff is not entitled to take benefit of section 14 of the said Act. He submitted that the suit was therefore clearly barred by law of limitation. He placed reliance on a decision of the Apex Court M/s. Patel Roadways Limited, Bombay vs. M/s. Prasad Trading Company, reported in AIR 1992 Supreme Court 9 1514 and submitted that merely because the defendant-company was having an office within the territorial jurisdiction of this Court, the jurisdiction cannot be conferred on this Court as the entire cause of action has arisen outside the limit of the ordinary original jurisdiction of this Court. He submitted that even a leave under clause XII of the Letters Patents has not been obtained by the plaintiff. He, therefore, submitted that suit is liable to be dismissed. 9 The plaintiff appearing in person submitted that he gave description of the Excavator in respect of which spare parts were sought and as per the description, the seal kits were supplied to him by the defendant-company. He submitted that the act of the placing the order has been done in Bombay and even amount covered by the invoice paid in Bombay. He, therefore, submitted that the entire cause of action arose at Bombay as even the defective goods were returned to the defendant company at Bombay. He, therefore, submitted that this is a fit case for passing a decree as prayed. 10 I have given careful consideration to the submissions. I have perused the plaint, written statement and affidavit in lieu of examination-in-chief, notes of cross-examination and documents placed on record by the plaintiff. 10 The claim of the plaintiff can be divided into two parts. The first claim is of Rs.46,330.22 being the price of the seal kits which were allegedly purchased by him which were returned by the plaintiff to the defendant-company. The second part of claim relates to compensation of Rs.1,50,000/-. According to the plaintiff, the machine remained idle as spare parts were not replaced and therefore, he is entitled to the said amount by way of compensation. 11 Therefore, the plaintiff will have to establish that he purchased the seal kits in dispute from the defendant-company under invoice dated 8th November, 1993 and that he had paid the price of Rs. 46,330.22. In the plaint there is no specific assertion that the price mentioned in invoice dated 8th November, 1993 was paid by the plaintiff. Admittedly, there is no such assertion in affidavit in lieu of examination-in-chief filed by the plaintiff. In the cross-examination certain questions were put to the plaintiff on the invoice at Exhibit “A”. In response to question No. 68, he denied that the parts set out in invoice were purchased because of break down. In response to question no.69, he stated that under the said invoice parts were purchased from Hyderabad office and his man had collected the same. Though he stated that he had made payment at Worli office, he does not have receipt of payment made to the defendant- company. In response to another question 11 he stated that he does not remember the name of the person who collected the spare parts. He admitted that on the invoice part numbers were written by the defendant-company. He denied correctness of the suggestion that invoice at Exhibit “A” was not the invoice under which he purchased the seal kits. He admitted that the invoice does not mention the model number of the Excavator. He submitted that he received the spare parts in November, 1993 and in April, 1994 he attempted to put the parts in arm cylinder of the Excavator. He admitted that between the November, 1993 to April, 1994 he did not open the spare parts allegedly purchased by him. He admitted that he was keeping the log book at the work site where Excavator was working. However, he showed inability to produce the log book of the Excavator. He stated that the log book was destroyed in the year 2002. He denied the correctness of the suggestion that the parts purchased under invoice dated 8th November, 1993 were for some other machine. 12 As far as the claim for damages is concerned, in response to the question No.179, the plaintiff stated that he is seeking loss at the rate of Rs.15,000/- per day for 10 days. He admitted that he has not produced any documents to show that he was earning Rs. 15,000/- per day. In response to the another question he stated that in May, 1994 the machine was down for 12 repairs and it started working in June, 1994. He admitted that he has not produced any documents to show the loss suffered by him. In the light of this evidence, the question which arises is whether the plaintiff has proved his case. 13 The plaintiff has relied upon the invoice dated 8th November, 1993. A specific contention in the written statement of the defendant and in particular in paragraph No.7 is that the plaintiff has not paid full purchase price of either the Excavator or the spare parts. As pointed out earlier, in response to a question in the cross-examination on the aspect of the payment of price, the plaintiff admitted that he does not have receipt of the payment made to the defendant-company. A specific suggestion was given that the invoice at Exhbit ‘A” was not the invoice under which the seal kits were purchased by the plaintiff. He denied the correctness of the said suggestion. A question was asked as to who had gone to deliver the spare parts of Excavator, the answer of the plaintiff was that he was unable to remember. A question is asked as to whether original invoice is available, the plaintiff answered by stating that the original has been produced on the record. Perusal of the record of the suit shows that the original invoice has not been produced on record. Apart from the fact that the original has not been placed 13 on record, the plaintiff has not adduced any evidence to show that he had paid the amount mentioned in the invoice. A specific issue has been framed being Issue No.5 putting the burden on the plaintiff to prove that he had paid the price of the spare parts. If original invoice and receipt of the payment was not available, the plaintiff could have produced other evidence to show that he had paid the amount payable under the invoice at Exhibit “A”. The plaintiff appearing in person contended that the very fact that invoice has been issued shows that the amount has been paid. As stated above the original invoice has been not placed on record. There is nothing on record to show that the seal kits which were allegedly purchased and returned by the plaintiff were the the same kits which were allegedly purchased by the plaintiff under Exhibit “A”. In response to question No.187, the plaintiff volunteered to state that the invoice, the purchase order or the delivery challan for the purchase of the said parts will be available with the Sales Tax Department as he has filed Sales Tax Returns. The plaintiff made no attempt to get the alleged documents produced from the said department. Apart from this the alleged invoice at Exhibit ‘A’ shows that apart from two seal kits having price of Rs.20,634/- and Rs.18,844/- respectively, and three other spare items were purchased under the said invoice and the price of Rs. 46,330.22 is the price of all five items. Thus, the plaintiff has failed to 14 discharge the basic burden placed on him to show that he has paid the price of the seal kits. As the plaintiff has failed to establish on evidence that he paid the price of the seal kits, he is not entitled to the first part of the claim of Rs.46,330.22 with interest thereon up to the date of the institution of the suit. 14 The second claim is of sum of Rs. 1,50,000/- with interest thereon. The said amount is claimed on the ground that there was a loss caused to the plaintiff as the Excavator remained idle as the spare parts were not available. It will be necessary to consider the averments made in the plaint. I find that there are no averments to show as to on what basis a sum of Rs.1,50,000/- was claimed by the plaintiff. However, in affidavit in lieu of the examination-in-chief filed by the plaintiff, he has stated that the rental income from the machine per day was Rs.15,000/- and taking into average maintenance costs of Rs. 5,000/- per day, the net rental income of Rs.10,000/- per day would have accrued to him. The plaintiff has claimed the loss for a period of 15 days at the rate of Rs.10,000/- per day. Apart from the fact that there is no foundation for this claim in the plaint, not a single document has been produced by the plaintiff to show that any loss was caused to him. There is absolutely no evidence on record to show that 15 the plaintiff was getting rental charges of Rs. 15,000/- per day and that cost of operation was Rs.5,000/- per day. Except for the bald statement made by the plaintiff in the examination-in-chief, there is nothing on record to substantiate the said claim. As stated earlier, there is no foundation in the plaint to show how the claim of Rs.1,50,000/- was arrived at. 15 Apart from what is discussed earlier, even according to the case of the plaintiff, he received the delivery of the seal kits in November, 1993. An attempt was made to install the seal kits in April, 1994. Therefore, a question was asked as to whether there was any evidence to show that the arm seal started leaking in April, 1994 requiring change of equipment. He stated that he does not have any proof. He admitted that the equipment at that time was given on hire. He stated that his supervisor informed him that the machine had started leaking. According to the plaintiff, Mr. Varghese was the Supervisor who opened the machine when the leakage started. The plaintiff has not made any efforts to examine said Mr. Varghese. Though the plaintiff admitted that he was maintaining a log book, he did not produced it and came out with a case that the log book was destroyed in the year 2002. In the year 2002 the proceedings arising out of the complaint filed by the plaintiff were very much pending. 16 16 Thus, the basic burden on the plaintiff has not been discharged by him by establishing that he paid the price of the seal kits and that he suffered loss to the extent of Rs.1,50,000/-. Even taking the case made out in the plaint as it is, it is impossible to come to the conclusion that the plaintiff had paid the amount of price as he has not made a specific assertion in the plaint in that behalf. As the plaintiff has miserably failed to establish both his claims, the suit must fail. As the suit must fail on merits, it is not necessary to record findings of other issues relating to jurisdiction and limitation. This is virtually a case of no evidence and therefore, there is no option to but to dismiss the suit. The plaintiff has appeared in person and has conducted the trial. Therefore, in this case, I am not inclined to pass any order regarding payment of costs. 17 Hence, I pass the following order: i) Suit is dismissed. ii) There will be no order as to costs. Judge.