1 srk IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO. 322 OF 2008 IN SUIT NO. 159 OF 2002 The New India Assurance Company Limited & Anr. … Plaintiffs. Versus M/s. Kothari Transport Company & Ors … Defendants. Mr. Udaya Sankar Samudrala for Plaintiffs. Mr. A.J. Almeida for Defendants. CORAM: R. G. KETKAR, J. DATED: 4th January, 2010. P.C. 1 This Chamber Summons is taken out by the defendants. It is prayed that the exparte leave granted by this court under clause 12 of Letters Patent be revoked and consequently the Plaint be returned to the Plaintiff for presentation before the appropriate Court. The facts that are relevant and material for the disposal of the Chamber Summons are as under: 2 2 The plaintiff No.1 is a company incorporated under the Companies Act, 1956. It is a subsidiary of General Insurance Corporation of India, a Government of India undertaking in the Public Sector. The Plaintiff No.1 is doing the business of General Insurance and has its registered office at Mahatma Gandhi Marg, Fort, Mumbai – 400 001. The plaintiff No.1 inter-alia carryies on business as Insurers and at all material times is Insurer of suit goods. 3 The plaintiff No.2 is the Government of India undertaking having their office at Nagothane, taluka Roha, District Raigad. The Plaintiff No.1 is the Insurer of the goods by virtue of Insurance Policy issued by it, in favour of the plaintiff No.2. 4 The defendants are Transport Company having fleet of trucks and are engaged in the business of Transporting goods of consignments to various destination as per the instructions of the consignors and are having their office at Thane. The Plaintiff No.2 hired the vehicles of the defendants to carry the suit consignment from Nagothane to Daman and it was responsibility of the defendants to transport the said consignment safely to the destination and deliver the same in 3 sound condition. The Plaintiff No.2 obtained an open insurance policy with plaintiff No.1 and the said policy is in force from August 1, 1998 to July 31, 1999. The said policy is for a sum of Rs. 4,29,40,000/- (Rupees Four Crores Twenty Nine Lacs Forty thousand only) covering all risks and SRCC. 5 It is the case of the plaintiffs that plaintiff No.2 on or about November 26, 1998 entrusted to the defendants a consignment of 10 metric tons of Indothene HDPE Grade HD 50 MA 180 of value about Rs. 4,56,000/- packed in 400 packets, each packet weighing 25 kg. for transporting the same from Nagothane to Daman. The defendants accepted the said consignment and issued a G.C.Note bearing No. 2523 on November 26, 1998. The defendants transported the said consignment in truck No. MWU 4692 from Nagothane. The defendants however did not deliver the said consignment to the consignees at Daman as per the agreed terms of the contract. The Plaintiff No.2 made an enquiry with the defendants whereupon the plaintiff No.2 was informed that the truck carrying the consignment was taken over from the driver by unknown person. The truck was thereafter found at Karmala with only 87 packets of Indothene containing 2.175 metric tons. 4 The defendants further informed that F.I.R. was lodged at Panvel Police Station, Panvel and case was registered against the unknown persons. Thus, out of 10 metric tons of consignment valued at Rs. 4,56,500/-, Indothene of 2.175 metric tons was delivered. Thus, there was a short delivery of 7.825 metric tons of Indothene valued at Rs. 3,57,211.25. Thus, the defendants caused loss of Rs. 3,57,211.25 to the consignees. The defendant also issued delivery certificate of shortage/damaged/non-delivery goods dated December 25, 1998 and admitted short delivery of consignment. 6 It is the case of the plaintiffs that the plaintiff No. 1 investigated thoroughly the claim of the plaintiff No.2 and appointed one M/s. Pratik Claim Consultants for investigating and submitting a report about the missing consignment. The said consultant submitted investigation report along-with covering letter dated May 7, 1999 stating that the loss of consignment was caused due to the negligence of the driver of the truck who is the agent of the defendants. The plaintiff after careful scrutiny, investigation and appraisal of the documents as also valuation of the lost of consignment, settled the claim of the plaintiff No.2 by making payment Rs.3,52,211/-. The plaintiff 5 No.2 subrogated and assigned all their rights in favour of the plaintiff No.1 under their letter of subrogation and assignment. The plaintiff No.1 has been given all the powers by plaintiff No.2 to take and use all the lawful ways and means to recover the said loss from the defendants. The Plaintiff No.1 also made payment of Rs. 7,000/- to the said consultant. The Plaintiffs accordingly instituted the present suit for recovery of Rs.3,59,211/- (Rs.3,52,211/- + 7,000/-) paid to the consultant together with interest at the rate of 18% per annum from September 15, 1999 till the date of filing of the suit i.e. on February 26, 2001 to the tune of Rs.64,658/-. The plaintiffs prayed for ordering the defendants to pay Rs.4,23,869/- as per the particulars of the claim at Exhibit-”E” together with future interest on Rs. 3,52,211/- at the rate of 18% per annum from the date of the suit till realization. 7 The plaintiffs took out petition for obtaining leave under clause 12 of the Letters Patent on January 16, 2002. In paragraph 3, the plaintiffs, while claiming leave have asserted as under: “The Plaintiffs have their administrative and registered office at Bombay. The Defendant 6 No.1 is having its administrative office at Thane. The Defendant No.2 is having its administrative office at Nagothane. The Plaintiffs settled the claim of Defendant No.2 at Bombay and they are entitled to receive the claim amount from Defendant No.1 at Bombay. The major part of the action has therefore arisen in Bombay. The Petitioners therefore, submit that this Hon’ble Court be pleased to grant to the Petitioners Leave under Clause XII of the Letters Patent to enable the Petitioners to file the present suit in this Hon’ble Court.“ 8 By order dated January 16, 2002 this court granted exparte leave under clause 12 of the Letters Patent to the plaintiffs. 9 The defendants have taken out the above Chamber Summons for revocation of the leave granted on January 16, 2002 and for returning the plaint of the plaintiff for presentation before the appropriate court. In support of this Chamber Summons, Shri Dinesh Jathmal Kothari the proprietor of the 7 defendants has sworn an affidavit on February 9, 2008. It is asserted that no cause of action or any part thereof arose within the jurisdiction of this court and hence the leave is liable to be revoked. The plaintiff No.1 has instituted the aforesaid suit for themselves for and on behalf of the plaintiff No.2 under a letter of subrogation purported to have been executed by the plaintiff No.2 in favour of the plaintiff No.1 under the policy of insurance interse between them. The status of the plaintiff No. 1 cannot be independent and it steps into the shoes of the plaintiff No.2. The question is whether the plaintiff No.2 could have instituted aforesaid suit against the defendants in this court. 10 The defendant further asserted in paragraph 6 that the consignment was transported from Nagothane in district Raigad to Daman. The truck carrying consignment was taken over per force by unknown person from the driver which amounted to highway robbery and that truck was found in Karmala in district Raigad. FIR was filed in Panvel Police Station, district Raigad. It is further asserted, the plaintiff No.1 settled the claim of the plaintiff No.2 and plaintiff No.2 issued a letter of subrogation authorizing the plaintiff No.1 to institute suit 8 against defendants for and on behalf of the plaintiff No.2 for all practical purposes. The present suit is between the plaintiff No.2 and the defendants. If at all the suit could be instituted either in a court at Raigad District or in Thane where the defendants have their office. The assertion made by the plaintiffs for instituting the suit in paragraph 3 of the petition for obtaining leave order under clause 12 was that the plaintiffs settled the claim of Defendant No.2 at Bombay and therefore they are entitled to receive the claim amount from the Defendant No.1 at Mumbai. It is submitted this was interse between the plaintiff No.1 and Plaintiff No.2, there is no privity of contract between the plaintiff No.1 and the defendants. On these among other grounds exparte leave granted by this court on January 16, 2002 is sought to be revoked. 11 The assertion made by the plaintiffs for instituting the suit in paragraph 3 of the petition for obtaining leave under clause 12 of the Letters Patent was that the plaintiffs settled the claim of the defendant No.2 at Mumbai and therefore, they are entitled to receive the claim amount from the defendants at Mumbai. It was submitted that this was interse between plaintiff No.1 and plaintiff No.2. There is no privity of contract 9 between the plaintiff No.1 and the defendants. On these among other grounds exparte leave granted by this court on January 16, 2002, is revoked. 12 The defendants have filed affidavit of Mr. Sandip B. Jadhav working as clerk with the advocate of the defendants, to substantiate that the copy of the Chamber Summons and affidavit in support were sent to the advocate for the plaintiffs on February 28, 2008 and the same has been delivered to the advocate on February 29, 2008 and the same has been acknowledged. 13 The matter appeared before me on August 21, 2009 when none appeared on behalf of the plaintiffs. I gave directions to the defendants to send notice to the advocate for the plaintiffs informing that the next date of hearing will be August 28, 2009. Accordingly, letter under certificate of posting and also by through courier notice was sent to the advocate of the plaintiffs. 14 None appeared on behalf of the plaintiffs on the next date of hearing. The plaintiffs neither chose to appear at the time of hearing nor they filed affidavit in opposition to the above Chamber Summons. I have heard Mr. A.J. Almeida, 10 learned counsel for the defendants in support of the Chamber Summons at length. 15 Mr. Almeida, learned counsel for the defendants reiterated submissions made in the affidavit in support of Chamber Summons. He submitted that merely because of the plaintiff No.1 settled the claim of plaintiff No.2 in Mumbai that will not give rise to any cause of action for filing of the present suit against the defendants in this court. No cause of action arose or any part thereof arose in Mumbai and consequently the exparte leave granted deserves to be revoked. In support of his submission, he relied upon the judgment of this court in case of M/s. Garware Nylons Limited Vs. M/s. Swastic Yarns reported in 1997 (2) ALL MR 579. 16 After hearing learned counsel for the defendants and after going through the material available on record, I am of the opinion that the exparte leave granted by this court under clause 12 of the Letters Patent Appeal on January 16, 2002 deserves to be revoked. In this behalf on perusal of the assertions made in the plaint, it is evident that the plaintiff No.1 settled claim of the plaintiff No.2. The Plaintiff No.2 gave full powers to take and use the lawful ways and means to the 11 plaintiff No.1 in their own name to recover the loss from the defendants. The plaintiff No.1 settled claim of plaintiff No.2 at Mumbai and according to them they are entitled to receive the claim amount from the defendantS at Mumbai. Paragraph 18 of the plaint reads as under: “18) The Plaintiff No.1 have their administrative and registered office at Bombay. The Plaintiff No.2 is having its administrative office at Nagothane. The Defendants are having its administrative office at Thane. The Plaintiff No.1 settled the claim of Plaintiff No.2 at Bombay and they are entitled to receive the claim amount from the Defendants at Bombay. The cause of action has arisen in Bombay. However as the Defendants have their office outside the jurisdiction of this Hon’ble Court, the Plaintiffs filed the petition and have obtained the leave of this Hon’ble Court under Clause 12 of Letters Patent for filing this suit before this Hon’ble Court.” 12 17 The plaintiffs have alleged that the plaintiff No.2 has assigned and subrograted all the rights in respect of the said consignment to the plaintiff No.1. The plaintiff No.2 has given letter of subrogation and assigned all their rights in favour of the plaintiff No.1 to recover the loss from the defendants. However, the plaintiffs have not placed on record the letter of subrogation and assignment. The plaintiffs merely stated in paragraph 10 of the plaint that they crave leave to refer to rely upon the said letter of subrogation and assignment as and when produced. 18 From the material available on record, it is evident that in the first place, there is no privity of the contract between the plaintiff No.1 and the defendants. If at all the plaintiff No.2 were to institute the suit, they could have instituted the suit either in district Raigad where robbery took place or in court at Thane where the defendants carry on business. Even at the highest plaintiff No.2 could have instituted the suit at Baroda. However, at no stretch of imagination, plaintiffs could have instituted the present suit in this court. Merely because the plaintiff No.1 settled the claim of plaintiff No.2 at Mumbai, that will not give rise to any cause 13 of action for filing suit against the defendant within the jurisdiction of this court. In my opinion, no cause of action or any part thereof accrued within the jurisdiction of this court. 19 As observed earlier the plaintiffs have not placed on record the letter of subrogation and assignment. They have also not opposed this Chamber Summons by filing affidavit in opposition though several opportunities were given to the plaintiffs, none appeared on their behalf. 20 In view of the aforesaid discussion, the Chamber Summons deserves to be allowed. Accordingly it is allowed. 21 In view of the foregoing discussion, I hold that from the material available on record, the material part of cause of action arose out of the jurisdiction of this court, therefore, exparte leave granted under clause 12 of the Letters Patent deserves to be revoked. Accordingly, the leave granted under clause 12 of the Letters Patent is revoked. 22 The Chamber Summons taken out by the defendants is made absolute by revoking exparte leave granted under clause 12 of the Letters Patent. However, there is no order as to costs. (R.G. KETKAR, J)