FA/875/1985 1/9 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 875 of 1985 For Approval and Signature: HONOURABLE MR.JUSTICE KS JHAVERI ========================================= = 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================= = CHEMET CHEMICALS PVT LTD Versus DELHI KANPUR GONDIA TRANSPORT COMPANY ========================================= = Appearance : for Appellant MR RAJNI H MEHTA for Respondent ========================================= = CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 08/05/2008 ORAL JUDGMENT 1. By way of present appeal, the appellant – original plaintiff has challenged the judgment dated 21.09.1984 passed by the FA/875/1985 2/9 JUDGMENT City Civil Judge, 4th Court, City Civil Court, Ahmedabad, in Civil Suit No.177 of 1981 whereby the learned City Civil Judge dismissed the said suit and ordered the plaintiff to pay the costs of of the defendant. 2. The facts in brief, as emerging from the record, are as under. 2.1 The appellant, original plaintiff, had filed a suit being Civil Suit No.177 of 1981 before the City Civil Court, Ahmedabad against the respondent, original defendant, praying for recovery of Rs.9056.65 paise from the defendant with 15% interest and Rs.51 as notice charges and also costs of the suit from the defendant. In the said suit, the respondent filed it's written statement at Ex.15 and prayed for the dismissal of the suit with costs. 2.2 The trial Court, after considering the entire evidence on record, dismissed the suit of the appellant – plaintiff vide the impugned judgment. Hence, this appeal. 3. Heard Mr.Rajni H. Mehta, learned counsel for the respondent. Looking of pretty claim of case, the matter was FA/875/1985 3/9 JUDGMENT considered on merits and since there is no merits, the notice is not issued to the appellant. 4. It is the case of the appellant that the trial Court has committed an error in holding that the appellant – original plaintiff has failed to prove that the delivery of the suit consignment cannot be effected because of delay caused by negligence and carelessness of the agents of the respondent - original defendant. It is case of the appellant that the trial Court has erred in holding that the appellant – original plaintiff has failed to prove that consignee refused to take delivery because of the delay caused by the respondent – original defendant. It is case of appellant that the Court below has committed an error to hold that the plaintiff has failed to prove that goods have lost its value by lapse of time. It is also case of appellant that the Court below has committed an error in holding that the plaintiff has failed to prove that by non- delivery of consignment, damages of Rs.9107.65 paise is caused. It is also case of appellant that the Court below has considered that the suit is not maintainable in view of the averments made in paragraph 18 of the written statement. It is also case of appellant that in view of the aforesaid facts and circumstances of the case, the judgment and decree passed by the Court below requires to be quashed and set aside in the FA/875/1985 4/9 JUDGMENT interest of justice. 5. Learned counsel for the respondent has submitted that the trial Court has considered and discussed every aspects of the matter and appreciated the evidence on record. It is also submitted that the Court below has rightly come to the conclusion and, therefore, no interference is required in the said judgment passed by the Court below and appeal deserves to be dismissed. 6. The Court below has discussed every aspect and given reasons, in detail in para-14, Issued No.7 which reads as under. “The defendant has contended that the suit consignments are subject to carrier's lien for the out of pocket charges, which they have paid from their own pocket and which amount the plaintiff was legally bound to pay to the defendants. The defendants are ready and willing to deliver the goods to the plaintiffs. The suit, therefore, does not lie and should be dismissed with costs. Mr.Vyas for the plaintiff contended that the lien as alleged by the defendant is not a ground to won suit and it is not exercised by the defendant though threat is FA/875/1985 5/9 JUDGMENT given. If the defendant wants to come out with his claim of lien over the property the defendant is required to pay the requisite court fees with a specific claim of the amount of the lien. No doubt after the goods were received by the defendant, plaintiff was informed of the same by letter exh.42. Thereafter the plaintiff was again informed by letter exh.43 on 24th August 1978 that the goods is lying in their custody at the risk of the plaintiff as to loss, destruction, deterioration, wastage, shortage, damage, leakage, breakage and subject to their stipulated storage charges. Despite this letter when the plaintiff did not take delivery of the goods the defendant the informed the plaintiff by registered notice on 22nd Sept., 1978 exh.67 that if the goods are not retired, the goods shall be sold in an auction to recover the dues. Again the defendant gave another opportunity to the plaintiff on 19th Dec., 1978 (exh.68) to retire the goods. It is the case of the plaintiff that the defendant has been giving threats only to sell the goods to recover his charges and as the defendant has not acted upon the threats it can be said that the defendant has not exercised his lien. If the defendant now wants to exercise the same he can do so by paying the necessary FA/875/1985 6/9 JUDGMENT court-fees. The common carrier has a particular lien on the property carried for the freight payable. The common carrier is also entitled to detain goods if freight and other charges, e.g. the octroi, demur-rages, etc. are not paid to him at the time of delivery of the goods, and right of a common carrier to exercise a general or a particular lien does not arise until the transit of the goods in completed. Thus the defendant was entitled to ask the plaintiff to take delivery on payment of freight and other charges namely demur-rage etc. It was the duty of the plaintiff to pay the same. Therefore, unless that amount is paid the defendant was not liable to deliver the goods. It is the case of the plaintiff that the defendant has demanded more amount than what he was entitled to. It is the case of the plaintiff that the plaintiff was not liable to pay demur-rage and there was no condition agreed between the parties to pay the demur-rage. Appendix IV provided for a specimen of goods forwarding under section 6 of the Carrier Act. Clause 11 provides for demur-rage to be charged per day after the free time is allowed. Accordingly in the instance case exhs. 30 and 31 are the lorry receipts and are the copy of the consignee copies from Ahmedabad FA/875/1985 7/9 JUDGMENT to Gorakhpur. Exhs. 58 and 59 are the lorry receipts of the consignments from Shuklaganj to Chandlo wherein terms 4 and 5 specifically provide for demur-rage charges. Exhs. 30 and 31 are the consignor's copy and the consignee's copy is not forth coming on record for the goods being sent from Ahmedabad to Gorakhpur. If that would have come an record there is bound to be a condition for payment of demur-rage if the goods are not retired or taken delivery of after the free time is over. Therefore, it cannot be said that the defendant is not at all entitled to demur-rage charges. No doubt when the defendant asked its Kanpur office to request M/s.New Malik Transport Co. to rebook the goods from Gorakhpur to Ahmedabad the defendant has requested that they need not charge demur-rage, plaintiff being their regular client. Even if the defendant has asked M/s. New Malik Transport Co. not to charge any demur-rage and if M/s. New Malik Transport Co., not to charge any demur-rage and if M/s. New Malik Transport Co. has charged the same it would be a case of refund for the plaintiff and if the request of the defendant is not proceeded to by M/s. New Malik Transport Co., the defendant cannot be blamed for the same who was acting for and on behalf of FA/875/1985 8/9 JUDGMENT the plaintiff. Thus, it was the duty of the plaintiff to pay the requisite charges claimed by the defendant and get his goods retired from the defendant and if the plaintiff found that unreasonable amount is claimed by the defendant he could have either negotiated with the defendant or would have taken legal action for the refund thereof. But it cannot be decided by the plaintiff that the claim of the defendant is unfounded and illegal and refuse to take delivery of the goods and illegal and refuse to take delivery of the goods and make out a case of non-delivery. In my opinion, the defendant has all the rights to detain the goods in exercise of his lien. As I have held that this is not a case of non-delivery of the goods. The goods was very such ready for delivery. Therefore, there is no loss of the goods. Also there is no proof by the plaintiff to show any loss because of deterioration or loss in the transic value of the goods by delay in delivery. Irrespective of this the plaintiff is liable to pay the freight and demur-rage charges to the defendant and without payment of the same plaintiff cannot allege except in the case of open delivery which is also not asked by the plaintiff in this case that the goods was not delivered. Therefore, in my opinion, it can FA/875/1985 9/9 JUDGMENT be said that there is no cause of action for the plaintiff to file this suit. I, therefore, decide issue No.7 in the affirmative.” 7. In view of the aforesaid facts and circumstances of the case, it is noticed that the claim involved in the present appeal of Rs.10,000/- is very petty amount and looking to the smallest amount, I am, therefore, in complete agreement with the impugned judgment passed by the trial Court and no interference is warranted in this appeal. This appeal is, therefore, required to be dismissed. 8. For the foregoing reasons, the present appeal stands dismissed. The appellant – original plaintiff is at liberty to apply in case of any difficulty. No order as to costs. [K. S. JHAVERI,J.] vijay