THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO A.S.2713 OF 1992 JUDGMENT:- The appeal is filed by the unsuccessful plaintiffs in O.S.No.245 of 1988 on the file of the Court of Principal Subordinate Judge, Visakhapatnam. The suit one was filed for recovery of Rs.72,299-54 paise. According to the case of the plaintiffs, the first plaintiff was the owner of the tanker-lorry bearing No.ADJ 2696 and it was engaged by the defendants for transport of the petroleum products. On 10-12-1986 the second defendant has entrusted a consignment of 18 Kilo Liters of Motor Spirit (M.S) for transporting the same from Visakhapatnam to H.P.C. Depot at Sanat Nagar. The tanker was loaded and sealed by the employees of the defendants. After reaching Sanat Nagar, the employees have verified the seals and found them to be correct. They have taken the samples and found that it is contaminated. The driver was not aware of the said standards. No certification was given about the seals being intact. Later the lorry was sent to Warangal on 16-12-1986 suspecting some variation in the density of product and after long time and correspondence by the first plaintiff the lorry was unloaded on 01-01- 1987 and stated that there was adulteration. The plaintiffs have nothing to do with the said adulteration. The test report is said to have been done but it was not given to the plaintiffs. The defendants have no right to down-grade the entire consignment of Motor Spirit to High Speed Diesel oil. The defendants in order to harm the plaintiffs, by a letter dated 27- 04-1987 demanded Rs.64,911-31 paise for the difference of the cost due to the contamination and also for the loss of 150 litres which comes to Rs.778-02 paise. The defendants ought to have returned the product to the plaintiffs and the plaintiffs would have sold the same in the market and to have paid the entire cost of the consignment. The defendants have withheld the transport charges of Rs.35,446-28 paise and also forfeited a sum of Rs.3,000/- which was the security deposit and also caused loss due to the illegal detention of the lorry and therefore a sum of Rs.20,000/- was claimed for a disputed trip. In spite of legal notice, the defendants have not paid the amounts and hence the suit. The defendants filed a written statement contending that transportation of petroleum products is highly sensitive and necessary precautions have to be taken. There are terms and conditions of agreement between the plaintiffs and defendants and it is the responsibility of the plaintiffs as a carrier to ensure safe and correct delivery of the product to the consignee and carrier shall bear the loss of any of the products and should indemnify the loss. The fact that 18 Kilo Litres of M.S was entrusted for transportation is not in dispute. According to the defendants, after loading the consignment, the tanker was sealed in the presence of crew of the lorry. There are several ways of tampering with the seals. When the tanker reached Sanat Nagar depot the employees before unloading tested the density and temperature and was found it to be not confirmed to the standards and samples were drawn and sent to the Laboratory at Madras and after getting the test report, it was found to be contaminated. The difference in the cost of the down- grading of contaminated M.S works out to Rs.64,911-31 paise. It was also further pleaded that the plaintiffs or the driver of the tanker did not ask for any sample or report. The question of returning the consignment to the plaintiffs does not arise and the amount of transportation charges withheld is only Rs.30,494-94paise. The plaintiffs are not entitled to the damages for retaining the lorry or transport charges involved in the suit consignment. On the basis of the above pleadings, the following issues have been framed for trial. 1. Whether the plaintiff is entitled to transport charges of Rs.35,446-28 ps? 2. Whether the plaintiff is entitled for the suit amount? 3. Whether the plaintiff is entitled to detention charges of Rs.18,000/- and legal notice charges of Rs.100/-? 4. To what relief? On behalf of the plaintiffs PWs.1 and 2 are examined and marked Exs.A-1 to A-6. On behalf of the defendants DW.1 was examined and marked Exs.B-1 and B-2. After considering the evidence on record, the lower court found that the defendants are entitled for set-off the claim and finding that the plaintiffs will be entitled to the transportation charges as admitted by the defendants and also retention charges @ Rs.300/- per day. The suit was dismissed as this claim was set-off towards the amount due to the defendants. Now the points that arise for consideration are:- 1. Whether the defendants are entitled for the set-off granted by the lower court? 2. Whether the defendants have proved the factum of adulteration? 3. Whether the plaintiffs are entitled for the suit amount? POINTS:- There is no dispute about the fact that the first plaintiff is a carrier of the petroleum products belonging to the defendants and on 10-12-1986 it was loaded with 18 Kilo Litres of M.S. meant for transportation to the depot at Sanat Nagar. According to the case of the defendants, consignment was taken to the depot at Sanat Nagar. There was found to be suspected adulteration and samples were drawn and they were sent to the laboratory at Madras and it was found to be adulterated. Thereafter, the consignment was sent to Warangal where it was unloaded and ultimately the lorry was released on 01-01-1987. There is no dispute about the fact that the transportation charges are not paid and the lorry was detained for nearly 20 days and add and it was released only on 01-01-1987. The learned Senior Civil Judge has taken the view that there was proof of adulteration and consequently the defendants are entitled for the value of the same which was claimed in legal notice Ex.A-3. On the other hand, the contention of the appellant is that the whole approach of the lower court is erroneous and the application of set-off does not arise in the suit and infact the allegations in the written statement does not show that a plea of set-off was made and on the other hand a specific plea was made in the written statement that the claim was to be only for transportation charges and not for any damages. It is also his further contention that there is absolutely no proof that the adulteration was done at the instance of the plaintiffs or its lorry driver and further more there is no proof of adulteration and the lower court erred in relying upon the evidence of PW.1 who has no knowledge at all of any of the events and Ex.B-2 also is of no avail. The lower court accepted the plea of the plaintiffs that the plaintiffs are entitled for the transport charges. But, however, as admitted by the defendants it was confined to Rs.30,494-01 paise. So also the lower court has accepted the claim of Rs.5,021/- by the plaintiffs for aborted transport charges. The total amount which the lower court found the entitlement of the plaintiffs is Rs.35,494-22 paise. The lower court also found that transport charges @ Rs.300/- per day would be just and reasonable for the detention of the lorry till 01-01-1987. Therefore, this amount comes to about Rs.6,000/- for 20 days. The security deposit of Rs.3000/- being with the defendants is also not in dispute. From the judgment of the lower court, the total amount the plaintiffs will be entitled is Rs.44,494-22 paise. It is to be seen as to whether the lower court was right in holding that there was adulteration and that it was proved by the defendants. Evidently, the burden is on the defendants to prove the same. It relies upon the evidence of DW.1 and Ex.B-2. Ex.B-2 is said to be a note to MIT Madras after testing of the sample showing that the sample fails in respect of distillation. The certificate is dated 26-12-1986. Thereafter, some writings were made and 17,820 litres M.S was down-graded and it was valued Rs.64,911-31 paise. PW.2 is not the author of the Ex.B-2 who has written this valuation is not proved. The test report, even assumed to be correct and final, does not show as to what extent the Motor Spirit has to be down-graded in density. This is the burden of the defendants to prove and merely by filing Ex.B-2, it cannot be said to have been proved. Further more, none of the employees at Sanat Nagar who received the load and suspected the adulteration were examined and they were also not examined to prove about the adultering of the seals if any. Merely because, there were complaints on an earlier occasion of this nature, it cannot be taken as a proof of repetition of the same act by driver of the plaintiffs. There cannot be any dispute about the fact that consignment has to be delivered in the same condition as it was booked. There is no evidence adduced about the persons who sealed the consignment when it was loaded the lorry at Visakhapatnam. DW.1 was evidently working at Visakhapatnam and he is not the person who signed the written statement. He also admitted that he has not filed any document to show that there is a difference in the density at the time of loading and unloading and he claims that the documents were not submitted back by the contractor. He also admits that at the destination point, the seals were found intact. He also admits that there was no possibility of loss of the product when it was at Sanat Nagar depot. No demand was made from the plaintiffs to produce the invoices. Even in his evidence he did not claim the non-liability on the ground of set-off. The above evidence of DW.1 is wholly insufficient to prove the factum of adulteration or contamination as claimed by the defendants. In fact, the learned Judge has not appreciated this fact in a right perspective and merely because PW.2 has signed the voucher at the time of loading, it does not mean that the particulars are personally known to him as he was only a driver and not a technical man. Further more, when the seals found to be in tact at Sanat Nagar as admitted by DW.1, it means that the adulteration or contamination might have been done otherwise. Therefore, strict proof of the report of analysis is required and in this case there is no such evidence. Assuming to be that the claim of the defendants that there was adulteration and contamination is true and that as per the agreement they are entitled for recovery of the said amount, the question is as to whether the lower court is justified in allowing a claim of set-off and dismissing the suit of the plaintiffs. Order VIII Rule 6 deals with the claims of set-off and it is as follows:- “Order VIII, Rule.6:- (1) Where a suit for the recovery of money the defendant claims to set-off against the plaintiff’s demand any ascertained sum of money legally recoverable by him from the plaintiff, not exceeding the pecuniary limits of the jurisdiction of the Court, and both parties fill the same character as they fill in the plaintiff’s suit, the defendant may, at the first hearing of the suit, but not afterwards unless permitted by the Court, present a written statement containing the particulars of the debt sought to be set-off. (2) the written statement shall have the same effect as a plaint in a cross-suit so as to enable the Court to pronounce a final judgment in respect both of the original claim and of the set-off; but this shall not affect the lien, upon the amount decreed, of any pleader in respect of the costs payable to him under the decree. (3) the rules relating to a written statement by a defendant apply to a written statement in answer to a claim of set-off. Therefore, the first thing that has to be proved is that an ascertained sum has to be payable to the defendants. In this case what was sought to be set-off is the value of the down-graded M.S. oil which is not ascertained and unless and until there is proof of adulteration and the loss of the standard of the Motor Spirit, it cannot be an ascertained sum. Under Section 8 of the A.P. Court-fees and Suits Valuation Act,1956 when ever in a written statement a pleading is made for a set-off or counter-claim, it shall be charged with fee in the manner as a plaint. It makes no difference even in cases of legal set-off or equitable set-off. In this connection, it is useful to refer to a decision reported in M/s.Durga Pharma Distributors Vs. Geoffrey Manners & Company Limited([1]). In this case, evidently the defendants have not pleaded a set-off nor paid any court fee and the lower court has by itself applied the principle and dismissed the suit. Therefore, the judgment of the lower court suffers from infirmity and is accordingly liable to be dismissed. Accordingly, the points are answered. In the result, the Appeal Suit is allowed. The judgment of the lower court is set aside and the suit of the plaintiffs is decreed for a sum of Rs.44,494-12 paise with interest @ 6% per annum from the date of suit till the date of realisation. The plaintiffs will be entitled to the costs through out. _______________________ N.R.L. NĀGESWARA RĀO,J 08-09-2011 TSNR [1] AIR 2000 A.P. 242