Ramesh H.Bhanushali Vs the Gujrat State Wairehousing Corpn.

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 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 ORDINARY ORIGINAL CIVIL JURISDICTION

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 SUMMONS FOR JUDGEMENT NO.835 OF 2002
 IN
 SUMMARY SUIT NO.2314 OF 2002

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 Haridas Bhanushali Plaintiff

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 versus

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 The Gujarat State Warehousing
 Corporation Defendants

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 Mr.S.R.Mishra for plaintiff.

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 Ms.Madhavi Diwan with Ms.Mirashi i/by shah &
 Sanghvi for defendants.

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 CORAM : S.C.DHARMADHIKARI, J.

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 DATE : 6th July 2005

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 PC :

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 1. The plaintiff prays for a decree in a sum of
 Rs.12,63,100/- as per particulars of claim

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 Exhibit-K and further interest @ 18% p.a..

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 2. The plaintiff is sole proprietor of Shri
 Shakti Cargo Carriers. He is engaged in the
 business of transport of heavy containers.
 Defendant is a Corporation owned and controlled
 by the State of Gujarat. It is engaged, inter
 alia, in the activities of warehousing and

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 managing the transport and handling of the
 I.C.D.containers from Gujarat and outside it’s
 territory.

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 3. As per plaint averments, it is not in dispute
 that one Rajkamal Heavy Lifters Pvt. Ltd. was
 appointed by the defendant as handling and
 transport contractor for five years w.e.f. 27th
 March 1997. It is the case of the plaintiff that
 there were disputes between said Rajkamal Heavy
 Lifters Pvt. Ltd. and the defendant leading to
 filing of a civil suit before the City Civil
 Court, at Ahamedabad. It is the case of the
 plaintiff that on account of breaches committed
 by said Rajkamal Heavy Lifters Pvt. Ltd. and
 abandonment of work, that alternate arrangement
 was made by the defendant and that is how they
 approached the plaintiff. It is his case that in
 1998 a tender was floated by the Corporation for
 transportation and handling of containers from
 Baroda to Mumbai and vice versa. Contract in
 pursuance to this tender process was allotted to
 Rajkamal Heavy Lifters Pvt. Ltd.. The
 functioning as well as transporting activities
 were stopped by Rajkamal Heavy Lifters Pvt. Ltd.
 in October 1999. It is in these circumstances
 that the officers of the defendant Corporation

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 approached the plaintiff and after discussions a
 quotation was submitted of the rates which was
 approved. The plaintiff relies upon the
 correspondence and the approval at Exhibit-C to
 the plaint. It is on this basis that Mr.Mishra
 contends that there is a written contract
 stipulating terms and conditions including the
 rates and claim in the suit is based upon the
 fact that several bills were raised which have
 been duly paid and it is only in respect of item
 numbers 7 and 8 of the statement which is annexed
 to the plaint, that the defendant has withheld
 payment. Reliance is placed on the approval
 letters as also the payments made from time to
 time as evidenced by statement and it is
 contended that there is no dispute that the work
 was undertaken between the period 25th November
 1999 to 30th April 2000 and even the bills which
 are presently outstanding have been verified and
 certified by the defendant. Accordingly, a sum
 of Rs.12,63,100/- is due and payable. A decree,
 therefore, in this sum is claimed along with
 interest as set out above.

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 4. Mrs.Diwan appearing for the defendant
 Corporation firstly invites my attention to the
 annexures to the plaint and more particularly the

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 statement at Exhibit-F and states that Bill
 Nos.210/A and 210/B, both dated 28th February
 2000 pertain to the work carried out between 3rd
 January 2000 and 8th February 2000. She states
 that the stand of the Corporation has been made
 clear inasmuch as in the reply addressed to the
 advocate’s notice the Corporation pointed out the
 true and correct facts. Rajkamal Heavy Lifters
 Pvt. Ltd. had been awarded contract for a
 duration of five years to be computed from 24th
 August 1998 and between 7th January 2000 to 8th
 February 2000, plaintiff appears to have worked
 as sub-contractor of this party. The claim made
 in the plaint is pertaining to this period and
 apart from the fact that defendant have to
 recover a huge sum from M/s.Rajkamal Heavy
 Lifters Pvt. Ltd, additionally, said Rajkamal
 Heavy Lifters Pvt. Ltd. has addressed a letter
 on 21st February 2000 to the Managing Director of
 defendant Corporation stating clearly that the
 work done by the plaintiff is through the said
 Rajkamal Heavy Lifters and that Rajkamal Heavy
 Lifters would be paying for the said work to the
 plaintiff transporter directly. This letter
 makes a specific request to the defendant not to
 make any payment to the transporter directly on
 account of Rajkamal Heavy Lifters for this

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 period. Therefore, Mrs.Diwan contends that no
 contract was executed nor any work done under the
 same by the plaintiff as alleged in the plaint.
 The plaint averments are belied by the contents
 of letter addressed by Rajkamal Heavy Lifters.
 There is no privity of contract between plaintiff
 and defendant Corporation. She also invites my
 attention to the averments in the plaint
 pertaining to the jurisdiction of this Court
 inasmuch as according to her there is no
 agreement which has been arrived at by parties at
 Mumbai. Therefore, there is no question of
 making payment of bills at Mumbai. No part of
 the cause of action muchless any material part
 has arisen at Mumbai. The stipulation on the
 invoice/bill "Subject to Bombay Jurisdiction"
 would not assist the plaintiff in any manner
 inasmuch as for applying that clause, some part
 of cause of action has to arise within the
 jurisdiction of this Court. For all these
 reasons, she submits that unconditional leave be
 granted to the defendant to defend the suit.

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 5. With the assistance of Mr.Mishra and

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 Mrs.Diwan I have perused relevant materials.
 There is no substance in the complaint of
 Mr.Mishra that copy of bill dated 21st February

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 2000 along with other documents were not made
 available to the plaintiff. Above stand is taken
 in reply to a notice prior to the suit being
 filed. This letter is annexed as annexure to the
 affidavit in reply. Plaintiff had enough
 opportunity to meet its contents and to make
 appropriate submissions. Apart from the fact
 that the defendant has raised issue of
 jurisdiction of this Court, in my view, from a
 reading of the letter addressed by Rajkamal Heavy
 Lifters it is clear that payment in respect of
 bills in question cannot be claimed by plaintiff
 from defendant. If the plaintiff is unaware of
 any such communication between Rajkamal Heavy
 Lifters and defendant then that itself is a
 Triable issue. It would entail proving the case
 set out in the plaint at the trial. There is
 much substance in the contention of defendant
 that if the plaintiff had any privity with the
 defendant and any independent contract based upon
 which the claim was raised, there was no need for
 making averments pertaining to the alleged
 abandonment of work by the principal contractor.
 Prima facie, it appears to me to be a case where
 there is sub-contractor introduced in the form of
 plaintiff. It is true that some letters have
 been addressed but these letters very clearly

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 state that interim arrangement was made subject
 to provision of containers. The case of
 plaintiff that he had an independent contract, is
 also doubtful because that contract was also
 cancelled after a brief period. The temporary
 contract awarded to him is of 8th March 2000.
 Liability is in respect of a period prior to this
 date. The rates have also been approved
 subsequently. Hence for the period in question
 it is doubtful whether the defendant could be
 held liable by the plaintiff. Several triable
 issues pertaining to the liability of the
 defendant arise for determination. This is a fit
 case where unconditional leave to defend deserves
 to be granted. Unconditional leave to defend.
 Suit transferred to the list of commercial causes
 with usual directions to file written statement,
 discovery and inspection. Summons for Judgement
 stands dismissed.

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 (S.C.DHARMADHIKARI, J.)

Ramesh H.Bhanushali v. the Gujrat State Wairehousing Corpn.

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Ramesh H.Bhanushali v. the Gujrat State Wairehousing Corpn.

Case brief

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