Dismissed

Shri Harbhajan Singh K. Jandir, Proprietor of Mannu Carrier Corporation v. Gannon Dunkerley and Company Ltd. - U51109MH1924PLC001107

Bombay HC22 Jan 2014CP/346/2012

Case brief

AI extract

What is this about?

The High Court at Bombay in a company petition dismissing a claim for unpaid crane hire charges. The court held that substantial defences, including allegations of negligence and accident, require a trial and the petition was dismissed without summary disposal.

What did the court decide?

Petition dismissed. No order as to costs.

1.The respondent, Gannon Dunkerley & Company Ltd (“the Company”), is an engineering company. The petitioner is the sole proprietor of Manu Carrier Corporation. He claims that the Company has not paid him an amount of Rs.13,92,240/- toward crane hire charges. His aggregate claim with interest is Rs.15,59,308/-. The claim is disputed. In my view, there is a substantial defence to the claim. In any event, the petitioner’s claim

2.On 2nd February 2010, the Company placed a work order on the petitioner’s sole proprietorship firm for hire of a P&H 955-ALC 75-ton crawler crane with a boom length of 130 feet. The crane was to be deployed to the Company’s project site at Mangalore in Karnataka where it had an engineering contract with Punj Lloyd Ltd. The petitioner supplied the crane in terms of that work order and seconded a crane operator to the project site. An amount of Rs.3 lakhs was paid as mobilization advance.

3.Exhibit “B” to the petition is the foundation of the petitioner’s claim. It is a statement of account from the petitioner’s books. It shows various credit and debit entries. After giving credit for the Rs.3,00,000/- mobilization advance, the petitioner claims that an amount of Rs.13,92,240/- is due. Ex-facie, this appears to be a running account. There are credit and debit entries both. Ordinarily, these would need to be provied. But the petitioner claims these are not disputed. They have been accepted by the Company.

4.What the petition does not disclose is that on 7th June 2011 there was a fatal accident at site caused by the crane supplied by the petitioner. The Company claims this was caused by a failure of the crane’s brake control system and the negligence of the crane’s operator who, the Company also says, was insufficiently trained. The assembly crashed. An engineer, one Jonson Santhosh Rozario, employed by the Company’s client, Punj Lloyd Ltd, was injured in

the accident as the assembly fell directly on him. He died on the way to the hospital. The Company paid an amount of Rs.5,55,825/- as an ad-hocex-gratia compensation to the accident victim’s family. The Company’s client withheld Rs.10 lakhs from the Company’s dues. The Company therefore claimed an adjustment of Rs.15,55,825/- from the petitioner’s bill. It raised this claim in its advocates’ reply dated 29th February 2012 to the petitioners’ advocate’s statutory notice dated 8th February 2012.

5.This defence is maintained in the Company’s affidavit in reply. In paragraph 6 of that affidavit, the Company attributes the accident to the negligence of the crane’s operator and the defective crane. In support, the Company relies on the investigation report of one K. Suresh Shenoy of the Department of Factories, Government of Karnataka. That report, Exhibit “B” to the affidavit in reply, is unequivocal in its finding that the crane’s bearings were damaged. This led to the failure of the cam clutch. The crane’s operator, one Bolaram, was also apparently negligent in the manner in which he operated the crane.

6.The petitioner’s affidavit in rejoinder does not assist his cause. He contends that the victim’s family has already filed a claim for compensation; that under the work order, the petitioner was to provide insurance, including third-party insurance; and that the Company must be deemed to have inspected the crane and found it in good working order before deployment to site.

7.The Company filed a sur-rejoinder. It claims that following the accident – which is not denied – the petitioner’s representative fled the scene and became incommunicado. There was unrest on the site. Work was stalled. The Company repeatedly tried to contact the petitioner’s representative, but without success. Annexed to this sur-rejoinder as Exhibit “A” is a copy of the Company’s letter dated 13th July 2011 to the petitioner. The letter sets out these facts. It says that there was complete non-cooperation from the petitioner. Criminal proceedings and an arrest were threatened. The Company has also annexed a copy of its letter of 8th July 2011 to the victim’s family forwarding compensation of Rs.5.5 lakhs.

8.These are matters that cannot be decided in a summary jurisdiction. The Company’s defence is not, in my view, speculative, spurious or specious. It is bona fide. Only a trial can determine whether the petitioner was in breach of his warranties and obligations under the work order and whether he is entitled to maintain his claim.1

9.Finally, there is the matter of the Company’s financial position. It’s accounts for the year ending 31st March 2012 are annexed to the affidavit in sur-rejoinder. These show sizeable assets and a handsome net profit for the year of over Rs.53 crores. It is impossible to conclude that the Company is commercially insolvent or is unable to pay it debts.

Shri Harbhajan Singh K. Jandir, Proprietor of Mannu Carrier Corporation v. Gannon Dunkerley and Company Ltd. - U51109MH1924PLC001107

Case brief

What is this about?

What did the court decide?

Shri Harbhajan Singh K. Jandir, Proprietor of Mannu Carrier Corporation v. Gannon Dunkerley and Company Ltd. - U51109MH1924PLC001107

Case brief

What is this about?

What did the court decide?

What the court decided

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