Regular First Appeal by Shell Apparels Private Ltd against dismissal of suit for recovery of damages due to delayed shipment. Court held appellant failed to prove loss and that defendants assured specific delivery date, dismissing appeal.
Appeal dismissed; suit remains dismissed; no costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
R.F.A No.929/2010
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF SEPTEMBER, 2022
PRESENT
THE HON’BLE MR. JUSTICE P.S. DINESH KUMAR
AND
THE HON’BLE MRS. JUSTICE M.G. UMA
REGULAR FIRST APPEAL No.929 OF 2010 (MON)
BETWEEN :
SHELL APPARELS PRIVATE LIMITED A COMPANY INCORPORATED UNDER THE PROVISIONS OF THE COMPANIES ACT, 1956 HAVING ITS REGISTERED OFFICE AT NO.103, 3RD MAIN INDUSTRIAL TOWN, RAJAJINAGAR BANGALORE - 560 044 AND FACTORY AT NO.10/15 MAGADI MAIN ROAD, SUNKADAKATTE BANGALORE - 560 091 REPRESENTED HEREIN BY ITS DIRECTOR V. RAVI ... APPELLANT
(BY SHRI. S.S. NAGANAND, SENIOR ADVOCATE FOR SHRI. PRADYUMNA K.V., ADVOCATE)
[THROUGH VIDEO CONFERENCING]
AND :
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SQUARE, 107, HARRINGTON ROAD CHETPET, CHENNAI - 600 031 AND A LOCAL OFFICE AT 22/85, KRISHNA REDDY COLONY, DOMLUR LAYOUT BANGALORE - 560 071 REPRESENTED HEREIN BY ITS DIRECTOR.
(BY SHRI. S.V. GIRIDHAR, ADVOCATE FOR R1; R2 SERVED)
THIS RFA IS FILED U/S 96 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED:28.01.2010 PASSED IN OS.NO.7830/2005 ON THE FILE OF THE XIX ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE, DISMISSING THE SUIT FOR RECOVERY OF MONEY.
THIS RFA, HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 10.08.2022 COMING ON FOR PRONOUNCEMENT OF JUDGMENT, THIS DAY, P.S.DINESH KUMAR J, PRONOUNCED THE FOLLOWING:-
JUDGMENT
This appeal by the plaintiff is directed against
judgment and decree dated January 28, 2010 in
O.S. No.7830/2005 on the file of XIX Additional City
Civil and Sessions Judge, Bengaluru.
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shall be referred to as per their status before the Trial Court.
from the plaintiff. With these averments, plaintiff sought for a decree against defendants for a sum of USD 43,013.42. Defendants contested the suit by filing written statements and parties went to trial.
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After trial, the suit has been dismissed. Hence, this appeal.
Advocate for the plaintiff mainly contended that:
• goods were booked on August 15, 2004 to be delivered on or before September 16, 2004, but they have been delivered on October 18, 2004. The consignee had withheld 50% of the value of consignment quantified as USD 58,174.60 as penalty for delay in delivery;
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disbelieving Exs.P41 and P42 on the ground that the said documents were not produced at the time of filing the suit, but produced subsequently. Ex.P41 is the Certified extract of the Board Resolution passed in the meeting held on October 8, 2007, authorizing plaintiff's Managing Director to institute the suit against defendants. Ex.P42 is letter dated August 10, 2005 by the consignee to the plaintiff confirming receipt of damages of USD 35,113.60. The Trial Court has accepted the reasons assigned by the plaintiff while allowing the application for production of documents. Though the defendants raised objections for marking the said documents, they could not substantiate their objections. The Trial Court has not recorded any specific reason urged by the defendants for objecting
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marking of documents. Therefore, the Trial Court had no reason to disbelieve the said documents;
the negative. Hence, the impugned judgment is not sustainable in law;
• similarly, while answering issue No.3, the Trial Court has held that the suit is bad for non-joinder of necessary parties contrary to its finding with regard to issue No.4 that there is privity of Contract between plaintiff and second defendant, particularly, when the second defendant has not disclosed that it was
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acting as agent of CMA-CGM SA. Therefore, the Contract between plaintiff and second defendant is presumed to exist under Section 230 of the Indian Contract act.
Shri. Naganand prayed that this appeal be allowed.
learned Advocate for first defendant submitted that:
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• first defendant has no control over the sailing of the Ship and it has not given any assurance to the plaintiff with regard to the date of delivery.
first defendant being the Clearing and Forwarding Agent, is not responsible for the delayed delivery.
contentions and perused the records.
1. Whether the plaintiff proves that due to negligent act of defendants 1 and 2, the Plaintiff sustained loss to the tune of USD 35,113.00?
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2. Whether the plaintiff further proves that the
plaintiff is entitled for interest at the rate of 18% pa. from 15.8.2004 till filing of suit?
3. Whether the defendants prove that the suit is bad for non-joinder of necessary parties?
4. Whether the 2nd defendant proves that there is no privity of contract between plaintiff and 2nd defendant?
5. Whether the 2nd defendant proves that the suit is time barred as pleaded in para 12 of the written statement?
6. Whether the plaintiff is entitled for the decree sought?
7. What Order or decree?
been examined as P.W.1 and Exs.P1 to P42 marked. On behalf of defendants, two witnesses, D.W.1 and D.W.2 have been examined and Exs. D1
to D3 marked. The Trial Court has answered issues
No. 1, 2, 4, 5 and 6 in the negative and issue No.3
in the affirmative and dismissed the suit.
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evidence on record and the contentions advanced on behalf of the plaintiff and first defendant, following points arise for our consideration:
1. Whether plaintiff has proved that it has suffered loss of USD 35,113 due to delayed delivery of goods?
2. Whether defendants have assured/promised to deliver the goods on 16.09.2004 to the Consignee at Civitavacchia?
3. Whether the impugned judgment requires interference?
Re: points No.1 & 2
and first defendant has commenced with Ex.P6 dated August 10, 2004. By the communication, first defendant has conveyed the carriage charges between Tuticorin and Civitavecchia. On August 11, 2004, second defendant has given two alternative options to the plaintiff for transhipment of the
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goods as per Ex.P7. In the first option, the expected date of arrival of the Vessel in Civitavecchia is mentioned as September 16, 2004 and in the second option as September 23, 2004. Bill of Lading as per Ex.P13 has been issued by the second defendant on August 15, 2004. As per Ex.P16, plaintiff has informed first defendant by email that the consignee would penalize Euro 6000 towards late shipment penalty. There are other email correspondence between plaintiff and the first defendant. Shri. Naganand, placing reliance on Exs.P19 and P20, submitted that first defendant had informed that it would take up the issue with the second defendant and therefore, the first defendant was also liable to pay the amount claimed in the plaint.
replied as per Ex.P28 stating inter alia that the carrier was chosen by the plaintiff after having
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direct communication and that the delay in transit was communicated by the Carrier directly to the plaintiff.
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which provided for loading at Tuticorin Port on August 15, 2004 and arrival in Civitavecchia on September 16, 2004.
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cross-examination that it has not placed any
Contract before the Court.
based on Ex.P42. It is a letter from the consignee Gabruns S.p.A, Roma-Italia. The relevant portion of that letter reads as follows:
"Thereafter we have had several talks and discussions so that we can settle the matter amicably and our mutual business may continue profitably in future. We are grateful that Shell has been quite reasonable and co-operative during our discussions and we very much appreciate the same. However, we would not be able to write off the entire loss caused to us. We understand that the delay was not caused on account of any negligence or inaction by Shell, but the delay was caused due to late shipment which could be attributed to the liner and the booking agent.
Therefore keeping in mind our future business relationship we are agreeable to write off a portion of the aforesaid sum of USD 58,174.60 to the extent of USD 23,061.00. We had at the time of concluding settlement talks, agreed that Shell would bear the loss of USD 35,113.60 by way of bearing freight charges for future shipments/consignments and by
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giving us free samples of material. We confirm that a sum of USD 35,113.60 has been received by us towards loss compensation by Shell in the manner stated above."
Sheet. But no account book/certified extract is on record. P.W.1 has also admitted that there was no written agreement between the plaintiff and its Consignee binding the plaintiff to pay damages, in case the goods were not delivered in time. It is relevant to note that a specific suggestion was
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made to the PW.1 that he was not in possession of Ex.P42 at the time of filing the suit. But the fact remains that the said document was not filed along with the plaint.
Shri. Giridhar that the said document was a created one. He pointed out that as per the said letter, it was agreed between the parties that plaintiff would
bear the loss of USD 35,113.60 in the form of Freight charges for future shipments and by giving free samples of material.
Shri. Giridhar's argument that Ex.P42 was created subsequently. We say so because, firstly, P.W.1 has stated in evidence that the said letter was in his possession at the time of filing the suit, but, the same has not been filed along with the plaint. Secondly, as per Ex.P42, parties had agreed that
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plaintiff would bear the loss of USD 35,113.60 by way of Freight charges for future shipments and by giving free samples of material. There is nothing on record to show that plaintiff had defrayed any Freight charges after August 2005 or supplied any free samples. Plaintiff's entire claim hinges upon Ex.P42 and the said document, though according to the plaintiff was available, has not been filed along with the plaint. Therefore in our view, the plaintiff has failed to prove that it had suffered loss due to
delayed delivery of goods. It has also failed to prove that defendants had assured delivery of goods on a particular date. Hence, both points No.
1 and 2 are answered in the negative.
Re point No.3
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is accordingly dismissed .
No costs.
Sd/JUDGE
Sd/JUDGE
SPS
3 issues framed by the court
Whether the appellant proved that it suffered loss of $35,113 due to delayed delivery of goods?
Whether the appellants assure/did they promise to deliver the goods on 16.09.2004 to the consignee?
Whether the impugned judgment by the Trial Court requires interference?
SHELL APPARELS PRIVATE LIMITED
DYNAMIC FREIGHT FORWARDERS PRIVATE LIMITED
CMA-CGM (E&S) INDIA PRIVATE LIMITED
P.S. DINESH KUMAR
M.G. UMA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court