Dismissed

Raghulal v. M/S.Carry Co.

Orissa HC2 May 2018SA/142/1998

Case brief

AI extract

What is this about?

The High Court dismissed the second appeal against a judgment dismissing a suit for recovery due to non-delivery of goods. The court held that the suit was barred under Section 10 of the Carriers Act, 1865, as no valid notice was issued before instituting the suit within six months.

What did the court decide?

The appeal was dismissed as the notice under Section 10 of the Carriers Act, 1865 was not issued before the institution of the suit.

Raghulal Vs M/S.Carry Co. — Contract and Commercial Disputes | Orissa HC (2018)

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HIGH COURT OF ORISSA: CUTTACK

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S.A. No.142 of 1998

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From the judgment and decree dated 30.3.1998 and 7.4.1998 respectively passed by Shri D.K. Sahu, learned District Judge, Balasore-Bhadrak, Balasore in S.J.Money Appeal No.8 of 1994 confirming the judgment and decree dated 22.7.1994 and 5.8.1994 respectively passed by Shri B.D. Tripathy, learned Additional Civil Judge (Sr. Divn.), Balasore in M.S. No.27 of 1990/54 of 1985.

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Shri Raghulal Karnani ….….…..…… Appellant ---versus— M/s.Carry Co., 26, Zakaria Street, Calcutta and another ……..………… Respondents

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For Appellant : Mr. Budhiram Das, Advocate For Respondents : None

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J U D G M E N T

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P R E S E N T:

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THE HON’BLE DR. JUSTICE A.K. RATH

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---------------------------------------------------------------------------Date of Hearing :24.04.2018 │ Date of Judgment:02.05.2018 ---------------------------------------------------------------------------- Dr. A.K. Rath, J. Plaintiff is the appellant against a confirming judgment in a suit for realization of Rs.10,148.04 paise towards non-delivery of certain articles by the defendant no.1-carrier.

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02. The case of the plaintiff is that he is the authorized dealer of M/s.Mysore Sales International Ltd., Calcutta, defendant no.2. The defendant no.2 consigned certain articles amounting to Rs.7,659.04 paise through the defendant no.1 at Cuttack. The waybill and invoice were sent in usual course delivered to the Bank of Baroda, Balasore with the instruction to delivery the same to the consignee-plaintiff at Balasore. Defendant no.1-carrier failed to deliver the goods to the plaintiff at Balasore. With this factual

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scenario, he instituted the suit for realization of the value of goods along with interest.

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03. Defendant no.1 filed a written statement stating inter aliat that the plaintiff had received the consignment and in token thereof, he executed an indemnity bond. As a matter of practice, without submitting the consignee’s copy of consignment, the consignee is to receive the goods from the carrier by executing an indemnity bond and subsequently they collect the bond submitting the consignment note. No notice under Sec.10 of the Carriers Act, 1865 had been issued before institution of the suit.

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04. On the interse pleadings of the parties, learned trial court struck seven issues. Parties led evidence, oral and documentary, to substantiate their cases. Learned trial court dismissed the suit with the finding that notice under Sec.10 of the Carriers Act, 1865 had not been issued. The suit was not maintainable. Further the plaintiff had received the consignment. The unsuccessful plaintiffs filed S.J.Money Appeal No.8 of 1994 before the learned District Judge, Balasore-Bhadrak, Balasore, which was eventually dismissed.

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05. The second appeal was admitted on the following substantial question of law.

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“Whether the suit is barred for non-issuance of notice under Section 10 of the Carriers Act and whether the court below erred in law in accepting documents not properly proved ?”

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06. Heard Mr. Budhiram Das, learned counsel, on behalf of Mr. N.C. Pati, learned counsel for the appellant. None appeared for the respondents.

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07. Mr. Das, learned counsel for the appellant, submitted that the courts below committed a manifest illegality in holding that

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notice under Sec.10 of the Carriers Act, 1865 had not been issued before filing of the suit. The notice had been exhibited as Ext.4. The plaintiff sustained a loss of Rs.10,148.04 paise towards non-delivery of certain articles.

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08. Sec.10 of the Carriers Act, 1865, which is the hub of the issue, reads thus:

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“ 10. Notice of loss or injury to be given within six months. —No suit shall be instituted against a common carrier for the loss of, or injury to, [goods (including containers, pallets or similar article of transport used to consolidate goods) entrusted] to him for carriage, unless notice in writing of the loss or injury has been given to him before the institution of the suit and within six months of the time when the loss or injury first came to the knowledge of the plaintiff.”

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09. On a bare perusal of Sec.10 of the Carriers Act, 1865, it is evident that no suit shall be instituted unless notice in writing of the loss or injury has been given to the carrier before the institution of the suit and within six months of the time when the loss or injury first came to the knowledge of the plaintiff. The same is mandatory requirement. Notice under Sec.10 of the Carriers Act, 1865 is sine qua non for institution of the suit. For non-compliance of Sec.10 of the Carriers Act, 1865, the suit is bound to fail.

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10. The plaintiff asserts that the articles were sent from Cuttack on 30.9.82 from the office of defendant no.2 at Cuttack. The suit was instituted on 23.9.1985. There is no pleading with regard to the time when the loss or injury first came to the knowledge of the plaintiff. The photostat copy of the alleged notice had been exhibited as Ext.4. Learned appellate court on a scrutiny of the Advocate’s notice held that there is no date below the signature of the counsel. The date which is put on the upper portion of right side of the first page is apparently and visibly antedated.

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Though the notice is a photostat copy, the date has been typed out. The inescapable conclusion is that no notice under Sec.10 of the Carriers Act, 1865 had been issued before institution of the suit.

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11. Plaintiff had signed the indemnity bond. He had not been examined as a witness. P.W.1 was the power of attorney holder of the plaintiff.

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12. The apex Court in the case of Janki Vashdeo Bhojwani and another v. Indusind Bank Ltd. and others , AIR 2005 SC 439, held that Order III Rules 1 and 2 C.P.C. empowers the holder of power of attorney to “act” on behalf of the principal. In our view the word “acts” employed in Order III Rules 1 and 2 C.P.C. confines only in respect of “acts” done by the power of attorney holder in exercise of power granted by the instrument. The term “acts” would not include deposing in place and instead of the principal. In other words, if the power of attorney holder has rendered some “acts” in pursuance to power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined. The substantial question of law is answered accordingly.

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13. In the wake of aforesaid, the appeal, sans merit, deserves dismissal. Accordingly, the same is dismissed. There shall be no order as to costs.

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………………………………. Dr. A.K. Rath,J.

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Orissa High Court, Cuttack The 2^nd May, 2018/Basanta

Raghulal v. M/S.Carry Co.

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Raghulal v. M/S.Carry Co.

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