Bombay Okara Carrier and Others vs G.D. Iron and Metal Works and Another

N.K. Kapoor, J.—This is defendant''s appeal against the judgment and decree dated 28.3.1979 whereby the suit of the plaintiff for Rs. 21718.53 has been decreed with proportionate costs.

Briefly put, plaintiff filed a suit for recovery of Rs. 22590.53 as price of third lot of the machine one sheet rolling mill size 16" x 42" against the defendants. As per case of the plaintiff, defendants placed an order for one sheet rolling mill size 16" x 42" for Rs. 90,000/- Net Ex-Works Batala on the plaintiff vide order dated 11.3.1977. This order was placed at Batala and defendant No.1 paid a sum of Rs. 20,000/- as advance against the said order. The plaintiff firm supplied the said mill in accordance with the said order in three different lots. A sum of Rs. 60,000/- was received by the plaintiff firm from the defendants for all lots except the last one. This way a total sum of Rs. 80,000/- was received towards the machine supplied against the total price of Rs. 966636.80. The plaintiff further laid a claim for a sum of Rs. 2753.73 for the goods supplied to M/s Chiplu Aluminum (P) Ltd, Bombay, as per instruction of defendant No.1 who had undertaken to pay the said amount to the plaintiff. Thus, it is the case of the plaintiff that defendant No.1 got delivery of the last consignment without retiring the documents from the bank and so this way has failed to pay a sum of Rs. 19390.53. On account of this delayed payment, plaintiff is entitled to interest at the rate of 15% per annum which comes to Rs. 3200/-; total amount to be recovered from the defendant comes to Rs. 22590.53.

Defendant No.1 despite service did not out in appearance and so was proceeded ex-parte. Defendants No.2 to 4 appeared and contested the suit. By way of preliminary objection it was stated that the civil court of Batala has no territorial jurisdiction to try the suit. On merits, existence of plaintiff firm and its registration under the Partnership Act and that Kapil Dev is the registered partner was denied. The answering defendants denied the supply of rolling mill for a price of Rs. 90,000/-.

On the pleadings of the parties, following issues were framed:-

(1) Whether the civil court at Batala has got jurisdiction to try, the suit? OPP.

(2) What were the value of the goods supplied to defendant firm ? OPP

(3) Whether plaintiff gave any verbal instructions to defendants No.2 to 4 for delivery of goods to defendant No.1 without G.R.? OPD.

(4) If issue No.3 is proved, whether defendants No. 2 to 4 are liable to pay any amount ? OPP.

(5) To what amount the plaintiff firm is entitled to ? OPP

(6) Relief.

Under issue No.1 the trial court held that the civil court at Batala has got jurisdiction to try the suit. Under issue No.2 the court held that the goods supplied to defendant No.1 were of the value of Rs. 19390.53. Issue No.3 was decided against the defendants. Under issue No.4 the court held that defendants Nc.2 to 4 are jointly and severally liable to pay the price of the goods amounting to Rs. 19390.53. Resultantly, the court passed a decree for a sum of Rs. 21718.52 against all the defendants jointly and severally with proportionate costs.

The appeal has been preferred by defendants No.2 to 4 only. The appellants who are common carrier have been fastened with the liability for the price of the goods on the ground that they have delivered the goods to defendant No.1 without receiving the payment as per stipulation in the document. As per facts on record, plaintiff firm agreed to sell one sheet rolling mill size 16" x 42" to M/s Pyramid Machine Tools Company for the price settled. The goods were sent through defendants No.2 to 4. As per terms, goods were to be delivered after retiring of these documents from the bank. The present dispute is only with regard to third, lot of goods dispatched by the plaintiff through the agency of defendants No.2 to 4. The defendants did not comply with the instructions and on the contrary delivered goods without retiring documents from the bank thereby causing loss to the plaintiff. According to the case set up by the appellants, goods were supplied to defendant No.1 as per verbal instructions of the plaintiff. The trial court on appraising the evidence has come to the conclusion that this plea is devoid of any merit. On reconsidering the matter in the light of evidence, I am of the view that there is no substance in this contention of the counsel for the appellants that goods were delivered as per verbal instructions of the plaintiff. In fact, this plea of the appellants stands belied in view of the specific stipulation contained in the documents. The status of common carriers is that of a ''bailee''. Section 148 of the Indian Contract Act, 1872, defines ''Bailment'', ''Bailor'' and ''Bailee''. As per this section, a person to whom the goods are delivered is called ''Bailee''. u/s 148 of the Act, a bailee is liable in case he makes unauthorised use of the bailment. In case a bailee makes any use of the goods bailed which is not according to the conditions of bailment, he is liable, to make compensation to the bailor for any damage arising to the goods from or during such use of them. In the present case, there is no manner of dispute that the plaintiff handed over the goods to the appellants-common carrier-to be delivered to defendant No.1 on his discharging the documents i.e. making or depositing the amount against the goods receipt. It is in the light of Section 154 of the Indian Contract Act that the present appellants have been held to be liable to compensate the bailor-plaintiff-for the loss/damage which has accrued to the plaintiff. Similarly, u/s 161 of the Act bailee is to re-compensate for any loss, destruction or deterioration of the goods which are in his custody. In the present case delivery of goods by defendant No.2 to 4 to defendant No.1 has been accepted. There was no written direction to deliver the goods without discharging of documents by defendant No.1. The version of oral direction for delivery of goods has not been accepted by the court below and rightly so. Thus, defendants No. 2 to 4 - the appellants-too became liable to reimburse the plaintiff on account of loss of price of the goods. Precisely for this reason, the trial Court held all the defendants to be jointly and severely liable to pay the amount.

It was next argued by counsel for the appellants that even if it be taken that liability of present appellants is joint with defendant No.1 qua the loss of goods, all the same defendants could not be directed to share the burden of Rs. 2753.73 i.e. price of the goods supplied to M/s Chiplu Aluminium (P) Limited as per direction of defendant No.1 with an undertaking to reimburse this amount. There is no need to dilate upon this point for the reason that decree for Rs. 21718.53 is against all the defendants to be paid jointly and severally with proportionate costs. Thus, remedy of the present appellants, if any, in respect of the aforesaid amount is against defendant No.1. No such claim has been set up by the appellants in this appeal. Thus, finding no merit in the present appeal, the same is dismissed.

No order as to costs.