United India Insurance Company Ltd. and Anr. v. M/S. XPS Cargo Services

1. Counsel for the appellants states that he has filed an application for condonation of delay in terms of the liberty given on 26.9.2013. Let the appellant place this application on record. Registry to number the same therafter. Delay in filing of the appeal is condoned for the reason that time spent earlier was for a wrong proceeding being a civil revision petition instead of filing of an appeal. C.M. stands disposed of. + FAO No.472/2013 2014:DHC:993

2. This first appeal under Order 43(1) (a) of the Code of Civil Procedure, 1908 (CPC) challenges the judgment of the Court below dated 25.7.2012 which returned the plaint for presentation to the competent Court having jurisdiction as regards the contract of transportation which was entered into between the plaintiff no.2/appellant no.2 and the defendant/respondent as carrier for transportation of Biopesticides from Agra to Baroda. The goods were gutted by fire in the godown of the respondent/defendant at Baroda on 14.3.1999.

3. Trial Court by its judgment dated 25.7.2012 has passed a very just judgment by holding that the Courts at Delhi did not have territorial jurisdiction, but since this issue was decided at the stage of final arguments after evidence was led inasmuch as the trial court had no power to transfer the suit to the civil court in Agra or Baroda. Liberty was given to the appellants/plaintiffs to move the Supreme Court under Section 25 CPC for transfer of the suit to the competent court of jurisdiction, however, the appellants by this appeal obdurately insists that the Courts at Delhi have jurisdiction.

4. The admitted facts are that the appellant no.1/plaintiff no.1 is the insurance company. The appellant no.1/plaintiff no.1 had insured the goods of plaintiff no.2/defendant no.2/owner, for the value of Rs.12,46,050/for their transportation from Agra to Baroda. The goods were transported by the defendant from Agra to Baroda, but on 14.3.1999, the goods which were kept in the godown of the defendant were destroyed because of a fire. The entire consignment was burnt, and therefore after appointing of a Survey Officer, appellant no.1/plaintiff no.1 paid the amount under the insurance policy to the insured/plaintiff no.2, and resultantly plaintiff no.1/insurance company became the subrogee of the plaintiff no.2 to recover the amount on account of alleged negligence of the defendant as a carrier in causing loss to the goods.

5. The facts which have emerged on record are that as between the plaintiff no.2 and the defendant no part of cause of action at all accrued in Delhi because the contract of transportation was entered into at Agra; goods were transported from Agra to Baroda; goods were admittedly destroyed in the fire in the godown of the respondent-defendant at Baroda. Therefore plaintiff no.2 if it had to file the suit the same had to be filed against the defendant/carrier only either at Agra or Baroda because as per Section 20 CPC in contractual matters jurisdiction is of that Court where the contract is to be executed or where the contract is performed or where payment under the contract i.e the price for transportation of the goods is payable/paid. None of the three aspects of execution, performance or payment has taken place at Delhi as between the plaintiff no.2 and the defendant. Since the plaintiff no.1 is only a subrogee of the plaintiff no.2, it only steps into the shoes of the plaintiff no.2 as regards the legal rights of plaintiff no.2 qua the defendant. In such a case, the suit will have to be filed by the appellant no.1/plaintiff no.1 only where cause of action had accrued wholly or in part as regards the contract of the plaintiff no.2 with the defendant. Since no part of cause of action had accrued in Delhi as regards the contract of the plaintiff no.2 with the respondent –defendant, the courts at Delhi had no jurisdiction for recovery of moneys against the respondent-defendant on account of its negligence as a carrier of goods. Even if I accept the fact that plaintiff no.1 made payment under the insurance policy to the plaintiff no.2 at Delhi, that would only be one aspect of the contract between the plaintiff no.1 with the plaintiff no.2 and not of plaintiff no.2 with the respondentdefendant. The issues of insurance policy between plaintiff no.1 and plaintiff no.2 would be the subject matter of jurisdiction of courts at Delhi, however, issues between the plaintiff no.2 and defendant are not the issues which will give jurisdiction to the civil courts at Delhi on account of the facts as already stated above that the contract of transportation was entered into at Agra, and the goods were transported from Agra to Baroda and finally because the goods were destroyed in a fire at Baroda.

6. In view of the above, there is no merit in the appeal, and the same is therefore dismissed, leaving the parties to bear their own costs.

FEBRUARY 21, 2014 VALMIKI J. MEHTA, J. Ne