Kanwar Shankar v. M/S Greatway Carrying Corporation

1. This Regular Second Appeal is filed under Section 100 of the Code of Civil Procedure, 1908 (CPC) by the appellant/plaintiff against the concurrent judgments of the courts below; of the Trial Court dated 6.1.2012 and the First Appellate Court dated 13.4.2015; by which the suit filed by the appellant/plaintiff for recovery of Rs. 2,26,200/- along with interest has been dismissed.

2. The case of the appellant/plaintiff was that he was an agent of M/s Terai Tea Company Limited, Siliguri, and this M/s Terai Tea Company sent 95 packages of tea worth Rs.1,23,000/- to the 2017:DHC:2111 appellant/plaintiff through the respondent/transporter/defendant vide consignment note No. 02999 dated 7.1.2003. It is further pleaded in para 7 of the plaint that the appellant/plaintiff paid the freight and other charges to the respondent/defendant and requested for delivery of the goods but the goods were not delivered. Ultimately, the appellant/plaintiff claims to have sent a legal notice dated 31.5.2003, which failed to yield results, and therefore the subject suit was filed.

3. Respondent/defendant contested the suit and pleaded various grounds for the suit being dismissed including the suit being bad for non-joinder of necessary parties, the suit being barred by limitation and most importantly that in fact the appellant/plaintiff had failed to pay the freight charges and hence goods were not delivered to the appellant/plaintiff. It was accordingly pleaded by the respondent/defendant that since there was no payment of freight charges by the appellant/plaintiff, hence the appellant/plaintiff is not entitled to delivery of the goods. The respondent/defendant also claimed that in terms of the consignment note it is entitled to a sum of Rs.[5] per quintal per day (wrongly typed as Rs.50 in the written statement) and accordingly the appellant/plaintiff was only entitled to receive the goods on payment of freight charges plus demurrage/godown charges.

4. After the pleadings were complete, the trial court framed two issues as to whether the appellant/plaintiff was entitled to the suit amount and whether the appellant/plaintiff was entitled to interest.

5. The Courts below have dismissed the suit observing that the appellant/plaintiff has failed to prove that he had paid the freight charges as was pleaded in para 7 of the plaint. Courts below have referred to the evidence and observed that no document was filed by the appellant/plaintiff of payment to prove the freight charges. The courts below have also observed that the case of the appellant/plaintiff that he had paid the freight charges but he did not have the receipt is false because if the payment had been made then this would have reflected in the books of accounts of the appellant/plaintiff, but even the books of accounts were not filed.

6. I may note that in the present case though the respondent/defendant has led no evidence yet the appellant/plaintiff has to stand on his own legs and prove his case in the plaint of entitlement of goods on account of payment of freight charges. Also, since the consignment note is an admitted document and proved by the appellant/plaintiff itself as Ex.PW1/2, in terms of Clause 7 of this consignment note for delay beyond one week, appellant/plaintiff was liable to pay demurrage/godown charges, and which were not paid. It is accordingly seen that the courts below have rightly dismissed the suit as the appellant/plaintiff miserably failed to prove that the freight and demurrage charges were paid to the respondent/defendant.

7. No substantial question of law arises. Dismissed.

APRIL 21, 2017 VALMIKI J. MEHTA, J AK