Indofil Chemicals Company vs Om Carrying Corporation And Ors.
2000 Latest Caselaw 1179 Del

ORDER

K.S. Gupta, J.

1. M/s Saraswat Fertilizers, defendant No. 2 filed this application under Order XII Rule 6 read with Section 151 CPC for dismissing the suit and striking out its name from the array of parties which the plaintiff has contested by filing reply.

2. Suit for recovery of Rs. 11,21,084.69 was filed by the plaintiff, inter alia, alleging that defendant No. 2 was appointed as distributor by the plaintiff vide distributorship agreement dated 15th December, 1993 initially for a period upto 31st December, 1994 which was extended upto 31st December, 1996 by the letter dated 24th May, 1995. Defendant No. 1 is a transporter while defendant No.3 is the C&F agent of plaintiff-company. It is stated that defendant No. 2 used to place orders on the plaintiff for agricultural Chemicals pursuant to which Chemicals were despatched to it through defendant No.3 and delivery thereof taken by defendant No. 2 on presentation of documents with the transporter. In December 1995 the defendant No. 2 placed order for supply of 250 cases of INDOFIL-M-45 and 15 cases of Tritone of the total value of Rs. 7,91,355.38. In pursuance of said ordef the plaintiff through defendant No. 3 booked 5 consignments containing 250 cases of INDOFIL-M-45 and 1 consignment containing 15 cases of Tritone with defendant No. 1 for carriage and delivery thereof to defendant No. 2 at Arrah (Bihar). Details of these consignments have been set out alongwith G.R. Nos. in para No. 7 of the plaint. It is alleged that consignments reached Arrah on 28th January, 1996 in safe condition and were kept by defendant No. 1 In its godown from where defendant No. 2 was supposed to take delivery thereof on presentation of documents within 5 to 7 days. Since there was no information either from defendant No. 1 or defendant No. 2 about delivery/non-delivery of the said consignments, the plaintiff wrote a letter dated 4th March, 1996 to defendant No. 1 to rebook the consignments to defendant No. 3 at plaintiffs expenses in case the consignments had reached Arrah and delivery thereof not taken by defendant No. 2 However, the plaintiff did not receive any reply till 16th April, 1996 when it came to know that consignments in question were destroyed in a fire which broke out in the godown of defendant No. 1 on 15th/16th April, 1996. Defendant No. 1 had acted negligently and is, therefore, liable for the destruction of consignments in question. Defendant No. 2 alongwith defendant No. 1 are jointly and severally liable to pay amount of Rs. 7,91,355.38 being the total value of consignments alongwith interest @ 20% per annum amounting to Rs. 3,29,729.31. Suit amount is the total sum of the value of consignments in question plus interest at the said rate on that amount.

3. I have heard Sh. Rajnish Ranjan for defendant No. 2 and Sh. Sanjay Kaul for plaintiff.

4. The plaintiff has filed, amongst others. Distributorship agreement dated 15th December, 1993, letter dated 24th May, 1995 referred to in para No. 3 of the plaint and , photostat copies of G.R. Nos. 2144916, 2144917, 2144918, 2144919, 2144920 and 2161283 pertaining to the consignments in question also referred to in para No. 7 of the plaint. Without referring to the defense raised in written statement by defendant No. 2 denying its liability for the suit amount, it may be noticed from the admissions made in plaint as also said 6 G.R.S. issued by defendant No. 1 /transporter that despite plaintiffs letter dated 4th march, 1996 sent to defendant No. 1 for rebooking the consignments in question at its expenses to its C&F agent, defendant No. 3, the defendant No. 1 failed to rebook them to defendant No. 3 consignments were destroyed in a fire in defendantNo. 1's godown at Arrah on 15th/ 16th April, 1996 and in G.R.S. it is defendant No. 3 whose name has been shown both as consignor and consignee of the consignments. Faced with this position, submission advanced on behalf of plaintiff was that liability of defendant No. 2 for the suit amount has to be judged with reference to overall arrangement under the said Distributorship agreement which was in currency upto 31st December, 1996 and it is not the appropriate stage to dismiss the suit against defendant No. 2 However, submission is without any merit. During the course of argument it was conceded on behalf of plaintiff that for passing title in the consignments in question to defendant No. 2, endorsement on said G.R.S. were needed by defendant No. 3 in favour of defendant No. 2. In my opinion, on the said facts, liability for the suit amount cannot be fastened on defendant No. 2.

5. Consequently, while allowing the application, suit against defendant No. 2 is dismissed. No order as to costs.