M/S. Economic Transport ... vs Shri Rajiv Khanna
2008 Latest Caselaw 2142 Del

R-12
*        IN THE HIGH COURT OF DELHI AT NEW DELHI

+                      RFA No.80/1995

                       Date of decision: 03rd December, 2008
%

       M/S. ECONOMIC TRANSPORT
       ORGANIZATION                         ..... Appellant
                     Through : Mr. Vivek Singh, Adv.

                  versus

       SHRI RAJIV KHANNA                      ..... Respondent
                      Through : None.

CORAM :-
THE HON'BLE MR.JUSTICE PRADEEP NANDRAJOG
THE HON'BLE MR. JUSTICE J.R. MIDHA

1.       Whether Reporters of Local papers may
         be allowed to see the Judgment?

2.       To be referred to the Reporter or not?

3.       Whether the judgment should be
         reported in the Digest?

Pradeep Nandrajog, J. (Oral)

1. The appellant does not dispute having received 240

cases of Krunchy Cream Wafers vide consignment No.9871

dated 02.01.1987 for carriage from Delhi to Calcutta.

2. Admittedly the consignment was not delivered at

Calcutta being seized at the Duburdih Check Post, West

Bengal. The reason was that the West Bengal Import Permit

was not produced at the check post by the driver of the

vehicle.

3. The appellant was admittedly the transporter.

4. For the loss of the consignment the consignor filed a suit

for recovery of Rs.61,854/-. The defence of the appellant was

that the West Bengal Import Permit was never handed over by

the consignor to it.

5. The respondent, i.e. the plaintiff relied upon the

photocopy of a goods receipt which was stated to be issued

by the appellant when goods were delivered for carriage. The

appellant denied authenticity of the photocopy of the goods

receipt. The appellant stated that the goods receipt was lost

when transmitted to the consignee at Calcutta. Reliance was

placed upon the goods receipt book of the appellant. A notice

under Order 12 Rule 8 was served. The appellant did not

produce its office copy of the goods receipt.

6. The plaintiff was permitted to lead secondary evidence

and prove the photocopy of the goods receipt as Ex.PW1/8.

7. Two reasons have been given by the Learned Trial Judge

against the appellant. First is that the goods receipt,

Ex.PW1/8, records the particular of the West Bengal Import

Permit. Inference drawn is that he who issued the goods

receipt had obviously before him the said permit. Now, the

broking clerk of a transporter or any other person acting on

behalf of the transporter issues the goods receipt has not

denied.

8. Learned Trial Judge has accordingly held that this shows

that the West Bengal Import Permit was handed over to the

transporter. As a limb of his reasoning, Learned Trial Judge

has noted that the appellant failed to produce the goods

receipt book which would have contained the office copy of

the goods receipt of the appellant and thus, an adverse

inference has to be drawn.

9. The second reasoning given by the Learned Trial Judge is

that a transporter would be presumed to take all necessary

precautions, which in the facts of the instant case would

require the transporter to be in possession of the West Bengal

Import Permit for the reason without the same the goods

could not have entered the territory of the State of West

Bengal.

10. Learned counsel for the appellant urges that the plaintiff

had to prove that the West Bengal Import Permit was handed

over to the appellant and could be discharged only if the

plaintiff produced evidence showing acknowledgement by the

appellant of being handed over the West Bengal Import

Permit.

11. We disagree. The fact that the appellant failed to

produce the goods receipt booklet is enough to draw an

adverse inference against the appellant. It is settled law that

where a party fails to produce the best evidence a

presumption can be raised against the party that if produced

the same would have gone against the party.

12. We also concur with the second reason of the Learned

Trial Judge, being that, the transporter would presumably

know that the goods could not have entered the territory of

State West Bengal without the import permit being in the

custody of the driver of the vehicle. That delivery of goods is

presumed to be with a delivery of the West Bengal Import

Permit.

13. We find no infirmity in the impugned judgment which we

note has disallowed the pendente lite interest. Only future

interest has been awarded @ 12% per annum.

14. Since the respondent has chosen not to appear at the

hearing, there shall be no order as to cost.

PRADEEP NANDRAJOG, J

J.R. MIDHA, J DECEMBER 03, 2008 mk