M/S Hightech Electrothermics And ... vs M/S Indo Arya Central Transport ...
2010 Latest Caselaw 3133 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                       Date of Judgment : 07.7.2010

+      R.S.A. No.127/2010 & CM No.11661/2010

M/S HIGHTECH ELECTROTHERMICS
AND HYDROPOWER LTD.             ...........Appellant
            Through: Mr.Vikas Aggarwal, Advocate.

                         Versus

M/S INDO ARYA CENTRAL TRANSPORT LTD.
                             ..........Respondents

Through: Nemo

CORAM:

HON'BLE MS. JUSTICE INDERMEET KAUR

1. Whether the Reporters of local papers may be allowed to see the judgment?

2. To be referred to the Reporter or not? Yes

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

Yes

INDERMEET KAUR, J.(Oral)

1. This appeal has been preferred by the appellant/defendant

M/s Hightech Electrothermics and Hydropower Ltd. against the

impugned judgment dated 27.3.2010 whereby the judgment of the

Trial Judge dated 16.11.2009 had been set aside and the suit of the

plaintiff i.e. M/s Indo Arya Central Transport Ltd. stood decreed.

2. Factual matrix of the case is as follows:-

i. Plaintiff and the defendant are both companies

incorporated under the Indian Companies Act. Defendant had

booked a consignment of 405 metric tons of ferrosilicon

packed in jute bags with the plaintiff. The said consignment

was to be delivered from Pallakad (Kerala) in an intact and

safe condition at Hissar (Haryana).

ii. Defendant acknowledged the bills of the plaintiff and

had agreed to make the payment in terms of the agreement

dated 21.8.2000 in terms of which the plaintiff had agreed

for deduction by 0.5% on a prorate basis if the goods or the

material was in shortfall; the permissible limit being 0.5%.

iii. As per the case of the plaintiff, the defendant had

illegally and wrongfully withheld the payment of Rs.59762/-

which he is liable to pay along with interest.

3. The Trial Court had framed five issues. The onus to prove

issue no.2 was on the defendant which reads as follows:-

"Whether the material supplied was short beyond the

permissible limit of 0.5%? OPD"

4. While disposing of this issue the testimony of PW-1 and DW-1

were considered; the suggestion given to DW-1 that the goods had

been packed in a wet condition and they had dried up in the

transportation process meaning thereby that the shortage in the

material was due to the wet condition of the goods at the time of

loading.

5. The suit of the plaintiff was dismissed by the Trial Court

having been held to be not proved.

6. In appeal, the Additional District Judge noted that there are

certain facts which are admitted between the parties and which the

Trial Court had failed to appreciate. The relevant extract of the

said admissions is reproduced and read as follows:-

"Number of documents including correspondences between the parties lying on Trial Court record filed by both the parties are not disputed. The following admitted facts in respect of the transaction in question between the parties are as under:-

1. An agreement dated 21.8.2000 Ex.PW-1/6 was entered into between the parties containing the terms and conditions of transaction.

2. As per this agreement, the appellant transported

the goods i.e. Ferro Silicon of the respondent company from Palakkad (Kerala) to M/s Jindal Strips Ltd. Hissar (Haryana).

3. That the goods kept in various bags loaded on the trucks of the appellant by the respondent were wet in condition as revealed in the GRs Mark A.

4. Due to wet conditions of the goods, extra baggages were loaded on each and every truck to compensate the loss as admitted by PW-1 as well as mentioned in the letter of the respondent Ex.PW-1/4.

5. That appellant delivered the goods at the destination but the consignment was found short in weight as mentioned in the back of GRs Mark A by M/s Jindal Strips Ltd.

6. That under the agreement dated 21.8.2000 Ex.PW-

1/6 the shortage to an extent of 0.5% was permissible otherwise for the shortage beyond this limit, the deduction on pro rate basis was to be made by the respondent from the account of the appellant.

7. That respondent deducted the amount due to shortage of the goods and balance of Rs.59,762/- was withheld according to pro rate calculations.

8. Appellant demanded this deducted/withheld amount by various letters and the legal notice but the payment was not released to him by the respondent."

7. The Appellate Court had noted that the parties had admitted

that the ferrosilicon material becomes heavy when it is in wet

condition and reduces in weight when it is in a dry condition. It

was also concluded by the Trial Court that the defendant has

nowhere alleged that the goods were either stolen or removed from

the journey; it was also not the defence of the defendant that any

bag was found short at the destination or that the shortage of

goods had occurred due to mistake or negligence of the defendant

or that the goods had not been delivered in an intact condition at

their destination point. The first Appellate Court had concluded

that the shortage was not due to any fault or negligence on the

part of the plaintiff but because of the nature of the transported

goods.

8. Both the Courts had examined the documents in this regard,

two of which are very relevant for the purpose of deciding this

appeal. Ex.PW-1/5 is the first document which is dated 3.11.2000.

It is a letter sent by the defendant to the plaintiff wherein it has

inter alia been stated:

"The above deductions are on account of excess shortages beyond tolerance of 0.5% of one truck load. We have been debited in excess of this amount by party and we accordingly debited a portion of it duly considering losses on A/c of act of God."

9. As per Ex.PW-1/5 the loss suffered by the defendant has

been attributed to "an act of God".

10. Ex.PW-1/10 is another relevant document. This is dated

8.11.2000 and has been addressed by the plaintiff to the

defendant. Relevant extract of this communication reads as

follows:

"In connection with the above, we are to draw your kind attention that 217 tons material out of total of 288 tons which we had lifted was in wet condition. Accordingly our booking staff at the time of loading of material into the trucks has clearly remarked in the GR,s that "ALL BAGS IN WET CONDITION".

The list of such wet consignment are enclosed herewith for your ready reference."

11. This document clearly shows that booking staff of the

plaintiff at the time of leading the material into the truck had

clearly marked in the GRs that the bags are in a wet condition.

This factual averment is also not disputed.

12. Before this Court, it has been urged that ferrosilicon is a raw

form of iron which cannot absorb water. It is, however, not

disputed by learned counsel for the appellant that the jute bags in

which the ferrosilicon material had been packed were in a wet

condition. This fact has been considered by the Appellate Court

and rightly so. Appellate Court, taking judicial notice of certain

contingencies had held that obviously, when the water had been

soaked by the jute bags they had become heavier in weight and

during the journey from Palakkad to Hissar by truck in the 4-5 day

duration the water in the bags would have dried up which had

resulted in the weight loss of the material.

13. The questions of law formulated by the appellant in the

present appeal find mention on page 2 of the appeal. These

questions border upon the interpretation of Ex.PW-1/5 and

Ex.PW-1/10 as also the terms and conditions of the agreement

Ex.PW-1/6 dated 21.8.2000.

14. Counsel for the appellant has placed reliance upon a

judgment cited as (2006) 5 SCC 545 Hero Vinoth (Minor) Vs.

Seshammal to substantiate his arguments that in certain

circumstances where the decision rendered on a material question

has violated the settled position of law, a substantial question of

law arises. The ratio deduced from this judgment does not come

to the aid of the appellant; he has nowhere been able to

substantiate this proposition; which position of law has been

violated by a reading of which particular document has neither

been argued nor explained.

15. The first Appellate Court had in these circumstances rightly

concluded that this decrease in the weight could in any manner be

the liability of the plaintiff and especially so when no such act of

negligence or fault has been levelled by the defendant upon the

plaintiff.

16. It is also not the case of the appellant before this Court that

something has been read into these documents which did not find

mention in them or that the same have not been considered. The

Trial Court had drawn inferences from the recitals of the contents

of Ex.PW-1/5, Ex.PW-1/6 and Ex.PW-1/10. The judgment of the

Appellate Court has been based on a plain reading of the said

documents which are clear and unambiguous and have been

appreciated in the context of the facts of the case. There is no

question of law much less any substantial question of law which

has arisen in this case.

17. The Supreme Court in the judgment cited supra qualified

the definition of the phrase "substantial question of law" as

occurring in the amended Section 100 of the CPC.

"It essentially means a question of law having substance, essential, real, of sound worth, important or considerable. Such as question has to be understood as something in contradistinction with - technical, of no substance or consequence or academic merely."

18. There is no such question which has arisen before this

Court. The judgment of the two fact finding Courts cannot be

faulted with. This Court is not seized of jurisdiction as no

substantial question of law has arisen. Appeal is without merit.

The appeal and the pending application are dismissed.

INDERMEET KAUR, J.

JULY 7, 2010 nandan