Delhi High Court
M/S Hindustan Tin Works Ltd. vs M/S Himalaya International Ltd. on 18 November, 2010
Author: Sanjay Kishan Kaul
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 18.11.2010
+ WP (C) No.7011/2008
M/S HINDUSTAN TIN WORKS LTD. ...PETITIONER
Through: Mr.Harish Malhotra, Sr. Adv.
with
Mr.Tanuj Khurana, Advocate
Versus
M/S HIMALAYA INTERNATIONAL LTD. ...RESPONDENT
Through: Mr.V.Shankara, Advocate.
CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MR. JUSTICE VALMIKI J. MEHTA
1. Whether the Reporters of local papers
may be allowed to see the judgment? No
2. To be referred to Reporter or not? No
3. Whether the judgment should be No
reported in the Digest?
SANJAY KISHAN KAUL, J. (Oral)
1. The petitioner lays a challenge to the impugned order dated
01.07.2008 of the MRTP Commission („the Commission‟ for
short) in terms whereof the petitioner has been held liable
for special damages to be paid to the respondent.
2. The petitioner was supplying cans to the respondent for its
export of Mushrooms. It has been found by the Commission
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that the cans supplied during the relevant period were
defective which resulted in the supply made by the
respondent to its customers in USA being rejected. The
respondent not only claimed that it was not liable to pay the
price of cans to the petitioner, but also that the amount
which would have been payable to it by its customers was
naturally not paid and thus resulted in a loss.
3. It is the case of the respondent that the petitioner knew the
purpose for which the cans were to be utilized and thus the
respondent was entitled to special damages.
4. The impugned order dated 01.07.2008 is in two parts. The
first part deals with the liability of the petitioner for the
defective cans supplied to the respondent. The cans
supplied by the petitioner to the respondent have been
found to be defective. This portion of the order is detailed
and is a reasoned one.
5. We heard learned counsel for the parties at length and after
arguments, learned counsel for the petitioner gives up the
plea based on this portion of the order.
6. The second part of the order deals with the consequences
thereof and the extent of the liability. This is seriously
disputed by the petitioner as according to the petitioner the
respondent has failed to produce the evidence to either link
the defective cans supplied by the petitioner to the
respondent with the supplies made by the respondent to its
customers in USA or prove the special damages. This
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position is naturally repudiated by learned counsel for the
respondent. The fact, however, remains that there is really
no discussion of the evidence in this behalf and only para 15
of the impugned order of the Commission dated 01.07.2008
deals with this aspect. The said para 15 reads as under:
" As far as the compensation claim by the
applicant company is concerned, there
was no evidence led or any cross-
examination done of the applicant witness
by the respondents with regard to the
quantum of compensation claimed. In
the circumstances, it is felt that the ends
of justice would be met if the respondents
are directed to reimburse the loss of
Rs.3,49,75,290/- with simple interest @
8% per annum from the date the
concerned consignment was confiscated
by the US authorities till the date of
payment subject to deduction of any
amount which the applicant company
might have received from the insurer etc.
in the meanwhile and it is order
accordingly. There will be no order as to
costs in the circumstances."
7. We are thus of the considered view that a conclusion which
forms basis for award of special damages cannot be devoid
of discussion of the evidence in this behalf which will
indicate the proof of the number of defective cans, the
value of the product supplied in those cans, loss caused as a
result thereof and whether the loss so ascertained has to be
reduced by any transit damage amount.
8. It is agreed by learned counsel for the parties that the
matter be remanded on the limited aforesaid aspect of
quantification of damages, if any, as a sequitor to the initial
findings of the responsibility of the petitioner for the loss. It
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is also agreed that no further evidence will be permitted to
be filed by the parties and the decision would have to be
based on the evidence on record.
9. Needless to say that learned counsels for the parties
will be at liberty to advance all arguments in this behalf.
10. The consequence of aforesaid would be that the
quantification of damages as awarded in para 15 aforesaid
of the impugned order is set aside and the matter is
remanded back for fresh adjudication on that aspect.
11. We are informed that the matters of the Commission
stand transferred to the Competition Appellate Tribunal
which is functioning under the Competition Act, 2002 and
thus the fresh adjudication would have to take place before
the Competition Appellate Tribunal.
12. The parties are directed to appear before the
Competition Appellate Tribunal on 21.12.2010.
13. The writ petition is accordingly stands disposed of with
the aforesaid directions.
14. Dasti to learned counsel for the parties.
SANJAY KISHAN KAUL, J.
NOVEMBER 18, 2010 VALMIKI J. MEHTA, J.
dm
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