M/S. Space 2000 Spa vs Goetze (India) Ltd.
2011 Latest Caselaw 2458 Del

*               HIGH COURT OF DELHI : NEW DELHI

                Judgment reserved on: April 05, 2011
               Judgment pronounced on: May 09, 2011

+                        CS (OS) No. 37/1999

%   M/s. Space 2000 SPA                 ...          Plaintiff
                   Through:        Mr. M.Hussain and Mr. Manav Ujla,
                                   Advocates.

                                   versus

    Goetze (India) Ltd.            ...            Defendant.
                     Through:      Mr. Davinder Singh, Senior Advocate
                                   with Mr. Jasmeet Singh, Mr. Saurabh
                                   Tiwari, Mr. K.D. Sengupta and Ms.
                                   Aahuti Sharma, Advocates.

    CORAM:
    HON'BLE MR. JUSTICE SUNIL GAUR

    1.         Whether the Reporters of
               local   papers   may   be
               allowed    to   see   the
               judgment?
    2.         To be referred to Reporter
               or not?                                    No.
    3.         Whether the judgment
               should be reported in the
               Digest?

    SUNIL GAUR, J.

1. In the year 1995 defendant had supplied three

consignments of readymade leather garments to the plaintiff

against full payment and details of the aforesaid consignment

finds mention in the plaint. Plaintiff is an Italian company who

had received the aforesaid consignment against Invoices of 5th

July, 1995, (Ex. P-2), 30th June, 1995, (Ex. P-3) 23rd August, 1995,

(Ex. P-4) and the said three consignments received from the

defendant were inspected in the warehouse of the plaintiff, where

it was discovered that the aforesaid consignments were defective

CS(OS) No. 37/1999 Page 1 and this was conveyed by the plaintiff to the defendant vide

Communication of 21st September, 1995, (Ex.P-5). Since the

plaintiff claims to have received no response from the defendant

to the aforesaid Communication and the subsequent reminders,

therefore the plaintiff had approached the Italian Court/Tribunal

of Genova for appointment of a Surveyor to make a detailed

Inspection/verification of the aforesaid consignment of garments

and to assess the defects therein. Vide Order of 7th December,

1995, (Ex.P-6) of Italian Tribunal, Dr. G. Bulfari was appointed as

a Surveyor, who had conducted a detailed investigation and had

concluded that the consignments in question was not negotiable

as it had inherent manufacturing defects, details of which find

mention in the Survey Report of 4th May, 1996, (Ex.P-7). On the

basis of the aforesaid Survey Report, plaintiff herein had filed a

petition for conservative arrest ante causam before the Tribunal

of Florence and ultimately the aforesaid Tribunal vide Order of

20th July, 1998, (Ex.P-6) had declined to entertain the abovesaid

petition on account of lack of territorial jurisdiction. Plaintiff

claims to have suffered loss to the tune of US Dollors 1,45,027

equivalent to Rs. 60,91,134/- and this suit to recover the

aforesaid amount is said to be within limitation, after excluding

the period spent by plaintiff in prosecuting the proceedings

before the Italian Court/Tribunal.

2. Defendant has contested the aforesaid claim of the plaintiff

by filing a written statement, wherein number of preliminary

objections have been taken including that of the plaint being

CS(OS) No. 37/1999 Page 2 barred by time and on merits, it is stated that before the

despatch of the consignment in question, representative of the

plaintiff had carried out inspection and had certified this

consignment to be fit for despatch and it is denied that the

consignment supplied was substandard or defective. In the

replication filed, plaintiff reiterates the averments made in the

plaint.

3. The issues claimed by the parties to the suit are as under:-

i. Whether the suit filed is within limitation? OPP. ii. Whether the plaint has been signed, verified and suit instituted by the duly authorised person on behalf of the plaintiff? OPP.

iii. Whether the goods supplied by the defendant to the plaintiff were defective or damaged? OPP. iv. If the above issue is proved in affirmative, whether the garments supplied by the defendant were damaged in transportation or at the hand of the plaintiff while preserving the same and no liability can be encompassed on the defendant? OPD. v. To what amount, if any, is the plaintiff entitled to recover from the defendant? OPP.

vi. Whether the plaintiff is entitled to any interest. If so at what rate and on what amount and for what period? OPP.

vii. Relief."

4. The evidence led on behalf of the plaintiff is of its Attorney

Shri Rajiv Sharma PW-1 and the defendant, though had filed the

evidence of its Financial Controller Shri Rajan Luthra but he has

not stepped into witness box and thus, the solitary evidence of

CS(OS) No. 37/1999 Page 3 the defendant is of its General Manager Shri Khalid Iqbal Khan

(DW.1).

5. When this matter came up for final hearing, plaintiff's

counsel as well as learned senior counsel for the defendant had

ably assisted this Court to scan through the evidence on record

and had made their respective submissions which have been

considered and thereafter the findings returned on the aforesaid

issues are as under:-

ISSUE NO.(i)

6. Plaintiff seeks to invoke Section 14 of the Limitation Act to

bring this suit within the period of limitation of 3 years from the

date i.e. 4th May, 1996, when the Survey Report Ex.P-7 was

purportedly made available to the plaintiff. This suit has been

instituted on 15th December, 1998, and according to plaintiff's

counsel upon computing the period of limitation from 4 th May,

1996, this suit is well within limitation. Alternatively, the time

spent by the plaintiff in prosecuting the legal remedies before the

Italian Court/Tribunal i.e. from 5th May, 1998, till 20th July, 1998, is

sought to be excluded.

7. According to learned senior counsel for the defendant, the

cause of action to file this suit arose prior to 21 st September,

1995, when letter intimating the alleged defects was sent by the

plaintiff to the defendant and since the suit has been filed after

30th August, 1998, therefore, the Report of the Surveyor, which is

not proved, would not extend the period of limitation. So far as

CS(OS) No. 37/1999 Page 4 exclusion of time spent by plaintiff in pursuing legal remedies

before Italian Court/Tribunal is concerned, the stand of learned

Senior Counsel for defendant is that since the nature of

proceedings before Italian Court/Tribunal and in the present suit

is entirely different, therefore resort to Section 14 of Limitation

Act cannot be made. In support of this submission, reliance has

been placed upon decision of the Apex Court in Jai Prakash &

Others v. Satnarain Singh & Others, 1994 Supp.(1) SCC 153.

8. On the question of limitation, what the plaintiff has averred

is that the suit is therefore, within the period of limitation even

without the aid of Section 14 of the Limitation Act, 1963. It is

evident from the aforesaid assertion that the plaintiff proceeds to

solely rely upon the Survey Report (Ex.P.7) to calculate the period

of limitation and does not seek exclusion of time spent in

pursuing the remedies before the Italian Court/Tribunal. After

scrutiny of the evidence on record, I find that the period of

limitation to institute this suit for recovery had commenced when

plaintiff had communicated to the defendant vide letter of 21st

September, 1995, (Ex.P-5) that the consignment in question is

defective and the Survey Report of 4th May, 1996, (Ex. P-7), which

is neither proved nor is per se admissible, does not and cannot

extend the period of limitation for the reason, firstly it is not duly

proved on record by its author and secondly because it was just a

tool to collect the evidence, to substantiate plaintiff's stand and

therefore in the opinion of this Court, the period of limitation has

to be calculated from 21st September, 1995, when

CS(OS) No. 37/1999 Page 5 Communication (Ex.P-5) was made by the plaintiff to the

defendant and this suit filed on 15th December, 1998, is clearly

barred by time.

9. Though, the plaintiff has not called upon this Court to

determine the applicability of Section 14 of the Limitation Act to

the facts of this instant case but even if such an attempt is made,

it would be futile for the reason that the proceedings before the

Italian Court/Tribunal as is evident from the Order of 7th

December, 1995, (Ex.P-6) were entirely in a different context of

seeking conservative arrest ante causem against the defendant,

whereas the present proceedings is in respect of claim of money.

The dictum of the Apex Court in Jai Prakash And Others (supra) is

that exclusion of time under Section 14 of Limitation Act is

available only where the earlier proceedings related to the same

matter that is in issue in the suit, and not otherwise.

10. Seen from any angle, I find that the suit is clearly barred by

time. Accordingly it is held that the suit filed by the plaintiff is

beyond the period of limitation. Thus this issue stands answered

against the plaintiff.

ISSUE NO.(ii)

11. This suit has been instituted on the strength of Power of

Attorney of 12th November, 1998, (Ex. P-1) by Shri Rajiv Sharma

PW-1, who is said to be working with a legal firm-Singhania and

company. The objection of the learned senior counsel for the

defendant is that the plaintiff's attorney Mr. Rajiv Sharma (PW.1)

CS(OS) No. 37/1999 Page 6 was having no personal knowledge of the transaction in question

and therefore the institution of the suit by the plaintiff through its

Attorney is not valid one. A bare perusal of the aforesaid Power

of Attorney (Ex.P-1) reveals that it is in the nature of a

vakalatnama and does not satisfy the requirements of a valid

Attorney, vesting authority upon its holder to institute this suit on

the subject matter of the claims made in the plaint filed.

Therefore, I unhesitatingly conclude that the Power of Attorney

(Ex.P-1) is not a valid authorization in favour of Shri Rajiv Sharma

PW-1, as this witness does not claim any knowledge about the

facts of this case. It is thus held that the suit is not validly

instituted. This issue is answered against the plaintiff.

ISSUE NOS.(iii) & (iv)

12. The burden squarely lay on the plaintiff to prove that the

consignment of garments supplied by the defendant were

defective or damaged. To discharge this burden, plaintiff heavily

relies upon the Survey Report (Ex.P-7), which though exhibited by

the plaintiff's witness in evidence, but the same is not duly

proved on record as the author of this Report (Ex. P-7) has not

stepped into the witness box to prove this Report (P-7). It is not

the case of the plaintiff that this Report (Ex. P-7) is per se

admissible. Otherwise also, it cannot be per se admissible.

Furthermore, plaintiff's witness PW-1 does not claim any personal

knowledge about the contents of this Report (P-7) and therefore

he has not been able to depose about the condition of the

consignment in question. Except for the bald statement of

CS(OS) No. 37/1999 Page 7 plaintiff's witness PW-1 of the consignment in question being

defective, there is no tangible evidence on record to substantiate

the aforesaid stand of the plaintiff.

13. During the course of hearing, Plaintiff's counsel had relied

upon few photographs (Annexure P-8) which is said to be of the

consignment in question, to demonstrate that clearly the

consignment in question was defective. These photographs

(Annexure P-8) cannot be looked into, because firstly, they are

without negatives and thus inadmissible and secondly, because

there is no reference of these photographs in the plaintiff's

evidence. On the other hand, on behalf of the defendant, strong

reliance was placed upon Inspection Certificate of 28th April,

1995, (Ex. DW-1/1) issued by the plaintiff to the defendant

certifying that the consignment in question is in order and the

plaintiff had allowed its shipment. Despite the cross examination

of defendant's witness, the authenticity of the aforesaid

Inspection/Clearance Certificate Ex.DW-1/1 remains intact.

14. Once the heavily relied upon Survey Report (Ex.P-7) is

excluded from consideration as the same is inadmissible, there

remains no worthwhile evidence to prove that the consignment in

question was defective/damaged. Thus, it is held that the

plaintiff has failed to prove that the consignment in question was

defective or damaged. Issue No.(iii) stands answered against the

plaintiff.

CS(OS) No. 37/1999 Page 8

15. Since Issue No.(iii) is not answered in affirmative therefore

the defendant is relieved from the burden of proving Issue

No.(iv). Accordingly, these two issues stand answered.

ISSUE Nos. (v) & (vi)

16. Consequent upon the findings returned on the aforesaid

issues, these two issues are answered against the plaintiff while

holding that the plaintiff is not entitled to recover any amount

from the defendant. These two issues stand answered

accordingly.

ISSUE NO.(vii)

17. Consequentially, it is held that the plaintiff is not entitled to

recover any amount whatsoever from the defendant. As such,

this suit is dismissed while leaving the parties to bear their own

costs.

18. The suit is accordingly disposed of.

Sunil Gaur, J.

May 09, 2011
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CS(OS) No. 37/1999                                                 Page 9