M/S Varuna Integrated Logistics ... vs M/S Goel Road Carriers & Anr
2013 Latest Caselaw 5757 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                   Date of decision: 13th December, 2013.

+      RFA 529/2013 & CM No.18073/2013 (for condonation of 33 days
       delay in re-filing the appeal)

       M/S VARUNA INTEGRATED LOGISTICS
       PVT. LTD.                                 ........Appellants
                    Through: Mr. S.R. Parashar, Mr. S.S. Parashar
                             and Mr. Anand Parashar, Advocates.

                                Versus

    M/S GOEL ROAD CARRIERS & ANR       ..... Respondents
                  Through: None.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J.

1. The appeal impugns the judgment and decree dated 24 th June, 2013 of

the Court of the Additional District Judge (ADJ)-III, Rohini Courts, Delhi of

dismissal of Suit No.234/2011 filed by the appellant/plaintiff on the

preliminary issue framed of limitation.

2. The appeal came up before this Court first on 2nd December, 2013,

when the counsel for the appellant/plaintiff pegged his case on Article 68 of

the Schedule to the Limitation Act, 1963. However, the appellant/plaintiff

along with the memorandum of appeal had not filed a copy of the plaint to

show that the case as pleaded was within the ambit of said Article. A

perusal of the Trial Court judgment did not show the counsel for the

appellant/plaintiff to have before the Trial Court urged Article 68 of the Act.

In the circumstances, the Trial Court record was requisitioned and the

appeal posted for today for hearing on admission.

3. A perusal of the Trial Court record shows the appellant/plaintiff to

have on 25th May, 2011 instituted the suit, pleading:

(i) that the appellant/plaintiff is carrying on transport business;

(ii) that the respondent/defendant No.1 is a transport broker

providing trucks to various transport companies;

(iii) that the respondent/defendant No.2 M/s Hindustan Unilever

Ltd. is a contract client of the appellant/plaintiff and the

appellant/plaintiff carries goods / consignments of respondent No.2 to

various destinations;

(iv) that the appellant/plaintiff approached the respondent/

defendant No.1 for delivering consignment of respondent/defendant

No.2 to Delhi;

(v) that the respondent/defendant No.1 provided truck No.HR-38-

H2012 to the appellant/plaintiff for transporting the goods of the

respondent/defendant No.2;

(vi) that the value of the goods of the respondent/defendant No.2 so

booked for transportation was Rs.17,00,423.53 paise;

(vii) that the consignment was booked vide Goods Consignment

Note dated 22nd January, 2008 of the appellant/plaintiff;

(viii) that the respondent/defendant No.1 failed to deliver the

consignment to the respondent/defendant No.2 due to the alleged theft

in the truck and a First Information Report (FIR) bearing No.14/2008

of Police Station Alipur, Delhi was lodged in this regard;

(ix) that out of 1029 cartons, only 490 were recovered;

(x) that the invoice value of 539 undelivered cartons was

Rs.8,90,697/-;

(xi) that the appellant/plaintiff also got registered FIR No.32/2008

against the respondent/defendant No.1 under Section 406 I.P.C. at

Police Station Ranipur, Haridwar, Uttrakhand;

(xii) that the appellant/plaintiff many times approached the

respondent/defendant No.1 for settling the claim of the

appellant/plaintiff but the respondent/defendant No.1 did not settle

inspite of assurances;

(xiii) that the appellant/plaintiff came to know about the quantity of

the lost cartons, after FIR No.14/2008 was got lodged and

accordingly the consignment was got released by the

appellant/plaintiff from the Court of Metropolitan Magistrate vide

order dated 29th May, 2008;

(xiv) that the cause of action accrued to appellant/plaintiff for the

first time on 29th May, 2008 when the appellant/plaintiff came to

know about the quantity of the cartons so recovered by the police in

FIR No.14/2008 and thereafter when the appellant/plaintiff requested

the respondent/defendant No.1 to settle the claim but the

respondent/defendant No.1 did not.

Accordingly, the suit for recovery from the respondent/defendant

No.1 of Rs.8,90,697/- with interest was filed.

4. A perusal of the Trial Court record further shows that when the suit

first came up before the ADJ on 26th May, 2011, the counsel for the

appellant/plaintiff was asked to satisfy, as to how the suit was within time.

It was pointed out to him that in the entire plaint, neither date of theft nor

the place of theft had been mentioned and the appellant/plaintiff appeared to

have concealed material facts to wriggle out of the law of limitation. The

suit was adjourned to enable the appellant/plaintiff to furnish better

particulars.

5. No such particulars were furnished and dates were taken from time to

time. Thereafter, only copy of FIR No.14/2008 of Police Station Alipur was

filed and again adjournments were taken from time to time.

6. Ultimately, the learned ADJ vide the impugned judgment/order

dismissed the suit, finding/observing/holding:

(a) that the appellant/plaintiff had also placed on record copy of

FIR No.32/2008 lodged by it on 28th January, 2008 at Police Station

Ranipur against the respondent/defendant No.1;

(b) thus, the cause of action had arisen to the appellant/plaintiff at

least on 28th January, 2008, when FIR of theft/misappropriation of

consignment was lodged against the respondent/defendant No.1;

(c) that as per Article 10 of the Limitation Act, 1963, the period of

limitation for compensation against carrier for losing or injuring the

goods, is three years from the date when the loss or injury occurs;

(d) that since the appellant/plaintiff came to know about theft or

misappropriation of the goods at least on 28th January, 2008, even if

the period of three years is counted therefrom, the suit filed on 25th

May, 2011, was barred by time;

(e) that the judgments cited by the counsel for the

appellant/plaintiff are not applicable;

7. Though the counsel for the appellant/plaintiff has not argued any

further, but again a perusal of the Trial Court file shows that the judgments

relied upon by the counsel for the appellant/plaintiff and which were held to

be not applicable, pertained to Article 68 supra of the Schedule to the

Limitation Act.

8. The said Article 68 in part VI titled "suits relating to movable

property" of the Schedule to the Limitation Act provides a limitation of

three years for a suit for specific movable property lost, or acquired by theft,

or dishonest misappropriation or conversion, commencing from the date,

when the person having the right to possession of the property first learns in

whose possession it is.

9. On a bare reading of the said provision, it appears that the suit to

which the said Article can apply, has to be a suit for recovery of specific

movable property and not a suit for recovery of value thereof, as the subject

suit was. However, in the judgments relied upon by the counsel for the

appellant/plaintiff before the Trial Court, are found to be the following

judgments:

(I) Champalal Vs. Ramchander AIR 1976 Rajasthan 75, where

relying on K.S. Nanji and Co. Vs. Jatashankar Dossa AIR 1961 SC

1474, it was held that a person having the right to possession of a

movable property wrongfully taken from him by another, can file a

suit to recover the said specific movable property or for compensation

therefor within three years from the date, when he first learns in

whose possession it is;

(II) Lodna Colliery Co. (1920), Ltd. Vs. Bholanath Rai AIR 1954

Calcutta 233, where also a suit for damages for coal wrongfully taken

away was held to be governed by the equivalent Article to the

Limitation Act of the year 1908;

(III) K.S. Kanji & Co. Vs. Jatashankar Dossa AIR 1956 Patna 526

to the same effect;

(IV) Jaganji Vs. Bandan AIR 1930 Allahabad 397, where a suit for

recovery of money in lieu of specific movable property, was in view

of earlier judgments, held to be a suit for specific movable property,

though expressing a doubt qua the said proposition;

(V) K.S. Nanji and Co. Vs. Jatashankar Dossa AIR 1961 SC 1474

supra;

(VI) Sankar Dastidar Vs. Shrimati Banjula Dastidar (2006) 13

SCC 470 laying down that though Article 68 is for recovery of

specific movable property but since Article 91 providing for a suit for

compensation for wrongfully taking or detaining any specific

movable property lost or acquired by theft or dishonest

misappropriation or conversion, is three years beginning from the

date, when the person having the right to possession of the property

first learns in whose possession it is, the principle of Article 68,

applies to money claims also in lieu of such property.

10. Thus, it has to be accepted that Article 68 has been correctly invoked

by the counsel for the appellant/plaintiff and the learned ADJ is in error in

holding that the judgments relied upon by the counsel for the

appellant/plaintiff, were not applicable. The learned ADJ appears to have so

held without even going through the said judgments.

11. However, for Articles 68 or 91 to apply, there has to be a plea as to on

what date, the plaintiff first learnt in whose possession the property is.

There is no such plea in the plaint in the present case. The suit is claimed to

have been instituted within three years of 29th May, 2008, which is pleaded

to be the date of the order by which the goods recovered were ordered to be

released to the appellant/plaintiff. No date has been given on which date the

appellant/plaintiff first learned that the goods whose value was claimed,

were in wrongful possession of the respondent/defendant No.1. In fact,

there is no plea even to the effect that the goods, though claimed by the

respondent/defendant No.1 to have been stolen from it in transit, were found

to be in respondent / defendant No.1‟s possession only. Rather, the pleas

are that the respondent/defendant No.1 merely provides and „provided‟ the

truck to the appellant/plaintiff for transporting the goods. The question of

the respondent/defendant No.1 thus being in possession of the goods for the

purposes of transit, would not arise, as once the truck had been provided by

the respondent/defendant No.1 to the appellant/plaintiff and the

appellant/plaintiff was carrying the goods of the respondent/defendant No.2

therein, the goods would be deemed to be in possession of the

appellant/plaintiff only. The observations made by the learned ADJ on the

very first date when the suit was listed, of the appellant/plaintiff having

concealed facts to get over the limitation, is thus found to be apposite.

12. A perusal of the order dated 29th May, 2008 of the Metropolitan

Magistrate found on the Trial Court record, though refers to recovery of

goods, does not show from whom the goods were recovered. The FIR

No.14/2008 lodged by the respondent/defendant No.1 is also of having

provided the truck to the appellant/plaintiff and having gone missing. FIR

No.32/2008 dated 28th January, 2008 of Police Station Ranipur, Haridwar,

Uttrakhand lodged by the appellant/plaintiff on 22nd January, 2008, is also

of apprehension that Mr. Jatin Goel proprietor of the respondent/defendant

No.1 having in conspiracy with the driver, misappropriated the goods.

There is not a single document to show that some of the goods were

recovered from the respondent/defendant No.1 or as to when the

appellant/plaintiff learnt thereof.

13. The counsel for the appellant/plaintiff during the hearing argued that

the appellant/plaintiff learnt of the recovery from the respondent/defendant

No.1 on 28th May, 2008. However, in the absence of any pleading neither in

the plaint nor in this appeal, no cognizance of such oral submission can be

taken. In fact, the counsel is also unable to tell, as to when the application

for release of goods on which the order dated 29th May, 2008 was made,

was filed. No copy of such application has also been filed.

14. There is thus no merit in this appeal, which is dismissed; however the

appeal having been dismissed without issuing notice to the

respondent/defendant No.1, no costs.

Decree sheet be drawn up.

RAJIV SAHAI ENDLAW, J.

DECEMBER 13, 2013 bs