Delhi High Court
M/S Shri Nath Cargo Pvt. Ltd. vs M/S Parag Sarees on 17 April, 2014
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RSA No. 79/2014 & CM No. 4737/2014
% 17th April, 2014
M/S SHRI NATH CARGO PVT. LTD. ......Appellant
Through: Mr. S.K.Srivastava, Advocate
VERSUS
M/S PARAG SAREES ...... Respondent
Through:
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. This second appeal is filed under Section 100 of Code of Civil
Procedure, 1908 (CPC) impugning the judgment of the first appellate court
dated 5.2.2014 by which the first appeal was dismissed as barred by
limitation. Appellant before the first appellate court and also before this
Court was the defendant in the suit. The appellant is a transporter and
against whom the suit for recovery of Rs.69,370/- was decreed ex parte by
the judgment dated 30.8.2013.
2. The first appellate court holds that the ex parte judgment was
pronounced on 30.8.2013 but the appellant applied for the certified copy
RSA 79/2014 Page 1 of 4
only in October 2013 and filed the appeal in January 2014 clearly showing
that the first appeal was time barred. The relevant observations made by the
first appellate court are contained in paras 4 to 6 of the impugned judgment
and which read as under:-
"4. As per Article, 116(b) of the Limitation Act, 1963, the period of
limitation for filing the appeal is 30 days and the time from
which such period begins to run is from the date of decree or
order. As per certified copy of order dated 30/8/2013 passed by
Ld. Civil Judge 17, Central in suit no. 93/12 titled as M/s Parag
Sarees Vs. M/s Shrinath Cargo (P) Ltd., the plaintiff
(respondent herein) filed a suit for recovery of Rs.69,370/- from
the defendant (Appellant herein). The defendant contested the
suit by filing Written Statement of defence but subsequently
stopped appearing before the Court and was proceeded against
ex-parte on 26/07/2013. After conclusion of the ex-parte
plaintiff evidence final arguments were heard and the suit was
decreed vide order dated 30/8/2013.
5. Though, it is stated in the present application that the
Authorized Representative of the Appellant namely Sh. Laharu
Lal who used to appear in the aforesaid suit had gone to his
village without informing the Appellant and father of the
Counsel for the Appellant was in hospital, the fact remains that
no a single document in support of the contention could be filed
by the Appellant. It is also not explained why the appeal
against the impugned order was not preferred immediately after
the Counsel for the Appellant started attending the Court and
had also obtained the certified copies of the judgment in the
month of October 2013. The contention that Proprietor/one of
the partners of the Appellant company approached the Counsel
in the month of December, 2013 as another partner was
suffering from heart problems appears to be infantile and purely
hypothetical. There is also no cogent explanation furnished by
Ld. Counsel for Appellant as to why no application U/o 9 rule
13 CPC could be moved to get the ex-parte decree set-aside
before the Ld. Civil Judge.
RSA 79/2014 Page 2 of 4
6. In the afore discussed facts and circumstances, I am not
satisfied that the appellant had sufficient cause for not
preferring the appeal within limitation period. Accordingly, the
delay of more than 100 days in preferring the present appeal
against the impugned judgment is not justifiable. I do not find
any merit in the application U/s 5 of the Limitation Act, 1963
seeking condonation of delay in filing the appeal. The same is
accordingly dismissed and consequently appeal is not admitted.
A copy of the order be sent to the Trial Court for record.
File be consigned to Record Room after due
compliance."
3. I may note that the appellant-defendant had originally contested
the suit by filing the written statement, but thereafter had stopped, appearing
and was accordingly proceeded ex parte. The suit has been decreed for an
amount of Rs. 69,370/- alongwith interest at 8% per annum simple on
account of the fact that the appellant/defendant/transporter lost the
consignment which was entrusted to it for transportation by the
respondent/plaintiff.
4. It is not disputed before me on behalf of the appellant that the
consignment was in fact lost by the appellant but what is argued is that
appellant had limited the liability of the appellant in view of the terms of the
contract of transportation which limited liability to a maximum sum of
Rs.2000/-. I cannot agree with the arguments urged on behalf of the
appellant on merits though I need not look into the arguments on merits,
inasmuch as the law is well settled that the liability of transporter under the
RSA 79/2014 Page 3 of 4
Carriers Act, 1865 is equivalent to the liability of an insurer, and with only
two exceptions of there being no liability if there is an act of God or an act
of enemy. This legal position is now well settled in view of the judgment of
the Supreme Court in the case of Patel Raodways Ltd. Vs. Birla Yamaha
Ltd. (2000) 4 SCC 91. Another judgment directly on this point is the
judgment of the Supreme Court in the case of Nath Bros. Exim
International Ltd. Vs. Best Roadways Ltd. (2000) 4 SCC 553. The
transporter cannot in law contract out of the statutory liability. Therefore,
though I need not look into the merits of the case because this appeal is only
against the dismissal of the first appeal as barred by limitation, however, not
only the appeal has been rightly dismissed as barred by time but also even if
I look into the merits of the case for the sake of equity, justice and good
conscience, even then appellant-defendant has no case on merits.
5. In view of the above the appeal being without any merit is
dismissed, leaving the parties to bear their own costs.
APRIL 17, 2014 VALMIKI J. MEHTA, J.
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