United India Insurance Company ... vs M/S. Xps Cargo Services
2014 Latest Caselaw 980 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          FAO No.472/2013

%                                                   21st February, 2014

UNITED INDIA INSURANCE COMPANY LTD. AND ANR.
                                            .... Appellants
                  Through: Mr. R. K. Ram, Advocate.
                  Versus
M/S. XPS CARGO SERVICES                                    ..... Respondent
                   Through:
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not? Yes.


VALMIKI J. MEHTA, J (ORAL)

C.M. No.       /2014

1.           Counsel for the appellants states that he has filed an application

for condonation of delay in terms of the liberty given on 26.9.2013. Let the

appellant place this application on record. Registry to number the same

therafter. Delay in filing of the appeal is condoned for the reason that time

spent earlier was for a wrong proceeding being a civil revision petition

instead of filing of an appeal.

             C.M. stands disposed of.

+ FAO No.472/2013



FAO No.472/2013                                                  Page 1 of 5
 2.              This first appeal under Order 43(1) (a) of the Code of Civil

Procedure, 1908 (CPC) challenges the judgment of the Court below dated

25.7.2012 which returned the plaint for presentation to the competent Court

having jurisdiction as regards the contract of transportation which was

entered   into     between    the   plaintiff   no.2/appellant   no.2   and      the

defendant/respondent as carrier for transportation of Biopesticides from

Agra to Baroda. The goods were gutted by fire in the godown of the

respondent/defendant at Baroda on 14.3.1999.

3.              Trial Court by its judgment dated 25.7.2012 has passed a very

just judgment by holding that the Courts at Delhi did not have territorial

jurisdiction, but since this issue was decided at the stage of final arguments

after evidence was led inasmuch as the trial court had no power to transfer

the suit to the civil court in Agra or Baroda. Liberty was given to the

appellants/plaintiffs to move the Supreme Court under Section 25 CPC for

transfer of the suit to the competent court of jurisdiction, however, the

appellants by this appeal obdurately insists that the Courts at Delhi have

jurisdiction.

4.              The admitted facts are that the appellant no.1/plaintiff no.1 is

the insurance company. The appellant no.1/plaintiff no.1 had insured the

goods of plaintiff no.2/defendant no.2/owner, for the value of Rs.12,46,050/-
FAO No.472/2013                                                    Page 2 of 5
 for their transportation from Agra to Baroda. The goods were transported by

the defendant from Agra to Baroda, but on 14.3.1999, the goods which were

kept in the godown of the defendant were destroyed because of a fire. The

entire consignment was burnt, and therefore after appointing of a Survey

Officer, appellant no.1/plaintiff no.1 paid the amount under the insurance

policy to the insured/plaintiff no.2, and resultantly plaintiff no.1/insurance

company became the subrogee of the plaintiff no.2 to recover the amount on

account of alleged negligence of the defendant as a carrier in causing loss to

the goods.

5.           The facts which have emerged on record are that as between the

plaintiff no.2 and the defendant no part of cause of action at all accrued in

Delhi because the contract of transportation was entered into at Agra; goods

were transported from Agra to Baroda; goods were admittedly destroyed in

the fire in the godown of the respondent-defendant at Baroda. Therefore

plaintiff no.2 if it had to file the suit the same had to be filed against the

defendant/carrier only either at Agra or Baroda because as per Section 20

CPC in contractual matters jurisdiction is of that Court where the contract is

to be executed or where the contract is performed or where payment under

the contract i.e the price for transportation of the goods is payable/paid.

None of the three aspects of execution, performance or payment has taken
FAO No.472/2013                                                 Page 3 of 5
 place at Delhi as between the plaintiff no.2 and the defendant. Since the

plaintiff no.1 is only a subrogee of the plaintiff no.2, it only steps into the

shoes of the plaintiff no.2 as regards the legal rights of plaintiff no.2 qua the

defendant. In such a case, the suit will have to be filed by the appellant

no.1/plaintiff no.1 only where cause of action had accrued wholly or in part

as regards the contract of the plaintiff no.2 with the defendant. Since no part

of cause of action had accrued in Delhi as regards the contract of the

plaintiff no.2 with the respondent -defendant, the courts at Delhi had no

jurisdiction for recovery of moneys against the respondent-defendant on

account of its negligence as a carrier of goods. Even if I accept the fact that

plaintiff no.1 made payment under the insurance policy to the plaintiff no.2

at Delhi, that would only be one aspect of the contract between the plaintiff

no.1 with the plaintiff no.2 and not of plaintiff no.2 with the respondent-

defendant.    The issues of insurance policy between plaintiff no.1 and

plaintiff no.2 would be the subject matter of jurisdiction of courts at Delhi,

however, issues between the plaintiff no.2 and defendant are not the issues

which will give jurisdiction to the civil courts at Delhi on account of the

facts as already stated above that the contract of transportation was entered

into at Agra, and the goods were transported from Agra to Baroda and

finally because the goods were destroyed in a fire at Baroda.
FAO No.472/2013                                                    Page 4 of 5
 6.           In view of the above, there is no merit in the appeal, and the

same is therefore dismissed, leaving the parties to bear their own costs.




FEBRUARY 21, 2014                             VALMIKI J. MEHTA, J.

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