Delhi High Court
Kanwar Shankar vs M/S Greatway Carrying ... on 21 April, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RSA No. 287/2015
% 21st April, 2017
KANWAR SHANKAR ..... Appellant
Through: Mr. R.K. Sharma, Advocate.
versus
M/S GREATWAY CARRYING CORPORATION ..... Respondent
Through: Mr. Ashutosh Lohia, Ms. Pragya
Srivastava and Ms. Soumya
Kumar, Advocates.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. This Regular Second Appeal is filed under Section 100 of
the Code of Civil Procedure, 1908 (CPC) by the appellant/plaintiff
against the concurrent judgments of the courts below; of the Trial
Court dated 6.1.2012 and the First Appellate Court dated 13.4.2015; by
which the suit filed by the appellant/plaintiff for recovery of Rs.
2,26,200/- along with interest has been dismissed.
2. The case of the appellant/plaintiff was that he was an
agent of M/s Terai Tea Company Limited, Siliguri, and this M/s Terai
Tea Company sent 95 packages of tea worth Rs.1,23,000/- to the
appellant/plaintiff through the respondent/transporter/defendant vide
consignment note No. 02999 dated 7.1.2003. It is further pleaded in
para 7 of the plaint that the appellant/plaintiff paid the freight and other
charges to the respondent/defendant and requested for delivery of the
goods but the goods were not delivered. Ultimately, the
appellant/plaintiff claims to have sent a legal notice dated 31.5.2003,
which failed to yield results, and therefore the subject suit was filed.
3. Respondent/defendant contested the suit and pleaded
various grounds for the suit being dismissed including the suit being
bad for non-joinder of necessary parties, the suit being barred by
limitation and most importantly that in fact the appellant/plaintiff had
failed to pay the freight charges and hence goods were not delivered to
the appellant/plaintiff. It was accordingly pleaded by the
respondent/defendant that since there was no payment of freight
charges by the appellant/plaintiff, hence the appellant/plaintiff is not
entitled to delivery of the goods. The respondent/defendant also
claimed that in terms of the consignment note it is entitled to a sum of
Rs.5 per quintal per day (wrongly typed as Rs.50 in the written
statement) and accordingly the appellant/plaintiff was only entitled to
receive the goods on payment of freight charges plus
demurrage/godown charges.
4. After the pleadings were complete, the trial court framed
two issues as to whether the appellant/plaintiff was entitled to the suit
amount and whether the appellant/plaintiff was entitled to interest.
5. The Courts below have dismissed the suit observing that
the appellant/plaintiff has failed to prove that he had paid the freight
charges as was pleaded in para 7 of the plaint. Courts below have
referred to the evidence and observed that no document was filed by
the appellant/plaintiff of payment to prove the freight charges. The
courts below have also observed that the case of the appellant/plaintiff
that he had paid the freight charges but he did not have the receipt is
false because if the payment had been made then this would have
reflected in the books of accounts of the appellant/plaintiff, but even
the books of accounts were not filed.
6. I may note that in the present case though the
respondent/defendant has led no evidence yet the appellant/plaintiff
has to stand on his own legs and prove his case in the plaint of
entitlement of goods on account of payment of freight charges. Also,
since the consignment note is an admitted document and proved by the
appellant/plaintiff itself as Ex.PW1/2, in terms of Clause 7 of this
consignment note for delay beyond one week, appellant/plaintiff was
liable to pay demurrage/godown charges, and which were not paid. It
is accordingly seen that the courts below have rightly dismissed the
suit as the appellant/plaintiff miserably failed to prove that the freight
and demurrage charges were paid to the respondent/defendant.
7. No substantial question of law arises. Dismissed.
APRIL 21, 2017 VALMIKI J. MEHTA, J
AK
