Gujarat High Court
M/S. Globelink Ww India Pvt. Ltd. ... vs M/S. Claris Lifesciences Limited on 11 June, 2024
Author: Sunita Agarwal
Bench: Sunita Agarwal
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C/FA/3162/2023 ORDER DATED: 11/06/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3162 of 2023
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2023
In
R/FIRST APPEAL NO. 3162 of 2023
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M/S. GLOBELINK WW INDIA PVT. LTD. THROUGH SAMEER VIRESHKUMAR
PATEL
Versus
M/S. CLARIS LIFESCIENCES LIMITED & ANR.
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Appearance:
KUSHAL A DESAI(9435) for the Appellant(s) No. 1
MR. NISHIT P GANDHI(6946) for the Appellant(s) No. 1
MR ANAL S SHAH(3988) for the Defendant(s) No. 2
MR P A MEHD(3489) for the Defendant(s) No. 1
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CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA
AGARWAL
and
HONOURABLE MR. JUSTICE PRANAV TRIVEDI
Date : 11/06/2024
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE PRANAV TRIVEDI)
1. The present First Appeal is preferred under Section 13 of the
Commercial Courts Act, 2015 read with Section 96 of the Code of
Civil Procedure, assailing the correctness of the judgment and order
dated 09.01.2023 passed below Exhibit-120 in Commercial Civil Suit
No. 563 of 2021 (old Civil Suit No. 1373 of 2011) by the learned
Judge, Commercial Court, City Civil Court, Ahmedabad, whereby the
learned Judge, Commercial Court, Ahmedabad was pleased to partly
decree the suit directing the present appellant - original defendant
no. 1 to pay an amount of Rs.17,06,612.46 paise only to respondent
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no. 1 - original plaintiff with pendente lite and future interest at the
rate of 8% from the date of filing the present suit till realization of
the amount.
2. The factual matrix which has led to filing of the present appeal
is that the appellant - original defendant no. 1 (hereinafter referred
to as the appellant) represented respondent no. 1 - original plaintiff
(hereinafter referred to as the respondent) about its ability and
experience to transport the goods from Ahmedabad, India to Kabul,
Afghanistan. The respondent is engaged in the production of
pharmaceuticals drugs viz.,Sterile injectible pharmaceutical and
products range comprises many products across multiple markets
and therapeutic segments including anaesthesia, critical care, anti-
infective etc. One of the product of the respondent being Sodium
Lactate and Sodium Chloride Intra Venous Infusion BP were sold by
the respondent to M/s. Sayed Obaidullah Sayed Zadah Limited, a
Company in Afghanistan. The respondent had to transport the goods
to Khairkana, Phase-3, Kabul, Afghanistan. Pursuant to the
representation made by the appellant, it was decided that two 40 ft.,
Containers bearing No. GLDU 7561405 and CRSU9020956 were to
be delivered through the appellant to the buyers at Kabul. It was an
undisputed fact that the consignments were in good and sound
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conditions when their delivery was taken by the appellant and the
consignments were duly packed. It is also an undisputed fact that the
goods had specific shelf-life after which the goods could not have
been used and would become useless. It is also an undisputed fact
that the respondent had paid Rs.2,36,107.43 paise and
Rs.2,35,525.03; respectively, to the appellant being the charge of
freight, terminal handling, container report, bill of loading fees, bill
of loading surrenders and other charges for the said two containers.
2.1 The said two containers were loaded around 02.07.2010 and
17.07.2010; respectively, in ships at GTIL Port in India and were to
be delivered after around 15 days at Kabul. It is also an undisputed
fact that it was categorically mentioned in the bill of loading that the
basis of transport transaction would be on CIF basis and the
appellant had assured that the delivery would be carried out in time.
However, the appellant informed the respondent that on 16.08.2010
two containers were not delivered and they were detained at
Amangarh terminal. The containers had left the shores of India on
02.07.2010 and 17.07.2010; respectively. However, on 16.08.2020
i.e. after merely after 45 days, it was informed that the goods were
detained at Amangarh terminal and had not reached Kabul. Being
aggrieved by such action of the appellant, the respondent had
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preferred Civil Suit being Commercial Civil Suit No. 563 of 2021 (old
Civil Suit No. 1373 of 2011), inter alia praying for damages, loss of
value of goods, value of replacement, loss of reputation for non-
delivery, loss of future business etc., amounting to total claim of
Rs.2,49,27,360.46 only. The learned Judge, Commercial Court, vide
judgment and order dated 09.01.2023, partly decreed the suit and
ordered claim of amount of Rs.17,06,612.46/-. It is this judgment and
order passed by the learned Judge, Commercial Court, Ahmedabad
which is assailed in the present appeal.
3. We have heard Mr. Nishit Gandhi, learned advocate appearing
for the appellant and Mr. Parth Medh, learned advocate appearing
on behalf of the respondent on service of advance copy.
4. Mr. Nishit Gandhi, learned advocate appearing for the
appellant has submitted that the consignments were to be
transported from Nhava Seva Port, India to Karachi in ship.
Thereafter, from Amangarh Terminal to Kabul, Afghanistan by road
transport in trucks. When the goods reached to Karachi, Pakistan,
there was heavy flood which affected major area of Pakistan
including Karachi. Learned advocate Mr. Gandhi has submitted that
there was a nationwide strike of truck operators in Karachi and
these reasons were beyond the control of the appellant. Learned
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advocate Mr. Gandhi has submitted that on account of the reasons
which were beyond the control of the appellant, it was duly informed
to the respondent by the appellant that it was not possible
immediately to transport the consignments to Kabul from Karachi. It
was submitted by learned advocate Mr. Gandhi that it was in view of
this situation which was beyond the control of the appellant was
explained to the respondent and further that there was a nationwide
strike of the truck operators they were demanding more fare
amounting to 4000 US $. Pursuant thereto, the respondent agreed to
such offer and in view of such agreement, the appellant in good faith
paid the amount to the transporter in Pakistan. However, the
respondent changed his version and refused to pay extra road
transportation charges and instead he shifted the burden on the
shoulder of the present appellant. Thus, it was explained by learned
advocate Mr. Gandhi that it was in this context, the appellant has
also filed counter claim.
4.1. Learned advocate Mr. Gandhi has further submitted that the
respondent was in knowledge that if the goods are to be transported
from Amangarh Terminal to Kabul and there would be extra charges
of US $2460/-. Therefore, learned advocate Mr. Gandhi has
submitted that the following are the reasons as to why goods had not
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reached Kabul :-
(a) There was natural calamity in the form of heavy floods;
(b) immediately following the floods, there was a nationwide
strike of truck operators;
(c) pursuant to the strike of the trucks, the respondent had
refused to pay extra truck fare amounting to US $2460 which
would be an interim solution of delivering of the goods;
(d) demurrage charges at Amangarh terminal waiting
acceptance, which were beyond the control of the appellant.
4.2. Therefore, according to Mr. Gandhi the reasons for goods not
reaching Kabul cannot be attributable to the appellant and as such,
the learned Judge, Commercial Court, Ahmedabad has grossly erred
in coming to the conclusion that it was a negligent act on the part of
the appellant which has resulted into goods not reaching Kabul.
Learned advocate Mr. Gandhi has also submitted that the learned
Judge, Commercial Court failed to appreciate that the suit filed by
the respondent is barred by limitation provided under the
MultiModal Transportation of Goods Act, 1993 (hereinafter referred
to as the 'Transport of Goods Act'). As per provisions of Section 24 of
the Transport of Goods Act, the multimodal transport operator shall
not be liable under any of the provisions of this Act unless action
against him is brought within nine months of the date of delivery of
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the goods. It was further submitted that appellant being transporter
as defined under the Transport of Goods Act, period of limitation was
applicable. Even assuming that the second consignment was to reach
on 29.07.2010, the suit was instituted on 22.06.2011 which was
clearly beyond the period of nine months and, therefore, the
provisions of limitation as per Transport of Goods Act will be
applicable in the present case. Therefore, the learned Judge,
Commercial Court, Ahmedabad erred in not considering the issue of
limitation. In view of this the appellant has prayed to admit the
present first appeal.
5. Per contra, Mr. P. A. Medh, learned advocate appearing for
the respondent has submitted that the appellant was liable for gross
negligence, recklessness, non delivery and loss of the goods. The
whereabouts of the two containers are not know due to inefficiency,
gross negligence of the appellant. It was submitted that the goods
were transported on 02.07.2010 and were supposed to reach Kabul
on 17.07.2010. However, to the utter shock and surprise of the
respondent, they came to know on 16.08.2010 that the goods were
not delivered at all and they were detained at Amangarh terminal. It
was further submitted that the containers lefts the shores of India on
02.07.2010 and would have reached Kabul by 13.07.2010 and as
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such, the appellant had sufficient time to clear the containers.
However, the appellant has tried to attribute his delay to other
resources in order to escape from its liability. It was submitted by
learned advocate Mr. Medh that the appellant had informed the
respondent after a period of 45 days and thereafter started by giving
excuses about the floods, strike of truck operators etc., and
thereafter made illegal demand of US $ 2460 and additional demand
of demurrage charge of US $ 14000 towards laying detention. This
was nothing but to cover up the negligent act of the appellant.
6. Mr. Anal Shah, learned advocate appearing for respondent no.
2 - Insurance Company has submitted that there is no liability
fastened on respondent no. 2 - Insurance Company. The Insurance
Company had filed their written statement in Civil Suit and explained
that the insurance cover was only extended to the loss upon
warehouse. It was further submitted that as per the provisions of the
Transport of Goods Act, the liability of payment of damages, if any, is
not to be borne by the Insurance Company as per the policy of
insurance. Therefore, the learned Judge, Commercial Court correctly
did not fasten the liability on respondent no. 2 - Insurance Company.
7. Having heard the learned advocates appearing for the
respective parties and having gone through the judgment and order
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passed by the learned Judge, Commercial Court, Ahmedabad, we
may note that the main contention of both the parties revolves
around short factual aspect. As per the contention of the appellant, it
was an 'Act of God' which had resulted into goods not reaching
Kabul. However, if the factual aspect is looked into, the goods had
left the shores of India on 02.07.2010 and were supposed to reach
Kabul on 13.07.2010. However, the information regarding the goods
having been detained at the Amangarh Terminal was given on
16.08.2010 i.e. almost after a month of the scheduled date of
delivery. This fact itself shows a clear cut negligence on the part of
the appellant.
7.1. From the judgment and order passed by the learned Judge,
Commercial Court, Ahmedabad, some factual aspects are clearly
emerging which could not be disputed before us. The goods had left
the shores of India and were to be delivered at Kabul, Afghanistan in
approximately 15 days. The appellant had led oral evidence by filing
affidavit and oral evidence of two witnesses. Both the witnesses had
accepted the fact that the goods which left the shores of India had to
reach Kabul, Afghanistan within approximately 15 days. Therefore,
the expected date of delivery of consignments was around
17.07.2010 qua first consignment and 04.08.2010 qua the second
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consignment. It is also observed by the learned Judge, Commercial
Court, Ahmedabad that as per the deposition of Mr. Jay Darji on
behalf of the appellant, there was no dispute with regard to the dates
of strike of truck operators and floods in Pakistan and both the
situation continued upto end of July and this fact was not disputed by
the witness of the appellant. Therefore, once the container left the
shores on 02.07.2010 and were supposed to reach to Kabul by road
on 17.07.2010, the 'Act of God' as envisaged by the appellant, was
not in picture.
7.2. Further, the containers contained medicines which were
having a very short shelf-life. Inspite of the above, the appellant, for
the first time, informed about the detention of the containers only on
16.08.2010. Thereafter, the appellant had demanded additional
amount of US $ 2460 as well as demurrage charges as emerging
from the record. Further, from the cross-examination of the
witnesses of the appellant it is clear that normally if the freight is
prepared, all the expenses for transporting the goods from India to
destination were to be borne by the appellant. However, the
appellant had continued to ask for additional amount for
transportation of goods from Amangarh to Kabul. The learned Judge,
Commercial Court, Ahmedabad after going through the documentary
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evidence as well as oral evidence has recorded the above noted facts,
we see no reason to interfere with the observations made by the
learned Judge, Commercial Court, Ahmedabad that there was
negligence on the part of the appellant.
7.1. The second aspect which has been argued by the learned
advocate Mr. Gandhi on the question of limitation under the
Multimodal Transportation of Goods Act, 1993. It was submitted that
as per Section 24 of the Transport of Goods Act read with Section 13,
the transporter shall not be liable under any of the provisions unless
action against him was brought within nine months from the date of
delivery of the goods. However, a perusal of the provisions of Section
24 of the Transport of Goods Act, shows that there are three
conditions stipulated for computation of limitation for institution of
the suit, i.e. (1) the date of delivery of goods ; (2) the date when the
goods should have been delivered, or (3) the date on and from which
the party entitled to receive delivery of goods has the right to treat
the goods as lost. Under sub-section (2) of Section 13, if the
consignment was not delivered within ninety consecutive days
following the date of delivery expressly agreed upon or the
reasonable time, then the consignment may be treated as lost. In the
instant case, the consignment was supposed to reach on 17.07.2010
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and 02.08.2010; respectively, and 90 days thereafter would be
02.11.2010 for the goods being considered as lost. The suit was
instituted on 22.06.2011 i.e. within the period of nine months from
the date when the goods were considered as lost. The submissions
made by learned advocate Mr. Gandhi on the aspect of limitation are,
thus, untenable and required to be rejected.
8. In view of the aforesaid observations, there is no merit in the
present appeal and the same is required to be dismissed.
9. Accordingly, the present appeal is dismissed at admission
stage. No order as to cost.
Consequently, the connected Civil Application for stay also
stands disposed of.
(SUNITA AGARWAL, CJ )
(PRANAV TRIVEDI,J)
phalguni
