Karnataka High Court

M/S. Abt Parcel Service vs M/S. Desh Vijay on 1 July, 2024

Author: Suraj Govindaraj

Bench: Suraj Govindaraj

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                                                            NC: 2024:KHC:24821
                                                          CRP No. 243 of 2018




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                             DATED THIS THE 1ST DAY OF JULY, 2024

                                            BEFORE
                          THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
                         CIVIL REVISION PETITION NO. 243 OF 2018 (SC)
                   BETWEEN:

                   1.    M/S. ABT PARCEL SERVICE,
                         NO.180, RACE COURSE ROAD,
                         COIMBATORE-641 018,

                   2.    M/S. ABT PARCEL SERVICE,
                         CHANGANACHERRY DEPOT, 686 101,
                         KOTTAYAM DISTRICT -686 101

                   3.    M/S. ABT PARCEL SERVICE
                         NO.170/1, GROUND FLOOR, KILLARY ROAD,
                         AVENUE ROAD CROSS, BANGALORE-560 053

                         ALL THE 3 PETITIONERS
                         REPRESENTED BY
Digitally signed
by                       K. DURAISAMY,
NARAYANAPPA
LAKSHMAMMA               CHIEF MANAGER,
Location: HIGH           ABT PARCEL SERVICE.
COURT OF
KARNATAKA                                                       ...PETITIONERS
                   (BY SRI. A.J. SRINIVASAN., ADVOCATE)

                   AND:

                   1.    M/S. DESH VIJAY
                         A PROPRIETORSHIP CONCERN,
                         1ST FLOOR, SIDDALINGAPPA MARKET,
                         A.M. LANE, CHICKPET CROSS,
                         BANGALORE-560 053,
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                                       NC: 2024:KHC:24821
                                      CRP No. 243 of 2018




     REPRESENTED BY ITS PROPRIETOR,
     SRI. PARASAMAL JAIN,
     S/O. SHANKARLAL,
     AGED ABOUT 61 YEARS.

2.   M/S. POOTHARA TEXTILES,
     SBT JUNCTION,
     KAVALAM ALAPPUZHA DISTRICT-688 506,
     KERALA STATE,
     REP. BY ITS PROPRIETOR,
     SRI. JOSE JOSEPH.

3.   THE FEDERAL BANK LTD.,
     KAVALAM BRANCH,
     JOBINS CENTRE,
     NEAR KSRTC DEPOT, KAVALAM JN,
     ALAPPUZHA-688 506,
     KERALA STATE,
     REP. BY ITS BRANCH MANAGER.
                                           ...RESPONDENTS
(BY SRI. RAVIKUMAR M.R., ADVOCATE FOR R3;
    SRI. VITTALA SHETTY P., ADVOCATE FOR R1;
    R2 SERVED AND UNREPRESENTED)

      THIS CRP IS FILED UNDER SEC.18 OF THE SMALL
CAUSES COURT ACT, 1964 AGAINST THE JUDGMENT AND
DECREE DATED 9.3.2018 PASSED IN SC NO.248/2017 ON THE
FILE OF THE III ADDL. SENIOR CIVIL JUDGE AND XXIX ACMM,
COURT OF SMALL CAUSES, BANGALORE, PARTLY DECREEING
THE SUIT FOR RECOVERY OF MONEY.

      THIS PETITION, COMING ON FOR FURTHER HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
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                                               NC: 2024:KHC:24821
                                            CRP No. 243 of 2018




                            ORDER

1. The petitioners are before this Court seeking for the

following reliefs:

"WHEREFORE the petitioners above named most humbly submit that this Hon'ble Court may be pleased to set aside the judgment and order dtd. 09-03-2018, of the learned III Addl. Senior Civil Judge, Court of Small Causes, Bengaluru (SCCH-18) in S.C.248/2017 and allow this Revision Petition".

2. The petitioners are carrying on the business of

transport services. Respondent No.1/plaintiff is a

customer of the petitioners who had consigned

certain material to the petitioner for transport and

delivery to respondent No.2/defendant No.4. The

methodology of operation was that the plaintiff was

to draw up the invoices, hand over the same to

defendant No.5-Bank, who had to receive the

payments from defendant No.4 consignee and hand

over the consignee copy, which consignee copy was

to be then presented to the petitioners/defendants

No.1 to 3 for collection of the consignment.

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3. Insofar as the subject transaction is concerned, there

were three consignment notes which had been drawn

up being Ex.P5 bearing No.890626, Ex.P6 bearing

No.890628 and Ex.P7 bearing No.890625. All these

were handed over by the plaintiff to the bank with

the above understanding. The clear and categorical

letter issued by the plaintiff at Ex.P4, which is the

covering letter enclosing the above three documents

with instructions to the bank to collect the amounts

plus the bank charges, if any, and only on realization

to deliver the documents to the consignee and

forward the demand draft to the consignor-plaintiff.

4. Two of the consignment notes having been honoured

by receipt of the monies and the monies paid to the

plaintiffs, one of them bearing No.890628 was not so

honoured, but however, the consignment note came

to be delivered to defendants No.1 to 3 i.e. the

transporter. On receipt of the said consignment note,

the transporter handed over the goods to the

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consignee, as regard which the plaintiff contended

that he had not paid the money and as such filed a

suit in SC No.248/2017 for recovery of the monies by

making the transporter, the consignee and bank a

party.

5. The Trial court vide impugned judgment dated

09.03.2018 in SC No.248/2017 partly decreed the

suit as against defendant Nos.1 to 4 i.e., transporter

and consignee and dismissed the suit against the

bank. The transporter and consignee were directed

to jointly and severally make payment of a sum of

Rs.46,116/- with interest at the rate of 12% p.a., till

realization. It is challenging the said judgment that

the transporter is before this Court seeking for the

above reliefs.

6. Sri.A.J.Srinivasan, learned counsel appearing for the

transporter would submit that the only duty owed by

the transporter was that the goods transported were

to be handed over on receipt of the consignment

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note. The consignment note having been presented

by the consignee to the transporter, there is no other

obligation owed by the transporter except to hand

over the goods to the consignee. The aspect of how

the consignment note found its way to the consignee

is a matter between the plaintiff, the bank and the

consignee since the plaintiff had handed over the

original documents to the bank, which the bank was

to hand over to the consignee after receipt of the

amounts. Since the consignee had approached the

transporter with the original of the consignment

note, the only obligation that was to be discharged

by the transporter was to hand over the goods,

which has been done. There is no allegation of fraud

or collusion between the transporter and the

consignee, the transporter having received the

original consignment note, the handover of the goods

is in discharge of the obligation of the transporter.

The transporter could not be mulcted with any

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liability, if at all, it is the matter between the bank

and consignee.

7. Sri.Ravikumar, learned counsel appearing for

respondent No.3-Bank would submit that the bank

had received only two consignment notes. The

consignment notes subject matter of the suit was

never received. Defendants No.3 and 4 would submit

that the present consignment note was never

delivered to the bank. The bank had neither received

the money nor handed over the consignment notes

to the consignee and the bank has nothing to do with

it. Therefore, he submits that the judgment passed

by the Trial court is proper and correct.

8. He further submits that when an enquiry was made

the bank has already issued a letter of clarification in

terms of Ex.P3, categorically indicating that the

documents were never delivered to the bank and

therefore there is no negotiation and the said

document was never delivered to the bank. By

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relying on Ex.D1, he submits that the copies were

directly received by the consignee from the consignor

without intimation of the bank, therefore the bank is

not responsible.

9. Learned counsel for the plaintiff submits that the

original consignment notes along with the invoices

were forwarded to the bank under cover of the letter

at Ex.P4 which were never sent to the consignee and

the consignee had received it only from the bank and

therefore, he submits that it is for the bank to be

also answerable to the claim made by the consignor

and the bank has not discharged its duties. Insofar

as Ex.D1 is concerned, learned counsel for the

plaintiff submits that the said document is dated one

year after the consignment was made and the same

cannot be taken note of.

10. Heard Sri.A.J.Srinivasan, learned counsel for the

petitioner, Sri.Ravikumar, learned counsel for

respondent No.3 and perused papers.

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11. The manner and methodology of the operation of the

contract between the parties has been already

explained hereinabove. Whether the parties have

acted as per the methodology is what is required to

be seen. The invoices have been made out in the

name of defendant No.4 consignee, the consignor

and consignee bills were drawn by defendant Nos.1

to 3, both were handed over to the consignor i.e.,

plaintiff, the consignor retained the consignor's copy

as per the Ex.P1(a) and forwarded the consignee

copy to the bank in terms of Ex.P4. The

acknowledgment thereof, in respect of the present

transaction is in terms of Ex.P6, relating to

consignment note No.890628. This consignment note

was produced before the transporter in terms of

which goods were handed over.

12. The consignment note No.890628 dated 25.03.2014,

Ex.D1 was issued on 22.04.2015 by the consignee to

the transporter only indicates that the original has

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been received from the consignor. The bank having

received Ex.P6 being the consignment note, it is

clear that the consignee's copy had been handed

over to the bank. Ex.D1 has been issued much later,

the veracity of the same has not been established,

Ex.P6 clearly indicating that bank has received the

document, the document was in the custody of the

bank, as could be seen from Ex.P4 being a letter

addressed by the consignor to the bank with the

details of the consignment notes clearly and

categorically mentioned.

13. When that was the case, the consignment note being

in the custody of the bank and the bank was required

to negotiate all the three consignment notes, two of

them have been negotiated, only one was not so

negotiated resulting in this suit. Though the bank has

issued a letter at Ex.D3 that it has not negotiated

that particular consignment note, I am unable to

appreciate such a submission made by the bank,

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since the bank had custody of all the three

consignment notes. There is no explanation offered

by the bank as to how the consignment note, original

of which was handed over to the possession of bank

found its way to the consignee. Except by relying on

Ex.D1 issued in the year 2015 to contend that the

consignor had directly handed over the consignment

note to the consignee. That cannot be accepted in

the light of Exs.P4 and P6 which indicate that it is the

bank which had possession of the said document.

14. In that view of the matter, the finding of the Trial

Court that the transporter-petitioners in the present

matter have handed over the goods, subject matter

of the consignment without receipt of the money

making the transporter and the consignee jointly and

severally liable cannot be sustained.

15. The fact remains that the consignee would always be

responsible for the payment of the monies. In the

present case, it is the bank which had custody of the

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documents, which somehow found its way to the

consignee without receipt of money by the bank as

required to be collected in terms Ex.P3.

16. In that view of the matter, I am of the considered

opinion that the finding of the Trial Court in that

regard is not supported by evidence on record and it

is in fact the bank which is jointly and severally

responsible along with the consignee.

17. Hence, I pass the following:

JUDGMENT

1. The judgment and decree dated

09.03.2018 in SC No.248/2017 passed by

the Small Causes Judge at Bengaluru

(SCCH-18) is modified.

2. Defendants No.1 to 3 are absolved of the

liability, defendants No.4 and 5 are

directed to make payment of a sum of

Rs.46,116/- to the plaintiff jointly and