Madras High Court

Drs Logistics Private Limited vs Blue Star Limited on 22 February, 2021

                                                                            S.A.No.297 of 2017

                                    IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                DATED: 22.02.2021

                                                    CORAM

                                   THE HON'BLE MR. JUSTICE KRISHNAN RAMASAMY

                                                S.A.No.297 of 2017



                  DRS Logistics Private Limited
                  221, Kabara Complex, 61 -M.G.Road,
                  Secunderabad – 500 003
                  Represented by its Dept.Manager and
                  Authorised Signatory Mr.Babulal Sharma                  .... Appellant


                                                      Vs
                  1.Blue Star Limited
                    Kasturi Buildings,
                    Mohan T.Advani Chowk,
                    Jamshedhi Tata Road,
                    Mumbai – 400 020
                    Represented by its Power Agent/Subrogee
                    The Oriental Insurance Co Ltd
                     Represented by their Sr.Divisional Manager
                     R.Viswanathan

                  2. The Oriental Insurance Company Limited
                     Oriental House, A25/27, Asaf Ali Road,
                     New Delhi – 110002

                       Also at No.10, Dwaraka, II Floor, No.79,
                       Nungambakkam High Road, Chennai – 600034
                                                                         ... Respondents




                  1/12



https://www.mhc.tn.gov.in/judis/
                                                                                     S.A.No.297 of 2017

                            Second Appeal filed under Section 100 read with Order XLII Rule 1
                  of Civil Procedure Code           against    the judgment and decree dated
                  04.11.2016 in A.S.No.330 of 2015 on the file of XVIII Additional Judge,
                  City Civil Court, Chennai, confirming the judgment and decree dated
                  25.02.2015 in O.S.No.1787 of 2011 before XIII Assistant Judge, City Civil
                  Court, Chennai.



                                        For Appellant      :     Mr.S.Satish

                                        For Respondents :        Mr.G.Guruswaminathan
                                                                 for M/s Nageswaran &
                                                                 Narichania


                                                        JUDGMENT

Challenging the judgment and decree passed by XVIII Additional

Judge, City Civil Court, Chennai in A.S.No.330 of 2015 dated 04.11.2016

confirming the judgment and decree passed by XIII Assistant Judge, City

Civil Court, Chennai dated 25.02.2015 in O.S.No.1787 of 2011, the

defendant has filed the present Second Appeal.

2. The case of the appellant is that the first defendant/first plaintiff

during their course of business despatched 110 Window Air Conditioners

of various models from Manali to Secunderabad. The said consignment

https://www.mhc.tn.gov.in/judis/ S.A.No.297 of 2017

was entrusted with the appellant/defendant to deliver the same at

Secunderabad. The consignment was insured by the first respondent/first

plaintiff with the second respondent/second plaintiff. The

appellant/defendant delivered 11 Air Conditioners out of 110 Water

Coolers of the consignments in a heavily damaged condition, which was

found on 12.12.2007. According to the appellant, the registered office of

the appellant and the branch office of the respondent/1 st plaintiff situate at

Secunderabad. Therefore, learned counsel for the appellant submits that

in the present case, jurisdiction will lie either at Secunderabad or at the

origin of the goods i.e., Manali.

3. Further, learned counsel for the appellant/defendant submits that

subrogation agreement was entered into by the first plaintiff in favour of

second plaintiff on 22.07.2008 and it was the contention of the appellant

that the first respondent/first plaintiff made claim against second

respondent/second plaintiff and the second respondent/second plaintiff

compensated in terms of subrogation agreement.

4. Learned counsel for the appellant/defendant contended that the

defendant took a point of jurisdiction before both the Courts below and

https://www.mhc.tn.gov.in/judis/ S.A.No.297 of 2017

contended that no cause of action for the suit arose at Chennai and the

jurisdiction lies either at Secunderabad or Manali. Both the Courts failed to

consider the same and wrongly held that the suit filed at Chennai is

maintainable and the Court has got the jurisdiction to try the case.

Learned counsel further submits that in similar situation, between same

parties, goods were transported from Manali to Secundarabad and in that

case, goods were damaged and the first respondent/first plaintiff made

claim against the second respondent/second plaintiff and the second

respondent/second plaintiff settled the claim and on the basis of

subrogation agreement, the plaintiffs instituted the suit at Chennai and

the first appellate Court also upheld the judgment, however, in the

second appeal in S.A.No.822 of 2015, (DRS Logistics Private Limited vs

Blue Star Limited) reported in CDJ 2017 MHC 1262, this Court on

17.03.2017, held that the plaintiffs cannot file a suit against the

appellant/defendant at Chennai as the jurisdiction will lie either at Manali

or Secunderabad.

5. This Court, on 03.02.2021, while admitting the present Second

Appeal, framed the following substantial questions of law:-

https://www.mhc.tn.gov.in/judis/ S.A.No.297 of 2017

“i) Whether the Court can have jurisdiction on the basis of a Letter of Subrogation and Special Power of Attorney when the Defendant is not a party to the said documents?

ii) Whether the Court can have jurisdiction on the basis of branch office of a Defendant which has no connection with the transaction in respect of which suit is filed?

iii) Whether the Court can override the explicit contractual agreement between the Plaintiff and Defendant when the same are legal, reasonable and explicit and have been agreed to between the parties?"

6. Learned counsel for the respondents/plaintiffs submits that in the

earlier case referred above, agreement was entered between the plaintiffs

and the respondent at New Delhi, whereas, in the present case,

agreement was entered at Chennai. Therefore, he submits that the above

said judgment will not be applicable to the present case. Further, he has

https://www.mhc.tn.gov.in/judis/ S.A.No.297 of 2017

filed written submissions, wherein, in paragraph – 9, he has stated that

in paragraph 6 of the judgment in S.A.No.822 of 2015 dated 17.03.2017,

it was held that the Second Plaintiff is having office at New Delhi and that

suit is based only on Ex.A.7 Letter of Subrogation and Special Power of

Attorney. In this case, the second plaintiff is in Chennai having office at

Nungambakkam High Road, Chennai and it is stated in para 3 of the plaint

that Policy was issued by the second plaintiff.

7. Learned counsel for the respondents/plaintiffs further submitted

that certain points were not considered in S.A.No.822 of 2015. Therefore,

the judgment relied on by the learned counsel for the appellant is not

applicable to the present case and therefore, prays for dismissal of the

appeal.

8. In reply, learned counsel for the appellant/defendant submitted

that though the respondents/plaintiffs contend that the judgment in

S.A.No.822 of 2015 is not applicable to the present case, the

respondents/plaintiffs have not challenged the said judgment. Therefore,

as on date, the above said judgment holds good. As long as the

respondents/plaintiffs have not challenged the said judgment, they cannot

https://www.mhc.tn.gov.in/judis/ S.A.No.297 of 2017

make any objection to the proposition laid down by this Court in

S.A.No.822 of 2015.

9. Heard both sides and perused the materials available on record.

10. It is an admitted fact that goods were transported from Manali to

Secunderabad. The appellant/defendant delivered 11 Air Conditioners out

of 110 Water Coolers in a heavily damaged condition. which was found on

12.12.2007. Thereafter, it appears claims have been made by the first

respondent against the Insurance Company and the Insurance Company

had settled the claim.

11. Subsequent to the damage, it appears that subrogation

agreement was entered into by the first plaintiff in favour of second

plaintiff on 22.07.2008 and by virtue of said agreement, the present suit

was filed by the respondents/plaintiffs.

12. The jurisdictional point raised by the appellant/defendant was

not considered by both the Courts below. It is pertinent to mention that in

S.A.No.822 of 2015, this Court has decided all the three substantial

https://www.mhc.tn.gov.in/judis/ S.A.No.297 of 2017

questions of law, in a similar situation, where, goods were transported

from Manali to Secunderabad and the suit for subrogation was filed at

Chennai, upheld by the appellate Court and subsequently in the second

appeal, it was reversed on the point of jurisdiction. Against that, no S.L.P

has been preferred. Therefore, as on date, the law laid down by this Court

in S.A.No.822 of 2015 (DRS Logistics Private Limited vs Blue Star Limited)

reported in CDJ 2017 MHC 1262 holds good.

13. In S.A.No.822 of 2015, the following five (5) substantial

questions of law were framed:-

“ 1.Whether in absence of the author of a document (Surveyor Report Ex.A.4) not being brought in as a witness and not tested by way of cross examination, whether the said document has evidentiary value and can be admissible as evidence?

2. Whether the plaintiff who is not the author of document (Surveyor Report Ex.A.4) mark the same and thereby deny the defendant an opportunity to test the truthfulness of the document, especially when the author of the document (Surveyor) is alive and available?

https://www.mhc.tn.gov.in/judis/ S.A.No.297 of 2017

3. Whether the Court can have jurisdiction on the basis of a Letter of Subrogation and Special Power of Attorney when the defendant is not a party to the said documents?

4.Whether the Court can have jurisdiction on the basis of branch office of a defendant which has no connection with the transaction in respect of which suit is filed?

5. Whether the Court can override the explicit contractual agreement between the plaintiff and the defendant when the same are legal, reasonable and explicit and have been agreed to between the parties?

14. The questions of law Nos.3,4 and 5 framed in S.A.No.822 of

2015 are one and the same in the present appeal. This Court answered

the question nos.3, 4 and 5 in favour of the appellant holding that the suit

cannot lie within the jurisdiction at Chennai and the suit for subrogation

will lie either at Manali or Secunderabad, where cause of action arose.

Therefore, this Court is of the view that there is no need to discuss the

same questions of law again.

https://www.mhc.tn.gov.in/judis/ S.A.No.297 of 2017

15. By following the above, I do not find any merit in the contention

of the respondents/plaintiffs and the suit is not maintainable. Hence, the

same is liable to be dismissed. Accordingly, the judgment passed in in

O.S.No.1787 of 2011 on the file of XIII Assistant Judge, City Civil Court,