Punjab-Haryana High Court
M/S Thomson Press vs M/S Transport Corpn. Of India on 5 November, 2024
Neutral Citation No:=2024:PHHC:144778
RSA-798-1992 (O/M) -1- 2024:PHHC:144778
101 IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA-798-1992 (O/M)
Date of decision : 05.11.2024
M/s Thomson Press (India) Ltd. ...... Appellant(s)
Versus
M/s Transport Corporation of India Ltd. and another ...... Respondent(s)
CORAM : HON'BLE MR. JUSTICE HARSH BUNGER
Present :- Mr. Adarsh Jain, Advocate
for appellant.
Mr. Aditya Vermani, Advocate
for respondent No. 1.
Mr. Utkarsh Khatana, Advocate
for respondent No. 2.
-.- -.-
HARSH BUNGER, J. (ORAL)
1. Appellant [M/s Thomson Press (India) Ltd.] has filed the
instant regular second appeal (RSA) being aggrieved of judgment and
decree dated 28.01.1989, passed by learned Sub Judge 1st Class,
Faridabad, whereby a suit for recovery of Rs. 9,470/- filed by respondent
No. 1 (M/s Transport Corporation of India Ltd.) was decreed; as well as
judgment and decree dated 12.11.1991, passed by learned Additional
District Judge, Faridabad, whereby the appeal filed by appellant against
the judgment and decree dated 28.01.1989 was dismissed.
2. Briefly, respondent No. 1-plaintiff filed a suit for recovery of
Rs. 9,470/- against the present appellant [M/s Thomson Press (India)
Ltd.] and respondent No. 2 herein (M/s Hindustan Machine Tools
Limited) on the plea that respondent No. 2 being the consignor of goods
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had handed over a wooden case containing a machine at Eranakulam to
the branch office of respondent No. 1 (M/s Transport Corporation of India
Ltd.) for transportation of the same by road to Faridabad for delivery to
the consignee i.e. the present appellant-M/s Thomson Press (India) Ltd.
2.1 It was the pleaded case of respondent No. 1 that the
consignment was booked at owner's risk and on freight to pay basis,
wherein freight was settled at Rs. 8,910/- plus octroi and incidental
charges and the said amount was to be paid by the consignee. According
to respondent No. 1 (M/s Transport Corporation of India Ltd.), they
carried the consignment from Eranakulam to Faridabad by exercising
reasonable care and delivered the same to the present appellant, however,
the payment of the charges were not made. Accordingly, the aforesaid
suit for recovery was filed by respondent No. 1 (M/s Transport
Corporation of India Ltd.).
2.2 It transpires that respondent No. 2 herein was proceeded
against ex-parte in the suit before the learned trial Court, however, the
suit was contested by the present appellant, inter alia, on the plea that
respondent No. 1-plaintiff therein had undertaken the safe carriage of the
machine, but it failed to take due care and the machine was extensively
damaged and rendered useless; as the truck carrying the machine had met
with an accident wherein the machine was damaged extensively and the
machine was delivered without the packing case and in a damaged
condition, therefore, it is respondent No. 1-plaintiff, who was bound to
pay the cost of repair. It was also pleaded that appellant had paid the
entire purchase price of the machine and they are entitled to recover the
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same from respondent No. 1-plaintiff and they do not owe any amount to
respondent No. 1-plaintiff by way of freight charges or otherwise.
2.3 On the basis of pleadings of the parties, the learned trial
Court framed the following issues :-
"1) Whether the plaintiff is company duly incorporated
under the Companies Act and the suit filed by O.P. Gupta
on its behalf is through a duly authorised person ? OPP
2) Whether the plaintiff is entitled to recover an
amount of Rs. 9470/- from the defendants as alleged ?
OPP
3) Whether the plaintiff had been careful in
transporting the goods and the loss to the suit
consignment was not due to carelessness or negligence on
its part ? OPP
4) If issue No. 3 is not proved, whether the defendant
is not liable to pay the amount in question which is freight
charges, octroi etc. ? OPD
5) Relief."
2.4 The learned trial Court decided issue No. 2 in favour of
respondent No. 1-plaintiff by holding that the present appellant was liable
to pay the freight and octroi charges and respondent No. 1-plaintiff was
entitled to recover the amount of Rs. 9,470/-. However, the trial Court
disposed of issue No. 3, by observing as under :-
" ..... No finding is called for on issue no. 3 as even if it
is found in the appropriate proceedings that the plaintiff
was careful, I am of the opinion that the plaintiff would
still be entitled to the freight charges as they had
conveyed the goods from Ernakulam to Faridabad and
no counter claim or set off, has been claimed in this
case. The parties can move the appropriate Court for
the decision on this issue which both the counsel have
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pointed out during the course of arguments in this case
that the proceedings have been initiated in the Delhi
High Court."
2.5 Accordingly, the learned trial Court, vide judgment and
decree dated 28.01.1989, decreed the suit filed by respondent No. 1-
plaintiff against the present appellant for recovery of Rs. 9,470/- being
freight and octroi charges alongwith cost and interest at the rate of 10%
per annum from the date of institution of the suit till its realization.
2.6 The present appellant challenged the aforesaid judgment and
decree dated 28.01.1989 by filing an appeal, which was dismissed by
learned Additional District Judge, Faridabad, vide its judgment and
decree dated 12.11.1991 by holding that according to the consignment
order (Ex.D1) dated 16.09.1983, the freight and octroi charges etc. were
to be paid by the consignee i.e. the present appellant and the present
appellant's claim (if any) on account of damage caused to the machine on
account of accident, may be recovered from the transport company
separately. It was further noticed by the lower appellate court that a suit
for recovery of the aforesaid damages had already been filed by the
present appellant against the transport company (respondent No. 1-
plaintiff), which was pending in the Court at Delhi. Accordingly, the
lower appellate court upheld the findings returned by the learned trial
Court on issues No. 2, 3 and 4.
3. In the aforementioned circumstances, the appellant has filed
the instant regular second appeal before this Court.
4. The only argument raised by learned counsel for appellant is
that the learned Courts below have erred in not returning any finding on
issue No. 3, i.e. whether the plaintiff (respondent No. 1 herein) had been
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careful in transporting the goods and the loss to the suit consignment was
not due to carelessness or negligence on its part. It is submitted that in
case the finding on the said issue No. 3 is returned against respondent
No. 1 herein, then appellant would not be liable to pay the freight
charges.
4.1 During the course of hearing, learned counsel for appellant
has handed over photocopy of judgment and decree dated 07.02.2014,
passed by learned Additional District Judge, Central-14, Delhi, in Court
today, whereby the suit for recovery filed by the present appellant against
the Transport Corporation of India Limited (present respondent No. 1)
and others has been decreed for a sum of Rs. 10,00,000/- and the same is
taken on record as Mark 'X' subject to all just exceptions. It is stated that
an appeal against aforesaid judgment and decree dated 07.02.2014 is
pending, therefore, the present appeal be adjourned to await decision of
appeal against judgment and decree dated 07.02.2014.
5. Per contra, learned counsel appearing for respondent No. 1
has countered the aforesaid submissions by submitting that appellant had
not filed any counter claim in the suit, filed by respondent No. 1, rather,
appellant had filed a separate suit at Delhi, seeking recovery of an amount
of Rs. 12,98,152.95 on account of damage/loss etc. to the machine,
delivered by present respondent No. 1; wherein an issue No. 4 had been
framed that had defendant No. 2 (present respondent No. 1-Transport
Corporation of India Limited), its servants or agents had taken due care
in the carriage of the machines in dispute and accident was purely
beyond human control. It is contended that the learned trial court had
rightly not returned any finding on issue No. 3 considering the fact that
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there was no counter claim or set off claimed by present appellant and it
was found as a matter of fact that respondent No. 1-plaintiff had
conveyed the goods from Ernakulam to Faridabad, for which respondent
No. 1 was entitled to freight charges and further that separate proceedings
have already been initiated in Courts at Delhi.
6. I have heard learned counsel for the parties and have also
perused the paperbook with their able assistance.
7. Having considered the submissions made on behalf of
respective parties, I am of the considered view that the learned trial Court
has rightly held that since the goods were actually delivered by
respondent No. 1-plaintiff from Ernakulam to Faridabad in terms of the
consignment order, to present appellant, therefore, the carrier (respondent
No. 1-M/s Transport Corporation of India) was entitled for the freight and
octroi charges etc.
7.1 As regards the contention of appellant that respondent No. 1-
plaintiff was not entitled to the aforesaid freight and octroi charges as it
had not been careful in transporting the goods and the loss to the
consignment was on account of their carelessness and negligence; it is
observed that learned trial Court framed issue No. 3 in this regard, which
was disposed of by observing that the said issue would be decided by the
appropriate court where the proceedings had already been initiated in
Delhi. Infact, the separate suit for recovery filed by appellant at Delhi
for claiming amount on account of loss/damages caused to the machine
and other charges, has already been decreed in favour of appellant, vide
judgment and decree dated 07.02.2014, passed by learned Additional
District Judge, Central-14, Delhi. Furthermore, the appellant did not file
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any counter-claim/set off in the suit filed by respondent No. 1-plaintiff
(Transport Corporation of India), so as to avoid payment of freight and
other charges etc. to respondent No. 1-plaintiff. Therefore, there is no
scope for any interference in the findings returned by learned Courts
below.
7.2 That apart, in Gurnam Singh (D) By Lrs and others v.
Lehna Singh (D) By LRs, 2019(2) RCR (Civil) 586, the Ho'ble Apex
Court has observed as under:-
"Before parting with the present judgment, we
remind the High Courts that the jurisdiction of the
High Court, in an appeal under section 100 of the
CPC, is strictly confined to the case involving
substantial question of law and while deciding the
second appeal under section 100 of the CPC, it is
not permissible for the High Court to re-appreciate
the evidence on record and interfere with the
findings recorded by the Courts below and/or the
First Appellate Court and if the First Appellate
Court has exercised its discretion in a judicial
manner, its decision cannot be recorded as suffering
from an error either of law or of procedure requiring
interference in Second Appeal."
8. In my considered opinion, no question of law much less a
substantial question of law arises for consideration in this appeal.
9. No other argument has been raised.
10. Keeping in view the facts and circumstances as discussed
above, impugned judgments and decrees dated 28.01.1989 and
dated 12.11.1991, passed by learned Sub Judge 1st Class, Faridabad, and
learned Additional District Judge, Faridabad, respectively, are upheld.
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11. Present appeal is, consequently, dismissed with no order as
to cost.
12. Pending application (s), if any, shall also stand closed.
(HARSH BUNGER)
JUDGE
05.11.2024
sjks
Whether speaking/reasoned : Yes / No
Whether reportable : Yes / No
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