Rajasthan High Court - Jodhpur
Saurabh Gupta vs Hasti Petro Chemical And Shipping Ltd on 17 September, 2024
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
[2024:RJ-JD:36744-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Civil Misc. Appeal No. 519/2024
1. Saurabh Gupta, Deputy Manager, M/s Godrej and Boyce
Manufacturing Company Ltd. having its Office at 501-506,
I Floor Gaurav Tower-1, Malviya Nagr, Jaipur.
2. Executive Director, M/s Godrej And Boyce Manufacturing
Company Ltd. having its Office at Pirojshanagar, Vikhroli,
Mumbai.
3. Director, M/s Godrej And Boyce Manufacutring Company
Ltd. having its Office at Pirojshanagar, Vikhroli, Mumbai.
----Appellants
Versus
1. Hasti Petro Chemical and Shipping Ltd. having its
Registered Address At B-1, Shastri Nagar, Jodhpur
through its Director Ruchirparakh.
2. P.G. Mistry, General Manager (Service) M/s Godrej and
Boyce Manufacturing Company Ltd., M.H.I Division
(Design Division) having its office at Pirojshanagar,
Vikhroli, Mumbai.
----Respondents
For Appellant(s) : Mr. Sanjay Nahar, Adv.
For Respondent(s) : Mr. Rajesh Parihar, Adv.
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
HON'BLE MR. JUSTICE MUNNURI LAXMAN
Judgment
Judgment Reserved on : 02/09/2024
Judgment Pronounced on : 17/09/2024
[Per Hon'ble Mr. Justice Munnuri Laxman] :
1) The challenge in the present appeal is to the judgment
dated 22.08.2023 passed by Commercial Court No.1, Jodhpur
Metropolitan on the file of Civil Original Suit No.41/2018 (NCV
[2024:RJ-JD:36744-DB] (2 of 10) [CMA-519/2024]
No.41/2018), wherein and whereby the claim for recovery of
damages was partly allowed granting an amount of
Rs.10,50,000/- with interest at the rate of 9% per annum from
13.08.2010 till the date of realisation.
2) The present appellants are the defendants and the
respondent is the plaintiff in the original suit. For convenience,
rank of the parties as referred in the suit is maintained.
3) The sum and substance of the case of the plaintiff is that
the plaintiff is engaged in the business of transport, warehousing,
fuel station, container repair, yard and the business is conducted
through its offices at Jodhpur and Anand (Gujrat). To meet his
business requirements, he placed purchase order for two Forklift
trucks with the defendants' Company. The defendants' Company
supplied two Forklift Trucks on 16.08.2010. On 18.08.2010, the
plaintiff informed the defendants about malfunction of Forklift in
its ordinary course of working as they were unable to stuff and de-
stuff the paper roles in the machine container and such
malfunction was causing damages to the plaintiff. When there was
no response, another notice was given on 26.08.2010 and the
defendants replied to the said notice denying the claims. Under
such circumstance, the plaintiff was compelled to change the
damage paper role attachment by procuring the new machinery
from Mumbai office at the cost of plaintiff, for that the plaintiff
incurred a cost of Rs.25,000/-. One of the Forklift Machine
No.34930 was constantly needed repairs for which complaints
were was lodged with the defendants. Several attempts were
made by the defendants to put it in proper function, but failed.
Finally, they treated the complaint of the plaintiff as a 'special
[2024:RJ-JD:36744-DB] (3 of 10) [CMA-519/2024]
case' and agreed to replace the engine of the machine with Tata
4SP engine, for which the plaintiff did not agree. Under such
circumstance, the present suit has been filed for claiming
damages of Rs.38,66,770/- with interest, which includes cost of
the machine, loss and damages on account of non-operation of
the machine and interest thereon.
4) The case of the defendants was that they denied the
malfunction of the machine. According to them, the problem arose
on account of improper uses of machinery. The machinery was not
properly serviced. Further, the service and other instructions of
warranty have not been followed. They have delivered the paper
role attachment without any damage. They agreed to treat the
complaint of the plaintiff as a 'special case' and also agreed to
replace the engine. In spite of such special concession, the
plaintiff did not hand over the machine for replacement of engine.
Under such circumstance, the suit is liable to be dismissed. It is
also prayed that the suit is barred by limitation.
1) On the basis of contentions of both the parties, the
following issues were framed:
"1. vk;k fd oknh dEiuh] izfroknhx.k ls izfroknhx.k }kjk
=qfViw.kZ e"khu nsus ds gtksZa o dk;Z dh {kfriwfrZ] okn [kpZ o vU;
uqdlkfu;ksa ds dqy #i;s e; C;kt 38]66]770@& izkIr djus dh
gdnkj gS \
2 vk;k fd oknh dk okn E;kn ckgj gksus ls [kkfjt fd;s
tkus ;ksX; gS \
3. vuqrks'k \"
5) The plaintiff in support of his case examined PW-1 Anil
Modi, PW-Mohan Lal and PW-3 himself and relied upon the
documents under Exhibit-P/1 to P/25. The defendants in rebuttal
[2024:RJ-JD:36744-DB] (4 of 10) [CMA-519/2024]
examined DW-1 Saurabh Gupta, DW-2 Razi M.Ibrahim and
exhibited two documents.
6) The court below after considering the evidence on record
found that the machine supplied by the defendants was defective
and the cost of the machine was ordered to be returned as a
damage with interest @ 9% par annum from 13.08.2010 till the
date of realization. Aggrieved by the same, the present appeal is
filed.
7) Heard the arguments of both the parties on final disposal
of the present appeal.
8) The points for consideration in the present appeal are: (i)
whether the damages awarded by the trial court requires any
interference, (ii) whether the suit filed by the plaintiff was barred
by limitation and (iii) whether the litigation cost awarded by the
trial court in the given circumstance requires any interference.
9) The learned counsel appearing for the appellants-
defendants has contended that the learned court below failed to
take into consideration the possession of the vehicle with the
plaintiff while awarding invoice cost of the vehicle. The court below
ought to have ordered for return of the vehicle when the value of
the vehicle was awarded in the form of damages. The learned
counsel for the appellants-defendants also contended that the
plaintiff initially filed a consumer complaint before the State
Consumer Forum and the State Consumer Forum allowed the
plaintiff's claim for compensation. On appeal, the National
Consumer Forum set aside the order of State Consumer Form
holding that Consumer Courts have no jurisdiction to entertain the
commercial dispute. Such proceedings before the Consumer Forms
[2024:RJ-JD:36744-DB] (5 of 10) [CMA-519/2024]
are not a civil proceedings and no liberty was given to file a suit so
as to claim the benefit of Section 14 of the Limitation Act.
10) The learned counsel for the appellants-defendant has also
submitted that the learned court below failed to answer the issue
of limitation having framed such an issue and answer was given
only holding that such an issue was preliminarily decided and
requires no further decision. Such approach of the learned court
below is incorrect. It is also submitted that the damages awarded
by the learned court below holding that there is a defect in the
machine supplied by the defendant is incorrect. The court below
failed to take into account that such a defect was not inherent and
such malfunction is result of improper use of the vehicle without
following the instructions. There was no proper service as required
in the warranty so as to claim the proper functioning of the
machinery.
11) The other contention of the learned counsel for the
appellants-defendants is that the learned court below awarded
exorbitant interest from the date of payment of invoice amount of
the machine. The period spent in a wrong forum ought to have
been excluded while granting interest. Therefore, in this regard
also, the judgment of the learned court below suffers from
illegality.
12) Lastly, it is contended that the learned court below has
awarded the entire litigation cost ignoring the fact that the suit
was only decreed for some of the amount and not the total
amount claimed by the plaintiff. This aspect was not properly
taken note of by the learned court below, which also requires
interference.
[2024:RJ-JD:36744-DB] (6 of 10) [CMA-519/2024]
13) The learned counsel appearing for the respondent-plaintiff
has contended that the suit was only for damages and there was
no counter-claim for return of the vehicle. As such, even the cost
of the vehicle was awarded, in absence of such a claim for return
of the vehicle, the learned court below was justified in not
ordering the return of the vehicle.
14) The learned counsel for the respondent-plaintiff also
contended that the issue of limitation was preliminarily
adjudicated by the court below and such a preliminary finding was
in favour of the plaintiff. It was carried in appeal before this Court
and the appeal was also dismissed. In view of the finality to the
preliminary issue, there was no occasion for the learned court
below to again adjudicate such an issue.
15) It is also submitted that the time spent in the Consumer
Forum was bona fide proceedings and such proceedings amount to
civil proceeding. As such, the plaintiff was entitled to get the
benefit of Section 14 of the Limitation Act. This was rightly
considered by the learned court below, which was upheld by this
Court in the previous proceedings. Therefore, adjudication of such
an issue, which has already attained finality, does not require any
interference.
16) The learned counsel for the respondent-plaintiff also
submitted that the evidence on record clearly shows that the
plaintiff had been complaining to the defendants about improper
functioning of machinery and the purpose for which, the
machinery was obtained has not been achieved resulting into
great loss to the plaintiff's business operations. In the above
background, the plaintiff was compelled to purchase new
[2024:RJ-JD:36744-DB] (7 of 10) [CMA-519/2024]
machinery from the other suppliers and incurred amounts for such
purchases and transport. According to him, the evidence clearly
shows that the appellant-plaintiff had been complaining about
malfunction of the machine. In spite of the best efforts of service
Engineers of the defendants-Company, they could not rectify the
malfunction and ultimately the defendant had agreed to treat the
claim of the plaintiff as a 'special case' and agreed to change the
engine, which was not agreed as the plaintiff was insisting for
entire replacement of new vehicle. Therefore, such a fact clearly
demonstrates that the respondent-plaintiff has suffered on
account of supply of inherent defective machine. Thus, the learned
court below was rightly awarded the damages.
17) The learned counsel for the respondent-plaintiff also
submitted that the learned court below has rightly awarded the
interest from the date of payment of invoice amount of machine
till the date of deposit, including the period spent in the bona fide
litigation. Therefore, in this regard, the intervention of the
appellate court is unwarranted.
18) Learned counsel for the respondent-plaintiff tried to
defend the award of total litigation cost, which the plaintiff
reasonably spent for claiming the damages on account of supply
of defective machinery.
19) The evidence of both the parties clearly shows that the
plaintiff had been complaining about malfunction of the machinery.
The plaintiff purchased two machinery of same kind. One was
properly working and other was given trouble. The evidence also
shows that on multiple occasions, the efforts of the service
Engineers of the defendants-Company failed to rectify the defect.
[2024:RJ-JD:36744-DB] (8 of 10) [CMA-519/2024]
The evidence also clearly shows that the defendants-Company
agreed to treat the plaintiff's claim of defect as a 'special case' and
agreed to replace the engine of the vehicle. The above facts
clearly demonstrate that there is ample evidence to show that the
vehicle supplied by the defendants was suffered from inherent
defect and such a defect could not be rectified in spite of best
efforts of service Engineers of the Company. Thus, facts clearly
justify the court below to come to a conclusion that the supply of
defective machine was well founded and accordingly, the trial
court granted the invoice value of the vehicle i.e. Rs.10,50,000/-.
20) The plaintiff also claimed the damages as a result of such
supply of defective machine. The fact remain is that the machine
was suffering from inherent defect and there were bona fide
attempts on the part of the defendants-Company to rectify the
problem raised by the plaintiff in operating the machine. The
evidence also indicates that there is material to show that there
was no timely services to the vehicle. The fact that the defendants
themselves agreed to replace the engine over-runs other facts
raised by the defendants. Therefore, the court below was right in
awarding the invoice value of the vehicle.
21) When the invoice value of the vehicle was ordered to be
refunded, it is obligatory on the plaintiff to return the defective
vehicle. He cannot take advantage of invoice value of the vehicle
as well as the detention of such a vehicle which he claims to
suffer from defectiveness. Therefore, the court below while
ordering the payment of invoice value of the vehicle ought to have
ordered the return of the vehicle for which no separate relief is
[2024:RJ-JD:36744-DB] (9 of 10) [CMA-519/2024]
required. Such relief has inherited the claim for damages, which
includes the purchase value of the vehicle.
22) In such circumstance, this Court feels that when the
invoice value is directed to be paid to the plaintiff, the plaintiff is
under reciprocal obligation to return the defective vehicle.
Therefore, the plaintiff is directed to return the vehicle on
payment of decreetal amount.
23) The court below awarded interest from the date of
payment of invoice amount of the vehicle till the date of deposit.
There is no such agreement to grant interest prior to the suit.
Indisputably, in the present case, the vehicle was supplied and
such a vehicle was found having the latent defect, which is not in
the knowledge of the defendants when the vehicle is supplied. The
evidence also shows that the attempts have been made by the
defendants to rectify the defect, which they failed to do. The court
below also committed error in granting interest for the period
spent for litigation in the wrong forum. The respondent-plaintiff
cannot take advantage of their wrong done and claim interest for
such period. Further, the percentage of interest awarded by the
court below requires no interference considering the lending rates
of interest in commercial transactions. However, the interest
granted by the court below is restricted from the date of suit till
the date of deposit.
24) The claim for damages was made on various heads. The
total suit value was Rs.38,66,770/-. The entire litigation cost was
awarded. The relief was restricted to part of the suit amount. The
litigation expenses must be proportionate to the damages
awarded. Therefore, this Court feels that the award of complete
[2024:RJ-JD:36744-DB] (10 of 10) [CMA-519/2024]
litigation expenses on the entire claim is not correct. In this
regard, interference of this Court is required. The plaintiff is only
entitled for the proportionate cost on the awarded damages. All
the points are answered accordingly.
25) In the result, the present civil appeal is partly allowed as
follows: i) The compensation of Rs.10,50,000/- as granted by the
court below to the plaintiff is confirmed. ii) The plaintiff is directed
to return the vehicle on deposit of the said amount. iii) The
interest granted by the court below from the date of delivery of
the machine till the date of deposit is modified. Instead the
plaintiff is entitled for interest at the rate of 9% from the date of
suit till the date of deposit on the amount awarded. iv) In the
circumstances, no costs.
(MUNNURI LAXMAN),J (DR. PUSHPENDRA SINGH BHATI),J
2-NK/-
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