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2007 DIGILAW 166 (DEL)

GAINDA MAL HEM RAJ v. AIR INDIA

2007-01-25

H.R.MALHOTRA, SWATANTER KUMAR

body2007
SWATANTER KUMAR, J. ( 1 ) THE plaintiff/appellant had filed a suit for recovery of Rs. 48,891/- with pendelite and future interest against three defendants. ( 2 ) THE learned Court vide its judgment and decree dated 22nd October, 1981 dismissed the suit of the plaintiff against defendants 1 and 3. However, it decreed the suit for the prayed amount against defendant No. 2, which had been proceeded exparte in the suit. Being aggrieved from the judgment and decree of the trial court dismissing the suit of the plaintiff against defendants 1 and 3, the plaintiff has filed the present appeal praying that trial Court ought to have passed a decree even against defendants 1 and 3 and by rejecting the claim of the plaintiff against defendants 1 and 3, the trial Court has fallen in error in fact and in law and the decree is liable to be modified to that extent. The facts giving rise to the present appeal fall within a narrow compass. According to the appellant, the plaintiff/appellant is a registered partnership concern of which Mr. Mehar Chand Jain is one of the registered partners. He was competent to institute the suit as well as the present appeal on behalf of the partnership concern. The defendant No. 2 in the suit had approached the plaintiff for supply of 1000 units Sandal Bahar, Sandalwood Oil valued at rs. 40,000/ -. The consignment was booked through Air India vide Airway Bill no. 098 22869033 dated 4. 4. 77 for Riyadh (Saudi Arabia)in the name of M/s Suleman mohd. Alswayyid. It was air insured with Air India. The cost of the same as per the bill was Rs. 40000/ -. The consignment was to be delivered by defendant No. 1 to the said concern at Riyadh after the said Suleman Mohd. Alswayyid got the documents cleared after making the payment of the said consignment to the national Commercial Bank, Riyadh, Saudi Arabia. As the plaintiff did not hear anything about the fate of the consignment from the defendant inspite of repeated reminders and demands in this regard, the appellant asked the Air india to rebook the said consignment back to India and offered to pay all the expenses of rebooking but to no avail. As the plaintiff did not hear anything about the fate of the consignment from the defendant inspite of repeated reminders and demands in this regard, the appellant asked the Air india to rebook the said consignment back to India and offered to pay all the expenses of rebooking but to no avail. The plaintiff lodged a claim with the defendant No. 1, which in turn informed the plaintiff that suit consignment had been delivered to M/s Suleman Mohd. Alswayyid without obtaining any release from national Commercial Bank, Riyadh by their agent M/s Saudi Arabian Airlines by mistake. It was the case of the plaintiff that defendant No. 1 and their agent, thus, acted negligently in handing over the suit consignment and as the plaintiff had suffered a loss of Rs. 40,000/-, he claimed the said amount from the defendants. The defendant No. 2 in connivance with defendant No. 1/defendant no. 3 had taken delivery without making the payment of the suit consignment. This has resulted in institution of the aforesaid suit. Defendants 2 and 3 did not contest the suit. They were ordered to be proceeded ex-parte by the trial court. Defendant No. 1 had contested the suit and the stand taken by it before the trial Court was that in terms of the Airway Bill, they were required to notify M/s Suleman Mohd. Alswayyid. They were not obliged to hand over the suit consignment after receipt of payment. No such instructions were made on the airway Bill to the effect that the invoice value should be collected by the agent. In case the National Commercial Bank, Riyadh has delivered the documents to the party without colecting the invoice value of the consignment and freight, the National Commercial Bank is responsible. They prayed for dismissal of the suit. No such instructions were made on the airway Bill to the effect that the invoice value should be collected by the agent. In case the National Commercial Bank, Riyadh has delivered the documents to the party without colecting the invoice value of the consignment and freight, the National Commercial Bank is responsible. They prayed for dismissal of the suit. On the above pleadings of the parties, the Court framed the following issues :- i)Whether the suit is barred by time" ii)Whether Shri Mehar Chand Jain is one of the registered partners of the plaintiff firm and, as such competent to sign and verify the plaint and to institute the present suit" iii)Whether the defendant No. 1 were under an obligation to deliver the consignment in suit to the defendant No. 2 and were duly instructed to do so" If not so, its effect" iv)Whether the defendant No. 1 were under an obligation to deliver the suit consignment to the defendant No. 2 after the defendant No. 2 had made the payment of the said consignment to the National Commercial Bank, riyadh as alleged in para 5 of the plaint" If so its effect" v)Whether the plaintiff are entitled to interest" If so at what rate and to what amount" vi)To what amount, if any are the plaintiff entitled and from which of the defendants" vii)Relief, if any. ( 3 ) LEARNED trial Court while answering the issue No. 3 and 4 against the plaintiff held that defendant No. 1 was not liable to make any payment to the plaintiff and no liability had accrued upon defendant No. 1. The following findings recorded by the trial Court can be noticed usefully at this stage :- "10. The plaintiff have placed on record the Airway Bill vide Ex. PW1/3. Clause 9 of the same deals with the delivery of the goods. The said clause thus can be averted to with profit. It is in the following words :-"except as otherwise specifically provided in this contract, delivery of the goods will be made only to the consignee named on the face thereof, unless such consignee is one of the Carriers participating in the carriage, in which event delivery shall be made to the person indicated on the face hereof as the person to be notified. Notice of arrival of the goods will, in the absence of other instructions, be sent to the consignee, or the person to be notified, by ordinary methods; Carriers is not liable for non-receipt or delay in receipt of such notice. " ( 4 ) IT is fully evident from above that the defendant No. 1 were under an obligation to deliver the goods to the consignee whose name finds place on the Airway Bill. Admittedly, the goods in suit were delivered to the defendant No. 2 whose name finds place on the face of the Airway Bill vide Ex. PW1/7. Thus now it does not lie in the mouth of the plaintiff to argue that the defendant No. 1 acted wrongly in handing over the goods to the consignee without securing the price of the goods from him. To my mind they were very much correct and right in delivering the goods to the consignee whose name finds place on the face of the original airway Bill. The above view also finds support from the observations made by their Lordships of the Mysore High Court as reported in AIR 1968 Mysore Page 133 the Canara Industrial and Banking Syndicate Ltd Udipi Vs. Ramchandra Ganapathy prabhu and another. Para 10 : "the learned counsel for the appellant next contended that condition No. 10 at the back of the way bill imposes an obligation on the second defendant to deliver the goods only on production of the original bill. The condition is as follows: 'the original copy of the consignment note should be surrendered by the consignee or by his duly authorised representative at the time of delivery at destination. ' it is not disputed that the goods have been delivered to the first defendant though he did not surrender the original of the way bill. The lower court holds that condition No. 10 referred to above is for the benefit of the carrier and if the carrier fails to observe the said condition, the same by itself does not impose any liability upon him and that if condition No. 10 is for the benefit of the second defendant there could be no doubt that he could waive it. " ( 5 ) IN view of the above, I am of the view that the defendant No. 1 are not at all liable to make any payment to the plaintiff. 11. " ( 5 ) IN view of the above, I am of the view that the defendant No. 1 are not at all liable to make any payment to the plaintiff. 11. The learned counsel for the plaintiff Mr. Puri has, however, contended that the name of the National Commercial Bank, Riyadh, Saudi Arabia finds place in the column 'consignee's name and address'. Thus, the defendant no. 1 or their agent i. e. defendant No. 3 should have delivered the goods only to the bank and to none else. They admittedly, did not deliver the goods to the bank. Hence they are liable to make the payment to the plaintiff. The contention of the learned counsel, I feel is without any merit. A perusal of the plaint shows that the defendant were to deliver the suit consignment to M/s suleman Mohd. Alswayyid at Riyadh after securing the payment from them (vide para 5 of the plaint ). This is not the case of the plaintiff that the goods were to be delivered to the bank. According to them the goods were to be delivered to the defendant No. 2 after securing the payment from them. I have already observed above, that it was none of the business of the defendant No. 1 as per the terms and conditions printed on the back of the Airway Bill vide ex. PW1/3. It is a well established principle of law that no amount of evidence is to be looked into in regard to a particular fact in case it has not been pleaded. Thus it is not the case of the plaintiff that the goods were to be delivered to some one other than the defendant No. 2. Hence they were rightly delivered. Now, it is too, late in the day for them to object to the same. In view of the above, issues Nos. 3 and 4 are decided accordingly. " ( 6 ) SIMILARLY, the suit was also dismissed against defendant No. 3. The contention of the appellant in the present appeal and plaintiff in the suit is that trial Court ought to have held that even other defendants were also liable to pay the said amount. In the plaint, the appellant/plaintiff had stated that Air India was to deliver the consignment to M/s Suleman Mohd. The contention of the appellant in the present appeal and plaintiff in the suit is that trial Court ought to have held that even other defendants were also liable to pay the said amount. In the plaint, the appellant/plaintiff had stated that Air India was to deliver the consignment to M/s Suleman Mohd. Alswayyid after they got the documents cleared after making payment of the said consignment to the National Commercial Bank. Vide letter dated 11th September, 1978, they were informed that the said consignment had been delivered to the said party. Exhibit PW1/3 is the Airway Bill, which has been proved by the plaintiff. In this document, the name of the consignee has been shown to be national Commercial Bank, Riyadh with an specific instructions, which reads as under :-"collect collect WEIGHT CHARGE collect VALUATION CHARGE total OTHER COLELCT CHARGE due DUE carrier AGENT cod AMOUNT total COLLECTION notify and A/c. Sulaman Mohammed Alswayyid Please inform the notify c/o. Alswayyid Est. party immediately on p. O. B. . x. 3426 on arrival of shipment. RIYADH (SAUDI ARABIA) One envelope containing documents attached. ( 7 ) THE above instruction was definitely at variation with clause 9 of the general Conditions. Those conditions themselves postulate an exception being carved out to the normal delivery system restricted to the consignee only. If the intention of the parties was only to deliver the consignment to the consignee then the specific instruction would be rendered ineffective particuarly when they were cleared against proper documents. The said attorney of the plaintiff, who appeared as PW 1 stated that consignment was to be delivered to respondent No. 3. It was delivered without releasing the amount and taking clearance from the Bank. What this witness failed to explain, which he ought to have, on record that what was the reason for giving specific instructions to Air India on Exh. PW-1/3. The goods were taken by defendant no. 3 on the strength of Exh. PW1/4, which was the invoice and was presented at the time of release of goods. The entire oral and documentary evidence produced on record clearly shows that the plaintiff has failed to discharge its onus to prove the liability in relation to recovery of amount. PW-1/3. The goods were taken by defendant no. 3 on the strength of Exh. PW1/4, which was the invoice and was presented at the time of release of goods. The entire oral and documentary evidence produced on record clearly shows that the plaintiff has failed to discharge its onus to prove the liability in relation to recovery of amount. Terms of the written document cannot be varied by oral evidence and in fact there is nothing even in the statement of the witnesses of the plaintiff/appellant that could show that as to what was the purpose of the instructions contained in PW1/3 and whether they were subsequently varied. There is also no evidence to show that the goods were delivered without documents and in violation of any established procedure. ( 8 ) THE plaintiff having failed to discharge it's onus cannot be permitted to take advantage of his own wrong. As a result of above discussion, we would affirm the findings on all issues recorded by the trial Court as they do not suffer from any infirmity of law. There is no mis-appreciation of evidence. Consequently, the present appeal is dismissed while leaving the parties to bear their own costs in the present appeal.