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2014 DIGILAW 1259 (DEL)

M/S Shri Nath Cargo Pvt. Ltd. v. M/S Parag Sarees

2014-04-17

VALMIKI J.MEHTA

body2014
JUDGMENT : VALMIKI J. MEHTA, J. (ORAL) 1. This second appeal is filed under Section 100 of Code of Civil Procedure, 1908 (CPC) impugning the judgment of the first appellate court dated 5.2.2014 by which the first appeal was dismissed as barred by limitation. Appellant before the first appellate court and also before this Court was the defendant in the suit. The appellant is a transporter and against whom the suit for recovery of Rs.69,370/- was decreed ex parte by the judgment dated 30.8.2013. 2. The first appellate court holds that the ex parte judgment was pronounced on 30.8.2013 but the appellant applied for the certified copy only in October 2013 and filed the appeal in January 2014 clearly showing that the first appeal was time barred. The relevant observations made by the first appellate court are contained in paras 4 to 6 of the impugned judgment and which read as under:- “4. As per Article, 116(b) of the Limitation Act, 1963, the period of limitation for filing the appeal is 30 days and the time from which such period begins to run is from the date of decree or order. As per certified copy of order dated 30/8/2013 passed by Ld. Civil Judge 17, Central in suit no. 93/12 titled as M/s Parag Sarees Vs. M/s Shrinath Cargo (P) Ltd., the plaintiff (respondent herein) filed a suit for recovery of Rs.69,370/- from the defendant (Appellant herein). The defendant contested the suit by filing Written Statement of defence but subsequently stopped appearing before the Court and was proceeded against ex-parte on 26/07/2013. After conclusion of the ex-parte plaintiff evidence final arguments were heard and the suit was decreed vide order dated 30/8/2013. 5. Though, it is stated in the present application that the Authorized Representative of the Appellant namely Sh. Laharu Lal who used to appear in the aforesaid suit had gone to his village without informing the Appellant and father of the Counsel for the Appellant was in hospital, the fact remains that no a single document in support of the contention could be filed by the Appellant. It is also not explained why the appeal against the impugned order was not preferred immediately after the Counsel for the Appellant started attending the Court and had also obtained the certified copies of the judgment in the month of October 2013. It is also not explained why the appeal against the impugned order was not preferred immediately after the Counsel for the Appellant started attending the Court and had also obtained the certified copies of the judgment in the month of October 2013. The contention that Proprietor/one of the partners of the Appellant company approached the Counsel in the month of December, 2013 as another partner was suffering from heart problems appears to be infantile and purely hypothetical. There is also no cogent explanation furnished by Ld. Counsel for Appellant as to why no application U/o 9 rule 13 CPC could be moved to get the ex-parte decree set-aside before the Ld. Civil Judge. 6. In the afore discussed facts and circumstances, I am not satisfied that the appellant had sufficient cause for not preferring the appeal within limitation period. Accordingly, the delay of more than 100 days in preferring the present appeal against the impugned judgment is not justifiable. I do not find any merit in the application U/s 5 of the Limitation Act, 1963 seeking condonation of delay in filing the appeal. The same is accordingly dismissed and consequently appeal is not admitted. A copy of the order be sent to the Trial Court for record. File be consigned to Record Room after due compliance.” 3. I may note that the appellant-defendant had originally contested the suit by filing the written statement, but thereafter had stopped, appearing and was accordingly proceeded ex parte. The suit has been decreed for an amount of Rs. 69,370/- alongwith interest at 8% per annum simple on account of the fact that the appellant/defendant/transporter lost the consignment which was entrusted to it for transportation by the respondent/plaintiff. 4. It is not disputed before me on behalf of the appellant that the consignment was in fact lost by the appellant but what is argued is that appellant had limited the liability of the appellant in view of the terms of the contract of transportation which limited liability to a maximum sum of Rs.2000/-. 4. It is not disputed before me on behalf of the appellant that the consignment was in fact lost by the appellant but what is argued is that appellant had limited the liability of the appellant in view of the terms of the contract of transportation which limited liability to a maximum sum of Rs.2000/-. I cannot agree with the arguments urged on behalf of the appellant on merits though I need not look into the arguments on merits, inasmuch as the law is well settled that the liability of transporter under the Carriers Act, 1865 is equivalent to the liability of an insurer, and with only two exceptions of there being no liability if there is an act of God or an act of enemy. This legal position is now well settled in view of the judgment of the Supreme Court in the case of Patel Raodways Ltd. Vs. Birla Yamaha Ltd. (2000) 4 SCC 91 . Another judgment directly on this point is the judgment of the Supreme Court in the case of Nath Bros. Exim International Ltd. Vs. Best Roadways Ltd. (2000) 4 SCC 553 . The transporter cannot in law contract out of the statutory liability. Therefore, though I need not look into the merits of the case because this appeal is only against the dismissal of the first appeal as barred by limitation, however, not only the appeal has been rightly dismissed as barred by time but also even if I look into the merits of the case for the sake of equity, justice and good conscience, even then appellant-defendant has no case on merits. 5. In view of the above the appeal being without any merit is dismissed, leaving the parties to bear their own costs.