Supreme Court of India Judgements

46660 Judgements hosted as on 19/11/2024 - Search (FREE), Subscribe, Read & Download

C P C

Carriage by Road Act, 2007 – Section 16 – No notice under Section 16 of the Carriage by Road Act, 2007 was necessary for instituting any suit or legal proceedings much less counter-claim against the common carrier for recovering the loss other than the loss of or damage to the consignment

Bysclaw

May 7, 2023

SUPREME COURT OF INDIA

DIVISION BENCH

ESSEMM LOGISTICS — Appellant

Vs.

DARCL LOGISTICS LIMITED AND ANOTHER — Respondent

( Before : V. Ramasubramanian and Pankaj Mithal, JJ. )

Civil Appeal No.of 2023 (Arising out of SLP (C) No.24340 of 2019)

Decided on : 01-05-2023

Civil Procedure Code, 1908 (CPC) – Order 7 Rule 11 – Carriage by Road Act, 2007 – Section 16 – Counter-claim – No notice under Section 16 of the Carriage by Road Act, 2007 was necessary for instituting any suit or legal proceedings much less counter-claim against the common carrier for recovering the loss other than the loss of or damage to the consignment and, therefore, the courts below manifestly erred in rejecting the counter-claim under Order VII Rule 11 CPC as barred by Section 16 of the Carriage by Road Act, 2007 – Appeal allowed.

Counsel for Appearing Parties

M/S. Nuli & Nuli, Advocate, Mr. Anand Sanjay M. Nuli, Advocate, Mr. Agam Sharma, Advocate, Mr. Suraj Kaushik, Advocate, Ms. Nandini Pandey, Advocate, Ms. Akhila Wali, Advocate, Mr. Nanda Kumar K.b, Advocate, Mr. Shiva Swaroop, Advocate, Mr. Dharm Singh, Advocate, for the Appellant; Mr. Manu Beri, Advocate, Mrs. V. D. Khanna, Advocate, for the Respondent.

JUDGMENT

Pankaj Mithal, J. – Leave granted.

2. Heard Mr. Anand Sanjay M. Nuli, learned advocate appearing for the appellant and Mr. Manu Beri, learned Advocate appearing for the first respondent.

3. The appellant (ESSEMM Logistics), who was the first defendant in the suit, has preferred this appeal against the rejection of its counter-claim in exercise of power available under Order VII Rule 11 of the Civil Procedure Code, 1908 (in short “CPC”) by the Court of first instance which order has been upheld by the High Court.

4. The first respondent (DARCL Logistics Limited) was the plaintiff who instituted original suit No.79 of 2013 (DARCL Logistics Limited Vs. ESSEMM Logistics & Anr.) for a recovery of sum of Rs.4,09,53,847/- with interest at the rate of 18% till its realisation, since the first defendant – appellant failed to make payments due as per 530 bills raised during the period 14.11.2011 to 31.01.2012.

5. In the said suit, the first defendant – the appellant herein entered appearance and filed its written statement with counter-claim of Rs.13,04,00,000/- with interest at the rate of 24% on the said amount till its realization. The said counterclaim was set up as under:

1.

Loss of Business Opportunity due to diversification of the Cargo from Gangavaram Port to Paradeep Port

Rs.3,50,00,000/-

2.

Loss of Reputation

Rs.7,50,00,000/-

3.

Loss on account of Idling of Men, Machine & Overheads

Rs.2,04,00,000/-

Total

Rs.13,04,00,000/-

 

6. It may be noted that the plaintiff-first respondent is a common carrier and is governed by the Carriage by Road Act, 2007 (new Act) which came into force with effect from 20.07.2010 repealing the Carriers Act, 1865.

7. The Carriers Act, 1865 vide Section 10 provided that no suit shall be instituted against the common carrier for the loss of, or injury to, goods including containers, pallets or similar articles of transport entrusted for carriage, unless a notice in writing for such loss of injury is given before the institution of the suit within six months of the loss coming to the knowledge of the plaintiff.

8. The above Section 10 of the Carriers Act, 1865 for convenience sake is reproduced hereinbelow:

“No suit shall be instituted against a common carrier for the loss of, or injury to, goods [including containers, pallets or similar articles of transport used to consolidate goods] entrusted to him for carriage, unless notice in writing of the loss or injury has been given to him before the institution of the suit and within six months of the time when the loss or injury first came to the knowledge of the plaintiff.”

9. The above Section 10 of the Carriers Act, 1865 bars the institution of a suit only against a common carrier for the loss of, or injury to, goods entrusted to the common carriage for the purposes of carriage without giving a notice in writing of the alleged loss within six months of the loss or injury first coming to the knowledge of the plaintiff. In other words, only a suit for recovering damages for the loss of or injury to the goods entrusted to the common carrier for carriage is barred without a legal notice, as aforesaid but not suits of other nature or for recovery of any amount other than due loss or injury to the goods entrusted for carriage.

10. The Carriage by Road Act, 2007 (new) which replaced the earlier Act vide Section 16 provides as under:

“No suit or other legal proceeding shall be instituted against a common carrier for any loss of, or damage to, the consignment, unless notice in writing of the loss or damage to the consignment has been served on the common carrier before the institution of the suit or other legal proceeding and within one hundred and eighty days from the date of booking of the consignment by the consignor.”

11. The aforesaid Section 16 of the new Act is more or less in pari materia with the Section 10 of the Carriers Act, 1865 which has been repealed. It also lays down that no suit or legal proceedings shall be instituted against a common carrier for any loss of, or damage to, a consignment unless a notice in writing of such loss to the consignment has been served upon the carrier before the institution of the suit or the legal proceedings within six months from the date of booking of the consignment by the consignor. A close look to the above provision would reveal that it not only bars the suit but also legal proceedings which were not included in the earlier provision of Section 10 of the Carriers Act, 1865. The other deviation is by the use of word “consignment” in place of “goods entrusted”. In other words, both the aforesaid provisions though Section 10 of the Carriers Act stands repealed and ceased to in force, provides for a notice before instituting any suit/legal proceedings against a common carrier for any loss or damage to the consignment. The aforesaid provision is only in context of the institution of a suit or a legal proceeding for the loss of or damage to the consignment and not in respect of any other kind of loss or damage or claim other than to the loss or damage to the consignment.

12. It is well recognized that in view of Order VIII Rule 6-A (4) CPC, a counter-claim is a virtually a plaint and an independent suit. It is also a settled proposition of law that a plaint which falls within the teeth of the conditions laid down under Rule 11 of Order VII CPC is liable to be rejected at the threshold for which the plaint allegations alone are required to be considered and nothing else.

13. It is in view of the aforesaid facts and circumstances, the plaintiff-first respondent pressed for rejection of the counterclaim set up by the appellant- first defendant under Order VII Rule 11 CPC as it was preferred without issuing the mandatory notice as contemplated mistakenly by Section 10 of the Carriers Act, 1865 but in fact by Section 16 of the new Act.

14. The Court of first instance ordered for the rejection of the plaint for want of issuance of mandatory notice before presentation of the counter-claim which order has been affirmed by the High Court.

15. In assailing the impugned orders of the courts below, it was submitted that the Courts have manifestly erred in not appreciating the provisions of Section 16 of the new Act in its clear literal sense. The said provision is applicable only where the claim is for any loss of, or damage to, the consignment and not in respect of any other claim of loss or damage. The counterclaim of the appellant was not in respect of either the loss or damage to the consignment rather for the loss of business opportunity, loss of reputation and loss on account of idling of men, machine and overheads etc.

16. A plain reading of Section 16 of the new Act reveals that it is applicable only in respect of institution of a suit or legal proceeding against a common carrier for any loss of, or damage to, the consignment. The use of the word “Consignment” in the said provision is very material. It denotes that the suit and legal proceedings in connection with the loss or damage to the consignment alone are covered by it for which purpose, a notice is mandatory. The said provision has no application in reference to loss of any other kind or the suit or legal proceedings instituted for recovery of damages in respect of loss of different nature.

17. A reading of the counter-claim clearly reveals that the damages claimed are in respect of loss set up by the appellant-first defendant in connection with the loss of business opportunity, loss of reputation and loss on account of idling of men, machine and overheads. It had not instituted any suit or legal proceedings such as counter-claim for any loss or damage to any consignment. The courts below have clearly lost sight of the above aspect of the matter and without making any distinction between the various kinds of claims otherwise arising other than claims for loss or damage to the consignment, illegally directed to reject the counter-claim.

18. The provision of Section 16 of the new Act does not come into play vis-a-vis the condition of giving a notice in respect of claims for damages for the loss of reputation, business opportunity etc. as such claims are not in connection with the damage or loss to the consignment.

19. In view of the aforesaid facts and circumstances, we are of the opinion that no notice under Section 16 of the new Act was necessary for instituting any suit or legal proceedings much less counter-claim against the common carrier for recovering the loss other than the loss of or damage to the consignment and, therefore, the courts below manifestly erred in rejecting the counter-claim under Order VII Rule 11 CPC as barred by Section 16 of the new Act.

20. Accordingly, the impugned judgment and orders dated 07.08.2019 and 21.9.2017 are set aside and the appeal is allowed with the direction to the Court of first instance to proceed with the suit as well as the counter-claim in accordance with the law.

21. There will be no orders as to costs.

By sclaw

Related Post

C P C Stamp Act

Maharashtra Stamp Act, 1958 — Section 4 — The appellants sought a declaration and injunction in a civil suit — The defendants requested impounding of six documents related to property transactions, claiming they were not duly stamped — Whether the appellants are liable to pay stamp duty and penalty on agreements to sell executed prior to the sale deed —The appellants argued that since the sale deed was registered and stamp duty paid, the prior agreements did not require separate stamping —The respondents contended that the agreements included a clause about the transfer of physical possession, necessitating stamp duty —The Supreme Court dismissed the appeal, affirming the High Court’s decision to impound the documents and send them for adjudication of stamp duty and penalty —The court emphasized that the agreements to sell were separate transactions requiring individual stamp duty, as they included clauses for possession transfer —The court referred to Section 4 and Explanation I to Article 25 of Schedule I, concluding that the agreements were conveyances requiring stamp duty — The appeal was dismissed, and the appellants were directed to pay the appropriate stamp duty and penalty on the impounded documents.

Sep 29, 2024 sclaw
C P C Will & Succession

Genuineness of Will and Partition Suit — The Court emphasizes that in a partition suit where a Will is challenged, the genuineness of the Will must be determined as a necessary step to resolve the dispute over the property — Delays in deciding this issue should be minimized to prevent multiplicity of litigation.

Sep 29, 2024 sclaw
C P C Joint Family Property Partition

Suit for Partition of jointly owned Property — Liability to render accounts — The court held that the defendant Nos. 3(a) and defendant Nos. 15 to 19 are liable to render accounts and contribute rent as assessed by the Trial Court during the course of passing the final decree for the portions in their respective possession The court clarified that being in self-occupation of a property does not absolve a co-sharer from rendering accounts — The defendant No. 3(a) who purchased the property from defendant No. 3 after it had already been vacated by a tenant, was held liable to contribute rent as determined by the Trial Court. Business carried out in the property — The court held that defendant Nos. 15 to 19, who admitted to carrying on their own business in the portion of the property in their possession, are liable to render accounts and contribute rent as determined by the Trial Court.

Jul 27, 2024 sclaw

Leave a Reply

You missed

Acquittal

Penal Code, 1860 (IPC) — Sections 376 and 313 — Rape — False promise of marriage — Physical relationship with the complainant under the false promise of marriage, leading to her pregnancy and subsequent abortions — Whether the FIR should be quashed based on the allegations and the delay in filing the complaint — The petitioner argued that the relationship was consensual and the delay in filing the FIR undermines the credibility of the allegations — The respondent claimed that the petitioner deceived her with a false promise of marriage, leading to non-consensual physical relations — The Supreme Court quashed the FIR, noting the long-term consensual relationship and the lack of prima facie evidence for rape under Section 376 IPC —The Court emphasized the delay in filing the FIR and the nature of the relationship, which appeared consensual —The Court referred to previous judgments, highlighting the importance of prima facie evidence and the misuse of legal provisions —The FIR and all proceedings based on it were quashed, preventing abuse of the legal process.

Oct 21, 2024 sclaw
Acquittal

Penal Code, 1860 (IPC) — Sections 420, 468, 471 and 120-B —Prevention of Corruption Act, 1988 — Section 13(2) and 13(1)(d) — Financial misconduct and conspiracy — Whether the High Court was correct in discharging the respondent from the charges of conspiracy and financial misconduct — The CBI argued that the High Court conducted a mini-trial at the charge-framing stage and that there was sufficient suspicion to frame charges against the respondent — The respondent’s counsel argued that the material in the charge sheet did not make out a case against the respondent and that the High Court rightly discharged him —The Supreme Court upheld the High Court’s decision to discharge the respondent, stating that mere suspicion was not enough to frame charges – The Court found that the respondent’s role was limited to signing the memorandum prepared by senior officers and participating in the Management Committee meeting, which approved the proposal — The Court emphasized that the proposal had passed through various committees and that the respondent’s actions did not amount to criminal misconduct — The appeal was dismissed, and the respondent was discharged from the charges — The trial against other accused persons will continue.

Oct 21, 2024 sclaw
Municipal Laws

Patna Municipal Corporation Act, 1951 — Sections 146, 423 and 488(1) — The Patna Municipal Corporation imposed a royalty on advertisements, which was later increased — The respondents challenged this imposition, arguing it was a tax without legislative backing — Whether the royalty imposed by the Corporation was a tax and if it was legally enforceable without legislative sanction — The Corporation argued that the royalty was agreed upon by the parties and was not a tax — They contended that the enhancement of the rate was within their rights — The respondents argued that the imposition was a tax, which required legislative sanction, and the Corporation had no authority to levy it — The Division Bench quashed the enhancement, ruling that the Corporation had no power to impose the tax without legislative backing — The Court found that the royalty was not a tax but a fee agreed upon by the parties — It held that the Corporation’s actions were within the scope of the agreement — The Court distinguished between royalty and tax, emphasizing that royalty is based on an agreement, not statutory provision — The Court upheld the imposition of royalty as per the agreement but noted that the enhancement in rates was not challenged effectively — The judgment of the Division Bench was set aside.

Oct 21, 2024 sclaw
Constitution

Citizenship Act, 1955 — Section 6A — Special provisions as to citizenship of persons covered by the Assam Accord — The case involves the constitutional validity of Section 6A of the Citizenship Act 1955, which grants citizenship to certain migrants from Bangladesh to Assam —The main issues include whether Parliament had the legislative competence to enact Section 6A, and if Section 6A violates Articles 6, 7, 14, 29, and 355 of the Constitution — Petitioners argue that Section 6A is unconstitutional as it conflicts with Articles 6 and 7, adopts unreasonable cut-off dates, and violates Articles 14, 29, and 355 — Respondents contend that Section 6A is within Parliament’s legislative competence under Article 11 and does not violate the Constitution — The judgment addresses the legislative competence of Parliament, the reasonableness of cut-off dates, and the impact on Assamese cultural identity — The court examines the historical context of citizenship provisions, the legislative intent behind Section 6A, and the scope of judicial review under Article 14 — The court analyzes the constitutional provisions on citizenship, the legislative objective of Section 6A, and the balance between legislative intent and constitutional mandates —The court concludes that Section 6A of the Citizenship Act is constitutional and does not violate the cited Articles of the Constitution.

Oct 21, 2024 sclaw