Greaves Cotton Ltd. Vs. M/S. New India Transport Co. and anr. - Court Judgment

SooperKanoon Citationsooperkanoon.com/1061393
CourtKolkata High Court
Decided OnAug-28-2012
JudgeMURARI PRASAD SHRIVASTAVA
AppellantGreaves Cotton Ltd.
RespondentM/S. New India Transport Co. and anr.
Excerpt:
cs 39.of 1999 in the high court at calcutta original side greaves cotton ltd.versus m/s.new india transport co.& anr. before : the hon’ble justice murari prasad shrivastava date :28. h august, 2012. for the plaintiff : ms.madhurima mukherjee,advocate the court :- the present suit has been filed praying for a decree for specific delivery of goods, particulars whereof being mentioned in schedules b and b 1 to the plaint and alternatively a decree for a sum of rs.17,71,893.73 p. being the value of the said goods along with interest and costs. the plaintiff’s case in brief is that it is engaged in manufacturing spare parts of generator sets and defendant no.1 is the common carrier while defendant no.2 was engaged as clearing and forwarding agent of the plaintiff for transporting the spare parts of the generating sets to various customers of the plaintiff. defendant no.2 was engaged by the plaintiff upon terms and conditions which were mutually agreed upon between defendant nos.1 and 2. between february and april, 1999 different qualities and quantities of the said spare parts were delivered to defendant no.1 for transporting and delivering the same to the customers of plaintiff situated outside the state of west bengal as per instructions contained in the respective challans and invoices drawn in favour of such customers.the freight for effecting such transportation and delivery were duly paid to defendant no.1. however, plaintiff received various complaints from the customers that the said goods had not reached them and in spite of repeated reminders.defendant no.1 is not causing delivery of the goods. these are still lying in the custody though they have received the consideration for the purpose of transportation and delivery of the same for which the present suit has been filed on 13th july, 1991. pw 1.the senior manager (personal & administration).eastern region of the plaintiff company on the basis of his unchallenged testimony and on the basis of the documents filed which have been marked exhibits in the present case has proved that defendant no.1, in spite of receiving the said goods as stated in annexure b to the plaint as well as exhibit b, failed to deliver the same to the various customers though they received the consideration for the purpose of transportation and delivery. accordingly, the suit succeeds. in the present case, though the defendant no.1 did not appear in spite of service of writ of summons and defendant no.2 though filed written statement, it being a proprietary concern and the sole proprietor having died and on prayer of the plaintiff, the name of the defendant no.2 has been struck off for which the decree is to be passed against defendant no.1. plaintiff do get a decree for specific delivery of the goods as specified in schedule b to the plaint and exhibit b. such goods must be delivered within two months from the date of decree failing which the plaintiff shall get a decree for a sum of rs.17,71,893.73 being the value of the said goods along with interest thereon at the rate of 10 per cent per annum from the date of institution of the suit till payment. plaintiff also do get a decree for costs. urgent certified copies of this order, if applied for, be supplied to the parties on the usual undertakings. (murari prasad shrivastava,j.) s.chandra ar(cr)
Judgment:

CS 39.of 1999 IN THE HIGH COURT AT CALCUTTA ORIGINAL SIDE GREAVES COTTON LTD.VERSUS M/S.NEW INDIA TRANSPORT Co.& ANR.

BEFORE : THE HON’BLE JUSTICE MURARI PRASAD SHRIVASTAVA DATE :

28. H AUGUST, 2012.

For the plaintiff : Ms.Madhurima Mukherjee,Advocate The Court :- The present suit has been filed praying for a decree for specific delivery of goods, particulars whereof being mentioned in Schedules B and B 1 to the plaint and alternatively a decree for a sum of Rs.17,71,893.73 P.

being the value of the said goods along with interest and costs.

The plaintiff’s case in brief is that it is engaged in manufacturing spare parts of generator sets and defendant No.1 is the common carrier while defendant No.2 was engaged as clearing and forwarding agent of the plaintiff for transporting the spare parts of the generating sets to various customers of the plaintiff.

Defendant No.2 was engaged by the plaintiff upon terms and conditions which were mutually agreed upon between defendant Nos.1 and 2.

Between February and April, 1999 different qualities and quantities of the said spare parts were delivered to defendant No.1 for transporting and delivering the same to the customers of plaintiff situated outside the State of West Bengal as per instructions contained in the respective challans and invoices drawn in favour of such customeRs.The freight for effecting such transportation and delivery were duly paid to defendant No.1.

However, plaintiff received various complaints from the customers that the said goods had not reached them and in spite of repeated remindeRs.defendant No.1 is not causing delivery of the goods.

These are still lying in the custody though they have received the consideration for the purpose of transportation and delivery of the same for which the present suit has been filed on 13th July, 1991.

PW 1.the Senior Manager (Personal & Administration).Eastern Region of the plaintiff company on the basis of his unchallenged testimony and on the basis of the documents filed which have been marked exhibits in the present case has proved that defendant No.1, in spite of receiving the said goods as stated in annexure B to the plaint as well as Exhibit B, failed to deliver the same to the various customers though they received the consideration for the purpose of transportation and delivery.

Accordingly, the suit succeeds.

In the present case, though the defendant No.1 did not appear in spite of service of writ of summons and defendant No.2 though filed written statement, it being a proprietary concern and the sole proprietor having died and on prayer of the plaintiff, the name of the defendant No.2 has been struck off for which the decree is to be passed against defendant No.1.

Plaintiff do get a decree for specific delivery of the goods as specified in Schedule B to the plaint and Exhibit B.

Such goods must be delivered within two months from the date of decree failing which the plaintiff shall get a decree for a sum of Rs.17,71,893.73 being the value of the said goods along with interest thereon at the rate of 10 per cent per annum from the date of institution of the suit till payment.

Plaintiff also do get a decree for costs.

Urgent certified copies of this order, if applied for, be supplied to the parties on the usual undertakings.

(MURARI PRASAD SHRIVASTAVA,J.) S.Chandra AR(CR)