| SooperKanoon Citation | sooperkanoon.com/814699 |
| Subject | Contract;Civil |
| Court | Chennai High Court |
| Decided On | Oct-24-1978 |
| Reported in | (1979)1MLJ338 |
| Appellant | Jaihind Roadways, a Proprietory Concern, Represented by Proprietor Mr. Vaidya |
| Respondent | Chellarama Garments (P) Ltd., a Private Ltd., Co., Represented by Its Power of Attorney Agent, New I |
T. Ramaprasada Rao, C.J.
1. A preliminary objection was raised by the petitioner-defendant on the jurisdiction of the Small Cause Court to try the action in question. The plaintiff filed a suit for the recovery of a sum of Rs. 1,190 against the petitioner, which was a common carrier basing his cause of action on a tort. The claim of the plaintiff was that goods which were entrusted by his seller at Bombay for carriage to Madras and delivery to the plaintiff were not delivered by the carrier intact and there was a shortage in the course of such delivery and evaluating the damage based on such alleged tort committed by the carrier on account of the negligence on the part of the carrier while discharging his obligations under the contract of affreightment, the plaintiff quantified the damage suffered by him at Rs. 1,026 and sought for interest thereon at six per cent per annum. The main contention, amongst others, of the carrier was that under the contract of affreightment, which was obviously as between the carrier-petitioner and the seller, the Courts at Bombay had jurisdiction to decide in respect of all claims and matters arising under the consignment of the goods entrusted for transport. Basing on this clause, which is Clause 17 of what is popularly known as G.C. Note, the carrier-petitioner, as the only defendant in the action, raised a preliminary objection as to the jurisdiction of the Small Cause Court, Madras to try the suit. In the counter affidavit, the plaintiff stated that he was not a party to the contract of affreightment and that as he was suing mainly on the tort alleged to have been committed by the carrier when he carried the goods, the Small Cause Court had the requisite jurisdiction to try the suit.
2. The Court below rightly held that as the plaintiff was not a party to the contract of affreightment, he was not obliged by the terms of the G.C. Note and that as he was claiming damages as against the carrier, not on any contract inter se but on the basis of an alleged tort, which, as I said, would include the negligence on the part of the carrier, the Madras Court had the jurisdiction to entertain the suit. In those circumstances, the learned Small Cause Court Judge rejected the preliminary objection and passed the order which is challenged in this civil revision petition.
3. Learned Counsel for the petitioner raised two contentions. The first one is that under Section 37 of the Indian Sale of Goods Act, as every buyer is deemed to be the agent of the seller, once the goods are sent by carriage or otherwise by the seller as required under the contract, then the consignee, as agent of the consignor, has bound himself by all the obligations with which the consignor is bound, and in the context, Clause 17 of the G.C. note would also apply to the consignee and therefore, the suit, as filed by the plaintiff in the capacity as consignee was not maintainable, as there is a specific interdict in the clause as already excerpted that the Bombay Court alone had the requisite jurisdiction to decide disputes between the consignor and the carrier. The second contention of the learned Counsel for the petitioner is that the suit filed by the consignee in the Madras Court is not maintainable as against the carrier not only because Section 37 of the Sale of Goods Act prevents him from doing it but also because the plaintiff himself has referred to the contract in the pleadings, which contract would obviously mean the contract entered into between the consignor and the carrier and, therefore, the preliminary objection as to jurisdiction has to be upheld.
4. It is fundamental that a person who is not a party to a contract, is neither bound by it nor is he obliged under it. The Indian Contract Act defines a contract not in so many terms, but the chapter dealing with essential ingredients of a contract, such as communication, acceptance, etc., makes it clear as to what a contract could be. All agreements of contracts would be valid, unless they are tainted by allegation of free consent etc., or for want of lawful consideration or is hit by public policy. All these essential ingredients inbuilt in the concept of a contract imply that the relative and receiprocal obligations arising thereunder would bind only the parties to it and not third parties. The plaintiff ii not a party to the contract of affreightment. This is not in dispute. The clause relied upon by the objector as to jurisdiction would only enable the consignor at Bombay to be bound by it. It is an interdict if at all as against the consignor. But under Clause 17 of the G.C. note the aggrieved party is obliged to file a suit in one or the other of the Courts in Bombay city alone in respect of all claims and matters arising under this contract of affreightment. This would not, for the reason that the plaintiff was not a party to it and also on the general principle that in equity a person who is outside the pale or an obligation cannot be thrust or compelled to perform it, unless law itself compels him to do it. No law which is so mandatory and compulsive has been brought to my notice which would compel the plaintiff in the present suit to go to Bombay to recover a paltry sum of Rs. 1,000 and odd against a carrier which has a branch office in the City of Madras. That the carrier is carrying on business in the City of Madras is also not in dispute. For all these reasons, I am unable to accept that the plaintiff is in any way bound by the obligations which may slope from the contract as between the seller and the carrier as Above.
5. The second point is whether Section 39 of the Sale of Goods Act would in any way be a bar for the institution of the present action at Madras. There is no proof that the seller was authorised or required to send the goods to the buyer through the defendant-petitioner and above all subject to a clause like the one under consideration which compelled the consignee to go to Bombay even in matters where negligence on the part of the carrier is involved and alleged. This would be a travesty to interpret Section 39 of the Sale of Goods Act to mean that even in cases where the plaintiff lays his action on tort or negligence of the carrier, he would be deemed to be an agent of the seller within the meaning of Section 39 of the Sale of Goods Act and which again would necessarily compel him to file a suit for damages as against the carrier for such negligence only in a Court of Bombay No doubt, Section 39, whilst speaking about the delivery to the carrier and the scope and content of such delivery, would say that a delivery to a carrier, when the seller is authorised or required to send the goods to the buyer, is prima facie deemed to be a delivery of She goods to the buyer. That would not mean that all contracts made, however penal and however onerous that may, be, by the seller with the carrier has to be accepted by the consignee on the mere fictional agency created under Section 39 of the Act. Here again, I am strongly of the view that it was never and it could not have been the intention of the Legislature that such contracts made, by the consignor with the carrier containing such penal clauses without the concurrence of the consignee would also bind the consignee not with standing the fact that he is outside the pale of such a contract and notwithstanding also the fact that the conditions therein are so onerous and unconscionable as to render the very relief which a consignee could obtain under the general law merely illusory. I am, therefore, unable to agree with the second contention as well. The lower Court was right in having rejected the objection as to jurisdiction. The petition is dismissed with costs.