DOOARS TRANSPORT LTD Vs. PRAN KAPOOR

JUDGEMENT

(1.) THIS appeal has impugned the judgment and decree dated 13.09.2005 which had reversed the finding of the trial judge dated 11.10.2002. Vide judgment and decree dated 11.10.2002, the suit of the plaintiff Sh. Pran Kapoor seeking recovery of Rs. 2,47,186.77 against the two defendants i.e. M/s. Bhutan Hardware Agency (defendant no. 1) and M/s. Dooars Transport Pvt. Ltd. (defendant no. 2) had been dismissed. Vide the impugned judgment and decree dated 13.09.2005, the suit stood decreed.

(2.) THE case of the plaintiff as recited in the plaint is that he had sold goods to defendant no. 1 on 26.05.1980 vide cash memo no. 6268 for a sum of Rs. 44,226.00; further goods had also been sold, details of which had been given in para 3 of the plaint. Total amount of goods sold by the plaintiff to the defendant were to the tune of Rs. 1,40,542.30.00. These goods were delivered and booked with defendant no. 2 for carriage vide goods receipts ( GR No. 130641 dated 07.06.80, GR No. 130663 dated 11.06.1980, GR No. 130667 dated 12.06.1980 and GR No. 130681 dated 16.06.1980). This was as per the instructions and requirement of defendant no. 1. The documents i.e. related bills of the GRs were presented for payment to defendant no. 1 through their bank situated at Calcutta. Defendant no. 1 assured that the said bills would be honored. The bills were, however, not honored. Plaintiff made enquiries from defendant no. 2 but there was no success. Ultimately, the plaintiff requested defendant no. 2 to re-book the goods back to Delhi at the cost of Plaintiff; even then there was no response. On 27.01.1983, defendant no. 1 made a false claim of Rs. 73,330.00 against the plaintiff. Demand notice dated 07.02.1983 was served by the plaintiff on defendant no. 1 with its copy to defendant no. 2. No payment was received. Present suit was filed.

(3.) IN the written statement of defendant no. 2, it was stated that no notice as required under the Carriers Act had been given. Defendant no. 2 had no option but to auction the goods to recover its money and this was after due notice to the plaintiff; goods in question had been carried by defendant no. 2 from Delhi to Bhutan as per usual terms of trade and business; defendant no. 2 had written several letters to plaintiff that the goods were lying with them and delivery of the goods was to be taken but to no avail; in these circumstances, defendant no. 1 had to necessarily auction the goods for which he had received the sum of Rs. 59,000.00.