GAINDA MAL HEM RAJ Vs. AIR INDIA

JUDGEMENT

(1.) The plaintiff/appellant had filed a suit for recovery of Rs.48,891/- with pendelite and future interest against three defendants.

(2.) The learned Court vide its judgment and decree dated 22nd October, 1981 dismissed the suit of the plaintiff against defendants 1 and 3. However, it decreed the suit for the prayed amount against defendant No.2, which had been proceeded exparte in the suit. Being aggrieved from the judgment and decree of the trial court dismissing the suit of the plaintiff against defendants 1 and 3, the plaintiff has filed the present appeal praying that trial Court ought to have passed a decree even against defendants 1 and 3 and by rejecting the claim of the plaintiff against defendants 1 and 3, the trial Court has fallen in error in fact and in law and the decree is liable to be modified to that extent. The facts giving rise to the present appeal fall within a narrow compass. According to the appellant, the plaintiff/appellant is a registered partnership concern of which Mr. Mehar Chand Jain is one of the registered partners. He was competent to institute the suit as well as the present appeal on behalf of the partnership concern. The defendant No.2 in the suit had approached the plaintiff for supply of 1000 units Sandal Bahar, Sandalwood Oil valued at Rs.40,000/-. The consignment was booked through Air India vide Airway Bill No.098 22869033 dated 4.4.77 for Riyadh (Saudi Arabia)in the name of M/s Suleman Mohd.Alswayyid. It was air insured with Air India. The cost of the same as per the bill was Rs.40000/-. The consignment was to be delivered by defendant No.1 to the said concern at Riyadh after the said Suleman Mohd. Alswayyid got the documents cleared after making the payment of the said consignment to the National Commercial Bank, Riyadh, Saudi Arabia. As the plaintiff did not hear anything about the fate of the consignment from the defendant inspite of repeated reminders and demands in this regard, the appellant asked the Air India to rebook the said consignment back to India and offered to pay all the expenses of rebooking but to no avail. The plaintiff lodged a claim with the defendant No.1, which in turn informed the plaintiff that suit consignment had been delivered to M/s Suleman Mohd. Alswayyid without obtaining any release from National Commercial Bank, Riyadh by their agent M/s Saudi Arabian Airlines by mistake. It was the case of the plaintiff that defendant No.1 and their agent, thus, acted negligently in handing over the suit consignment and as the plaintiff had suffered a loss of Rs.40,000/-, he claimed the said amount from the defendants. The defendant No.2 in connivance with defendant No.1/defendant No.3 had taken delivery without making the payment of the suit consignment. This has resulted in institution of the aforesaid suit. Defendants 2 and 3 did not contest the suit. They were ordered to be proceeded ex-parte by the trial Court. Defendant No.1 had contested the suit and the stand taken by it before the trial Court was that in terms of the Airway Bill, they were required to notify M/s Suleman Mohd. Alswayyid. They were not obliged to hand over the suit consignment after receipt of payment. No such instructions were made on the Airway Bill to the effect that the invoice value should be collected by the agent. In case the National Commercial Bank, Riyadh has delivered the documents to the party without colecting the invoice value of the consignment and freight, the National Commercial Bank is responsible. They prayed for dismissal of the suit. On the above pleadings of the parties, the Court framed the following issues :-

(3.) Learned trial Court while answering the issue No.3 and 4 against the plaintiff held that defendant No.1 was not liable to make any payment to the plaintiff and no liability had accrued upon defendant No.1. The following findings recorded by the trial Court can be noticed usefully at this stage :-