VILLAGE CONNESTION Vs. PRAKASH TRANSPORT

JUDGEMENT

(1.) THESE three appeals have been filed by the plaintiff against the common order passed by the learned single judge arising out of C. S. NOB. 526 of 1997, 386 and 402 of 1998. The present respondent was the defendant No. 2 in C. S. No. 526 of 1997 and Defendant No. 1 in C. S. Nos, 386 and 402 of 1998. The suits were filed claiming different amounts from the defendants 1 to 4 jointly and severally.

(2.) THE basic allegations in the plaint in each case were to the effect that the plaintiff is an exporter of cotton fabrics and was having regular transaction with third defendant organisation based in Kathmandu, nepal. The plaintiff was making supply of various cotton fabrics. Consignments were made to the third defendant under separate invoices as per the terms of the contract. The first and second defendants, who are the transporters, are supposed to deliver the goods to the third defendant only after the third defendant makes the payment to the fourth defendant bank, by whom the Letter of Credit had been opened. It is further alleged that it is the responsibility of the defendants 1 and 2 not to handover the consignments to the third defendant without verifying the payment made by the third defendant to fourth defendant as the fourth defendant is the collecting bank through the bankers of the plaintiff. The goods had been sent through the Bankers of the plaintiff to the Bankers of the third defendant, namely, the fourth dependant. The primary duty of the defendants 1 and 2 is to deliver goods only after obtaining clearance from the fourth defendant. A grave mistake has been done by the" defendants 1 and 2 by handing over the goods to the third defendant without making payment to the fourth defendant. In the clauses relating to consignment it has been clearly indicated that "this consignment will not be detained, diverted, rerouted or re-booked without consignee's bank's written permission". However, without the consent of the fourth defendant, the defendants 1 and 2 delivered the goods to the third defendant in collusion with the third defendant, which was unauthorised. in the Way Bill it was also indicated :

(3.) IN the written statement filed by the first defendant, while not denying about the booking of the consignments, it was stated that the goods in question had not been delivered. It had been stated that the first defendant's counter part at Nepal is still keeping the goods in their godown and the goods have not been delivered to the third defendant. It was also stated that notice as contemplated under Section 10 of the Carriers Act had not been issued within the stipulated period of six months and, therefore, the suit was liable to be dismissed.