SUPRITENTENDING ENGINEER IRRIGATION AND POWER DEPARTMENT MECHANIC CIRCLE SRISAILAM PROJECT SRISAILAM DAM EAST Vs. STEEL AUTHORITY OF INDIA LIMITED CALCUTTA

JUDGEMENT

(1.) THIS civil miscellaneous appeal under order XLIII Rule 1 (a) of Code of Civil procedure, 1908 (CPC), is by plaintiffs, namely, Superintending Engineer and executive Engineer of Irrigation Department, srisailam Project, Srisailam, Kurnool District. They filed appeal aggrieved by the judgment dated 25. 7. 1997 in O. S. No. 150 of 1993 passed by the Court of Additional subordinate Judge, Kurnool. By impugned judgment, learned Subordinate Judge returned the plaint for want of territorial jurisdiction to entertain the suit. In this order, parties are referred to as they are arrayed in the suit.

(2.) THE fact of the matter may be noticed by briefly referring to pleadings in the suit. Plaintiffs approached first defendant for supply of special items of high yield deformed steel bars worth about Rs. 8,64,000/-for Srisailam Project. First defendant accepted offer and agreed to supply material and deliver at Madras Port. Second defendant was instructed to give necessary assistance to plaintiffs. Second plaintiff paid an amount of Rs. 9,00,000/- by way of demand draft. Subsequently order of supply of some material was cancelled. An amount of Rs. 4,66,302. 63 ps was refunded but the contract for supply of other material was valid. Plaintiffs were informed by second defendant that the material is likely to reach madras Port on 21. 8. 1981 by ship berislau and requested plaintiffs to collect documents and make necessary arrangements for unloading the stock. Plaintiffs sent Deputy Executive Engineer along with Work Inspector to Madras to know the details. They informed that the ship arrived on 02. 9. 1981 at Madras Port and unloading was completed on 06. 9. 1981. Deputy Executive Engineer contacted fifth defendant and went to Port on 06. 9. 1981 to trace suit consignment so as to get it transported to Korukupet goods shed. But out of forty two (42) bundles ordered, only four bundles were traced, which were duly transported. As per the work order entered into between plaintiffs and fifth defendant, it is the duty of latter to see that any claim for shortfall/damage in transit/non-delivery etc. , shall be lodged with fifth defendant and that fifth defendant make good the loss if any after clearing steel from the Port. There was correspondence between plaintiffs and defendants for supply of shortfall of goods ordered. Third defendant sent a communication stating that the ship duly discharged the full bill of lading in quantity into custody of fourth defendant as reflected in tally sheet (receipt), which is statutory under Section 42 (2) and 42 (7) of Major Port trusts Act, 1963. In spite of the same, goods were not delivered. The goods ordered are duly insured with defendants 6 and 7, who are responsible to make good the loss occasioned in the transit under the insurance policy. Therefore the suit for Rs. 4,35,786. 85 ps which is value of thirty eight (38) bundles of high yield deformed steel bars. Hence plaintiffs instituted suit being O. S. No. 20 of 1982 before the Court of Subordinate Judge, ongole.

(3.) DEFENDANTS contested the suit denying liability. They contested territorial jurisdiction of Ongole Court. The said Court framed as many as fifteen issues. The Executive engineer gave evidence as P. W. 1 and marked Exs. A-1 to A-20. Defendant examined five witnesses but marked no documents. Ongole Court considered issue of territorial jurisdiction and came to the conclusion that it lacks jurisdiction and returned the plaint. Plaintiffs then carried the matter to this Court by way of filing the appeal being C. M. A. No. 1494 of 1985. The advocate General appeared for plaintiffs and conceded that the order of Ongole Court is correct in law. Therefore, a Division Bench of this Court dismissed appeal and granted two months time to plaintiffs to present plaint before the Court of Subordinate Judge, kurnool. Thereafter, plaint was presented before Kurnool Court, which was renumbered as O. S. No. 150 of 1993.