M/s Goodwill Transport Corporation, Indore vs United India Insurance Company Ltd. & Ors.

RSA No.432 of 2010(O & M) Date of Decision:17.08.2010

M/s Goodwill Transport Corporation, Indore

.... appellant

Versus

United India Insurance Company Ltd. & Ors.

.....respondents

CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG

1.Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest?

Present: Mr.Vivek Suri, Advocate for the appellant ****

RAKESH KUMAR GARG J.(ORAL):

This is defendant's second appeal challenging the

judgement and decrees of the courts below whereby suit of the plaintiff-

respondents for recovery, was decreed.

As per the averments made in the plaint, respondent No.1

filed a suit for recovery of Rs.7,46,329/- against the appellant and

respondent No.3 on the ground that respondent No.2 had booked goods to

be transported from Burhanpur to Malerkotla through respondent No.3 who

was the agent of the appellant. The appellant accepted the delivery of the

said consignment from Burhanpur to Malerkotla and for onward delivery to

respondent but the said consignment was misappropriated by the appellant

and respondent No.3 and in this regard an FIR was also lodged. The

appellant also issued non-delivery certificate of the consignment. The

present suit was filed by respondent No.1 on the ground that it is a public

limited company and since the goods of respondent No.2 were insured

with them and after being indemnified for the loss the respondent No.2 RSA No.432 of 2010(O & M) 2

subrogated and abandoned their rights in favour of respondent No.1. The

aforesaid suit was contested by the appellant raising various preliminary

objections including the objection with regard to the territorial jurisdiction of

Civil Court at Malerkotla.

From the pleadings of the parties, the following issues were

framed:

1.Whether the plaintiff company is entitled to recover the suit amount?OPP

2.Whether plaintiff No.2 i.e.Nahar Fibre Ltd.have issued a letter of subrogation in favour of plaintiff No.1?OPP

3.Whether Civil Court has jurisdiction to try the present suit?OPD

4.Whether suit of the plaintiff is not maintainable?OPD

5.Whether plaint is not properly verified?if so, its effect?

6.Whether plaintiff has no cause of action to file the present suit?OPD

7.Relief.

Both the parties were called upon to lead evidence in

support of their respective contentions. However, appellants failed to lead

any evidence despite repeated opportunities and their evidence was closed

by order of the Court. After considering the evidence on record and

hearing the counsel for the parties, the trial Court decreed the suit along

with interest at the rate of 12% per annum from the date of filling of the suit

till the realisation of the decretal amount. It may not be out of place to

mention, at this stage, that neither any evidence was brought to prove the

issue that Civil Court at Malerkotla has no jurisdiction nor any argument

was raised in this regard.

Not satisfied with the aforesaid judgement and decree of the

trial Court, defendant No.2 filed an appeal before the Lower Appellate

Court. It may be mentioned that no argument was raised by the appellant-

company before the Lower Appellate Court with regard to the merits of the RSA No.432 of 2010(O & M) 3

case and the only argument raised, was with regard to the jurisdiction of

the Civil Court at Malerkotla. However, the aforesaid argument of the

appellant was rejected by the Lower Appellate Court by observing as

under:

"The only argument raised by the learned counsel for the

appellant is that the civil court at Malerkotla was not having

any territorial jurisdiction to try the suit. He submitted that the

consignment was entrusted to the appellant at Bhurhanpur

and the said consignment was lost in the area of M.P., as

such, the civil court at Malerkotla was not having territorial

jurisdiction to try the suit. However, I do not find any force in

this contention of the learned counsel for the appellant. The

consignment was to be delivered by the appellant and

respondent No.3 to the consignee i.e. plaintiff No.2 at

Malerkotla. They failed to deliver the said consignment to

plaintiff No.2-respondent No.2 at Malerkotla, as such a part of

cause of action arose at Malerkotla. Hence, the court at

Malerkotla was having territorial jurisdiction to try the suit."

Still not satisfied, the present appeal has been filed by

defendant No.2 challenging the judgement and decrees of the courts

below.

At the outset, it may be mentioned that despite

adjournments granted, the appellant has failed to comply with the

provisions of Order 41 Rule 1(3)CPC. In spite of the non-compliance of the

aforesaid order, learned counsel for the appellant has been heard on the

merits of the case.

The only argument raised before this Court by the learned

counsel for the appellant is that no cause of action has arisen to the

plaintiff-respondent at Malerkotla and therefore the Civil court at Malerkotla RSA No.432 of 2010(O & M) 4

were not having the territorial jurisdiction and the judgement and decrees

of the courts below were liable to be set aside alone.

On the basis of the aforesaid argument, learned counsel for

the appellant has submitted that the following substantial questions of law

arise in the present appeal:

1.Whether the judgements and decrees passed by the

courts below sustainable in the eyes of law?

2.Whether the suit of the respondent could be decreed in

absence of any privity of contract between the appellant and

the respondent No.1 and 2?

3.Whether the suit of the respondent No.1 and 2 was

maintainable at Malerkotla?

4.Whether the mandatory provisions of law contained in

Section 20 of the Code of Civil Procedure could be ignored?

5.Whether the courts below could award the interest @12%

per annum?

I have heard learned counsel for the appellant.

Section 20 CPC provides that where a cause of action or

part of such cause of action has arisen, the suit can be filed in the Court

having jurisdiction over that area. In the present case, plaintiff-respondent

alleged that part of cause of action has arisen at Malerkotla as delivery of

consignment was to be made at Malerkotla. Despite raising the objection

and having got framed an issue on the question of jurisdiction of Civil Court

at Malerkotla, appellant failed to lead any evidence to controvert the factum

that delivery of consignment was not to be made at Malerkotla. Even

before the Lower Appellate Court despite raising the argument, the

appellant failed to show that part of cause of action has not arisen at

Malerkotla. Even before this Court, counsel for the appellant was unable to

show that no part of cause of action has arisen at Malerkotla. RSA No.432 of 2010(O & M) 5

Not only this, Section 21 of the Civil Procedure Code,

provides that objection of territorial jurisdiction must be taken in the first

instance. In the present case, despite a specific issue on the question of

territorial jurisdiction, appellant failed to address any argument in this

regard before the trial Court. Neither, the issue of jurisdiction was proved

nor raised and the same amounted to waiver of the issue by the appellant

before the trial Court.

In the case of Hira Lal Patni vs. Sri Kali Nath AIR 1962

Supreme Court 199, the Hon'ble Supreme Court observed that an

objection as to the local jurisdiction of a Court can be waived.

In the case of Balrein Petroleum Co.Ltd.vs.P.J.Paplpu

and anr.AIR 1966 Supreme Court 634, the Hon'ble Supreme Court after

relying upon Section 21 held that where a Court has no territorial

jurisdiction to try the suit, it is open to defendants to waive the objection of

absence of jurisdiction and if they do so, they cannot subsequently take the

objection.

In the instant case, despite having taken the objection in the

written statement, the same was not argued before the trial court.

The Madras High Court in the case of Abdul Rahiman

Rowther vs.Komalathammal AIR 1980 Madras 114, after relying upon

the aforesaid judgement of the Hon'ble Supreme Court held as under:

In my view, this authoritative pronouncement of the

Supreme court making a distinction between an objection

as to inherent lack of jurisdiction, on the one hand, and a

mere objection to the territorial jurisdiction of the court on

the other, is germane to the present case. The only

objection of the judgement-debtor, in the present case, is

that the properties which were the subject matter of the suit

mortgages were outside the territorial jurisdiction of the RSA No.432 of 2010(O & M) 6

learned District Munsif of Thiruvayaru. This certainly is not

an objection which goes to the competence of the court. In

any case, even this objection must be deemed to have been

waived by the judgement debtor. Waiver may be either

express or implied. An implied waiver can be gathered by

the conduct of the person who is stated to waive a particular

right of his. In this case by his masterly inaction both at this

stage of the preliminary decree and at the stage of final

decree in the suit, the judgement-debtor must be deemed to

have waived whatever objection to territorial jurisdiction he

might have put forward in his written statement which he

filed in answer to the suit claim."

In this view of the situation, I find no error in the impugned

judgement and decree of the courts below deciding the issue of jurisdiction

against the appellant.

Faced with this situation, learned counsel for the appellant

has further tried to raise the argument that the interest granted to the

plaintiff-respondent at the rate of 12% per annum is against the provisions

of Section 34 CPC. However, learned counsel for the appellant was

unable to dispute the jurisdiction of the Court to grant the interest at the

aforesaid rate in commercial/contractual transaction and could not show

from the record that it could not have been granted.

Moreover, no such question with regard to interest was

raised before the Lower Appellate Court. In this view of the matter, I find

no merit in this appeal.

No substantial question of law as argued, arises.

Dismissed.

(RAKESH KUMAR GARG) JUDGE 17.08.2010 neenu