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

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

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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