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TMI Blog1978 (2) TMI 213X X X X Extracts X X X X X X X X Extracts X X X X ..... portion of the contents therein had been pilfered or removed. So he insisted on the defendants' employees for open delivery of the said goods and to grant a shortage certificate as per the actual delivery. But as the defendants' men refused to grant any shortage certificate, the plaintiff's man had to come back without taking delivery of the said goods. Thereafter the plaintiff itself or its lawyer sent registered letters to the defendants' firm at Cuttack asking the latter to give open delivery of the said goods and to pay damages for the actual shortage, but defendant No, 2, instead of giving open delivery of the articles to the plaintiff, gave evasive replies and directed the latter to take delivery of the goods as they were on payment of demurrage, wharfage and other charges and to contact the different offices of the defendants at different places as the defendants did not deliver the goods to the plaintiff by taking evasive pleas, the plaintiff was obliged to file the present suit. 4. Defendant No. 1 did not contest the suit and was set ex parte. Defendant No. 2 in its written statement refuted all the averments in the plaint. According to this defendan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of 3 kgs. in the said consignment the court below has granted a decree only for ₹ 4.15 Paise with proportionate costs throughout against the defendants. 7. At the outset Mr. Patra, the learned counsel for respondent No. 2, urged that the suit was liable to be dismissed as the plaint was not signed or verified in accordance with law. In the written statement the maintainability of the suit on this ground was not challenged. This point was also not agitated in the trial or in the first appellate court. The plaintiff no doubt is a partnership firm. Therefore, under Order 30, Rule 1, C.P.C. the plaint should have been signed and verified by all or any one of the partners of the said firm. As per Rule 14 of Order 6, C. P. C. if a party pleading is, by reason of absence and for other good causes, unable to sign the pleadings as per the rule to that effect, then the pleadings in his behalf may be signed by any other person duly authorised by him to sign the same or to sue or defend on behalf of the former. As per Rule 1 of Order 30, the plaint in this case should have been signed by one of the partners. So under Rule 14 of Order 6 any person duly authorised by one such partner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng more than an error of procedure. To my mind if the plaint has been signed by a person not duly authorised, but who on account of misinterpreting a certain deed is under the impression in good faith that he is duly authorised, as in thig case, the plaint cannot be rejected under Order 7, Rule 11. The defect is a mere irregularity, and does not affect the jurisdiction of the Court, and can be cured by the party or his duly authorised agent signing and verifying it. Moreover, the above defect, if it is at all a defect, does not affect the merits of the case or the jurisdiction of the court to try the suit, and so the decision in the suit cannot be set aside on that account. Section 99, C. P. C. provides as follows :-- No decree to be reversed or modified for error or irregularity not affecting merits or jurisdiction. No decree shall be reversed or substantially varied nor shall any case be remanded in appeal on account of any misjoinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court. On the above considerations I hold that the above contention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad, on any legal consideration, jurisdiction over this suit. In the plaint the address of defendant No. 1, i. e. the company itself, is shown as Umsohsum Road Shillong. At the top of Ext. E, the consignment note, it is stated that the registered office of the defendant-company is at Umsohsum Road, Shillong.' In none of the documents exhibited on behalf of the defendants, or in the written statement filed by defendant No. 2, there is anything to indicate that the defendant-company had its sole or principal office in Calcutta at the relevant time. In Exts. 3 and C, two of the letters written on behalf of defendant No. 2 to the plaintiff, it is stated that the Record and Claim Office of the defendant-company is at Secunderabad in Andhra Pradesh. D W. 1, an officer of the defendants and the only witness examined on their behalf, did not state in his examination-in-chief that the company had its sole or principal office in the city of Calcutta. Both the courts below have arrived at the concurrent finding that Calcutta is in no way connected either with the plaintiff or with any of the defendants. No cause, of action in respect of the matter in question arose in any manner in Calc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consignment was in perfect condition in all respects, without any signs of damage or breakage, and there was no chance or possibility of any pilferage from the said consignment. Having said so in the written statement, D. W. 1, the only witness examined on behalf of defendant No. 2, has admitted in his examination-in-chief itself that when the plaintiff's representative informed him that some of the packing cases were in a broken condition, physical verification of the consignment was made, and it was found that some of the nails on the packing cases had been removed or broken. He further admitted that as the plaintiff's representative suspected pilferage from the packing cases the consignment was weighed and shortage of 3 kgs. therefrom was detected. In the letters sent by defendant No. 2 to the plaintiff's advocate there is also admission of the above facts. It is asserted in the plaint and also in the deposition of P. W 1. the manager of the plaintiff, that the plaintiff's agent did not take delivery of the consignment as the defendant's man did not issue any shortage certificate even though the packing cases were found in a broken and damaged condition. On ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven to him. The non-delivery of the consignment was therefore occasioned due to the refusal of defendant No. 2 to grant the shortage certificate. The uncorroborated testimony of D. W. 1 for the first tune during his examination in court that shortage of only 3 kgs. was detected in the said consignment on 11-6-1971 does not inspire confidence specially in view of defendant No. 2's total denial in its written statement of any shortage in or any damage of the said consignment and absence of any documentary evidence supporting D. W. 1's statement to the above effect. Apart from that fact, defendant no. 2 having refused to furnish any shortage certificate to the plaintiff on 11-6-1971 could not, in the facts and circumstances of this case, have demanded demurrage, wharfage and labour expenses for retaining the goods in its godown after 11-6-1971. Therefore, the persistent demand of defendant No. 2 for payment of wharfage, demurrage and labour charges to release the consignment in question was uncalled for and illegal, and so the plaintiff was justified in not taking delivery of the consignment on payment of the said illegal charges demanded from it. As the non-delivery of the co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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