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TMI Blog2017 (8) TMI 1028X X X X Extracts X X X X X X X X Extracts X X X X ..... onsultations a broad agreement was arrived between the plaintiff and the defendant with reference to the rates of the freight charges, the mode of payment, the documents to be furnished by the consignor to accompany the consignment lorries, the duration of transport to various destinations, the responsibility of the transporter in respect of the consignment and other connected matters concerning the transport consignments. 3. Further in case of transport of consignment to Nepal an agreement in writing of the terms of contract for carriage for each and every consignment was entered into between the plaintiff and the defendant. The defendant are to furnish the proper documents to accompany the consignments necessary to clear several check posts enroute to the destination. The defendant also informed that the lorries would be hired for transportations by the plaintiff. Accordingly the defendant has engaged the plaintiff services for transporting the consignments to various destinations between May, 1998 and November, 1999. The above transactions the defendant are due and liable to pay a sum of Rs. 10,88,162/- towards the freight charges, a sum of Rs. 27,620/- towards other charg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dant asked to replace the materials to the customers. It is further case that the plaintiff has not given a credit for a sum of Rs. 2 lakhs paid by the way of cheque credited. As far as the consignment sent to Nepal it is the case of the defendant that the plaintiff should not have paid any amount to the Customs office. The plaintiff should have asked the customer to bear the said amount. The defendant never asked to pay any such amount to the Customs authorities. Hence prayer for the dismissal of the suit. 7. On the basis of the above pleadings the following issues have been framed by the Trial Court. (i) Whether the plaintiff is entitled for a sum of Rs. 9,78,319/- being the arrears amount of freight charges and other expenditure for the services rendered by the plaintiff? (ii) Whether the plaintiff is entitled for subsequent interest at 12% per annum till date of realisation? (iii) Whether the plaintiff had not given a credit for a sum of Rs. 2,00,000/- said to have been paid by the defendant on 23-11-1999 through Cheque No. 002276? (iv) To what relief the plaintiff is entitled? 8. On the sid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted the damages, but also quantified for a sum of Rs. 2,36,097/- when the damages were admitted by the plaintiff the above amount is also to be deducted as against the plaintiff claim. Hence, submitted that after adjusting the damage of sum of Rs. 2,36,097/- and other Rs. 3,09,689 said to have been paid to the Customs authorities. The suit itself not maintainable hence prayed for allowing the appeal. In support of argument he also placed on reliance on the following judgments. 1. AIR 1997 DELHI 355 (Cofex Exports Ltd. v. Canara Bank) R.C. Lahoti and S.N. Kapur, JJ. Cofex Exports Ltd., Appellant v. Canara Bank, Respondent 2. CDJ 1954 APHC 043 - D. Konda Pentiah v. Chenchu Rangiah. 3. CDJ 1933 AH HC 007 - Madan Mohan Garg v. Bohra Ram Lal. 4. AIR 1964 (MP) 231 - State of Madhya Pradesh v. Raja Balbhadra Singh 5. AIR 1974 (Mad.) 231 - S. Sathiapal v. Pandiyan Brick Works & Another. 14. Countering the arguments of the learned counsel for the appellant, the learned counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1998 and November, 1999. 19. The bill towards payment pleaded in paragraph 5 of the plaint has not specifically denied, not even a whisper was made in regard to the bills payable by the appellant when the facts stated in the plaintiff were not specifically denied such facts can be taken as admission on the side of the defendant. 20. The only grievance of the appellant in their entire written statement that there was some damages to the goods while unloading and also during transport. The cost of materials damaged be deducted from the transporter's bill and another contention of the appellant in the written statement that the claim of sum of Rs. 3,09,689/- paid to the Customs authorities ought not have been paid by them. Except the above two defence other aspects pleaded in the plaint is not disputed at all. 21. Though it is pleaded by the defendant that there are some damages during transit it is not even pleaded in the written statement as to the nature of damages and value of the consignment. Be that as it may, the main contention of the learned counsel for the appellant to the Court that there was contract between the parties with regard to the consignment sen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a sum of Rs. 50,000/- to the transport corporation. It is the case of the plaintiff that since the lorries were detained for 28 days in check post, he has to pay the Customs duty. Though the contract stipulates conditions that the plaintiff has to contact the customers to pay the Customs duty, it is to be noted that immediately, when the lorries were detained, the plaintiff has sent a notice to the defendant informing about the detention of the lorries. But the plaintiff has not taken any steps to contact his consignee to pay the Customs clearance. 25. At the most, the plaintiff, being transporter, can only contact his customers, in case, the customer does not turn out to pay the amount. But the plaintiff, being transporter, cannot wait endlessly allowing their lorries to be detained in the check post. The obligations to clear the Customs is more on the consignor rather than the transporters. The consignor should have taken steps immediately to contact his customers at Nepal to clear the amount. Therefore, without specific pleadings in this regard in the written statement, now in the appeal stage that too at the time of argument, the appellant cannot canvass a new case to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... specific pleading with regard to the amount liable to be adjusted, merely on the basis of some admission in one of the correspondence in Ex.A11 that their engineers also issued certificate, it cannot stated that specific amount has been quantified. In the absence of any specific pleadings in that regard, and also failure to produce any evidence to substantiate the nature of the damages allegedly suffered, the amount with regard to the damages in respect of consignment during transit period, cannot be adjusted, merely on the basis of some surmise. 28. No doubt, in the judgments cited by the learned counsel for the appellant, it has been held that adjustment is not in the form of counter claim and no Court fee is required. Absolutely, there is no dispute with regard to the proposition set out in the above judgments. It is needless to point out that the amount sought to be adjusted as against the plaintiff and also the nature of damages caused to the consignment must be specifically pleaded in the written statement. But in the case on hand, D.W.1 in his evidence has clearly admitted that no documents were filed by them to prove the damages. In the absence of the same, the argum ..... X X X X Extracts X X X X X X X X Extracts X X X X
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