Prestige Oriental Carpets vs Man Singh Saini and Others

Kailash Gambhir, J.—By this Regular Second Appeal filed u/s 100 of the Code of Civil Procedure, 1908, the Appellant seeks to challenge

the order dated 1.11.2006 passed by the Court of Additional District Judge in RCA No. 94/2005 dismissing the first appeal filed by the appellant

and the judgment and decree dated 28.10.2005 passed by the learned Civil Judge in Suit No. 365/1998.

The brief facts of the case relevant for deciding the present appeal are that the respondent No. 1 had filed a suit for recovery against the

appellant for a sum of Rs. 76, 750 which was decreed vide order dated 28.10.05. The cause of dispute between the parties is that the appellant,

who is in the business of manufacturing carpets had vide an invoice dated 16.12.93 sent 8 rolls of carpet to be dispatched to Germany via the

respondent who are travel and cargo agents and the air freight and agency charges for the said order were borne by the respondent No. 1/plaintiff

which were not reimbursed by the appellant and led him to file the said recovery suit. The appellant preferred an appeal against the said order

which vide judgment and decree dated 1.11.2006 was dismissed. Feeling aggrieved with the said two orders, the appellant has preferred the

present appeal.

Assailing the orders passed by both the Courts below, Mr. Diwan Singh Chauhan, learned counsel representing the appellant has mainly raised

two contentions; firstly that the recovery suit filed by respondent No. 1/plaintiff was barred by limitation as the same was not filed by the

respondent No. 1 within the prescribed period of three years reckoned from the date of the invoice of bill dated 16.12.1993 and secondly; that the

Delhi Courts have no jurisdiction to entertain and try the suit filed by respondent No. 1 as no cause of action or part thereof had arisen in Delhi and

the entire cause of action had arisen at Bhadhoi, Varanasi and, therefore, the recovery suit filed by respondent No. 1/plaintiff could not have been

entertained by a civil court at Delhi due to the lack of territorial jurisdiction. Elaborating his arguments on limitation, learned counsel submitted that

the bill in question was dated 16.12.1993, which was proved on record as Exhibit PW-1/D1, while the suit for recovery was filed by respondent

No. 1/plaintiff on 17.12.1996 and, therefore, the said suit was clearly barred by limitation. Learned counsel further submitted that the appellant had

raised the objection of limitation in paragraph 1 of the preliminary objections in written statement whereas the learned Courts below, ignoring the

evidence and pleadings wrongly held that the cause of action in filing the recovery suit began from 21.12.1993. Learned counsel also submitted

that the limitation period in filing the recovery suit could only be counted from the date of the bill and not from the date when respondent No. 1 had

supplied the documents to respondent No. 3.

On the aspect of jurisdiction, learned counsel submitted that the respondent No. 1/plaintiff was having its office at Bhadhoi and even the

appellant and other respondents were having their respective offices at Bhadhoi, Varanasi and the material was booked at the branch office of

respondent No. 1 at Bhadhoi and, therefore, the entire cause of action arose at Bhadhoi. Learned counsel further submitted that since there is no

airport at Bhadhoi, therefore, the entire material for export was sent from Delhi and, therefore, Delhi was merely a transit station and merely

because of the dispatch of the goods to Delhi, the same could not have determined the place of jurisdiction. Learned counsel thus submitted that

both the Courts below have ignored the entire evidence on record, both oral and documentary which clearly establishes the fact that only Bhadhoi

Courts had the jurisdiction to entertain and try the present suit.

I have heard learned counsel for the appellant at considerable length and given my thoughtful consideration to the arguments advanced by him.

Nobody has appeared on behalf of respondent to contest the present Regular Second Appeal.

The respondent No. 1 was carrying on business of travel and cargo agent under the name and style of M/s Space Travel and Cargo from Delhi

whereas the appellant/defendant No. 1 was carrying on the business of manufacturing and export of Indian handmade woolen carpets and vide

invoice number 37/93 dated 16.12.1993, had sent 8 rolls of carpets with the instruction to respondent No. 1/plaintiff to dispatch the same to the

consignee at Germany. Respondent No. 1/plaintiff was also instructed to send the shipping documents through respondent No. 3/Bank. It is also

the case of the respondent No. 1/plaintiff that in the letter dated 16.12.1993, addressed to the respondent No. 3, it was specifically mentioned that

the delivery of documents shall be made to respondent No. 1 when the payment of the bills of the plaintiff/respondent No. 1 amounting to Rupees

43,982/-, shall be made which letter of the respondent No. 1 was duly acknowledged by the respondent No. 3 on 21.12.1993. Since respondent

No. 3 had neither sent the payment nor had returned the original documents, therefore, the respondent/plaintiff had sent a legal notice dated

19.9.1995 which was replied to by the appellant/defendant No. 1 vide reply dated 6.10.1995. Due to the non-payment of the said amount,

respondent No. 1 had filed the said suit for recovery of an amount of Rupees 43,982/- towards the principal amount, Rupees 31,668/- towards

the interest and Rupees 1100/-towards the notice fee charges against the appellant and respondent Nos. 2 and 3. The said suit was filed by

respondent No. 1/plaintiff on 17.12.1996 and was decreed against the appellant and dismissed against respondent Nos. 2 and 3.

The issue of limitation and the jurisdiction can be either pure question of law and depending on the facts of the case, the same can be a mixed

question of law and fact. In the facts of the present case, the stand taken by the appellant is that the suit filed by respondent No. 1/plaintiff is barred

by limitation as the period of limitation is to be reckoned from the date of the bill i.e. 16.12.93 and not from the date of the entrustment of the

documents by the respondent No. 1/plaintiff. This Court does not find any merit in the contention of learned counsel for the appellant as the present

is not a recovery suit filed by the seller against the purchaser of the goods but the same has been filed by a cargo agent. On a bare perusal of

Exhibit PW1/D2, through which letter the shipping documents were entrusted by the respondent No. 1/plaintiff to the Union Bank of

India/respondent No. 3, it would be evident that they had raised the agency bill for a sum of Rupees 43,982/- vide bill No. 2346/12/93 dated

18.12.1993 proved on record as Ex. PW1/2. It would, therefore, be quite evident that even if the date of the entrustment of 21.12.1993 is not

taken into consideration, then at least the agency bill dated 18.12.1993 would be relevant date from which date the limitation can be safely

reckoned. Taking into account the said date of limitation, then also the filing of the suit by respondent No. 1/plaintiff on 17.12.1993 was well within

the period of limitation and hence the findings on the issue of limitation of both the Courts below are upheld.

Coming to the next contention of learned counsel for the appellant on the issue of jurisdiction, the plea raised by learned counsel for the

appellant is equally devoid of any force. It has come on record that the goods were never delivered at Bhadhoi but the same were delivered at

Delhi and from Delhi alone the goods were thereafter sent to Germany by air and even in the bill proved on record, Exhibit PW1/2, it has been

clearly mentioned that all the disputes were subject to Delhi jurisdiction. Considering the fact that the goods were received by the plaintiff at Delhi

and the same were dispatched from Delhi to Germany it cannot be said that the part of the cause of action had not arisen in Delhi and the learned

Trial Court has given valid and sound reasoning to deal with the issue of jurisdiction and the relevant paragraph 9 of the same is reproduced

below:-

Regarding the issue of jurisdiction, I also do feel that Courts at Delhi have clear cut jurisdiction. It has been argued by ld counsel for the

appellant that though plaintiff was having its office in Delhi yet no cause of action had arisen in Delhi. It has been argued that both i.e. plaintiff and

defendant No. 1 were having their offices at Bhadhoi and the material in question was booked at the branch office of the plaintiff situated at

Bhadhoi and the entire transaction had taken place at Bhadhoi. It has also been claimed that even document Ex.PW1/D1 was bearing the stamp of

the Bhadhoi office of the plaintiff which was even admitted by the plaintiff and since the entire transaction had taken place at Bhadhoi and since the

bill was also prepared at Bhadhoi office, suit could have been filed in Bhadhoi only. This contention is also devoid of merit. Carpets in question

were dispatched by defendant No. 1 to plaintiff through truck and bill in this regard has been proved as Ex.PW1/4. This document clearly revdals

that eight rolls of carpets had been dispatched by the consigner i.e. M/s. Prestige Oriental Carpets, Bhadhoi and these were to be delivered to the

plaintiff at New Delhi. There might be some dealing at the office level at Bhadhoi between the representatives of the plaintiff and defendant No. 1

but the aforesaid bill Ex.PW1/4 clearly reveals that the carpets were sent by hone other than defendant No. 1. These carpets were never sent by

the Bhadhoi office of the plaintiff. It clearly reveals that the goods were not delivered by defendant No. 1 at the branch office of the plaintiff and

rather the goods were transported by defendant No. 1 itself and all the goods were accordingly received at New Delhi by the plaintiff. This stands

corroborated even otherwise by the notice sent by defendant No. 1 which has been proved as Ex.PW1/1/0 and in his such notice, defendant No.

1/appellant admitted that as per the order, defendant No. 1 firm had sent woolen carpets by truck to Delhi. Thus the goods were never delivered

at Bhadhoi Office and rather the goods were received by the plaintiff at his Delhi Office and the goods were thereafter sent to Germany by air from

Delhi. Moreover, the document Ex.PW1/2 is also very important in this regard. After receiving the goods in Delhi, bill was raised and this bill is

Ex.PW1/2 and it has been mentioned in the bill that all the disputes were subject to Delhi jurisdiction. Since part of the cause of action had arisen

at Delhi as the goods were received in Delhi and goods were air shipped to Germany from Delhi, it becomes clear that the Courts at Delhi had

clearcut jurisdiction.

This Court does not find any infirmity or illegality in the said reasoning given by the First Appellate Court.

The legal position is settled that for entertaining an appeal u/s 100 of the Code of Civil Procedure, 1908, existence of a substantial question of

law is a sine qua non. It is not only the existence of a question of law but a substantial question of law that should exist. In the facts of the case at

hand, the question that from what date the limitation is to be reckoned is a mixed question of law and fact and does not warrant the court to

entertain it u/s 100 of the CPC. The jurisdiction of the court u/s 100 is specified and limited and cannot be exercised ordinarily. The court does not

interfere in the concurrent finding of facts arrived at by both the courts below till the time a substantial question of law has not arisen for its

consideration. The question whether the courts at Delhi had jurisdiction or not in the present case was a factual exercise which was rightly

determined by the courts below and does not warrant any interference at this stage.

In light of the above discussion, this Court does not find that any substantial question of law arises in the present Regular Second Appeal. There is

no merit in the appeal and the same is hereby dismissed.