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Judgment
Dr. A.K. Rath, J.
Plaintiff is the appellant against a confirming judgment in a suit for realization of Rs.10,148.04 paise towards non-delivery of certain articles by the
defendant no.1-carrier.
The case of the plaintiff is that he is the authorized dealer of M/s.Mysore Sales International Ltd., Calcutta, defendant no.2. The defendant no.2
consigned certain articles amounting to Rs.7,659.04 paise through the defendant no.1 at Cuttack. The waybill and invoice were sent in usual course
delivered to the Bank of Baroda, Balasore with the instruction to delivery the same to the consignee-plaintiff at Balasore. Defendant no.1-carrier
failed to deliver the goods to the plaintiff at Balasore. With this factual scenario, he instituted the suit for realization of the value of goods along with
interest.
Defendant no.1 filed a written statement stating inter aliat that the plaintiff had received the consignment and in token thereof, he executed an
indemnity bond. As a matter of practice, without submitting the consignee’s copy of consignment, the consignee is to receive the goods from the
carrier by executing an indemnity bond and subsequently they collect the bond submitting the consignment note. No notice under Sec.10 of the
Carriers Act, 1865 had been issued before institution of the suit.
On the interse pleadings of the parties, learned trial court struck seven issues. Parties led evidence, oral and documentary, to substantiate their
cases. Learned trial court dismissed the suit with the finding that notice under Sec.10 of the Carriers Act, 1865 had not been issued. The suit was not
maintainable. Further the plaintiff had received the consignment. The unsuccessful plaintiffs filed S.J.Money Appeal No.8 of 1994 before the learned
District Judge, Balasore-Bhadrak, Balasore, which was eventually dismissed.
The second appeal was admitted on the following substantial question of law.
“Whether the suit is barred for non-issuance of notice under Section 10 of the Carriers Act and whether the court below erred in law in accepting
documents not properly proved ?â€
Heard Mr. Budhiram Das, learned counsel, on behalf of Mr. N.C. Pati, learned counsel for the appellant. None appeared for the respondents.
Mr. Das, learned counsel for the appellant, submitted that the courts below committed a manifest illegality in holding that notice under Sec.10 of the
Carriers Act, 1865 had not been issued before filing of the suit. The notice had been exhibited as Ext.4. The plaintiff sustained a loss of Rs.10,148.04
paise towards non-delivery of certain articles.
Sec.10 of the Carriers Act, 1865, which is the hub of the issue, reads thus:
“10. Notice of loss or injury to be given within six months.â€"No suit shall be instituted against a common carrier for the loss of, or injury to, [goods
(including containers, pallets or similar article of transport used to consolidate goods) entrusted] to him for carriage, unless notice in writing of the loss
or injury has been given to him before the institution of the suit and within six months of the time when the loss or injury first came to the knowledge of
the plaintiff.â€
On a bare perusal of Sec.10 of the Carriers Act, 1865, it is evident that no suit shall be instituted unless notice in writing of the loss or injury has
been given to the carrier before the institution of the suit and within six months of the time when the loss or injury first came to the knowledge of the
plaintiff. The same is mandatory requirement. Notice under Sec.10 of the Carriers Act, 1865 is sine qua non for institution of the suit. For non-
compliance of Sec.10 of the Carriers Act, 1865, the suit is bound to fail.
The plaintiff asserts that the articles were sent from Cuttack on 30.9.82 from the office of defendant no.2 at Cuttack. The suit was instituted on
23.9.1985. There is no pleading with regard to the time when the loss or injury first came to the knowledge of the plaintiff. The photostat copy of the
alleged notice had been exhibited as Ext.4. Learned appellate court on a scrutiny of the Advocate’s notice held that there is no date below the
signature of the counsel. The date which is put on the upper portion of right side of the first page is apparently and visibly antedated.
Though the notice is a photostat copy, the date has been typed out. The inescapable conclusion is that no notice under Sec.10 of the Carriers Act,
1865 had been issued before institution of the suit.
Plaintiff had signed the indemnity bond. He had not been examined as a witness. P.W.1 was the power of attorney holder of the plaintiff.
The apex Court in the case of Janki Vashdeo Bhojwani and another v. Indusind Bank Ltd. and others, AIR 2005 SC 439, held that Order III Rules
1 and 2 C.P.C. empowers the holder of power of attorney to “act†on behalf of the principal. In our view the word “acts†employed in Order
III Rules 1 and 2 C.P.C. confines only in respect of “acts†done by the power of attorney holder in exercise of power granted by the instrument.
The term “acts†would not include deposing in place and instead of the principal. In other words, if the power of attorney holder has rendered
some “acts†in pursuance to power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for
the acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter which only the principal can have a
personal knowledge and in respect of which the principal is entitled to be cross-examined. The substantial question of law is answered accordingly.
In the wake of aforesaid, the appeal, sans merit, deserves dismissal. Accordingly, the same is dismissed. There shall be no order as to costs.