Decided on August 04,1982



Rama Rao, J. - (1.) The appellant is the 1st defendant the plaintiff is a firm carrying on business as stevedores, clearing and forwarding Agents at Machilipatnam. The suit is filed for breach and forwarding agents at Machilipatnam. The suit is filed for breach and forwarding Agents at Machilipatnam. The suit is filed for breach of contract claiming damages to the tune of Rs. 11,750.00 with subsequent interest. The agreement was reached between the plaintiff and the 1st defendant that the iron ore belonging to the Government of orissa should be exported from paradeep post in orissa to foreign countries by steamers and the rate that was agreed to be given to the plaintiff is Rs. 3.00 per ton by telegram dated 14-5-1958 the plaintiff was informed that the japanese vessel S. S. Golden Kappa was calling at the port on 23-5-1958 the plaintiff should be ready to undertake the loading work by subsequent telegrams and also by letter dated 16-5-1958 sent by the state Trading corporation of India. The plaintiff was intimated that the vessel S. S. Golden kappa was chartered for transporting 4000 tons of iron ore from paradeep and requested the plaintiff to send three copies of their daily reports about stevedores work. After the arrival of the steamer the plaintiffs managing partner along with 30 of his men boarded the steamer on 28-5-1958. Two barges were arranged to be put along side the steamer and one of them was not able to put along side the steamer and hence returned back. When the activity of arranging hatches and cargo gear to prepare loading operations was going on. The master took away the vessel stating that he would return on the next morning. The next day the steamer called to calcutta taking 30 labourers and also the managing partner of the plaintiff firm without adhering to the programme of loading. In reply to the plaintiffs letter dated 5-6-1958 claiming payment of Rupees 13,005/- the 2nd defendant. Addl. Secretary in the Government of orissa discussed the matter with the plaintiffs managing partner at Delhi and requested him to send revised bill showing some concession. Accordingly the plaintiff sent revised bill with a letter dated 6-9-1958 claiming an aggregate amount of Rs. 11.750.00 but even this amount was not paid. After issuance of notice under sec. 80 C.P.C the suit was filed on 23-4-1959 As the plaint was returned on the ground that the suit was filed even before the prescribed period of 60 days under sec. 80 C.P.C. expired the plaintiff was obliged to issue another notice on 30-12-1960 and filed the suit later on. The plea of the defendants is that the Court at Machilipatnam has no jurisdiction to try the suit as no part of the cause of action arose within the jurisdiction of that Court and that the suit as framed is not maintainable. There was no valid contract enforceable against the state of orissa as the contract was not in writing in the name of governor of orissa and was not executed on his behalf by any person authorised by him in the manner contemplated under art. 299 of the Constitution. It was also stated that all the stevedoring labour did not arrive at cuttack as alleged but only some of them have arrived. The arrival of the steamer was delayed due to unforeseen circumstances by a few days and even though the plaintiffs managing partner and the labourers boarded the ship they did not make any arrangement for loading the steamer and after 9.00 p.m. M.V. Ambug had to move away from the steamer to a safer distance on receipt of the information from the captain of the steamer. On the next day as there was no response from the plaintiffs men to load even though M.V. Ambug went to the ship at 4.00 a.m. and the second barge M.V. Kite also went near the steamer, the steamer had to leave for calcutta as per shore instructions on account of weather conditions. Therefore the plaintiffs men failed to load the ore in the ship. The allegation of admission of liability and the request to send the revised bill is denied. The plaintiff was intimated to submit an account of the actual expenditure so that the 1st defendant may consider whether it is possible to make some payment. There was no legally enforceable contract and there was no failure on the part of the defendants the cause of action did not arise at Machilipatnam. The defendants filed a suit against the plaintiff in the Court of the subordinate Judge, cuttack for declaration that they are not liable for any breach of contract and that the plaintiff is not entitled to claim the sum of Rs. 11,750.00 or any amount and also a decree for recovery of Rs. 700.00 on the above pleadings the following issues were framed:- 1. Whether the suit contract is true valid and binding? 2. Whether the defendant committed breach of the same? 3. If so to what amount if any is the plaintiff entitled as damages? 4. Whether this Court has jurisdiction? 5. To what relief? Addl. Issue framed on 26-11-1965. 6. Whether the decree passed in T.s.12/61 on the file of sub-court cuttack operates as res judicata in this cuttack operates as res judicata in this case Addl. Issue framed on 26-4-1968. 7. Whether the suit is in time?
(2.) The learned Additional District Judge answered issues 1, 2, 4 and additional issue framed on 26-4-1968 in the affirmative and with respect to issue No. 3 the decree was granted as prayed for and regarding issue No. 6 the Court below held that the decree passed in T.s. No. 12/61 on the file of sub-court. Cuttack does not operate as res judiciata.
(3.) The learned counsel for the appellant contends that in respect of all the issues the learned District Judge failed to consider in proper perspective and particularly with respect to resjudicata the learned Judge erred to resjudicata the learned Judge erred in holding that the decree in T.S. 12/61 on the file of the sub-court. Cuttack does not operate as res judicata. The learned counsel for the respondents tried to sustain the judgment of the Court below on the grounds given by the learned district Judge and reiterated the contentions put forward in the Court below.;

Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.