T Rajani, J. -
(1.)This civil revision petition is filed under Article 227 of the Constitution of India, assailing the order dated 21.9.2017 by virtue of which the Court of VI Additional District Judge, Visakhapatnam, allowed I.A.No.783 of 2014 in O.S. No.79 of 2013, which was filed by the first respondent-plaintiff, under Order VII Rule 11 read with Sections 94 / 151 of the Code of Civil Procedure, 1908 (CPC), to reject the counter claim.
(2.)The counter claim was filed by the petitioner-first defendant seeking for loss of business opportunity due to diversification of the Cargo from Gangavaram Port to Paradeep Port, loss of reputation and the loss on account of idling of men, machine and overheads. The suit was filed by the first respondent herein seeking for a decree for the specified amount, on the ground that the plaintiff began to transport the goods for the defendants based on their representations of oneness to various destinations, and during the period of October to December 2011, the work orders, to which the suit relates, were placed on the plaintiff and the goods were transported from Visakhapatnam to various destinations in Chattisgarh. The bills and invoices were submitted for payment but the same were not honoured or paid by the defendants. The petitioner herein, who is the first defendant, filed counter-claim, contending that it has been a reputed transporter since nine years, second respondent-second defendant is one of the leading importing agencies. The first defendant works on a back-to-back business with formal work orders, for the second defendant. The first defendant facilitates second defendant to plan and execute all its operations. The plaintiff is a Transporting company. The representatives of the plaintiff approached first defendant and assured that they would regularly arrange the fleet and make arrangement for Cargo transportation without any default. The first defendant entered into a contract with M/s.SEPCO Electrical Power Construction Corporation, which is one of the EPC Contractors, for erecting and commissioning of power projects worldwide. The importer-owner M/s.KSK Mahanandi Power Company Limited purchased Project materials from M/s.SEPCO and the above Project Cargo was signed and dispatched under Bill dated 03.10.2011 through a Vessel, MV Ocean Hero from Shanghai Port, China to Gangavaram Port, Visakhapatnam. The said Project Cargo was received at Gangavaram Port. The second defendant, being the Clearing Agent, was entrusted with the receipt of the Cargo. Out of the total consignment entrusted to the plaintiff, they loaded certain material. Normal duration for transportation of the Cargo from Gangavaram to the destination of the Project site of M/s.KSK was ten days, but the Cargo, in this case, was not delivered within the said time. The customer of the first defendant informed the first defendant that the Cargo covered by the above stated DC was not delivered to them at their Project site located near Nariyara Village, Chattisgarh. But, on enquiries, the representatives of the plaintiff have confirmed about the non-delivery of the Project Cargo and during that time they delivered a copy of the acknowledgement, which states that the New Port Police Station has received a complaint from Mr.Sushil Kumar Tiwari, Branch Manager of plaintiff-company. After receipt of the said copy, the first defendant came to know about the irregularities committed by the representatives of the plaintiff. The first defendant did not initiate any action against the plaintiff, since they were in dialogue with them. The plaintiff was involved in non-compliance of the essential terms of the contract. Due to non-delivery of the Cargo by the plaintiff, the Project works of the first defendant's customer are severely affected and huge loss is caused to them. The first defendant was constrained to raise demand on 04.3.2013 as a final chance, after repeated demands to pay Rs.14,32,27,592/- towards value of the undelivered Cargo, damages due to loss of business opportunity and loss of reputation on account of non-delivery of the Cargo. In the counter-claim, the first defendant, having stated so, has restricted its claim only for the loss of business opportunity, loss of reputation and loss on account of idling men etc.
(3.)The Court below, by considering that notice under Section 10 of the Carriers Act, 1865, which is a mandatory, was not issued prior to raising counter-claim and hence, rejected the counter-claim.