1. This is defendant's appeal against the judgment and decree dated 15-7-1983 passed by the learned Assistant District Judge No. 1, Nowgong whereby the plaintiffs (respondent No. 1 in this appeal) suit for recovery of Rs. 34,962.86 p. was decreed.
2. The plaintiff had filed suit for recovery of Rs. 34,962.36 on the allegations, that in pursuance to tenders invited by the defendant Corporation in the year 1979-1980-1981, an agreement between the plaintiffs and the defendant the North Eastern Electricity Power Corporation hereinafter referred as the ‘Corporation’, the present appellant was executed whereby the plaintiffs had been awarded contract for handling and transportation of materials at and from Lanka to Garampani project. As per terms of contract as directed by the defendant No. 2 or his authorised representative, the plaintiff had carried materials i.e cement from Lanka Railway station or other places to Store Yards godowns or work sites of the defendant corporation. The plaintiff, however, was not paid the amount of three bills submitted to him for carriage of cement etc. Besides, the security money of Rs. 11,000/- had also been deducted from the plaintiff's dues. Hence, the suit.
3. The main defendant, the present appellant had contested the suit inter alia on the ground that the Court had no jurisdiction that the plaintiff was not entitled to recover the amount claimed because the plaintiff had not delivered 705 bags of cement against the three bills of four challans as stated in the written statement. The defendant had not received cement under the said challans and hence, the plaintiff was not entitled to recover any amount.
4. The learned trial Court framed the following issues:—
1. Is there any cause of action for the suit?
2. Is the suit bad for want of jurisdiction of this Court?
3. Has the plaintiff right to sue?
4. Is the suit maintainable in law?
5. Is the suit bad for non-joinder of necessary parties?
6. Whether the plaintiff firm is entitled to a decree of the suit, and if so, to what extent?
7. Whether the defendants Nos. 1-3 are entitled to any compensatory cost entitled?
The suit proceeded ex parte against pro forma defendant, Gammon India Ltd.
5. The learned trial Court held that the Court had jurisdiction to try the suit; there was cause of action and the plaintiff had right to sue. The suit was maintainable. The plaintiff was entitled to the claim. The suit was accordingly decreed.
6. Aggrieved, the corporation has come in appeal and Shri S.N Bhuyan, learned counsel appearing on its behalf has submitted that the corporation had its Principal seat of business at Shillong in Meghalaya, that the agreement had been executed at Shilling and consequently the Court at Nowgong had no territorial jurisdiction to try the suit, that the defendant appellant was not allowed to produce expert evidence and thereby the learned trial Court committed grave error in the conduct of the trial; and that it was not established that the claim was justified that is that it had not been proved that 705 bags of cement had been delivered and consequently the defendant appellant was justified in withholding payment for three bills in that regard. Shri B.A Goswami, learned counsel for the plaintiff respondent, on the other hand has refuted the submissions and has submitted that there was no ground for interference with the findings recorded by the learned trial Court.
7. I have also heard Shri N.M Lahiri, learned counsel for the pro forma respondent.
8. The three points which require determination that whether the Court at Nowgong had territorial jurisdiction to try the suit, that whether the learned trial Court had committed any illegality in the trial, and lastly, whether the plaintiff had proved that 705 bags of cement had been delivered and the defendant appellant was not justified in withholding payment of three bills of the plaintiff in that regard.
9. In so far as the first question is concerned, while it is true that the Corporation has its Headquarter at Shillong and the agreement was executed as Shillong, the suit was in respect of an agreement to carry cement to various places at Lanka i.e from Railway Station and the yard to the Store Yard at Lanka and from there also directly to the sites of the ‘Umrangdam’. It may also be noted that the Corporation also had its subordinate office at Lanka from where also it carried on its activities.
10. The plaintiff in pursuance to the contract carried cement and other materials at Lanka from the Railway Station yard to the Store of the Corporation at Lanka or directly to the work site at different places. The challans Ext. 3 to 31 produced by the plaintiffs clearly show that Corporation had its subordinate office at Lanka, where it had Store Divn. with staff under an Incharge Engineer. The fact that the Corporation had its subordinate office at Lanka was therefore well established and what is more important is that the plaintiff was to carry out the work of carriage of goods under the agreement at Lanka.
11. Section 20 of the Code of Civil Procedure provides for the place where a suit may be filed. It reads:—
“20. Other suits to be instituted where defendants reside or cause of action arises.— Subject to the limitation aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction—
(a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or
(b) any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally work for gain, as aforesaid acquiesce in such institution; or
(c) the cause of action, wholly or in part, arises.
Explanation— A Corporation shall be deemed to carry on business at its sole or principal office in India or, in respect of any cause of action arising at any place where it has also a subordinate office, at such place.”
12. Shri S.N Bhuyan, learned counsel for the appellant has strenuously argued with reference to the explanation that the Corporation had to be sued at the place where its principal office, i.e Shillong was situated.
The explanation also makes it clear that a Corporation also carried on business from a place where it has its subordinate office. The Corporation had its subordinate office at Lanka and hence it could well be said that it carried on its business from Lanka.
13. Besides under clause (c) of Section 20 a suit can be filed where cause of action wholly or in part arose. It is well settled that cause of action in part also arises at the place (i) where contract was made or (ii) where work under the contract was to be performed or goods were to be delivered or (iii) where money under the contract was required to be paid. While it is true that the contract was enteredat Shillong the fact also remained that the work under the contract was to be performed essentially and mainly at Lanka. The cause of action for the suit in part therefore did arise at Lanka within the territorial jurisdiction of the Court at Nagaon. I therefore, think that there should be no doubt that the Court at Nowgong had territorial jurisdiction to try the suit.
14. Shri S.N Bhuyan, learned counsel for the appellants cited P.C Biswas v. Union of India, AIR 1956 Assam 85 and Union of India v. Sri Ladulal Jain, AIR 1963 SC 1681 and also Anand Traders v. S.K Enterprises, 1990 (1) GLR 277. On the facts of the present case the ratio in the aforesaid authorities does not make any difference to the basic fact in the instant case that since the Corporation had its subordinate office at Lanka and also because the work under the contract was to be performed at Lanka, the Court at Nogaon had territorial jurisdiction to try the suit. I hold accordingly.
15. As regards the next question Shri S.N Bhuyan, learned counsel for the appellant has argued that the defendant appellant had moved an application on 8-7-1983 for expert evidence, but on 18-7-83 the Court had rejected the petition without assigning any reason and consequently the trial Court had committed grave injustice to the defendant. The plaintiff had filed challans Ext. 3 to Ext. 31 to establish it had delivered cement carried under the contract for which payment had been claimed. The defence was that 705 bags of cement under challans Exts. 3, 4, 5 and 6 had not been delivered and that the said challans were forged. The contention was founded on the defendant's evidence that there was no entry of any such vehicle, as was mentioned in the challan as were stated to carry cement, in the gate register. It may be noted that the check gate register had not been exhibited. It appears that defence witness had been allowed to state that there was no entry registration number of the vehicle as entered in the challans in the check gate register. Shri S.N Bhuyan, learned counsel for the appellant also submitted that on the reverse side of said challans endorsement of receipt as may be found on other challans had not been made and as such it was strenuously contended that the signature in token of receipt on challans had been forged. DW 1 Pran Gopal Goswami had been examined for the defence but it may be noted that Exts. 3, 4, 5 and 6 bear in token of receipt of the store the signature of it appears one Kalita Store Keeper with seal, who was not examined. The signature of the same person also appear on challan Ext. 7 which was not disputed. While it is true that there was no endorsement on the reverse side of Exts. 3 to 6, but Ext. 7, Exts. 20, 21, 22, 23, 24 to Ext. 30 also did not bear any endorsement on the reverse and receipt of goods under said challans was not disputed. The absence of endorsement on reverse of Exts. 3 to 6 therefore could not necessarily bear out the defence version. Shri S.N Bhuyan, learned counsel for the appellant argued that the challans Exts. 3 to 6 are in dispute and hence the other challans were not significant or material. While it is true that the said challans are not in dispute, in the circumstances of the case in view of the facts that similar signature of Kalita exist on Ext. 7 and on some of the other challans as noted earlier there was no endorsement on reverse clearly militate against the submission that aforesaid challans Exts. 3 to 6 were forged or were not reliable. The mere fact that in the register of vehicles at the check gate, the vehicle number which was noted as having carried the goods under Exts. 3 to 6 was not entered, was not at all sufficient to take the view that the challans were forged. The defendant had not even examined the said person whose signatures were on the challans Exts. 3 to 6 in token of receipt of goods.
16. The defendant had applied at a late stage for expert evidence but the said person not having denied the signatures the prayer was not quite justified and the learned trial Court, in my opinion, had not committed any illegality or even error in rejecting the prayer for expert evidence at that late stage. It appears that on 31-5-1983 arguments were heard. The judgment was reserved. The defendants again prayed to adduce evidence. On 1-6-83 the prayer was allowed 6-6-83 was fixed for the purpose. The case was posted on 11-7-83 for hearing argument. On 8-7-83 the defendant applied for adducing expert evidence and after hearing the parties on 18-7-83 the learned trial Court rejected the prayer. The plaintiff had filed the challans much earlier and had proved the same. In case the defendant felt that the challans required to be referred to expert steps could have been taken well in time. The defendant appellant did not do so and had also only after close of evidence moved the petition dated 8-7-83. At that late stage. There was hardly any merit in the prayer. I, therefore think that the learned trial Court had not committed any illegality in rejecting the prayer. I hold accordingly.
17. As regards, the last question the learned trial Court has considered the evidence produced by the parties and come to the conclusion that the plaintiff had established that the goods had been delivered and that the defendants had not established that the cement wherefor the claim had been made, had not been delivered. I have considered the evidence for the parties. The plaintiffs evidence supported by the challans Exts. 3 to 6 clearly established that said cement had been duly delivered. The oral evidence of D.W 1 Pran Gopal Goswami and D.W 2 Sankar Pada Malik did not rebut that the plaintiff had not delivered the said goods, for I find absolutely no reason to think that Exts. 3 to 6 were not reliable. The plaintiffs claim had been satisfactorily established and was therefore rightly allowed by the learned trial Court. I hold accordingly.
18. For the aforesaid reasons, this appeal has no merit, and is dismissed with costs to the plaintiff respondent.
Appeal dismissed.