TMI Blog2017 (8) TMI 1028X X X X Extracts X X X X X X X X Extracts X X X X ..... ly paid by the plaintiff cannot be recovered. D.W.1, in his evidence also admitted that lorries were detained at Nepal and that they have not taken any steps to release the lorries. In the absence of specific pleading with regard to the amount liable to be adjusted, merely on the basis of some admission in one of the correspondence in Ex.A11 that their engineers also issued certificate, it cannot stated that specific amount has been quantified. In the absence of any specific pleadings in that regard, and also failure to produce any evidence to substantiate the nature of the damages allegedly suffered, the amount with regard to the damages in respect of consignment during transit period, cannot be adjusted, merely on the basis of some surmise. Appeal dismissed - decided against appellant. - A.S. No. 21 of 2009 against O.S. No. 6 of 2006 - - - Dated:- 14-3-2017 - N. Sathish Kumar, J. Shri R. Murari and B. Dhanraj, Counsels, for the Appellant. Shri L. Mohan and K. Srinivasan, Counsels, for the Respondent. JUDGMENT Aggrieved over the decree and judgment of the learned principal District Judge Thiruvallur. O.S. No. 06/2006, decreeing suit against the defenda ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pay the detention charges whereas the defendant by letter dated 24-9-1998 refused to pay the amount on the ground that Customs authorities of Nepal had not understood the issue and that the defendants had sent detailed note to the Customs authorities of Nepal. In spite of several letters to the defendant the defendant not taken any steps to pay Customs duty and also detention charges. The plaintiff has paid a sum of ₹ 3,38,288/- for clearing the consignments and lorries. The plaintiff had to incur an expenditure for defendant a sum of ₹ 3,38,288/- at Nepal Customs due to discrepancy in the documents. 5. The defendant not furnished proper documents to the plaintiff to accompany the consignments which compelled the plaintiff to incur the expenses so as to release the lorries which were detained for more than 28 days at Nepal Customs. Therefore the defendant is liable to reimburse the plaintiff of the expenditure incurred by them in the form of demurrage, etc., for an extent of ₹ 3,38,288/-. However the plaintiff claimed a sum of ₹ 3,09,689/- only. It is further case of the plaintiff that the damage to the 15 packages to the tune of ₹ 2,36,027/- is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es by the respondent plaintiff cannot be recovered, as there is a specific contract agreed between the parties. As per Ex.B.1 contract with regard to the supply of consignments to Nepal it is specifically agreed by the parties that Customs duties shall be paid only by the customer as customer already obtained order for 5% concession duty. Therefore the respondent should not have paid the Customs duties to the authorities. 11. Further the plaintiff has not placed any material to show that the appellant has not provided necessary documents at the time of loading the consignments at Chennai. Hence it is the contention of the learned counsel for the appellant that it is the duty of the carrier to collect all the documents when the goods were loaded and transported to the Nepal. 12. Therefore it is the contention of the learned counsel that all the documents were taken over by the plaintiff for delivery of consignment to the Nepal. Further lorries were detained for some clarification. It is the duty of the purchaser to clear the Customs duty as specifically agreed by the respondent. The plaintiff should have demanded the above amount from the customer as per the contract. The lett ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y entitled to be reimbursed all the amount paid to the Nepal Customs. Further contention of the learned counsel of the respondent with regard to damages for a sum of ₹ 2,36,027/- claimed by the appellant. The consignment was insured by the transporter, the appellant has not claimed insurance. Therefore submitted that appeal lacks merits. 16. In the light of the above submissions now the point arise for consideration are : (1) Whether the respondent/plaintiff is not entitled to recover a sum of ₹ 3,09,689/- paid towards the Customs duty at Nepal Border. (2) Whether the appellant is entitled to adjust the amount towards the damages? Point No. 1 17. The suit has been filed by the respondent/plaintiff for recovery of a sum of ₹ 9,78,319/- with the interest of ₹ 12% said to be the freight charges and other charges after giving credit to ₹ 2,00,000/- paid by the defendant on 23-11-2009. The above suit amount also includes a sum of ₹ 3,09,689/- paid by the respondents/plaintiff to the Customs authorities at the Nepal border, when the lorries were detained in the Border. 18. Apart from that suit was filed for recovery of amo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll be payable at 5%. The customer Taragon Regency Hotels Limited have obtained concessional duty certificate from Nepal Government. Transport Corporation of India will contact the customer Taragon Regency Hotels Limited at Kathmandu who will make the Customs duty payment to Transport Corporation of India Kathmandu office. Transport Corporation of India will make the Customs duty payment and deliver the consignment at site. 22. Though the Customs duty will be payable at 5% concession rate, above terms makes it clear that it is the duty of transporter to contact the customer at Kathumandu. Except the above no obligation whatsoever imposed on Transport Corporation of India. It is the specific case of the plaintiff that since all the relevant documents were not given by the appellant. The lorries were detained at check post. 23. The respondent has immediately contacted on defendant on 28-9-1998 to take steps to release the lorries and also to pay the detention charges. The above pleadings not even denied in the written statements. In E.A3, dated 22-9-1998 the plaintiff/respondent has clearly stated and sent the letter to the appellant that the lorries were detained for want of so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hem, the lorries were detained in the check post. He has also admitted that, after detention of the lorries, plaintiff informed the said detention to them and they have not taken any steps to release the lorries. It is also not known whether the customers have taken any steps to pay the Customs duty. Further, they do not have any documentary evidence to show that they were insisting customers to pay the Customs duty. Therefore, merely because some obligations were imposed on the transporter to contact the customer that cannot be a ground to deny the legal payment made by the plaintiff, in order to release the lorries, which are unnecessary detained for more than 28 days. The customer even after receipt of information from the consignor were not taken any steps to clear the Customs duty. That being the real scenario, one cannot expect the plaintiff, who is only a transporter, to demand the Customs duty from the customer. Therefore, the contention of the learned counsel for the appellant that the amount paid by the plaintiff towards Customs duty cannot be recovered has no legs to stand. 27. Insofar as the statement that there were also damages to the goods and the same were also q ..... X X X X Extracts X X X X X X X X Extracts X X X X
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