(Prayer: Original side appeal preferred under Order XXXVI Rule 9 of O.S. Rules read with Clause 15 of amended Leters Patent 1865 against the order of this Court made in Application No.4893 of 2004 in C.S.No.128 of 2002 dated 9.9.2009.)
M. Chockalingam, J.
This intracourt appeal has arisen from an order of the learned Single Judge of this Court made in A.No.4893 of 2004 seeking to issue notice to the third party shown as third respondent herein, as contemplated under Order VIII A of the Code of Civil Procedure read with Order V A of the Original Side Rules and permission to the appellant/applicant to claim contribution from the said third party by way of a cross decree in favour of the applicant and against the third party directing them to pay such amount as may be directed by the Court.
2. The said appeal has arisen under the following facts and circumstances:
The said suit was filed by the plaintiffs namely the respondents 1 and 2 herein, seeking a decree against the sole defendant who is the appellant herein, directing him to pay a sum of Rs.37,46,425/- along with interest. On admission of the said suit, the defendant who was served with summons in the suit, on appearance filed a written statement belatedly. While the matter stood thus, the instant application was filed by him seeking impleadment of the said third party in order to enable the applicant to claim contribution from that third party by way of a cross decree in favour of the applicant. The said third party was also given an opportunity to file counter. The learned Single Judge after hearing the submissions made before him, and looking into the materials available, took the view that the application itself was not maintainable and dismissed the same. Aggrieved over the same, the defendant has brought forth this appeal.
3. Advancing arguments on behalf of the appellant, the learned Counsel would submit that the order under challenge is bereft of any reasoning whatsoever; that it is not correct to hold that an application for impleadment of a third party under Order VA of the Original Side Rules read with Order VIIIA of the CPC is barred by limitation; that as has been held by this Court in the case of Thiruvannamalai Adhinam Sri Daivasigamani Arunachala Desika Paramacharya Swamigal ((68) LW 671), there is no restriction in regard to the point of time when a defendant may ask for the issue of a third party notice under the said provision; that it is pertinent to note that the impleadment of the Stevedore is necessary when it is admitted by them that the damage to the goods was caused due to the negligence on the part of their employees; that the proper trial of the suit is not possible in the absence of the third party being made a party; that the application for indemnity against the third party in the suit should not have been dismissed as it is a question of evidence to determine whether the damage to the goods was caused due to a jerk in the crane wire as contended by the third respondent or due to negligence of the third respondent as contended by the appellant; that the said provision has been enacted with an intent to reduce multiplicity of proceedings; that even if the suit is decreed against the appellant after trial in the suit, the appellant would proceed against the third respondent for recovery of the suit claim; that under the circumstances, in order to prevent multiplicity of proceedings, the appellant filed the instant application , and hence the order of the learned Single Judge has got to be set aside and the application be ordered.
4. The learned Counsel appearing for the respective respondents in order to sustain the order under challenge put forth their contentions which were raised before the learned Single Judge.
5. This Court paid its anxious consideration on the submissions made and looked into all the materials available.
6. As could be seen from the averments in the plaint, the suit was laid by the plaintiffs for the recovery of Rs.37,46,425/- with interest alleging that the first plaintiff purchased Hot Forging Mechanical Press from a company having its base at Singapore; that they were packed in 10 different cases and were entrusted to the defendant, a Sea Carrier, for being carried from Keelang Port, Taiwan, to the Port at Chennai; that acknowledging the said entrustment of the cargo, the defendant issued a clean on Board Bill of Lading; that the first plaintiff was entitled to take delivery of the cargo as a holder in due course of the bill of lading; that the entire cargo was insured with the second plaintiff; that the vessel of the defendant arrived at the Port, Chennai, on 18.10.2000, and commenced its discharge operations; that the said cargo was taken custody by the Port Trust, Chennai, who made an endorsement indicating the damaged condition of the goods at the time when they took custody; that the clearing and forwarding agent of the first plaintiff informed to the agents of the defendant about the said damage of case Nos.4, 6 and 9; that surveyors were appointed; that on conduct of survey, they gave the report; that following the report, the clearing and forwarding agent of the first plaintiff lodged a claim with the defendant on 11.12.2000; but, the demand made thereat was not complied with; that the second plaintiff as Insurer indemnified the first plaintiff by making a payment of Rs.37,46,425/- as part claim; that the first plaintiff has also executed a letter of Subrogation; and that under the circumstances, both the plaintiffs have joined together in making the claim against the defendant.
7. Denying the liability, the defendant in the course of the written statement took the plea that after the vessel arrived at the Port of Chennai and the cargo was being discharged, one of the packages of the Hot Forging Mechanical Press namely package No.9, when it was being lifted from Hatch No.4, hit the Tween Deck as a result of which the cargo fell into Hatch No.4 coming into contact with package Nos.4 and 6 which were stowed in the same Hatch and thus the damage was caused; that on coming to know about the same, the defendant lodged a complaint against the Port Trust employees as well as Stevedores as they were responsible for handling and discharging of the cargo; and that while the Port Trust had not sent any reply, the Stevedores has rejected the claim stating that their employees were not negligent but the accident has occurred due to the malfunctioning of the Jumbo Crane causing a jerk to the wire and the package resulting in the cargo falling into the tank top.
8. After filing the written statement, the instant application was filed to issue notice to the said Stevedores the third party, under Order VIII A of CPC alleging that the damage has not arisen due to the negligence or misconduct of the defendant; but it was due to the negligence on the part of the Stevedores; that if the Court comes to the conclusion that the defendant was liable to pay the suit claim, the same is entitled to be indemnified by the third party Stevedores, and hence a cross decree has to be necessarily passed in favour of the defendant as contemplated under Order VIII A of CPC.
9. It is not in controversy that the cargo entrusted to the defendant for being carried from Keelang Port, Taiwan, to Chennai Port was to be discharged in a proper and good condition. The first plaintiff, the owner of the cargo, on being indemnified by the second plaintiff insurer pursuant to the claim made by the first plaintiff after being satisfied by the survey report made in respect of the damage of a part of the cargo, has executed a letter of subrogation in favour of the second plaintiff. Though the second plaintiff could file the suit, the first plaintiff has also joined in the suit, and thus the claim has been made by both. The said money claim was made against the sole defendant, the appellant herein, on the specific cause of action that the suit cargo was entrusted with the defendant when a bill of lading was issued by them and after the vessel of the defendant arrived at Chennai Port, it commenced the discharge operations on 20.10.2000 and 4 out of 10 cases were found in a badly damaged condition. According to the plaintiffs, the defendant was solely responsible to make good the loss on account of the breach of the contract of affreightment and gross negligence coupled with the willful misconduct. It is true that the defendant has denied the liability in the written statement. But he has not denied that the part of the cargo entrusted to the defendant was found damaged at the time of discharge. It is also well admitted in the written statement that the defendant lodged a complaint against the Port Trust employees as well as Stevedores who were responsible for handling and discharging of the cargo. Now, at this juncture, it is pertinent to point out that while the defendant lodged a complaint stating that the said damage was due to the negligence of the employees of both Port Trust and also Stevedores, he had not taken any steps to initiate any proceedings against the Port Trust and had not taken any steps for impleadment of the Port Trust in the pending proceedings. No reason is adduced or no explanation is put forth by the appellant for not doing so.
10. Admittedly, the damage has occurred on 20.10.2000. Pursuant to the complaint given to the Madras Dock Labour Board (MDLB), an enquiry was initiated, and show cause notices were issued to the Winch Operator and Signalman alleging that they were responsible for the incident leading to the damage of the shipment of the first plaintiff. Pending enquiry, the MDLB was merged with Chennai Port Trust and was converted into Cargo Handling Division-Traffic Department, Chennai Port Trust. It is pertinent to point out that two employees of the MDLB were found guilty of misconduct, and they have also been punished with censure that they should be more careful in future. Thus it would be quite clear that the complaint ended in a punishment awarded to the employees of MDLB which was subsequently merged with Cargo Handling Division-Traffic Department, Chennai Port Trust.
11. No doubt, the third party sought to be impleaded is a licensed Stevedores. It remains to be stated that those employees who were found negligent and responsible for the incident in which damage has occurred, were never under the control of the present third party Stevedores. In such circumstances, having lodged a complaint against the employees of the Port Trust also, the defendant has not taken any steps to get any remedy against the Port Trust; but, on the contrary, he has filed the instant application to add the third party Stevedores who had no control over the employees responsible for the incident.
12. Insofar as the question as to the point of limitation urged by the plaintiffs, the learned Counsel appearing for the appellant has placed much reliance on a judgment of this Court in the case of Thiruvannamalai Adhinam Sri Daivasigamani Arunachala Desika Paramacharya Swamigal reported in 68 LW 371. This Court has held in the said case as follows:
"10. The Object of the third party procedure is twofold: First to prevent the same question from being tried twice with possibly different results; Renecke v. Frost, Re Salmon, and secondly, to prevent multiplicity of action and to enable the Court to settle disputes between all the parties in one action; Baxter v. France, Barclay's Bank v. Tom, Venkatakrishna v. Narayanaswami. The third person is to be cited to take part in the original litigation and so to be bound by the decision on that question once for all; Venkatakrishna v. Narayanaswami.
11. The third party procedure is applicable only to cases of contribution or indemnity. In effect a claim to contribution is a claim to a partial indemnity. Contribution is bottomed and fixed on general principles of justice and does not spring from contract, though contract may qualify it: Dering v. Winchelsea. A right to contribution may be created by statute. A right to indemnity may arise (i) from express contract; (ii) from some statute; or (iii) implied from some principle of law. A right to indemnity exists where there is an obligation either a law or in equity upon one party to indemnify the other: Eastern Shipping Co., v. Quah Beng Kee, Burmingham and District Land Company v. London and N.W. Ry. An insurer can be added as a third party in an action for personal injury in a road accident as the defendant is entitled to indemnify from that party. For a discussion of the scope of the third party procedure on the Original Side, See Krishnaswami Aiyar v. Raghavaiah Chetty and Venkatakrishna v. Narayanaswami.
13. There is no restriction in regard to the point of time when a defendant may ask for the issue of a third party notice under O.VIII-A Civil Procedure Code. But naturally the application should be made at a stage of the proceedings when it is possible there may still be a trial of action between the plaintiff and the defendant: Rich v. Darret, Caister v. Chapman, Flower v. Todd, Gloucestershire Banking Co. v. Phillipps."
13. The very object of the third party proceedings envisaged under Order VIII A of CPC was intended not only to prevent the multiplicity of proceedings, but also to avoid the conflict of decisions being taken on the same question if tried more than once. From the above decision, it would be quite clear that no restriction could be imposed with regard to the point of time when a defendant could asked for the issue of a third party notice under Order VIII A of CPC and could make an application at a stage before the stage of trial between the plaintiff and the defendant. In the instant case also, the defendant has filed the application after the filing of the written statement. In view of the decision referred to above, the contention put forth on the side of the respondents cannot be accepted. But, the question that would arise for consideration would be whether the application though not barred by time, can be maintained against the present third party.
14. It is pertinent to point out that the Port Trust has issued the landing remarks dated 6.11.2000, indicating that the damage to the suit cargo had taken place in the custody of the defendant; but, on the contrary the defendant has lodged a complaint that the damage was due to the negligence on the part of the employees of the Port Trust and also Stevedores. Thus it would be quite evident that there is a controversy between the Port Trust and the defendant as to how the damage has occurred. But, it was the case of the defendant that the damage has occurred due to the employees of the Port Trust also. It is to be noted that the defendant has not chosen to take any steps against the Port Trust, but intended to implead Stevedores only.
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br />15. Speaking of the limitation, Sec.120 of the Major Port Trusts Act, 1963 reads as follows: "120. Limitation of proceedings in respect of things done under the Act- No suit or other proceeding shall be commenced against a Board or any member or employee thereof for anything done, or purporting to have been done, in pursuance of this Act until the expiration of one month after notice in writing has been given to the Board or him stating the cause of action, or after six months after the accrual of the cause of action." 16. The very reading of the above provision as to the limitation would indicate that no action could be brought before the expiration of one month notice or after six months after the accrual of the cause of action. In the instant case, the cause of action has arisen on 18.10.2000. Hence it would be quite clear that the defendant has not initiated any proceedings against the Port Trust, Chennai, seeking indemnity within the stipulated time. On the contrary, the defendant has filed the instant application against Stevedores who had no control over the employees negligent and responsible for the damage. Under such circumstances, the appellant/defendant cannot maintain the application. Therefore, the learned Single Judge was perfectly correct in rejecting the contentions of the appellant. This Court does not find anything to disturb the order of the learned Single Judge. 17. In the result, this original side appeal fails and the same is dismissed confirming the order of the learned Single Judge and leaving the parties to bear their own costs. Consequently, connected MP is also dismissed.