Pankaj Mithal JUDGMENT
Pankaj Mithal, J.
1. Leave granted.
2. Heard Mr. Anand Sanjay M. Nuli, learned Advocate appearing for the Appellant and Mr. Manu Beri, learned Advocate appearing for the first Respondent.
3. The Appellant (ESSEMM Logistics), who was the first Defendant in the suit, has preferred this appeal against the rejection of its counter-claim in exercise of power available Under Order VII Rule 11 of the Code of Civil Procedure, 1908 (in short "CPC") by the Court of first instance which order has been upheld by the High Court.
4. The first Respondent (DARCL Logistics Limited) was the Plaintiff who instituted original suit No. 79 of 2013 (DARCL Logistics Limited v. ESSEMM Logistics and Anr.) for a recovery of sum of Rs. 4,09,53,847/- with interest at the rate of 18% till its realisation, since the first Defendant - Appellant failed to make payments due as per 530 bills raised during the period 14.11.2011 to 31.01.2012.
5. In the said suit, the first Defendant - the Appellant herein entered appearance and filed its written statement with counter-claim of Rs. 13,04,00,000/- with interest at the rate of 24% on the said amount till its realization. The said counter- claim was set up as under:
6. It may be noted that the Plaintiff-first Respondent is a common carrier and is governed by the Carriage by Road Act, 2007 (new Act) which came into force with effect from 20.07.2010 repealing the Carriers Act, 1865.
7. The Carriers Act, 1865 vide Section 10 provided that no suit shall be instituted against the common carrier for the loss of, or injury to, goods including containers, pallets or similar articles of transport entrusted for carriage, unless a notice in writing for such loss of injury is given before the institution of the suit within six months of the loss coming to the knowledge of the Plaintiff.
8. The above Section 10 of the Carriers Act, 1865 for convenience sake is reproduced hereinbelow:
No suit shall be instituted against a common carrier for the loss of, or injury to, goods [including containers, pallets or similar articles of transport used to consolidate goods] entrusted to him for carriage, unless notice in writing of the loss or injury has been given to him before the institution of the suit and within six months of the time when the loss or injury first came to the knowledge of the Plaintiff.
9. The above Section 10 of the Carriers Act, 1865 bars the institution of a suit only against a common carrier for the loss of, or injury to, goods entrusted to the common carriage for the purposes of carriage without giving a notice in writing of the alleged loss........