IMPORTANT POINT
Failure to proceed with a suit and challenge a counterclaim can result in a judgment in favor of the defendant.

JUDGMENT :

Krishna Rao, J.:

1. The plaintiff had filed the instant suit against the defendant praying for a decree for an amount of Rs.14,89,925/- and Rs.55,00,000/- along with interim interest.

2. The Plaintiff is a company incorporated under the Companies Act, 1956, having its registered office at ‘Shyam Towers’, EN-32, Sector-V, Salt Lake City, Police Station – Electronics Complex, Kolkata-700091.

3. The Plaintiff carries on a business of manufacturing and trading in steel and various steel products and ancillary jobs.

4. The defendant no.1 is a Company incorporated under the Companies Act, 1956, having its registered office at No. 6, Tiretta Bazar Street, Kolkata-700073.

5. The defendant nos. 2 and 3 are the Directors of the defendant no. 1, and the defendant no. 4 is the Manager of the defendant no. 1 having their offices at No. 6, Tiretta Bazar Street, Kolkata-700073.

6. The defendants have filed Written Statement along with counter claim wherein the defendants have claimed for a sum of Rs.11,00,000/- along with interest.

7. CASE OF THE PLAINTFF :

a. The defendant no. 1, who works as a transporter, approached the plaintiff with the proposal to transport the products and/or goods of the plaintiff to all such places as directed by the plaintiff and/or its customers.

b. The plaintiff accepted the proposal and had entered into an agreement orally.

Certain terms and conditions were also agreed between the parties:-

i. The defendant no. 1 would work diligently in transporting the goods and/or products of the plaintiff.

ii. After the consignments are loaded in the vehicles of the defendant no.1 till delivery at the destination point the defendant no.1 and/or its men and agents including defendant nos. 2 to 5 would be responsible for safe reaching of the goods and in the event of any mishap or loss of goods the defendant no.1 and/or its men and agents would be liable to compensate the same.

c. On the basis of the representation of the defendant no.1 and relying on the assurances of the defendant no. 1, entrusted few jobs of transportation to the defendant no.1 by the plaintiff included the consignment worth Rs.9,77,000/- against Challan and Invoice No. AWB/B08/MD/02654 dated 30.08.2008 to be transported to Navayuga Engineering Co. Limited, at its BMRCL Project Site, Army Training School Ground, Binnamangala, Opposite Indira, Old Madras Road, Karnataka-560080.

d. The said consignment was loaded by the defendant No.1 in its Truck and Consignment Note bearing No. 110276 dated 30.08.2008 was also issued by the defendants.

e. Though the consignment was loaded in the said Truck on 30.08.2008 from the factory site of the plaintiff at Durgapur and was scheduled to reach the destination by 8 to 9 days, the said Truck with the consignment did not reach the destination and no intimation as to such non-delivery of goods was served upon the plaintiff by the defendants, the plaintiff came to know of such fact on 9th September, 2008 when the consignee that is the said Navayuga Engineering Co. Limited informed the plaintiff of such non-receipt of consignment.

f. On 13th September, 2008, the plaintiff came to know from the defendant no. 5 that the said truck loaded with the goods of the plaintiff was hijacked and as such the consignment could not be delivered to the place of destination. Thus the plaintiff then requested the defendants to take necessary steps in the matter but the defendants did not show any interest to lodge a complaint or to initiate any legal proceedings regarding the matter.

g. The plaintiff, however, managed to lodge the insurance claim to National Insurance Company Limited through Extra Cover Insurance Brokers Private Limited, the insurance broker on September 18, 2008, against loss of the said consignment.

h. The plaintiff had repeatedly requested the defendants to lodge an FIR and to take necessary legal steps in the matter. On 27.09.2008 the defendant no. 4 had informed the plaintiff that the defendant no. 1 had taken out an application u