Cost not awarded against the second defendant.

1. The above appeal suit is directed against the judgment and decree dated 3.2.1987 made in O.S.No.4820 of 1984 by the II Assistant Judge, City Civil Court, Madras. The appellant is the second defendant in the suit and the respondent/plaintiff has filed the suit for recovery of a sum of Rs.96,546.33 with interest and costs against one Dewan International as the first defendant (which is not a party to the appeal) and the appellant as the second defendant.

2. The suit has been filed on averments such as, that the plaintiff is a Government Corporation constituted under the Air Corporation Act, 1953; that the first defendant carries on business and it is a proprietary concern; that the second defendant is a IATA recognised Cargo agent; that the plaintiff in the course of its air carriers business with the first defendant entrusted two consignments to be air freighted from Madras to Rome; that the second defendant issued air way bills for both the consignments, the first one dated 24.3.1981 and the second one dated 23.3.1981; that as per the terms of the AWB, the plaintiff, by their letter dated 29.5.1981, informed the first defendant that the consignment covered under AWB 098-3220 8282, dated 24.3.1981 had not been taken delivery of by the consignee and also regarding the second consignment they informed the first defendant in the same manner marking a copy of the letters to the second defendant also. After many communications to the first and second defendants ultimately the plaintiff was informed by the delivery carrier at Rome that the subject consignments had been abandoned to the local customs authorities in Rome and that the shipment was likely to be auctioned and the plaintiff requested to arrange payment of freight charges payable by the first defendant; that ultimately they were given to understand that both the consignments were confiscated by the Italian customs as per their laws due to non-clearance by the consignees and they are stating that the matter has been closed; that the freight charges for the first consignment came around Rs.27,865 and the same for the second consignment was at Rs.33,279; that inspite of many demands made to collect the said amount, since the defendant did not come forward to pay the same in favour of the plaintiff, ultimately the plaintiff had been left with no option but to file a suit for recovery of a total sum of Rs.95,546.33 being the freight charges, storage and other charges inclusive of interest at 18% per annum from the date of AWB payable by the defendant jointly and severally.

3. In the written statement filed on the part of the first defendant and the second defendant separately, they would not only generally deny the allegation of the plaint, but also put the plaintiff to strict proof of some of the allegations of the plaint. They would also specifically rebut the allegations and ultimately pray to dismiss the suit with costs.

4. The trial Court based on the pleadings, after having framed four issues for determination of all the questions that arose in the suit, ordered the trial to be conducted, in which, on the part of the plaintiff he would examine one witness for oral evidence and mark 22 documents as Ex.A-1 to Ex.A-22 for documentary evidence. Likewise, the defendant would examine two witnesses and no documents were marked on their side.

5. The learned trial Judge then having discussed the facts and circumstances as pleaded by parties, in the light of the evidence placed on record and after appreciating the same in the manner expected by law, would ultimately arrive at the conclusion to decree the suit with costs as prayed for against the first defendant and dismiss the suit against the second defendant without costs as per its judgment and decree dated 3.2.1987. It is only the second defendant to the suit having become aggrieved that he has not been provided with the costs by the lower Court while dismissing the suit against him, has come forward to prefer the a