JUDGMENT
S.B. Sinha, A.C.J.
1. This appeal arises out of an order dated 10th November, 1998 passed in G.A. No. 709 of 1998 arising out of Admiralty Suit No. 17 of 1997 by a learned single Judge of this Court, the operative portion whereof reads thus:–
“Mr. Suhrid roy Chodhury, Barrister-at-Law is appointed Commissioner to ascertain the extent of the damage, if any, caused to the said cargo and as to whether the said damaged portion is unfit for human consumption and further determine and assess the value of the said damaged portion.
2. For this purpose, the Commissioner shall take oral and documentary evidence to be adduced by the parties and also take the assistance of the surveyors to be nominated by the plaintiff and the second defendant and whose remunerations shall be paid by them respectively.
3. The department is directed to issue the writ of commission to the Commissioner. The Commissioner shall file his return within six weeks from the date of this order. The Commissioner shall be entitled to the remuneration of 200 Gms. for each sitting which is to be shared by the parties equally at the first instance. The Commissioner will be entitled to appoint a clerk and a streno-grapher whose remunerations shall be fixed by him in consultation with the parties and the same shall be shared by the parties in equal shares at the first instance.
4. Upon ascertainment of the damaged portion of the said cargo which is unfit for human consumption the same shall be set apart from the rest of the cargo. The plaintiff shall be entitled to destory the said damaged portion and the cost incurred on this account shall be borne by the plaintiff at the first instance.”
5. The fact of the matter has been stated by us in A.P.O.T. No. 916 of 1998 and in that view of the matter it is not necessary to reiterate the same.
6. Admittedly a portion of the Cargo was damaged during transhipment and a dispute between the parties arose as regard thereto. Although in case of this nature the plaintiff might have become entitled to make a prayer for arresting the ship, it did not do so in view of an undertaking given by the Protection and Indemnity Club which is to the following effect :–
“In consideration of you refraining from arresting or otherwise detaining the M/V “Baltic Confidence” or any other vessel in the same ownership or management possession or control, we hereby undertake to pay you on demand and sum up to USD (GIF value of damaged cargo plus cost of segregation and bagging of damaged cargo established jointly by the surveyors operating under the Receiver appointed by the Court) excluding Interest and costs, which may be found due to you from the owners of the M/V “Baltic Confidence” by final decision of a competent Court, an amicable settlement or an award of arbitration not subjects Lo an ” appeal in respect of your claim for alleged damage to cargo carried under Bs/L as per above heading.”
7. In the suit, however, a receiver was appointed and pursuant to the direction of the said receiver the parties appointed their own surveyors to ascertain the extent of damage who submitted their separate reports. While as per the report of the appellant about 23 Mts of the goods, i.e. 47,670 bags became damaged, the report of the Surveyor of the plaintiff-appellant shows that more than 63,000 bags were damaged. There, thus, exists difference between two reports as regard extent of the damage. The said report had been filed in a wrong suit and, thus, an objection thereto had been taken by the Appellant herein. In the meantime on an application filed by the respondents herein the order impugned has been passed. The respondent has also filed a cross appeal as according to them, the job as regard destruction of the damaged goods is a difficult one and therefore permission from the pollution Control Board is required to be obtained and for destruction of the damaged goods they are likely to incur expenditure for a sum of Rs. 25 lakhs in that regard.
8. Mr. Sudipto Sarkar, Ld. Counsel appearing on behalf of appellant, however, argued that the impugned order ex-facie suffers from an illegality in as much as by reason thereof the learned trial Judge has delegated his judicial functions as regard the assessment of quantum of damages to the receiver. Mr. Sarkar would urge that it is not within the province of the Court to collect evidence for the parties in as much as the parties are liable to prove their respective cases.
9. Mr. Anindya Mitra, the Ld. Counsel appearing on behalf of the respondents, submitted that keeping in view the afore-mentioned undertaking given by Protection arid Indemnity Club, as noticed hereinbefore, it was open to his client (State Trading Corporation) to enforce its claim but relying on or on the basis thereof no prayer had been made for arrest of the ship.
10. The only question which arises for our consideration is as to whether the learned trial Judge was correct in issuing the directions under appeal.
11. The answer to the said question must be rendered in negatives,
12. The suit filed by the Plaintiff was a suit for damages. It, therefore, was required to prove its own claim by adducing independent evidence, The Court had no jurisdiction to appoint a receiver for the purpose of collecting evidence and more so by as- sessing the damages allegedly suffered by the plaintiff. Such a judicial function, in our opinion, cannot be delegated. It is open for the plaintiff to appoint his own surveyor and get the damages assessed and prove his report in the suit. A Commissioner cannot be appointed to collect evidence in respect of the alleged damaged goods which are in custody of the plaintiff. Such evidence in support of the Plaintiffs claim cannot be permitted to be collected in a suit for damages at the instance of a party.
13. Furthermore, only because the plaintiff has to store the goods in the godowns upon taking the same on rent by itself would not entitle it to have appointment of a receiver and collect evidence in its behalf.
14. In padam Sen v. The State of Uttar Pradesh , the Apex Court while considering an application under Order 26, Rule 9 of the Code of Civil Procedure, held that the Court has no inherent power to appoint a Commissioner to seize documents. The inherent power of the Court cannot be exercised for such purpose.
15. In the Institution of Engineers (India) v. Bishnu Pada Bag , a Division Bench of this Court, inter alia, held that for such purpose even the provisions of Order 39, Rule 7 cannot be taken recourse to. It has also been held that a Commission cannot be appointed for the purpose of collecting evidence in a suit.
16. The reports filed by the surveyors are to some extent inconsistent but the same by itself, cannot justify appointment of a Receiver for assessing the damages and make an inventory of the damaged goods.
17. Mr. Mitter, the Ld. Senior Counsel, appearing on behalf of the respondents, however, submitted that the Appellants may be directed to destroy the damaged goods.
18. The fact that a huge quantity of goods have become damaged and unfit for human consumption is not in dispute. It is in this situation the plaintiff itself should take all steps to Mestroy the said goods. For the said purpose the impugned order could not have been passed. If the plaintiff is to obtain a certificate from the Pollution Control Board, it being an undertaking of the State, may itself do the same. If for the purpose of destroying the goods in question it has to incur additional expenditure it will be at liberty to amend its plaint and seek appropriate reliefs. It can also examine its own witnesses to prove the extent of damages suffered by it as regard the quantity of the goods which have become unfit for human consumption. A dispute in relation to the, quantum of the goods which have become damaged cannot, in our opinion, be determined in an interlocutory proceeding. The impugned order is contrary to the, provision of Order 26, Rule 9 of the Code of Civil Procedure and/or order 39, Rule. 7 thereof.
19. This, however, does not mean that
the plaintiff would be precluded from taking
steps for destruction of the damaged goods
which have become wholly unfit for human
consumption which may be done by it upon
taking such appropriate steps in that regard
as to it may seem fit and proper and upon
taking such safeguards therefore as it may
be advised in this regard.
20. The appeal is allowed and the cross objection is dismissed. However, we direct that both the suits should be heard by the same Court analogously. We further request the concerned bench to hear out both the suits as expeditiously as possible and preferably with a period of four weeks from the date of communication of this order.
M.H.S. Ansari, J.
21. I agree.