Delhi District Court
Harkaran Dass Deep Chand vs M/S Bahadur Enterprises on 23 May, 2013
IN THE COURT OF SH. CHANDER SHEKHAR,
DISTT. & SESSIONS JUDGE (NORTH),
ROOM NO. 401, ROHINI COURTS, DELHI.
CS No. 295/11
Harkaran Dass Deep Chand
Through its Partner
Sh. Dharam Pal
Office at :
471, Lawrence Road
Rampura, Delhi 110035 .......Plaintiff
Vs.
M/s Bahadur Enterprises
Through its Prop./Partner
Having its office at :
49/5/H/194, Karl Marx Sarani
Kolkata 700023 .........defendant
Date of institution : 20.09.2011
Date of hearing arguments : 22.05.2013
Date of decision : 23.05.2013
JUDGMENT
1. The plaintiff has filed the present suit for recovery of Rs. 8,93,915/ along with pendente lite and future interest @ 24% p.a. CS No. 295/11 Page 1 of 6 against the defendant averring therein that the plaintiff is a partnership firm and is engaged in the business of manufacturing soaps and trading of all kind of nonedible oils and defendant is a transport company and is engaged in the business of carrying and delivering the goods through its fleet of tankers.
2. It is further averred that the plaintiff purchased 22.680 metric tons of palm fatty acid distillate oil (hereinafter referred to as PFAD) from M/s Adani Wilmar Ltd. from their factory at JL No. 149, Debhog, HPL Link Road, Haldia, Purba Medinipur, West Bengal - 721657, for a sum of Rs. 6,38,515/ and the said PFAD was booked through the defendant for delivery from Haldia to the destination at Delhi at the office of the plaintiff and accordingly, on 23.10.2009, the goods/PFAD was loaded in the tanker bearing no. WP41B6961 from M/s Adani Willmar Ltd. by the driver of the above said tanker and the taxcumdelivery challan along with weighing slip of the tanker were issued to the driver on behalf of the defendant for delivery at the destination i.e. at Delhi.
3. It is further averred that the defendant issued the challan to the driver authorizing him to collect the goods from the factory at Haldiya vide Challan Note No. 384/0910 dated 23.10.2009 and to CS No. 295/11 Page 2 of 6 deliver the same at the office of the plaintiff. The said PFAD was to reach the office of the plaintiff at Delhi within about 78 days, but when the plaintiff did not received the same in time, the plaintiff called the defendant who requested the plaintiff to wait for few days.
4. It is further averred that after two days, the plaintiff again called the defendant to know the status/whereabouts of the goods/PFAD, but the defendant started making excuses and thereafter avoiding the telephones of the plaintiff.
5. It is further averred that due to nonreceipt of the goods/PFAD, the plaintiff suffered a business loss as he could not deliver the said goods to its customers in time.
6. Thereafter the plaintiff lodged a complaint with the SHO, PS Keshav Puram on 27.11.2009 against the defendant. Thereafter filed a criminal complaint u/s 200 Cr.PC along with an application u/s 156(3) Cr.PC before ACMM, which is pending adjudication. It is further alleged that in the said complaint, when the status report was called by the Court, the defendant admitted the receipt of the goods through his driver, but created a false story about misappropriation of the goods by his driver.
CS No. 295/11 Page 3 of 6
7. It is further averred that since the goods were entrusted by the plaintiff to the defendant being the carrier, it was the responsibility of the defendant to get the same delivered, but the defendant failed to render the services to the plaintiff thereby causing a loss to the plaintiff to the tune of Rs. 6,38,515/.
8. On these allegations, the present suit for recovery of an amount of Rs. 8,93,915/ along with pendente lite and future interest has been filed by the plaintiff against the defendant.
9. Summons were issued to the defendant by ordinary process as well as by way of registered post, but the same received back unserved with report 'left'. Thereafter, plaintiff moved an application under Order V Rule 20 r/w Sec. 151 CPC for affecting service of summons on the defendant by substituted mode i.e. by way of publication and accordingly, the defendant was served through publication in the newspaper "The Statesman" of dated 07.02.2013, but despite service by way of publication, the defendant did not appear before the Court and as such, vide Order dated 16.04.2013, the defendant was proceeded ex parte.
10. In order to prove its case, the plaintiff examined Sh. Dharampal, its partner, who tendered his affidavit in evidence as CS No. 295/11 Page 4 of 6 Ex. PW1/A and his statement was recorded as PW1.
11. I have heard Counsel for plaintiff and gone through the records carefully.
12. Besides his affidavit, PW1 also proved various documents on the record i.e. Exs. PW1/1 to PW1/8 and PW1/1A. The copy of partnership deed is Ex.PW1/1, copy of FormA of registration of partnership deed is Ex.PW1/1A, Taxcumdelivery challan dated 23.10.2009 issued by the Adani Wilmar Ltd. is Ex.PW1/2, original weighing slip dated 23.10.2009 showing the weight of goods/PFAD as 22.680 metric tons is Ex.PW1/3, original challan noted no. 384/0910 dated 23.10.2009 is Ex.PW1/4, copy of statement of account showing payment of Rs. 6,38,515/ to M/s Adani Willmar Ltd. on 23.10.2009 alongwith balance amount is Ex.PW1/5, complaint dated 27.11.2009 is Ex.PW1/6, copy of FIR is Ex.PW1/7 and the original plaint is Ex.PW1/8.
13. The testimony of PW1 has remained unchallenged and consistent throughout and there is nothing on record to disbelieve his statement.
14. Thus from the unrebutted and unchallenged testimony of PW1 coupled with documents proved on record, I am of view that CS No. 295/11 Page 5 of 6 the plaintiff has been successful in proving his case.
15. In view of my above discussion, I pass a decree for recovery in the sum of Rs. 8,93,915/ in favour of the plaintiff and against the defendant along with costs of the suit. Plaintiff is also entitled to recover the pendente lite and future interest, however, @ 12% per annum from the date of filing of the suit till its realization. Decree Sheet be prepared accordingly and file be consigned to Record Room.
Announced in the open Court
today i.e. 23.05.2013 (Chander Shekhar)
Distt. & Sessions Judge (North)
Rohini Courts, Delhi
CS No. 295/11 Page 6 of 6