Delhi District Court
Darcl Logistics vs Goyal M.G.Gases on 31 March, 2016
DARCL Logistics vs Goyal M.G.Gases
IN THE COURT OF SH. AJAY PANDEY, ADDL. DISTRICT JUDGE
05, ROOM NO. 605, SOUTH DISTRICT, SAKET COURTS, NEW
DELHI
In the matter of
M No. 6/15
Case ID No. 02406C0362582013
DARCL LOGISTICS LTD.
Having Registered Office at:
M2, Himland House,
Karampura Commercial Complex,
New Delhi110015
.............Plaintiff
Versus
GOYAL M.G. GASES (P) LTD.
A38, First Floor, Mohan Coop. Indl. Estate,
Mathura Road,
New Delhi110044
..........Defendant
Date of Institution : 24.05.2013
Date of reserving the Judgment : 22.03.2016
Date of pronouncement : 31.03.2016
Decision : Decreed
SUIT FOR RECOVERY OF RS. 3,17,394/(THREE LAKH
SEVENTEEN THOUSAND THREE HUNDRED NINETY FOUR ONLY)
WITH FUTURE INTEREST @ 12% PER ANNUM
ORDER
M No. 6/15 Page 1 of 19 DARCL Logistics vs Goyal M.G.Gases
1. This is a suit for recovery of Rs 317394/-
(Three Lakh Seventeen Thousand Three Hundred Ninety Four) filed by plaintiff company with future interest @ 12 % per annum.
2. As per plaint defendant published an advertisement in Daily Newspaper for hiring of ten wheeler chassis for transportation of industrial gas. In response thereto plaintiff submitted his quotation no. DARC/QTN/2006/0071 dated: 23.06.2006 for placing two ten wheeler chassis to the defendant on the following terms:-
"(i) Minimum guarantee of freight payment for atleast 5000 km per month and.
(ii) Detention charges payable for idle hours @ Rs 1000/- per day for each chassis."
3. Thereafter, defendant issued a letter dated 29.06.2006. In the said letter there was no condition pertaining to payment of freight for minimum guarantee of 5000/- km per month and for payment M No. 6/15 Page 2 of 19 DARCL Logistics vs Goyal M.G.Gases of detention charges payable for idle hours @ Rs 1000/- per day for each chassis. The representative of plaintiff contacted to Manager of defendant for omission of these conditions. The said representative was assured that these conditions would be incorporated in the formal contract which was promised to be signed and executed soon. It was further assured that till execution of contract the said conditions would be strictly adhered to for each chassis irrespective of their actual run.
4. Till October 2006, defendant continued to use the chassis of the plaintiff and kept assuring the plaintiff that the conditions of minimum guarantee of freight payment for atleast 5000 km per month and detention charges payable for idle hours @ Rs 1000/- per day would be applicable throughout the period for which the chassis were used by defendant.
5. On 11.10.2006, plaintiff's representative visited the office of defendant for signing the formal contract. The said contract did not contain any M No. 6/15 Page 3 of 19 DARCL Logistics vs Goyal M.G.Gases condition for detention charges payable for idle hours or for minimum guarantee of freight payment for atleast 5000 km per month.
6. Immediately thereafter plaintiff wrote a letter dated 12.10.2006 to the defendant that he would not be able to place the aforesaid two chassis without the two conditions regarding minimum guarantee of freight payment and detention charges. Thereafter plaintiff had several rounds of discussion with the defendant but to no avail. Thereafter, plaintiff wrote a letter to the defendant for release of Rs 244144/- (Two Lakh Forty Four Thousand One Hundred Forty Four) and also raised the bill for that amount. Defendant did not pay the amount. Plaintiff issued a legal notice dated 26.10.2006. Defendant sent a false reply to the said notice.
7. It is stated that defendant is liable to make the payment of RS 244144/- (Two Lakh Forty Four Thousand One Hundred Forty Four) to the plaintiff with interest @ 12% and thus an amount of Rs M No. 6/15 Page 4 of 19 DARCL Logistics vs Goyal M.G.Gases 317394/- (Three Lakh Seventeen Thousand Three Hundred Ninety Four) has become due from the defendant. Hence the present suit has been filed.
WRITTEN STATEMENT:-
8. Defendant filed written statement taking preliminary objection that the suit has not been instituted by an authorized person and that the court has no jurisdiction in view of section 5 of the Arbitration and Conciliation Act, 1996.
9. It was stated on merits in the written statement that defendant never agreed to any so called specific condition for minimum guarantee of freight payment of atleast 5000 km per month or to detention charges payable for the idle hours @ 1000/- per day for each chassis.
10. It is stated that after considering quotation of the plaintiff, defendant through his lettter dated 29.06.2006, conveyed his terms and conditions for M No. 6/15 Page 5 of 19 DARCL Logistics vs Goyal M.G.Gases the hiring of chassis. Plaintiff admitted those conditions without any term regarding minimum guarantee and detention charges and supplied his chassis of the use of the defendant. Any assurance for execution of formal contract apart from the letter dated 29.06.2006, is denied. It is stated that the question for executing any other contract did not arise when there was a subsisting agreement dated 29.06.2006. Bill of Rs 244144/- (Two Lakh Forty Four Thousand One Hundred Forty Four) raised by the plaintiff is stated to be arbitrary and the plaintiff was stated to be entitled for Rs 59156/- (Fifty Nine Thousand One Hundred Fifty Six) only, as per the transportation agreement dated 29.06.2006. Even that claim of the plaintiff is stated to be barred by limitation.
11. Vide order dated 22.05.2014, my Learned Predecessor decreed the suit under order 12 rule 6 CPC for the admitted amount of Rs 59156/- (Fifty Nine Thousand One Hundred Fifty Six).
12. For the remaining claim of the plaintiff M No. 6/15 Page 6 of 19 DARCL Logistics vs Goyal M.G.Gases following issues were framed on 05.08.2014. ISSUES:-
1. Whether the suit is barred by section 5 of Arbitration and Conciliation Act? OPD
2. Whether the plaintiff is entitled for recovery of suit amount as prayed for? OPP
3. Relief.
13. Plaintiff examined Sh Jitender Kr Bansal, working as Manager with him as PW1.
14. Defendant also examined one Sh. Shahzaib Khan, Authorized Representative of defendant as DW1 and closed his evidence.
15. Both the parties filed written submissions and also addressed oral arguments.
16. Court has considered arguments advanced by Learned Counsels for the parties and has gone through the evidence and material available on record.
M No. 6/15 Page 7 of 19DARCL Logistics vs Goyal M.G.Gases
17. Issue wise findings of the court are as under:
Issue no.1:
Whether the suit is barred by section 5 of Arbitration and Conciliation Act? OPD It is fairly conceded by the counsels of both the parties that this issue was already decided by my Learned Predecessor vide order dated 09.05.2014 and it was held that there was no arbitration agreement between the parties. There is no document signed by the parties which can be termed as an arbitration agreement or which contain any arbitration clause for resolution of dispute between the parties. This issue is accordingly decided against the defendant and it is held that suit is not barred under section 5 of the Arbitration and Conciliation Act, 1996.
18. Issue no.2:
Whether the plaintiff is entitled for recovery of suit amount as prayed for? OPP M No. 6/15 Page 8 of 19 DARCL Logistics vs Goyal M.G.Gases Onus to prove this issue was upon plaintiff.
19. Learned Counsel for the plaintiff has submitted that only payment left from the defendant is qua minimum guarantee of freight for atleast 5000/- km per month and detention charges for Rs 1000/- per day for each chassis.
20. Counsel for the defendant submits that plaintiff is not entitled for any amount on account of either of these claims because there was no contract between the parties for the payment of said amounts.
21. He has further submitted that in the entire plaint or in affidavit in evidence, plaintiff has not explained how the amount of Rs 244144/- (Two Lakh Forty Four Thousand One Hundred Forty Four) was arrived at. There is no break up of the amount nor any bill or invoice is proved on record.
M No. 6/15 Page 9 of 19DARCL Logistics vs Goyal M.G.Gases
22. No advertisement through which the defendant invited for hiring of ten wheeler chassis is proved on record.
23. It is rightly submitted by Learned Sh. Tarun Singla, Advocate for defendant that if the defendant published any such advertisement same can be considered only an invitation to offer.
24. In response thereto plaintiff gave his offer Ex PW 1/2 Letter of quotation no. DARC/QTN/2006/0071 dated: 23.06.2006 for placing two ten wheeler chassis with following terms and conditions:-
1. Quoted rates are exclusive of loading & unloading charges.
2. Transit insurance shall have to arranged by the defendant.
3. Payment 60% may be in advance and balance on presentation of bill within 30 days.
4. Detention charges will be charged @ Rs 1000/-
per day after 24 hrs. M No. 6/15 Page 10 of 19 DARCL Logistics vs Goyal M.G.Gases
5. Minimum guarantee for 5000 km.
6. Plaintiff may be allowed weight tolerance alongwith minimum evaporation.
25. After receipt of this quotation EX PW 1/2 defendant wrote the letter dated 29.06.2006 Ex DW 1/2. The contents of the letter are reproduced herein below:-
" Dear Sir, With reference to your quotation no DARC/QTN/2006/0071 DT 23.06.2006 and telephonic discussion with your Mr. N.M. Mitra for placement of our chassis. We are glad to invite you for placement of 2 nos of 10 wheeler chassis as per following terms:-
1. You shall be paid @ Rs 16 per km.
2. You shall provide us two nos of ten wheeler chassis for M No. 6/15 Page 11 of 19 DARCL Logistics vs Goyal M.G.Gases transportation of our Hydrogen Cylinder for Nangal Branch to various destination.
3. Chassis you are going to provide us should have four state permit in addition to home permit.
4. Payment terms will be 60% advance and balance 40% within 30 days from the date of bill.
5. Other terms and conditions will as per our standard contract.
You are requested to provide us two nos of chassis within 5 days from the date of this letter."
26. After receipt of this letter, plaintiff supplied his two chassis to the defendant.
27. Contention of the Learned Counsel is that the M No. 6/15 Page 12 of 19 DARCL Logistics vs Goyal M.G.Gases defendant in this letter dated 29.06.2006, did not deny any of the conditions mentioned in the quotation letter of the plaintiff and therefore defendant admitted all the conditions mentioned in the quotation letter Ex PW1/2 of the plaintiff.
28. It is also submitted by counsel for the plaintiff that in addition to that the Manager of defendant orally assured the plaintiff that the conditions for minimum freight charges and the idle hour charges shall be strictly adhered to.
29. Court is in agreement with the submissions of the Learned counsel for the defendant Sh. Singla that the letter dated 29.06.2006 EX DW 1/2 , could not be considered as the acceptance to the quotation letter dated 23.06.2006 EX PW 1/2.
30. Sh. Singla, Advocate for defendant has rightly submitted that the acceptance of any proposal has to be absolute and without variance as per section 7 of the Indian Contract Act, 1872, which provides as M No. 6/15 Page 13 of 19 DARCL Logistics vs Goyal M.G.Gases follows:-
"Section 7:- Acceptance must be absolute:- In order to convert a proposal into a promise the acceptance must-
1. be absolute and unqualified
2. be expressed in some usual and reasonable manner, unless the proposal prescribes the manner in which it is to be accepted. If the proposal prescribes a manner in which it is to be accepted , and the acceptance is not made in such manner, the proposer may, within a reasonable time after the acceptance is communicated to him, insist that his proposal shall be accepted in the prescribed manner, and not otherwise, M No. 6/15 Page 14 of 19 DARCL Logistics vs Goyal M.G.Gases but, if he failes to do so, he accepts the acceptance".
31. Court finds no substance in the submissions of Learned Sh. Karan Jain, Advocate for Plaintiff that there was no variance in the proposal of the plaintiff vide quotation letter Ex PW 1/2. The terms regarding the minimum freight payment and the payment of idle hour charges were omitted from the letter EX DW1/2. Additional condition, which was not part of Ex PW1/2 was incorporated in the same.
32. In the facts and circumstance, the court is of the opinion that plaintiff gave the proposal through his quotation letter dated 23.06.2006 Ex PW1/2.
33. Defendant gave his counter proposal through letter dated 29.06.2006 EX DW1/2, adding further conditions and omitting certain condition of Ex PW1/2.
34. In response to the counter proposal, plaintiff M No. 6/15 Page 15 of 19 DARCL Logistics vs Goyal M.G.Gases supplied his two numbers of chassis to the defendant. The previous proposal given by the plaintiff could not turn into an agreement between the parties because there was no unqualified acceptance by defendant. By his acts of suppling chassis, plaintiff admitted the offer or proposal of the defendant and the defendant could be made liable to the payment towards plaintiff in accordance with the EX DW1/2 dated 29.06.2006 only.
35. Apart from the oral testimony of the plaintiff that defendant orally assured to make the payment of minimum freight charges and idle hour charges there is not a single document which reflect that defendant ever agreed to make such payment. In view of the letter dated 29.06.2006 Ex DW1/2, the oral testimony of the plaintiff can not be relied upon in variance of the terms and conditions of the letter subsequent to which the plaintiff had supplied his goods or services to the defendant.
36. Apart from this it is rightly submitted by M No. 6/15 Page 16 of 19 DARCL Logistics vs Goyal M.G.Gases Counsel for the defendant that plaintiff has referred to the bill of Rs 244144/- (Two Lakh Forty Four Thousand One Hundred Forty Four) in the plaint, but has not proved on record any such bill. There is no break up given by the plaintiff in his testimony as what specific amount he is claiming the minimum guarantee charges for 5000/- km per month and what specific amount he is claiming for idle hours charges @ Rs 1000/- per day.
37. In the facts and circumstances, this court is of the opinion that plaintiff has failed to prove that he is entitled for recovery of the suit amount except the amount, which has already been decreed vide order dated 22.05.2014.
38. Counsel for the plaintiff prays for grant of interest on the said amount of Rs 59156/- (Fifty Nine Thousand One Hundred Fifty Six).
39. Considering that the transaction between the parties was related to the business of both the M No. 6/15 Page 17 of 19 DARCL Logistics vs Goyal M.G.Gases parties the court is of the opinion that the defendant is liable to make the payment of interest @ 10% per annum from the date of the institution of suit till the passing of the preliminary decree dated 22.05.2014. Court declines the request of Counsel for the plaintiff for grant of interest till the passing of this judgment or for future interest because till date plaintiff has not taken any steps for execution of the decree passed on 22.05.2014. Accordingly, it is held that plaintiff is entitled to recovery of Rs 59156/- (Fifty Nine Thousand One Hundred Fifty Six) (already decreed) from the defendant with interest @ 10% per annum from the date of institution of the suit till passing of the preliminary decree dated 22.05.2014.
40. Relief
41. In view of the discussion of the court on issue no. 2 and the plaintiff is held entitled to decree for recovery of an amount of Rs. 59156/- (Fifty Nine Thousand One Hundred Fifty Six) as already decided under order XII rule 6 CPC from the defendant with M No. 6/15 Page 18 of 19 DARCL Logistics vs Goyal M.G.Gases interest @ 10% per annum from the date of institution of the suit till passing of the preliminary decree dated 22.05.2014.
42. Decree Sheet be prepared accordingly.
43. File be consigned to record room.
Announced in the open (AJAY PANDEY) Court on 31.03.2016 ADJ05 (SOUTH DISTRICT) (Order contains 19 pages) SAKET COURTS, NEW DELHI M No. 6/15 Page 19 of 19