Delhi District Court
Flywell Aviation Pvt. Ltd vs Sarr Freights Corporation on 8 September, 2014
CS No.139/11 & Counter Claim no.96/14
IN THE COURT OF JITENDRA KUMAR MISHRA ADDITIONAL
DISTRICT JUDGE-Central-9, DELHI.
Civil Suit No.: 139/11 & Counter Claim no.96/14.
Unique Case ID No.02401C0123902010 & 02401C0409602014.
Flywell Aviation Pvt. Ltd.
A company incorporated under
The Indian Companies Act, 1956
Having its Registered Office at:
B-2/50, Safdarjung Enclave,
New Delhi-110029.
.....Plaintiff/ non-counter claimant
Versus
01. SARR Freights Corporation
A partnership concern
having its office at
Sewak House, 1E/12,
Jhandewalan Extension,
New Delhi-110 055.
Through its Managing Partner
02. Mr. Sunil Kapoor
Managing Partner
SARR Freights Corporation
Sewak House, 1E/12,
Jhandewalan Extension,
New Delhi-110 055.
03. Hindustan Aeronautics Limited
Through its Chairman
5/1, Cubbon Road, Post Box No. 5150
Bangalore - 560 001.
...Defendants/Counter claimants
Date of institution of the suit : 27.03.2010.
Reserved for judgment on : 08.09.2014.
Date of pronouncement of judgment : 23.09.2014.
Flywell Aviation Pvt. Ltd. Vs. SARR Freights Corporation & Ors. Page.1
CS No.139/11 & Counter Claim no.96/14
SUIT FOR RECOVERY OF RS. 6,86,425/- (RUPEES SIX LACS EIGHTY
SIX THOUSAND FOUR HUNDRED AND TWENTY FIVE ONLY).
JUDGMENT
01. The present suit is of recovery of Rs.6,86,425/- filed by the plaintiff against the defendants.
02. Brief facts of the case are:
(a) Plaintiff is a company incorporated under the Companies Act, 1956. Plaintiff is a Chartered Flight Operator and interalia engaged in the business of providing various aviation and cargo related services to its clients. Mr. Dhanesh Malhotra, Acounts Officer of the plaintiff has been authorised vide the Resolution of the Board of Directors dated 17.02.2010 to sign, verify and institute the present suit and to depose on behalf of the plaintiff.
(b) Defendant no.1 is a partnership concern and defendant no.2 is the Managing Partner of defendant no.1 and is responsible for the day to day affairs, conduct and business of defendant no.1.
Defendants were dealing with the plaintiff for the business. Defendant no.3 is engaged in the research and development of various kinds of aircrafts, helicopters etc for both civil aviation and defence purposes.
(c) During August 2009, defendant no.1 through defendant no.2 approached the plaintiff and represented that defendant no.3 had appointed defendant no.1 as its agent for air transport and delivery of cargo belonging to defendant no.3 containing a HAL Helicopter, spare parts and handling equipment from Bangaluru to Mauritius to be delivered to Government of Mauritius, Department of Police (Consignee) by 06/07th September 2009.
Flywell Aviation Pvt. Ltd. Vs. SARR Freights Corporation & Ors. Page.2 CS No.139/11 & Counter Claim no.96/14
(d) Defendant no.1 for and on behalf of defendant no.3 requested for services of the plaintiff for carrying out air transportation of said HAL Helicopter along with spare parts and handling equipment. Plaintiff agreed to provide the services requested by defendant no. 1 subject to defendant no.1 paying the agreed charges. For the said purpose, defendant no.1 through defendant no.3 executed an Aircraft Charter Agreement dated 01.09.2009 with the plaintiff being Agreement No.FLYWELL/011/09/2009 (hereinafter referred as "the Charter Agreement") which inter-alia provided detailed terms and conditions for provision of the services.
(e) As per requirement of defendant no.3 and at the request of defendant no.2, plaintiff also submitted an undertaking to defendant no.3 confirming the schedule of flight operation for provision of the services. Plaintiff rendered its services as per the agreement and cargo was delivered to the full satisfaction of the defendants and the consignee, safely and as per schedule at Mauritius Airport. Thereafter, plaintiff submitted its invoice dated 19.09.2009 for payment of Rs.6,95,410/- to defendant no.1 towards the charges for the services rendered by the plaintiff and the expenses incurred by the plaintiff and against the payment made to various authorities towards the provision of services. However, defendant no.1 expressed unwillingness to pay for crew visa fee, taxi charges and MOT charges and asked for the waiver of the same. The plaintiff in order to maintain a healthy business relations with defendant no.1 agreed to the request and waived off payment for the said such charges.
(f) Thereafter, defendant no.1 further requested the plaintiff that the bills raised by HAL - Air India JWG toward handling charges, HAL (as airport operator) towards landing and parking charges and Airport Authority of India towards RNFC & TNLC charges should be raised in the name of defendant no.1 instead of the plaintiff in Flywell Aviation Pvt. Ltd. Vs. SARR Freights Corporation & Ors. Page.3 CS No.139/11 & Counter Claim no.96/14 order to claim benefit of service tax paid on such services. However, since it was the plaintiff who dealt with these authorities as Chartered Flight Operator and all permissions from the Director General of Civil Aviation ("DGCA") were obtained in the name of the plaintiff, bills were issued by the respective authorities in the name of plaintiff as per normal business practice. Further, at the request of defendant no.1, the plaintiff also paid the invoices issued by the respective authorities along with applicable service tax.
(g) Inspite of reducing the bill amounts as per the request of defendant no.1, defendant no.1 has failed to make any payment towards the same and has been avoiding/neglecting to pay the charges to plaintiff.
(h) Plaintiff has written a letter dated 05.10.2009 to defendant no.1 requesting to make payment. However, defendants have failed/neglected/avoided to pay any amount to the plaintiff or to respond to said letter. Plaintiff issued a notice dated 09.11.2009 to defendants to call uon the defendants jointly and severally pay a sum of Rs.6,30,461/- along with interest @18% p.a. After receipt of the notice by the defendants, the defendants have failed/neglected/ avoided to make any payment to the plaintiff. The plaintiff was shocked to receive the replies from the counsels for the defendants denying the payment of amount to the plaintiff on false, frivolous and untenable grounds.
(i) Defendant no.3 through its counsel sent a reply dated 20.11.2009 to the notice of the plaintiff wherein defendant no.3 denied to make payment to the plaintiff, whereas defendants no.1 & 2 had sent reply dated 24.11.2009 to the notice of the plaintiff. The said reply was duly replied by the counsel for the plaintiff vide letter dated 24.12.2009 wherein the plaintiff denied the allegations made by defendant no.1 without any basis. However, even after receipt of Flywell Aviation Pvt. Ltd. Vs. SARR Freights Corporation & Ors. Page.4 CS No.139/11 & Counter Claim no.96/14 the said letter by the counsel for defendant no.1, defendant no.1 neither replied to the same nor paid the legal dues to the plaintiff.
(j) Hence the present suit.
03. Defendants no.1 & 2 filed joint written statement wherein it is objected that suit is bad for mis-joinder and non-joinder of necessary parties as Hindustan Aeronautics Ltd. (HAL) is neither a necessary party nor a proper party to the present suit and M/s. Aspes (Aerospet Services LLP) or the aircraft owner Unit State Airlines have not been arrayed as a defendant although they are a necessary party to the present suit. It is stated that defendant no.2 had contacted the plaintiff to provide an aircraft in August, 2009. The plaintiff had assured them that they had an aircraft available on 14.08.2009 and therefore, defendant no.1 agreed to engage the services of plaintiff. However, at the last moment it was informed to defendant no.1 that no aircraft would be available on 14.08.2009 and thereafter, a new date for airlifting the cargo on 25.08.2009 was fixed. However, again on 25.08.2009 the plaintiff stated that the aircraft was not available. Thus, defendant no.1 organised an aircraft through M/s. Aspes (Aerospet Service LLP) who is also an agent. The said aircraft belonged to one Unit State Airlines. The said M/s. Aspes raised an invoice dated 26.08.2009 for US$ 3,55,000/- and at the plaintiff's asking, defendant no.1 had even entered into a charter contract with the said M/s. Aspes. The invoice amount of US$ 3,55,000/- was remitted by defendant no.1 directly to M/s. Aspes. The aircraft arranged by M/s. Aspes delivered the cargo on 06.09.2009. It is not denied that an aircraft charter agreement was entered into between defendant no.1 and plaintiff dated 01.09.2009. However, the plaintiff failed to provide an aircraft and engaged the service of M/s. Aspes to whom the defendants have already paid the full amount in terms of the charter agreement. Therefore, the defendants are not liable to pay any amount for hiring of aircraft to the plaintiff. With respect to payment for landing, handling, Flywell Aviation Pvt. Ltd. Vs. SARR Freights Corporation & Ors. Page.5 CS No.139/11 & Counter Claim no.96/14 parking, X-ray, loading charges and terminal charges at the origin airport (Bangaluru), defendant no.1 has never denied payment of charges which would be legitimately due to the plaintiff. However, in spite of defendant no.1's request, the plaintiff has not provided them with any proof of the charges, having been incurred. Defendant no.1 had also requested the plaintiff to raise a debit note against them annexing the original invoices raised by the relevant authorities to enable them to make the payments. However, the plaintiff refused to hand over the original invoices, therefore, defendant no.1 did not make any payment on this account. It has also come into the knowledge of the defendants that such charges have already been recovered by the plaintiff from the aircraft owner M/s. Unit States Airlines and therefore, trying to enrich themselves by claiming the said amount again from the defendants. It is therefore, clear that the said Unit State Airlines have not been arrayed as a defendant deliberately to conceal the facts by the plaintiff. Rest of the contents of the plaint are denied. However, defendant no.1 as on date willing to make the payment of legitimate dues on submission of original invoices. It is admitted that defendant had replied the notice of the plaintiff.
04. Written statement filed by defendant no.3 wherein it is objected that there is no privity of contract between plaintiff and defendant no.3. The contract entered into between plaintiff and defendant no.1 not binding on defendant no.3. The notice issued by the plaintiff to defendant no.3 is an admitted fact and reply issued by defendant no.3 to the plaintiff is also another admitted fact. It is stated that defendant no.3 placed a purchase order no.5658328 dated 03.08.2009 on SARR Freights Corporation for transportation of one ALH Helicopter and Accessories from Bangalore to Mauritius by chartering one AN-124 Aircraft on Turnkey basis for a total value of USD.4,26,500/-. The said purchase order contained the terms and conditions, price break up and also clearly mapped out the scope of work ought to be carried out Flywell Aviation Pvt. Ltd. Vs. SARR Freights Corporation & Ors. Page.6 CS No.139/11 & Counter Claim no.96/14 by defendant no.1. There was no mention of the plaintiff nor was the plaintiff called upon to provide any service to defendant no.3 in the said Purchase Order. Defendant no.1 through its Senior Marketing Manager conveyed acceptance of the purchase order via email dated 05.08.2009. On 14.08.2009 defendant no.3 received a communication from defendant no.1 citing unavailability of aircraft as there are only 11 AN-124 aircrafts in the world market. It was further informed that the earliest date of availability of aircraft would be 25.08.2009 and requested defendant no.3 for a confirmation of the same. The flight was scheduled to land on 06.09.2009 and was scheduled to depart on 07.09.2009. This was performed by defendant no.1 on 07.09.2009 by making said delivery to the port of destination as required by the Contract and defendant no.3 has made payment to defendant no.1 vide Transaction No.SBINH09267328135 dated 24.09.2009 and all contractual obligations between defendant no.1 and defendant no.3 were completed and fulfilled. If defendant no.1 has not performed its obligations towards plaintiff, it is for the plaintiff to look to defendant no.1 for payment but it cannot proceed against defendant no.3.
05. Plaintiff filed replication to the written statement of defendants no.1 and 2. It is stated that defendants no.1 and 2 specifically admitted in written statement their liability to the plaintiff. It is alleged that during early August, defendant no.1 approached the plaintiff and represented that defendant no.3 has appointed them as its agent for air transport and delivery of cargo containing a HAL Helicopter, spare parts and handling equipments belonging to HAL from Bangaluru to Mauritius to be delivered to Government of Mauritius, Department of Police (Consignee). Defendant no.1 requested the plaintiff to help them for carrying out air transportation of HAL Helicopter along with spare parts and handling equipment to which the plaintiff agreed subject to defendant no.1 paying the quoted charges. The negotiations with regard to charges Flywell Aviation Pvt. Ltd. Vs. SARR Freights Corporation & Ors. Page.7 CS No.139/11 & Counter Claim no.96/14 to be paid and modalities for payment continued till 22.08.2009. Further, at the request of defendant no.1 and with a view to expedite the process, the plaintiff managed to convince the Aircraft Operator M/s. Aspes (Aerospects Service LLP) to issue its contract & invoice directly in the name of defendant no.1 to enable defendant no.1 to pay full charter price directly to the Aircraft Operator in advance. Thereafter, defendant no.1 executed a separate Aircraft Charter Agreement with the plaintiff on 01.09.2009 being agreement no.FLYWELL/011/09/2009, containing the detailed terms and conditions including payment terms. Rest of the contents of the written statement are denied and averments made in the plaint are re-iterated and affirmed.
06. Plaintiff filed replication to the written statement of defendant no.3 wherein it is objected that written statement of defendant no.3 can not be taken on the record as the same has not been filed under the provisions of Order 8 Rule 1 of CPC. The written statement has not been filed within 30 days of service of summons. No reason for delay has been mentioned. In such circumstances, the written statement should not be taken on the record. It is further objected that written statement has not been signed by a duly authorised person and as such the same cannot be taken on record. It is further objected that written statement filed by defendant no.3 has not been verified in accordance with the law. The present verification of the written statement is no verification in the eyes of law as the same is not proper and legal and as per requirement of law and rules. It is further stated that defendant no.1 was deceiving the plaintiff with its understanding with defendant no.3. It is further stated that defendant no.3 has not placed on record, any communications between defendant no.1 and defendant no.3. Rest of the contents of the written statement are denied by the plaintiff in the replication and averments made in the plaint are re-iterated and affirmed.
Flywell Aviation Pvt. Ltd. Vs. SARR Freights Corporation & Ors. Page.8 CS No.139/11 & Counter Claim no.96/14
07. Defendant no.1 filed counter claim wherein it is stated that at the last moment it was informed by the plaintiff that no aircraft would be available on 14.08.2009 and the delivery got delayed. Thereafter a new date for airlifting the cargo on 25.08.2009 was fixed. Again on 25.08.2009 plaintiff stated that the aircraft was not available and therefore the consignment could not be transported to its destination. In such circumstances, it organized an aircraft from M/s. Aspes (Aerospet Service LLP) who in turn engaged an aircraft belonging to Unit States Airlines. The said M/s. Aspes raised an invoice dated 26.08.2009 for US $ 3,55,000/- and at the defendant entered into a charter agreement with M/s. Aspes. The invoices amount of US $ 3,55,000/- was remitted by the defendant directly to M/s. Aspes. The aircraft of M/s. Aspes delivered the cargo on 06.09.2009. Owing to the delays in delivery, the counter claimant was penalised by defendant no.3 for deducting liquidated damages to the tune of Rs.4,17,771/- for the delay caused in delivery of the consignment. The said delay is solely attributable to the plaintiffs inaction and false assurances with regard to availability of a plane, firstly on 14th August and then on 25th August. Apart from the same, the counter claimant's reputation was also suffered in the aviation industry. Thus, by way of counter claim defendant no.1/counter claimant has prayed for decree for a sum of Rs.4,17,771/- towards recovery of liquidated damages along with interest thereon.
08. Reply to the counter claim is filed wherein it is denied that there was any delay in rendering service to the plaintiff. It is further denied that defendant no.3 levied and liquidated damages. Rest of the contents of the counter claim are also denied.
09. On the pleadings of he parties, my Ld. predecessor by order dated 19.10.2010 framed following issues :-
1. Whether the plaintiff is entitled for the decree of recovery of Flywell Aviation Pvt. Ltd. Vs. SARR Freights Corporation & Ors. Page.9 CS No.139/11 & Counter Claim no.96/14 Rs.6,86,425/- from the defendants, as prayed ? (OPP).
2. Whether plaintiff is entitled to the pendente lite and future interest as prayed? If yes, then at what rate and for what period ? (OPP).
3. Whether the suit is bad for non joinder and mis joinder of necessary parties, if so, its effect ? (OPD).
4. Whether the defendants no.1 and 2 are entitled for the decree of Rs.4,17,771/- against the plaintiff, as prayed in the counter claim? (OPD).
5. Whether the defendant no.1 and 2 are entitled to the pendente lite and future interest from the plaintiff, as prayed ? If yes, then at what rate and for what period ? (OPD)
6. Whether the counter claim of the defendant no.1 and 2 is barred U/s. 69 of the Indian Partnership Act ? (OPP).
7. Whether the counter claim of the defendant no.1 and 2 is not maintainable ? (OPP).
8. Whether the defendant no.1 is not the agent of defendant no.3 ? (OPD).
9. Whether there is no privity of contract between the plaintiff and the defendant no.3 ? (OPD).
10. Whether the suit is barred by Section 8 of the Arbitration and Conciliation Act 1996? (OPD).
11. Whether the suit of the plaintiff is without any cause of action ? (OPD).
12. Relief.
10. To prove its case, plaintiff examined Sh. Dhanesh Malhotra as PW-1 who tendered his evidence by way of affidavit Ex.PW1/A. He further relied upon documents exhibited as Ex.PW1/1 to Ex.PW1/17. Defendant objected the mode of proof of Ex.PW1/1, Ex.PW1/3, Ex.PW1/4, Ex.PW1/5, Ex.PW1/6, Ex.PW1/7 and Ex.PW1/11. This Flywell Aviation Pvt. Ltd. Vs. SARR Freights Corporation & Ors. Page.10 CS No.139/11 & Counter Claim no.96/14 witness was cross examined by ld.counsel for the defendant and thereafter, by separate statement, ld. counsel for the plaintiff closed P.E. In defence, defendant examined Sh. Sunil Kapoor as DW-1 who tendered his evidence by way of affidavit Ex.DW1/A. He relied upon Ex.DW1/1 to Ex.DW1/4. Defendant further examined Sh. Inderpal, Record Keeper, Office of the Commissioner of Industries, Govt. of NCT of Delhi as DW-2. Defendant further examined Sh. Ravi Gupta, Dy. Manager (Integrated Material Management) as DW-3. All the witnesses were cross examined by ld. counsel for the plaintiff and thereafter by separate statement, ld. counsel for the defendant closed D.E.
11. I have gone through the entire records of the case including pleadings of the parties, evidence led and documents proved by the parties during evidence. My issue-wise findings are as under. Issue no.1.
Whether the plaintiff is entitled for the decree of recovery of Rs.6,86,425/- from the defendants, as prayed ? (OPP).
12. Onus to prove this issue was upon the plaintiff. Plaintiff tendered to prove Charter agreement as Ex.PW1/2, Office copy of the undertaking dated 01.09.2009 as Ex.PW1/3, detail of the expenses as Ex.PW1/4, Invoice dated 07.09.2009 as Ex.PW-1/5, original receipt dated 07.09.2009 towards parking and landing charges as Ex.PW1/6, Invoice dated 26.09.2009 is Ex.PW1/8, letter dated 05.10.2009 is Ex.PW1/9, original postal receipt is Ex.PW1/10, e-mail dated 10.10.2009 is Ex.PW1/11, notice dated 09.11.2009 is Ex.PW1/12, reply dated 20.11.2009 is Ex.PW1/13, reply dated 24.11.2009 is Ex.PW1/14, reply dated 24.12.2009 is Ex.PW1/15, original courier receipt and proof of delivery are Ex.PW1/16 and Ex.PW1/17 respectively.
Flywell Aviation Pvt. Ltd. Vs. SARR Freights Corporation & Ors. Page.11 CS No.139/11 & Counter Claim no.96/14
13. Contents of Ex.PW1/A are similar to the averments made in the plaint. During cross examination, it is stated by PW-1 that defendant no.3 was not a party to the contract as per Ex.PW1/2 but Ex.PW1/3 shows involvement of defendant no.3. He has further stated that defendant no.1 was the agent of defendant no.3 for the purpose of charter flight involved in the present case. He has further admitted that defendant no.1 entered into a charter agreement dated 25.08.2009 with M/s. Aerospets Service LLP. He has further stated that it was done to maintain good business relationship with defendant no.1 and to meet the costing requirements of defendant no.1. He has denied the suggestion that defendant no.1 was asked to enter into agreement dated 25.08.2009 with M/s. Aerospets Service LLP because the plaintiff did not have aircraft available to meet its commitments to defendant no.1. He has further admitted that defendant no.1 directly paid M/s. Aerospets Service LLP services a sum of Rs. $ 3,55,000/- for providing the aircraft charter. He has further admitted that owner of the aircraft was M/s. Unit State Airlines. He has further admitted that defendant no.1 offered to pay a sum of Rs.6,30,461/- to the plaintiff if the plaintiff would raise debit notes in the name of defendant no.1 and provide the original invoices raised by the airport authority to defendant no.1. PW-1 further admitted that original invoices raised by the airport authorities were not provided by the plaintiff to defendant no.1. He denied the suggestion that defendant no.1 had requested for aircraft to be available on 14.08.2009 but the same was not available. He has further denied the suggestion that again on 25.08.2009 the aircraft was not available. He has further denied the suggestion that flight was again scheduled for 29.08.2009 but the same could not be undertaken. He has further denied the suggestion that airport charges being claimed by the plaintiff from defendant no.1 have already been recovered by the plaintiff from M/s. Unit States Airlines. He has further denied the suggestion that liquidated damages imposed by Flywell Aviation Pvt. Ltd. Vs. SARR Freights Corporation & Ors. Page.12 CS No.139/11 & Counter Claim no.96/14 defendant no.3 on defendant no.1 due to delay in transport.
14. Affidavit of DW-1 is similar to the averments made in the written statement of Defendant no.1. DW-1 deposed that original invoices were required in order for defendant no.1 to claim the same as legitimate business expenses in its Income Tax Returns. During cross examination, DW-1 admitted that plaintiff is a charter operator. He has further stated that plaintiff is an agent of airlines. He has further stated that he approached plaintiff sometime in July/ August, 2009 for sending the consignment to Mauritius. He has further stated that plaintiff did not give anything in writing to the effect that plaintiff could not provide aircraft on 14.08.2009. The same was verbal. It was challenged to DW-1 to provide anything in writing by the plaintiff to send the consignment on 25.08.2009. he has admitted that charter agreement was signed on 01.09.2009. He has further admitted that defendant received e-mails Ex.DW1/P2. This e-mail is dated 31.08.2009. DW-1 further stated that he did not remember the date but most probably it was before 01.09.2009 when the payment was made to aircraft operator ASPES. He has admitted that the payment made to aircraft operator does not cover landing charges, parking charges, crew charges etc. as it was to be paid on production and submissions of original receipts by the plaintiff. He denied the suggestion that plaintiff gave the receipts. He has admitted that defendants no.1 asked the plaintiff to get the receipt from defendant no.3 in the name of defendant no.1. He has further admitted that defendant no.1 has not paid handling charges, landing and parking charges RNFC and TNLC to anyone as defendant no.1 is still awaiting for the original receipts which was supposed to be submitted to him. He has further stated that if the original bills are given to him, defendant is ready to make the payment but after adjusting his claims. He denied the suggestion that the charges imposed by defendant no.3 on defendant are for some other transaction and not for the consignments sent to the Flywell Aviation Pvt. Ltd. Vs. SARR Freights Corporation & Ors. Page.13 CS No.139/11 & Counter Claim no.96/14 Mauritius. He denied the suggestion that deductions of defendant are not payable against dues of the plaintiff.
15. DW-3 brought the summoned record which is Ex.DW3/1 sent by defendant no.3 to defendant no.1. This document is a Manual Payment Advice raised by defendant no.3 upon defendant no.1. He has stated that he was personally aware about the transactions. There was transaction by defendant no.3 with defendant no.1 for delivery of transportation of one ALH Helicopter and accessories from Bangalore to Mauritius by chartering one AN-124 Aircraft on Turnkey basis. The delivery was not effected by defendant no.1 as per contract. He has admitted that as per e-mail dated 14.08.2009, defendant no.1 had informed that expected date of arrival of aircraft for delivery was between 25.08.2009 to 28.08.2009. The consignment was delivered satisfactorily on 07.09.2009. He has further stated that Rs.4,17,771/- was deducted as liquidated damages due to delay in service. He denied the suggestion that this amount was not on account of liquidated damages. Thus, it is proved that defendant no.3 deducted Rs.4,17,771/- on account of liquidated damages, as also stated by DW-1 in his deposition in Ex.DW1/A.
16. It is also admitted fact that payment was made by the plaintiff to M/s. Aspes. It is also admitted by defendant no.1 that defendant no.1 is ready to make the payment but on submission of original bills. The plaintiff proved invoices Ex.PW1/4 regarding expenses which incurred about Rs.6,95,410/- but the plaintiff has not proved any bill for which the payment was made by the plaintiff to various authorities. It is mentioned in Ex.PW1/4 that handling charges paid to defendant no.3, landing and parking charges paid to defendant no.3, RNFC & TNLC paid to Airports Authority of India. But none of these bills have been proved on the record. It is also not stated by the plaintiff that why the plaintiff Flywell Aviation Pvt. Ltd. Vs. SARR Freights Corporation & Ors. Page.14 CS No.139/11 & Counter Claim no.96/14 does not want to supply those bills to defendant no.1 whereas defendant no.1 is ready to make the payment. Therefore, this issue is answered in view of the admission made by defendant no.1 regarding his readiness and willingness to make the payment to the plaintiff with the observation that plaintiff is entitled for recovery of the suit amount of Rs.6,86,425/-, but only after when the plaintiff would supply original bills regarding all the charges as mentioned in Ex.PW1/4 to defendant no.1 and defendant no.1 will be entitled for deduction of Rs.4,17,771/- from the said amount, as defendant no.1 had successfully proved that it had paid the liquidated damages to defendant no.3 which has been proved by DW-3. Therefore, this issue is answered partly in favour of the plaintiff with these directions. Issue no.2.
Whether the plaintiff is entitled for the decree of recovery of Rs.6,86,425/- from the defendants, as prayed ? (OPP).
17. Onus to prove this issues was upon the plaintiff. The plaintiff claimed interest @ 18% per annum. However, the plaintiff is not entitled for any interest pendente-lite in view of the fact that the plaintiff has not assigned any reason for not supplying of all such bills which have been mentioned in Ex.PW1/4 as observed by this court. Therefore, till date the plaintiff did not supply such bills for which the payments were made by the plaintiff to various authorities as mentioned in Ex.PW1/4, the plaintiff is not entitled for any interest. However, in case the plaintiff supplies all such bills to defendant no.1 then defendant no.1 is directed to make payment as per directions passed by this court during disposal of issue no.1, after making deductions, to the plaintiff within two days failing which the plaintiff shall be entitled for interest @ 18% per annum from the said date.
Issue no.4.
Whether the defendants no.1 and 2 are entitled for the Flywell Aviation Pvt. Ltd. Vs. SARR Freights Corporation & Ors. Page.15 CS No.139/11 & Counter Claim no.96/14 decree of Rs.4,17,771/- against the plaintiff, as prayed in the counter claim? (OPD).
18. This court already made observations and directions regarding the payment of Rs.4,17,771/- during disposal of issue no.1 and therefore, this issue is answered in terms of the directions passed by this court during disposal of issue no.1.
Issue no.5.
Whether the defendant no.1 and 2 are entitled to the pendente lite and future interest from the plaintiff, as prayed? If yes, then at what rate and for what period ? (OPD).
19. It is admitted case of defendants no.1 and 2 that they are also liable to make payment of the plaintiff. Therefore, in such circumstances, they are not entitled for any interest. Therefore, this issue is answered with these observations in favour of the plaintiff.
Issue no.3.
Whether the suit is bad for non joinder and mis joinder of necessary parties, if so, its effect ? (OPD)
20. Onus to prove this issue was upon the defendant. However, defendant has not led any evidence to prove this issue and accordingly, this issue is answered against the defendant.
Issue no.6.
Whether the counter claim of the defendant no.1 and 2 is barred U/s. 69 of the Indian Partnership Act ? (OPP).
21. DW-1 in Ex.DW1/A stated that defendant no.1 is partnership Flywell Aviation Pvt. Ltd. Vs. SARR Freights Corporation & Ors. Page.16 CS No.139/11 & Counter Claim no.96/14 firm registered under Indian Partnership Act 1932. DW-1 also proved 'Form A' as Ex.DW1/1, certified copy of 'Form B' as Ex.DW1/2 and certified copy of 'Form C' as Ex.DW2/1. During cross examination of DW-1 there is no challenge to these documents. DW-2 appeared from the office of Commissioner of Industries, Govt. of NCT of Delhi to prove the fact of registration of defendant no.1. He has also proved Form A as Ex.DW1/1, certified copy of Form B as Ex.DW1/2 and certified copy of Form C as Ex.DW2/1. During cross examination of DW-2, there is no challenge for deposition of DW-2 and therefore, the plaintiff could not discharge the onus to prove this issue. Therefore, this issue is answered against the plaintiff and in favour of the defendant. Issue no.7.
Whether the counter claim of the defendant no.1 and 2 is not maintainable ? (OPP).
22. Onus to prove this issues was upon the plaintiff. However, plaintiff is not able to discharge the onus to prove this issue Rather, during disposal of issue no.1 this court already made observations that defendant no.1 is entitled for deduction of Rs.4,17,771/-. Therefore, this issue is answered against the plaintiff.
Issue no.8.
Whether the defendant no.1 is not the agent of defendant no.3 ? (OPD).
23. This court already made observations during disposal of issue no.1 and accordingly, this issue is also answered in terms of the observations made during disposal of issue no.1.
Issue no.9.
Whether there is no privity of contract between the plaintiff and the defendant no.3 ? (OPD).
Flywell Aviation Pvt. Ltd. Vs. SARR Freights Corporation & Ors. Page.17 CS No.139/11 & Counter Claim no.96/14
24. Onus to prove this issue was upon defendant no.3. DW-3 appeared on behalf of defendant no.3 and deposed during cross examination that there was transaction of defendant no.3 with defendant no.1 for delivery of transportation of one HAL helicopter and accessories. It is not suggested by the plaintiff during cross examination regarding any contract between the plaintiff and defendant no.3 and no challenge by the plaintiff regarding transaction of defendant no.3 with defendant no.1. Therefore, this issue is answered in favour of the defendant that there was no privity of contract between plaintiff and defendant no.3. However, DW3 has stated during his examination that there was liquidated damages due to delay in service/delivery and the consignment was delivered by defendant no.3. Therefore, defendant no.3 is a necessary party to the case despite of the fact that there was no privitty of contract between the plaintiff and defendant no.3.
Issue no.10.
Whether the suit is barred by Section 8 of the Arbitration and Conciliation Act 1996 ? (OPD).
25. Since written statement has already been filed by defendants, therefore, this issue has become infructuous. Issue no.11.
Whether the suit of the plaintiff is without any cause of action ? (OPD).
26. This issue is during disposal of issue no.1 this court has already made observations and therefore in view of those observations this issue is answered against the defendants and in favour of the plaintiff.
Issue no.12.
Relief.
Flywell Aviation Pvt. Ltd. Vs. SARR Freights Corporation & Ors. Page.18 CS No.139/11 & Counter Claim no.96/14
27. In view of the observations made herein above, the suit of the plaintiff is decreed with the direction that plaintiff is entitled for recovery of the suit amount of Rs.6,86,425/-, but only after when the plaintiff would supply original bills regarding all the charges as mentioned in Ex.PW1/4 to defendant no.1 and defendant no.1 will be entitled for deduction of Rs.4,17,771/- from the said amount. Plaintiff is not entitled for any interest. However, in case the plaintiff supplies all such bills to defendant no.1 then defendant no.1 is directed to make payment as per directions passed by this court during disposal of issue no.1, after making deductions, to the plaintiff within two days failing which the plaintiff shall be entitled for interest @ 18% per annum from the said date. Plaintiff shall also be entitled for proportionate costs of the suit.
28. Separate Decree Sheets be prepared accordingly for the suit as well as counter claim. Signed copy of this judgment be placed in both files. Both files be consigned to record room. Announced in the Open Court today on 23.09.2014 (Jitendra Kumar Mishra) ADJ-09, Central, Tis Hazari Courts, Delhi 23.09.2014 Flywell Aviation Pvt. Ltd. Vs. SARR Freights Corporation & Ors. Page.19 CS No.139/11 & Counter Claim no.96/14 CS No.139/11 & Counter Claim no.96/14.
23.09.2014 Present: None.
Vide my separate judgment announced in the open court today, the suit of the plaintiff is decreed with the direction that plaintiff is entitled for recovery of the suit amount of Rs.6,86,425/-, but only after when the plaintiff would supply original bills regarding all the charges as mentioned in Ex.PW1/4 to defendant no.1 and defendant no.1 will be entitled for deduction of Rs.4,17,771/- from the said amount. Plaintiff is not entitled for any interest. However, in case the plaintiff supplies all such bills to defendant no.1 then defendant no.1 is directed to make payment as per directions passed by this court during disposal of issue no.1, after making deductions, to the plaintiff within two days failing which the plaintiff shall be entitled for interest @ 18% per annum from the said date. Plaintiff shall also be entitled for proportionate costs of the suit.
Separate Decree Sheets be prepared accordingly for the suit as well as counter claim. Signed copy of this judgment be placed in both files. Both files be consigned to record room.
(Jitendra Kumar Mishra) ADJ-09, Central, Tis Hazari Courts, Delhi 23.09.2014 Flywell Aviation Pvt. Ltd. Vs. SARR Freights Corporation & Ors. Page.20