Delhi District Court
Messrs. Blue Bird Cargo Private ... vs Messrs Blue Sea Freight Pvt. Ltd on 26 July, 2022
IN THE COURT OF SH. AJAY GARG,
ADDITIONAL DISTRICT JUDGE - 01, EAST DISTRICT,
KARKARDOOMA COURTS, DELHI
CS No. 333/20
CNR No.DLET010003742011
In the matter of:
Messrs. Blue Bird Cargo Private Limited;
a company incorporated under the provisions
of the Companies Act, 1956 having its registered
office at 1415, Ansal Tower 38, Nehru Place,
New Delhi110019.
........Plaintiff
Versus
Messrs Blue Sea Freight Pvt. Ltd.
(A Company incorporated under the provisions
of the Companies Act, 1956) c/o
Harinder Singh, having its office at 503
Solitairi, Paramount Symphony, Crossing
Republic, Ghaziabad, Uttar Pradesh.
.........Defendant
Date of Institution : 04.08.2011
Judgment reserved on : 19.07.2022
Judgment announced on: 26.07.2021
JUDGMENT :
1. Present suit for recovery of Rs.3,10,647/ with interest CS No.333/20 M/s. Blue Bird Cargo Pvt. Ltd. Vs. M/s. Blue Sea Freight Pvt. Ltd. Page No. 1 of 12 has been filed by the plaintiff against the defendant. Brief facts of the case are as under:
2. The plaintiff is a company incorporated under the provisions of Companies Act, 1956 and Mr. B.D. Sharma is its Authorized Representative who is duly authorized to sign and verify the file and prosecute the present plaint on behalf of plaintiff. The plaintiff is engaged in the business of rendering services as freight forwarder. The defendant is also a company incorporated under the provisions of Companies Act and is engaged in the business of import and export of goods. The defendant approached the plaintiff with the request to avail its services. As per the request made by the defendant, the plaintiff duly provided its services to the defendant. For the said services, the plaintiff used to raise invoices, however, out of the said invoices, some invoices remained outstanding. To the utter shock and surprise, the defendant willfully failed, refused and neglected to pay the dues towards the invoices. The plaintiff reminded the defendant on various occasions but despite such request, the defendant failed to repay the outstanding dues. Thereafter, the plaintiff requested the Director of defendant company to clear the outstanding, however, the Director of defendant company also failed to repay the dues. Thereafter, the plaintiff sent a legal notice dated 16.03.2011 to the defendant demanding a sum of Rs.3,10,647/ along with interest, however, the defendant did not respond the same. Hence, this suit.
CS No.333/20 M/s. Blue Bird Cargo Pvt. Ltd. Vs. M/s. Blue Sea Freight Pvt. Ltd. Page No. 2 of 12
3. On notice, defendant appeared and filed written statement in which preliminary objections were taken on the ground that the suit has not been signed, verified and filed by the authorized person, no outstanding remains to be paid, the defendant company no more exist being dissolved by an order of Registrar of Companies, NCT of Delhi dated 25.04.2013 and even the name has been strike off, the answering person was the director of the defendant company but he was never responsible and liable in his personal capacity. Besides this, all other averments of the plaint were denied specifically and prayer to dismiss the suit with cost was made.
4. Replication to the written statement of defendant was filed by the plaintiff in which the averments of the written statement were denied specifically and the contents of the plaint were reiterated and reaffirmed.
5. From the pleadings of the parties, following issues were framed for adjudication on 03.02.2015:
1. Whether the plaintiff had for the services rendered raised invoices on the defendant as per the details given below:
(a) Bill No.DEL/4765,REF/3502 dated 24.03.2010 amounting Rs.1,08,332/
(b) Bill No.DEL/4766,REF/3485 dated 24.03.2010 amounting CS No.333/20 M/s. Blue Bird Cargo Pvt. Ltd. Vs. M/s. Blue Sea Freight Pvt. Ltd. Page No. 3 of 12 Rs.1,25,925/
(c) Bill No.DEL/4767,REF/3493 dated 24.03.2010 amounting Rs.1,08,332/
(d) Bill No.DEL/4962,REF/3625 dated 18.05.2010 amounting Rs.56,407/
(e) Bill No.DEL/5029,REF/3648 dated 31.05.2010 amounting Rs.1,655/
(f) Bill No.DEL/3706,REF/3706 dated 15.06.2010 amounting Rs.35,870/ and the defendant did not make the payment thereto? (OPP)
2. Whether the plaintiff is entitled to receive Rs.3,10,647/ from the defendant? (OPP)
3. Whether the plaintiff is entitled to interest on the above mentioned amount, if so, at what rate and for which period? (OPP)
4. Relief.
6. In order to prove the issues, the plaintiff examined its Authorized Representative Sh. B.D. Sharma as PW1. He tendered his evidence by way of affidavit Ex.PW1/A, wherein he reiterated all the averments made in the plaint. The same are not repeated here for the sake of brevity. He has also placed reliance on the following documents:
i. Ex.PW1/1 is authority letter. CS No.333/20 M/s. Blue Bird Cargo Pvt. Ltd. Vs. M/s. Blue Sea Freight Pvt. Ltd. Page No. 4 of 12 ii. Ex.PW1/2 (colly.) are Six Debit Notes/Invoices. iii. Ex.PW1/3 is statement of account. iv. Ex.PW1/4 (colly.) is legal notice along with postal receipts.
This witness was exhaustively crossexamined by ld counsel for the defendant.
7. Plaintiff's evidence was closed on 16.02.2016 and the matter was listed for defendant's evidence.
8. In order to prove the issues, the defendant examined its erstwhile director Mr. Harinder Singh as DW1, who tendered his evidence by way of affidavit Ex.DW1/A and relied upon internet copy of the certificate of dissolution of defendant's company as Mark A. This witness was exhaustively crossexamined by ld counsel for the plaintiff.
9. Defendant's evidence was closed on 08.03.2017 and the matter was listed for final arguments.
10. Final arguments heard. Record perused. Considered. On the basis of submissions advanced at bar, pleadings and evidence, my issue wise findings are as under: ISSUE NO.1:
"Whether the plaintiff had for the services rendered raised CS No.333/20 M/s. Blue Bird Cargo Pvt. Ltd. Vs. M/s. Blue Sea Freight Pvt. Ltd. Page No. 5 of 12 invoices on the defendant as per the details given below:
(a) Bill No.DEL/4765,REF/3502 dated 24.03.2010 amounting Rs.1,08,332/
(b) Bill No.DEL/4766,REF/3485 dated 24.03.2010 amounting Rs.1,25,925/
(c) Bill No.DEL/4767,REF/3493 dated 24.03.2010 amounting Rs.1,08,332/
(d) Bill No.DEL/4962,REF/3625 dated 18.05.2010 amounting Rs.56,407/
(e) Bill No.DEL/5029,REF/3648 dated 31.05.2010 amounting Rs.1,655/
(f) Bill No.DEL/3706,REF/3706 dated 15.06.2010 amounting Rs.35,870/ and the defendant did not make the payment thereto? (OPP)"
11. Onus to prove this issue was upon the plaintiff. In support of this issue, ld. counsel for plaintiff argued that the plaintiff raised the abovesaid invoices on the defendant for the services rendered but the defendant did not make the payment of said invoices. He further submitted that the erstwhile director of the defendant Sh. Harinder Singh filed written statement in which the defendant admitted business relation between the parties. About the bills of lading, ld. counsel for plaintiff submitted that bills of lading are a document issued by a carrier to a shipper. In the present case, neither the plaintiff nor the defendant is a carrier or shipper. Both the plaintiff and defendant are freight forwarding agents. The carrier will be the vessel which carries the consignment and the shipper would be the exporter that is the customer mentioned in the invoices in the present case.
CS No.333/20 M/s. Blue Bird Cargo Pvt. Ltd. Vs. M/s. Blue Sea Freight Pvt. Ltd. Page No. 6 of 12 Hence, the bill of lading would not be available either with the plaintiff and the defendant. He further submitted that the defendant failed to produce any witness who dealt with the plaintiff during the course of their business relationship. In support of their contentions, he relied upon following judgments:
(i) Vijay Power Generators Ltd. Vs. Sumit Seth; Tarun Engineering Syndicate, 2014 LawSuit(Del) 1796.
(ii) Exquisite Decors P. Ltd. Vs. Bakelite Hylam Ltd. RFA 331/2004 decided by Hon'ble High Court of Delhi on 03.12.2015.
(iii) Sh. Vishnu Dutt Sharma Vs. Smt. Daya Sapra, Civil Appeal No.3238 of 2009, SLP (C) No.10997 of 2008.
Per contra, ld. counsel for defendant argued that the abovesaid invoices were never raised as no service as described in these invoices was provided to or availed by the defendant. These invoices are unacknowledged invoices and were never served upon the defendant. Further, the original invoices/bills were never filed. Certain copies have been filed and nothing has even been pleaded that those are copies made or compared with the original. It was also never pleaded that the original is in the possession or power of defendant. The plaintiff did not take any step to prove the same as per Indian Evidence Act. He further submitted that the question arises as to who was the maker of those invoices and who made cuttings and why some of the invoices are not even signed and why the plaintiff had CS No.333/20 M/s. Blue Bird Cargo Pvt. Ltd. Vs. M/s. Blue Sea Freight Pvt. Ltd. Page No. 7 of 12 provided services violating the own condition mentioned on the bottom of the alleged invoices. The plaintiff did not examine any witness from Chaudhary Hammer or from Classic Enterprises to prove that they actually approached the defendant for services or that thereafter the defendant approached the plaintiff for delivery of their consignment or that the consignment was ever delivered. Even no document or evidence has been placed on record regarding the booking of consignment or delivery thereof and even the bill of lading. Further, the plaintiff has not proved even the payment of service tax to the government in respect of alleged invoices. Even the address of company is not mentioned on the alleged invoices or the name of the person. He further submitted that there is an invoice bearing No.4766, wherein final figure has been mentioned as of Rs.123,583 whereas the plaintiff in all pleadings viz legal notice, suit and evidence has mentioned the figure as of Rs.125925/. The difference between Rs.123583/ and Rs.125925/ makes not only the suit to be false but also their alleged statement of account. The statement of account has also not been filed in original and the same has not been proved at all therefore, the same cannot be read in evidence. During crossexamination, the plaintiff demolished their own case when the witness had admitted that the invoices are only photocopies and the same do not bear the address of the defendant and there are cuttings and that same do not bear the stamp of the plaintiff company and that the same were never acknowledged and that bill of CS No.333/20 M/s. Blue Bird Cargo Pvt. Ltd. Vs. M/s. Blue Sea Freight Pvt. Ltd. Page No. 8 of 12 lading though their company used to issue, the same has not been filed. Further the plaintiff's witness specifically deposed that the they have no document in proof of delivery.
He further submitted that the defendant company was no more exist being dissolved by an order of Registrar of Companies, NCT of Delhi dated 25.04.2013 and the name of the defendant company has been strike off. It was specifically mentioned in that order that there is no liability left of the defendant. The plaintiff had filed an appeal bearing No.767252/ND/2019 against the order of the registrar, but the said appeal was dismissed as withdrawn on 11.05.2022, therefore, the order of registrar has become final. In support of his contentions, he relied upon following judgments:
i) L.K. Advani Vs. CBI, 1997 4RCR (Cri) 26.
ii) Mukundram Vs./ Dayaram AIR 1914 Nagpur 44.
iii) Zaina Sorabji Vs. Mirabelle Hotel Company AIR 1981 Bombay 446.
iv) M/s. Khushal Chand Jagdish Rai Vs. Hakam Singh, RSA No.439/1986 decided on 14.01.2014.
12. Heard. Considered.
13. Admittedly, the suit of the plaintiff is based on Ex.PW1/2 (colly.) i.e. photocopy of six invoices and the statement of account Ex.PW1/3. Though plaintiff claims that vide these invoices, he CS No.333/20 M/s. Blue Bird Cargo Pvt. Ltd. Vs. M/s. Blue Sea Freight Pvt. Ltd. Page No. 9 of 12 rendered services of freight forwarding, however, the defendant categorically denied availing any services vide these invoices. In such a situation, the burden of proof is upon the plaintiff to prove the services rendered by him to the defendant against these invoices. However, upon bare perusal of the invoices Ex.PW1/2 (colly.), it is observed that neither they are the original nor office copy and merely photocopy as duly admitted by PW1 in his crossexamination. Further, these invoices are inchoate documents, since it does not bear any acknowledgement on the part of the recipient of the services to whom it is addressed. Even otherwise, these invoices do not inspire confidence since most of them have some overwriting/corrections without the initial of the persons making those corrections. For example in invoices no. 4765, 4766 & 4767, the rates are corrected/changed and invoices no.4962 & 5029 reflects overwriting in dates. Further, there is overwriting in invoice no. 5078 in the amount, these corrections/overwriting without endorsement raises a doubt upon the sanctity of these invoices which is the sole basis of the claim of the plaintiff. In such a situation, the best evidence would be of the maker of these invoices who could have explained the reasons for such overwriting/corrections. However, he has not been examined for the reasons best known to the plaintiff. Even the original or office copy of these invoices maintained in the ordinary course of business has not been produced for perusal/comparison by the court. Further, the plaintiff has not placed any proof of delivery of services vide these CS No.333/20 M/s. Blue Bird Cargo Pvt. Ltd. Vs. M/s. Blue Sea Freight Pvt. Ltd. Page No. 10 of 12 invoices as no witness on behalf of company to whom the services were rendered i.e. Chaudhary Hammer and Classic Enterprises has been examined nor the record of service tax shown to be charged by the plaintiff has been placed on record. Even the bill of lading for which the charges have been specified in these invoices and used to be raised by the plaintiff, as admitted by PW1 in his crossexamination, has not been filed though issued. Further, PW1 also admitted that they do not have any document to prove the delivery against these invoices. As far as statement of account Ex.PW1/3 is concern, the same cannot be called a substantial evidence to prove the claim of the plaintiff, as it is merely a corroborative evidence which requires corroborations through corresponding substantive evidence to be relied upon. Further, the ledger account/statement of account has not been proved as per the procedure since neither it bears any signature or stamp nor the person maintaining the said statement of account or the original ledger book produced before the court. Though the plaintiff claims that since the defendant has not produced any witness who dealt with the plaintiff and DW1 pleaded ignorance on material objects, it amounts to deemed admission of services rendered by the plaintiff. However, this contention does not hold water, since the onus lies upon the plaintiff to stand on its own leg to prove its case and it cannot be expected from the defendant to lead negative evidence to prove non delivery of the services.
In these circumstances, it is held that plaintiff has failed CS No.333/20 M/s. Blue Bird Cargo Pvt. Ltd. Vs. M/s. Blue Sea Freight Pvt. Ltd. Page No. 11 of 12 to prove that he has rendered services vide Ex.PW1/2 (colly.). Accordingly, this issue is decided against the plaintiff.
ISSUE NO. 2 & 3:
"2. Whether the plaintiff is entitled to receive Rs.3,10,647/ from the defendant? (OPP)
3. Whether the plaintiff is entitled to interest on the above mentioned amount, if so, at what rate and for which period? (OPP)"
14. In view of the findings recorded in issue no.1, since the plaintiff failed to prove the services rendered vide invoices Ex.PW1/2 (colly.), plaintiff is not entitled to receive any amount or interest on the basis of those invoices. Hence, both issues are decided against the plaintiff.
ISSUE NO.4 (RELIEF):
15. In view of the above findings, it is held that plaintiff has failed to prove its claim by preponderance of probabilities. Accordingly, the suit of the plaintiff is dismissed. No order as to cost.
Decree sheet be prepared accordingly.
File be consigned to record room after due compliance.
Announced in the open Court (AJAY GARG)
on 26.07.2022. Additional District Judge01
East District, KKD Courts/Delhi
CS No.333/20 M/s. Blue Bird Cargo Pvt. Ltd. Vs. M/s. Blue Sea Freight Pvt. Ltd. Page No. 12 of 12