Delhi District Court
M/S. Amrit Seair Express Pvt. Ltd vs M/S. Prominent Exports International on 27 September, 2013
In the Court of Civil Judge04 (South),
Saket Court Complex, New Delhi
Presided By : Ms. Ritu Singh
Suit No. 99/11
Unique Case I.D. No. 02406C0046592011
In the matter of :
M/s. Amrit Seair Express Pvt. Ltd.
221, Sant Nagar, East of Kailash,
New Delhi110065,
Through its Director
Sh. Satnam Singh ...........Plaintiff
Versus
1. M/s. Prominent Exports International
Through its Authorized Representative/
Proprietor/Partner
Sh. Vikramjeet Singh,
Prominent House, Kanganwal Road,
Jaspal Banger,
Ludhiana141122
(Punjab)
IInd Address:
BXXI, 11189, G S Complex,
Basant Road, Pratap Chowk,
Ludhiana141122
(Punjab)
2. Sh. Vikramjeet Singh
Through its Authorized Representative/
Proprietor/Partner of
M/s. Prominent Exports International,
Prominent House, Kanganwal Road,
Suit No. 99/2011 1/22 pages
Jaspal Banger,
Ludhiana141122
(Punjab)
IInd Address:
BXXI, 11189, G S Complex,
Basant Road, Pratap Chowk,
Ludhiana141122
(Punjab) ........Defendants
Date of Institution : 13.08.2009
Date of Reserving of Judgment : 27.09.2013
Date of Pronouncement of Judgment : 27.09.2013
J U D G M E N T:
1. The present suit has been filed by M/s. Amrit Seair Express Pvt. Ltd.
duly registered under the Companies Act, 1956 having its registered office at 221, Sant Nagar, East of Kailash, New Delhi110065 through Sh. Satnam Singh Sodhi, Authorised Representative of the plaintiff company duly authorized to sign, verify and institute the present suit on behalf of plaintiff company vide it's resolution dated 24th, April, 2009. The plaintiff has filed the present suit seeking recovery of Rs. 76,714/ (Rs. Seventy Six Thousand Seven Hundred and Fourteen Only) along with interest @22% per annum on the said principal amount from the period from 31st May, 2008 till date along with pendente lite and future interest @ 22% per annum on the said principal amount from the date of filing of the suit till the realization along with cost of the suit against Suit No. 99/2011 2/22 pages both the defendants.
2. The case of the plaintiff is that the plaintiff company is engaged in the business of international freight forwarding and multi modal transportation and is also a recognized IATA Agent and defendant no.2, on behalf of defendant no.1, used to offer various shipments to the plaintiff company at Delhi, in pursuance of which the plaintiff company has been providing its services and sending various shipments by Air since 2007 to various destinations outside India and after receiving the shipments from the defendants at Delhi, the plaintiff company use to handle shipments by making custom clearance, as well as airliftment through various airlines, as per specific instructions given by the defendants, only after confirmation about the freight and service charges, for which the plaintiff company had been billing the defendants from time to time. It is further averred in the plaint that defendants have been making payments to the plaintiff time to time which were duly credited in the books of accounts being maintained by plaintiff.
3. It is further averred in the plaint that on 31.05.2008 when plaintiff company raised invoice no. 304 dt. 31st May, 2008 pertaining to AWB No. 78147375252 dated 31.05.2008 Destn. Delhi to NYC for a sum of Rs.62,821/ and gave to the defendants a credit of Rs.2,422/ towards incentive against the said Bill and a sum of Rs.61,046/ was balance as per the statement of account of the plaintiff and defendants failed and neglected to pay the said amount in spite of repeated requests and Suit No. 99/2011 3/22 pages demands, orally as well as in writing by way of letters dt. 3.11.2008, 11.11.2008, 18.11.2008, 16.12.2008 and 29.12.2008. It is further averred in the plaint that defendant no.1 is either sole proprietor or partnership concern of the defendant no.2, who is involved in day to day affairs of the business of the defendant no.1, thus, both the defendants are jointly and severally liable to make the payments of the outstanding amount to the plaintiff company. It is further averred in the plaint that since defendants deliberation and intentionally failed and neglected to pay the aforesaid balance amount of Rs.61,046/ they also rendered themselves liable to pay interest on the said amount @22% per annum as mutually agreed upon by the defendants and plaintiff, as so incorporated in their aforesaid bills/invoices as well as in accordance with the market trade, custom and usage and consequently a sum of Rs.12,310/ had become due from the defendants to the plaintiff company on the said account for the period from 31st May, 2008, till 27th April, 2009.
4. Legal demand notice dated 27.04.2009 was also issued to the defendants through registered AD cover calling upon them to pay Rs. 61,046/ on account of principal and a sum of Rs.12,310/ on account of interest on the said amount, besides a sum of Rs.5,500/ as notice charges within 15 days but the defendants were unable to pay entire outstanding amount along with interest. Plaintiff again issued notice dt. 30.5.2009 at another address of defendants through registered AD post but the defendants have neither complied with the said notice nor replied to the same.
Suit No. 99/2011 4/22 pages
5. The defendants were served and contested the present suit by way of filing WS wherein defendants have taken preliminary objection that the suit of plaintiff is without any cause of action and has been filed with ulterior motives and is liable to be rejected and that the plaintiff had not delivered the goods (cages) on time as the plaintiff assured the defendants that goods will deliver on time within 23 days but the goods were delivered after 10 days i.e. 12.06.2008 and in this regard the defendants wrote a letter dt. 23.12.2008 to plaintiff company. It is further stated in the WS that there were clear instructions from the defendants that the goods should be delivered within 23 days as the customer of defendants were in need of goos in question and due to delayed supply customer of defendants stopped dealing with the defendants which caused damages of Rs.12.5 lacs to defendants. It is further stated in the WS that this court also does not have territorial jurisdiction to entertain this suit as goods were booked by defendants with plaintiff at his focal point office (Ludhiana) and suit is also bad for non joinder of necessary parties and plaintiff has not come to the court with clean hands.
6. Plaintiff has filed replication to the WS of the defendants wherein plaintiff has reiterated his stand taken in the plaint.
7. On the basis of pleadings made on behalf of both the parties, following issues were framed:
1. Whether plaintiff is entitled to a decree for a sum of Rs.76714/ alongwith pendente lite in future interest @ 22% p.a. from the Suit No. 99/2011 5/22 pages date of institution of suit till the date of realization?
2. Whether this court has the territorial jurisdiction to entertain the present suit? OPD
3. Whether the suit is bad for non joinder of necessary parties?OPD
4. Whether the plaintiff is entitled to any relief? If so, what?
8. Thereafter plaintiff evidence was led. Plaintiff examined Sh. O.P. Sharma, Aged about 50 years, Accounts Manager of M/s. Amrit Seair Express Pvt. Ltd., 221, Sant Nagar, East of Kailash, New Delhi 110065 as PW1 who tendered his affidavit Ex.PW1/A along with following documents:
1. Ex.PW1/1 memorandum of association , articles of association and certificate of incorporation.
2. Ex.PW1/2 certified true copy of resolution adopted in meeting held on 24.4.2009 (OSR).
3. Ex.PW1/2A certified true copy of resolution adopted in meeting held on 15.9.2011 (OSR).
4. Ex.PW1/3 certified statement of account.
5. Ex.PW1/4 to Ex.PW1/6 office copies of invoices dated 31.05.2008, credit note of even date and airways bill respectively.
6. Ex.PW1/7 report by China Eastern Airlines dated 6.04.2009.
7. Ex.PW1/8 (colly) to Ex.PW1/12 (colly) copies of letters dated 3.11.2008, 11.11.2008, 18.11.2008, 16.12.2008 and 29.12.2008 sent to the defendant along with postal receipts.
8. Ex.PW1/13 copy of legal notice issued to the defendant.
Suit No. 99/2011 6/22 pages
9. Ex.PW1/14 and 15 postal receipts for Ex.PW1/13.
10. Ex.PW1/16 UPC receipt for Ex.PW1/13.
11. Ex.PW1/17 to Ex.PW1/20 post envelopes returned back unserved.
12. Ex.PW 1/21 office copy of legal notice dated 13.05.2009.
13. Ex.PW1/22 to 24 postal and UPC receipts for Ex.PW1/13.
9. PW1 was cross examined by the Ld. Counsel for the defendants.
10. Plaintiff evidence was closed vide separate statement of counsel for the plaintiff on 07.02.2012.
11. Thereafter, evidence of defendants was led. Defendants examined Bikram Jit Singh, Partner in M/s. Prominent Exports International, Office at Prominent House, Khaganwal Road, Jaspal Bangar, Ludhiana141122 (Punjab) as DW1 who tendered his evidence by way of affidavit Ex.DW1/X along with following documents:
1. Mark DW1/1 letter dt. 23.12.08
2. Ex. DW1/2 courier receipt (OSR)
3. Ex.DW1/3 (colly.) copy of Emails
12. DW1 was cross examined by Ld. Counsel for the plaintiff.
13. Defendant's evidence was closed vide separate statement of counsel for the plaintiff on 13.02.2013.
14. Thereafter, final arguments were heard on behalf of both the parties.
15. Issue wise findings are as under:
ISSUE No.1 Whether plaintiff is entitled to a decree for a sum of Suit No. 99/2011 7/22 pages Rs.76714/ alongwith pendente lite and future interest @ 22% p.a. from the date of institution of suit till the date of realization?
16. The onus to prove this issue was upon plaintiff. Plaintiff has prayed for recovery of a sum of Rs.76714/. In his plaint, plaintiff has averred that defendant no.2 on behalf of defendant no.1 used to offer various shipments to the plaintiff company at Delhi in pursuance of which plaintiff company has been providing its services and sending shipments to various destination outside India. Plaintiff has further averred that on 31.5.2008, plaintiff raised invoice no. 304 dt. 31.5.2008 pertaining to AWB no. 78147375252 destination Delhi to NYC for a sum of Rs.62,821/ and gave a credit of Rs.2422/ to the defendants but defendants failed to pay the balance amount of Rs.61046/ and are further liable to pay interest @22% per annum as mutually agreed and incorporated in the bills/invoices.
17. Plaintiff has examined Sh. O.P. Sharma, Accounts Manager of plaintiff company as PW1 who has deposed on oath in his affidavit Ex.PW1/X that on 31.5.2008, plaintiff raised invoice no. 304 dt. 31.5.2008 pertaining to AWB no. 78147375252 destination Delhi to NYC for a sum of Rs.62,821/ and gave a credit of Rs.2422/ to the defendants but defendants failed to pay the amount of Rs.61046/ which was the balance as per statement of account maintained by plaintiff in its regular course of business which is Ex.PW1/3. PW1 has relied on invoice no. 304 dt. 31.5.2008 which is Ex.PW1/4, credit note no. 94 dt.
Suit No. 99/2011 8/22 pages 31.5.2008 which is Ex.PW1/5 and copy of Airway bills AWB no. 78147375252. PW1 has deposed that the consignment sent vide Airway bills AWB no. 78147375252 was forwarded on 2.6.2009 and delivered to the notified consignee on 6.6.2009 and has relied on report of the China Eastern Airlines which is Ex.PW1/7. PW1 has deposed that letters dt. 3.11.2008, 11.11.2008, 18.11.2008, 16.12.2008, 29.12.2008 were sent to defendants which are exhibited as Ex.PW1/8 (colly.). PW1 has relied on legal demand notice dt. 27.4.2009 issued by the plaintiff to the defendants which is Ex.PW1/3 and postal receipt thereof which are Ex.PW1/14 and Ex.PW1/15 and UPC which is Ex.PW1/16, postal envelopes returned back unserved which is Ex.PW1/17 to Ex.PW1/20. PW1 has relied on notice dt. 30.5.2009 which is Ex.PW1/21 and Ex.PW1/22 to Ex.PW1/24 are the postal receipts and UPC for notice dt. 30.5.09.
18. Defendants in their WS has taken the plea that the plaintiff had not delivered the goods on time as the plaintiff assured the defendants that the goods would be delivered on time within two three days as the customer of the defendants were in need of goods in question but goods were delivered after 10 days and in this regard defendants wrote a letter dt. 23.12.2008 to the plaintiff company. Defendants have averred in their WS that due to such delay, the customer of the defendants stopped dealing with the defendants and are not not buying the goods from the defendants which caused damage of Rs.12.5 lacs to the defendants. In its WS, defendants have admitted that defendant no.2 on behalf of Suit No. 99/2011 9/22 pages defendant no.1 used to offer shipments to the plaintiff company and plaintiff company have been providing its services and sending shipments since 2007. Defendants have averred in their WS that on 31.5.2008 plaintiff picked the goods from the office of defendant at Ludhiana and assured that goods will be delivered within 2 to 3 days but were delivered after 10 days. Defendants have also averred that plaintiff chose China Eastern Airlines due to cheaper rates and was well aware that earthquake has hit China on 12.5.2008 and same was admitted by plaintiff in its letter dt. 3.11.2008, 11.11.2008, 18.11.2008, 16.12.2008, 29.12.2008 which were sent to defendants which are exhibited as Ex.PW1/8 (colly.). Defendants have denied that they are liable to pay any interest @22% per annum on the alleged balance of Rs.61,046/.
19. Defendants have examined Sh. Bikram Jit Singh, partner of def.no.1 firm as DW1 who has admitted in his affidavit Ex.DW1/X that plaintiff was providing services to defendants and sending shipments of defendant's company by air. DW1 has admitted in his affidavit that the defendants booked the goods with the plaintiff on 31.5.2008 and after booking, plaintiff picked the goods from the office of defendants and assured the defendants that goods will be delivered in 23 days but were delivered after 10 days on 12.6.2008. DW1 has deposed in his affidavit that at the time when the goods were ordered, there were clear instructions from the defendants that the goods should be delivered within 23 days as the customer of the defendants were in dire need and Suit No. 99/2011 10/22 pages have relied upon letter dt. 23.12.2008 which is Ex.DW1/1 and receipt thereof which is Ex.DW1/2. DW1 has relied on copy of emails Ex.DW1/3 (colly.) in support of averment that defendants have suffered loss of goodwill.
20. Therefore, from the testimony of parties and documents on record, it is an admitted fact that the goods was booked by the defendants with the plaintiff and the same were airlifted by the plaintiff and were delivered at agreed destination of NYC. Defendants have also admitted that the goods were airlifted and delivered to the agreed consignee. It is also admitted by both the parties and supported with letters Ex.PW1/8 (colly.) to Ex.PW1/12 (colly.) that there was delay in delivery of goods to the destination. The only question is whether the delay in delivery of goods by plaintiff would entitle the defendant to withhold payment for services (sending shipments by air) provided by the plaintiff.
21. Therefore, the pertinent issue arising in the case is whether time was the essence of the contract. Generally parties may make time as the essence of the contract, either expressly or alternately the time may be inferred as the essence of the contract from the nature of the contract, the property or the surrounding circumstances. In the present case, the contract was for air shipment of goods i.e. 25 Cages for the purpose of free trade samples from India to NYC, as admitted by PW1 during his cross examination. PW1 has also stated that the goods i.e. 25 Cages were not of any commercial value.
22. While dealing with question as to whether time is essence of contract, Suit No. 99/2011 11/22 pages statutory provisions contained in Indian Contract Act and Sales of Goods Act are relevant to mention herein.
Section 55 of the The Indian Contract Act, 1872 stipulates as under:
"Effect of failure to perform at a fixed time, in contract in which time is essential. When a party to a contract promises to do a certain thing at or before a specified time, or certain things at or before specified times, and fails to do any such thing at or before the specified time, the contract, or so much of it as has not been performed, becomes voidable at the option of a promisee, if the intention of the parties was that time should be of the essence of the contract.
Effect of such when time is not essential. If it was not the intention of the parties that time should be of the essence of contract, the contract does not become voidable by the failure to do such thing at or before the specified time; but the promisee is entitled to compensation from the promisor for any loss occasioned to him by such failure.
Effect of acceptance of performance at time other than that agreed upon. If, in case of a contract voidable on account of the promisor's failure to perform his promise at the time agreed, the promisee accepts performance of such promise at any time other than that agreed, the promisee cannot claim compensation for any loss occasioned by the nonperformance of the promise at the time agreed, unless, at the time of such acceptance he gives notice to the promisor of his intention to do so."
Section 11 of the Sale of Goods Act stipulates as under:
"Unless a different intention appears from the terms of the contract, stipulations as to time of payment are not deemed to be of the essence of a contract of sale. Whether any other stipulation as to time is of the essence of the contract or not depends on the terms of the contract."
Suit No. 99/2011 12/22 pages
24. PW1 during the course of his cross examination has stated that the goods that were to be airlifted and transported were of no commercial value. Defendants have not placed on record any document showing that the time was the essence of the contract. Defendants have relied on letter dt. 23.12.2008 which is Mark DW1/1 and copy of emails which is Ex.DW1/3. Defendants have relied on letter dt. 23.12.2008 Mark DW1/1 to show that the air shipment was done under urgent circumstances. DW1 has not produced original letter dt. 23.12.2008 on record. Even otherwise Mark DW1/1 is a letter subsequent to the date of airlifting of the goods as per the agreement between the parties, therefore, it cannot be relied upon to establish that defendants had communicated to plaintiff regarding the urgency or that time was the essence of the contract of airlifting /delivery of goods. Defendants have also not placed on record any document to show that it was agreed between the parties at the time entering into contract of services of airlifting the goods, that time was to constitute essence of contract. Moreover, emails which is Ex.DW1/3 are between person named Sumit Sehgal (stated to be representative of defendants) and Josh Levitt. Communication between third party and alleged representative of the defendants by itself is not sufficient to show that the plaintiff and the defendants have agreed upon time as the essence of the contract of services of airlifting the goods, provided by the plaintiff. It cannot be ascertained from the email communication between the defendants and Suit No. 99/2011 13/22 pages third party (Josh Levitt) whether defendants had communicated to plaintiff the urgency in delivery/transportation of goods airlifted to the desired destination.
25. DW1 during the course of his cross examination has denied the suggestion that time was not the essence of the contract. DW1 during the course of his cross examination has admitted that he has not placed any written agreement on record executed between the plaintiff and defendants showing that the goods were to be delivered within 23 days. However, DW1 has stated that one Mr. Kamal Sodhi from Ludhiana office of the plaintiff has assured delivery of goods within 23 days. However, defendants have not examined the above said Mr.Kamal Sodhi to prove the averments of DW1 nor has placed on record any documentary proof to support that time was essence of the contract of services of airlifting goods provided by plaintiff to defendants.
26. It was defendants who have raised the defence that time was the essence of the contract and goods were delivered by the plaintiff after 10 days and not within 2 - 3 as promised by the plaintiff, and has thus raised defence of deficiency in services of the plaintiff provided as per agreement between the plaintiff and defendants. However, defendants have neither placed on record any document showing that time was agreed upon by the parties as the essence of the contract or that defendants had conveyed to the plaintiff before the air lifting of the goods that the goods have to be supplied within the agreed time period or the urgency in the delivery of goods.
Suit No. 99/2011 14/22 pages
27. Thus, defendants have failed to prove that the time is essence of the contract or was so agreed between the plaintiff and the defendants.
28. Defendants have also taken defence in its WS that plaintiff chose China Eastern Airlines due to cheaper rates despite knowledge that China was hit by earthquake on 12.5.2008. DW1 has deposed in his affidavit Ex.DW1/X that plaintiff chose China Eastern Airlines due to cheaper rates despite knowledge that China was hit by earthquake on 12.5.2008 and has relied on letters dt. 3.11.2008, 11.11.2008, 18.11.2008, 16.12.2008 and 29.12.2008 which are Ex.DW1/1 and receipts thereof are Ex.DW1/4.
29. PW1 has deposed in his affidavit Ex.PW1/X that it was the choice of defendants themselves to chose a cheaper Airlines i.e. China Eastern Airlines and plaintiff took the services of China Eastern Airlines only under instructions of defendants. PW1 has denied the suggestion that plaintiff company had chosen China Eastern Airlines which provided lower rates knowing well that the earthquake had hit china.
30. Defendants had relied on letter dt. 23.12.2008 which is Mark DW1/1.
However, plaintiff has failed to place on record the original of the aforesaid letter. Even otherwise, in letter dt. 23.12.2008 which is Mark DW1/1 it is stated on behalf of the defendants that "You assured us that you will be responsible for on time delivery of the cargo and only then we agreed for this China Eastern Airlines."
31. Further, the Airway bill Ex.PW1/6 relied upon by the plaintiff was Suit No. 99/2011 15/22 pages generated on 31.5.2008 and therefore, it would have been in the knowledge of the defendants that the goods are being sent via China Eastern Airlines before the goods were finally airlifted on 2.6.2008 from Delhi as the copy of the flight schedule was issued to the defendants for reference. However, no objection was taken by the defendants to the proposed airlifting of the goods by the China Eastern Airlines before the letter dt. 23.12.08.
32. Therefore, from the testimony of the parties and the documents relied upon by the defendants, defendants have failed to establish his defence that China Eastern Airlines was chosen by the plaintiff without the consent of the defendants.
33. Thus it is not denied that the plaintiff company was providing its services to the defendants and sending various shipments by air since 2007 to various destinations outside India and in pursuance thereof the goods were also book by the defendants with the plaintiff on 31.05.08 and after booking of the goods, plaintiff delivered the goods at the agreed destination i.e. Newyork City. Moreover, as per the airway bill Ex.PW 1/6 the freight was prepaid thus implying that plaintiff had paid for the freight as per the agreement between the plaintiff and the defendants and thereafter the invoice dt.31.5.08 Ex.PW 1/4 was raised by the plaintiff against the defendants.
34. Therefore in the opinion of the court, once the plaintiff has incurred expenditure at the promise of the defendants then plaintiff must be indemnified for the same by defendants, defendants cannot be allowed Suit No. 99/2011 16/22 pages to backtrack from his promise and refuse the payment for the services rendered by the plaintiff after it has already enjoyed the services of plaintiff, even though if it is alleged to be deficient. However, for the deficiency in services of the plaintiff as alleged by the defendants, the defendants is at liberty to seek compensation /damage from the plaintiff through appropriate legal proceedings. But his right to recover compensation/ damages from plaintiff does not ipsofacto entitles him to hold back the payment due from him towards the services rendered by the plaintiff.
35. In light of above said observations and findings the issue is decided in favour of the plaintiff and against both the defendants.
ISSUE No.2 Whether this court has the territorial jurisdiction to entertain the present suit? OPD
36. The onus to prove this issue was upon defendants. Defendants have objected to the territorial jurisdiction of this court in its WS on the ground that the goods were booked by the defendants at their Focal Point Office in Ludhiana and after booking of goods, plaintiff picked the goods from the office of defendants at Ludhiana and therefore no part of cause of action has arisen within the limits of territorial jurisdiction of this court. Defendants have examined Sh. Bikram Jit, partner in defendant no.1 as DW1 who has deposed in his affidavit that the goods were booked by the defendant at its Focal Point Office in Suit No. 99/2011 17/22 pages Ludhiana and after booking of goods, plaintiff picked the goods from the office of defendants at Ludhiana. DW1 during the course of his cross examination has stated that "As per the document (Ex.PW1/4 to Ex.PW1/6) there is no specific charge imposed by the plaintiff on defendant no.1 for lifting/transporting the goods from Ludhiana to New Delhi. (vol. The goods were to be transported from Ludhiana to New York via New Delhi as there was no International Airport at Ludhiana)."
38. DW1 has denied the suggestion that the goods were delivered at Delhi address of plaintiff. DW1 has further denied the suggestion that there was no focal point at Ludhiana to collect the shipment on behalf of plaintiff.
39. Plaintiff has stated in its plaint that as per the invoice no. 304 dt.
31.5.2008, the goods were to be carried from Delhi to NYC. In its replication to WS of defendants, plaintiff has averred that def.no.2 on behalf of def.no.1 used to offer shipments within the jurisdiction of this court and billing was done. Further, plaintiff has relied on the standard term of contract on the invoices which are Ex.PW1/4 generated by the plaintiff as per which "All disputes are subject to New Delhi jurisdiction."
40. PW1 during the course of his cross examination has stated that since Airway Bills Ex.PW1/6 does not provide for transportation charges from Ludhiana to Delhi, the goods were not collected from Ludhiana.
41. Section 20 (c) of CPC envisages that suit shall be instituted in a Court Suit No. 99/2011 18/22 pages within the local limits of whose jurisdiction cause of action, wholly or in part, arises. It is a settled principle of law that the parties cannot confer jurisdiction on a court through their mutual agreement, on a court to which otherwise does not have jurisdiction. It is not disputed that the goods were airlifted through China Eastern Airlines from Delhi to NYC (New York City) on 31st May, 2008 and against this service rendered by the plaintiff, he raised invoice no. 304 dt. 31st May, 2008 pertaining to AWB No. 78147375252 dated 31.05.2008 which shows destination from Delhi to NYC. The Air way bill Ex.PW1/4 also reveals that 'airport of departure' was New Delhi. Therefore, from the facts of the case and documents relied by parties, specifically Ex.PW1/4, it is clear that goods were airlifted from Delhi for delivery at the destination NYC, therefore, a part of cause of action has arisen in Delhi as the services of the plaintiff of airlifting the shipments /goods provided by the defendants, was offered from Delhi which was the place of departure as shown in Ex.PW1/4. Moreover, as per the standard terms of the contract on invoice Ex.PW1/4, all the disputes were to be subject to New Delhi jurisdiction.
42. In view of above said observations, this issue is decided against both the defendants and in favour of plaintiff.
ISSUE No.3 Whether the suit is bad for non joinder of necessary parties?OPD Suit No. 99/2011 19/22 pages
43. Onus to prove this issue was upon the defendants. In the WS filed by the defendants, defendants have taken preliminary objection that the suit is bad for non joinder of necessary parties as defendant no.1 is duly registered partnership firm and all the partners of defendant no.1 firm have not been made party to the suit. Defendants have examined Bikram Jit Singh, Partner in defendant no.1 firm as DW1 who has deposed in his cross examination that the defendant no.1 is a partnership firm which has been registered in accordance with Indian Partnership Act and there are three partners in defendant no.1 partnership firm. DW1 has further deposed that he along with his mother and father are the three partners in def.no.1 firm.
44. Plaintiff in its plaint has averred that def.no.1 is either sole proprietorship or partnership firm of def.no.2. Plaintiff has examined PW1 in its favour. PW1 has deposed during the course of his cross examination that the plaintiff company is not aware whether defendant no.1 is proprietorship or partnership firm.
45. Order XXX of the CPC is relevant for adjudication of this issues. Order XXX Rule 1 (1) CPC reads as under:
"Any two or more persons claiming or being liable as partners and carrying on business in, [India] may sue or be sued in the name of the firm (if any) of which such persons were partners at the time of the accruing of the cause of action, and any party to a suit may in such case apply to the Court for a statement of the names and addresses of the persons who were, at the time of accruing of the cause of action, partners in such firm, to be Suit No. 99/2011 20/22 pages furnished and verified in such manner as the Court may direct."
46. It was held in case of State of Tripura v/s. Bhowmik and Co., AIR, 2004 Gau 19 that the defendant/defendants can be sued in name of the firm and when so sued, the firm includes and represents the defendants in their respective personal names and that the question of non joinder of the partner by his name does not arise when the suit is against the firm.
47. This is a suit for recovery, which has been filed against the defendant no.1 which is a partnership firm and against defendant no.2 who is alleged to be acting on behalf of defendant no.1 to offer various shipments. The entire cause of action has arisen regarding the shipments send by defendant no.1/partnership firm and therefore, the recovery has been sought against defendant no.1 and defendant no.2 who is alleged to have been acting on behalf of defendant no.1 and offering shipments to the plaintiff on behalf of defendant no.2. Invoice Ex.PW1/4 and Airway Bill Ex.PW1/6 has also been raised against def.no.1 partnership firm.
48. Thus, it is amply clear that a partnership firm can be sued in the name of the firm and the question of non joinder of the other partners of the partnership firm does not arise when the suit is for recovery of acts done by the partnership firm, as such.
49. In view of the aforesaid judicial precedent and statutory provision the issue is decided in favour of plaintiff and against both the defendants.
Suit No. 99/2011 21/22 pages
ISSUE No.4
Whether the plaintiff is entitled to any relief? If so, what?
50. In view of the conclusion reached in issue no.1, the suit is decreed in favour of the plaintiff and against both the defendants for sum of Rs. 76,714/ (Rs. Seventy Six Thousand Seven Hundred and Fourteen Only) alongwith pendente lite interest @ 9% per annum and future interest @ 6% per annum till the date of realisation.
51. No order as to cost.
52. Decree sheet be prepared accordingly.
53. File be consigned to Record Room.
Announced in the open Court (Ritu Singh) on 27.09.13 Civil Judge04/South District/New Delhi Suit No. 99/2011 22/22 pages