Delhi District Court
Cj Darcl Logistics Ltd vs Microsafe Express Pvt. Ltd on 17 May, 2024
IN THE COURT OF RAJESH KUMAR GOEL
District Judge (Commercial Court) -02,
Central, Tis Hazari
DLCT010073102022
CS (COMM.) No. 1198/2022
CNR No. DLCT01-0073102022
CJ Darcl Logistics Ltd.
Having its registered office,
at Plot No. 55 P, Sector 44
Institutional Area
Gurugram, Haryana
through its Authorised Representative
Mr. Rajender Kumar Mankotia ......Plaintiff
Versus
Microsafe Express Pvt. Ltd,
1033/17, Naiwala, Karol Bagh
Near Arya Samaj Road,
Delhi 110 005 ......Defendant
Date of filing of suit : 05.05.2022
Date of Argument : 17.05.2024
Date of Judgment : 17.05.2024
CJ DARCL Logistics Ltd. vs Microsafe Express Pvt. Ltd Date of Judgment 17.05.2024 ( 1 of 17 )
JUDGMENT
1. Vide this judgment, I shall dispose of the present suit for recovery of Rs. 4,75,071/- (Rs Four Lakh Seventy Five Thousand and Seventy One only) filed by the CJ Darcl Logistics Ltd. (herein after referred to as " Plaintiff Company") against the defendant Microsafe Express Pvt. Ltd.
FACTUAL MATRIX
2. The brief facts of the case, as mentioned in the plaint are that plaintiff is a company registered under Companies Act,1956 having its registered office at Plot. No. 55 P, Sector 44, Institutional Area, Gurugram, Haryana and Branch Office at 71/4, Ist Floor, Shivaji Marg, Najafgarh Road, Karampura, New Delhi 110015. The plaintiff is engaged in the business of logistics and transportation of goods across India by road and rail and the present suit has been filed by Mr. Rajender Kumar Mankotia, the Manager of the plaintiff company, who has been duly authorised to sign, verify and file and prosecute the matter vide special power of attorney dated 13.02.2021.
CJ DARCL Logistics Ltd. vs Microsafe Express Pvt. Ltd Date of Judgment 17.05.2024 ( 2 of 17 )
3. It is the case of the plaintiff company that defendant had approached the plaintiff company at their Branch office address at Delhi and requested to supply their trucks on hire on credit basis, to enable the defendant to transport the goods of its customers from Delhi/Noida to Patna; at the request of the defendant, the plaintiff started providing the trucks to the defendant on credit basis from time to time and following bills were raised by the plaintiff for payment:
S.No Bill No. Due On Amount (Rs)
1. DI3303008713 09.8.2019 68,000/-
2. DI3306009490 29.08.2019 65,000/-
3. DI3306009498 29.08.2019 63,000/-
4. DI3306011054 20.09.2019 72,000/-
5. DI3306011055 20.09.2019 72,000/-
Total Rs 3,40,000/-
4. It is stated that as per the books of accounts maintained by the plaintiff in the regular course of business, an amount of Rs 3,40,000/- (Rs Three Lakh Forty Thousand only) is due and outstanding CJ DARCL Logistics Ltd. vs Microsafe Express Pvt. Ltd Date of Judgment 17.05.2024 ( 3 of 17 ) towards the defendant; defendant acknowledged and confirmed the aforesaid liability and in discharge of the said liability, as a part payment, defendant issued three cheques bearing no. 307076 dated 30.09.2019 for a sum of Rs 63,000/-, cheque No. 307077 dated 30.09.2019 for a sum of Rs 65,000/- and a cheque bearing no. 307078 dated 5.10.2019 for a sum of Rs 63,000/- drawn on Indusind bank, Karol Bagh Branch, New Delhi.
5. When the aforesaid cheques were represented for encashment, the same were received back dishonored with remarks " Payment Stopped by Drawer" on 06.11.2019.
6. It is further stated that defendant has failed to pay the said outstanding amount to the plaintiff despite repeated requests, reminders, emails and personal visit of the plaintiff; a legal notice dated 23.11.2020 was issued which was duly served upon the defendant but despite that the outstanding amount has not been cleared by the defendant.
7. It is further stated that in compliance of the provision of section 2(1)(c) of the Commercial CJ DARCL Logistics Ltd. vs Microsafe Express Pvt. Ltd Date of Judgment 17.05.2024 ( 4 of 17 ) Courts Act, 2015, as amended to date, plaintiff filed a pre-litigation mediation application before the Delhi Legal Service Authority, Central District, Tis Hazari Courts, Delhi, (in short "DLSA") against the defendant; despite the service of the notice defendant did not appear; the DLSA has released a non-starter report dated 04.03.2022 regarding the defendant's lack of participation in the per- institution mediation process.
8. Since, the outstanding payment was not cleared by the defendant, hence, the present suit was filed.
9. Summons of the suit were issued to the defendant. The record would indicate that on 30.1.2023, memo appearance was filed on behalf of the defendant. On 22.3.2023, it was noted by the Ld. Predecessor of this Court that defendant has been served on 28.12.2022 and the memo appearance was filed on 30.01.2023 but no written statement was filed on behalf of the defendant. On the same date, Ld. Predecessor of this court clarified that the written statement is to be filed by the defendant within 30 days (extendable up to 120 days with the CJ DARCL Logistics Ltd. vs Microsafe Express Pvt. Ltd Date of Judgment 17.05.2024 ( 5 of 17 ) leave of the court and subject to terms) from the date of service of process as per the amended Proviso of Sub Rule (1) of Order V Rule 1 CPC as applicable to the Commercial Courts Act, and the case was adjourned for 26.07.2023.
10. On, 26.07.2023, Sh. Santosh Ram, Ld. Proxy Counsel for the defendant was present but the written statement was not filed by the defendant. Consequently, the right of the defendant to file the written statement was forfeited and the defence of the defendant was struck off by the Ld. Predecessor of this court and the following issues were framed:
1. Whether the plaintiff is entitled to the recovery of principal amount, as asked for in the plaint? (OPP)
2. If in case the issue no.1 is decided in affirmative, whether the plaintiff is entitled to the interest on the principal amount, as asked for in the plaint? ( OPP)
3. Relief.
11. Subsequently, an application under order 3 rule (1) r/w section 151 CPC was filed on behalf of the plaintiff seeking substitution of the AR from Sh. Rajinder Mankotia to Sh Hawa Singh, which was allowed and Sh. Hawa Singh was substituted in CJ DARCL Logistics Ltd. vs Microsafe Express Pvt. Ltd Date of Judgment 17.05.2024 ( 6 of 17 ) place of the previous AR Sh Rajinder Mankotia. On 27.09.2023, plaintiff has examined Sh. Hawa Singh, AR of the plaintiff as PW1 and has closed the plaintiff evidence and the case was adjourned for final argument.
12. PW1 Hawa Singh has deposed on the lines of the averments made in the plaint in his evidence by way of affidavit Ex.PW1/X. He has also proved/ relied upon following documents:-
S.no Document/Particulars Exhibit(s)
1. Copy of certificate of ExPW1/1 incorporation
2. Special Power of attorney ExPW1/2 dated 13.02.2021 in favour of previous AR
3. Copy of Bills ExPW1/3 (a) to ExPW1/3(e)
4. Statement of account ExPW1/4
5. Certificate u/s 65 B of Indian ExPW1/5 Evidence Act
6. True copy of cheque bearing ExPW1/6 (colly) no. 307076 dated 30.09.2019 for a sum of Rs 63,000/- , cheque bearing no. 307077 dated 30.09.2019 for a sum of Rs 65,000/- and cheque bearing no. 307078 dated 5.10.2019 for a sum of Rs 63,000/- ( the actual amount in the cheque is Rs 65,000/-) CJ DARCL Logistics Ltd. vs Microsafe Express Pvt. Ltd Date of Judgment 17.05.2024 ( 7 of 17 )
7. Copy of three bank returning ExPW1/7 (colly) memos dated 6.11.2019
8. Legal notice dated 23.12.2020 ExPW1/8
9. Speed post receipt and e-mail ExPW1/9 (colly) delivery proof
10. Non Starter Report dated ExPW1/10 04.03.2022
11. Special power of attorney ExPW1/11 dated 04.09.2023 in favour of PW1 Hawa Singh
13. I have gone through the material available on record and heard the Ld. Counsel for the plaintiff .
14. At the outset, I may mention that during the pendency of the present case, when the case had reached at the stage of final arguments, on 30.10.2023 one application was moved by Ms. Priti Kumari, who claimed herself as AR of the defendant company. The proceedings dated 07.11.2023, 10.1.2024 and 22.02.2024 would reveal that Ms. Priti Kumari, appeared on behalf of the defendant as an AR but not on subsequent dates i.e 09.04.2024 and on today.
15. On 09.4.2024, none was present on behalf of the defendant. Since, on the last date of hearings previous to 09.4.2024, this court was lying vacant as the Ld. Predecessor of this court had already CJ DARCL Logistics Ltd. vs Microsafe Express Pvt. Ltd Date of Judgment 17.05.2024 ( 8 of 17 ) retired, therefore, no adverse order was passed against the defendant. However, it was made clear that if none is present on behalf of the defendant on the NDOH i.e on today, the court shall proceed further on the basis of the material available on record as the case is at the stage of final arguments.
16. This indicates that even the applicant Ms Preeti Kumari is not interested to appear on behalf of the defendant company and request made by her is liable to be rejected. The application of the applicant is devoid of merits for another reason also i.e defendant is a corporate entity and in case the applicant is claiming to be AR of the defendant, in that eventuality, she should have filed the copy of Board Resolution or any other Authority letter authorising her to appear before this court on behalf of the defendant company, which is also missing in the present case. Therefore, the request made by the applicant Ms. Priti Kumari is declined.
Limitation
17. Section 3 of the Limitation Act,1963 requires that suits or the proceedings instituted after the CJ DARCL Logistics Ltd. vs Microsafe Express Pvt. Ltd Date of Judgment 17.05.2024 ( 9 of 17 ) prescribed period of limitation shall be dismissed. It is a statutory restriction of the right of action to certain periods of time, after the occurring of the cause of action beyond which, except in certain specific cases, it will not be allowed. The court is under a bounded duty to consider whether the suit is barred by limitation or not. Thus, firstly I shall deal with the issue of limitation.
18. The plaintiff has filed the present suit for recovery of money, for which the limitation is three years from the date when the cause of action arises.
19. PW1 Hawa Singh has categorically deposed that defendant on several occasions had hired trucks of the plaintiff on credit basis and for that plaintiff raised the bills ExPW1/3(a) to ExPW1/3(e) for payment. PW1 Hawa Singh further deposed that the defendant acknowledged and confirmed its liability and in discharge of the same in part, had issued three cheques bearing no. 307076 dated 30.09.2019 for a sum of Rs 63,000/- cheque no. 307077 dated 30.09.2019 for a sum of Rs 65000/- and cheque no. 307078 dated 2.10.2019 for a sum of Rs 65,000/- ExPW1/6 (colly); on presentation the said cheques CJ DARCL Logistics Ltd. vs Microsafe Express Pvt. Ltd Date of Judgment 17.05.2024 ( 10 of 17 ) were received back dishonoured with remarks "
Payment Stopped" on 06.11.2019 ExPW1/7 (colly). According to the plaintiff, the cause of action arose on all the aforesaid dates and also on 06.11.2019 i.e the date of cheques returning memo ExPW1/7 (colly) .
20. From the evidence adduced by the plaintiff, it has come on the record that the last invoice ExPW1/3(e) was raised by the plaintiff on 11.09.2019; the last cheque issued in discharge of part payment in the sum of Rs 65,000/- ExPW1/6 (colly) is dated 05.10.2019 and the bank returning memo's ExPW1/7 (colly) are dated 06.11.2019. Therefore, the cause of action for filing the present suit also arose on all the aforesaid dates. Further, in terms of the proviso attached to section 12 A of the Commercial Act,2015, the time spent in pre- litigation mediation is to be excluded while counting the period of limitation. The non-starter report ExPW1/10 would indicate that the application for pre-institution medication was moved on 20.02.2021 and the non-starter report was released on 04.03.2022, therefore the period between 20.02.2021 to 04.03.2022 is to be excluded CJ DARCL Logistics Ltd. vs Microsafe Express Pvt. Ltd Date of Judgment 17.05.2024 ( 11 of 17 ) while calculating the period of limitation.
21. The present suit has been filed on 05.05.2022 which is within the period of limitation in all respects. The court is of the considered opinion that the plaintiff company has filed the present suit within the period of limitation as prescribed under the law.
Jurisdiction : Territorial as well as Pecuniary
22. Although, the defence of the defendant has already been struck off vide order dated 26.07.2023 and today defendant was proceeded exparte, still it is the duty of the court to see whether this court has the jurisdiction to entertain and adjudicate the present dispute.
23. In the present case, as per the memo of the parties, defendant company is working at Karol Bagh, Delhi, therefore, in terms of section 20 CPC, the cause of action also arose within the territorial jurisdiction of this court.
CJ DARCL Logistics Ltd. vs Microsafe Express Pvt. Ltd Date of Judgment 17.05.2024 ( 12 of 17 )
24. Further, the Commercial Courts Act 2015 was amended on 03.05.2018 and by virtue of the amendment and by virtue of the notification, the pecuniary value of the Commercial Courts Act shall not be less than Rs.3,00,000/-. In the present case, the suit amount is Rs 4,75,071 (Rs Four Lakh Seventy Five Thousand and Seventy one only) and this Court is having the pecuniary jurisdiction also to adjudicate the dispute.
Entitlement Issue No. 1 Whether the plaintiff is entitled to the recovery of principal amount, as asked for in the plaint? (OPP)
25. Ld. Counsel for the plaintiff submitted that in the present case defendant has failed to file the written statement despite the sufficient opportunity granted to them; the witness of the plaintiff has not been cross examined by the defendant and the testimony of PW1 has gone gone unchallenged and unrebutted. Therefore, the plaintiff is entitled for the decree, as prayed for.
CJ DARCL Logistics Ltd. vs Microsafe Express Pvt. Ltd Date of Judgment 17.05.2024 ( 13 of 17 )
26. The case of the plaintiff , as set up in the plaint is that the defendant had hired the trucks from the plaintiff for transportation of the goods from Delhi/Noida to Patna against which various bills were raised by the plaintiff. In order to prove its case, the plaintiff company has examined Sh. Hawa Singh as PW1 who has deposed on the lines of the averments made in the plaint and has proved the documents ExPW1/1 to ExPW1/11.
27. The case of the plaintiff company has gone unchallenged. The testimony of PW1 Hawa Singh has gone un-rebutted and un-controverted and there is nothing on record to disbelieve the same. The plaintiff has been able to establish on record that the plaintiff and defendant were in a business relation; plaintiff was giving the trucks to the defendant on hire on credit basis and against the same bills ExPW1/3 (a) to ExPW1/3 (e) were raised; defendant has acknowledged and confirmed its liability and in discharge of the same in part, had issued three cheque ExPW1/6 (colly) which upon presentation for encashment received back dishonored vide returning memos ExPW1/7 (Colly) with the remarks 'Payment stopped'. Plaintiff CJ DARCL Logistics Ltd. vs Microsafe Express Pvt. Ltd Date of Judgment 17.05.2024 ( 14 of 17 ) company has also been able to establish that as per the statement of account ExPW1/4, as on 31.03.2022, an amount of Rs 3,40,000/- was outstanding against the defendant. The plaintiff company has claimed the interest @ 15% p.a on the aforesaid amount to the extent of Rs 1,35,071/- till the filing of the present suit. As per the bills raised by the plaintiff ExPW1/3 (a) to ExPW1/3 (e), one of the conditions as mentioned therein is that interest @ 18 % p.a will be charged after the seven days from the date of bill. The aforesaid bills already stands proved. Meaning thereby, the defendant agreed to the said terms and conditions pertaining to the rate of interest. That being so, this court finds no reason to reject the interest as charged by the company @ 15% on the outstanding amount till the filing of the present suit. Hence, the plaintiff company is entitled for recovery of Rs 4,75,071/-( Rs Four Lakh Seventy Five Thousand and Seventy One only), as prayed for . Issue no. 1 is answered accordingly.
CJ DARCL Logistics Ltd. vs Microsafe Express Pvt. Ltd Date of Judgment 17.05.2024 ( 15 of 17 ) Interest Issue No.2 If in case the issue no.1 is decided in affirmative, whether the plaintiff is entitled to the interest on the principal amount, as asked for in the plaint? ( OPP)
28. The plaintiff has claimed the pendentelite and future interest at the rate of 15% per annum. Keeping in view the overall facts and circumstances of the case, Court is of the view that same is on higher side. Interest of justice would be met by awarding pendentelite and future interest @ 8 % per annum .
Issue No. 3 Relief
29. In view of my aforesaid discussion, the Court is of the view that the plaintiff company has been able to prove its case against the defendant. Thus, the suit is decreed in favour of plaintiff company and against the defendant and following reliefs are granted:-
(i.) The plaintiff company is entitled to recover Rs. 4,75,071/- ( Rs Four Lakh Seventy Five Thousand and Seventy One only) ) from the defendant.
CJ DARCL Logistics Ltd. vs Microsafe Express Pvt. Ltd Date of Judgment 17.05.2024 ( 16 of 17 ) (ii.) The plaintiff company is also awarded pendentelite and future interest @ 8 % per annum .
(iii.) Cost of the suit is also awarded in favour of the plaintiff company.
30. Decree sheet be prepared accordingly.
31. File be consigned to Record Room, as per rules.
(Rajesh Kumar Goel) District Judge (Commercial)-02 Central, Tis Hazari Courts 17.05.2024 Announced in the Open Court today i.e: 17.05.2024 CJ DARCL Logistics Ltd. vs Microsafe Express Pvt. Ltd Date of Judgment 17.05.2024 ( 17 of 17 )