Delhi District Court
M/S Dhanuka Laboratories Ltd vs M/S Jet Airways on 11 September, 2014
IN THE COURT OF SH. ARUN KUMAR: CIVIL JUDGE:
SOUTH WEST DISTRICT: DWARKA COURT: NEW DELHI
C.S No: 136/11
Unique case ID No: 2405C0370742011
IN THE MATTER OF
M/s Dhanuka Laboratories Ltd.,
7 K.M. Old Manesar Road,
Village Mohammedpur, Gurgaon
Haryana, India
Through its Managing Director
Sh. Manish Dhanuka
... Plaintiff
Versus
M/s Jet Airways
Through its Manager
Cargo Terminal
IGI Airport, New Delhi
Also at
Incoming Warehouse,
Old Steel Gate Side, Palam Road
New Delhi ... Defendant
Date of Institution : 22.12.2010
Date on which judgment was reserved : 08.08.2014
Date of pronouncing judgment : 11.09.2014
CS No. 136/11
Dhanuka Laboratories Vs. Jet Airways
Judgment dated: 11.09.2014 Page no. 1 / 29
SUIT FOR RECOVERY OF RS.2,77,627 (RUPEES TWO LAKHS
SEVENTY SEVEN THOUSAND SIX HUNDRED TWENTY
SEVEN.
JUDGMENT
1. By the present judgment, I will dispose of the suit filed by the plaintiff against the defendant M/s Jet Airways for recovery of Rs.2,77,627/. Case of the plaintiff as per the plaint is that the plaintiff is a manufacturer and exporter of bulk drugs and in the course of its business received an order for supply of 25 kg of Cefixime Trihydrate BP USP from M/s Nepa Pharmaceuticals Ltd., Bangladesh on 30.01.2010. The aforesaid drug weighing 25 kg net (gross weight 28 kg) was dispatched by the plaintiff vide their export invoice no. SO/EXP/0910/0147 dated 13.02.2010 through the defendant vide Airway bill dated 15.02.2010 bearing no. 58913112945 after prepaying the freight charges. Aforesaid Airway Bill, according to the plaintiff, was issued by the authorized agent of the defendant CS No. 136/11 Dhanuka Laboratories Vs. Jet Airways Judgment dated: 11.09.2014 Page no. 2 / 29 M/s Perfect Cargo Movers Pvt. Ltd. Thereafter, the plaintiff issued a certificate of analysis and excise invoice dated 16.02.2010 confirming the value as per the contract with the buyer as the full export value. The aforesaid consignment, according to the plaintiff, was very important in as much as it contained life saving bulk drugs and the aforesaid fact was duly brought to the notice of booking office of the defendant at the time of booking of the consignment for shipment. According to the plaintiff, it was also brought to the notice of the defendant that in the eventuality of any delay in delivery of consignment, the consignment was likely to be rejected and the defendant would have been liable for any loss suffered on account of not delivering the consignment in time. It is further the case of the plaintiff that the aforesaid consignment could not reach its destination due to negligence on the part of the defendant in handling the same. The plaintiff has further alleged that the aforesaid consignment has been misappropriated by the CS No. 136/11 Dhanuka Laboratories Vs. Jet Airways Judgment dated: 11.09.2014 Page no. 3 / 29 defendant. According to the plaintiff, the defendant has further failed to issue a Lost Certificate despite the specific request in this regard by M/s Asiatic Logistics Pvt. Ltd., agent of the plaintiff so as to enable the plaintiff to lodge a claim for the losses suffered by the latter. Further letter dated 16.03.2010 was addressed by the plaintiff to the defendant in this regard. However, according to the plaintiff, since no response was forthcoming from the defendant, a legal notice dated 20.05.2010 was served upon the defendant by the plaintiff thereby demanding a sum of US$ 11,250 alongwith interest at the rate of 18 per cent per annum towards principal amount as well as the damages. No reply to the aforesaid notice was received by the plaintiff nor the defendant has made good the losses of the plaintiff and accordingly the present suit was filed by the plaintiff for recovery of aforesaid amount against the defendant.
2. Defendant has filed its written statement after receipt of summons of the suit from this court. In the aforesaid written CS No. 136/11 Dhanuka Laboratories Vs. Jet Airways Judgment dated: 11.09.2014 Page no. 4 / 29 statement, the defendant has not denied that the goods were dispatched by the plaintiff through the defendant vide airway bill dated 15.02.2010, however, according to the defendant, the plaintiff has not brought out the fact of consignment being important and the same being life saving bulk drugs to the notice of the defendant. It has further been denied by the defendant that plaintiff has ever brought to the notice of defendant that in the eventuality of any delay in the delivery, consignment was likely to be rejected and defendant would be liable for any losses suffered by the plaintiff on account of non delivery of consignment in time. It is further the case of the defendant that the cargo including the consignment in question was handled by Biman Bangladesh Airlines and they had given a short landing letter. According to the defendant, any mishandling by Biman Bangladesh Airlines cannot be attributable to the defendant. It is further the case of the defendant that in view of the fact that cargo handling was done CS No. 136/11 Dhanuka Laboratories Vs. Jet Airways Judgment dated: 11.09.2014 Page no. 5 / 29 by Bangladesh Airlines, chances of their having misplaced the shipment cannot be ruled out and the question of defendant issuing any lost certificate to the plaintiff does not arise at all. The defendant has also denied the receipt of any of the notices issued by the plaintiff or its agent. Even otherwise, according to the defendant, even if there was any lapse on the part of the defendant, the liability of the defendant is limited to the payment of 17 drawing rights per kg as per Section 22 (3) of the Carriage by Air (Amendment) Act, 2009 and the suit of the plaintiff for recovery of Rs. 2,77,627/ is not maintainable.
3. Thereafter, replication was filed on behalf of the plaintiff to the aforesaid written statement wherein the plaintiff has reiterated the stand taken by it in its plaint. The plaintiff in its replication has relied upon Rule 25 of Second Schedule of Carriage By Air Act, 1972 to allege that the provision regarding limited liability of a carrier in terms of Rule 22 shall not apply to the present case as the damages have resulted due to negligent handling of CS No. 136/11 Dhanuka Laboratories Vs. Jet Airways Judgment dated: 11.09.2014 Page no. 6 / 29 the consignment by the defendant. According to the plaintiff, the defendant has not only been negligent but is also guilty of misappropriating the goods of the plaintiff.
4. On the basis of the pleadings of the parties following issues were framed by Ld. Predecessor of this court vide order dated 07.05.2013:
(i) Whether the shipment/ goods in question were lost while in possession of the defendant? OPP.
(ii) Whether the plaintiff brought to the notice of the defendant about the special damages/ nature of consignment or not? OPP.
(iii) Whether the liability, if so, at all of the defendant is limited as per Section 22 (2) (a) of second schedule of the Carriage By Air Act 1972 as amended by Amendment Act of 2009 (Sic Section 22 (3) of Carry by Air (Amendment) Act 2009)? OPD.
(iv) Whether the plaintiff is entitled to recovery of Rs.
CS No. 136/11 Dhanuka Laboratories Vs. Jet Airways Judgment dated: 11.09.2014 Page no. 7 / 29 2,57,062.50 as principle amount from the defendant? OPP.
(v) Whether the plaintiff is entitled to presuit interest at the rate of 12 per cent per annum amounting to Rs.20,565/. OPP.
(vi) Relief.
5. Thereafter, the matter was fixed for plaintiff's evidence. AR of the plaintiff has examined himself as PW1. He was duly cross examined and discharged. Thereafter, on a separate statement of AR of plaintiff, PE was closed vide order dated 04.04.2014.
6. It was submitted on behalf of the defendant that defendant does not wish to lead any evidence in support of its case and accordingly, on a separate statement of counsel for defendant, DE was closed vide order dated 04.04.2014 and matter was fixed for final arguments.
7. Final arguments were heard on behalf of both the parties.
Besides, written submissions were filed on behalf of both the CS No. 136/11 Dhanuka Laboratories Vs. Jet Airways Judgment dated: 11.09.2014 Page no. 8 / 29 parties. It is submitted by counsel for plaintiff that plaintiff has been able to prove on record the dispatch of consignment by the plaintiff to the consignee through the defendant and that the goods have been lost by the defendant while in its custody and as such plaintiff is entitled to decree for a sum of Rs.2,77,627/ being value of consignment including freight charges and pre suit interest @ 12 % per annum against the defendant since the defendant has failed to discharge its onus to prove issue no. 3 that its liability is limited as per Rule 22 (2) (a) of Second Schedule of Carriage By Air Act, 1972 as amended by Carriage by Air (Amendment) Act, 2009(hereinafter referred to as the Act).
8. Counsel for plaintiff has relied upon the judgment of Hon'ble Delhi High Court in M/s Surya Pharmaceuticals Limited Vs. M/s Air India Limited dated 19.08.2008 in support of his submission that the defendant cannot limit its liability beyond the limit prescribed in Carriage by Air Act, 1972 and Rule 22 is CS No. 136/11 Dhanuka Laboratories Vs. Jet Airways Judgment dated: 11.09.2014 Page no. 9 / 29 not attracted to the present case in view of application of Rule 25 of Second Schedule of Carriage By Air Act, 1972.
9. On the other hand, it is submitted by counsel for defendant that the plaintiff had failed to prove on record that there was any privity of contract between the parties in as much as admittedly the plaintiff had never been dealing with the defendant directly. As such, according to him, there is no question of the plaintiff giving any notice to the defendant regarding the importance of the consignment and regarding the losses to be suffered by the plaintiff on account of nondelivery of consignment in time. Besides, according to him, since the plaintiff has failed to declare the value of consignment for the purposes of carriage, as is clear from a bare perusal of Airway Bill Ex PW 1/6, the defendant has been able to discharge its onus that liability of the defendant, if any, is limited as per Rule 22 (2) (a) of the Second Schedule of the Act. It has also been submitted on behalf of the defendant that issue regarding nonapplicability of Rule 22 in CS No. 136/11 Dhanuka Laboratories Vs. Jet Airways Judgment dated: 11.09.2014 Page no. 10 / 29 view of the provisions contained in Rule 25, sought to be raised by the plaintiff in its replication and written arguments, has never been framed by the court and as such the defendant cannot be expected to prove the negative that there was no negligence on the part of the defendant. Counsel for defendant has relied upon Five Judge Bench decision of National Consumer Disputes Redressal Commission in FA No. 451 of 1994 dated 20.04.2001 in support of his submission that the damages cannot be awarded by this court beyond the limitation imposed by Rule 22 and that in order to attract the provisions of Rule 25, the plaintiff is bound to prove the intention on the part of the defendant to cause damage which is something more than routine negligence. Defendant has also relied upon another judgment of National Consumer Disputes Redressal Commission in RR no. 830 of 2001 dated 16.02.2006 in support of his above submission.
10.I have heard the submissions made on behalf of the parties and CS No. 136/11 Dhanuka Laboratories Vs. Jet Airways Judgment dated: 11.09.2014 Page no. 11 / 29 have perused the record. My issue wise findings on the issues framed vide order dated 07.05.2013 are as follows: Issue No. 1: Whether the shipment/ goods in question were lost while in possession of the defendant? OPP.
11. The case of the plaintiff as proved on record is that the goods were duly air lifted by the defendant from IGI Airport for its delivery to the consignee vide Airway Bill Ex PW 1/6. The aforesaid stand of the plaintiff has not been controverted by the defendant during the cross examination of PW1, though, the defendant has tried to raise the issue regarding absence of any privity of contract between the plaintiff and the defendant. I do not find any force in the aforesaid submission made on behalf of the defendant that there was no privity of contract between the plaintiff and the defendant in view of the Airway Bill Ex PW 1/6 which has been duly proved by the plaintiff and has never been disputed by the defendant. It is correct that the plaintiff has approached the agent of the defendant M/s Perfect CS No. 136/11 Dhanuka Laboratories Vs. Jet Airways Judgment dated: 11.09.2014 Page no. 12 / 29 Cargo Movers Pvt. Limited through its agent M/s Overseas Freight Movers, however, in view of the fact that admittedly M/s Overseas Freight Movers was the agent of plaintiff and M/s Perfect Cargo Movers Pvt. Limited was the agent of the defendant, there was definitely a privity of contract between the plaintiff and the defendant which is apparent on the face of Airway Bill Ex PW 1/6 which constitutes the contract between the plaintiff and the defendant duly executed through their agents.
12. Though the defendants has sought to raise a plea that the goods in question were lost while in possession of a third party i.e. M/s Biman Bangladesh Airlines and due to mishandling by the latter, however, no evidence to this effect has been led on behalf of the defendant. Besides, there is no explanation in the entire pleadings of the defendant as to how the goods had come into the possession of M/s Biman Bangladesh Airlines when the defendant had agreed to deliver the same to the consignee as CS No. 136/11 Dhanuka Laboratories Vs. Jet Airways Judgment dated: 11.09.2014 Page no. 13 / 29 per the contract Ex PW 1/6. In my considered opinion, even if the case of the defendant regarding the goods at the time of loss being in possession of M/s Biman Bangladesh Airlines is assumed to be correct for the sake of arguments, still the same shall be deemed to be in constructive possession of the defendant so long as the same are not delivered to the consignee and the defendant cannot wriggle out its liability on account of loss of the goods by shifting the same to some other third party with whom the plaintiff does not have any privity of contract. Admittedly, the goods were never delivered to the consignee nor the same have ever been returned to the plaintiff. In view of the aforesaid discussion, in my considered opinion, the plaintiff has been able to prove that shipment/ goods in question were lost while in possession of the defendant. This issue is, accordingly, decided in favour of the plaintiff and against the defendant. Issue no. 2: Whether the plaintiff brought to the notice of the defendant about the special damages/ nature of consignment or not? OPP.
CS No. 136/11 Dhanuka Laboratories Vs. Jet Airways Judgment dated: 11.09.2014 Page no. 14 / 29
13. The onus to prove the aforesaid issue was upon the plaintiff.
However, in my considered opinion, the plaintiff has failed to discharge the aforesaid onus. Admittedly, the plaintiff was not directly dealing with the defendant and he was dealing with the defendant only through its agent M/s Asiatic Logistics and the order for dispatch of the goods in question to the consignee was placed by the plaintiff with M/s Asiatic Logistics. During his crossexamination, it has been admitted by PW1 that notice of special purpose of the consignment being of important nature was given by him to his agent M/s Asiatic Logistics. A bare perusal of document Ex PW 1/5 shows that no such notice in writing had been given by the plaintiff to its agent. Even otherwise, whether or not the aforesaid notice was given by M/s Asiatic Logistics to the defendant has not been proved on record by the plaintiff by examining any witness from M/s Asiatic Logistics. The aforesaid issue is, accordingly, decided in favour CS No. 136/11 Dhanuka Laboratories Vs. Jet Airways Judgment dated: 11.09.2014 Page no. 15 / 29 of the defendant and against the plaintiff, though in my considered opinion, the said issue in itself is irrelevant in view of the fact that no special damages beyond the value of consignment and freight charges has been claimed by the plaintiff in the present suit.
Issue no. 3: Whether the liability, if so, at all of the defendant is limited as per Rule 22 (2) (a) of Second Schedule of Carriage By Air Act 1972 (as amended by Amendment Act of 2009)? OPD.
14. At the outset, it is clarified that though the defendant has referred to Section 22 (3) of the Carriage by Air (Amendment) Act, 2009, however, no such Section exists in the Act. It is significant to note here that the relevant statute is 'The Carriage by Air Act, 1972' as amended by the Amendment Act of 2009. The aforesaid Act consists of 8 Sections, 3 schedules and an annexure consisting of three parts. Since in the present case the place of departure and place of destination of the carriage are situated within the territories of two high contracting parties i.e CS No. 136/11 Dhanuka Laboratories Vs. Jet Airways Judgment dated: 11.09.2014 Page no. 16 / 29 India and Bangladesh as stated in Part II of the annexures, Rules contained in second schedule to the Act are attracted by virtue of Section 4 of the Act read with Rule 1 of the second schedule and not the rules contained in third schedule. As such any reference to Section 22 (3) of the Carriage by Air Amendment Act 2009 by the defendant shall be taken to be a reference to Rule 22 (2) (a) of the Second Schedule of the Carriage by Air Act, 1972 as amended up to date.
15. Now coming to the aforesaid issue no. 3. The onus to prove the aforesaid issue was upon the defendant. Defendant has not led any evidence on the aforesaid issue and it has relied upon the evidence adduced by the plaintiff and cross examination of PW1 to submit that defendant has successfully discharged the aforesaid onus.
16. It is submitted by counsel for the defendant that admittedly the plaintiff has failed to declare the value of the consignment either for the purposes of custom or for the purposes of CS No. 136/11 Dhanuka Laboratories Vs. Jet Airways Judgment dated: 11.09.2014 Page no. 17 / 29 carriage. It has further been admitted by PW1 that the value was not declared as it would have entailed additional financial burden on the plaintiff in the form of special charges contemplated under Rule 22.
17. In view of the aforesaid admitted position, it is submitted by counsel for defendant that liability of the defendant, if any, for loss of goods towards plaintiff is limited to 17 drawing rights per kg. (as per Rule 22(2)(a) of the Second Schedule it should have been 250 francs per Kilogram).
18. On the other hand, it is submitted by counsel for plaintiff while relying on the judgment of Hon'ble Delhi High Court in Surya Pharmaceuticals Ltd. case (supra) that the defendant has failed to discharge its onus to prove that the present case is covered by Rule 22 of the Act. It is submitted by him that compliance of all the remaining rules of the second schedule of the Act by the defendant is a precondition for limiting the liability of defendant in terms of Rule 22 thereof. According to CS No. 136/11 Dhanuka Laboratories Vs. Jet Airways Judgment dated: 11.09.2014 Page no. 18 / 29 him, the present case is covered by the provision of Rule 25 which is an exception to Rule 22. He further submits that in view of specific averments/ deposition by PW1 regarding negligent handling by the defendant of consignment in question and its misappropriation, it was incumbent upon the defendant to prove on record that it had exercised due care and caution in handling the consignment as required by Rule 20 of the Second Schedule of the Act, however, the defendant has failed to lead any evidence in this regard and as such he cannot take the benefit of limited liability clause in Rule 22.
19. I have heard the submissions made on behalf of the parties and have perused the record. I have also carefully gone through the judgments relied upon by the parties.
20. No doubt, the facts of the case in Surya Pharmaceuticals (supra) were different from the facts of the present case, however, some of the proposition of law set forth in the aforesaid judgment are worth quoting and will have an CS No. 136/11 Dhanuka Laboratories Vs. Jet Airways Judgment dated: 11.09.2014 Page no. 19 / 29 important bearing on the issue arising before this court.
21. It has been held in the aforesaid judgment that Rule 22 is subject to the remaining rules of second schedule of the Act and before the defendant/ carrier can be allowed to take benefit of the said Rule 22 he must show that he has complied with the requirements contained in remaining rules and that his case does not fall within any rule which excludes the application of Rule 22. eg. Rule 25 in the present case. The duty of the carrier to exercise due care and caution in handling the goods entrusted to it is the same as the duty of a bailee of goods and the said duty is embodied in Rule 20 of Second Schedule of the Act. In case the plaintiff/ shipper alleges negligence / misappropriation the onus to prove that the carrier acted with due care and caution is upon the carrier so as to bring his case within the four corners of Rule 22 (2) (a).
22. In view of the aforesaid prepositions, in my considered opinion, once an issue regarding applicability of Rule 22 (2) (a) CS No. 136/11 Dhanuka Laboratories Vs. Jet Airways Judgment dated: 11.09.2014 Page no. 20 / 29 is framed by the court and onus to prove the same is placed on defendant, no issue regarding the defendant being not negligent in terms of Rule 25 was required to be specifically framed, particularly when, the defendant has not specifically denied the allegations of the plaintiff regarding being negligent in handling the goods and having misappropriated the same in his WS.
23. The plaintiff has specifically denied the averments of the defendant regarding its liability being limited in terms of Rule 22 in his replication and has referred to provisions of Rule 25 and as such the defendant had clear notice of the case he was required to meet while discharging its onus to prove issue no. 3 and as such no prejudice has been caused to defendant by non framing of a specific issue. The whole case of defendant as per written statement is even if the defendant was negligent or have misappropriated the goods, still its liability was limited to 17 drawing rights per kg (as per the provisions of Rule 22 (2) (a) of Second Schedule, it should have been 250 Francs per kg).
CS No. 136/11 Dhanuka Laboratories Vs. Jet Airways Judgment dated: 11.09.2014 Page no. 21 / 29
24. The plaintiff has specifically mentioned in his plaint that defendant was negligent in handling the cargo and has misappropriated the goods which has not been specifically denied by the defendant it its WS and the denial, if at all there is any, is evasive and as such the said averments can be deemed to have been admitted by the defendant. In view of settled law that facts admitted need not be proved, no issue was required to be framed placing the onus on the defendant. This is besides the fact that issue no. 3 is comprehensive enough to require the defendant to prove that it has taken due care and caution in handling the goods and has not misappropriated the goods.
25. Even otherwise, PW1 has categorically deposed about defendant being negligent and having misappropriated the goods and the said testimony of the PW1 remained un controverted. The overall onus of the plaintiff to prove its case was discharged, the moment, the said deposition of the PW1 remained uncontroverted and in the absence of proof by the CS No. 136/11 Dhanuka Laboratories Vs. Jet Airways Judgment dated: 11.09.2014 Page no. 22 / 29 defendant that it had exercised due care and caution while handling the cargo, it was not expected of the plaintiff that he should lead any further evidence in this regard. It is even otherwise not possible for the plaintiff to lead any further evidence in this regard since once the goods were handed over by the plaintiff to defendant for delivery to consignee, the plaintiff had no access to the goods and could not lead evidence about the manner in which the same were handled by the defendant. The said fact, being within the special knowledge of the defendant, the onus was upon the defendant to prove the same in terms of Sec. 106 of the Evidence Act.
26. There cannot be any dispute regarding the preposition of law set forth in the judgments of NCDRC relied upon by the defendant that a 'willful' act differs essentially from a 'negligent' act. Similarly, there is no dispute that the terms 'reckless' and 'negligent' do not connote same meaning. However, in my considered opinion, the term misappropriation connotes CS No. 136/11 Dhanuka Laboratories Vs. Jet Airways Judgment dated: 11.09.2014 Page no. 23 / 29 intention to cause damage as required by Rule 25. None of the judgments relied upon by the defendant assists the case of the defendant in as much as in the said cases the only averment made by plaintiff/ complainant was regarding the carrier being negligent and there was no allegation of misappropriation of the goods by the carrier in the said complaint. However, as has already been observed hereinabove, in the present case there are not only specific allegations of misappropriation of goods by the defendant but the said allegations have remained uncontroverted. Thus the present case is squarely covered by provision of Rule 25 and as such application of limited liability clause contained in Rule 22 (2) (a) stands excluded. It has already been held by Hon'ble Delhi High Court that carrier can't limit his liability beyond what has been prescribed in the aforesaid rules. Thus, in my considered opinion, the defendant has failed to discharge the onus that its liability in terms of Rule 22 (2) (a) of the Second Schedule of the Act was limited to 250 CS No. 136/11 Dhanuka Laboratories Vs. Jet Airways Judgment dated: 11.09.2014 Page no. 24 / 29 francs per Kilogram and as such Issue no. 3 is decided in favour of the plaintiff and against the defendant.
Issue no. 4: Whether the plaintiff is entitled to recovery of Rs.
2,57,062.50 as principle amount from the defendant? OPP.
27. Onus to prove the aforesaid issue was on the plaintiff. The plaintiff has categorically deposed that the value of the goods as per the invoice was US $ 5625 equivalent to Rs. 2,54,200.31/. The plaintiff has further deposed that the freight charges were Rs. 2862/. The plaintiff has also proved the value of goods and freight charges through documents Ex PW 1/5 (colly), Ex PW 1/6, Ex PW 1/8, Ex PW 1/10 (colly) and Ex PW 1/11. The aforesaid testimony of the PW1 has remained uncontroverted. The plaintiff has also proved that goods have been lost while the same were in possession of defendant. Defendant has failed to prove that its liability was limited under Rule 22 (2) (a). As such plaintiff is entitled to recovery of Rs.2,57,062.50 being invoice value of goods alongwith freight charges and as such CS No. 136/11 Dhanuka Laboratories Vs. Jet Airways Judgment dated: 11.09.2014 Page no. 25 / 29 Issue no. 4 is decided in favour of the plaintiff and against the defendant.
Issue no. 5 : Whether the plaintiff is entitled to presuit interest at the rate of 12 per cent per annum amounting to Rs.20,565/.OPP.
28. The onus to prove the aforesaid issue was upon the plaintiff. It has been specifically deposed by PW1 in his affidavit that the defendant has been illegally withholding the amount of Rs. 2,57,062.50 being a justified claim of the plaintiff and has rendered itself liable to pay interest at the rate of 16 per cent per annum which is the rate of interest charged by the bank. However, the plaintiff has restricted its claim of interest @ 12 per cent per annum from 16.02.2010 till the date of the suit which comes out to Rs.20,565/. Aforesaid testimony of the PW1 regarding the rate of interest charged by the banks being 16% p.a. has remained uncontroverted. Though, in my considered opinion, the plaintiff has proved that the aforesaid amount of Rs. 2,57,062.50/ was unjustifiably withheld by the CS No. 136/11 Dhanuka Laboratories Vs. Jet Airways Judgment dated: 11.09.2014 Page no. 26 / 29 defendant for a considerable period, however, the plaintiff has failed to justify his claim for presuit interest w.e.f. 16.02.2010. It is pertinent to note herein that the consignment was booked by the plaintiff with the defendant vide airway bill dated 15.02.2010 whereafter the goods were airlifted by the defendant. The plaintiff has for the first time raised the demand for the value of goods against the defendant vide its legal notice dated 20.05.2010 which was dispatched by it vide Regd. AD dated 24.05.2010. No AD card as a proof of delivery of said legal notice to the defendant has been placed on record by the plaintiff. Though, the defendant has denied the receipt of any such legal notice, however, in view of the fact that the plaintiff has proved the dispatch of the same through registered post after prepaying the postal charges the notice must be deemed to have been delivered to the defendant in due course latest by 31.05.2010 since the same was to be delivered within the same city, in view of provisions of Section 27 of the General Clauses CS No. 136/11 Dhanuka Laboratories Vs. Jet Airways Judgment dated: 11.09.2014 Page no. 27 / 29 Act read with Section 114 of the Indian Evidence Act. The defendant, through the aforesaid notice, was called upon to pay the aforesaid principal amount within 15 days from the date of receipt of notice. However, the defendant unjustifiably withheld the same. As such, in view of the aforesaid facts, in my considered opinion, the plaintiff is entitled to presuit interest on the principal amount of Rs. 2,57,062.50/ @ 12% p.a. w.e.f. 16.06.2010 till the date of filing of the present suit i.e. 21.12.2010. As such this issue is decided partly in favour of the plaintiff and against the defendant.
Issue no. 6: Relief.
29. In view of my findings on the aforesaid issues, a decree in sum of Rs. 2,57,062/ towards invoice value of the goods inclusive of freight charges is passed in favour of the plaintiff and against the defendant. A further decree for presuit interest at the rate of 12 per cent per annum on the aforesaid sum of Rs. 2,57,062/ w.e.f. 16.06.2010 till the date of filing of the present suit i.e. CS No. 136/11 Dhanuka Laboratories Vs. Jet Airways Judgment dated: 11.09.2014 Page no. 28 / 29 21.12.2010 is passed in favour of plaintiff and against the defendant. A decree for interest @ 12% p.a. On the aforesaid adjudged sum from the date of filing of the suit till the date of decree is also passed in favour of the plaintiff and against the defendant. A further Interest @ 6% p.a. on the aforesaid amount is also awarded in favour of the plaintiff and against the defendant from the date of decree till the date of realization. Costs of the suit are also awarded in favour of the plaintiff and against the defendant. Decree sheet be prepared accordingly. Announced in the open court on this 11th day of September, 2014 This order consists of twenty nine signed pages.
(Arun Kumar)
Civil Judge(SW)/Dwarka Courts
New Delhi/11.09.2014
CS No. 136/11
Dhanuka Laboratories Vs. Jet Airways
Judgment dated: 11.09.2014 Page no. 29 / 29