Delhi District Court
M/S Deepak Road Lines vs The Masyc Projects Pvt Ltd on 24 December, 2016
IN THE COURT OF SH A. K. AGRAWAL CIVIL JUDGE01, WEST
DISTRICT, TIS HAZARI COURTS, DELHI
SCJ No. 610214/16
Date of institution of suit : 10.06.2011
Date of reservation of judgment : 20.12.2016
Date of announcement of judgment : 24.12.2016
M/s Deepak Road Lines
Through its Authorized Signatory
Flat No. 202, Plot No.1,
Bhanot PlazaI, D. B Gupta Road,
Pahargunj, New Delhi ........Plaintiff
Versus
The Masyc Projects Pvt Ltd,
20 Community Centre,
Mayapuri PhaseI,
New Delhi 110064 ......Defendant
SUIT FOR RECOVERY OF RS. 1,46,300/ WITH PENDENTE LITE
AND FUTURE INTEREST
In brief, the facts are that the plaintiff is a partnership firm and Mr.
Nitin Kumar Shah, who is its managing partner, has authorized Sh. Vishnu
Kumar Joshi, Manager of the said firm, to file the present suit and to sign and
execute all necessary documents. It is further stated that plaintiff is a bank
approved reputed transporter and doing transport business for more than two
decades. Defendant is a Private Limited company and is carrying on buisness
SCJ No. 610214/16/11 Deepak Roadlines Ltd. Vs. Masyc Projects Ltd. Page 1/13
of manufacturing and suppy of Belt Conveyor and machinery parts thereof, to
their buyers in India.
2 It is further stated that defendant had obtained an order from M/s
New Quest Corporation Ltd., vide purchase order No. CPO/MI/SEWA/64034
dated 01.05.2007 and PO No. REV No. 4418066/0 dated 06.12.2006 of total
amount of Rs. 49,03,719/. The plaintiff was nominated as transporter by M/s
New Quest Corporation Ltd and Ballarpur Industries Ltd, to transport the goods
from defendant's factory from Bahadurgarh to Jeypore, Orissa, as per the agreed
terms. The price included the transportation charges in the value of goods
supplied by defendant to M/s New Quest Corporation Ltd and the same was
payable by defendant exclusively to plaintiff, immediately on submission of
bills in this regard. Accordingly, the entire goods were transported by plaintiff
from defendant's factory at Bahadurgah and delivered to Ballarpur Industries
Ltd., Jeypore, Korput, Orissa, in terms of the purchase order and Lorry
Receipts.
3 It is further stated that as per the Lorry receipts, all the supplies
were made through Bank of India or on specific instructions of customer /
defendant. It was further stipulated in the Lorry receipts that door delivery was
to be made against the consignee copy. As per the agreed terms, the defendant
had to make payment to plaintiff immediately upon submissions of bills. The
plaintiff transported five consignments on various dates i.e. on 12.11.2007,
29.11.2007, 14.12.2007, 15.12.2007 and 17.12.2007 against lorry receipts no.
2217841, 2217843, 2217844, 2217845 and 2217846 respectively. All the Lorry
receipts were duly endorsed by Chief Manager, Bank of India Rajouri Garden,
Delhi. All goods were delivered at the destination to defendant's satisfaction.
SCJ No. 610214/16/11 Deepak Roadlines Ltd. Vs. Masyc Projects Ltd. Page 2/13
Thereafter plaintiff submitted all the bills to defendant for making payments
after delivery of goods.
4 It is further stated that against the said bills/invoices, plaintiff had
only received a sum of Rs. 75,000/ even though the total bills of transportation
of goods was worth Rs. 1,70,000/ and thus Rs. 95,000/ still remained unpaid
to the plaintiff. It is alleged that defendant had willfully failed to pay the above
sum of Rs. 95,000/ hence, they were also liable to pay interest @ 18% per
annum w.e.f. 05.01.2008 till date, as per the terms of freight charges invoices of
the said goods, coupled with the usage and custom of the trade. Further plaintiff
sent various reminders to defendant but even then they did not pay the
outstanding dues.
5 As per plaintiff, defendant had refused to make payment on the
ground that the plaintiff had failed to obtain 'Form C' from M/s New Quest
Corporation Ltd., and further stated that in case, plaintiff failed to obtain it
from the said company, the remaining amount payable to plaintiff will not be
paid. It is contended that as per the agreed terms, it was not the duty of plaintiff
/ transporter to collect 'C Form' from the consignee, which is given by
consignee and plaintiff had nothing to do with the same. As defendant avoided
payment, plaintiff sent a legal notice dated 28.02.2011 to defendant by way of
Registered AD post and UPC demanding the outstanding dues but no payment
had been received so far. Hence, this suit was filed against the defendant as a
last resort for recovery of the said amount alongwith interest.
6 Written statement was filed by defendant wherein the company has
taken a preliminary objection that the present suit was time barred since the
admitted case of plaintiff was that the goods were transported by it during the
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months of November & December 2007 and this suit had been filed by plaintiff
only in June 2007, hence beyond limitation period of three years.
7 It was further contended that the plaintiff had deliberately and with
fraudulent intentions, violated the basic principles of trade and has overlooked
the mandatory instructions conveyed to it by defendant. The defendant had
booked various machinery parts/goods etc. for transportation/despatch to M/s
Ballarpur Industries Ltd at Gagnapur, Jeypore, Korput, Orissa, between
01.11.2007 to 17.12.2007 and plaintiff was nominated as transporter of the
goods as its name was recommended by the main buyer M/s New Quest
Corporation Ltd., who had placed orders for purchase of goods from defendant.
It became clear at a later date that plaintiff and the buyer were in collusion with
each other and plaintiff had released the goods directly at the factory premises
of M/s Ballarpur Industries Ltd., without obtaining the consignee's copy of the
the Lorry Receipts due to which M/s Ballarpur Industries Ltd., did not get the
consignee's copy of the Lorry receipts released from its banker's in time. The
same was got released by M/s Ballarpur Industries Ltd., after a period of more
than three months from the respective due dates of different documents. They
(consignee company) also did not pay any interest for the delayed period and
also did not deposit the respective 'C Forms' with defendant which they were
liable to submit with the defendants, in lieu of the Sales tax exemption for the
goods. It is further contended that had the plaintiff insisted for production of
consignee's copies of respective lorry receipts before release of goods, the
buyers (consignee) would have made payment to their bankers in time and the
defendant would not have suffered losses on account of delayed payments made
by the buyers.
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8 It is further stated that as the documents were not got retired by the
buyers from its bankers even after expiry of the due dates, the defendant
company had written a letter dated 10.03.2008 to the buyers and the plaintiff
whereby defendant had specifically asked the plaintiff to book back the
materials as the documents were not retired by the buyers. However the plaintiff
failed to comply with the said instructions of defendant and did not lift back the
materials to defendant. Thereafter it came to the shocking notice of defendant
that the plaintiff had already released the goods to the buyers, without obtaining
the consignee's copy of the Lorry Receipts. After coming to know about such
illegal act on the part of plaintiff, defendant had refused to make the balance
payment to plaintiff in March, 2008 itself. In this connection, an email
message dated 15.05.2008 was also sent to plaintiff. It was denied that
defendant had made any acknowledgement of any amount due to the plaintiff.
Other averments made in the plaint were denied and prayer was made for
dismissal of the suit.
9 Replication was also filed by plaintiff wherein besides reiterating
the averments made in the plaint, plaintiff has further stated that it had
transferred goods from defendant's factory at Bahadurgarh to Ballarpur
Industries Ltd., Jeypore, Orissa in terms of the purchase orders and the lorry
receipts. All the said goods were delivered to consignee at Ballarpur Industries
Ltd., Jeypore, Orissa. However, no such instructions had been received by
plaintiff for collecting consignee copies of Lorry receipts before release of
goods. It is further stated that defendant had never asked the plaintiff to collect
the goods back and the dispute regarding alleged delayed payment by the
consignee to defendant, had nothing to do with plaintiff.
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10 On the basis of pleadings between the parties, vide Order dated
21.04.2012, following issues were framed :
1.Whether the plaintiff is entitled to the recovery of money of Rs. 1,45,300/ ? OPP
2. Whether the plaintiff is entitled to interest, if any. If so, at what rate and for what period ? OPP.
3. Whether the suit of the plaintiff is time barred ? OPD
4. Relief.
11 In plaintiff evidence, plaintiff has examined two witnesses PW1 is Sh. Vishnu Kumar Joshi, AR of plaintiff and PW2 is Sh. Mukesh Aggarwal, manager of M/s Ballarpur Industries Ltd. In their testimonies, following documents were exhibited: "Affidavit in evidence of PW 1 is Ex. PW 1/A wherein the averments made in plaint were reiterated, Authorization Letter issued in favour of PW1 is Ex.PW1/1, Invoices dated 05.01.2008, 09.02.2008, 09.02.2008, 04.03.2008, 22.04.2008 are Ex.PW1/2 to Ex.PW1/6 respectively, Copy of statement of outstanding dues is Ex.PW1/7, Letter dated 16.07.2008 is Ex.PW1/8, Office copies of letter dated 26.05.2009 and 26.06.2009 are Ex.PW1/9 to Ex. PW1/10, Copies of letter dated 01.04.2009 and 11.07.2009 are Ex.PW1/11 and Ex.PW1/12, Copy of letter dated 02.05.2008 is Mark A, Copy of letter dated 15.09.2008 is Ex.PW1/14, Copy of Legal Notice and acknowledgment are Ex.PW1/15 and Ex.PW1/16 respectively, copy of ledger account is Mark X, purchase order dated 10.03.2008 is Ex. PW 1/D1. The letter of authorization dated 04.03.2015 in favour of PW2 is Ex. PW 2/1 and details of payment made SCJ No. 610214/16/11 Deepak Roadlines Ltd. Vs. Masyc Projects Ltd. Page 6/13 to defendant w.e.f June, 2007 to April, 2008 is Ex. PW 2/2 ( colly).
12 Both plaintiff witnesses were crossexamined. Thereafter PE was closed.
13 In defendant evidence, defendant has examined its AR, Sh. S.S. Sachdev as DW1 being sole witness. In his testimony, following documents were exhibited :
" The affidavit in evidence of DW1 is Ex DW 1/A, GPA dated 29.11.2011 Ex. DW1/1, certified copy of board resolution dated 29.11.2011 is Ex. DW1/2, letter dated 10.03.2008 is already Ex. PW1/D1 (colly), Internet generated copy of email message dated 15.05.2008 is Mark A, details of losses caused to the defendant company is Mark B."
Defendant witness was crossexamined and thereafter DE was closed.
14 Final arguments were addressed on behalf of both the parties. Counsel for plaintiff has relied upon judgment of Hon'ble Delhi High Court in case titled as " Harsha Gupta vs Insulation & Electrical Products (P) Ltd. 183 (2011) DLT 557" and counsel for defendant has relied upon Judgment in "National Insurance Company Ltd. vs Seema Malhotra & Ors. Appeal ( Civil) 1350/2001 decided on 20.02.2001" decided by Hon'ble Supreme Court, in support of their contentions.
15 I have heard arguments from both sides and perused the evidence on record. My Issuewise findings are as follows: ISSUE NO 1 AND 2 SCJ No. 610214/16/11 Deepak Roadlines Ltd. Vs. Masyc Projects Ltd. Page 7/13
1. Whether the plaintiff is entitled to the recovery of money of Rs. 1,45,300/ ?
2. Whether the plaintiff is entitled to interest, if any. If so, at what rate and for what period ?
16 Both these issues are taken together as they are based on common facts and evidences. Hence, both the issues are decided together. Onus to prove these issues was upon the plaintiff.
17 As far as recovery of transportation charges is concerned, as per plaintiff, defendant had received the entire amount from consignee/purchaser towards the goods supplied by defendant to them. Further, transportation charges were included in the price of goods which was charged by the defendants. Though defendant has admitted having received entire payment towards supply of goods to M/s Balarpur Industries Ltd., however, in the written statement as well as in crossexamination of defendant's witness DW1, it was denied that the price of goods was included in the transportation charges. 18 In this regard, DW1 has admitted in his crossexamination that the company had received a letter from M/s Ballarpur Industries Ex. PW1/14 wherein it is clearly mentioned that the transportation expenses were included in the price of goods. PW2 has also testified to the same effect. Infact, the defendant has not denied the fact that transportation charges of plaintiff were to be paid by them (defendant). However the contention of defendant is that the plaintiff had supplied/released the goods directly at the factory premises of M/s Balarpur Industries Ltd, without obtaining consignee copy of the lorry receipts due to which its payment got delayed and it had to suffer losses. They also did not pay interest for the delayed period and also did not submit required 'C' Form SCJ No. 610214/16/11 Deepak Roadlines Ltd. Vs. Masyc Projects Ltd. Page 8/13 with the defendant. The contention of defendant was further that had plaintiff obtained the consignee copy of the lorry receipts before releasing goods, the buyer would have made payment in time and defendant would not have suffered losses on account of delayed payment. These were the reasons for withholding the payment and not that defendant was not liable to pay it. 19 So it is quite apparent that transportation of goods by plaintiff and the dues of plaintiff is admitted. There is also admission that defendant had withheld payment of plaintiff due to alleged noncompliance of certain terms and condition regarding transportation of goods. Hence, plaintiff was not required to prove either the delivery of goods at the behest of defendant, the amount of the bills as raised by it against defendant and the present outstanding dues being claimed by it against defendant. On the other hand, the onus was upon defendant to prove its contention regarding noncompliance of terms and conditions by plaintiff.
20 Perusal of the evidence filed by defendant shows that defendant has failed to prove its contentions. Defendant has failed to prove that there was any agreement between them and plaintiff which required plaintiff to obtain consignee copy before releasing the goods. Defendant has further failed to prove that there is a trade usage and custom whereby transporter is required to collect consignee copy from the buyer's bank, before delivery of goods. Defendant was required to prove the same since plaintiff had categorically denied its liability to obtain consignee copy from the bank before effecting delivery of goods. Since defendant failed to prove noncompliance on the part of plaintiff, the judgment in National Insurance Company (Supra) as being relied by defendant is not applicable to the facts in hand.
SCJ No. 610214/16/11 Deepak Roadlines Ltd. Vs. Masyc Projects Ltd. Page 9/1321 Plaintiff had also examined PW2, an official from M/s Ballarpur Industries Ltd who testified that M/s Ballarpur Industries Ltd had paid bank charges of Rs.40,591/ to the banker of defendant as interest for the delayed period. There is no rebuttal to the said contention of PW2 in the entire evidence of defendant. Though defendant had also filed one statement MarkB regarding alleged losses suffered by it on account of above default on the part of plaintiff but this document has not been proved as per law due to which it has remained unexhibited. So even the losses allegedly suffered by defendant is not proved.
22 It can further be seen that defendant has alleged in its written statement that M/s Ballarpur Industries Ltd also did not deposit 'C Form' in lieu of Sales Tax exemption for the goods supplied by defendant. However, DW1 has categorically admitted in his crossexamination that 'C Form' is to be supplied by consignee to whom the goods are delivered. Further transporter has nothing to do with 'C Form' and it is a matter solely between the seller and purchaser. Hence, from the above, it is quite apparent that plaintiff who is merely transporter, cannot be held liable for nonsupply of 'C Form' by M/s Ballarpur Industries Ltd to the defendant.
23 Further DW1 has also admitted the fact that defendant's company did not send any reply to the legal notice dated 28.02.2011 Ex. PW1/15 of plaintiff which is also an implied admission on the part of defendant regarding its liability towards the plaintiff. Reliance can be placed on Judgment titled as " Harsha Gupta ( supra)".
24 It appears from the evidence on record and from the respective contentions of the parties that plaintiff has become victim in a dispute which SCJ No. 610214/16/11 Deepak Roadlines Ltd. Vs. Masyc Projects Ltd. Page 10/13 was primarily between M/s Ballarpur Industries Ltd/New Quest Corporation Ltd. and the defendant regarding delivery of goods, delayed payment made towards the same, nonrelease/retiring of documents by the consignee/buyer and for non supply of 'C' Form. Defendant has admittedly withheld payment of plaintiff on account of default which may be primarily attributable to M/s Ballarpur Industries Ltd and not to plaintiff. Defendant has also not filed any counter claim regarding the alleged losses suffered by it which also supports the contention of plaintiff.
25 In my considered opinion, plaintiff is entitled to claim transportation charges on the basis of evidence on record. Interest as claimed by plaintiff is also justified, since this is a commercial transaction.
Both issues are accordingly decided in favour of plaintiff and against defendant.
Issue No. 3:
3. Whether the suit of the plaintiff is time barred ?
I will decide this issue firstly. The onus to prove this issue upon the defendant.
26 The contention of defendant is that the alleged transaction took place in the month of NovemberDecember 2007, whereas the present suit has been filed by plaintiff in the month of June 2011, much beyond the limitation period of three years. Hence, the suit was barred by limitation. Though it is not in dispute that the alleged transaction/transportation of goods by plaintiff took place in the month of NovemberDecember 2007, however, plaintiff is relying on one letter Ex. PW1/12 written by defendant to M/s New Quest Corporation Ltd (main purchaser) on 11.07.2009 whereby defendant had admitted that it had SCJ No. 610214/16/11 Deepak Roadlines Ltd. Vs. Masyc Projects Ltd. Page 11/13 withheld payment of plaintiff, as an acknowledgement of liability thereby granting fresh period of limitation.
27 As per Limitation Act, period of limitation commences from the date when the payment firstly becomes due and the limitation period is three years. In the present case, payment became due when the bills /invoices Ex. PW1/2 to Ex. PW1/6 were raised by the plaintiff against defendant. The last Invoice/bill Ex. PW 1/6 is dated 22.04.2008, so in all eventuality, the limitation period to file the suit shall commence from the said date, if not earlier. This suit has been filed on 08.06.2011, so from the date of last bill, the suit is beyond the limitation period.
28 However as far as extension of limitation period on the basis of letter Ex. PW1/12 dated 11.07.2009 is concerned, in said letter, defendant has admitted that it had withheld the payment of plaintiff towards transportation charges due to alleged noncompliance of terms and condition regarding delivery of goods, without getting endorsement of defendant's banker. Now as per section 18 of Limitation Act, the limitation period gets extended if before the expiry of prescribed period for filing of suit, an acknowledgement of liability is made in writing, signed by the party against whom any such right is claimed and a fresh period of limitation is computed from the date when the acknowledgment was so signed. Further as per the explanation to the section, even refusal to pay is also deemed to be a valid acknowledgement. 29 Even though in letter Ex. PW1/12, the defendant has allegedly refused to make payment however, it cannot be deemed to be a valid acknowledgment so as to extend the limitation period for the purpose of computing the date of commencement of limitation period. The reasons are two SCJ No. 610214/16/11 Deepak Roadlines Ltd. Vs. Masyc Projects Ltd. Page 12/13 fold. Firstly, the alleged letter Ex. PW1/12 does not bear the seal of defendant's company or signature of any of its responsible officer, as the said letter is unsigned. Moreover, the said letter is addressed to buyer M/s New Quest Corporation Ltd and not to the plaintiff. It is also not clear as to how the plaintiff came into possession of the said letter which is not even addressed to it. Plaintiff ought to have examined any official from New Quest Corporation Ltd. in order to prove this letter.
30 Under such circumstances, no fresh period of limitation would be computed from 11.07.2009 which is the date mentioned in the letter Ex. PW 1/12. Furthermore, the other letters exhibited by plaintiff regarding the non payment of dues of plaintiff, are issued prior to June, 2008. Hence they are not relevant for the purposes of extending limitation period as this suit is filed on 08.06.2011 only.
31 It is obvious that the suit has been filed beyond the limitation period. This issue is decided in favour of defendant and against plaintiff.
Relief.
32 In view of my aforesaid observations and findings, even though plaintiff is entitled to dues as claimed along with interest, however, since the suit has been filed beyond limitation period, the amount is not legally recoverable. Hence the suit stands dismissed. No order as to costs.
File be consigned to record room after due compliance.
Announced in the open court ( A.K. Agrawal)
on 24.12.2016 Civil Judge 01 ( West)/Delhi
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