Delhi District Court
Aai Cargo Logistics And Allied Services ... vs Courier N Cargo Alliance And Anr on 27 April, 2024
IN THE COURT OF SH. SANJAY JINDAL,
DISTRICT JUDGE (COMMERCIAL COURT)04,
WEST, TIS HAZARI COURTS DELHI
CS (Comm) No.532/2021
AAI Cargo Logistics And Allied Services Ltd.
Registered office at
Hanger No. 1, Belmen Building,
Safdarjng Airport, New Delhi110003.
Email: coo[email protected]
Mob: 9840571117
................. Plaintiff
Versus
1. Courier N Cargo Alliance
4/1, GF, West Patel Nagar,
New Delhi110064
Email: [email protected],
[email protected]
Mob: 9810042544.
2. Nitesh Chadha
Proprietor
Courier N Cargo Alliance
Registered Office At
4/1, GF, West Patel Nagar,
New Delhi110064.
Email: [email protected],
[email protected]
Mob: 9810042544.
................. Defendants
CS (Comm) No. 532/2021 Page No. 1/32
AAI Cargo Logistics & Allied Services Ltd. Vs. Courier N Cargo Alliance & Anr.
Date of filing of the suit : 10.11.2021
Date of hearing of arguments : 22.04.2024
Date of Judgment : 27.04.2024
COMMERCIAL SUIT FOR RECOVERY OF RS. 28,97,140/
(RUPEES TWENTY EIGHT LAKHS NINETY SEVEN
THOUSANDS ONE HUNDRED FORTY ONLY) WITH
INTEREST.
JUDGEMENT
1. This is a commercial suit filed by plaintiff for recovery of 28,97,140/ (Rupees Twenty Eight Lakhs Ninety Seven Thousand One Hundred Forty only) alongwith interest against the defendants.
2. Brief facts of the case are that the plaintiff namely Airports Authority of India Cargo Logistic & Allied Services (AAICLAS) has been incorporated under the Companies Act 2013 and same is a 100% subsidiary of Airport Authority of India having its head quarter at Safdarjang Airport, Delhi. Further, the plaintiff is having cargo offices at all the airports controlled by the Airports Authority of India. The present suit has been filed through Mr. Selvakumar, the Chief Operating Officer of plaintiff company.
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3. Further, that the defendant no. 1 namely M/s Courier N Cargo Alliance is a cargo service provider and has been operating at Netaji Subhash Chandra Bose International Airport, Kolkata (NSCB International Airport). The defendant no. 1 had been granted a trade license by Bidhanagar Municipal Corporation Kolkata and has been operating at above airport as a courier service provider. The defendant no. 2 is the sole proprietor of defendant no. 1.
4. It is submitted by the plaintiff that the plaintiff is a cargo terminal operator and its functions are to handle cargo operations at various airports run by Airport Authority of India across the country and it has been acting as a custodian appointed by the Customs Authority for air cargo operations at various airports. The defendant no. 1 was registered as a courier firm with the plaintiff company at NSCB International Airport, Kolkata vide letter dated 15.02.2017 and accordingly, on 16.02.2017 the plaintiff company opened a PreDeposit Account (PDA), for import of goods of the defendant. Pursuant to the opening of the account, the defendant regularly had transactions at the above airport.
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5. It is further contended in the plaint that as per arrangement, the defendant's consignments would arrive and after completing the necessary formalities and payment of demurrage charges, the defendant would get its consignments released after issuance of gate pass. It is also mentioned in the plaint that the free period for demurrage was reduced from five working days to 72 hours by the Ministry of Civil Aviation vide order dated 28.09.2007 and the same was valid upto 31.03.2017. Such free period was granted to the importers for the purposes of storage of cargo from the actual time of arrival (ATA) of the flight. Thereafter, amendments were issued by the Ministry w.e.f. 01.04.2017 whereby the free period was reduced from 72 hours to 48 hours from the date and time of segregation for all cargo terminal operators across the country.
6. It is further claimed that as per section 13 of the Airports Economic Regulatory Act 2008, the Airports Economic Regulatory Authority is competent to determine the tariff for aeronautical services. It is explained that demmurrage charges are applicable to an importer when he fails to take the delivery of the consignments within the stipulated free period and such charges are calculated on a CS (Comm) No. 532/2021 Page No. 4/32 AAI Cargo Logistics & Allied Services Ltd. Vs. Courier N Cargo Alliance & Anr. per day basis and would keep on accruing until the delivery of the consignment is taken. The Indian Customs Electronic Gateway (ICEGATE) is the national portal of Indian Customs and Central Board of Indirect Taxes that provides efiling services to the trade, cargo carriers and other trading partners electronically.
7. It is further case of the plaintiff that as per the procedure setup by the plaintiff company in terms of the statutory requirements, the cargo service providers are bound to follow a system for release of its consignments and the said systems involves multiple parties i.e. Airlines, Appointed Ground Handling Agency (GHA), Customs Department and the plaintiff company. The procedure is explained in para 16 of the plaint.
8. It is contended by the plaintiff that in ordinary course of business 11 consignments of the defendant arrived by flight at the NSCB International Airport, Kolkata from various international airports through airway bills between the period from 04.06.2017 to 13.06.2017. The said goods were then segregated by the Appointed Ground Handling Agency into several packages as per the weight taken on spot and CS (Comm) No. 532/2021 Page No. 5/32 AAI Cargo Logistics & Allied Services Ltd. Vs. Courier N Cargo Alliance & Anr. they were segregated into various batches and the time was duly registered. Thereafter the import tax invoice/bank challans were generated from the Integrated Cargo Management System (ICMS). Payment of the charges indicated on invoices was made by the defendant and accordingly gate pass was issued and the goods were released. Details of above mentioned 11 consignments are given in para 20 of the plaint.
9. It is alleged that while going through the financial updates for the year 2017 alongwith some input from reliable sources, on 28.08.2018 the audit team of the plaintiff company discovered that the defendant herein had shown lessor number of days for having kept the consignments in the storage whereas the number of days were much higher than as reflected in the import tax invoice and gate pass. This meant that the demurrage charges shown in the import tax invoice were lesser than the amount actually due towards demurrage charges. It is alleged that the import tax invoices were manipulated by registering lesser number of days and the defendant has succeeded in making lower payment towards demurrage charges for the 11 consignments.
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10. By giving details of different invoices and explaining the alleged manipulations qua such invoices, the plaintiff has contended that defendant has made a total short payment of demurrage charges, against airways bills, amounting to Rs. 28,97,140/. It is alleged that the defendants failed to respond despite various efforts made by the plaintiff to get in touch with them and their office premises was also found to be shut and locked. Thereafter the plaintiff came to know that the defendant had shifted its operations and office to Delhi. Then, legal notice dated 30.04.2020 was issued to the defendant followed by another notice dated 24.06.2020 but to no avail.
11. It is also mentioned in the plaint that similar type of manipulations were found to be done by other cargo service provider namely M/s Ryan Logistic and after service of notice the said service provider had admitted the short payment and they accordingly made the payment of such short amount. It is claimed that plaintiff is entitled to full payment of actual demurrage charges from the defendant as the defendant has utilized the services of plaintiff and failed to pay full demurrage charges. The total liability of the CS (Comm) No. 532/2021 Page No. 7/32 AAI Cargo Logistics & Allied Services Ltd. Vs. Courier N Cargo Alliance & Anr. defendant is stated to be Rs. 51,14,409/ which includes the principal liability of Rs. 28,97,140/ and interest amount of Rs. 22,17,269/. Hence this suit.
12. Summons of the suit were sent to the defendants and appearance was made by them. In the written statement, the defendants have taken certain preliminary objections and denied the case of plaintiff on merits. It is submitted that the suit is barred by limitation and this court has no territorial jurisdiction to entertain and try the present suit. It is submitted that as per law laid down by Hon'ble High Courts and Hon'ble Supreme Court, damages cannot be sought from the customers/defendant when the consignment has been intercepted by the Custom Authorities and there is delay in examination by the custom authority or DRI. Further, that demurrage charges are calculated before releasing the goods and once the goods are released after depositing the demurrage charges, the question of short payment does not arise.
13. It is further contended by the defendants that there is no credit policy given to the customer/client/CHA i.e. Customer Housing Agent by any airport authority cargo CS (Comm) No. 532/2021 Page No. 8/32 AAI Cargo Logistics & Allied Services Ltd. Vs. Courier N Cargo Alliance & Anr. logistics. Further, that a client has to first register with the airport authority and is supposed to give advance payment of demurrage charges of any consignment in their PDA account and then only gate pass is generated by the computer and thereafter consignment is released to the party.
14. It is further submitted by the defendant that the airport authority issues PDA (PreDeposit Account) on the scheme 'cash and carry' which means first pay and then goods are released for take away. Further, that the defendant approached the custom authority for getting clearance of goods and only after paying the demurrage charges, the goods were released. Certain other issues are also raised by the defendants in the written statement.
15. The plaintiff filed filed its replication wherein the case of the defendants has been denied and the facts mentioned in the plaint have been reiterated.
16. After completion of pleadings, following issues were framed on 28.11.2022: CS (Comm) No. 532/2021 Page No. 9/32 AAI Cargo Logistics & Allied Services Ltd. Vs. Courier N Cargo Alliance & Anr. Issues
1. Whether the plaintiff is entitled to recovery of Rs.
28,97,140/ alongwith interest from the defendant as alleged? OPP.
2. Whether there is no cause of action at Delhi or this court has no jurisdiction to entertain the present suit? OPD.
3. Whether the suit is not maintainable against the defendant in terms of section 47 and 48 of the Customs Act? OPD.
4. Relief.
17. At the time of trial, plaintiff has examined Sh. S. Selvakumar, Chief Operating Officer of the plaintiff, as PW1, Sh. Rahul Nandy, Jt. General Manager (Cargo) of plaintiff company as PW2 and Sh. Pardeep Kumar Singh, Deputy General Manager of plaintiff company as PW3. On the other hand, no witness has been examined by the defendants despite availing several opportunities. The affidavit of witness namely Nitesh Chadha (defendant no. 2) was filed on behalf of defendants but the witness did not turn up for his examination under Oath and the DE was closed by order of CS (Comm) No. 532/2021 Page No. 10/32 AAI Cargo Logistics & Allied Services Ltd. Vs. Courier N Cargo Alliance & Anr. the court on 11.01.2024.
18. I have heard Ld. Counsels for the parties. Written submissions have been filed by both the parties.
19. It is argued on behalf of the plaintiff that case of the plaintiff has been duly proved on record for the relief claimed. It is submitted that with the help of testimonies of different witnesses and documents, the claim of the plaintiff has been duly established on record. Further, that the defendants have failed to disprove the case of the plaintiff as no witness has been examined by them during trial. It is prayed that the suit filed by the plaintiff may be decreed.
20. On the other hand, ld. Counsel for defendants has argued that the case of the plaintiff is full of discrepancies. Further, that this court has no territorial jurisdiction to entertain and try the present suit. Further that the defendants had no occasion to manipulate the number of days of storage and there is no question of any monetary gain having been received by the defendants by the alleged manipulation. Objection regarding want of proper compliance of the provisions of section 12A of the Commercial Courts Act CS (Comm) No. 532/2021 Page No. 11/32 AAI Cargo Logistics & Allied Services Ltd. Vs. Courier N Cargo Alliance & Anr. has also been raised. Certain other submissions are also made in light of the objections taken in the written statement.
21. I have carefully perused the record in the light of submissions made before me. My issuewise findings are as under: ISSUE No.1 Whether the plaintiff is entitled to recovery of Rs. 28,97,140/ alongwith interest from the defendant as alleged?
OPP.
22. Onus was on the plaintiff to prove its entitlement for recovery of suit amount.
23. To prove its case, the plaintiff has examined its Chief Operating Officer Mr. K Selvakumar as PW1. He tendered his affidavit of evidence as Ex.PW1/A and relied upon following documents:
1. Copy of incorporation certificate dated 11.08.2016 as Ex.PW1/1.
2. Board Resolution dated 26.06.2017 and authority letter dated 02.03.2021 as Ex.PW1/2 (colly).
3. Copy of legal notice dated 30.04.2020 alongwith the postal receipts as Ex.PW1/3 (colly).
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4. Copy of legal notice sent on email of defendant on 04.04.2020 and 16.04.2020 as Ex.PW1/4 & Ex.PW1/5 respectively.
5. Copy of legal notice dated 17.06.2020 alongwith postal receipts dated 24.06.2020 as Ex.PW1/6 (colly).
6. Non starter report dated 19.07.2021 as Ex.PW1/7.
24. The PW1 was duly crossexamined by ld. counsel for defendant. During his crossexamination, he deposed that there is no credit policy given by the plaintiff to its client. Further, that as per policy/guidelines of Ministry of Civil Aviation, there is a free period allowed for clearance of goods upto 48 hours and as per Custom Act, maximum 30 days are allowed for keeping the cargo and clearing the demmurage charges. In answer to a specific question as to what is the process if cargo is not cleared within 30 days with demmurage charges, the witness replied that the uncleared cargo beyond 30 days can be disposed off by following the custom procedure which includes auction as well as destruction of any other mode prescribed for the same. He also explained that for cargo clearance after custom permission, invoice is raised for demmurage charges and other applicable charges, then charges are paid and thereafter gate pass is issued for physical delivery. He also stated that it is not possible that without paying demurrage CS (Comm) No. 532/2021 Page No. 13/32 AAI Cargo Logistics & Allied Services Ltd. Vs. Courier N Cargo Alliance & Anr. charges a gate pass is issued. He further deposed that plaintiff has filed various cases in Delhi and other states and that all bills raised are of Kolkata airport and the defendant's office was also at Kolkata airport where goods were released/received by the defendant after paying demurrage charges. He further explained that if custom examination takes place after 30 days, the demmurage charges applicable till that day are to be paid in advance to the custodian for producing the goods for examination. He claimed that the plaintiff is entitled to claim demmurage charges even if the goods are not cleared by the custom authority for any reason. He also deposed that he had no personal knowledge of the FIR lodged against the defendant and he had no knowledge if any FIR has been lodged against plaintiff's employees, relating to goods in question at Kolkata. He has been cross examined on several other aspects.
25. PW2 Mr. Rahul Nandi is working as Jt General Manager (Cargo)/Regional Manager (ERNER) with the plaintiff and deposed as per case of the plaintiff. He tendered his affidavit of examinationinchief as Ex.PW2/A alonwith following documents: CS (Comm) No. 532/2021 Page No. 14/32 AAI Cargo Logistics & Allied Services Ltd. Vs. Courier N Cargo Alliance & Anr.
1. Copy of letter dated 30.01.2017 and its annexures as Ex.PW2/1.
2. Copy of letter dated 15.02.2017, PAN card and trade license of the defendant as Ex.PW2/2, Ex.PW2/3 & Ex.PW2/4 respectively.
3. Copy of complaint dated 15.04.2020 as Ex.PW2/5.
4. Copy of FIR No. 10/2020 dated 18.06.2020 P.S NSCB as Ex.PW2/6.
26. The PW2 has also been crossexamined in detail by ld. counsel for defendant. During his crossexamination, the PW2 deposed that the plaintiff handles the cargo being the Cargo Terminal Operator and custodian of Custom. He also told that plaintiff is using ICMS software since the year 2000 and the said software is very authentic and after putting all the details of the cargo the bill/bank challan is automatically generated. He denied about any manipulation in the ICMS software by anyone. He also apprised that they had taken action against their employee and removed him and informed the head quarter. He has been crossexamined on several other aspects also.
27. PW3 Mr. Pardeep Kumar Singh is working as Deputy General Manager (Cargo) with the plaintiff and has deposed as per case of the plaintiff. He tendered his affidavit of examinationinchief as Ex.PW3/A and relied upon CS (Comm) No. 532/2021 Page No. 15/32 AAI Cargo Logistics & Allied Services Ltd. Vs. Courier N Cargo Alliance & Anr. following documents:
1. Copy of order dated 28.09.2007 of Ministry of Civil Aviation as Ex.PW3/1.
2. Copy of order dated 02.12.2016 of Ministry of Civil Aviation as Ex.PW3/2.
3. Copy of notification dated 16.12.2016 as Ex.PW3/3.
4. Copy of the charges for import Cargo fixed by airport Economic Regulatory Authority as Ex.PW3/4.
5. Copy of office note dated 28.08.2018 as Ex.PW3/5.
6. Copy of import tax invoice issued for Airway Bill no.
58995682226 as Ex.PW3/6.
7. Copy of gate pass issued for Airway bill no. 58995682226 as Ex.PW3/7.
8. Copy of import tax invoice issued for airway bill no.
58995680001 as Ex.PW3/8.
9. Copy of gate pass issued for airway bill no. 58995680001 as Ex.PW3/9.
10. Copy of the air cargo manifest for airway cargo manifest for airway bill no. 58995680001 as Ex.PW 3/10.
11. Copy of the import tax invoice issued for airway bill no.
58995682661 as Ex.PW3/11.
12. Copy of the gate pass issued for airway bill no.
58995682661 as Ex.PW3/12.
13. Copy of the Air Cargo manifest for airway bill no.
58995682661 as Ex.PW3/13.
14. Copy of the import tax invoice issued for airway bill no.
58995682602 as Ex.PW3/14.
15. Copy of the gate pass issued for airway bill no.
58995682602 as Ex.PW3/15.
16. Copy of the air Cargo manifest for waiway bill no.
58995682661 as Ex.PW3/16.
17. Copy of the import tax invoice issued for airway bill no.
58995682311 as Ex.PW3/17.
18. Copy of the gate pass issued for airway bill no.
58995682311 as Ex.PW3/18.
19. Copy of the air cargo manifest for airway bill no.
58995682311 as Ex.PW3/19.
20. Copy of import tax invoice issued for airway bill no.
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58945126524 as Ex.PW3/20.
21. Copy of gate pass issued for airway bill no. 5894512624 as Ex.PW3/21.
22. Copy of the import tax invoice issued for airway bill no.
58995682016 as Ex.PW3/22.
23. Copy of the gate pass issued for airway bill no.
58995682016 as Ex.PW3/23.
24. Copy of the import tax invoice issued for airway bill no.
17646016423 as Ex.PW3/24.
25. Copy of the gate pas issued for Airway bill no. 17646016423 as Ex.PW3/25.
26. Copy of the import tax invoice issued for airway bill no.
58995680712 as Ex.PW3/26.
27. Copy of the gate pass issued for airway bill no.
58995680712 as Ex.PW3/27.
28. Copy of the air cargo manifest for airway bill no.
58995680712 as Ex.PW3/28.
29. Copy of import tax invoice issued for airway bill no.
17644310350 as Ex.PW3/29.
30. Copy of the gate pass issued for airway bill no.
17644310350 as Ex.PW3/30.
31. Copy of the import tax invoice issued for airway bill no.
58945126535 as Ex.PW3/31.
32. Copy of the gate pass issued for airway bill no.
58945126535 as Ex.PW3/32.
33. Copy of the air cargo manifest for airway bill no.
58945126535 as Ex.PW3/33.
34. Copy of the letter dated 10.09.2018 as Ex.PW3/34.
35. Copy of letter dated 11.10.2018 as Ex.PW3/35.
36. Copy of letter dated 14.10.2019 as Ex.PW3/36.
28. PW3 has also been crossexamined by ld. counsel for defendants. During his crossexamination, he deposed that he joined as Senior Manager (Cargo) at Kolkata Airport on 13.05.2016 and remained there till 30.04.2023. He CS (Comm) No. 532/2021 Page No. 17/32 AAI Cargo Logistics & Allied Services Ltd. Vs. Courier N Cargo Alliance & Anr. has described in detail the process of receiving of import cargo till its clearance. He has also stated that no credit facility is given to any customer/importer/courier company. Regarding the ICMS system/software, he stated that the said system can be manipulated by the agency and the employee managing the system and that such manipulation can be done by putting different inputs. He voluntarily explained that in the present case the system was manipulated by changing the receiving date of the cargo. He further explained that the agency on its own cannot touch the system as it is in the custody of the employee. He further told that the manipulation if any was done by the employee of AAICLAS. He has been crossexamined on certain other aspect also.
29. So far as defendants are concerned, they have not examined any witness despite availing several opportunities in this regard. Although, affidavit of one witness namely Nitesh Chadha (defendant no. 2) was placed on record but the said witness did not turn up for his examination under Oath and the DE was closed by order of the court on 11.01.2024.
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30. The gist of the case of the plaintiff is that plaintiff is a cargo terminal operator and its functions are to handle the cargo operations at various airports run by Airport Authority of India across the country. The job of the plaintiff involves handling of international, domestic, express cargo terminal, perishable cargo apart from facilitating all stake holder under one roof and acting as a custodian appointed by the custom authority for air cargo operations at various airports. The handling of cargo is governed under the Airport Authority Act and further directions regarding operations in the form of guidelines are issued by Ministry of Civil Aviation from time to time.
31. The procedure setup by the plaintiff company in terms of statutory requirements requires the cargo service providers (the defendants in the present case) to follow a system for release of its consignments and this procedure involves following activities: • Registration/uploading of airway bill details with customs by the concerned airlines.
• Uploading/registering consol details with customs which is done by consol agents.
• Transfer of airway bill/consol details to airport authority of India server by the customs department.
• The airlines and the appointed ground handling agency offloads the cargo from the aircraft.
CS (Comm) No. 532/2021 Page No. 19/32AAI Cargo Logistics & Allied Services Ltd. Vs. Courier N Cargo Alliance & Anr. • The Appointed Ground Handling Agency staff then generates the electronic data interchanged (EDI) printout through the web EDI.
• The airlines and the Appointed Ground Handling Agency then hands over the containers i.e. the unit load devices (ULDs) to the custodian i.e. the plaintiff company.
• The appointed ground handling agency thereafter de stuffs and does the segregation of cargo and prepares the segregation report. The process of storage and binning is performed by the agency supervisors and the feeding of airway bill and consol details are also handled by the appointed ground handling agency.
• The designated staff of the plaintiff company verifies all the details such as airway bill/import general manifest no./flight date/IWR no. etc. at predelivery and final delivery date. • The airlines/break bulk agents issue the online/offline delivery order.
• After the delivery is done, the plaintiff company updates the delivery of such consignements against the gate pass in the system.
• Finally, the supervisor of the appointed ground handling agency reconciles the system generated gate pass list with pre delivery/delivery register entries and reports discrepancies, if any, immediately to the Incharge Import Cargo for ICEGATE.
32. It is alleged against the defendant that they in connivance with employees of the plaintiff have manipulated in the number of days for having kept the consignment in the storage in respect of their 11 consignments received on Kolkata Airport from 04.06.2017 to 14.06.2017. It is contended that it was discovered by the audit team of the plaintiff that defendants have shown lesser number of days for having kept the consignments in storage whereas the CS (Comm) No. 532/2021 Page No. 20/32 AAI Cargo Logistics & Allied Services Ltd. Vs. Courier N Cargo Alliance & Anr. number of days were much higher as reflected in the import tax invoice and gate pass. Also that the demurrage charges shown in the import tax invoice were lesser than the actual amount due towards demurrage charges. It is alleged that the defendants have succeeded in making lesser payment towards demurrage charges for the 11 consignments.
33. The alleged manipulations in respect of 11 different consignments have been explained separately under para 24 of the plaint. For example, in respect of airway bill no. 58995682226, it is explained that the flight containing the above consignment arrived from Saudi Arabia airport at Kolkata airport on 04.06.2017. As per protocol, after the consignment arrived at the airport, segregation was done on the same date. The clock begins for calculation of demurrage charges as soon as the segregation is completed. First 48 hours are part of the free period and thereafter the charges are levied. It is stated that though the actual segregation was done on 04.06.2017, the segregation date noted on the import tax invoice is 28.06.2017. Further that the import tax invoice also notes that the consignment was in storage for 16 days before it was released and defendant, thus paid demurrage charges only for 16 days i.e. from 28.06.2017 to CS (Comm) No. 532/2021 Page No. 21/32 AAI Cargo Logistics & Allied Services Ltd. Vs. Courier N Cargo Alliance & Anr. 13.07.2017 amounting to Rs. 87,425/ whereas the defendant ought to have paid demurrage charges for 38 days i.e. 4.06.2017 to 13.07.2017 amounting to Rs. 2,48,170/.
34. In the similar manner, the loss allegedly suffered by the plaintiff in respect of all the 11 consignments have been explained making the total loss/short payment to be Rs. 28,97,140/.
35. The PW1, PW2 and PW3 have appeared in the witness box on behalf of plaintiff and have corroborated the case of the plaintiff as explained in the plaint, with the help of different documents tendered in evidence by them. All these witnesses have been duly crossexamined in detail by ld. Counsel for defendant but nothing substantive has come against the plaintiff and the PWs have withstood the test of crossexamination successfully.
36. It is not the case of the plaintiff that the defendants have done the alleged act independently, rather they have levelled allegations against their own employees also. It has come on record that the plaintiff has already lodged a criminal case/FIR against the culprits including their CS (Comm) No. 532/2021 Page No. 22/32 AAI Cargo Logistics & Allied Services Ltd. Vs. Courier N Cargo Alliance & Anr. own employees. Since, there are reasons to believe that it is the defendants who are beneficiary of the alleged short payment, the role of the employees of plaintiff is not of direct relevance, so far as the financial liability of the defendants is concerned. It is the defendants who had the liability to pay higher amount of demurrage charges but paid the lessor amount, so, they are the direct and only beneficiary of the alleged manipulations and it has to be assumed that they are responsible for doing the alleged manipulation regarding number of days in connivance with the employee/employees of the plaintiff company.
37. Several submissions have been made by the defendants in their written statement and written submissions as explained above but they have not led any positive evidence to corroborate their version. Affidavit of one witness namely Mr. Nitesh Chadha was filed on their behalf but the said witness has opted not to appear before the court and to face the test of crossexamination. He has not even tendered his affidavit formally under Oath. So, the factual aspects of the case of the defendant has infact remained unproved.
CS (Comm) No. 532/2021 Page No. 23/32AAI Cargo Logistics & Allied Services Ltd. Vs. Courier N Cargo Alliance & Anr. 38 The ld. Counsel for defendant has tried to point out certain discrepancies in the case of the plaintiff but there is no such material discrepancy in the case of the plaintiff which may prove fatal to their case. All the basic averments have been duly established on record with the help of oral testimonies of PWs and different documents tendered in evidence by them.
39. Although no separate issue has been framed in that regard but the ld. Counsel for defendant has raised an objection regarding bar of limitation. It is contended that the consignments in question were arrived in June 2017 while the present suit has been filed in the year 2021, so, the same is barred by limitation. In this regard, ld. Counsel for plaintiff has submitted that since the manipulation/fraud was discovered on 28.08.2018, the suit is well within limitation. He has relied upon the provisions of section 17 of the Limitation Act which deals with the effect of fraud or mistake on limitation and says that when a suit is based on fraud of defendant or his agent, the period of limitation shall not begin to run until the plaintiff has discovered the same with reasonable diligence.
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40. It is categorically mentioned in para 22 of the plaint that the alleged manipulation in number of days was discovered on 28.08.2018 while going through the financial updates for the year 2017. The witnesses have corroborated the said averment with the help of documents. On the other hand, defendants have failed to disprove the above claim during trial. If the period of limitation is calculated from 28.08.2018, the suit is well within limitation as the pre institution mediation was started on 26.03.2021. So, the objection regarding bar of limitation is not sustainable.
41. Ld. Counsel for defendant has also raised an objection regarding noncompliance of section 12A of the Commercial Courts Act but the said objection is also not of much importance because a nonstarter report dated 19.07.2021 of the West District Legal Services Authority, regarding preinstitution mediation, is available on record at page no. 48 of the documents filed by plaintiff alongwith list of documents dated 29.10.2021.
42. Certain other objections raised by defendant, which are in respect of procedure adopted at the airport before release of consignment, are found to be irrelevant for CS (Comm) No. 532/2021 Page No. 25/32 AAI Cargo Logistics & Allied Services Ltd. Vs. Courier N Cargo Alliance & Anr. the reason that it is not a case of procedure adopted in normal course. The dispute involved in this case is based on manipulation/fraud allegedly played by the defendant and employees of the plaintiff in calculating the number of days for deciding the demurrage charges.
43. Considering the above discussed facts and circumstances, it is clear that the plaintiff has duly proved a case on record that the defendants have made a short payment of Rs. 28,97,140/ against the demurrage charges in respect of their 11 consignments and that they are liable to pay the same to plaintiff. So far as interest claimed on the above short payment/principal liability of the defendants, is concerned, the plaintiff has claimed interest @ 18% per annum but there is no material/document to show any admitted rate of interest. At the same time, it cannot be denied that the alleged liability is in respect of commercial activities and the plaintiff can very well seek commercial rate of interest. Considering the nature of facts and circumstances, I am of the considered view that it will be appropriate to meet the ends of justice, if the plaintiff is awarded interest @ 9% per annum on the principal amount of Rs. 28,97,140/.
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44. With these observations, the issue no. 1 is decided in favour of the plaintiff and against the defendants.
ISSUE No.2 Whether there is no cause of action at Delhi or this court has no jurisdiction to entertain the present suit? OPD.
45. The onus was on the defendant to show that there is no cause of action at Delhi or this court has no jurisdiction to entertain the present suit.
46. As per section 20 of the Civil Procedure Code, a suit like one in hand, can be instituted either where the defendants reside or where the cause of action arises. It is categorical case of the plaintiff that the address of the defendants is situated at 4/1, GF, West Patel Nagar, New Delhi64 which is within West district, Delhi and falls under the territorial jurisdiction of this court. The defendants have tried to deny this fact by saying that all the work was done on Kolkata license of the defendant and no cause of action has CS (Comm) No. 532/2021 Page No. 27/32 AAI Cargo Logistics & Allied Services Ltd. Vs. Courier N Cargo Alliance & Anr. arisen at Delhi. There are also allegations regarding manipulation in the address of the defendants.
47. A careful perusal of record would show that the defendants have filed an affidavit of defendant no. 2 alongwith WS besides one affidavit of defendant no. 2 filed alongwith application for condonation of delay and a statement of truth sworn by defendant no. 2. All these affidavits/statement of truth have been filed alongwith WS on 16.07.2022. In all the above documents/affidavits the defendant no. 2 has given his primary address to be at 4/1, West Patel Nagar, New Delhi110008. Though, in all these affidavits, it is also mentioned that the defendant no. 2 is presently residing at Gurugram address but it is no where claimed that the address pertaining to West Patel Nagar is wrong address.
48. When admittedly the address of the defendant no. 2, who is authorized/competent person representing the defendant no. 1, is situated within the territorial jurisdiction of this court, it cannot be disputed that this court has the terminal jurisdiction to entertain and try the present suit by virtue of section 20 of CPC.
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49. Hence, with these observations, the issue no. 2 is decided in favour of the plaintiff and against the defendants.
ISSUE No.3 Whether the suit is not
maintainable against the defendant in
terms of section 47 and 48 of the Customs
Act? OPD.
50. The onus was on the defendants to show that the suit is not maintainable against the defendant in terms of section 47 and 48 of the Customs Act.
51. It has been submitted on behalf of defendants that the present suit is not maintainable in view of section 47 & 48 of the Customs Act 1962. For the sake of ready reference, the section 47 & 48 are reproduced herein after: "Section 47. Clearance of goods for home consumption - (1) Where the proper officer is satisfied that any goods entered for home consumption are not prohibited goods and the importer has paid the import duty, if any, assessed thereon and any charges payable under this act in respect of the same, the proper officer may make an order permitting CS (Comm) No. 532/2021 Page No. 29/32 AAI Cargo Logistics & Allied Services Ltd. Vs. Courier N Cargo Alliance & Anr.
clearance of goods for home consumption:
{Provided that such order may also be made electronically through the customs automated system on the basis of risk evaluation through appropriate selection criteria:
Provided further that the central government may, by notification in the Official Gazette, permit certain class of importers to make deferred payment of said duty or any charges in such manner as may be provided by rules} {(2) The importer shall pay the import duty
(a) on the date of presentation of the bill of entry in the case of self assessment; or
(b) within one day (excluding holidays) from the date on which the bill of entry is returned to him by the proper officer for payment of duty in the case of assessment, reassessment or provisional assessment; or
(c) in the case of deferred payment under the proviso to subsection (1), from such due date as may be specified by rules made in this behalf, and if he fails to pay the duty within the time so specified, he shall pay interest on the duty not paid or shortpaid till the date of its payment, as suchrate, not less than ten per cent, but not exceeding thirtysix per cent, per annum, as may be fixed by the Central Government, by notification in the Official Gazette.} Provided further that where the bill of entry is returned for payment of duty before the commencement of the Customs (Amendment) Act, 1991 (55 of 1991) and the importer has not paid such duty before such commencement, the date of return of such bill of entry to him shall be deemed to be the date of such commencement for the purpose of this section}.
{Provided also that} if the Board is satisfied that it is necessary in the public interest so to do, it may, by order for reasons to be recorded, waive the whole or part of any interest payable under this section}.
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48. Procedure in case of goods not cleared, warehoused, or transhipped within (thirty days) after uploading - If any goods brought into India from a place outside India are not cleared for home consumption or warehoused or transhipped {within{thirty days} from the date of the uploading thereof thereof a customs station or within such further time as the proper officer may allow or if the title to any imported goods is relinquished, such goods may, after notice to the importer and with the permission of the proper officer be sold by the person having the custody thereof"
Provided that
(a) animals, perishable goods and hazardous goods, may with the permission of the proper officer, be sold at any time;
(b) arms and ammunition may be sold at such time and place and in such manner as the Central Government may direct".
52. If the facts and circumstances of the case are considered in light of the above provisions of the Customs Act, it cannot be said that the suit filed by the plaintiff is barred. The above provisions deal with certain situations and certain measurements to be taken by the custom authorities in those situations but they do not come in the way of present suit.
53. So, with these observations, issue no. 3 is also decided in favour of the plaintiff and against the defendants.
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Relief.
54. In view of findings on issue no. 1 to 3, the suit filed by plaintiff is decreed in favour of plaintiff and against the defendants and following reliefs are awarded:
(i) Sum of Rs. 28,97,140/ (Rupees Twenty Eight Lakhs Ninety Seven Thousand One Hundred Forty only) as outstanding amount.
(ii) Simple interest @ 9% per annum from the particular dates of gate pass till 29.10.2021.
(iii) Pendetlite and future interest @ 9% per annum till actual realization.
(iv) Costs of the suit.
55. Decree sheet be prepared accordingly.
56. File be consigned to record room after completing the necessary formalities.
Passed & announced in the open court today.
(Sanjay Jindal) District Judge, Commercial Courts04, West/THC,Delhi 27.04.2024 CS (Comm) No. 532/2021 Page No. 32/32 AAI Cargo Logistics & Allied Services Ltd. Vs. Courier N Cargo Alliance & Anr.