Delhi District Court
M/S Geodis Overseas Pvt. Ltd vs M/S Prestige Wines & Spirits Pvt Ltd on 10 February, 2011
:1:
IN THE COURT OF CIVIL JUDGE-I, NEW DELHI DISTRICT, DELHI
Presided By : Sh. Jay Thareja, DJS
Civil Suit No: 298/10
Unique Case ID No.02403C0319762010
M/s Geodis Overseas Pvt. Ltd.
having its registered office at DLF Building No.8,
Tower A, 5th Floor, DLF City, Phase-II, Sector 25,
Gurgaon, Haryana ... Plaintiff
Versus
M/s Prestige Wines & Spirits Pvt Ltd
Through its Managing Director,
Thapar House, 124 Janpath
New Delhi-110001 ... Defendant
SUIT FOR RECOVERY OF RS. 18,095/- (RUPEES
EIGHTEEN THOUSAND NINTY FIVE ONLY)
ALONGWITH PENDENTE-LITE AND FUTURE
INTEREST AND COSTS
DATE OF INSTITUTION : 18.08.2010
DATE OF ARGUMENTS : 04.02.2011
DATE OF DECISION : 10.02.2011
JUDGMENT
1. This Judgment disposes off an application filed under Order XXXVII, Rule 3 (5) read with Section 151 of Code of Civil Procedure, 1908 ("CPC") by the defendant on 11.1.2011. By virtue of the said application, the defendant has sought an unconditional leave to defend the present suit.
2. The plaintiff has filed the present suit against the defendant under the provisions of Order XXXVII of CPC for recovery Civil Suit No.298/10 :2: of Rs. 18,095/- alongwith costs and pendente-lite and future interest at the rate of 18% per annum. Along with the plaint, the plaintiff has filed, inter-alia the following documents :-
(a) Bill of Lading dated 14.2.2009. (b) Delivery Order dated 20.3.2009. (c) Invoice dated 20.3.2009. (d) Letter dated 31.3.2009 written by the defendant.
3. In the plaint, the plaintiff and the defendant are described as companies registered under the Companies Act, 1956. The plaintiff is stated to be engaged in the business of facilitating freight forwarding and allied services for its customers and the defendant is stated to be engaged in the business of wines and spirits.
4. The facts that have been brought to the notice of this Court are as follows:-
Date Fact February 2009 The defendant approached the plaintiff for
facilitation of freight forwarding services. 14.2.2009 The plaintiff provided the services and a bill of lading was issued to the defendant. In the bill of lading, it is stated that the consignment comprised of one pallet of 887 kilograms. Further, it is stated that the country and point of origin of the consignment was Genoa, Italy, the port of discharge was Chennai and the place of delivery was CFS, Patpargani (sic), Delhi.
March 2009 The goods were transported by sea from Genoa, Italy to the port at Chennai and by way of road Civil Suit No.298/10 :3: from Chennai to CFS, Patparganj, Delhi.
11.3.2009 The Central Warehousing Corporation ("CWC") issued a receipt stating that the goods received were of the weight 887 kilograms and the pallet comprised of 116 cartons.
20.3.2009 The plaintiff raised an invoice of Rs. 27,332/- on the defendant and issued a delivery order in favour of the defendant.
31.3.2009 The defendant wrote a letter to the plaintiff requesting the release of the delivery order. The plaintiff released the delivery order to Sh. Rajesh Yadav, representative of the defendant.
2.4.2009 At the instance of the plaintiff, the consignment was inspected by Ericson and Richards (Delhi) at CFS, Patparganj, Delhi. It was found that the pallet was received in outwardly sound condition and it comprised only of 116 cartons instead of 122 cartons.
27.4.2009 The defendant paid only Rs. 9237/- to the plaintiff and withheld the amount of Rs. 18095.30/- on the pretext that there was deficiency in the service rendered by the plaintiff as the consignment was found short of 6 cartons at ICD, Patparganj. 6.5.2010 The plaintiff issued a legal notice to the defendant, which was not replied to, by the defendant.
5. On the aforesaid facts, the case of the plaintiff is that there was no deficiency in the service rendered to the defendant. The consignment had been received at Genoa, Italy as per weight Civil Suit No.298/10 :4: (887 kilograms) and had been delivered at CFS, Patparganj, Delhi as per weight (887 kilograms). Thus, there exists no basis for the defendant to withhold the amount of Rs.18,095/- from the plaintiff and as such, the plaintiff is entitled to the balance amount of Rs. 18,095/- from the defendant.
6. A perusal of the order sheets reveals that summons as prescribed under Form 4, Appendix B, Schedule 1 of CPC were issued against the defendant on 27.8.2010. The defendant was served with the said summons on 1.11.2010 and the defendant had entered its appearance on 9.11.2010. The summons as prescribed under Form 4A, Appendix B, Schedule 1 of CPC were issued against the defendant on 4.12.2010 and upon service of the said summons on 8.12.2010, the defendant has filed the leave to defend application on 18.12.2010.
7. In the leave to defend application filed on behalf of the defendant, the defendant has averred that it has a substantial defence against the case set out by the plaintiff. In order to substantiate its stand, the defendant has made the following averments:-
a) That the suit is not maintainable under the provisions of Order XXXVII of CPC.
b) That the services rendered by the plaintiff were deficient, in as much as 122 cartons had been handed over to the shipper at Genoa, Italy and only 116 cartons were received at ICD, Patparganj.
c) That the services rendered by the plaintiff were deficient, in as much as the delivery of the consignment was delayed. The goods were to be transported via Mumbai but they were transported via Civil Suit No.298/10 :5: Chennai for reasons best known to the plaintiff.
d) That this Court does not have the territorial jurisdiction to entertain the present suit as no part of cause of action has arisen within the territorial jurisdiction of this Court and the goods were to be delivered by the plaintiff at the warehouse of the defendant at 554/3, Nayak Mohalla, HO, Bijwasan, New Delhi.
e) That there was no agreement between the plaintiff and the defendant regarding payment of interest at the rate of 18% per annum, in case of default in payment of the charges mentioned in the Invoice dated 20.3.2009.
8. In its reply to the leave to defend application, the plaintiff has reaffirmed the contents of the plaint and stated that the defence sought to be raised by the defendant is sham and illusory. In order to substantiate its stand, the plaintiff has averred:-
a) That the suit is maintainable under the provisions of Order XXXVII of CPC, in view of the judgments of the Hon'ble High Court of Delhi in M/s Punjab Pen House v Samrat Bicycle Ltd, AIR 1992 Delhi 1 and in M/s Indian Iron and Steel Company Ltd v M/s Nada Brothers & Ors, I.A. No. 4430/95 in CS (OS) No. 2335/94 decided on 22.7.2004.
b) That there was no deficiency in the service rendered by the plaintiff as the goods were received at Genoa, Italy, by description in terms of quantity and weight i.e. one pallet weighing 887 kilograms and the same description of goods was delivered at ICD, Patparganj, as per the receipt of the Central Warehousing Corporation dated 11.3.2009.
c) That there was no agreement between the parties regarding transportation of goods through Mumbai. Even otherwise, there was no deficiency in the service rendered by the plaintiff as there was no Civil Suit No.298/10 :6: delay in delivering the consignment on account of transportation through Chennai instead of Mumbai.
d) That this Court has the jurisdiction to entertain the present suit as the registered office of the defendant is at Thapar House, 124, Janpath, New Delhi-1.
9. I had heard Sh. Jitender Mehta, Advocate for the plaintiff and Sh. Kamal Gupta, Advocate for the defendant on 4.2.2011.
10. In support of the application, the Ld. Advocate for the defendant had reiterated the contents of the leave to defend application. The Ld. Advocate for the defendant had emphasized that the suit is not maintainable under the provisions of Order XXXVII of CPC as no written contract exists between the parties regarding the payment of Rs.27,332/- by the defendant. Further, the Ld. Advocate had submitted that the defendant has a credible defence to the claim made by the plaintiff, in as much as the defendant had delivered only 116 cartons at ICD, Patparganj, Delhi whereas the defendant had been handed over 122 cartons at Genoa, Italy.
11. While opposing the application, the Ld. Advocate for the plaintiff had relied upon the judgment of Hon'ble High Court of Delhi in M/s Indian Iron and Steel Company Ltd v M/s Nada Brothers & Ors, I.A. No. 4430/95 in CS (OS) No. 2335/94 dated 22.7.2004 and submitted that the suit is maintainable under Order XXXVII of CPC on the basis of Bill of Lading dated 14.2.2009 and Delivery Order dated 20.3.2009, which bear the signatures of the representative of the defendant and are supported by the Invoice dated 20.3.2009 and Civil Suit No.298/10 :7: the letter dated 31.3.2009 written by the defendant. Further, the Ld. Advocate had submitted that in view of the Section 10 of the Carriers Act, 1865, the defendant has no locus standi to contest the present suit as it had not issued any notice to the plaintiff prior to the filing of the present suit.
12. In rejoinder arguments, the Ld. Advocate for the defendant had relied upon the judgment of Hon'ble Supreme Court of India in Transport Corporation of India Ltd. v Veljan Hydrair Ltd. 2007 (2) CPJ 35 and submitted that Section 10 of the Carriers Act, 1865 bars the filing of a suit but does not debar a defendant from contesting the suit filed against it.
13. I have bestowed my thoughtful consideration to the rival submissions made by the Ld. Advocates. However, before adjudicating upon them, I consider it appropriate to refer to the law regarding grant/refusal of a leave to defend application as laid down by the Hon'ble Supreme Court of India and the Hon'ble High Court of Delhi.
14. In M/s Mechalec Engineers & Manufacturers v M/s Basic Equipment Corporation, AIR 1977 Supreme Court 577, the Hon'ble Supreme Court of India, while dealing with prerequisites for grant or refusal of a leave to defend has observed, "8...
(a) If the defendant satisfies the Court that he has a good defence to the claim on its merits the plaintiff is not entitled to leave to sign judgment and the defendant is entitled to Civil Suit No.298/10 :8: unconditional leave to defend.
(b) If the defendant raises a triable issue indicating that he has a fair or bonafide or reasonable defence although not a positively good defence the plaintiff is not entitled to sign judgments and the defendants entitled to unconditional leave to defend.
(c) If the defendant discloses such facts as may be deemed sufficient to entitle him to defend that is to say, although the affidavit does not positively and immediate make it clear that he had a defence, yet, shows such a state of facts as leads to the inference that at the trial of the action he may be able to establish a defence to the plaintiff's claim the plaintiff is not entitled to judgment and the defendant is entitled to leave to defend but in such a case the Court may in its discretion impose conditions as to the time or mode of trial but not as to payment into Court or furnishing security.
(d) If the defendant has no defence or the defence set up is illusory or sham or practically moonshine then ordinarily the plaintiff is entitled to leave to sign judgment and the defendant is not entitled to leave to defend.Civil Suit No.298/10 :9:
(e) If the defendant has no defence or the defence is illusory or sham or practically moonshine then although ordinarily the plaintiff is entitled to leave to sign judgment the court may protect the plaintiff by only allowing the defence to proceed if the amount claimed is paid into Court or otherwise secured and give leave to the defendant on such condition, and thereby show mercy to the defendant by enabling him to try to prove a defence."
15. In M/s. KLG Systel Ltd. v M/s. Fujitsu ICIM Ltd, AIR 2001 Delhi 357, the Hon'ble High Court, while dealing with a suit under Order XXXVII of CPC, has held that if a party accepts deficient quality goods/service and does not protest against it, within reasonable time, then later it cannot be allowed to raise issues regarding the deficiency in the quality of goods/ service, in a suit filed by the goods/service provider for payment of price.
16. Upon examining the defence sought to be raised by the defendant in the present case, I find that it falls under clause (d) of the observation made by the Hon'ble Supreme Court of India in M/s Mechalec Engineers & Manufacturers's case (supra). The defence setup by the defendant is per se illusory, sham and devoid of any merit. The first plea of the defendant is that the present suit is not maintainable under Order XXXVII of CPC. In my view, the said plea is untenable in light of the judgment of the Hon'ble High Court of Delhi in M/s Indian Iron and Steel Company Ltd v M/s Nada Brothers & Ors, I.A. No. 4430/95 in CS (OS) No. 2335/94 dated 22.7.2004. In the said Civil Suit No.298/10 :10: case, the Hon'ble High Court of Delhi while dealing with similar facts, has observed, "The expression "written contract" appearing in the above referred clause does not necessarily mean a document containing detailed terms and conditions of the contract having signature of both the parties. Correspondence exchange between the parties can constitute a valid agreement. In the present case it is to be seen as to whether such an agreement came into being between the parties. It is not disputed that the plaintiff supplied different kinds of steel to the defendant by means of delivery order addressed to the defendant and the defendant obtained delivery of the goods through authorisation letter and delivery note in pursuance to the said delivery order. The delivery order clearly detailed out the description of the goods and quantity of the goods supplied and the value of the goods and the fact whether the goods were being supplied on credit or payment or advance payment. Receipt of the goods by the defendant pursuant to the delivery order and on the basis of authorization order would clearly constitute an agreement between the parties. The question as to whether invoices or bills are "written contracts" within the contemplation of Order 37 CPC is no longer open for debate and the question stands fully settled through a Civil Suit No.298/10 :11: catena of judgments of this Court in M/s Punjab Pen House Vs. Samrat Bicycle Ltd. AIR 1992 Delhi 1; Corporate Voice (Pvt.) Ltd. Vs. Uniroll Leather India Ltd. 60 (1995) DLT 321; Beacon Electronics Vs. Sylvania and Laxman Ltd., 1998 (3) Apex Decisions (Delhi) 141 and KLG Steel Ltd. Vs Fujitsu ICIM Ltd., 92(2001) DLT 88 wherein it has been held that such bills or invoices are written contracts within the meaning of sub-clause (2) of Rule 2 of Order 37. From the correspondence ensued between the parties after the supply of the goods, it would be further manifest that the plaintiff supplied the goods to the defendant under an agreement. This Court has, therefore, no hesitation in holding that the present suits filed by the plaintiff for the recovery of unpaid price of the goods under Order 37 CPC are summary suits and summary procedure can be applied to their trial."
17. In the present case, the plaintiff has placed on record, Bill of Lading dated 14.2.2009, Delivery Order dated 20.3.2009, Invoice dated 20.3.2009 and Letter dated 31.3.2009 written by the defendant. The bill of lading, which bears the signature of the authorized signatory of the defendant and the seal of the defendant, provides all the necessary details viz description of the goods consigned, the country and point of origin, name of the consignor, the name of the consignee, the port of discharge and the place of delivery. It describes the goods as "1 PLTS WINE, EX-
Civil Suit No.298/10 :12:FACTORY ITALY FREIGHT COLLECT" and states that the gross weight of the consignment/goods is 887 kilograms.
18. The Invoice dated 20.3.2009, states that the amount payable by the defendant is Rs. 27,332/-. Further, at the bottom of the said invoice, it is written :-
"Note:
1. Any dispute, discrepancy or any supporting documents required must be notified within 7 days. Failing which the invoice will be treated as true and correct.
..."
19. The rear side of the invoice bears certain "terms and conditions". The relevant clauses are reproduced below:-
"(4) GENERAL PROVISIONS (F) Notice of Loss or Damage The carrier shall be deemed prima facie to have delivered the Goods as described in this Bill of Lading unless notice of loss of or damage to the goods Indicating the general nature of such loss or damage shall have been given in writing to the Carrier or to his representative at the place of delivery before or at the time of removal of the Goods into the Custody of the person entitled to delivery therof under this Bill of Lading or if the loss or damage is not apparent within three consecutive days thereafter.
...
Civil Suit No.298/10 :13:7. MERCHANT'S RESPONSIBILITY (1) The description and particulars of the Goods set out on the face hereof are furnished by the merchant and the Merchant warrants to the Carrier that the description and particulars including. But not limited to of weight content, measure, quantity, quality, condition, marks, numbers and value are correct.
(2) The Merchant shall comply with all applicable laws, regulations and requirements of customs port and other authorities and shall bear and pay all duties, taxes fines, imposts, expenses and losses incurred or suffered by reason thereof or by reason of any illegal, incorrect or insufficient marking. Numbering or addressing of the Goods.
...
17. CHARGES (1) Charges shall be deemed fully earned on receipt of the Goods by the Carrier and shall be paid and non returnable in any event.
(2) The charges have been calculated on the basis of particulars furnished by or on behalf of the Merchant. The Carrier shall be entitled to production of the commercial invoice for the Goods or true copy thereof and to inspect, reweigh, remeasure and revalue the Goods and if the particulars are found by the Carrier to be incorrect the Merchant shall pay the Carrier the Civil Suit No.298/10 :14: Correct charges (credit being given for the Charges charged) and the costs incurred by the Carrier in establishing the correct particulars. (3) All charges shall be paid without any set of counter claim, deduction or stay of execution."
20. In the Delivery Order dated 20.3.2009, which bears an acknowledgment "Recd DO" and signatures of the authorized signatory of the defendant, the necessary details viz. description of the goods consigned, name of the shipper, the name of the consignee, the port of origin are mentioned. The Delivery Order also describes the goods as 1 PALLET(S) of weight 887 kilograms and contains the aforesaid terms and conditions on its rear side.
21. In the Letter dated 31.3.2009, the defendant has requested the plaintiff to issue the delivery order to its representative Sh. Rajesh Yadav. In the said letter, there is no protest regarding the details provided in the Bill of Lading dated 14.2.2009 and the Delivery Order dated 20.3.2009. Also, there is no protest regarding the amount mentioned in the invoice dated 20.3.2009. In my view, if there was no agreement between the parties regarding the details mentioned in the Bill of Lading dated 14.2.2009 and Delivery Order dated 20.3.2009 as well as the amount mentioned in Invoice dated 20.3.2009, the defendant should have raised some written protest in the Letter dated 31.3.2009 or within reasonable time, thereafter. Since the plaintiff did not do so, I am of the view that the documents mentioned in paragraph 2 of this Judgment constitute a written contract between the parties on the basis of which, the plaintiff could have and has filed the present suit under the provisions of Civil Suit No.298/10 :15: Order XXXVII of CPC. Thus, the first plea of the defendant is rejected.
22. The second plea of the defendant is that the services rendered by the plaintiff is deficient, in as much as 122 cartons had been handed over to the shipper at Genoa, Italy and only 116 cartons were received at ICD, Patparganj. This plea of the defendant does not raise any triable issue as the plaintiff had received the goods as per the description mentioned in Bill of Lading dated 14.2.2009 i.e. "1 PLTS WINE, EX-FACTORY ITALY FREIGHT COLLECT"
and has delivered the same description of goods at ICD, Patparganj as per the receipt issued by CWC, Patparganj on 11.3.2009.
23. A combined reading of clause (4) 7 (1) and clause 17 (1) of the terms and conditions mentioned at the rear side of the Delivery Order dated 20.3.2009 and the Invoice dated 20.3.2009 reveals that it is not open for the defendant to dispute the description of goods mentioned in the Bill of Lading dated 14.2.2009 and upon delivery of the goods as per the description in the Bill of Lading dated 14.2.2009, the plaintiff is entitled to the amount mentioned in Invoice dated 20.3.2009. Thus, the second plea of the defendant is also rejected.
24. The third plea of the defendant is that the services rendered by the plaintiff were deficient, in as much as the delivery of the consignment was delayed. The goods were to be transported via Mumbai but they were transported via Chennai for reason best known to the plaintiff. This plea of the defendant is devoid of any merit as the Bill of Lading dated 14.2.2009 signed by the authorized signatory of the defendant clearly states that the port of discharge Civil Suit No.298/10 :16: for the consignment shall be "Chennai".
25. The fourth plea of the defendant is that this Court does not have the territorial jurisdiction to entertain the present suit as no part of cause of action has arisen within the territorial jurisdiction of this Court and the goods were to be delivered by the plaintiff at the warehouse of the defendant at 554/3, Nayak Mohalla, HO, Bijwasan, New Delhi. This plea of the defendant is untenable as the registered office of the defendant is at Thapar House, 124 Janpath, New Delhi- 110001 and Section 20 of the Code of Civil Procedure, 1908 , allows the plaintiff to file a suit against the defendant at a place where the defendant voluntarily works for gain.
26. The fifth plea of the defendant is that there was no agreement between the plaintiff and the defendant regarding payment of interest at the rate of 18% per annum, in case of default in payment of the charges mentioned in the Invoice dated 20.3.2009. This plea of the defendant does not raise any triable issue as the plaintiff has not claimed any pre-litigation interest at the rate of 18% per annum and as per the judgment of Hon'ble Supreme Court of India in Central Bank of India v Ravindra, AIR 2001 SC 3095 the grant of pendente-lite and future interest is not contingent upon any contract between the parties and can be granted as per the discretion of the Court.
27. In view of the aforesaid discussion, the application for leave to defend filed under Order XXXVII Rule 3 (5), CPC by the defendant is refused.
Civil Suit No.298/10 :17:28. As per Order XXXVII, Rule 3(6)(a) of CPC, upon refusal of the application for leave to defend, the plaintiff is entitled to judgment forthwith. The exact content of Order XXXVII, Rule 3(6)(a) of CPC is reproduced below:
"(6) At the hearing of such summons for judgment,-
a) if the defendant has not applied for leave to defend, or if such application has been made and is refused, the plaintiff shall be entitled to judgment forthwith; or"
29. Accordingly, in view of Order XXXVII, Rule 3(6)(a) of CPC, the suit is decreed in favor of the plaintiff and against the defendant for a sum of Rs. 18,095/- (Rupees Eighteen Thousand Ninety Five Only) alongwith pendente-lite and future interest at the rate of 9% per annum. The plaintiff shall also be entitled to the costs of the suit.
30. Before parting with this Judgment, it is clarified that the prayer of the plaintiff for grant of pendente-lite and future interest at the rate of 18% per annum is excessive and therefore, the pendente- lite and future interest has been granted at the rate of 9% per annum.
Upon preparation of the decree sheet by the Reader, the file shall be consigned to the record room.
Announced in the Open Court (Jay Thareja)
On 10.02.2011 Civil Judge-I, New Delhi District
New Delhi
Civil Suit No.298/10