Delhi District Court
M/S Anmol Road Carrier vs M/S Atindra Construction Pvt. Ltd on 20 October, 2023
In the Court of Shri Dinesh Bhatt, District Judge (Commercial
Court)01, Tis Hazari Courts, West District, Delhi
CS (Com.) No. 642/22
CNR No. DLWT010058442022
M/S ANMOL ROAD CARRIER
THROUGH S.P.A. HOLDER SH. JAI PARKASH
PLOT NO. B 23A, 2ND FLOOR, FRIENDS ENCLAVE,
NEAR RANI KHERA UNDER PASS, MUNDAKA NEW DELHI -
110041
........Plaintiff
Versus
M/S ATINDRA CONSTRUCTION PVT. LTD
THROUGH CEO MR.R.P.STARAF
R/O 147A, ATINDRA TOWER, DAKSHINEE HOUSING SOCIETY,
1st FLOOR, KOLKATA, 700105, WEST BENGAL
........Defendant
Date of Institution : 11072022
Date of hearing of arguments : 26082023
Date of decision : 20102023
Plaintiff's counsel Sh Sunil Kumar
Defendant's counsel Sh Mukesh Birla
JUDGMENT
1. This is suit for recovery of Rs.8,18,300/ alongwith interest on account of balance transportation charges unpaid by the defendant. Plaintiff's case is that it is a proprietorship firm CS (COMM.) No 642/2021 M/s Anmol Road Carrier Vs. M/s Atindra Construction Pvt. Ltd. Page No.1 of 23 dealing in transportation and logistic services. The present suit has been filed through its SPA Jai Prakash. Defendant approached plaintiff for transportation of its machinery and as per instructions loaded the machinery on 22022021. The machinery was to be transported from Haridwar Uttarakhand to East Midnapur West Bangal approximately distance of 1740 KM. E way bills were also issued. Defendant paid advance of Rs. 3 Lac of 05032021 and promised to pay the balance amount within 45 days. Plaintiff had issued invoice dated 16032021 for the total amount of Rs. 11,18,300/. Defendant further did not pay the outstanding amount of Rs. 8,18,300/ despite repeated requests. Plaintiff therefore served legal notice dated 02032022. Defendant in its reply stated that due to expiry of eway bill they had to pay penalty of Rs. 4,52,000/ and had suffered loss due to their delay and in fact plaintiff had suffered loss due to defendant's negligence. As per GST rules for a long distance and a heavy loaded vehicle eway bill should be an overdimensional cargo (hereinafter referred to as ODC) but defendant had issued a regular eway bill. One of the loaded vehicle broke down on the way and plaintiff told the same to the defendant in time but defendant did not update the eway bill, therefore, defendant despite its own negligence was trying to impose false allegations CS (COMM.) No 642/2021 M/s Anmol Road Carrier Vs. M/s Atindra Construction Pvt. Ltd. Page No.2 of 23 and grab plaintiff's money. Plaintiff had approached prelitigation mediation which was a nonstarter. Plaintiff has claimed the suit amount alongwith interest 24 % P.A.
2. Defendant filed written statement stating that plaintiff was working as a proprietorship form but it was shown to be filed through Sh Krishan HUF and, therefore, plaintiff had given technically incorrect details. In view of the order 30 rule 10 CPC proprietorship firm has no sanctity in the eyes of Law, therefore, plaintiff's suit was barred and liable to be dismissed. Plaintiff had not complied with the requisite formalities related to the commercial suit. They have stated that plaintiff had been negligent in delivering the goods within the validity of the eway bills. The delay was never intimated despite various follow ups therefore they had to pay penalty of Rs. 4,52,000/ besides bearing expenses of Rs. 2,29,920/. They had duly intimated the plaintiff through various emails and reply to the legal notice dated 1103 2022. On merits, they stated that plaintiff has not filed the suit in proper manner as plaintiff has failed to clarify whether it was a proprietorship firm or HUF. No part of cause of action has arisen in Delhi and, therefore, this court has no territorial jurisdiction. They have reiterated that plaintiff was to deliver the goods as per the time mentioned in the eway bill but plaintiff failed to do so CS (COMM.) No 642/2021 M/s Anmol Road Carrier Vs. M/s Atindra Construction Pvt. Ltd. Page No.3 of 23 and due to their negligence, defendant had to pay GST penalty as well as suffered expenses on releasing the vehicle and, therefore, they were liable to adjust Rs. 6,81,920/ from the outstanding amount of Rs. 8,18,300/ i.e. they were only liable to pay an amount of Rs. 1,23,030/ to the plaintiff company.
3. Plaintiff filed replication denying the preliminary objections. They stated that plaintiff was a proprietorship firm and Sh Krishan, HUF was the proprietor of the firm. They denied that defendant had suffered any loss due to their negligence and reiterated that plaintiff had suffered loss due to defendant's negligence. In regard to jurisdiction they stated that plaintiff was running its business from Mundka Delhi where they had received the purchase order and also received part payment.
4. Both the parties have filed affidavit of admission / denial of documents as per which plaintiff's documents were marked as Ex. P1 to Ex. P6 and defendant's document were marked as Ex. D1 to Ex. D3.
5. From the pleadings of the parties, following issues were framed for consideration on 07.01.2023:
1. Whether the plaintiff is entitled to recovery of Rs. 8,18,300/ alongwith interest from the defendant as alleged? OPP
2. Whether plaintiff suit filed as proprietorship firm is not CS (COMM.) No 642/2021 M/s Anmol Road Carrier Vs. M/s Atindra Construction Pvt. Ltd. Page No.4 of 23 maintainable? OPD
3. Whether this court has no territorial jurisdiction to entertain the present suit? OPD
4. Whether there is no cause of action in favour of the plaintiff? OPD
5. Relief.
6. I have heard the counsel for the parties and perused the case file.
7. Plaintiff has examined two witnesses PW1 and PW2 in their favour and defendant examined DW1 as its sole witness and thereafter, evidence of the parties was closed.
8. PW1 has reiterated the contents of the plaint and relied upon the documents Ex.PW1/1 to Ex.PW1/6 and Ex.P1 to Ex.P6. PW in cross examination stated that he was accountant of the plaintiff firm and taking care of all works of the plaintiff's firm. He was not well conversant with GST law but knew the same required for their business. He had authority to pursue the case against the defendant. He admitted that Ex.PW1/3 SPA did not mention the name of defendant company but volunteered he was authorized to file case against all the firms and companies in Tis Hazari Courts.
He admitted that machinery was to be transferred from Haridwar to West Bengal by plaintiff and denied that order was placed at CS (COMM.) No 642/2021 M/s Anmol Road Carrier Vs. M/s Atindra Construction Pvt. Ltd. Page No.5 of 23 Haridwar. He did not know the name of the person who had visited their Delhi office to place order and it was placed between 15.02.2020 to 20.02.2020. He admitted that there was a validity of eway bill during which transporter had delivered the goods. Three were two types of eway bills i.e. ordinary and ODC. Defendant company had issued an ordinary eway bill and valid till 03032021. As per his knowledge goods were delivered to defendant on 8/9 March, 2021. He admitted that transporter could revalidate eway bills in case of delay in delivery due to break down of vehicle but volunteered as per their norms they used to intimate the consignor to revalidate the eway bill. He admitted that plaintiff's ID was mentioned on eway bill but denied that plaintiff had authority to revalidate eway bill and volunteered that it was not the practice of their firm and therefore they had not revalidated the eway bill. They had not informed the defendant about the status of the machinery through emails or whatsapp. However, they had informed them telephonically but he did not remember the phone number on which defendant was telephonically informed. However, he stated that he could verify the number after seen his mobile phone.
[email protected] was the official email of their firm. He could not say with certainty if their firm had received CS (COMM.) No 642/2021 M/s Anmol Road Carrier Vs. M/s Atindra Construction Pvt. Ltd. Page No.6 of 23 mails on 03.06.2021, 03.08.2021, 23.08.2021 and 17.02.2022. He had no knowledge of document Mark DX1. He was not aware if defendant has informed plaintiff's proprietor that after deducting of penalty charges, they were ready to pay Rs. 1,23,030/. He was not aware if they had received email relating to penalty imposed by GST department and debit note issued by the defendant. He admitted that goods were to be delivered at nand Kumar at Midnapur, West Bangal. He did not know if the goods were seized at Asansol, at a distance of 300 km from Midnapur. He did not remember when and where machinery in question was seized by GST Department. He volunteered defendant had told them about the seizure of machinery. Driver of vehicle had informed the defendant that eway bill had expired. He denied that their driver had not informed the defendant about the expiry of eway bill. He denied that defendant came to know about the seizure of the same from GST Department only after confiscation from GST Department. He denied that plaintiff has failed to deliver the goods within time and defendant had to pay penalty for releasing the goods. He denied that plaintiff firm was at fault. He denied that he was deposing falsely.
9. PW2 Sh Krishan stated that he was Karta of proprietorship HUF which was providing transportation and logistic services and he CS (COMM.) No 642/2021 M/s Anmol Road Carrier Vs. M/s Atindra Construction Pvt. Ltd. Page No.7 of 23 was running the proprietorship firm through its proprietor Sh Krishan HUF and he was Karta of the HUF. In crossexamination stated that plaintiff was registered under HUF and volunteered he was Karta of the same. He admitted that this fact was mentioned in Ex.P1. He admitted that he was not doing any transaction with HUF firm and it was done by employee Sh Jai Prakash with his knowledge.
10. DW1 tendered in evidence his Ex.DW1/A and relied upon documents Ex.DW1/A to Ex.DW1/D. In crossexamination he stated that defendant's head office was at Kolkata West Bangal and was working at different places all over India. They were having 90 employees including four employees in accounting section. That he was working as Accounts Manager and was well versed with accounting taxation and GST compliances. They had telephonically contacted plaintiff in February, 2021. He had contacted Shri Krishan and some other person of the plaintiff's firm. They had loaded the machinery on 21/22022021 and defendant had generating eway bill from its portal. They denied that Shri Krishan had raised an objection about eway bill as it was an simple eway bill instead of ODC (Over Dimensional Cargo). He was aware that when goods or machinery of more than prescribed dimensions as per GST law were the subject CS (COMM.) No 642/2021 M/s Anmol Road Carrier Vs. M/s Atindra Construction Pvt. Ltd. Page No.8 of 23 matter then the eway bills was generated as ODC. That the dimension of their machine was 45 x 10 x 8 feet. The Supervisor of the defendant company as well as he himself were continuously tracking the vehicle in question. He was in regular touch for 23 days with the plaintiff as well as Driver of the vehicle. He denied that plaintiff as well as Driver of the vehicle were in regular touch upto the delivery of vehicle. They were extending eway bill in case there was a break down during transportation. He was not aware about the exact dimension prescribed by the GST law to issue ODC eway bill. That the machinery was more than 40 tons which was to be transported. They had sent purchase orders through email. The machinery was not taxable as it was being transported for job work. Defendant had lastly communicated with Sh Krishan on 03/04032021 and that he had informed that machinery had reached its destination. They had verified from an employee of their firm who informed that machinery had not been received at its destination. They had verified from their employee that the Driver had not reached. That there was no other email prior to 02062021 relating to expenses incurred with GST penalty or other losses on record and volunteered that there was a telephonic conversation. They were using telly software for accounting and that in the same any entry with back date can be CS (COMM.) No 642/2021 M/s Anmol Road Carrier Vs. M/s Atindra Construction Pvt. Ltd. Page No.9 of 23 made but volunteered that an expert can easily find out the same. That he alongwith Sunil Modi had gone to get the vehicle released. He volunteered that "Ajay Sir" was also with them at the said time. That Sh Krishan used to pick up their mobile phone once or twice in a day. He denied that they could have extended the eway bill whether the vehicle was traceable or not. They did not have any other email ID other than [email protected]. He admitted that they had received invoice Ex.PW1/2 and had made payment of Rs. 3 lacs on 0503 2021. He denied that they have taken refund of all expenses taxes and penalties from GST Department directly. They denied that after vehicle was seized by GST department the driver of the vehicle told them about the seizure and had conveyed that they need not worry and had made payment of Rs.3 lac on the same day and promised to make the remaining payment. They denied that they had raised a false defence to defeat plaintiff's suit. They denied that defendant in connivance with professionals had submitted false invoice. He denied that he was deposing falsely. Issue No.1
11.Plaintiff stated that as per the purchase order of the defendant they had transported an oversized machine from Haridwar to West Bengal and had raised the invoice. Defendant made part payment CS (COMM.) No 642/2021 M/s Anmol Road Carrier Vs. M/s Atindra Construction Pvt. Ltd. Page No.10 of 23 of Rs. 3 lac but did not clear the remaining amount and, therefore they were liable to recover the said amount. Defendant admitted having placed purchase order and also agreed for the freight charges as per invoice but stated that plaintiff's driver failed to deliver the machinery within the validity period of eway bill and also did not either inform them for extension of the same or themselves extended the eway bill consequently plaintiff's vehicle in question was detained and goods were confiscated by the concerned tax authorities and they had to pay penalty for release of their goods. They had also incurred other expenses on the same and, therefore, after deducting the expenses of Rs. 6,81,920/ they were only liable to pay Rs. 1,23,030/ to plaintiff. Plaintiff denied any negligence on their part and stated that they had conveyed to the defendant that the vehicle was over dimensional cargo and, therefore, ODC eway bill was required but defendant had issued a ordinary eway bill. One of the vehicle broke down on the way which was conveyed to the defendant in time but defendant did not extend the eway bill and therefore they were trying to take benefit of their own wrong.
12.The purchase order, transportation vehicle, goods, payment mode and the invoice amount in question are not disputed. The vehicle being seized by the tax authorities is also not disputed. Thus the CS (COMM.) No 642/2021 M/s Anmol Road Carrier Vs. M/s Atindra Construction Pvt. Ltd. Page No.11 of 23 only question remaining is as to who can be held responsible for the penalty charged on the goods, imposed by the GST department.
13.In respect of relevant facts in this regard, PW1 in cross examination stated that he was not aware of GST Law but knew it to the extent of their business, that there was a validity period of eway bill and transporter had to deliver the goods within the same. The eway bills issued by the defendant was valid till 03 032021 and transporter in case of break down could revalidate e way bill but volunteered that as per norms they used to intimate the consignor for revalidating the eway bill. He admitted that plaintiff's ID had been mentioned in the eway bill but denied that plaintiff's firm had authority to revalidate the eway bill. He denied that they had not informed the defendant about the status of goods / machinery through email or through whatsapp messages but stated that they had informed defendant telephonically. They had not sent any request to defendant company in writing to revalidate the eway bill. He further stated that Driver of their vehicle had informed them that he had informed the defendant that eway bill had expired. He denied that since plaintiff was unable to deliver the goods in time, therefore, GST department seized the vehicle and imposed CS (COMM.) No 642/2021 M/s Anmol Road Carrier Vs. M/s Atindra Construction Pvt. Ltd. Page No.12 of 23 penalty.
14.DW1 similarly in crossexamination stated that he was well versed with accounting taxation and GST compliances. Defendant had generating eway bill from their portal. He denied that Shri Krishan had raised an objection about ordinary eway bill instead of ODC (Over Dimensional Cargo) bill. He was aware that for an over dimensional cargo a different eway bill is generated. The dimension of the machine in question was 45 x 10 x 8 feet and more than 40 ton in weight. The Supervisor of the defendant company as well as he himself were continuously tracking the vehicle in question. He was in regular touch upto 23 days with the plaintiff and the Driver of the vehicle. They could extend the eway bill of the vehicle in question incase there was any break down during transportation. Defendant lastly communicated with Sh Krishan on 03/04032021 when he had informed that machinery had reached its destination but on verification from their employee they informed that machinery had not reached. There was no other email prior to 02062021 relating to expenses incurred with GST penalty and other losses. He alongwith Sh Sunil Modi had gone to get the vehicle released. He admitted that they had made payment of Rs. 3 Lacs on 0503 2021. He denied that driver of the vehicle had conveyed them CS (COMM.) No 642/2021 M/s Anmol Road Carrier Vs. M/s Atindra Construction Pvt. Ltd. Page No.13 of 23 that the vehicle was seized by GST department but they had conveyed that he should not worry and made payment of Rs. 3 Lacs on the same day and promised to make remaining payment.
15.Defendant has produced the release order alongwith proceedings, order of demand and tax / penalty Ex. PW1/D.
16. Thus as is evident from evidence of parties, both the parties have admitted that the eway bill was generated by defendant and validity of the eway bill was autogenerated. Machine in question to be transported by the plaintiff is claimed to be over dimensional cargo which has not been denied by the defendant. Further, the admitted dimensions of the cargo as mentioned by DW1 were 45x10x8 feet and as per eway bill the machine was described as HDD Machine 160 ton and its value was mentioned as Rs. 1,26,95,700/ which also corroborates the plaintiff's claim that the machine to be transported by them was an ODC. It is admitted by DW1 that a different eway bill would be generated for over dimensional cargo. In such a case where the cargo to be transported was ODC, the eway bill Rules provided a transportation period of one day for every 20 KM but eway billin question is stated to be of one day for every 200 KM i.e. if the present over dimensional cargo had been booked under the said Rule for a distance of 1740 KM, the eway bill would have been CS (COMM.) No 642/2021 M/s Anmol Road Carrier Vs. M/s Atindra Construction Pvt. Ltd. Page No.14 of 23 generated for ten times period than the eway bill in question. This difference of the transportation period of about 90 days of ODC e way bill versus 10 days of ordinary eway bill seems to be for the reason that a ODC would be difficult to transport and, therefore, appropriate period had to be provided for the same. In these circumstances, plaintiff could have refused to accept the ordinary eway bill but Ld Counsel for plaintiff stated that defendant had insisted that they should go ahead with the same and they would take care of any adverse situation. There is no proof produced on record of any such assurance given by the defendant. However, the party having advantage of such a shorter period can be presumed to have prevailed over the other party. None of the parties have led any evidence to this effect. However, one of the obvious reasons would be early delivery which normally would be beneficial to the defendant but straining to the plaintiff. There are however two other documents on record which also suggest a probable answer to this question.
17. The first document is the eway bill Ex. P3 wherein it is mentioned that the value of the machine is Rs. 1,26,95,700/ and no tax was shown to be deposited or payable for the machine in question and was to be transported from Haridwar to West Bengal.
CS (COMM.) No 642/2021 M/s Anmol Road Carrier Vs. M/s Atindra Construction Pvt. Ltd. Page No.15 of 23
18. The second document is the order dated 08032021 of the GST Authority Ex. PW1/D which mentions the value of the machine at Rs. 12,55,556/ only. It is also admitted that one Sunil Modi who was employee/authorized representative of defendant's department had appeared before the Authority as Incharge of the Transportation and had offered to pay the penalty. However, Ex P3 eway bill mentions the value of machine as Rs. 1,26,95,700/. Defendant has not given any explanation why there was such a huge difference in the value of the machine given by them in the eway bill and before the GST Authority. The answer to this question would be apparent from the order of GST authority in question.
19. This order contains a notice u/s 129 (3) of the Central Goods & Services Tax Act 2017 wherein it is mentioned that no eway bill was found during the movement of the goods / without eway bill. The goods conveyed were detained u/s 68 (3) of the Central Goods & Services Tax Act 2017 and other allied sections. As per said section 129 (3) of the Central Goods & Services Tax Act 2017, the goods could be released on payment of tax and penalty. The applicable tax and penalty being equal to 100% of the tax payable on such goods where the owner of the goods comes forward to pay such tax and penalty and (2) the applicable tax and CS (COMM.) No 642/2021 M/s Anmol Road Carrier Vs. M/s Atindra Construction Pvt. Ltd. Page No.16 of 23 penalty equal to the 50% of the value of the goods reduced by the tax amount paid thereon under the said Act calculated separately where the owner of the goods does not come forward to pay such tax and penalty. The owner of the goods had offered to pay the tax and therefore the tax and penalty was calculated as per the order of demand and tax penalty dated 08032021. The value of the goods was shown as Rs. 12,55,556/ and the penalty and tax were calculated as Rs. 2,26,000/ each for which total comes to Rs. 4,52,000/. The value of goods as per Ex. P3 being Rs. 1,26,95,700/ the tax and penalty would have been ten times of the amount assessed by the GST authority. The second doubt which crops up is that as per defendant their goods were exempted from any tax and the same was mentioned as zero tax in Ex. P3, but Ex. PW1/D was calculated on the basis of tax to be paid on goods worth about twelve lacs. There is no explanation as to why defendant had not disclosed that fact to the relevant GST authorities and instead had offered to pay tax on the goods. This fact creates some doubt about defendants assertion about his goods being exempted goods. There is no definite reasons shown for this. But defendant has mentioned the reduced value of goods and its weight before GST authorities. Ld Counsel for the defendant had argued that since the validity of the eway bill had CS (COMM.) No 642/2021 M/s Anmol Road Carrier Vs. M/s Atindra Construction Pvt. Ltd. Page No.17 of 23 expired therefore, the authority had considered the same to be a case of no eway bill and, therefore, there was no infirmity related to the observations made in the GST authority order referred above. This argument also seems to be not sustainable for the reason that defendant could have always shown the eway bill to the authority which could have mentioned in the order even though it could have still been rejected. Parties have not been able to show any provision as per which the penalty for extension or expiry of eway bill could be charged but the final release order clearly suggest that defendant had concealed eway bill Ex. D 3/P3 from the Tax Authorities. Defendant's said conduct of submitting a different value of the machine in the eway bill and before the GST Authority clearly suggests that he was trying to take some advantage from the same. This also suggest that defendant would have gained some advantage by generating an ordinary eway bill instead of an ODC eway bill. Consequently, the party gaining advantage is also deemed to be having a dominating position and seems to have a direct advantage in generating an ordinary eway bill instead of the ODC eway bill.
20. Ld Counsel for the defendant argued that plaintiff could have always extended the validity of the eway bill or could have asked them to extend the same but this was not done and, therefore, it is CS (COMM.) No 642/2021 M/s Anmol Road Carrier Vs. M/s Atindra Construction Pvt. Ltd. Page No.18 of 23 clear that the plaintiff was responsible for the delayed transport and the penalty paid by them for the confiscated goods. Ld Counsel for the plaintiff stated that plaintiff had conveyed this fact to the defendant and defendant was also aware of the same but had not extended the validity period in over confidence.
21. As per eway bill Rules, the eway bill was to be generated by consignor in case he was himself transporting the goods or was using hired services for the same and in case the same was being handed over to the transporter then the transporter would fill part B and consignor would fill part A or transporter will fill part A with authorization of the consignor. But in the present case eway bill was generated by consignor i.e. defendant by mentioning the name and ID of the transporter. Admittedly the bill in question was not generated by the transporter and it is not the case of the plaintiff that they had handed over the goods to the transporter for generating the eway bill on their own. Thus, merely mentioning the ID and name of the transporter would not mean that such an e way bill could have revalidated by the plaintiff.
22. In any case the penalty order Ex. DW1/P is clear to the extent that penalty was levied for nonproduction of eway bill and not merely for expired eway bill. In these circumstances, where defendant despite knowing that he should generate an ODC eway CS (COMM.) No 642/2021 M/s Anmol Road Carrier Vs. M/s Atindra Construction Pvt. Ltd. Page No.19 of 23 bill had chosen to generate an ordinary eway bill, can not take benefit of his own wrong.
23. Plaintiff has also claimed interest @ 24% PA on the delayed payment but has not shown any contract between the parties on this issue. However, considering the fact that defendant has withheld plaintiffs amount as such keeping in view the prevailing commercial lending rate of interest of nationalized banks, interest @ 10% P.A. would be reasonable and is allowed on the outstanding amount from the date of filing of the suit. Issue no.1 is decided in favour of the plaintiff.
Issue no.2
24. Defendant stated that plaintiff had filed the suit through Shri Krishan HUF but had mentioned it as a proprietorship firm, which did not have any legal entity and therefore, the suit was liable to be dismissed.
25.Plaintiff's case is that plaintiff was a proprietorship firm of Shri Krishan HUF and therefore, there was no legal infirmity in the same. Both the parties have admitted documents Ex.P1 which is registration certificate under GST. The plaintiff's legal name is shown as Shri Krishan HUF for Anmol Road Carrier and the business is mentioned as HUF (Hindu Undivided Family).
26. Plaintiff's case is that Shri Krishan HUF was the proprietor of CS (COMM.) No 642/2021 M/s Anmol Road Carrier Vs. M/s Atindra Construction Pvt. Ltd. Page No.20 of 23 Anmol Road Carrier. Thus in essence plaintiff was trying to say that Shri Krishana Karta of the HUF was a proprietorship of Anmol Road Carrier. As per law there are two broad category of business entities, one having juristic personality and other having no such juristic personality. The present case as claimed by the plaintiff is a proprietorship firm being managed by Shri Krishan HUF, both as a proprietor and as a HUF. A named natural person would be the person responsible for such a business and can not claim any separate existence of the business from its managing person. In any case the present case has been filed by Sh Krishan who is mentioned as Karta of HUF and claims to be proprietor of Anmol Road Carrier which does not make any difference as he as a person has claimed responsibilities for the affairs of the plaintiff. Accordingly, issue no.2 is decided against the defendant. Issue no.3
27. Defendant stated that the entire cause of action had arisen at Haridwar. They had placed the orders at Haridwar and the machinery was transported from Haridwar Uttarakhand to East Midnapur West Bangal. Payments were also made at Haridwar and therefore, this court has no territorial jurisdiction to entertain the present suit.
28. Plaintiff on the other hand had stated that orders were placed by CS (COMM.) No 642/2021 M/s Anmol Road Carrier Vs. M/s Atindra Construction Pvt. Ltd. Page No.21 of 23 the defendant at Delhi, payments were also made at Delhi, invoice was also issued from Delhi and therefore, this court has the territorial jurisdiction.
29. The purchase order Ex.P4 is admitted by the parties. It is shown to be issued by defendant to plaintiff at their Delhi address. Defendant claimed that they had made payment at Haridwar but have not led any evidence to this effect. They had given a suggestion to PW1 in crossexamination which was denied that they had placed orders at Haridwar. However, the aforesaid admitted document Ex.P4 is contrary to their own stand where it is shown to be issued by defendant from their Kolkotta address to plaintiff at their Delhi address. No other corroborative evidence has been produced by the defendant. Accordingly, issue no.3 is decided against the defendant.
Issue no.4
30. Defendant stated that there was no cause of action in favour of the plaintiff as plaintiff was late in delivering the goods and due to the same they have themselves suffered losses to the tune of Rs.6.8 lacs. Plaintiff had stated that they had transported defendant's machinery from Haridwar to Midnapur West Bangal and had raised invoices Ex.PW1/2 for Rs.11,18,300/. This invoice is not disputed. It is stated that defendant had paid only Rs.3 lacs but did CS (COMM.) No 642/2021 M/s Anmol Road Carrier Vs. M/s Atindra Construction Pvt. Ltd. Page No.22 of 23 not pay the remaining amount which is not disputed. Defendant's claim is that due to plaintiff's negligence, defendant had to pay GST penalty and tax as well as suffer expenses on releasing the vehicle and, therefore, they were liable to deduct Rs. 6,81,920/ from the outstanding amount of Rs. 8,18,300/ i.e. they were only liable to pay an amount of Rs. 1,23,030/ to the plaintiff company and that they were always ready to pay the same. But admittedly this amount was not paid. Further in view of finding of issue no. 1, defendant has failed to show that plaintiff has filed the suit without any cause of action. Accordingly, issue no. 4 is decided against the defendant.
RELIEF
31.Accordingly, the suit is decreed in favour of the plaintiff and against defendant for a total sum of Rs. 8,18,300/ alongwith interest @ 10% P.A. from the date of filing of the suit till realization alongwith costs.
Decree sheet be drawn accordingly.
File be consigned to record room.
Announced in open (Dinesh Bhatt)
Court on 20102023 District Judge (Commercial Court)01
West, Tis Hazari Courts, Delhi
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