Delhi District Court
M/S Soni Publication Pvt. Ltd vs M/S Sugam Parivahan Pvt. Ltd on 9 May, 2013
IN THE COURT OF MS. SHILPI JAIN:
CIVIL JUDGE-7 (CENTRAL) : DELHI
Civil Suit No. : 570/10/98
Unique Case ID No : N.A.
In the matter of:
M/s Soni Publication Pvt. Ltd.
11096, East Park Road, Doriwalan
Karol Bagh, New Delhi .............. Plaintiff
Versus
M/s Sugam Parivahan Pvt. Ltd.
5A/6, Ansari Road
Darya Ganj, New Delhi ............. Defendant
Date of institution of the Suit : 19.12.1998
Date on which order was reserved : 25.04.2013
Date of decision : 09.05.2013
SUIT FOR RECOVERY OF RS. 80,635/-
JUDGMENT :-
1. By this judgment I shall dispose off the suit for recovery filed on the averment that the plaintiff is a registered company and Sh. Ghanshyam Dass, Director of the company is authorized and competent to file this suit on behalf of the company, vide resolution dated 30.08.1996 of the company/s Board of Directors.
2. The plaintiff is printer and publisher of books. During its course of business, it received orders for supply of books from the defendant No. 1. The said goods were handed over by the plaintiff to the defendant No. 2 for delivering the same to the defendant No. 1. The said goods were entrusted to defendant No. 2 vide 2 cases and 23 cases containing books M/s Soni Publication Pvt. Ltd. Vs. M/s Sugam Parivahan Pvt. Ltd. 1/12 for the value of Rs. 3190/- and Rs. 46,633/- respectively, who also issued goods receipt No. 500247 dated 13.09.1991 and 500108 dated 27.07.1991 in token of receipt of the consignments in perfect and sound condition for transporting the same from Delhi to Gauhati. The plaintiff also raised necessary invoices. As agreed between the plaintiff and defendant No. 2 the goods were to be delivered by defendant No. 2 to defendant No. 1 after submitting the goods receipt by defendant No. 1 so as to enable them to receive the delivery after paying the billed amount but they did not come forward to collect the goods receipt for the plaintiff.
3. The plaintiff gave a letter dated 09.03.1992 to defendant No. 2 requesting to rebook the above consignments back to Delhi and also submitted the consignee copies of the goods receipts alongwith the invoices to the defendant No. 2 who received the above letter and informed that they had no arrangement of re- booking. The defendant No. 2 also informed that Mr. Om Prakash Dixit i.e. the representative of the plaintiff has already taken delivery of 15 bundles out of 23 booked vide consignment Note No. 500108 besides taking Rs. 1000/-. The plaintiff immediately gave a letter dated 31.03.1992 asking the defendant No. 2 as to how the defendant No. 2 has given part delivery to the person who is neither a consignor nor consignee or who is without any authority letter from the plaintiff. The plaintiff never authorized the defendant No. 2 to hand over the consignment to any one and as such the alleged delivery is not binding on the plaintiff. The plaintiff also requested to arrange the rebooking of the consignment immediately.
4. Thereafter, the plaintiff requested the defendant No. 2 to deliver the goods to M/s A.B.M. (Book division) opp. Gauhati Club, Gauhati with instructions to M/s A.B.M. to handover the draft of Rs. 1220/- as freight charges of both the goods receipts to the defendant No. 2 at the time of taking the delivery. The defendant No. 2 did not deliver the consignment to M/s A.B.M. despite instructions to this effect. The plaintiff came to know that M/s Soni Publication Pvt. Ltd. Vs. M/s Sugam Parivahan Pvt. Ltd. 2/12 the defendant No. 2 has delivered the goods to defendant No. 1 without the production of the goods receipts, without any authority from the plaintiff in collusion and connivance with each other. Despite the repeated requested and reminders, the defendants neither returned the said goods, nor paid the value of the said goods to the plaintiff. Hence both the defendant are jointly and severally liable to pay the amount due to the plaintiff. The plaintiff filed a complaint against defendant No. 2 before the District Consumer Disputes Redressal Forum- I, Tis Hazari, Delhi bearing complaint case No. 566 of 1994 on or about 16.03.1994 titled as M/s Soni Publications Pvt. Ltd versus M/s Sugam Parivahan Pvt. Ltd. The said complaint was however, dismissed by the Hon'ble District Forum, vide order dated 06.10.1998 on the ground that there was no deficiency of service on the part of defendant No. 2 but a liberty was given to the plaintiff herein to file a civil suit for recovery against the defendants.
5. The plaintiff claimed to have suffered a loss of Rs. 49,823/- being the value of the goods handed over to defendant No. 2. It is further submitted that in case it is held that the defendant No. 1 did not receive the said goods, in that event, the plaintiff herein claims to recover the aforesaid amount from the defendant No. 2 as damages. The plaintiff has also claimed a sum of Rs. 30,812/- towards interest @ .24% per annum, which the plaintiff are claiming upto February, 1994 i.e. the date of filing of the complaint before the District Consumer Disputes Redressal Forum. Plaintiff claimed a total sum of Rs. 80,635/-.
6. In Written Statement filed on behalf of the defendant No. 2 following preliminary objections were taken :-
(a) The suit has not been filed within the prescribed limitation period.
The same is barred by time. The limitation does not get extended under any circumstances or under Section 14 of the Limitation Act, 1963. The District Forum under the Consumer Protection Act is not a court and the litigation before the said forum does not extend M/s Soni Publication Pvt. Ltd. Vs. M/s Sugam Parivahan Pvt. Ltd. 3/12 limitation for the purpose of Civil Suit in a court of Competent Jurisdiction. The conditions of Section 14 of the Limitation Act 1963 are not fulfilled in the above suit. The plaintiff was not prosecuting the case before the Distt. Forum bonafide and in good faith and the matter in issue was and is not the same between the present suit and the proceedings before the District Forum under the Consumer Protection Act.
(b) The plaintiff has not served the statutory notice under Section 10 of the Carriers Act 1865 on the defendant No. 2.
(c) The plaint does not disclose the cause of action.
(d) The suit is barred by principals of resjudicata U/s 11 CPC if the Hon'ble Court thinks that Distt. Forum is a court.
7. On merits defendant No. 2 vehemently denied all the contentions of plaintiff and submitted that the plaintiff delivered the goods to defendant No. 1 vide its two goods receipt for transportation from Delhi. The goods were booked for delivery to the consignee as self. The consignor and the consignee are the same. Consignor is the plaintiff and the consignee was self which means the plaintiff. It is thus clear that the goods were to be delivered to the plaintiff at Gauhati. The plaintiff and M/s Goswami Enterprises had business relations agreement with each other. Defendant No. 1 was distributor for plaintiff on a discount of 45% of the price printed on the books to Guwahati against the specified order and the specified quantum and also against the requirement of defendant No. 1. The booking of the books were also delayed by the plaintiff, so M/s Goswami Enterprises defendant No. 1 declined to take delivery of the goods.
8. On denial of taking delivery by defendant No. 1, Mr. O.P. Dixit, the representative and Sales Executive of plaintiff took delivery of 32 sets (15 bundles of the books) in writing on 24.08.1991 from defendant No. 2 for free distribution in the north eastern sector. Mr. O.P. Dixit beside having received 15 bundles of the books also took Rs. 1000/- from M/s Goswami M/s Soni Publication Pvt. Ltd. Vs. M/s Sugam Parivahan Pvt. Ltd. 4/12 Enterprises on 04.09.1991. The defendant No. 2 specifically told the plaintiff that the transporter does not have rebooking service from Guwahati to Delhi and this stipulation is printed on the bilty itself. The denial of plaintiff to admit Mr. O.P. Dixit to be his sales Executive is totally mischeivious and fraudulent. Plaintiff informed to deliver the goods to Mr. S.K. Khusil and secondly to Mr. Balwant Goel and thirdly to M/s A.N.N (book division, Guwahati). But none of these ever turn up to take the delivery of the goods after payment of our freight and demurrage.
9. Despite repeated requests and assurance by plaintiff none came forward to take delivery after payment of freight amount being Rs. 1220/- demurrage @ 5 paise per kg. per day since September, 91. However, to extend the utmost co- operation the defendant No. 2 out of way and out of contract rebooked the goods from Guwahati to Delhi on 26.12.1997 and since 10.01.1998 remaining books of the plaintiff are lying in the U.P. Border Godown of the defendant No. 2 at the sole cost and consequences of the plaintiff. Despite repeated requests plaintiff neither took delivery nor made the payment of freight of 2 sides being Rs. 2220/- and demurrage Rs. 60060/- total Rs. 62280/- till today.
10. The District Consumer Forum vide its order dated 06.10.1998 held that there was no deficiency in the service of the transporter and it also held that the disputes arose later on because consignee did not come forward to collect the goods. There is no agreement of payment of any interest because it was a transport service.
11. It is prayed that the suit be dismissed with costs.
12. In replication filed on behalf of the plaintiff to the Written Statement filed by defendant No. 2 he denied all the contentions of the defendant No.2 and reiterated the contents of his plaint.
M/s Soni Publication Pvt. Ltd. Vs. M/s Sugam Parivahan Pvt. Ltd. 5/12
13. Plaintiff failed to take steps for service of the defendant No. 1 and thats why suit against defendant No. 1 was dismissed for non- prosecution by Ld. Predecessor vide order dated 08.08.2001.
14. Thereafter Ld. Predecessor framed following additional issue vide order dated 03.05.2005:-
15. Additional issue:-
1. Whether continuation of suit against defendant No. 2 in view of dismissal of suit against defendant No. 1 is bad in the eyes of law? If so its effect? OPD.
16. On the basis of the pleadings of the parties following issues were framed by the Ld. Predecessor on 04.02.2002:-
1. Whether the suit has not been filed under the limitation in view of the plaintiff? OPD.
2. Whether the complaint is called for cause of action in favour of the plaintiff and against the defendant? OPD.
3. Whether the suit is barred by U/o 11 of CPC? OPD.
4. Whether the plaintiff is not served the statutory notice U/s 10 of the Carriers Act? OPD.
5. Whether the plaintiff is entitled for recovery of the suit amount and the interest and how much interest and upto what period? OPP.
6. Relief.
17. Evidence led by both the parties in order to establish their case. Plaintiff has examined one witness namely, Sh. Ghanshyam Dass Soni as PW-1. Defendant has examined one witness i.e. DW-1, Sh. Ram Narayan Mishra. Both the witnesses were duly cross- examined.
18. I have heard the arguments of Ld. Counsel for both the parties and M/s Soni Publication Pvt. Ltd. Vs. M/s Sugam Parivahan Pvt. Ltd. 6/12 perused the record.
19. Issue wise findings of this court are given below:-
Additional issue:-
"Whether continuation of suit against defendant No. 2 in view of dismissal of suit against defendant No. 1 is bad in the eyes of law? If so its effect? OPD."
Defendant No. 1 purchaser was impleaded as a necessary party but suit against it was dismissed U/o 9 Rule 2 CPC for want of PF. It was not restored U/o 9 Rule 4 CPC. Plaintiff vide para No. 5 on merits of its replication dated 08.08.2001 admitted that goods had already been delivered to defendant No. 1. PW-1 in his cross-examination dated 05.08.2011 admitted that earlier defendant No. 1 took delivery of goods from defendant (earlier defendant No.2 ) without submitting goods receipt. The original GR was sent by post by plaintiff to defendant. Defendant No. 1 was, thus, a necessary party being the purchaser/ recipient U/o 1 Rule 10 (2) CPC for effective and complete adjudication of dispute in the suit. Therefore, suit is bad for non- impleament of necessary parties. As such, this issue is decided in favour of the defendant and against the plaintiff.
20. ISSUE NO. 1.
"Whether the suit has not been filed under the limitation in view of the plaintiff? OPD."
Article 11 of the Schedule to Limitation Act 1963 provides three years time from the date goods ought to have been delivered. In the present suit the goods for transportation were booked on 27.07.1991 and 13.09.1991 and after giving fifteen days margin for destination, the three years period start from middle of August, 1991 and end of September, 1991 whereas the suit was filed in December, 1998 which means after more than seven years. Therefore, suit is clearly barred by law of limitation however plaintiff M/s Soni Publication Pvt. Ltd. Vs. M/s Sugam Parivahan Pvt. Ltd. 7/12 has alleged extension of period of limitation under Section 14 of Limitation Act vide para 7 of the plaint on the averments that complaint under the Consumer Protection Act was pending in consumer forum. But Section 14 is not attracted in this case. District Forum under the consumer Act is not a court at all. The complaint U/s 12 of the said Act is not a suit. The complaint is not a plaint as per Section 26 of CPC r/w Order 4 Rule 1 and Order 6 Rule 1 CPC. A complaint in Consumer Forum is filed by Consumer as a complainant under the consumer Protection Act as is obvious from Section 2 (b) of the Consumer Protection Act. The complainant is not a plaintiff as defined in Section 2 (i) of the Limitation Act. The case under the Consumer Protection Act is not civil proceedings. Section 14 of the Limitation Act provides plaintiff to prosecute civil proceedings with due diligence and in good faith before a court having no jurisdiction. In view of the above there was no civil proceedings of any suit before any civil court. Therefore, Section 14 of Limitation Act is not applicable and does not extend limitation. Furthermore, consumer Forum does not follow procedure of CPC which is followed in a suit instituted in Civil Court.
Furthermore, complaint in consumer forum was dismissed on merits vide order dated 06.10.1998 Ex. PW-1/10 and not due to any other defect of jurisdiction or other cause of like nature. Therefore, as plaintiff has failed to prove existence of essential ingredient Section 14 of Limitation Act, time spent by plaintiff in pursuing the said complaint before consumer forum cannot be excluded for the purpose of limitation. As such, suit is barred by limitation and this issue is decided in faovur of the defendant and against the plaintiff.
21. ISSUE NO. 2.
"Whether the complaint is called for cause of action in favour of the plaintiff and against the defendant? OPD."
M/s Soni Publication Pvt. Ltd. Vs. M/s Sugam Parivahan Pvt. Ltd. 8/12 The term 'cause of action' has acquired a settled judicial meaning. It refers to the necessary conditions for maintenance of suit, including not only the infracion of the right but the infracion coupled with the right itself. 'Cause of action' consist of a bundle of facts which gives ground to enforce a legal injury for redressal in the court of law. It refers to the facts which the petitioner must prove so as to get a judgment in his favour.
To decide whether a suit has a subsisting cause of action or not, the court has to look at the plaint and nothing else. After perusal of the plaint as well as the entire record, the court is convinced that there is a valid cause of action in favour of the plaintiff. Therefore, it cannot be said that the present suit is devoid of any cause of action.
22. ISSUE NO. 3.
"Whether the suit is barred by U/o 11 of CPC? OPD."
In view of decision on issue No. 1 as former suit was not a suit but a complaint and consumer forum was not a court, principle of resjudicata as provided U/s 11 CPC, is not applicable to present suit. As such, this issue is decided in favour of the plaintiff and against the defendant.
23. ISSUE NO. 4.
"Whether the plaintiff has not served the statutory notice U/s 10 of the Carriers Act? OPD."
Section 10 of Carriers Act, 1865 requires mandatory notice of 6 months which is a condition precedent for filing a suit against the carriers. The notice is to be given by plaintiff within six months when loss or injury or non delivery comes to his knowledge. In this case no notice was given. The whole plaint no where states that any notice was served on defendant No. 2. The six months notice period started in March, 1992 in view of para 4 of the plaint. Order 6 Rule 6 and Rule 11 CPC require that M/s Soni Publication Pvt. Ltd. Vs. M/s Sugam Parivahan Pvt. Ltd. 9/12 condition precedent and material notice must be specifically pleaded separately in the plaint. The required notice U/s 10 of the Carriers Act has neither been sent nor pleaded in the plaint. Even in case of non- delivery U/s 9, notice U/s 10 is obligatory as non delivery is also covered under loss or injury. Therefore, this issue is decided in favour of the defendant and against the plaintiff.
24. ISSUE NO. 5.
"Whether the plaintiff is entitled for recovery of the suit amount and the interest and how much interest and upto what period? OPP."
The onus to prove this issue was on the plaintiff and plaintiff examined only 1 witness namely, Sh. Ghanshyam Dass Soni as PW-1. His cross- examination was held on 20.05.2011 and 05.08.2011. PW-1 admitted that he has not brought original resolution to file suit and his authority for the same. He even did not produce original or certified copy of certificate of incorporation of plaintiff. Ex. PW-1/1 is the copy of certified copy without its production. He also did not produce the original Articles and Memorandum of Association. As such filing of suit by a competent person is not proved. PW-1 admitted that goods were to be delivered to earlier defendant No. 1 at Guwahati. He admitted agreement of dealership/ distributorship with defendant No. 1 but did not produce the said agreement. PW-1 admitted that plaintiff maintained employees register but did not produce the same for any year to show Mr. O.P. Dixit was not employee of the plaintiff. Plaintiff did not produce Mr. O.P. Dixit but stated that he does not remember about any such employee. He further stated that he has no knowledge whether Mr. Dixit received 15 bundles from defendant. PW-1 admitted that plaintiff asked defendant to deliver goods to M/s ABN (book division). Guwahati. He denied the suggestion that none went to take delivery of goods. However, plaintiff did not produce any official from M/s ABN (book division) as a witness to support his contention. PW-1 admitted that plaintiff was not prepared to accept the M/s Soni Publication Pvt. Ltd. Vs. M/s Sugam Parivahan Pvt. Ltd. 10/12 delivery from defendants against payment of demurrage charges of Rs. 62,280/- after 6 years of booking PW-1 also admitted that plaintiff has not claimed amount from earlier defendant No. 1.
Plaintiff has not filed any bill or document to prove the contents and value of cases booked for transportation. No bill/ invoice is filed to prove the price of goods or the loss, if any, suffered. Plaintiff being a Ltd. Co. did not produce its account books such as ledger, cash book, stock register etc. to prove whether any amount was outstanding against earlier defendant No. 1 or defendant No. 2 PW-1 himself admitted delivery of goods to earlier defendant No. 1. Plaintiff also did not produce any person from defendant No. 1 who was his distributor. Plaintiff also did not produce any official from M/s ABN (book division) to prove refusal of delivery by earlier defendant No. 2. So far as interest is concerned plaintiff has not proved any agreement or trade custom to claim interest @ 24% p.m. There is no independent witness in this regard.
Agreement of plaintiff and defendant No. 2 was to take both the consignments from Delhi to Gauhati safely and deliver the same to the defendant No. 1 in accordance with the directions of the consignor. It is undisputed that goods were taken by defendant No. 2 to Gauhati safely. Dispute arose later on because defendant No. 1 did not come forward to collect the goods receipt from the plaintiff and therefore goods could not be delivered to the defendant No. 1. On the letter of the plaintiff to re- book the goods back to Delhi. Defendant No. 2 stated that it had no arrangement for re- booking the goods and he was within its right to take above stand. According to defendant No. 2 Sh. Om Prakash Dikshit, representative of plaintiff took delivery of 15 bundles out of 23 booked, plaintiff has tried to take a stand that above Om Prakash Dikshit was not the representatives of plaintiff. However, in order dated 06.10.1998 consumer forum has categorically held that "a copy of letter dated 17.10.1991 of plaintiff addressed to defendant No. 2 is on file in which it is M/s Soni Publication Pvt. Ltd. Vs. M/s Sugam Parivahan Pvt. Ltd. 11/12 admitted that above mentioned Om Prakash Dikshit was Sales Executive of the complainant. No doubt, directed only to assist defendant No. 2 and was not authorised to collect books but since above Om Prakash Dikshit was an employee of the plaintiff since he gave a receipt to defendant No. 2 of 15 bundles, defendant No. 2 were justified in releasing those 15 bundles to above Om Prakash Dikshit. Hence, defendant No. 2 cannot be accused of deficiency of service in this regard." Aforesaid order is clear, cogent and unambiguous proof that Mr. O.P. Dixit, was representative of plaintiff and in present suit PW-1 is depositing falsely that Mr. O.P. Dixit he was not the representative of the plaintiff. In view of aforesaid discussion as the plaintiff has miserably failed to prove his case by raising preponderance of probabilities this issue is decided in favour of the defendant and against the plaintiff.
25. ISSUE NO. 6.
"Relief"
In view of decision on aforesaid issues, suit of plaintiff is dismissed. Parties to bear their own cost. Decree sheet be prepared accordingly. File be consigned to record room after due compliance.
ANNOUNCED IN THE OPEN COURT ON 9th MAY, 2013 (SHILPI JAIN) CJ-07 (CENTRAL):DELHI M/s Soni Publication Pvt. Ltd. Vs. M/s Sugam Parivahan Pvt. Ltd. 12/12