Delhi District Court
Manilal Patel Clearing vs Harish Sharma on 28 May, 2015
ID No.02401C0580862008
IN THE COURT OF DR.VIJAY KUMAR DAHIYA: ADDL.
DISTRICT JUDGE (CENTRAL07), TIS HAZARI COURTS : DELHI.
SUIT NO.319/2010
Manilal Patel Clearing
Forwarding Pvt Ltd.,
At Block L7/203,
Mahipalpur Extn.,
New Delhi37
Acting Through:
Mr.Sandeep Kumar Porwal,
(Authorized Representative of the company) ..........PLAINTIFF
VERSUS
Harish Sharma, Proprietor,
M/s. Jupiter, 683, Sector37,
Pace CityI,
Gurgaon, Haryana. ...........DEFENDANT
Date of Institution : 19.04.2008
Date when the case reserved for order : 28.05.2015
Date of Order : 28.05.2015
J U D G M E N T
The plaintiff firm has filed the present suit for recovery of Rs. 4,02,786.40/ along with pendent elite and future interest @ 24 % p.a. from the date of institution of the suit till realization of money.
1. Brief facts of this case is that the plaintiff is a company duly 1/12 Manilal Patel Clearing Forwarding Pvt Ltd vs. Harish Sharma incorporated under the Indian Companies Act, 1956, having its registered office at Kamer building, 38, Cawasji Patel Street, Fort, Mumbai and branch office interalia at Block L7/203, Mahipal Pur Extn., New Delhi. Mr. Sandeep Kumar Porwal, one of the Principal Officer/Senior Accountant of the said company has been duly authorized to sign, file and institute the present suit by virtue of the board resolution dated 16.02.2008 passed by the Board of Directors of the plaintiff company. It is stated that the plaintiff company is in the business of clearing, forwarding, air freight, shipping and warehousing of goods etc., and the defendant is a proprietorship concern and Mr. Harish Sharma is the proprietor of the defendant firm and is in the trading business. It is further stated that defendant approached the plaintiff company for shipment, to United Kingdom of boxes containing readymade garments. The plaintiff company being in the business of air freight, clearing forwarding, shipping etc. therefore, the defendant booked boxes containing ready made garments and were delivered by the plaintiff company to the consignee M/s. Arcadia Group Brand Ltd. at EVANS import department Coleteare House, 70, BERNERS Street, London, WIT, 3NL, UK (the consignee) and in the process also got cleared the goods from customs authorities as per Indian and UK Law. On behalf of the defendant company, plaintiff incurred expenses of such customs duty, custom taxes, air freight fuel charges, handling, loading and unloading, air line transfer fee, service tax and other incidental expenses in India as well as in UK. It is further averred that on 05.04.2006 vide invoice no.006/0607T dated 05.04.2006, defendant booked 105 boxes containing readymade garments and prior to that, 170 boxes containing ready made garments booked on 30.03.2006 vide invoice No.1215/0506 dated 30.03.2006.
2/12 Manilal Patel Clearing Forwarding Pvt Ltd vs. Harish Sharma
2. It is further stated that after delivering the goods to the consignee, the plaintiff company raised the following bills:
Bill No. Dated Amount
11020604100251 17/04/06 Rs.253303.00
11020605100144 10/05/06 Rs.316999.00
11020605100145 10/05/06 Rs.979.00
The defendant paid to the plaintiff company Rs.2,11,000/ vide cheque No.22953 dated 06.05.2006 and also Rs.42,303/ and Rs.45825/ were received from the defendant. A balance of Rs.2,72,153/ is stood payable by the defendant to the plaintiff. The plaintiff company requested the defendant to repay the outstanding amount of Rs.2,72,153/ along with interest w.e.f., 17.04.2006 @ 24% per annum but defendant only gave false assurances and lastly the plaintiff company vide communication dated 30.05.06, 07.06.06 and 09.10.06 requested the defendant to liquidate the amount to the plaintiff company but defendant failed to make the outstanding payment. Thereafter, a legal notice dated 10.03.2008 was sent to the defendants calling upon to liquidate the amount of Rs.2,72,153/ along with interest w.e.f., 17.04.2006 @ 24% per annum but the defendant refused to acknowledge the said legal notice with the report of refusal which deems to have been served upon the defendant. Hence, the present suit.
3. Summons of the suit was issued to the defendant. In response thereto, the defendant filed the written statement (WS) as well as counter claim on 05.11.2008, wherein it is stated that suit of the plaintiff deserves to 3/12 Manilal Patel Clearing Forwarding Pvt Ltd vs. Harish Sharma be dismissed for want of cause of action under the provisions of 7 Rule 11 (a) CPC. It is further averred that plaintiff has concealed the fact that the goods were sent to the consignee M/s. Arcadia Group Brands Ltd on Fright Collect basis and was also free on board (in short 'FOB') place of origin New Delhi, which is apparent from the terms set out in the air way bill and in the invoices of the defendant, filed by the plaintiff and in terms of the same, the consignee/buyer was liable to pay the freight charges, which is claimed by the plaintiff from the defendant. It is further averred that the plaintiff has not come before this court with clean hands by concealing the relevant facts of transaction. The defendant has made the payment of various sums to the plaintiff in good faith, though it is liability of the consignee/buyer. It is denied that for want of knowledge that the goods were duly delivered to the consignee/buyer in UK. It is further averred that plaintiff has concealed the fact that goods were free on board and sent on freight collect basis, which means consignee/buyer is responsible for the payment of freight charges and the plaintiff has not disclosed this fact that the plaintiff has filed any proof of delivery of goods. Hence, it is prayed that the suit may be dismissed.
4. In the counterclaim, the defendant averred that suit of the plaintiff is totally misconceived and plaintiff has no right to claim any amount from the defendant. The defendant has admittedly made payment of Rs.2,99,128/ to the plaintiff in good faith due to their previous business transaction, which in fact is not the liability of the defendant. On 10.10.2006, the defendant has requested the plaintiff for reimbursement of the amount paid in good faith. The plaintiff can claim the freight charges only from the consignee/buyer and not from the defendant as the consignment was given as 4/12 Manilal Patel Clearing Forwarding Pvt Ltd vs. Harish Sharma 'FOB'. The plaintiff has failed to return the amount of Rs.2,11,000/ paid on 06.05.2006 and also sum of Rs.42,303/ and Rs.45,825/ paid later on respectively. The plaintiff mischievously raised invoices against the defendant, though as per the terms of shipment, liability to pay freight charges is of the consignee/buyer. Therefore, the defendant is filing the counter claim for the recovery of the amounts admittedly paid in good faith to the plaintiff, which is actually the liability of the consignee/buyer. Therefore, the defendant prayed for decree of Rs.4,33,735.60/ against the plaintiff along with pendentilite and future interest @ 18 % per annum.
5. The plaintiff filed the replication and reiterated the averments made in the plaint. He denied the averments made in the WS/counter claim.
6. On 20.10.2009, the following issues were framed by the Ld. Predecessor of this court :
(1) Whether the suit is liable to be dismissed for want of cause of action under the provision of Order 7 Rule 11 CPC? (OPP) (2) Whether the defendant is entitled to a decree for a sum of Rs.4,33,735.60? (OPD) (3) Whether the defendant is entitled for future interest at the rate of 18% p.a ? (OPD) (4) Relief.
7. The plaintiff in order to prove its case has produced Ms. Geetanjali, authorized representative as PW1 and she tendered her affidavit in evidence as Ex.PW1/1. She relied upon the documents namely board of 5/12 Manilal Patel Clearing Forwarding Pvt Ltd vs. Harish Sharma resolution dated 16.02.2008 as Ex.PW1/A; the invoices along with Airway bills are collectively Ex.PW1/B and Ex.PW1/C; bills/invoices are Ex.PW1/D to Ex.PW1/F; letters dated 30.05.2006, 07.06.206 and 09.10.2006 are collectively Ex.PW1/G; legal notice dated 10.03.2008 as Ex.PW1/H; postal acknowledgment of legal notice as Ex.PW1/I; email dated 18.04.2006 as Ex.PW1/J; communicated dated 07.05.2006 as Ex.PW1/K; invoice dated 10.05.2006 and 18.04.2006 towards the payment of $833 and $ 1084 as Ex.PW1/L and payment received thereof as Ex.PW1/M. PW1 was cross examined by the Ld. Counsel for the defendant. Thereafter, PE was closed vide separate statement.
8. The defendant in order to prove its case has produced Sh. Harish Sharma, defendant as DW1 and he tendered her affidavit in evidence as Ex.PW1/A. He relied upon the documents namely email dated 10.10.2006 as Ex.DW1/1. DW1 was cross examined by the Ld. Counsel for the plaintiff company. Thereafter, DE was closed vide separate statement.
9. I have heard the learned counsel for the plaintiff and the defendant and have perused the record carefully.
My issue wise findings are as under: ISSUE NO.1 AND 2
10. Onus to prove the issues nos.1 and 2 was on the plaintiff. The said issues taken up together because they involve common discussion. To prove this case, Ms. Geetanjali, AR appeared as PW1 and tendered her affidavit as 6/12 Manilal Patel Clearing Forwarding Pvt Ltd vs. Harish Sharma Ex.PW1/A and reiterated the averment of the plaint. The main controversy involved in the present suit with regard to payment of three bills, the details of which are given as under: Bill No. Dated Amount 11020604100251 17/04/06 Rs.253303.00 11020605100144 10/05/06 Rs.316999.00 11020605100145 10/05/06 Rs.979.00 The same are proved as Ex.PW1/D to Ex.PW1/F. PW1 has deposed that defendant has paid to the plaintiff company Rs.2,11,000.00 through cheque no.22953 dated 06.05.2006 and also Rs.42,303.00 and Rs. 45,825.00 were received from the defendant, leaving a balance of Rs. 272153.00 due and payable from the defendant to the plaintiff.
11. It may be noted that defendant has raised invoice Ex.PW1/B for transmitting the goods containing 105 boxes. It was mentioned in the Ex.PW1/B invoice no.006/0607 dated 05.04.2006 that terms of Delivery and payment as FOB/New Delhi meaning thereby that the goods were to be delivered by the plaintiff company on 'free on board' i.e., freight and fare charges was to be paid by the consignee/ buyer. But the case of the plaintiff is that plaintiff company raised HAWB (bill no.037767) Ex.PW 1/C in respect of the goods as detailed in Ex.PW1/B on SADC basis (Shipping air difference charges) and in terms of Ex.PW1/C, plaintiff company raised a bill Ex.PW1/E totaling Rs.3,16,494.02 paise. In the same manner, the defendant also raised Ex.PW1/B invoice no.006/0607 dated 30.03.2006 and delivered 170 boxes of ready made garments containing the same term and conditions of the 7/12 Manilal Patel Clearing Forwarding Pvt Ltd vs. Harish Sharma delivery of the payment on FOB basis/ New Delhi (free on board) and plaintiff company raised bill Ex.PW1/C (HAWB No.037126) on SADC basis and on the said Ex.PW1/C (HAWB No.037126), prepared bill invoice Ex.PW 1/D of Rs.253303.00. It has been contended by the Ld. Counsel for plaintiff that the goods received from the defendant were to be supplied by plaintiff but defendant failed to deliver the goods in time, therefore, at the request by the consignor/seller and consignee/buyer, the goods were sent by air on SADC basis. Therefore, the difference between the air freight and ship freight is to be paid by the defendant/consignee/seller as the consignee has not paid the SADC charges and consignee has paid only shipment freight which has been received by the plaintiff.
12. Per Contra, Ld. Counsel for the plaintiff has contended that defendant raised the invoice No.1215/0506 dated 30.03.2006 and 006/0607 dated 05.04.2006 through Ex.PW1/B for supplying the goods containing 105 and 170 boxes respectively on FOB meaning thereby the plaintiff company was handing over the goods for transmitting the same to consignor in U.K. and freight charges were to be collected from the consignee/buyer. There was no oral or written agreement that the goods were to be supplied by Air transit and consignor/defendant had agreed to bear SADC amount. Otherwise, the amount had admittedly been received by the plaintiff company from the defendant which is to be returned by the plaintiff company to the defendant and defendant has filed counter claim in this regard.
13. It is relevant to mention here that as per the invoice Ex.PW1/B raised by the defendant and admitted by the plaintiff, goods were delivered to 8/12 Manilal Patel Clearing Forwarding Pvt Ltd vs. Harish Sharma the plaintiff company for transit to consignee in U.K. Whereas the stand of the plaintiff is that the consignor/defendant/seller had agreed for supplying the goods through air transit instead of ship transit. But neither plaintiff has led any documentary evidence in this regard nor oral evidence has been led to fortify that goods were sent through air transit at the instance of the consignor or consignee. During the course of the arguments, Ld. Counsel for the plaintiff failed to point out as to on what basis the plaintiff company has treated the terms and conditions on FOB as contained in Ex.PW1/B as SADC basis. There is no evidence on record to infer that either the consignor or consignee directed the plaintiff company to convert the terms and conditions as contained in the bill/invoices Ex.PW 1/B from FOB to SADC. Therefore, the plaintiff has failed to prove that it was provided under the terms and conditions of the delivery of goods supplied to the plaintiff company by defendant that goods were to be supplied through Air Transit and SADC will be borne by defendant. It is relevant to mention here that as per the custom and usages in business sector, the term FOB means 'free on board' means the freight of the goods is to be collected by the transporting agency/defendant from the consignee/buyer. There is no evidence on record that either consignee or consignor has issued the instructions to the plaintiff company to sent the goods through air transit instead of ship transit. Therefore, plaintiff is not entitled for any recovery of amount involved in Ex. PW1/D to Ex.PW1/F. Therefore, these issues no.1 and 2 are decided in favour of the plaintiff and against the defendants.
ISSUE NO.3 9/12 Manilal Patel Clearing Forwarding Pvt Ltd vs. Harish Sharma
14. Onus to prove the issue nos.3 was on the defendant that there is no cause of action in favour of the plaintiff and against the defendant and the suit is liable to be dismissed under Order 7 Rule 11 CPC. No evidence has been led by the defendant. Therefore, this issue is decided in favour of the plaintiff and against the defendant.
COUNTER CLAIM ISSUES NO.2 AND 3
15. To prove the issues nos.2 and 3 of the counter claim, the onus was on the defendant/counter claimant. To prove the counter claim, Sh. Hari Sharma, appeared as DW1 and tendered his affidavitinevidence as Ex.DW1/A and reiterated the averments made in the counter claimcum written statement. DW1 has testified that the goods were to be transported through shipment and the consignee/buyer was to bear the freight charges on FOB basis. The goods were duly received by the consignee at London and the defendant/counter claimant also received the payment of the goods supplied to the consignee. The plaintiff did not receive his dues from foreign consignee and started asking the said amount from the counter claim/defendant whereas the defendant has no liability to pay the liability amount. The counter claim/defendant has paid an amount of Rs.2,11,000/ on 06.05.2006 and thereafter paid an amount of Rs.42,303/ and Rs.45,825/ respectively and paid an amount of Rs.2,99,128/ to the plaintiff in good faith which is the never the liability of the counter claimant. The counter has been filed by the defendant for recovery of the said amount.
10/12 Manilal Patel Clearing Forwarding Pvt Ltd vs. Harish Sharma
16. It may be noted that recovery of the amount as detailed in the counter claim on the ground that on the bonafide mistake and good faith counter claimant paid the said amount to the plaintiff whereas no liability was there on the part of the counter claimant/defendant to pay a single penny to the plaintiff. PW1 has admitted in his cross in para no.4 of the written statement filed by the defendant, that defendant is having regular transaction with the plaintiff company meaning thereby that there were regular transactions with the plaintiff company but the defendant has not placed on record statement of account in respect of the transactions between the plaintiff company and the defendant so as to infer that the amount involved in the counter claim was paid in excess to the other transactions carried out between the plaintiff company and the defendant. The only contentions of the Ld. Counsel for the defendant is that the amount of Rs. 2,99,128/ has been paid by the counterclaimant/defendant to the plaintiff company by mistake in good faith. But no evidence has been led by the counterclaimant/defendant that this amount as claimed in the counter claim was paid in excess to the other transactions which took place between the parties.
Counter claimant/defendant has failed to prove this amount of Rs. 2,99,128/ was paid to the plaintiff company by mistake. Therefore, these issue nos.2 and 3 decided in favour of the plaintiff and against the defendant/counter claimant.
ISSUE NO.1
17. To prove the issue no.1 of the counter claim, the onus was on the 11/12 Manilal Patel Clearing Forwarding Pvt Ltd vs. Harish Sharma plaintiff. But no evidence has been led by the plaintiff in this regard. Therefore, the issue no.1 decided in favour of the counterclaimant/defendant and against the plaintiff.
RELIEF
18. In view of the foregoing discussions, the plaintiff is not entitled for any claim. Hence, the suit of the plaintiff is dismissed, the counter claimant/defendant has failed to prove that the amount involved is due and payable by plaintiff. Therefore, the counter claim is also dismissed. No order as to costs. Decree sheet be prepared accordingly.
File be consigned to the record room.
Announced in the open court, (DR.VIJAY KUMAR DAHIYA) On 28th Day of May, 2015. ADJ(Central07)/DELHI 28.05.2015 12/12 Manilal Patel Clearing Forwarding Pvt Ltd vs. Harish Sharma