Delhi District Court
M/S Inext Logistics And Supply Chain ... vs M/S Yyt Catering Llp on 31 January, 2025
Page no.1 of 21
THE COURT OF SH. ANKIT MITTAL: CIVIL JUDGE-01:
SOUTH WEST DISTRICT: DWARKA COURT: NEW DELHI
Unique case ID No: 69/20
CNR NO. DLSW030000672020
IN THE MATTER OF :
INEXT LOGISTICS & SUPPLY CHAIN PVT. LTD.
Through its AR
Having Its Office At:
Plot No. 3 & 4, 2nd Floor,
Inext Tower, K-1, Block, Raja Puri,
Uttam Nagar, Opp. Sec. -05
Dwarka, New Delhi-110059 .......PLAINTIFF
VERSUS
M/S. YYT CATERING LLP
Through its Partner/s
Registered office at:
D-922, New Friends Colony,
New Delhi-110065.
ALSO AT:
Tusaj, Plot No.90, Udyog Vihar,
Phase-4, Gurgaon, Haryana-122016.
ALSO AT:
23-CC, Zamrudpur, Kailash Colony Extension
New Delhi. ......DEFENDANT
Date of filing : 15.01.2020
Date of Institution : 16.01.2020
Date of pronouncing judgment : 31.01.2025
SUIT FOR RECOVERY OF MONEY.
JUDGMENT.
Brief of the plaint:
1.It is averred in the plaint that the plaintiff company M/s.
Digitally signed by ANKIT ANKIT Date:
MITTAL MITTAL 2025.01.31 Civil Suit No. 69/20 Judgment dt.31.01.2025 16:56:21 +0530 Page no.2 of 21 Inext Logistics and supply Chain Pvt. Ltd is a private limited company and the present suit has been filed through authorized representative Mr. Rajan Verma. The plaintiff firm is inter-alia engaged in business of transportation, logistics and warehousing service and is serving in this Industry from last several years.
2. It is averred that the plaintiff company based upon the eloquent representations of the defendant company for requirement of above said logistics services, the plaintiff company got agreed and subsequent thereto, the plaintiff company provided the said services to the defendant and had raised tax invoice/s in lieu of the said services and used to maintain the running account of the defendant.
3. It is further submitted that as per the books of account maintained by the plaintiff company has on date, the total outstanding is Rs.2,17,210/- without including interest. The defendant in blatant disregard and flagrant violations of the contractual duties failed to clear the above said outstanding dues till date. Thereon despite demands being raised repeatedly by the plaintiff company, the defendant had failed to clear the outstanding amount with the plaintiff company.
4. It is averred that the plaintiff company send the legal demand notice dt. 16.12.2019 at the above mentioned address of the defendant through post, which were duly served upon the defendant. Hence, plaintiff seeks to pass a decree for a sum of Rs.2,33,500/- in favour of plaintiff company and against the defendant, together with interest Digitally signed by ANKIT ANKIT Date:
MITTAL MITTAL 2025.01.31 Civil Suit No. 69/20 Judgment dt.31.01.2025 16:56:34 +0530 Page no.3 of 21 on the aforesaid amount @ 18% per annum from the date of filing of this suit till the date of realization alongwith costs of the suit.
5. Defendant has appeared and filed the Written statement.
6. In the Written Statement it is submitted that. the plaintiff has not come to the Court with clean hands and has suppressed the material facts. It is submitted that the plaintiff was assign to transport some catering items from Tuli House 90, Udyog Vihar Ph-4, Gurugram Haryana to House No. 22B, Road No.7, Block-F, Banani, Dhaka, Bangladesh with all border custom clearance, however, the plaintiff neither deliver aforesaid catering items at destination nor informed the whereabouts of the items to the defendant till now despite the repeated request of the defendant. It is further submitted that the catering items were handed over to M/s Sugam Parivahari Pvt. Ltd. at the instruction of the plaintiff on 19.06.2019 against a receipt with list of packed items but the plaintiff had failed to deliver the said catering items at destination and misappropriated the same without the knowledge of the plaintiff. It is also submitted that the defendant had supplied all the requisite details and documents to the plaintiff whatever were demanded by the them but the plaintiff has misused/misappropriated all the items of the defendant which were handed over to the representative of the plaintiff and the plaintiff has filed the case without completing the assigned task. The suit of the plaintiff is bad in eyes of law and is liable to be dismissed on the Digitally signed by ANKIT ANKIT Date:
MITTAL MITTAL 2025.01.31 Civil Suit No. 69/20 Judgment dt.31.01.2025 16:56:41 +0530 Page no.4 of 21 ground of non-joinder of parties as the plaintiff has failed to implead M/s Sugam Parivahan Pvt. Ltd. who were received catering goods from the defendant on behalf of the plaintiff which were neither delivered to the consignee nor returned to the defendant.
7. It is further submitted that the defendant had entrusted the catering items worth of Rs. 3,10,260.75/- to the plaintiff which was misappropriated by them. Therefore, the present suit has been filed by the plaintiff against the defendant without having of any cause of action and the plaintiff wrongly narrated the cause of action that the defendant had availed the service of the plaintiff, however, the plaintiff had failed provide service and misappropriated the goods by committing breach of trust.
8. Defendant denied all the content of the plaint and submitted that the plaintiff is trying to extort money from the defendant by illegally using the process of law. Mr. Amar Khurana Director of the plaintiff company had threatened to Mr. Varun Tuli representative of the defendant to implicate him in the false ED cases and sent his people at the residence and office of Mr. Varun Tuli. It is further submitted that the plaintiff had informed the defendant that the goods are stuck at India Bangladesh Border and they are not able to complete the assign work, however, the plaintiff neither provide details where the aforesaid goods were stuck nor took back same to the premises defendant.
9. It is submitted that the plaintiff had misrepresented that Digitally signed by ANKIT ANKIT Date:
MITTAL MITTAL 2025.01.31 Civil Suit No. 69/20 Judgment dt.31.01.2025 16:56:49 +0530 Page no.5 of 21 they have experience and they will deliver the catering items at destination in Bangladesh before 30.06.2020, however, the plaintiff had neither delivered the catering items at destination in Bangladesh nor returned the same to the defendant and due to which the defendant suffered losses to the tune of Rs. 30,00,000/- including the cost of the catering items.
10.Issues were framed by Ld. Predecessor on 13/12.2021 as follows:
i. Whether the plaintiff is entitled to a money decree of Rs.2,33,500/- against the defendant with interest @ 18% per annum pendente-lite and future interest with costs of the suit? OPP.
ii. Relief.
11.The plaintiff only examined one witness on his behalf i.e. AR of the plaintiff company who stepped into the witness box and examined himself as PW1. In his testimony, PW1 tendered his evidence by way of affidavit being Ex.PW1/A and he reiterated the contents of the plaint and also relied upon the following documents:
1) True copy of the certificate of incorporation and board of resolution is Ex.PW1/1(colly). (OSR)
2) True copy of invoice is Ex.PW1/2.
3) True copy of statement of account maintained by deponent Ex.PW1/3.
4) True copy of emails alongwith the certificate u/s. 65 B of Indian Evidence Act is Ex.PW1/4(colly).
5) Copy of legal notice dt. 16.12.2019 alongwith its postal Digitally signed by ANKIT ANKIT Date:
MITTAL MITTAL 2025.01.31 Civil Suit No. 69/20 Judgment dt.31.01.2025 16:56:56 +0530 Page no.6 of 21 receipt is Ex.PW1/5 (colly).
6) Copy of whatsapp chat alongwith Certificate U/s. 65 B of Indian Evidence Act is Ex.PW1/6(colly).
12.In the cross-examination, PW1 deposed as under:
"I am working in the plaintiff company as sales manager since 2011. I am personally aware about the facts of the case. I can read and understand English language. I aware about the contents of affidavit Ex.PW1/A. The order was received to the plaintiff through email and verbal communication. I do not know whether the email through which the order was issued are filed on record or not. At this stage, witness has shown the case file and after seeing the file, the witness confirms that the order/ email is not on record. We used to send the quotation to the party. In this case also, we have given quotation to the defendant. Copy of the same is filed on record. After seeing the file, witness has confirmed that quotation is not on record. (vol- however we have filed invoice which is Ex.PW1/2 and email Ex.PW1/4(colly). At this stage, witness has shown email dt. 15.06.2019 which is now Ex.PW1/DX1 from point A to B being admitted by the witness.. The work as per quotation Sr. no.1 to 6 vide Ex.PW1/DX1 was assigned to the plaintiff by the defendant. It is correct that the plaintiff was supposed to get the custom clearance as per the assignment mentioned at Sr. No.3 vide Ex.PW1/DX1 and plaintiff did get the custom clearance for assignment mentioned at Sr. No.3. Plaintiff has received the said custom clearance certificate from the concerned authority. The said copy of Custom clearance certificate is not on record. I do not remember to whom the custom clearance certificate was handed over. (vol- I do not remember the name of the person from the defendant company to whom the said custom clearance certificate was handover). I do not remember the name of the authorized person of the plaintiff company who handed over the said certificate to the defendant. It is wrong to suggest that the said custom clearance certificate was never handed over to the defendant. Once we received the clearance certificate, we shipped the consignment to Digitally signed by ANKIT ANKIT Date:
MITTAL MITTAL 2025.01.31 16:57:05 Civil Suit No. 69/20 Judgment dt.31.01.2025 +0530 Page no.7 of 21 Benapole Petrapole Border and the same was received by the agent of defendant at the said border Dhaka Bangladesh. We also received the acknowledgment over the billty from the defendant agent. The said acknowledgment is not placed on record. It is wrong to suggest that the same has not been placed on record because we never handed over the consignment to the agent of defendant. It is correct that consignment was received by the Sugam Parivahan Pvt. Ltd. who was nominated transporter of the plaintiff' company. It is correct the acknowledgment which was issued to the defendant against receipt of catering items / shipment was handed over to us. I do not know whether I have filed the said document on record or not. At this stage, the witness is shown the affidavit Ex.PW1/A. It is correct that the paragraph 9 of my affidavit Ex.PW1/A is not mentioned in my original plaint, however, the same has been mentioned in the replication. At this stage, the witness is shown Ex.PW1/6 (colly).
Q. Can you show where it is mentioned that the custom clearance has been done and the acknowledgment is received from the agent of the defendant? Ans. Yes, it is mentioned in Ex.PW1/6 (colly), which is marked as Mark A over Ex. PW1/6 till Mark B over Ex.PW1/6.
It is wrong to suggest that Mark A to Mark B in Ex.PW1/6 (colly) does not mentioned that the shipment was delivered or acknowledgment of the same was received by the agent of the defendant. It is correct that in Ex.PW1/6(colly) the name of the person who received the consignment on behalf of defendant is not mentioned in the whatsapp chat (vol- the mobile number of defendant agent and defendant are mentioned). It is correct that at the time of handing over the shipment to the agent of the defendant at Dhaka side, I was personally present. The acknowledgment was received by Sugam Parivahan Pvt.
Ltd. (vol- the shipment was handed over to the agent of the defendant at Bangladesh side border and I was not allowed to enter the Bangladesh side.). It is wrong to suggest that I was not present personally and I am deposing falsely. Custom clearance certificate was also Digitally signed by ANKIT ANKIT Date:
MITTAL MITTAL 2025.01.31 Civil Suit No. 69/20 Judgment dt.31.01.2025 16:57:11 +0530 Page no.8 of 21 received by the Sugam Parivahan Pvt. Ltd. I can not say whether I have mentioned in the plaint that Sugam Privahan Pvt. Ltd. was assigned by plaintiff to complete the work order of the defendant. It is wrong to suggest that I have deliberately concealed the aforesaid fact in my plaint. It is wrong to suggest that the plaintiff had not completed the assigned work order. It is wrong to suggest that the plaintiff has misappropriated the catering items / consignment and never delivered the shipment to the agent of defendant either at the Dhaka border or in Ghitorni, Delhi. It is wrong to suggest that defendant does not owe any liability against the plaintiff. I have flight booking details which shows that I was present at the Dhaka border. I have not filed the same on record. It is wrong to suggest that booking details means that he was present at the Dhaka Border. It is wrong to suggest that I was not present at the Dhaka border with the consignment and I have placed the forged and fabricated whatsapp chat i.e. Ex.PW1/6 (colly). It is wrong to suggest that I am deposing falsely".
13.The defendant has examined one witness on his behalf i.e. AR of the defendant company who stepped into the witness box and examined himself as DW1. In his testimony, DW1 tendered his evidence by way of affidavit being Ex.DW1/1 and he reiterated the contents of the WS and also relied upon document i.e. board of resolution Ex.DW1/1.
14.In the cross-examination, DW1 has stated as under:
"It is correct that I have signed the evidence affidavit Ex.DW1/1 after going through the contents of the same and does not require any correction and change in the same. I am working with the defendant firm as CEO since September or October, 2014. I am aware about the facts and circumstances of the present case on personal basis also. It is correct that defendant firm had handed over the catering items to the Sugam Parivahan Agent of the Civil Suit No. 69/20 Judgment dt.31.01.2025 Page no.9 of 21 plaintiff company, against the acknowledgement. Q. Have you filed the aforesaid acknowledgement on record?
Ans. Yes. It is marked as Mark DX.
Q. Can you show any sign or stamp of the plaintiff company on the said acknowledgement Mark DX? Ans. It is correct that there is no sign or stamp of the plaintiff company on the said acknowledgement Mark DX.
It is wrong to suggest that I am deposing falsely that is why I have not placed the said document on record. It is wrong to suggest that at the time of handing over the shipment, no packaging list was handed over to the plaintiff that is why the same does not bear the sign and stamp of the plaintiff company. The present shipment was handed over to the plaintiff some where between 15 to 25 of June 2019. It is wrong to suggest that defendant had initially sought the quotation of the present shipment from Delhi NCR to destination situated at Dhaka and later on the same was modified to Dhaka border only. It is wrong to suggest that the shipment was handed over to the plaintiff for Dhaka border as mentioned in para no. 2 of evidence affidavit Ex.DW1/1. It is wrong to suggest that the chain of email communications between the parties which are placed on record are not complete. It is wrong to suggest that I deliberately not filed the complete email communications. It is correct that I have not placed on record any document which shows the valuation of the consignment. At this stage, the witness is shown the document Mark DX to which witness states that Mark DX shows the valuation of the consignment. It is wrong to suggest that valuation as mentioned in para 6 of the evidence affidavit Ex.DW1/1 is not correct valuation of the consignment. I understand the meaning of cause of action. It is correct that I do not understand the legal term as mentioned at para no. 7, 8 and 9 of evidence affidavit Ex.DW1/1. (vol- that I have mentioned these facts on the basis of advise of my counsel).
It is wrong to suggest that counsel had prepared the evidence affidavit and I do not know the contents mentioned in the evidence affidavit. I t is correct that I Civil Suit No. 69/20 Judgment dt.31.01.2025 Page no.10 of 21 have not placed any document on record to justify that damage of Rs.30 lacs has been caused to the defendant due to non-delivery of shipment to consignee. It is wrong to suggest that no loss has been suffered by the defendant that is why I have not placed any document on record. Q. When the shipment was not delivered and goods were not reached at the Dhaka Border as agreed between the parties, have you made any complaint and query regarding that to the plaintiff?
Ans. Yes. I have not placed any such document showing that I had made any complaint or query. It is correct that have not filed any complaint to the police regarding alleged misappropriation or breach of trust against the plaintiff. It is correct that as alleged in para no. 11 of my affidavit regarding the extortion and threats to Mr. Varun Tuli, defendant had not filed any police complaint in this regard. It is wrong to suggest that no such incident of threat and extortion had happened that is why no complaint is made in this regard. It is correct that the plaintiff ha snot given any written commitment of delivering the consignment on or before 30.6.2019, however, plaintiff has assured us that the consignment will be delivered in time. It is wrong to suggest that plaintiff had never committed or assured to deliver the consignment on or before 30.6.2019 that it why no document has been placed on record in this regard. It is correct that whatsapp group between the plaintiff and defendant's representatives and person concerned with the shipment were created. I was also a member of the said whatsapp group through my phone number which is at point A on Ex.PW1/6 (colly). Mr. Sigma and Bulbul are the consignee of the shipment. It is wrong to suggest that Mr. sigma and Bulbul are the authorized agents from Bangla side who are responsible for handling the shipment after receiving the same from the plaintiff. It is wrong to suggest that on 29.6.2019 the plaintiff had categorically informed me that the L.C which was sent by the defendant's agent is fake and same has been caught by the custom department. At this stage, witness has shown the document Ex.PW1/6(colly) more specifically point B, wherein the plaintiff had informed that "custom has seen Civil Suit No. 69/20 Judgment dt.31.01.2025 Page no.11 of 21 that L.C. is fake and please immediately arrange true copy of LC else the shipment will be stuck." to which I had replied "what can be done". (vol- the information was received by me, however, I did not confirm whether the LC is fake. I cannot say the custom clearance process starts only after receipt of physical goods/ truck at the custom office.
Q. The AR of the plaintiff had stated in the Chat at Point C in Ex.PW1/6 (colly) to get the shipment cleared while defendant get the certified copy of the LC (Letter of credit) from the Bank. What have you to say?
Ans. LC was being procured by the plaintiff with the people in Dhaka. It was their internal matter and whatever paper we have to give, we gave the same to the plaintiff in Delhi. I have no idea of second shipment as mentioned in the said conversation dt. 29.6.2019 at 12.54 pm. It is wrong to suggest that plaintiff had made every efforts which were not the duty of the plaintiff but just support the defendant, so that the shipment can be cleared from the custom department on time. (vol- Ex.DW1/B states that the plaintiff has himself stated that "he will try our level best on time" whereas the defendant has made it clear that shipment needs to be delivered by 30 th June latest). It is further wrong to suggest that due to fake L.C. made by the defendant, the shipment was delayed. It is wrong to suggest that on 02.07.2019 shipment had crossed the Dhaka border. At this stage, witness is shown the document which is Ex.PW1/6(colly) more specifically Mark A to B. The witness is put a question that at point C to D you have mentioned that "right now the truck number is 200 and Ankit is trying to get it to the first 10" , is it presumed that the vehicle has crossed the border?
Ans. The term "truck number is 200" reflects that the truck / shipment is at queue no.200 which was later on moved to 10 number. It is wrong to presume that the vehicle had crossed the border as Ankit Panchal had informed us on whatsapp group that the shipment has been cleared, however, Ankit Panchal left the whatsapp group after sending the said information regarding clearing the shipment. I do not know if the shipment had crossed the Civil Suit No. 69/20 Judgment dt.31.01.2025 Page no.12 of 21 border.
It is wrong to suggest that Ankit did not leave the group or dismantled the group after sending the final information regarding the movement of shipment. We made our efforts to track the shipment by making calls to Ankit Panchal. It is correct that I have not filed any document or issued any letter in form of query to Sh. Ankit Panchal or the plaintiff regarding the whereabouts of the shipment on or after 2.7.2019. I have filed the document i.e. Ex.DW1/B email dt. 01.7.2019 sent to Sh. Ankit Panchal seeking the status of the shipment / goods. It is wrong to suggest that I did not make any efforts to trace the whereabouts of the shipment. It is wrong to suggest that I am deposing falsely."
15.DE was closed on 15.07.2023 and final arguments were heard.
Issue-wise findings as under:
16.ISSUE NO.1: Whether the plaintiff is entitled to a money decree of Rs.2,33,500/- against the defendant with interest @ 18% pr annum pendente-lite and future interest with costs of the suit? OPP.
17.The onus to prove the same was upon the plaintiff in the present matter.
18.Primarily, the case of the plaintiff is that the plaintiff company is engaged in the business of transportation, logistics, and warehousing services for last several years. Further, the plaintiff company based upon the eloquent representations of the defendant firm made through it's owner Mr. Varun Tuli for the requirement of above-said logistic services, it provided the services to the defendant for the shipment of goods from Delhi to Dhaka border only and thereafter the shipment was handed over to the Civil Suit No. 69/20 Judgment dt.31.01.2025 Page no.13 of 21 authorized person of defendant. It is also submitted that plaintiff company had raised tax invoice worth Rs. 2,17,210/- in lieu of services provided and same is unpaid till date. Hence, the plaintiff was constrained to file the present suit.
19.Per Contra, the defendant firm vehemently denied the submissions on the behalf of the plaintiff company. It was argued that the plaintiff was assigned to transport some catering items from Tuli House, 90 Udyog Vihar, phase 4, Gurugram, Haryana to House no. 22B, Road no.7, Block 7, Banani Dhaka, Bangladesh with all the border custom clearance, however, plaintiff neither delivered the catering items at the destination nor has informed the whereabouts of the items to the defendant till now despite repeated requests of the defendant. It was further submitted that the catering items were handed over to M/s Sugam Parivahan Pvt. Ltd upon the instructions of the plaintiff on 19.06.2019 against a receipt with the list of packed items, but the plaintiff had failed to deliver the said items at the destination and misappropriated the same without the knowledge of the defendant. Hence, it was concluded that there is no liability of defendant firm against plaintiff company, thus it was prayed that the present suit should be dismissed.
20.At this juncture, it is relevant to refer the landmark judgment of Hon'ble Supreme Court of India passed in the case titled as Dr N.G Dastane v Mrs S Dastane in AIR 1975 SCC 1534, wherein it discussed the concept of Civil Suit No. 69/20 Judgment dt.31.01.2025 Page no.14 of 21 burden of proof in the Civil law and relevant paragraph is reproduced herein as under:
"...24.The normal rule which governs civil proceedings is that a fact can be said to be established if it is proved by a preponderance of probabilities. This is for the reason that under the Evidence Act, Section 3, a fact is said to be proved when the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. The belief regarding the existence of a fact may thus be founded on a balance of probabilities. A. prudent man faced with conflicting probabilities concerning a fact-situation will act on the supposition that the fact exists, if on weighing the various probabilities he links that the preponderance is in favour of the existence of the particular fact. As a prudent man, so the court applies this test for finding whether a fact in issue can be said to be proved. The first step in this process is to fix the probabilities, the second to weigh them, though the two may often intermingle. The impossible is weeded out at the first stage, the improbable at the second. Within the wide range of probabilities the court has often a difficult choice to make but it is this choice which ultimately determines where the preponderance of probabilities lies. Important issues like those which affect the status of parties demand a closer scrutiny than those like the loan on a promissory note :
"the nature and gravity of an issue necessarily determines the manner of attaining reasonable satisfaction of the truth of the issue" Per Dixon, J. in Wright v. Wright (1948) 77 C.L.R. 191 at p. 210; or as said by Lord Denning, "the degree of probability depends on the subject-matter. In proportion as the offence is grave, so ought the proof to be clear" Blyth v. Blyth [1966] 1 A.E.R. 534 at 536. But whether the issue is one of cruelty or of a loan on a pronote, the test to apply is whether on a preponderance of probabilities the relevant fact is proved. In civil cases this, normally, is the standard of proof to apply for finding whether the burden of proof is discharged...."
Civil Suit No. 69/20 Judgment dt.31.01.2025 Page no.15 of 21
21.Keeping the aforesaid said principles of law of evidence in the mind, let's advert to facts of the present case in hand.
22.It is relevant to mention to here that upon the perusal of pleadings and evidence of both the parties, it is admitted fact that there was business relations between the parties. It is further admitted that there is agreement between the parties that the plaintiff company will ship the goods for defendant however the ultimate destination for delivery is disputed. It is also admitted by the parties that defendant had handed over goods to M/s Sugam Parivahan Pvt. Ltd, who was the carrier nominated by the plaintiff and had to deliver goods at the target destination. The main controversy to be decided in the present suit is whether the plaintiff was able to deliver the goods at agreed destination or not, so to be able to raise claim over the amount mentioned in the invoice raised by the plaintiff.
23.During trial, the AR of the plaintiff company ie Sh. Ankit Panchal has examined himself as PW1 on behalf of the plaintiff company. During his examination in chief, the plaintiff deposed the contents of plaint in his evidence affidavit Ex.PW1/A. Further in order to prove the plaintiff's case, he also placed on record, the documentary evidence ie Copy or certificate of incorporation and board of resolution Ex. PW1/1 (Colly), Copy of invoice Ex. PW1/2, Copy of Statement of account maintained by plaintiff Ex PW 1/3, Copy of emails along with certificate u/s 65-B of Indian Evidence Act ExPW1/4(colly), Copy of legal notice dt. 16.12.2019 along with postal receipt Civil Suit No. 69/20 Judgment dt.31.01.2025 Page no.16 of 21 ExPW1/5(colly), Copy of what's app chat along with certificate u/s 65-B of Indian Evidence Act ExPW1/6(colly).
24.That, in view of given facts and arguments advanced on behalf of parties, it was incumbent upon the plaintiff to prove that it delivered goods at the agreed destination of the both parties, so to be entitled for the judgment in the present suit. It is relevant to mention here that the major thrust of the plaintiff's argument was that their responsibility was to deliver goods at the India-Dhaka border not to deliver goods inside Dhaka city, which was contested by the defendant on the ground that plaintiff has neither delivered the catering items at the destination ie inside Dhaka city nor has informed the whereabouts of the items to the defendant till now despite repeated requests of the defendant. Pertinently, upon the perusal of evidence on record, it seems that plaintiff has failed to prove its aforesaid contention. Admittedly, PW1/AR of the plaintiff in his cross examination dated 01.11.2022, states that though plaintiff company has received the custom clearance from the concerned authority against said assignment, however interestingly plaintiff has not filed the custom clearance certificate with it's plaint, which could have been clinching evidence to establish that plaintiff had delivered the goods at Dhaka border after completing all formalities. Again, AR of the plaintiff/ PW-1, admits that after receiving the clearance certificate, they shipped the consignment to Benapole Petrapole Civil Suit No. 69/20 Judgment dt.31.01.2025 Page no.17 of 21 Border and same was received by the agent of the defendant, which also gave the acknowledgment on the bility and same was received by the plaintiff company as well. Now, importantly, again plaintiff has not placed the acknowledgment on record, which could have easily proven the case of plaintiff that they delivered the consignment at the border and handed over the goods to the agent of the defendant, however, reasons best known to the plaintiff, they withheld the best evidence from the Court. Pertinently, it is admitted case of the plaintiff that aforesaid acknowledgment given by the defendant was received by its agent ie M/s Sugam Parivahan Pvt. Ltd, when it handed over consignment to the agent of defendant at Dhaka Border, however despite being material witness for proving the delivery of goods or factum of acknowledgment given by the defendant, even then also, plaintiff didn't called him in witness box to prove the aforesaid facts and same appears to be material omission on the part of the plaintiff.
25.At this point, it is material to place reliance upon the judgment passed by the Hon'ble Apex Court, in a case reported in AIR 1968 SC 1418 in Gopala Krishnoji Ketkar Vs. Mohammed Haji Lathif's wherein it was held that " A party in possession of best evidence which would throw light on the issue in the controversy with holding it, Court ought to draw an adverse inference against him notwithstanding that onus of proof does not lie on him. Party cannot rely on abstract doctrine of onus of proof or Civil Suit No. 69/20 Judgment dt.31.01.2025 Page no.18 of 21 on the fact that he was not called upon to produce it..."
26.Further, in the light of findings given by the Hon'ble Supreme Court as stated above, it can be said that plaintiff by withholding the best evidences which were in the possession of the plaintiff has suppressed the material facts from this facts, therefore adverse inference in terms of Section 114 (g) of the Indian Evidence Act, 1872 can be drawn against the plaintiff, in the given factual matrix of the present suit.
27.Now, coming to the other documentary evidence placed on record by the plaintiff for proving the delivery that is what's app chat conversation between the parties ie Ex.PW1/6 (colly) and emails Ex.PW1/4 (colly). It is relevant to mention here that DW1/AR of the defendant firm ie Sh. Vinit Gupta has admitted in his cross examination dated 24.01.2023 that he was the part of the whatsapp group created by the officials of plaintiff company and he was also a member of the said whatsapp group through his number. However, despite that plaintiff has not been successful in proving the said what's app conversation between the parties. It is pertinent to mention that the what's app conversation placed on record is not complete in nature, in the sense it doesn't contain media images. Further, it can be said from the common knowledge that media/ emojis conveys true meaning of intention of parties more than words. Moreover, the whatsapp conversation placed on record is abrupt in nature since it can't be deciphered whether there was more what's Civil Suit No. 69/20 Judgment dt.31.01.2025 Page no.19 of 21 app conversation between the parties or not. Therefore, no reliance can be placed on incomplete what's app chats placed on record by the plaintiff. Further, the emails conversation between the parties placed on record by the plaintiff doesn't substantiate its version rather it points at contradictions in it's version, since upon the perusal of same reveals that almost at same time ie 15.06.2019, around almost same time ie around 12 pm, two different quotations were sent by the plaintiff to defendant qua the shipment of goods in question ie, one for shipment of goods at Dhaka Border and other for delivery of goods inside in Dhaka City on whatsapp chat and email placed on record by the plaintiff respectively, therefore to come at the conclusion that goods were meant to be sent at a particular point is not feasible. Further, from the perusal of emails, with clarity it can't concluded that goods were delivered by the plaintiff at the agreed destination of the parties. Hence, it can be said that plaintiff is not able to successfully prove its case on scale of preponderance of probabilities also.
28.Further, a reliance can be placed upon the judgment passed by the Hon'ble Supreme Court of India in case title as as Anil Rishi vs Gurbaksh Singh AIR 2006 SCC 1971, wherein it was observed "......There is another aspect of the matter which should be borne in mind. A distinction exists between a burden of proof and onus of proof. The right to begin follows onus probandi. It assumes importance in the early stage of a Civil Suit No. 69/20 Judgment dt.31.01.2025 Page no.20 of 21 case. The question of onus of proof has greater force, where the question is which party is to begin. Burden of proof is used in three ways : (i) to indicate the duty of bringing forward evidence in support of a proposition at the beginning or later; (ii) to make that of establishing a proposition as against all counter evidence; and (iii) an indiscriminate use in which it may mean either or both of the others. The elementary rule is Section 101 is inflexible. In terms of Section 102 the initial onus is always on the plaintiff and if he discharges that onus and makes out a case which entitles him to a relief, the onus shifts to the defendant to prove those circumstances, if any, which would disentitle the plaintiff to the same...."
29.In view of the above observations and on taking the same holistically, it is concluded that plaintiff could not discharge onus to prove it's own case on the scale of preponderance of probabilities in respect of that it had to deliver the goods at the Dhaka border only. Accordingly, further defence of the defendant that goods was meant to be delivered at inside limits of Dhaka City by the plaintiff need not be looked into, since the plaintiff has failed to discharge the onus of proving the same. Therefore, Issue no. 1 is accordingly decided against the plaintiff and in favour of the defendant.
30.Accordingly, the present suit of the plaintiff is hereby dismissed.
31.Parties to bear own costs.
32.Decree sheet be prepared accordingly.
Digitally signed by ANKIT ANKIT Date:
MITTAL MITTAL 2025.01.31 Civil Suit No. 69/20 Judgment dt.31.01.2025 16:57:26 +0530 Page no.21 of 21
33.File be consigned to Record Room after compliance with due formalities.
ANNOUNCED IN THE OPEN Digitally signed by ANKIT ANKIT MITTAL COURT ON 31.01.2025 MITTAL Date: 2025.01.31 16:57:32 +0530 (ANKIT MITTAL) CIVIL JUDGE-01(SW)/DWARKA COURTS NEW DELHI Civil Suit No. 69/20 Judgment dt.31.01.2025