Delhi District Court
Delhivery Ltd vs M/S Rk Energy on 19 December, 2023
IN THE COURT OF SH. VIDYA PRAKASH
DISTRICT JUDGE (COMMERCIAL COURT)-02
NEW DELHI DISTRICT, PATIALA HOUSE COURTS
NEW DELHI
CS (COMM) No. 181/2023
CNR No. DLND01-002978-2023
IN THE MATTER OF :-
DELHIVERY LTD.
N24-N34, S24-S34, AIR CARGO LOGISTICS CENTRE-II,
OPPOSITE GATE 6 CARGO TERMINAL,
IGI AIRPORT, NEW DELHI-110037.
[email protected]
......PLAINTIFF
VERSUS
M/S RK ENERGY
THROUGH ITS PROPRIETOR
MR. PRAGNESH SHUKLA,
01, RUSHIKESH VILLA, RAJPATH NAGAR,
BOPAL DASKROI, BOPAL, AHMEDABAD,
GUJARAT-380058
MOB: 9769422550, 9825022553
ALSO AT:
422, AXIOM AMRAPALLI, ABOVE BOPAL,
ICU TRAUMA CENTRE, BOPAL CROSS
ROAD, BOPAL, AHMEDABAD-380058
[email protected]
......DEFENDANT
Date of institution of suit : 27.03.2023
Date of reserving judgement : 19.12.2023
Date of pronouncement of judgement : 19.12.2023
JUDGEMENT
1. Vide this judgment, I shall dispose off the present suit for recovery of Rs.31,19,777/- alongwith interest and costs, filed by the plaintiff against the defendant.
CS (Comm) No. 181/2023 Page 1 of 16BRIEF FACTS OF THE CASE:
2. Brief facts of the present case, as discernible from the relevant paras of the plaint, are as under :
(i.) That the plaintiff is a company duly incorporated under the Companies Act, 1956. The plaintiff company is engaged in providing services through a combination of world-class infrastructure, logistics operation along with the highest quality and cutting-edge engineering and technology capabilities and enjoys good reputation in national and international market.
(ii.) That earlier (at the time of transaction with the Defendant, and also at time of filing the pre-suit mediation) the Plaintiff company was a private limited company, however, after filing of the pre- suit mediation (and issuance of non-starter report by the DLSA), the status of the plaintiff company changed from a private limited company to a limited company, hence, the captioned suit has been filed as and under the name of "Delhivery Limited", and not "Delhivery Private Limited".
(iii.) The Defendant is stated to be a proprietorship firm being managed and operated by its sole proprietor, namely Sh. Pragnesh Shukla. It is case of the plaintiff that the Defendant, through its Proprietor and authorized representatives approached the plaintiff and after numerous rounds of discussions between the parties, the Defendant had entered into CS (Comm) No. 181/2023 Page 2 of 16 a contractual framework with the Plaintiff, and subsequently the Defendant engaged the Plaintiff for providing Services to the Defendant. That for the supply of Services by the Plaintiff to the Defendant, the parties had entered into a Service Agreement dated 24th January 2020.
(iv.) It is further case of the plaintiff that the Plaintiff having adequate facilities, infrastructure, manpower, etc. to provide diversified logistic services was engaged by the Defendant to provide numerous services, including but not limited to providing pick-up & delivery of goods/consignments of the Defendant between designated points, storage services, goods tracking services, etc. being as, where and when required by the Defendant.
(v.) That the Plaintiff provided the required Services to the Defendant, and the said services were duly acknowledged by the Defendant. That the said Services were provided from/at numerous places (being as and where required by the Defendant) including but not limited to/at Rajasthan, Gujarat etc., and the said services were availed by the Defendant for the purpose of shipment of goods from several places to/at the factory/warehouse of the Defendant (as represented to the Plaintiff), along with shipment to additional other places. It is also case of the plaintiff that the services provided by the Plaintiff were duly accepted & CS (Comm) No. 181/2023 Page 3 of 16 acknowledged by the Defendant, and this being without any protest or demur of any manner whatsoever as the Services provided by the Plaintiff were of utmost quality, and being in lieu of the requirements of the Defendant.
(vi.) That the original Proof of Delivery (ROD's for services provided were accordingly shared with/upon the Defendant, and where the POD's were/could not be shared then the Plaintiff had accordingly issued/raised Indemnity Bonds towards the same categorically affirming and acknowledging that the required services have been provided. That the said Indemnity Bonds were duly accepted by the Defendant and no issue/dispute of any manner whatsoever was ever raised by the Defendant, hence, the said factum evidently proves that the Services were duly provided in lieu of the requirements of the Defendant, and the same being duly accepted.
(vii.) That against the Services provided, with time, the Plaintiff raised invoices upon the Defendant (i.e. hard copies/originals were shared). That the said invoices were raised seeking payment qua the Services provided by the Plaintiff on an FTL (being Full Truck Load) basis. That the said original invoices were served upon the Defendant on their respective dates itself (and/or a day or two after the date of them being raised), and the Defendant was under obligation to make payment towards the said CS (Comm) No. 181/2023 Page 4 of 16 invoices within a period of 30 (thirty) days.
(viii.) It is alleged that the defendant has failed to make any payment whatsoever to the Plaintiff, and has blatantly violated the Agreement executed between the parties.
(ix.) That the Services were provided by the Plaintiff to the Defendant starting from January 2020 till March 2020, and accordingly separate invoices were raised subsequent to the services being provided with respect to such invoices (i.e. the invoices were raised starting from 31 March 2020 till July 2020). However, till date the Defendant has failed to make any payment whatsoever to the Plaintiff against any of the invoices raised by the Plaintiff.
(x.) That against each invoice the payment was to be made within 30 (thirty) days from the date of the invoice, and hence, interest @18% p.a. is due, payable and to be calculated from the 31 day of the date of each invoice till actual payment. That the Plaintiff has filed a detailed interest calculation wherein the interest has been duly calculated for/towards each invoice qua which payment has not been made, and the said interest has been calculated from the 31" date of each invoice (keeping an additional time period of 10 days as the grace period, in the case of invoices being delivered a day or two after the respective invoice date), and CS (Comm) No. 181/2023 Page 5 of 16 has been calculated till 31.01.2023 (i.e. the filing of the captioned suit).
(xi.) It is also case of the plaintiff that against part payment of the due and payable amount by the Defendant to the Plaintiff, the Defendant after numerous requests from the Plaintiff had issued three cheques (bearing no. 669389, 669391 & 669390) to the Plaintiff with each cheque being for an amount of Rs.4,00,000/- (INR Four Lakh), and had further assured & represented to the Plaintiff that the said cheques shall be duly honoured as and when presented, however to no success, as the said cheques as and when presented were dishonored.
(xii.) That aggrieved by the deceitful and decisive acts of the Defendant and their failure to pay the amount due and payable to the Plaintiff; the Plaintiff company was constrained to send a legal notice dated 17th September 2020 to the Defendant pursuant to which the Plaintiff terminated the said Agreement executed between the parties resulting out of non-payment of the amount by the Defendant, and further requested the Defendant to make the payment of the due amount to the Plaintiff (being as accounted/computed by the Plaintiff as on the date of the said notice).
(xiii.) That after the receipt of the Legal Notice, the Defendant requested an additional time period for making payment of the complete due amount and CS (Comm) No. 181/2023 Page 6 of 16 issued a post-dated cheque for an amount of Rs.15,00,000/- (being cheque bearing no. 000057, dated 28.03.2021 and drawn at The Gujarat State Coop. Bank Ltd.) to the Plaintiff in lieu of and assuring part-payment towards the due amount, however, the said cheque was also dishonored on being presented to its banker, vide Banker's Return Memo dated 03.04.2021 for the reason "Funds Insufficient", which fact was duly informed to the Defendant vide e-mail dated 06.04.2021, however, still the Defendant failed to make the payment of the said amount.
(xiv.) It is claimed by the plaintiff that as per the Plaintiff's ledger account, there is an outstanding principal amount of/around Rs. 31,19,777/- (INR Thirty-One Lakh Nineteen Thousand Seven Hundred and Seventy-Seven) till date being payable in addition to an amount of Rs.14,99,861/- (INR Fourteen Lakh Ninety Nine Thousand Eight Hundred and Sixty One) being payable as outstanding interest calculated @18% p.a. starting from the due date of each invoice (i.e. 31 day of each invoice after including the 10 days grace period) till 31.01.2023.
(xv.) Despite several requests and reminders, the defendant did not clear the said outstanding amount. Hence, the present suit for recovery of outstanding dues alongwith interest and costs was filed by the plaintiff against the defendant.CS (Comm) No. 181/2023 Page 7 of 16
3. Summons of the suit were issued to defendant.
The defendant was duly served with the summons of the suit on 21.04.2023. However, defendant chose not to appear and consequently vide order dated 02.08.2023 of Ld. Predecessor of this Court, the defendant was proceeded ex-parte.
4. Thereafter, the plaintiff in support of its case has examined Sh. Ajay Vashisht, its AR as PW1, who has relied upon / proved the following documents:-
S. No. of Details of the documents
Exhibits
No.
1. Ex.PW1/1 Certificate of Incorporation of plaintiff
upon conversation to Limited
Company.
2. Ex.PW1/2 Copy of Board Resolution.
3. Ex.PW1/3 Copy of service agreement
executed between the parties on
24.01.2020.
4. Ex.PW1/4 Invoices issued by the plaintiff to
(Colly)
the defendant along with copy of
proof of delivery and indemnity
bonds.
5. Ex.PW1/5 Copy of deposit slips for cheques
(Colly)
bearing no. 669389, 669391 and
669390.
6. Ex.PW1/6 Copy of legal Notice dated
(Colly)
17.09.2020.
7. Ex.PW1/7 Cheque bearing no. 000057.
8. Ex.PW1/8 Return Memo dated 03.04.2021.
CS (Comm) No. 181/2023 Page 8 of 16
S. No. of Details of the documents
Exhibits
No.
9. Ex.PW1/9 E-mail dated 06.04.2021.
10. Ex. PW1/10 Ledger account maintained by the
plaintiff company for the defendant.
11. Ex. PW1/11 Interest calculation sheet.
12. Ex. PW1/12 E-mail communication between (Colly) plaintiff and defendant.
13. Ex. PW1/13 Copy of order dated 29.04.2022 passed by Hon'ble High Court in CS (Comm.) No. 322/22.
14. Ex. PW1/14 Non Starter report issued by DLSA.
15. Ex. PW1/15 Declaration under Order XI Rule 6 (III) of the CPC r/w Commercial Courts Act and Section 65B of the Indian Evidence Act is Ex. PW1/15
5. I have heard Sh. Bhavya Jain, Ld. Counsel for the plaintiff.
I have also gone through the material available on record including the plaint and the evidence, oral as well as documentary, led from the side of the plaintiff.
6. Before proceeding further, it is pertinent to mention here that prior to filing the present suit, the plaintiff had also got instituted suit against the defendant bearing CS (COMM) NO.:322/22, titled as "Delhivery Ltd. v. R. K. Energy" on same cause of action before this Court. However, on account of some technical defects, the said suit was dismissed as withdrawn, with liberty to file afresh on same cause of action with order for refund of paid court fees, vide order dated 29-4-2022, passed by Ld. Predecessor of this Court. Copy of said order has been placed on record which is duly proved by PW1 as Ex.PW1/13.
CS (Comm) No. 181/2023 Page 9 of 16LIMITATION:
7. Firstly, I shall deal with issue as to whether or not the present suit is within period of limitation ? In this regard, while referring the relevant documents, Ld. Counsel for plaintiff submitted that the suit is well within the period of limitation as the first outstanding invoice is dated 31-3- 2020 and also on the ground that the cheque dated 28-3- 2021 had been issued by defendant towards part discharge of its liability to the plaintiff, which got dishonoured on its presentation.
8. This is a suit for recovery of money and limitation is 3 years from the date when the cause of action arises. As per ledger account and invoices, which are duly proved by PW1 as Ex.PW1/10 and Ex.PW1/4 (Colly.) respectively, the first outstanding bill is dated 31-3-2020, which became due and outstanding but was not cleared by the defendant. Further, PW1 has also proved original cheque dated 28-3- 2021 for Rs.15 lakhs (Ex.PW1/7) purportedly issued by the defendant in favour of plaintiff in order to discharge its liability which got dishonoured on being presented to the banker by the plaintiff and Returning Memo dated 03.04.2021 in this regard is also proved by PW1 as Ex.PW1/8. Since, the present suit was filed on 27.03.2023, therefore, the Court is in agreement with Ld. Counsel for plaintiff that suit is within period of limitation.
JURISDICTION:
9. While referring the Agreement dated 24-1-2020 entered into between the parties (Ex.PW1/3), it is submitted by CS (Comm) No. 181/2023 Page 10 of 16 Ld. Counsel of plaintiff that parties have amicably decided to bestow the exclusive jurisdiction on Delhi Courts for resolution of all the disputes between the parties. It is also submitted that registered office of the plaintiff is located within the jurisdiction of this Court, where the defendant had sought services from the plaintiff. It is further submitted that the defendant was under obligation to make payment to the plaintiff at its registered office and hence, in pursuant to the principle of 'debtor must seek creditor', this Court has territorial jurisdiction to adjudicate the dispute.
10. The Service Agreement (Ex.PW1/3) is shown to have been entered into between the parties at Delhi. It is relevant to reproduce Clause 13 of the said agreement, which reads as under:-
13. GOVERNING LAW AND JURISDICTION :
This Agreement, the construction and enforcement of its terms and the interpretation of the rights and duties of the Parties hereto shall be governed by the laws of India and shall be subject to the jurisdiction of courts in New Delhi. This Agreement is executed in English language which shall prevail over any translation thereof.
11. It is now no more res integra that parties cannot confer jurisdiction upon the court which is otherwise having no jurisdiction, however, if 2-3 courts have jurisdiction where part cause of action arises between the parties and parties agree to confer jurisdiction to one of the courts where part cause of action arises, then the said exclusion clause is valid in law. [Reference can be made to judgment of Hon'ble Apex Court in case titled as "A.B.C. Laminart Pvt.
Ltd. & Anr. v. A. P. Agencies" reported Salem (1989) 2 CS (Comm) No. 181/2023 Page 11 of 16 SCC 163.].
12. It is also case of the plaintiff that part cause of actions arose within the territorial jurisdiction of this Court as not only the 'Service Agreement' (Ex.PW1/3) was executed in Delhi, but also, the defendant had sought services from the plaintiff at its registered office which falls within the jurisdiction of this Court. Moreover, the defendant was under obligation to make payment to the plaintiff at its registered office and hence, in pursuant to the principle of 'debtor must seek creditor', this Court has territorial jurisdiction to adjudicate the dispute.
13. In support of its case, the plaintiff has examined PW1 who has deposed by way of affidavit on the aforesaid lines, which is duly corroborated by the documents filed on record.
14. As already noted above, the defendant preferred not to appear and contest the present suit despite being duly served with the summons of the suit. Therefore, this portion of testimony of PW1 remained unchallanged and uncontroverted from the side of defendant. Hence, there is no reason to disbelieve such testimony made on oath. Accordingly, the Court is of the view that part cause of actions arose within territorial jurisdiction of this court. Keeping in view overall facts and circumstances of the case and in view of law laid down by Hon'ble Apex Court in case of A.B.C. Laminart Pvt. Ltd. & Anr.(supra), this Court is of the view that it has territorial as well as pecuniary jurisdiction to entertain the suit.
CS (Comm) No. 181/2023 Page 12 of 16ENTITLEMENT:
15. Ld. Counsel of plaintiff has argued that the entire testimony of PW-1 has remained unchallenged and unrebutted from the side of defendant and therefore, they are entitled to the decree, as prayed for. He also referred to the relevant documents Ex. PW1/1 to Ex. PW1/15, in order to bring home his point that these documents clearly prove that suit amount of Rs. 31,19,777/- was due towards the defendant at the time of filing of the suit. He, therefore, prayed that the suit may be decreed.
16. As already noted above, there is no challenge to the case of the plaintiff from the side of the defendant, which preferred not to appear and contest the present suit despite being duly served with the summons of the suit. The averments made by PW1 on oath are duly supported by the relevant documents Ex. PW1/1 to Ex. PW1/15 as already referred herein above. Even otherwise, nothing contrary to the case of plaintiff has been brought on record. Hence, there is no reason to disbelieve such testimony made on oath.
17. From the unchallenged and uncontroverted testimony of PW-1 coupled with documents proved during the course of evidence, it is duly established on record that the plaintiff had provided the required services to defendant as per its requirement and raised invoices [Ex.PW1/4 (Colly.)] worth Rs.31,19,777/- and despite having availed the services provided by the plaintiff, the defendant did not clear the invoices amount. Therefore, the court is of the CS (Comm) No. 181/2023 Page 13 of 16 view that the plaintiff is entitled to recover Rs. 31,19,777/- from the defendant.
INTEREST:
18. The plaintiff has claimed interest @ 18% p.a. starting from the 31st day/ date of / from submission each invoices till date of its realization and calculated the same to be Rs.14,99,861/- as on 31-01-2023, on the said outstanding amount i.e. Rs.31,19,777/- and interest calculation sheet is filed on record, which is Ex.PW1/11. For the said purpose, Ld. Counsel for plaintiff has relied upon sub clause 5.4 of the clause 5 of Terms of payment, which provides as under:-
'If the Company defaults in making the payment of the Fees within the said timelines, then the Services Provided shall levy a penalty of the unpaid invoiced amount for the period that it remains unpaid at a rate equivalent to 18% per annum'.
19. Since, the defendant had agreed to the rate of interest in case of delayed payment, the Court is of the view that plaintiff is entitled to recover interest @ 18% p. a. from the defendant in terms of clause 5.4 of the Agreement (Ex.PW1/3) executed between the parties, from the due date of individual outstanding bill till the date of filing of the suit.
20. The plaintiff has also claimed pendente lite and future interest @ 18% per annum. Keeping in view overall facts and circumstances of the case, the Court is of the view that the same is on higher side. Interest of justice would be met by awarding pendente lite and future interest @ 10% per CS (Comm) No. 181/2023 Page 14 of 16 annum from the date of filing of the suit till its realization. It is so directed accordingly.
RELIEF:
21. In the light of the aforesaid discussion, the Court is of the view that the plaintiff has been able to prove its case on the basis of preponderance of probability. Thus, the suit is decreed in favour of plaintiff and against the defendant and following reliefs are granted :-
(i.) The plaintiff is entitled to recover Rs.31,19,777/-
(Rupees Thirty One Lakh, Nineteen Thousand Seven Hundred and Seventy Seven only);
(ii.) pre-suit interest is awarded @ 18% per annum in terms of clause 5.4 of the Agreement (Ex.PW1/3) executed between the parties, from the due date of individual outstanding bill till the date of filing of the suit;
(iii.) pendente lite interest is awarded @ 10% per annum from the date of filing of the suit till date of judgment;
(iv.) future interest is awarded @ 10% per annum from the date of judgment till its realisation;
(v.) Cost of the suit is also awarded in favour of the plaintiff.
22. Decree sheet be prepared accordingly.
CS (Comm) No. 181/2023 Page 15 of 1623. File be consigned to Record Room, after due compliance. Announced in the open court on 19th Day of December, 2023 (VIDYA PRAKASH) DISTRICT JUDGE (COMMERCIAL)-02 PATIALA HOUSE COURTS, NEW DELHI CS (Comm) No. 181/2023 Page 16 of 16