Delhi District Court
Scj Plastics Pvt. Ltd vs M/Skanpur Delhi Goods Carriers Ltd on 29 November, 2023
In the Court of Dr. Rakesh Kumar : Additional District Judge-03
Central District, Tis Hazari Courts, Delhi
CS DJ 4077/17
In the matter of :-
SCJ Plastics Ltd.
F-3/10-11, Okhla Industrial Area
Phase-I, New Delhi-110020 ......Plaintiff
VERSUS
M/s Kanpur-Delhi Goods Carriers Ltd.
4110 Naya Bazar,
Delhi-110006 .....Defendants
Date of institution : 08.12.2017
Reserved for Judgment : 25.11.2023
Date of decision : 29.11.2023
SUIT FOR RECOVERY AND MANDATORY INJUNCTION
JUDGMENT
1. This is a suit for mandatory injunction and recovery of Rs.1,55,677/- (Rupees One Lakh Fivty Five Thousand Six Hundred Seventy Seven Only) or in the alternative suit for recovery of Rs.5,11,500/- (Rupees Five Lakh Eleven Thousand Five Hundred only).
2. Facts are that the defendant is a well known Transporter having vast experience of about 62 years of transporting goods from one place to other place; that vide G.R. No.569341 dated 11.12.2014 and on "To Pay Basis", the plaintiff/consignor had booked with the defendant a consignment for the supply of 2081 kg. Ambuja Yellow Master Batch worth Rs.3,55,823/- on credit of 30 days for its delivery to M/s. Ankit CS DJ 4077/17 Page no. 1 of 13 Polysacks India Pvt. Ltd. (consignee); that as for the supply of said ordered master batches by the plaintiff from their said registered office at Okhla, New Delhi to said M/s. Ankit Polysacks India Pvt. Ltd. at their said address at Pratappura, Tikamgarh (M.P.) a Road Permit was required, therefore, on 11.12.2014 Commercial Tax Department of the Govt. of Madhya Pradesh had issued a Road Permit (Form 49) bearing no. I1345D1, which was valid till 9.1.2015, for the purposes of supply of said 2081 Kg. Master Batches; that the said Road Permit had contained all the necessary details also i.e. the name, TIN Number and place of the consignor (herein plaintiff), name, Central Sales Tax registration number and address of the consignee with destination where the goods under said Road Permit and said invoice had to be transported from New Delhi to Tikamgrh (M.P.), nature of goods with quantity/weight covered under said Road Permit i.e. 2081 kg. and the total value of the consignment under said Road Permit i.e. Rs. 3,55,823/-; that since, the said Road Permit was "E-Form" therefore, the same was also available digitally on internet and the defendant, being an experienced transporter, as aforesaid, had the knowledge of the fact that "e-form" was also available digitally on internet; that the plaintiff had handed over to the defendant the invoice no.2465 dated 11.12.2014 and also the said "e-form" Road Permit/Form 49 bearing no. I1345D1 for transportation of said goods/consignment at the destination and the defendant had issued to the plaintiff the completely filled and signed GR; that as the said consignment did not reach the destination of the consignee till 1.1.2015, therefore, vide letter dated 2.1.2015, the plaintiff had enquired from the defendant about the delivery status of said consignment, which was replied by the defendant vide letter dated 8.1.2015 informing therein that the goods CS DJ 4077/17 Page no. 2 of 13 of the plaintiff under the said GR are lying with the defendant since the said consignment has not been delivered by the defendant to the consignee as the consignment was impounded by the STO, Mohan Nagar due to rejection of documents) annexed with the consignment under the GR no.569341 dated 11.12.2014 and the defendant has taken the custody of goods of the plaintiff under said GR after making payment of fine to the STO, about which the defendant had not informed the plaintiff prior to said reply dated 8.1.2015 and the defendant had deposited the amount of alleged fine, if any, to the concerned STO at his own and without any consent from the plaintiff to the defendant, which is also clear from the reply letter dated 19.2.2015 by the defendant to the plaintiff and from the documents provided by the defendant i.e. copy of show cause notice no.12227 dated 13.12.2014 and no.12033 and payment receipt dated 13.12.2014, sent by the defendant to the plaintiff through courier only on 27.12.2014; that from the documents on record it is also clear that in the truck in question, the defendant was carrying the goods of about 50 other consignors also and the said act of the concerned STO was due to negligence, inaction, carelessness and fault of the defendant only; that vide said reply dated 8.1.2015, the defendant asked the plaintiff to pay to the defendant the alleged fine as allegedly already deposited by the defendant to the concerned STO to enable the defendant to transport the goods under said GR at the destination of the consignee; that prior to 8.4.2015, the defendant had never conveyed to the plaintiff the reason(s) for the alleged rejection of documents and the defendant had never informed/asked the plaintiff/consignor about any other document, if any, required to be provided by the plaintiff to the defendant before booking the goods in question by the defendant vide CS DJ 4077/17 Page no. 3 of 13 said GR; that the show cause notice, receipt etc. pertains to other GRs also covering the goods of about 49 other consignors also; that despite repeated requests, the defendant neither delivered the goods under said GR to the consignee nor returned the same to the plaintiff/ consignor/owner and the goods of the plaintiff under the said GR are with the defendant; that on 31.3.2015, the plaintiff had sent to the defendant a legal notice dated 31.3.2015 whereby the plaintiff had called upon the defendant to release the entire goods of the plaintiff received by the defendant vide said GR within 3 days of receipt of said notice, however vide reply dated 8.4.2015 the defendant refused to either deliver the consignment under the said GR in question to the consignee or return the same to the plaintiff unless the plaintiff fulfills the illegal demand of the defendant of making payment of Rs.1,20,000/- by the plaintiff to the defendant; that on 26.11.2015 the plaintiff had received from the defendant a final notice dated 21.11.2015 whereby the defendant had again raised their said illegal, arbitrary, malafide and coercive demand which was duly replied by the plaintiff vide successfully sent e-mail dated 3.12.2015 as well by speed post reply dated 3.12.2015 which has not been even replied by the defendant; that from 4.12.2015 till date and on various dates also the plaintiff had demanded back from the defendant the said goods of the plaintiff which the defendant has kept illegally, forcefully, unauthorisedly, against the wishes of the plaintiff and against law and this illegal act of the defendant has deprived the plaintiff from utilizing the huge sum of Rs.3,55,823/- which is price of the goods under said GR in question since the date of expiry of credit period on 10.1.2015 till date, hence this suit.
CS DJ 4077/17 Page no. 4 of 13
3. The defendant contested the suit by filing written statement of his defence wherein took preliminary objections to the effect that the plaintiff has suppressed material facts. In reply on merits, it is contended that the documents given by the plaintiff for verification to Sales Tax Department of Uttar Pradesh (Form 49) no.11345D1 dated 11.12.2014 were rejected by the department being invalid for transportation through UP; that the same was communicated by the defendant through telephone on 11.12.2014 and relevant papers were sent through courier on 27.12.2014 as well as by letter dated 08.01.2015 advising the plaintiff to contact the authorities to take cognizance of the matter; that the defendant held number of meetings with Tax authorities of Mohan Nagar for the release of truck containing goods of more than 51 customers, however, authorities informed that the truck will only be released on payment of fine; that the plaintiff was informed on telephone on 11.12.2014 itself to come and resolve the matter, however, it was after 48 hours of waiting that the defendant made the payment of fine of Rs.1,20,000/- to get the trucks released; that seizure memo of the truck was sent to the plaintiff through Maruti Courier on 27.12.2014; that there was no negligence, inaction, carelessness and fault of the defendant. It is denied that the defendant never conveyed to the plaintiff about the rejection of the documents prior to 08.04.2015. It is also denied that the plaintiff had requested the defendant to return the goods. It is further denied that the defendant is liable to pay the alleged sum of Rs.5,11,500/-. Other allegations are denied and disputed by the defendant and prayed for dismissal of the suit.
CS DJ 4077/17 Page no. 5 of 13
4. The plaintiff filed replication to the written statement wherein the contentions of the written statement are traversed and the averments of the plaint are reaffirmed.
5. From the pleadings of the parties, following issues were framed on 20.07.2018 by the learned Predecessor for trial, namely:-
1. Whether the plaintiff is entitled for decree of mandatory injunction for returning the master batches worth Rs.3,55,823/-?
and whether the plaintiff is entitled for decree of Rs.1,55,677/- as interest for depriving the plaintiff from utilizing the price of goods from 11.01.2015 till date?
OR in alternative of Issue no.1- Whether the plaintiff is entitled for decree of Rs.5,11,500/- and interest of 15% per annum over the same from 11.01.2015 till date?
2. Whether the plaintiff is entitled for future interest, if yes, at what rate and for what period?
3. Whether the plaintiff is entitled for recovery of costs?
4. Whether the plaintiff has not come the court with clean hands?
5. Relief.
6. The plaintiff examined Mr. Deepak Kumar, Marketing Executive of the plaintiff company as PW1 who filed his evidence by way of affidavit (Ex. PW1/A) and also produced the following documents:-
1. Ex.PW1/1- Certificate of incorporation.
2. Ex.PW1/2- Resolution dated 31.12.2016.
3. Ex.PW1/3- Invoice dated 11.12.2014.
4. Ex.PW1/4- photocopy of goods receipt dated 11.12.2014.
5. Ex.PW1/5- Photocopy of road permit/form 49.
6. Ex.PW1/6- copy of letter dated 02.01.2015.
7. Ex.PW1/7- Copy of letter written by defendant to the plaintiff dated 08.01.2015.
8. Ex.PW1/8- copy of letter dated 19.02.2015 written by CS DJ 4077/17 Page no. 6 of 13 defendant to plaintiff.
9. Ex.PW1/9- Copy of show cause notice no.12227 dated 13.12.2014.
10. Ex.PW1/10- Copy of show cause notice no.12033 dated 13.12.2014.
11. Ex.PW1/11- Copy of payment receipt dated 13.12.2014.
12. Ex.PW1/13- Copy of legal notice dated 08.04.2015.
13. Ex.PW1/14- Reply of legal notice.
14. Ex.PW1/15- Letter dated 21.11.2015.
15. Ex.PW1/16- Reply given by plaintiff to the defendant.
7. The defendant did not examine any witness despite given several opportunities, therefore, vide order dated 01.08.2023, the right to lead defendant evidence was closed.
8. I have heard counsel for the parties and perused the material available on record.
9. My issue wise findings are as follows:-
Issues no.1, 2 and 3
-Whether the plaintiff is entitled for decree of mandatory injunction for returning the master batches worth Rs.3,55,823/-? and whether the plaintiff is entitled for decree of Rs.1,55,67/- as interest for depriving the plaintiff from utilizing the price of goods from 11.01.2015 till date?
OR in alternative of Issue no.1- Whether the plaintiff is entitled for decree of Rs.5,11,500/- and interest of 15% per annum over the same from 11.01.2015 till date?
-Whether the plaintiff is entitled for future interest, if yes, at what rate and for what period?
-Whether the plaintiff is entitled for recovery of costs?
10. Issues no.1, 2 and 3 are being taken together being inter- connected. The onus to prove these issues was placed on the plaintiff.
11. Before seeing the evidence of the parties, the facts admitted in the pleadings need to be noticed.
CS DJ 4077/17 Page no. 7 of 13
12. From the pleadings of the parties, it has been established that the plaintiff/consignor had booked with the defendant a consignment for the supply of 2081 kg. Ambuja Yellow Master Batch worth Rs.3,55,823/- on credit of 30 days for its delivery to M/s. Ankit Polysacks India Pvt. Ltd. (consignee). It is further an admitted fact that the plaintiff had handed over to the defendant the invoice no.2465 dated 11.12.2014 and also the "e-form" Road Permit/Form 49 bearing no. I1345D1 for transportation of said goods/consignment at the destination and the defendant had issued to the plaintiff the completely filled and signed GR. It is also an admitted fact that the consignment had not been delivered by the defendant to the consignee as the consignment was impounded by the STO, Mohan Nagar due to rejection of documents) annexed with the consignment under the GR no.569341 dated 11.12.2014 and the defendant had taken the custody of goods of the plaintiff under said GR after making payment of fine of Rs.1,29,000/- to the STO. It is also an admitted fact that the defendant was carrying the goods of about 50 other consignors also. It is also an admitted fact that vide said reply dated 8.1.2015, the defendant asked the plaintiff to pay to the defendant the alleged fine. It is also an admitted fact that on 31.3.2015, the plaintiff had sent to the defendant a legal notice dated 31.3.2015 which was duly replied by the defendant vide reply dated 8.4.2015. It is also an admitted fact that the plaintiff had received from the defendant a final notice dated 21.11.2015 which was duly replied by the plaintiff vide successfully sent e-mail dated 3.12.2015 as well by speed post reply dated 3.12.2015 which has not been even replied by the defendant.
CS DJ 4077/17 Page no. 8 of 13
13. The main contention between the parties is that as per the plaintiff the defendant/transporter was bound to ask the plaintiff/consignor for the relevant documents and if he had not asked for the documents, he is liable to pay, however, as per the defendant the document (Form 49) supplied by the plaintiff was rejected by the Tax Department Uttar Pradesh and, therefore, the defendant had to pay fine of Rs.1,20,000/-.
14. In support of his claim, counsel for the plaintiff has referred to several judgments in Additional Director (T & A) and others v. Jagdishwar Nath Jairath in appeal no.37/1995, Rakesh Vaid v. Air India Himalaya House and Another in C-120/1992 and Megh Raj Manager-cum-Booking Agency and Anr. v. M/s Sangroor Motor (Scooter Division) appeal no.598/1996 to argue that it was the duty of the transporter to ask the consignor for the relevant documents needed for transportation. It has been held in Megh Raj's case (supra) as follows:-
"..The District Forum in its order has placed reliance upon judgment of the Delhi State Commission in Rakesh Vaid v. Air India Himalaya House and Another, 1(1995) C.P.J.55 wherein it has been held by the Hon'ble State Commission, Delhi that carrier while loading the goods should see that the relevant documents were handed over by the consignor to them, as they, being the experts, know which documents are required to accompany.."
15. In the present suit, it is not the case of the defendant that they have asked for the plaintiff to supply the relevant documents which were required by the STO, therefore, I may hold that the defendant/transporter was under an obligation to ask the plaintiff for the relevant documents needed for transportation as the transporter are experts of the matter and they know what documents are required for transportation of goods.
CS DJ 4077/17 Page no. 9 of 13
16. It is not in dispute that the consignment could not be transported for want of certain documents. It is not even pleaded by the defendant that they had asked the plaintiff for the required documents at the time of loading the goods of the plaintiff. Therefore, I may hold that the defendant/transporter was negligent in loading the goods of the plaintiff without obtaining the relevant papers.
17. Next comes the question if the defendant had intimated to the plaintiff about the rejection of documents on 11.12.2014. It is in the evidence of PW1 Deepak Kumar that when the said consignment did not reach the destination, the plaintiff had inquired about the delivery status of the consignment vide a letter 02.01.2015 (Ex.PW1/6) which was replied by the defendant vide letter dated 08.01.2015 (Ex.PW1/7). It is also in the evidence of PW1 Deepak Kumar that before 08.01.2015, the defendant had not informed the plaintiff about the rejection of documents by STO or payment of fine. During the cross- examination of PW1 he had denied that on 11.12.2014 the defendant had informed the plaintiff on telephone that the truck had been stopped at Mohan Nagar for want of relevant documents. PW1 has also denied the suggestion that the defendant had told the plaintiff to come to Mohan Nagar for sorting out the matter with the Commercial Tax Department. PW1 has also denied that on 12.12.2014 the defendant had written a letter to the plaintiff and asked him to come to Mohan Nagar immediately. In view of the above cross-examination, PW1 Deepak Kumar has denied all the suggestions and questions put to him to the effect that the defendant had informed the plaintiff on 12.12.2014 about the rejection of documents of the plaintiff by STO or that the plaintiff was called upon by the defendant to come to Mohan CS DJ 4077/17 Page no. 10 of 13 Nagar for sorting out the matter. It is not even the case of the defendant that they had written a letter to the plaintiff on 12.12.2014 informing about all these facts. As per the written statement of the defendant, they had sent such information through courier on 27.12.2014 and through letter dated 08.01.2015. It is important to note here that the defendant has examined no witness to prove his contentions. The defendant had filed affidavits of four witnesses, namely, Mohan Chand Tiwari, Mohan Singh, Ranbir Singh Narang and Rajender Singh Negi, employees of the defendant, however, they have examined none. In view of the above, the contentions raised by the defendant in the written statement to the effect that the defendant had informed the plaintiff well within time about the rejection of documents by the tax department or asking the plaintiff for sorting out the matter.
18. Counsel for the plaintiff has referred to the judgment in Vidhyadhar v. Manik Rao, SCC 1999(573) to argue that the defendant has not examined any witness to prove the defence set up by him in the written statement, therefore, an adverse inference should be drawn against the defendant. As noted above, the defendant has filed affidavit of four witnesses but has not examined any witness to prove its contentions and these witnesses did not offer themselves to be cross- examined by the plaintiff. It has been held by the Hon'ble Supreme Court in Vidhyadhar's case (supra) as follows:
"Where a party to the suit does not appear in the witness- box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct."
CS DJ 4077/17 Page no. 11 of 13
19. In the light of law laid down by Hon'ble the Supreme Court in Vidhyadhar's case (supra), since, the defendant's witnesses did not appear in the witness-box and state their own case on oath and did not offer themselves to be cross-examined by the plaintiff, a presumption has arisen that the defence set up by the defendant in the written statement is not correct.
20. In the plaint, the plaintiff has claimed interest @15% per annum from the defendant. However, in the entire plaint, the plaintiff has not stated on what ground he has claimed interest @15% per annum from the defendant. In the affidavit of evidence also, PW1 Deepak Kumar has claimed interest @15% per annum but in the affidavit also, the witness has not stated any agreement or stipulation between the plaintiff and the defendant to pay interest at such rate in such eventuality. Therefore, I may hold that the plaintiff is not entitled to the interest at the rate of 15% per annum and keeping in view the facts and circumstances of the present case, I deem it appropriate that interest @9% per annum would suffice.
21. As regards relief regarding payment of costs for suit, obviously, as per the provisions of Section 35 of CPC, the costs shall follow the event and this Court finds no reasons to disallow the costs.
22. In view of the above discussion, these issues are decided in favour of the plaintiff and against the defendant.
Issue no.4 Whether the plaintiff has not come the court with clean hands?
CS DJ 4077/17 Page no. 12 of 13
23. The onus to prove this issues was placed on the defendant.
24. The defendant lead no evidence to prove this issue. Therefore, this issue remains unproved and is decided against the defendant. Even otherwise, in a suit for recovery, this issue becomes irrelevant and is decided in favour of the plaintiff and against the defendant.
Relief:-
25. In view of the discussion above-stated, this suit is decreed with costs. The defendant is hereby directed to return the master batches worth Rs.3,55,823/- and pay to the plaintiff interest @9% per annum for depriving the plaintiff from utilizing the price of goods from 11.01.2015 till date. In the alternative, the defendant shall pay an amount of Rs.3,55,823/- with interest @9% per annum on such amount from 11.01.2015 till the date of its realization. Decree sheet be prepared accordingly. DR Digitally signed by DR RAKESH RAKESH KUMAR Date: 2023.11.29 KUMAR 17:19:48 +0530 Pronounced in the Open Court (Dr. Rakesh Kumar) on 29th November, 2023 Additional District Judge-03 Central District, Tis Hazari,Delhi CS DJ 4077/17 Page no. 13 of 13