Delhi District Court
M/S Miracle Shipping (Delhi) Private ... vs Ms. Anita Kumari on 21 January, 2022
IN THE COURT OF SAUMYA CHAUHAN, SENIOR CIVIL JUDGECUMRENT
CONTROLLER (EAST): DELHI
CS No.600/18
CNR No.DLET030009492018
M/s Miracle Shipping (Delhi) Private Limited
Through its Authorised Representative
Sh.Harish Bisht
181, Jeewan Nagar,
Opposite Maharani Bagh,
New Delhi110014 ... .Plaintiff
VERSUS
Ms. Anita Kumari
Prop. of M/s. Aayushmaan Logistics
GFSR6N, Ansal Plaza Mall,
Sector1, Vaishali, Sahibabad,
Ghaziabad201010
Also at :
UG007, Ansal Plaza Mall
Sector1, Vaishali, Sahibabad,
Ghaziabad201010 .....Defendant
Date of Institution : 05.07.2018
Date of reserving for judgment : 21.01.2022
Date of pronouncement of Judgment : 21.01.2022
JUDGMENT
1. Vide this judgment, this court shall decide the present suit for recovery of Rs.76,654/.
Digitally signed by SAUMYA SAUMYA CHAUHAN
CHAUHAN Date: 2022.01.21
16:57:45 +0530
CS No.600/18 page no.1/7
2. The briefly stated facts of the present case are that the plaintiff is a private company engaged in the business of forwarding of freight by Sea. Defendant is the proprietor of M/s Ayushman Logistics, carrying on their business of forwarding of freight. The defendant collect consignment from her various customers and hand them over for onward shipment to the plaintiff company.
3. It has been averred that in August 2019, the defendant approached the plaintiff for forwarding of shipment belonging to her different customers. The defendant agreed to pay the freight and freight related charges against the service provided by the plaintiff company. The defendant handed over a shipment belonging to defendant no.2 (name deleted vide order dated 05.07.2018). Against the said shipment, a master bill of lading bearing no.NYKSDELT 277 31400 dt.03.10.2017 was issued by the plaintiff to the defendant. An invoice no.INV/16512 dt.22.09.2017 for Rs.76,654/ was also issued by the plaintiff company to the defendant. It has been alleged that the despite the said shipment having reached its port of destination, not even a single penny has been paid by any of the defendants against the said amount despite repeated phone calls, emails and personal visits by the official of plaintiff's company. The plaintiff served upon a legal notice dt. 26.03.2018 upon the defendant for payment of Rs.76,654/ alongwith interest. After receiving the said notice, in respect of another payment of Rs.5,34,162/ as well as this payment, the defendant issued a consolidated cheque bearing no.282219 dt.08.05.2018 for Rs.6,06,816/ drawn on Panjab National Bank, ICD, Patparganj, Delhi in favour of the plaintiff company, However, when the said cheque was presented for encashment, it was returned unpaid with the remarks 'payment stopped by drawer'. Hence, the plaintiff has filed the present suit.
4. The defendant filed her written statement wherein she vehemently opposed the allegations and contentions made by the plaintiff. It has been averred that it was the plaintiff who used to approach the defendant to provide its services for forwarding of shipment of her customers and agreed to extend credit for making payments of the invoice raised in respect of the said services. It has been alleged that the plaintiff company misbehaved and Digitally signed by SAUMYA SAUMYA CHAUHAN CS No.600/18 CHAUHAN page no.2/7 Date: 2022.01.21 16:57:54 +0530 manhandled the customers of the defendants and put illegal pressure on them to extort money. Due to their actions, the defendant not only incurred economic and business loss, but also loss of her reputation in the market. The cheque in question was also undated and without any amount and was given to the plaintiff as a security cheque. The defendant has contended that payment was made to the plaintiff. Despite that the plaintiff reused to return the cheque and presented the same for encashment even though there is no liability on part of the defendant.
5. Replication was filed by the plaintiff wherein they denied all the allegations and claims of the defendant and reiterated the averments made in the plaint.
6. On basis of the pleadings of the parties, issues were framed on 08.01.2019 which are as under: "1. Whether the plaintiff is entitled to recovery of Rs.76,654/ as prayed for? OPP
2. If issue no.1 is decided in favour of plaintiff, whether plaintiff is entitled to the pendantlite and future interest @ of 2% per month as prayed for ? OPP
3. Relief".
7. Thereafter, matter was listed for plaintiff's evidence.
8. To prove its case, the Mr. Harish Bisht, AR of the plaintiff company entered the witness box as PW1 and tendered his evidence by way of affidavit which is Ex.PW1/A. He reiterated the contentions made in the plaint and relied upon the following documents:
1. The Original Board Resolution of the plaintiff company is Ex.PW1/1.
2. Copy of master data of plaintiff company is Ex.PW1/2.
3. Copy of GST registration is Ex.PW1/3. Digitally signed by SAUMYA SAUMYA CHAUHAN CHAUHAN Date: 2022.01.21 16:58:03 +0530 CS No.600/18 page no.3/7
4. Copy of Importer and Exporter Code and lading bill is Ex.PW1/4.
5. Copy of invoice is Ex.PW1/5 (OSR).
6. Copy of email is Ex.PW1/6 (colly).
7.Copy of Legal Notice alongwith postal receipt are Ex.PW1/7 and Ex.PW1/8. Copy of tracking report is Mark A.
8. Copy of statement of account is Ex.PW1/10.
9. Copy of certified of cheque and return memo are Ex.PW1/11 and Ex.PW1/12 respectively.
10. Certificate under Section 65 of Indian Evidence Act is Ex.PW1/13.
9. During cross examination, PW1 stated that he has been working as an Accountant, (ExecutiveI) in the plaintiff company for last 78 years. He could not recall the period for which the plaintiff has been doing business with the defendant and voluntarily stated that the plaintiff company had been doing business with the defendant for last 2 to 3 years. The defendant used to approach them for freight forwarding business and they used to provide container to defendant at custom bonded warehouse, where the defendant used to load shipment of her customer. He admitted that when they used to do the business with the defendant they had no direct dealing with the customers of the defendant. The payment was made by the defendant both on account as well as invoice wise.
10. He denied the suggestion that the cheque Ex.PW1/11 was issued as a security cheque with the name of the payee and signatures of the defendant and that the amount and date filled by the plaintiff company without any instructions from the defendant. He denied the suggestion that the cheque was given by the defendant in October, 2017 and was not returned by the plaintiff despite receiving several postdated cheques from the defendant and demands to return the cheque. He denied the suggestion that plaintiff was orally informed by the defendant about stopping payment of the cheque. He denied the suggestion that the plaintiff has filed false and frivolous suit. Digitally signed by SAUMYA SAUMYA CHAUHAN CHAUHAN Date: 2022.01.21 16:58:11 +0530 CS No.600/18 page no.4/7
11. Evidence affidavit was filed on behalf of the defendant. However, the DW2 never presented himself for crossexamination despite repeated opportunities. Hence, DE was closed by the court vide order dated 18.09.2021. Hence, the evidence of DW2 shall not be read in evidence as he has not been crossexamined.
12. I have heard the submissions made by the Ld. counsel for the plaintiff and perused the entire record carefully. The issues wise finding of the court as follows.
13. Issue no.1 and 2 "Whether the plaintiff is entitled to recovery of Rs.76,654/ as prayed for? OPP"
"If issue no.1 is decided in favour of plaintiff, whether plaintiff is entitled to the pendantlite and future interest @ of 2% per month as prayed for ? OPP"
14. Both these issues are taken up together being interrelated and interdependent on each other. The onus to prove both these issues was on the plaintiff.
15. It is the case of the plaintiff that the defendant has failed to make payment in lieu of the services rendered by it to the defendant. PW1 has placed on record the invoice which is Ex. PW1/5 and the statement of accounts which is Ex. PW1/10. In the entire WS, the defendant has not mentioned anything about the invoice or the alleged services given to her by the plaintiff. The defendant has claimed that she has paid for the plaintiff's services and she has no liability towards the plaintiff. However, she has not mentioned anywhere in the pleadings how and when such a payment was made to the plaintiff. No evidence has been led by the defendant to prove that any payment whatsoever was made by her to the plaintiff towards clearing of the bill/invoice raised by the plaintiff which is Ex. PW1/5.
Digitally signed by SAUMYA SAUMYA CHAUHAN
CHAUHAN Date: 2022.01.21
16:58:20 +0530
CS No.600/18 page no.5/7
16. Further, the defendant has accepted in her WS that the cheque Ex.PW1/11 was signed by her and handed over to the plaintiff. There is a presumption in favour of the complainant u/s 118 (a) Negotiable Instruments Act 1881 that until the contrary is proved, it will be presumed that every negotiable instrument was drawn for consideration and every such instrument when it has been accepted, endorsed, negotiated or transferred was accepted, endorsed, negotiated or transferred for consideration. Further Section 139 of the Negotiable Instruments Act, 1881 provides that it shall be presumed until the contrary is proved that the holder of the cheque received the cheque of the nature referred in the Section 138 for the discharge in whole or in part of his debt or liability.
17. In the case at hand, the defendant has not led any evidence to rebut the presumption raised under Section 118 Negotiable Instruments Act. Hence, the court has no qualms in holding that the cheque Ex. PW1/10 was issued by the defendant to the plaintiff in discharge of her liability to pay the plaintiff for its freight forwarding services.
18. In view of the above discussion, this court is of the considered opinion that the plaintiff has successfully discharged the onus to prove these issues. Hence, both these issue is decided in favour of the plaintiff and against the defendant. The plaintiff has successfully proved its case and is entitled to decree. The defendant is liable to pay a sum of Rs. 76,654/ to the plaintiff. As far as the interest is concerned, the court is of the considered opinion that ends of justice shall be met by awarding simple interest at the rate 9% per annum to the plaintiff from the date of filing of the suit to realization of the decretal amount.
19. Relief: In view of the above findings of this court, the present suit is decreed in favour of the plaintiff and against the defendant. The plaintiff is entitled to recovery of a sum of Rs.76,654/ together with pendentlite and future interest at the rate @ 9% per annum on the said amount from the date of the filing of the suit i.e. 05.07.2018 till the date of its realization. The costs of the suit is awarded to the plaintiff. SAUMYA Digitally signed by SAUMYA CHAUHAN CHAUHAN Date: 2022.01.21 16:58:30 +0530 CS No.600/18 page no.6/7
20. Decree sheet be prepared accordingly.
21. File be consigned to record room after completing the necessary formalities.
Digitally signed by SAUMYA SAUMYA CHAUHAN
Announced in the Court CHAUHAN Date: 2022.01.21
16:58:37 +0530
today, the 21st January 2022 (SAUMYA CHAUHAN)
SCJcumRC, East
CS No.600/18 page no.7/7