Delhi District Court
Gac Shipping (India) Pvt. Ltd. vs . M/S Majgenta Fashions & Ors on 15 February, 2016
GAC Shipping (India) Pvt. Ltd. vs. M/s Majgenta Fashions & Ors
IN THE COURT OF DR. AJAY GULATI, ADDL. DISTRICT
JUDGE, ROOM NO. 606, SAKET COURTS, SOUTH DISTRICT,
NEW DELHI
In the matter of
Suit No.28/16
Case ID No.02406C0301572010
GAC Shipping (India) Pvt. Ltd.
2nd Floor, Gupta Plaza,
Plot No.13, Site No.37 & 38,
Local Shopping Centre, Kalkaji,
New Delhi110 019
................Plaintiff
Versus
1. M/s Majgenta Fashions
B139, Sector63, Noida, U. P.
Through its Partners
2. Ravi Shankar Rao (Partner)
S/o Sh. G. S. Rao
R/o E3/86, I. P. Extn.,
Delhi110 092.
3. Ritvik Saikia (Partner)
S/o S. J. P. Saikia
R/o 4/32, DLF PhaseII,
Gurgaon122 002,Haryana.
4. Joginder Singh Logani (Partner)
S/o Sh. Ishwar Singh
R/o S66, Greater KailashII,
New Delhi.
5. Surbir Singh (Partner)
S/o Late Sh. Gopal Singh
R/o 502, AWing,
Vasant Sagar Thakur Village,
Suit No. 28/2016 Page 1 of 19
GAC Shipping (India) Pvt. Ltd. vs. M/s Majgenta Fashions & Ors
Mandivli (E), Mumbai.
6. Suresh Sharma (Partner)
S/o Sh. Surat Ram Sharma
R/o 101/C7, Dreamtak Apartment,
Kaushambi, Ghaziabad, U.P.
.............Defendants
Date of Institution : 17.09.2010
Date of reserving the judgment: 01.02.2016
Date of pronouncement : 15.02.2016
Decision : Decreed
SUIT FOR RECOVERY OF A SUM OF RS.10,28,980.61
(RUPEES TEN LACS TWENTY EIGHT THOUSAND NINE
HUNDRE EIGHTY AND SIXTY ONE PAISA ONLY) UNDER
ORDER XXXVII OF THE CODE OF CIVIL PROCEDURE, 1908
JUDGMENT
1. The present suit for recovery of Rs.10,28,980.61/ was filed by the plaintiff company, which is a private limited company having its registered office at Cochin and branch office at Kalkaji, New Delhi under Order XXXVII CPC. The plaintiff company provides logistic services including transnational logistics. The defendant No.1 is an exporter of readymade garments with defendant No.2 to 6 being its partners. Briefly put, the dispute leading to the present suit arose when the defendants refused to pay the claimed charges of the plaintiff for transporting the shipment containing goods of the defendants from Delhi to Suit No. 28/2016 Page 2 of 19 GAC Shipping (India) Pvt. Ltd. vs. M/s Majgenta Fashions & Ors London. The defendants refused to pay the full charges as claimed by the plaintiff company on the ground that the goods were not shipped in time, as a result of which they had to suffer loses since the buyer of shipment in United Kingdom refused to take the complete shipment from the defendants.
DETAILED FACTS
2. The present suit was filed by the Branch Manager of the plaintiff company Captain Kawal Arora, who was authorized by a Resolution passed by Board of Directors in its meeting held on 09.05.2007, pursuant to which the plaintiff executed a Power of Attorney dated 02.07.2007 which was duly notarized.
3. As per the averments made in the plaint, the plaintiff company is engaged in the business of providing logistic services amongst other businesses. It was averred in the plaint that the defendant No.1, which is a partnership firm having its office at B 139, Sector63, Noida, Uttar Pradesh, approached the plaintiff company through its partners, who have been arrayed as defendant No.2 to 6 for availing the logistic services provided by the plaintiff on credit. The said logistic services were provided by the plaintiff company to the defendant No.1 from the period July, 2009 to October, 2009 and invoices were raised upon the Suit No. 28/2016 Page 3 of 19 GAC Shipping (India) Pvt. Ltd. vs. M/s Majgenta Fashions & Ors defendant No.1 for the same.
4. On 12.10.2009, defendant No.1 approached the plaintiff for carriage of a consignment comprising of readymade garments from New Delhi to Heathrow, London by air. The said order was placed through an email, which was accepted by the plaintiff. The plaintiff further averred that the defendants sent to them a merchandise (consignment) on 21.10.2009 at about 3.30 p.m., which was too late in the day for effecting carriage of the said consignment on 21.10.2009 by air since a number of formalities like marking, labeling and weighing were to be done. Consequently, on the asking of the defendant No.1, the plaintiff issued a House Airways Bill No. DEL 2154 wherein it was agreed that 55 packages containing readymade garments weighing 729 kg were to be carried by air from New Delhi to Heathrow, London. However, in the said House Airways Bill (HAWB) the date of the carriage and the name of the carrier (airlines) by which the said consignment was to be transported was not mentioned.
5. For the purpose of clarity, meaning of House Airway Bill (HAWB) and Master Airway Bill (MAWB) needs to be explained:
House Airway Bill (HAWB) is issued by a freight forwarder, on receipt of goods from the shipper, agreeing to deliver goods at Suit No. 28/2016 Page 4 of 19 GAC Shipping (India) Pvt. Ltd. vs. M/s Majgenta Fashions & Ors the agreed destination.
Master Airway Bill (MAWB) is issued by the main carrier of goods on receipt of goods from a freight forwarder to deliver at destination as per agreed terms.
6. It is the plaintiff's contention that it tried its best to load the said consignment on 21.10.2009 itself through the British Airways but the British Airways refused to accept the said consignment due to previous backlog. Accordingly, the plaintiff informed the defendant No.1 through an email dated 22.10.2009 that they have booked the carriage of the said consignment by Cathay Pacific Airlines. The plaintiff further contended that defendant No.1 agreed to the shipment of the said consignment through Cathay Pacific Airlines and instructed the plaintiff for the change of Master Airways bill number on the House Airways bill with further directions to the plaintiff that delivery of the said consignment should be normal and not express. Accordingly, the said consignment was shipped by Cathay Pacific Airlines on the intervening night of 22/23.10.2009.
7. The said consignment reached United Kingdom on 23.10.2009 and after getting it cleared from the Customs Department in the United Kingdom, it was kept in the ware Suit No. 28/2016 Page 5 of 19 GAC Shipping (India) Pvt. Ltd. vs. M/s Majgenta Fashions & Ors house of the plaintiff for the agent of the defendant No.1 to take the delivery of the same. However, the agent of the defendant No.1 only took 10 packages out of total 55 packages shipped, as a result of which the remaining 45 packages kept on lying in the warehouse of the plaintiff in United Kingdom. The plaintiff, therefore, contended that the defendant No.1 vide emails (details of which are mentioned in para12 of the plaint) admitted and acknowledged its liability of Rs.15,10,176.48/ including a sum of Rs.42,033.84/ from the defendant No.1 as express delivery charges which the defendant No.1 agreed to pay vide email dated 22.02.2010 but failed to fully discharge the said liability, resulting in a sum of Rs.8,74,980.21/ still due and payable by defendant No.1 to the plaintiff. It is also the case of the plaintiff that it is on the request of the defendant No.1 sent through email dated 22.10.2010 that the plaintiff has kept 45 packages in its warehouse in United Kingdom till further instructions from defendant No.1. The plaintiff finally contended that it made number of efforts including sending its representative to the defendant No.1 and also by sending a number of emails and letters asking defendant No.1 to make the payment of the outstanding amount,however, the defendant No.1 failed to discharge the said liability. The plaintiff had also sent a legal notice dated 09.03.2010 to the defendant No.1 asking it to discharge its liability but there was no response from the side of Suit No. 28/2016 Page 6 of 19 GAC Shipping (India) Pvt. Ltd. vs. M/s Majgenta Fashions & Ors the defendant. Accordingly, the plaintiff prayed that since the defendant No.1 has acknowledged its liability towards the plaintiff but failed to discharge the same, a decree for a sum of Rs.10,28,980.61/ be passed in favour of the plaintiff and against the defendants. The breakup of the amount of Rs.10,28,980.61/ is as follows:
a. Amount outstanding against the
invoices bearing DEL 41321536,
DEL 41321543, DEL 41321548, Rs.8,74,980.21/
DEL 41321549, DEL 41321550,
DEL 41321558, DEL 41321569
& DEL 41321570
b. Interest @ 18% per annum on the
aforesaid outstanding amount from Rs.1,34,634.00
24.10.2009 to 31.08.2010
c. Storage charges from 24.10.2009
to 31.08.2010 @ 6GBP per week Rs.19,366.40
Rs.435.90 per week, 1 GBP
Rs.72.65
TOTAL Rs.10,28,980.61
8. The defendants on being served, entered their appearance and sought leave to defend which leave was granted on 08.11.2011 on the ground that since the defendants did not pick up the substantial part of the consignment delivered by the plaintiff at London, whether or not the plaintiff was in any way responsible for delay in sending the consignment to United Suit No. 28/2016 Page 7 of 19 GAC Shipping (India) Pvt. Ltd. vs. M/s Majgenta Fashions & Ors Kingdom could only be decided after leading evidence. The defendants were permitted to file their written statement. Thereafter, defendants filed a detailed written statement wherein they completely denied any liability on their part to pay the amount as claimed in the suit by the plaintiff company. On the contrary, they averred in their written statement that although the consignment of goods as mentioned in the plaint was booked with the plaintiff company by the defendants but the goods were not sent by the plaintiff company to London on time. The defendants specifically denied that they were ever informed by the plaintiff company that the consignment was to be shipped on 22.10.2009 because of the refusal of the British Airways or that the plaintiff ever informed the defendants by email dated 22.10.2009 that the said consignment has been booked to be shipped by Cathay Pacific Airlines.
9. The defendants further replied that as a result of delay in the carriage of the shipment, it is the defendants who suffered huge loss. Consequently, the defendants also filed a counter claim. The crux of the defence raised by the defendants in their written statement was that firstly, there was a delay on the part of the plaintiff company in shipping the consignment by air on 21.10.2009; secondly, that the defendants never agreed to the carriage of the consignment on 22.10.2009 through Cathay Suit No. 28/2016 Page 8 of 19 GAC Shipping (India) Pvt. Ltd. vs. M/s Majgenta Fashions & Ors Pacific Airlines; and thirdly the defendants were forced by the plaintiff company to change the schedule of cargo. The defendants consistently maintained that due to the delay in effecting the shipment, it is the defendants who suffered loss since the buyers of the goods of the defendants did not accept the whole consignment as a result of the delay in delivery of the same by the plaintiff company. Finally, the defendants submitted that no financial liability is due on the defendant No.1 which they have to discharge to the plaintiff company. As has already been mentioned above, the defendants filed a counter claim of Rs.13,28,622.50/.
10. In response to the written statement filed by the defendants, the plaintiff company filed its replication and reiterated the averments made in the plaint and denied the contentions of the defendants.
11. During the course of proceedings, it was observed by the then Ld. Presiding Officer that although written statement had been filed on behalf of all the defendants, yet the power of attorney filed on record of the court was only on behalf of the defendant No.1, 2 & 3. Thereafter, the counsel for the defendants was asked to file the power of attorney on behalf of defendant No.4, 5 & 6. Power of attorney was eventually filed only on Suit No. 28/2016 Page 9 of 19 GAC Shipping (India) Pvt. Ltd. vs. M/s Majgenta Fashions & Ors behalf of the defendant No.6. Accordingly, defendant No.4 & 5 were proceeded exparte. Thereafter, the matter was adjourned a number of times for framing of issues but there was no representation on behalf of the defendant No.1, 2, 3 & 6. Consequently, even defendant No.1, 2, 3 & 6 were proceeded against exparte and the counter claim filed by the defendant No.1, 2, 3 & 6 was dismissed in default. Thereafter, the matter was listed for exparte plaintiff's evidence.
12. In the meanwhile, applications were moved under Order IX Rule 9 CPC and Order IX Rule 7 CPC on behalf of the defendant No.1, 2, 3 & 6 for setting aside the exparte order as well as for restoration of the counter claim. After hearing the arguments from both the sides, both the applications were allowed subject to payment of costs. However, Learned counsel for the defendants continuously sought adjournments for payment of costs, subject to which the applications under Order IX Rule 9 and Order IX Rule 7 CPC were allowed. Consequently, vide order dated 08.04.2015, the defence of the defendants was struck off for non payment of costs and the counter claim of the defendants was also dismissed.
13. Thereafter, vide order dated 11.05.2015, on the pleadings of the parties, following issues were framed:
Suit No. 28/2016 Page 10 of 19GAC Shipping (India) Pvt. Ltd. vs. M/s Majgenta Fashions & Ors
(a) Whether the plaintiff has no cause of action to institute the present suit as alleged in the preliminary objection No.2 of the written statement? OPD
(b) Whether the plaintiff is entitled to suit amount as claimed for? OPP
(c) Whether the plaintiff is entitled to interest, if any, at what rate and for which period? OPP
(d) Relief.
14. In support of its case, plaintiff examined two witnesses i.e. PW1 ( S. Jaya Shekar) and PW2 ( Vinod Kumar Dhiman). There is an affidavit of PW3 also but it appears that his affidavit was never tendered. The plaintiff relied on a number of documents which are as follows:
1. Ex.PW1/7 to Ex.PW1/10 and Ex.PW1/20 to Ex.PW1/27 which are the prints of emails,
2. Ex.PW1/12 to Ex.PW1/19 which are copies of invoices,
3. Ex.PW1/28 to Ex.PW1/33 which are copies of letters along with postal receipts,
4. Ex.PW1/34 which is a statement of account of defendant No.1,
5. Ex.PW1/4 (OSR) which is copy of power of attorney and
6. Ex.PW1/35 which is a copy of legal notice dated 09.03.2010 Suit No. 28/2016 Page 11 of 19 GAC Shipping (India) Pvt. Ltd. vs. M/s Majgenta Fashions & Ors
15. In addition to the above mentioned exhibits, there were certain other documents which were initially exhibited but were later on deexhibited and marked. The said documents are certificate of incorporation of the plaintiff company (MarkA), board resolution (MarkB), power of attorney (MarkC), copy of certificate of ImporterExporter Code of the defendant No.1 (MarkD) and copy of letter dated 06.07.2009 (MarkE). Both PW1 and PW2 were not cross examined since defendant No.4 & 5 had been proceeded exparte whereas the defence of defendant No.1, 2, 3 & 6 had been struck off and they never chose to cross examine the plaintiff's witnesses despite opportunity having been given. PW1 also submitted a certificate under Section 65B of the Indian Evidence Act since bulk of the evidence of the plaintiff was based on the emails exchanged between the plaintiff and the defendants.
16. PW1 in his evidence, which he had tendered by way of affidavit, deposed identical to what was stated in the plaint. PW 2, on the other hand, deposed with regard to the electronic evidence. However, since the electronic evidence cannot be read into evidence except by way of a certificate under Section 65B of the Indian Evidence Act, this court directed that plaintiff should file a certificate under Section 65B of the Indian Evidence Act. Consequently, PW1 filed a certificate under Section 65B of the Suit No. 28/2016 Page 12 of 19 GAC Shipping (India) Pvt. Ltd. vs. M/s Majgenta Fashions & Ors Indian Evidence Act.
17. Since the evidence was tendered only on behalf of the plaintiff, the matter was put up for exparte final arguments on 01.02.2016. The final arguments were heard on 01.02.2016 and written submissions by the Learned counsel for the plaintiff were also filed.
18. In view of the evidence tendered and arguments advanced, my issuewise findings are as under:
ISSUE NO.1 Whether the plaintiff has no cause of action to institute the present suit as alleged in the preliminary objection No.2 of the written statement?
19. Since the defendant had challenged the entire basis of filing the present suit by contending that the plaintiff, in fact, had no cause of action, the onus to prove this issue was put on the defendants. The defendants, apart from filing their written statement and counter claim, had led no evidence. Pleadings undoubtedly set the course for trial but in the absence of any evidence to substantiate those pleadings, no finding can be returned. Subsequent to the filing of written statement and counter claim, the defence of the defendants No.1, 2, 3 & 6 was Suit No. 28/2016 Page 13 of 19 GAC Shipping (India) Pvt. Ltd. vs. M/s Majgenta Fashions & Ors struck off whereas the counter claim was dismissed. On the other hand, the plaintiff in support of its pleadings has led evidence by way of exhibiting emails, statement of account, invoices and by producing two witnesses before the court and offered them for testimony which has gone unrebutted. In other words, there is nothing on record by way of evidence to say that the plaintiff had no cause of action to file the present suit.
20. In view of the above, issue No.1 is decided against the defendant No.1 and in favour of the plaintiff.
ISSUE NO.2 Whether the plaintiff is entitled to suit amount as claimed for?
21. The admitted liability of the defendants was Rs.14,68,142.64/ i.e. towards the plaintiff, which liability was acknowledged by the defendant vide email dated 19.11.2009 and which has been exhibited as Ex.PW1/23. The defendant also acknowledged the liability of Rs.42,033.84/ towards the plaintiff vide email dated 22.02.2010, which has been exhibited as Ex.PW1/27. The Total liability amounted to Rs.15,10,176.48/.
22. In the final statement of account dated 16.08.2010 which was exhibited as Ex.PW1/34, the outstanding amount payable by Suit No. 28/2016 Page 14 of 19 GAC Shipping (India) Pvt. Ltd. vs. M/s Majgenta Fashions & Ors the defendants to the plaintiff as on that date was Rs.8,74,980.21/ as some part of the above mentioned liability was discharged by the defendants.
23. It needs to be highlighted here that the plaintiff maintained a running account of the logistic services provided to the defendant No.1 from July, 2009 till 04.02.2010. The final outstanding amount of Rs.8,74,980.21/ is towards various invoices raised during this period and not specifically in relation to the consignment which was shipped on 22/23.10.2009. The dispute, however, arose due to the alleged delay in shipping the consignment of 22/23.10.2009 which, the defendants allege, caused huge loss to them. The final claim of the plaintiff in the suit is Rs.10,28,980.61/, breakup of which has been given in para 6 of the judgment.
24. The triable issue in fact was whether or not the defendants are liable for the claimed amount of Rs.10,28,980.61/ absolutely or conditionally i.e. to say whether the defendant agreed to pay the aforesaid amount without any condition or was it subject to the condition that the entire shipment, which was shipped by the plaintiff on behalf of the defendants to London on 22/23.10.2009, is accepted by the buyer of the defendants. Vide email dated 21.01.2010 which has been exhibited as Ex.PW1/26, Suit No. 28/2016 Page 15 of 19 GAC Shipping (India) Pvt. Ltd. vs. M/s Majgenta Fashions & Ors the defendants informed the plaintiff that liability of Rs.14,68,142.64/ is subject to the goods that were shipped by the plaintiff, being accepted by the buyer of the defendants. Even while seeking leave to defend and while filing the counter claim, the defendant contended that it was the plaintiff who caused delay in the shipment of the goods as a result of which the buyers of the goods, for whom the goods were shipped by the defendants, refused to pick up the entire consignment. The defendants, had they tendered evidence, would have had to prove that loss was caused to them as a result of non acceptance of shipment dated 22/23.10.2009 by the buyer of the defendants. It also needs to be highlighted that vide Ex.PW1/32 (colly.), the defendants requested the plaintiff to hold their shipment of 45 packages in its warehouse in United Kingdom. This fact needs mention since charges for keeping the goods of the defendants in its warehouse in United Kingdom have been added and claimed as suit money. However, since the defendants did not choose to cross examine the plaintiff's witnesses to rebut the evidence tendered by the plaintiff i.e. emails admitting liability and the final statement of account, the plaintiff has successfully proved its claim to the suit amount on the strength of the evidence adduced. Accordingly, issue No.2 is decided in favour of the plaintiff and against the defendants.
Suit No. 28/2016 Page 16 of 19GAC Shipping (India) Pvt. Ltd. vs. M/s Majgenta Fashions & Ors ISSUE NO.3 Whether the plaintiff is entitled to interest, if any, at what rate and for which period?
25. The plaintiff has claimed interest pendent lite as well as future interest on the suit amount. Since the nature of the transaction between the plaintiff and the defendants is purely commercial, I deem it appropriate to award interest @ 12% per annum on the amount awarded under relief from the date of filing of the suit till the date of decision of the suit. The plaintiff is also held entitled to interest on the amount awarded under relief @ 12% per annum from the date of decision till realization of decretal amount.
RELIEF
26. As a sequel to the foregoing discussion, the plaintiff is entitled to the following reliefs and the suit is accordingly decreed as follows:
1. Rs.10,28,980.61/ (Rupees Ten Lakhs Twenty Eight Thousand Nine Hundred Eighty and Sixty One Paisa) suit amount.
2. Interest pendente lite @ 12% per annum, on the aforesaid amount at Serial No.1, from the date of filing of the suit till the date of decision of the suit.Suit No. 28/2016 Page 17 of 19
GAC Shipping (India) Pvt. Ltd. vs. M/s Majgenta Fashions & Ors
3. Future interest @ 12% per annum, on the aforesaid amount at Serial No.1, from the date of decision till realization of decretal amount.
Since the defendant No.1 is a partnership concern, the liability to pay the aforesaid amount shall be of defendant No.2 to 6, jointly and severally.
27. Cost is also allowed in favour of the plaintiff and against the defendants. Decree sheet be prepared accordingly after payment of deficient court fees, if any, by the plaintiff. Thereafter, file be consigned to record room after due compliance.
ANNOUNCED IN THE OPEN (DR. AJAY GULATI)
COURT ON 15.02.2016 ADDL. DISTRICT JUDGE06
SOUTH, SAKET COURTS,
NEW DELHI
Suit No. 28/2016 Page 18 of 19
GAC Shipping (India) Pvt. Ltd. vs. M/s Majgenta Fashions & Ors CS No.28/16 GAC Shipping (India) Pvt. Ltd. vs. M/s Majgenta Fashions & Others 15.02.2016 Present: None.
Vide separate judgment of even date, the suit of the plaintiff is decreed for an amount of Rs.10,28,980.61/- (Rupees Ten Lakhs Twenty Eight Thousand Nine Hundred Eighty and Sixty One Paisa) along with interest pendente lite @ 12% per annum from the date of filing of the suit till the date of decision of the suit and future interest @ 12% per annum from the date of decision till realization of decretal amount. Since the defendant No.1 is a partnership concern, the liability to pay the aforesaid amount shall be of defendant No.2 to 6, jointly and severally.
Cost is also allowed in favour of the plaintiff and against the defendants.
Decree sheet be prepared accordingly after payment of deficient court fees, if any, by the plaintiff.
File be consigned to record room after due compliance.
(Dr. AJAY GULATI) ADJ-06/SOUTH SAKET/NEW DELHI 15.02.2016 Suit No. 28/2016 Page 19 of 19