Delhi District Court
Ial Shipping Agencies Ltd. vs . on 26 February, 2010
Page No. 1 Suit No. 1118/2008.
IAL Shipping Agencies Ltd. vs.
Advance Ispat (India) Ltd. etc
IN THE COURT OF SH. RAJ KUMAR : ADMINISTRATIVE
CIVIL JUDGEcum ADDITIONAL RENT CONTROLER :
(NORTH) DELHI.
In Re : Suit No. 1118/2008.
Old Suit No. 05/2004.
M/s IAL Shipping Agencies (New Delhi) Ltd.,
C4, Ground Floor, Chiragh Enclave,
New Delhi110048.
Through its constituted attorney Mr. Ajay Kumar Verma
Plaintiff.
Versus.
1.M/s Advance Ispat (India) Ltd.
15/1, Asaf Ali Road, IIIrd Floor, New Delhi110002.
Through its Chairman / Managing Director.
2. Mr. Ashish Aggarwa, Director Advance Ispat (India) Ltd.
15/1, Asaf Ali Road, IIIrd Floor, New Delhi110002.
3. M/s Frequent Freight Services Pvt. Ltd.
324, Gupta Arcade, 5 Com. Complex, Srestha Vihar, Delhi.
Through its Chairman / Managing Director.
4. Mr. Arif, Director Frequent Freight Services Pvt. Ltd.
Contd...
Page No. 2 Suit No. 1118/2008.
IAL Shipping Agencies Ltd. vs. Advance Ispat (India) Ltd. etc 324, Gupta Arcade, 5 Com. Complex, Srestha Vihar, Delhi.
5. Mr. Asif, Director Frequent Freight Services Pvt. Ltd.
324, Gupta Arcade, 5 Com. Complex,
Srestha Vihar, Delhi. Defendants.
Date of Institution of Suit : 01.03.2004.
Date on which Order was reserved : 24.02.2010. Date of Pronouncement of Order : 26.02.2010.
JUDGMENT.
The facts in brief, necessary for the disposal of the present suit under Order XXXVII for recovery of Rs. 2,61,000/ as disclosed by the plaintiff in the plaint are that the plaintiff is a company incorporated under the Companies Act, 1956 and is having its office at the aforesaid address and Sh. Ajay Kumar Verma is the duly constituted attorney of the plaintiff and has been authorized by the resolution dated 30.01.2004 and the SPA dated 23.02.2004 to sign, institute and pursue the present suit. It has been further submitted that Contd...
Page No. 3 Suit No. 1118/2008.
IAL Shipping Agencies Ltd. vs. Advance Ispat (India) Ltd. etc defendant no.1 is a limited company and defendant no. 2 is the director of the defendant no. 1 company and is responsible for day to day affairs of the defendant no.1 company. It has been further submitted that defendant no. 3 is a company engaged in the business of freight and forwarding and defendant nos. 4 and 5 are its directors who issued the cheque in favour of the plaintiff and are responsible for day to day affairs of the defendant no.3 company. It has been further submitted that plaintiff is an established freight carrier. It has been further alleged that the defendant nos. 1 and 2 through their agent the defendant nos. 3 to 5 had booked an order with the plaintiff company for carrying an export shipment of galvanized steel pipes on 'said to contain basis', from New Delhi to Port of Spain vide Bill of lading DLE POS 0111648 dated 02.03.2001. It has been further submitted that plaintiff company issued a debit note dated 02.03.2001 in the name of defendant no. 1 for an amount of Rs.1,69,675/ towards payment of freight, inland haulage charges and B/L charges. It has Contd...
Page No. 4 Suit No. 1118/2008.
IAL Shipping Agencies Ltd. vs. Advance Ispat (India) Ltd. etc been further submitted that in discharge of their liability against the said order, the defendant no. 1 through the defendant no. 3 had issued a cheque no. 864639 dated 02.03.2001 for Rs. 1,69,675 drawn on Punjab National Bank, Anand Vihar, Delhi, which was signed by defendant nos. 4 and 5 who had represented the plaintiff that the said cheque was good for payment and would be honoured on presentation. It has been further submitted that on such assurance of the defendants, a bill of lading no. DLE POS 0111648 dated 02.03.2001 was issued by the plaintiff to the defendants. It has been further alleged that the above cheque was presented by the plaintiff to their banker for collection but the same was returned unpaid by the bank of defendant no. 3 company vide memorandum dated 19.04.2001 with the remarks 'insufficient funds' and this intimation was given to the plaintiff by its bank vide memorandum dated 20.04.2001. It has been further submitted that immediately thereafter plaintiff company faxed letters dated 20.04.2001 to the defendants Contd...
Page No. 5 Suit No. 1118/2008.
IAL Shipping Agencies Ltd. vs. Advance Ispat (India) Ltd. etc demanding payment of cheque amount and the same were duly served upon the defendants. It has been further alleged that the defendant no.2 faxed the reply on the same day i.e. 20.04.2001 which was written on the same letter sent by the plaintiff. It has been further alleged that instead of acknowledging the fault on their part the defendant no. 2 stated that as far they were concerned the freight is paid and is evident on the B/L clearly showing prepaid. It has been further alleged that the plaintiff company thereafter faxed several letters to the defendants vide letters dated 23.04.2001, 24.04.2001, 26.04.2001, 27.04.2001, 01.05.2001, 02.05.2001 and 03.05.2001 which were duly served upon the defendants, demanding and asking for their payment. It has been further submitted that the said letters of the plaintiff company were replied by the defendant no. 1 through defendant no. 2 vide letters dated 23.04.2001, 26.04.2001, 29.04.2001 and 03.05.2001 whereby they denied their liability and asked the plaintiff company to deal with their agent the defendant nos. 3 to 5 Contd...
Page No. 6 Suit No. 1118/2008.
IAL Shipping Agencies Ltd. vs. Advance Ispat (India) Ltd. etc directly though they were well aware of the fact that they being the shipper were liable to make the payment of the plaintiff company. It has been further alleged that in the meantime the defendant nos. 4 and 5 requested the plaintiff company to present the cheque for payment but again the said was returned back with the remarks "insufficient funds; vide memorandum dated 04.05.2001 and memorandum dated 05.05.2001 issued by the bank of plaintiff. It has been further submitted that since the shipment was stopped at destination and had started incurring demurrage / port detention charges, the plaintiff on 04.05.2001 issued a notice dated 04.05.2001 to the defendant nos. 1 and 2 which was duly served upon them. It has been further submitted that since the consignee at the destination was pursuing for delivery of shipment, the plaintiff made the delivery of shipment to the consignee. It has been further submitted that it is clear the the defendants had induced the plaintiff to issue a prepaid bill of lading on receipt of said cheque with a fraudulent intention of not to pay the Contd...
Page No. 7 Suit No. 1118/2008.
IAL Shipping Agencies Ltd. vs. Advance Ispat (India) Ltd. etc freight and inland haulage charges to the plaintiff. It has been stated further that plaintiff company had also filed a criminal complaint against the defendants u/S 138 of N.I. Act which is pending disposal. It has been further alleged that till date defendants have not made any payment to the plaintiff in respect to the consignment in question. It has been further submitted that the defendants are jointly and severally liable to pay Rs. 1,69,675/ alongwith interest @ 18% per annum which comes to Rs. 2,61,000/ as on the date of filing of suit.
It has been prayed that a decree for Rs. 2,61,000/ be passed in favour of the plaintiff and against the defendants with pendentlite and future interest @ 18% per annum from the date of filing of the present suit till the realization of the decreetal amount to the plaintiff. Plaintiff has also prayed for the costs of the suit.
2. Written Statement has been filed on record on behalf of defendant nos. 1 and 2 taking therein the preliminary objection that the plaintiff has filed the present suit in collusion with defendant nos.
Contd...
Page No. 8 Suit No. 1118/2008.
IAL Shipping Agencies Ltd. vs. Advance Ispat (India) Ltd. etc 3 and 5 to extort money from the answering defendants. It has been further submitted that the alleged debit note allegedly raised by the plaintiff in collusion with defendant nos. 4 and 5 has been admittedly raised after one day of the payment of the entire freight charges to defendant no. 3 by the answering defendants to extort illegal money from the answering defendants. It has been further submitted that answering defendants have not issued the alleged cheque in favour of the plaintiff nor have anything to do with the issuance of the same. It has been further submitted that the plaintiff is guilty of deficiency of service required of a reliable shipper causing to the answering defendants great hardship, loss and damages by illegally holding the release of shipments to the consignee of the answering defendants for no fault on their part, for which the plaintiff is liable to compensate to the answering defendants. It has been further alleged that the answering defendants in token of consideration of the services to be rendered by the plaintiff made the full and final payment of Contd...
Page No. 9 Suit No. 1118/2008.
IAL Shipping Agencies Ltd. vs. Advance Ispat (India) Ltd. etc Rs.1,55,775/ vide cheque no. 133996 dated 01.03.2001 drawn on Bank of India, Overseas Branch, Barakhamba Road, New Delhi in advance in favour of defendant no. 3 against the relevant bill of lading, and the said cheque was cleared for payment on 03.03.2001. It has been further submitted that no such debit note as alleged by the plaintiff has been issued by the answering defendants and no such amount is due and payable by the defendants to the plaintiff. It has been further alleged that the relevant bill of lading bearing no. DEL POS 0111648 dated 02.03.2001 issued by the plaintiff indicates ex facie that the freight charges involved stood fully prepaid at the time of loading of the shipment making no doubt that the freight charges already stood paid to the plaintiff. It has been further submitted that no cheque has been issued by the answering defendants nor they have authorized any body to issue the same in favour of the plaintiff. It has submitted that the answering defendants till date have not made any payment to the plaintiff in respect of the consignment in question as Contd...
Page No. 10 Suit No. 1118/2008.
IAL Shipping Agencies Ltd. vs. Advance Ispat (India) Ltd. etc alleged in the plaint. It has been further alleged that the plaint has not been signed, verified and instituted by a competent person for and on behalf of the plaintiff company and the suit is liable to be dismissed. It has been denied that the defendant no. 1 through defendant no. 3 had issued the alleged cheque no. 864639 dated 02.03.2001 for Rs.1,69, 675/ as alleged. Rest of the contents of the plaint have been denied by the answering defendants and it has been prayed that the suit of the plaintiff be dismissed with costs in favour of the answering defendants.
3. Replication has been filed by the plaintiff to the Written Statement of defendant nos. 1 and 2 denying the contents of the Written Statement and reaffirming and reiterating the contents of the plaint.
4. It is pertinent to mention here that since defendant nos. 3 to 5 failed to file any application for grant of leave to defend, the suit of the plaintiff was decreed for Rs. 2,61,000/ against the defendant Contd...
Page No. 11 Suit No. 1118/2008.
IAL Shipping Agencies Ltd. vs. Advance Ispat (India) Ltd. etc nos. 3 to 5 alongwith interest @ 8% per annum on the decreetal amount from the date of filing the suit till realization and the cost was also awarded in favour of the plaintiff and against the defendant nos. 3 to 5.
5. From of the pleadings of the parties, vide order dated 26.07.2005, the following issues were framed :
ISSUES:
(1) Whether the plaint has been singed and verified by a duly authoroized person? OPP.
(2) Whether defendant no. 1 and 2 have made the full payment to the plaintiff as stated in PO G? OPD 1,2. (3) Whether the plaintiff is entitled to the amount claimed? OPP. (4) Whether the plaintiff is entitled to interest and if so at what rate and for what period? OPP.
(5) Relief.
6. In support of their respective case, both the parties i.e the plaintiff and the defendant nos. 1 and 2 have examined two witnesses each. The detailed testimony of these witnesses examined by the Contd...
Page No. 12 Suit No. 1118/2008.
IAL Shipping Agencies Ltd. vs. Advance Ispat (India) Ltd. etc parties shall be discussed in the later part of this judgment.
7. I have carefully gone through the entire material on record and have heard the rival submissions as advanced by both the Ld. Counsels for the parties orally as well as in the shape of written final arguments filed on record by both the parties. My issuewise findings on the various issues framed in the present suit are as under :
ISSUE No. 1 : The plaintiff has stated in the plaint that the plaintiff is a company incorporated under the Companies Act and Sh. Ajay Kumar Verma is the duly constituted attorney of the plaintiff and he has been authorized by the resolution dated 30.01.2004 and the SPA dated 23.02.2004 to sign, institute and pursue the present suit. In the Written Statement filed by defendant nos. 1 and 2 it has been stated that the suit has not been filed by the duly authorized person.
In this regard the plaintiff has examined Ms. Reena Gupta, Asstt. Manager of the plaintiff and she has filed on record the Contd...
Page No. 13 Suit No. 1118/2008.
IAL Shipping Agencies Ltd. vs. Advance Ispat (India) Ltd. etc extract of resolution dated 30.01.2004 as Ex. PW 1/A, original SPA dated 23.02.2004 as Ex. PW 1/B, extract of the resolution dated 31.03.2004 as Ex. PW 1/C, SPA dated 20.11.2004 as Ex. PW 1/D. In the crossexamination PW 1 has stated that Mr. Ajay Kumar Verma Asstt. Manager of Accounts was working when she joined. She has stated further that Ajay Kumar Verma was dealing with accounts and he has left the company in 2005. PW 1 has admitted it to be correct that she has not deposed in her affidavit Ex. P1 that the suit has been signed, verified and instituted by Sh. Ajay Verma. By way of volunteer she stated that it it written in affidavit Ex. P1 inpara no. 1 that Ajay Kumar Verma is duly authorized by SPA dated 23.02.2004 to sign, verify and institute the plaint.
The next witness examined by the plaintiff is PW 2 Captain Anil Rata, who has stated that he is duly constituted attorney of plaintiff and is duly authorized to represent the plaintiff company vide board resolution Ex. PW 1/C and the power of attorney dated Contd...
Page No. 14 Suit No. 1118/2008.
IAL Shipping Agencies Ltd. vs. Advance Ispat (India) Ltd. etc 31.03.2004 filed on record as Ex. PW 2/A. He has also placed on record the copy of the certificate of incorporation as Ex. PW 2/B and the copy of the order passed by the office of Registrar of Companies allowing the transfer of registered office of plaintiff company to Delhi as Ex. PW 2/C. In the light of the aforesaid evidence of the plaintiff, I am of the opinion that the plaintiff has been able to prove that the suit has been signed, verified and filed by a duly authorized person on behalf of the plaintiff.
Accordingly, issue no.1 is decided in favour of the plaintiff and against the defendant nos. 1 and 2. ISSUE Nos. 2, 3 & 4 : All these issues are taken up together as to the same are connected interse, overlap each other and relate to the prayer clause of the main suit.
The factual controversy involved in the present suit has Contd...
Page No. 15 Suit No. 1118/2008.
IAL Shipping Agencies Ltd. vs. Advance Ispat (India) Ltd. etc been narrated herein above. Now let us discuss the evidence led by the parties.
The plaintiff has examined Ms. Reena Gupta, Asst. Manager of the plaintiff as PW 1, who has filed his evidence by way of affidavit, reiterating and reaffirming the stand taken by the plaintiff company in the plaint. PW 1 has proved on record various documents such as extract of resolution dated 30.01.2004 as Ex. PW 1/A, original SPA dated 23.02.2004 as Ex. PW 1/B, extract of the resolution dated 31.03.2004 as Ex. PW 1/C, SPA dated 20.11.2004 as Ex. PW 1/D, certified copy of the bill of lading dated 02.03.2001 as Ex. PW 1/E, certified copy of the debit note dated 02.03.2001 as Ex. PW 1/F, certified copy of the cheque dated 02.03.2001 as Ex. PW 1/G, certified copy of the memo dated 19.04.2001 as Ex. PW 1/H, intimation dated 20.04.2001 as Ex. PW 1/I, certified copy of of the letters dated 20.04.2001 as Ex. PW 1/J and PW 1/K, the reply sent by the defendant no. 2 by fax on the same letter dated 20.04.2001 as Contd...
Page No. 16 Suit No. 1118/2008.
IAL Shipping Agencies Ltd. vs. Advance Ispat (India) Ltd. etc Ex. PW 1/L, the reply to Ex. PW 1/F sent by the plaintiff company with the fax confirmation as Ex. PW 1/M, the letter dated 23.04.2001 as Ex. PW 1/N, the letter dated 24.04.2001 with fax confirmation as Ex. PW 1/O, certified copy of the letter dated 26.04.2001 with the fax confirmation as Ex. PW 1/P, certified copy of the letter dated 27.04.2001 with the fax confirmation as Ex. PW 1/Q, certified copy of the letter dated 01.05.2001 with fax confirmation as Ex. PW 1/R, certified copy of the letter dated 02.05.2001 with fax confirmation as Ex. PW 1/S, certified copy of the letter dated 03.05.2001 with fax confirmation as Ex. PW 1/T, the reply to the letter dated 23.04.2001 as Ex. PW 1/U, the reply to the letter dated 26.04.2001 as Ex. PW 1/V, the reply to the letter dated 27.04.2001 as Ex. PW 1/W, letter dated 30.04.2001 as Ex. PW 1/X, letter dated 03.05.2005 as Ex. PW 1/Y, legal notice dated 04.05.2001 with proof of service as Ex. PW 1/Z, bank memorandum dated 04.05.2001 as Ex. PW 1/Z1 and the intimation dated 05.05.2001 as Ex. PW 1/Z2.
Contd...
Page No. 17 Suit No. 1118/2008.
IAL Shipping Agencies Ltd. vs. Advance Ispat (India) Ltd. etc The relevant part of the crossexamination of PW 1 reads as under :
"... It is correct that Ex. PW 1/E is prepaid bill of lading. It is correct that Ex. PW 1/G is signed by defendant no. 4 and 5 favouring the plaintiff company. The order was booked by advance ispat defendant no. 1 and 2 through the defendant no. 35 for issuing the bill of lading to defendant no.
1. It is correct that the cheque Ex. PW 1/G has been dishonoured due to insufficient funds on account of defendant no. 35/ It is correct that defendant no. 1 and 2 has not issued any cheque from their account. It is correct that the copy of fax confirmation slip of letter dated 26.04.2004 is not legible.... It is correct that the debit note Ex. PW 1/F is a computer generated slip and not required to sign not signed by the anyone in the company. Ex. PW 1/F shows that freight and IHC as prepaid.... It is correct to suggest that the defendant has induced the plaintiff to issue the Contd...
Page No. 18 Suit No. 1118/2008.
IAL Shipping Agencies Ltd. vs. Advance Ispat (India) Ltd. etc prepaid bill of lading Ex. PW 1/E. It is correct to suggest the debit note Ex. PW 1/F is also issued by way of inducement by the defendants. I do not remember whether the plaintiff has incurred the demurrage charges at eh port of destination for the goods shipped. It is correct that the debit note Ex. PW 1/F has been delivered by the plaintiff to the defendant no. 35 and there is no acknowledgment on record..."
The defendants have examined Sh. Ashish Aggarwal, one of the Directors of the defendant no. 1 company, as DW 1, who has also filed his evidence by way of affidavit, reaffirming and reiterating the stand taken by the defendants in the Written Statement.
The relevant part of the crossexamination of DW 1 reads as under :
".... Ex. PW 1/A is the bill of lading in question basis which we had exported our consignment of 25000 KG of steel tubes through the plaintiff company... It is correct that we sent the bill of Contd...
Page No. 19 Suit No. 1118/2008.
IAL Shipping Agencies Ltd. vs. Advance Ispat (India) Ltd. etc lading Ex. PW 1/E to the consignee at port of destination and the goods were released to the consignee upon production of original bill of lading. It is correct that when instructions are given to the shipping line company regarding payment of sea freight of loading port is is called freight prepaid and if the freight is payable by the consignee at the destination port it is called freight to collect.... It is correct that the name of defendant no. 1 appears as shipper in the document Ex. PW 1/E It is correct that being the shipper, the payment of sea freight was our responsibility. Defendant no. 3 raised a debit note towards shipment charges on defendant no.1. It is correct that the said debit note has not been filed on the record but it can placed..... Document Ex. PW 1/E states clearly that frequent freight services Pvt. Ltd is the agent of the plaintiff. It is correct that there is no documentary evidence available to show that defendant no. 3 ever representative to us that they are the agent of the plaintiff.... The custom Contd...
Page No. 20 Suit No. 1118/2008.
IAL Shipping Agencies Ltd. vs. Advance Ispat (India) Ltd. etc clearance of the consignee goods was done by M/s RNC Freight Movers Pvt. Ltd. who were appointed by us. It is correct that I do not have any document to show that any agency ever existing between defendant no. 3 and plaintiff except bill of lading Ex. DW 1/E....It is correct that the stuffing was done of the goods in the container in compliance of my orders. It is correct that after stuffing, the container is handed over to customs department for sealing. Vol. Two seals are affixed on container, one by the customs department and other by the Shipping Line....I have no document to show that the stuffing of the container was witnessed and supervised by the Shipping Line staff. It is correct that there is a clause at point A on Ex. PW 1/E which mentions as under
"SHIPPER'S LOAD, STOW, COUNT & SEAL "
SAID TO CONTAIN". Vol. But in every transaction while stuffing the goods in container, despite the said clause in Bill Of Lading, supervision is done by the officials of Shipping Contd...
Page No. 21 Suit No. 1118/2008.
IAL Shipping Agencies Ltd. vs. Advance Ispat (India) Ltd. etc Line. It is wrong to suggest that no supervision was done by the officials of Shipping Line. It is correct that the custom clearance was got done through Clearing House Agent (CHA) i.e. by RNC Freight Movers Pvt. Ltd. by the defendant. I cannot admit or deny the suggestion that Ex. PW 1/E i.e. Bill of Lading was issued to the defendant after the loading of the goods on the ship.... It is true that Bill of Lading also contain my instructions and the particulars furnished by me but at the same time other particulars were obtained and filled up by the Shipping Line....It is correct that debit note dated 02.03.01 was issued in the name of M/s Advance Ispat India Ltd....."
The next witness examined by the defendants is DW 2 Sh. Anand Singh Negi, Clerk in Bank of India, New Delhi Overseas Branch, New Delhi, who has proved the certificate issued by the bank as Ex. DW 2/1 and state that Rs. 155775/ was paid by cheque no.
Contd...
Page No. 22 Suit No. 1118/2008.
IAL Shipping Agencies Ltd. vs. Advance Ispat (India) Ltd. etc 13399 dated 02.03.01 in favour of Frequent Freight Services Pvt. Ltd. on 03.03.2001. The relevant part of crossexamination of DW 2 reads as under :
" It is correct that the certificate is not the statement of account. It is correct that the account number has not been mentioned of the executor of the cheque. It is correct that the transaction pertaining to the clearance of the cheque and credit and debit entry pertaining to the account are shown in the statement of account. I have not brought the statement of account... It is correct that document Ex. DW 2/1 has been issued at the instance of defendant no.1 and 2..."
In the written final arguments filed by the defendant nos. 1 and 2, Ld. counsel for the defendants has argued that the plaintiff has not been able to prove that defendant nos. 1 and 2 induced the plaintiff to issue the prepaid bill of lading Ex. PW 1/E. It has been argued further that it appears that the forwarding agent i.e. defendant Contd...
Page No. 23 Suit No. 1118/2008.
IAL Shipping Agencies Ltd. vs. Advance Ispat (India) Ltd. etc no. 3 who enjoyed credit facilities granted by the plaintiff did not honour a cheque issued by them in favour of the plaintiff. It has been argued further that plaintiff was later on forced to withdraw the said false complaint against the defendant nos. 1 and 2 before the court of Ld. MM. It has been argued further that the plaintiff has failed to prove that the cheque for Rs. 1,69,675/ issued by defendant no. 3 was issued by defendant no. 3 through defendant no. 1 and 2 in discharge of any alleged liability on the part of the defendant nos. 1 and 2.
On the other hand, in the written final arguments filed on record, Ld. counsel for the plaintiff has argued that plaintiff has been able to prove its case in its entirety.
After carefully going through the entire material on record, the evidence led by the parties and the arguments advanced at bar, I am of the opinion that the defendant no. 1 and 2 have admitted the factum of availment of services of plaintiff company and shipment of their goods by the plaintiff company vide bill of lading Ex.
Contd...
Page No. 24 Suit No. 1118/2008.
IAL Shipping Agencies Ltd. vs. Advance Ispat (India) Ltd. etc PW 1/E in their Written Statement as well as in the evidence by way of affidavit of DW 1 Ashish Aggarwal. It has to be seen that the aforesaid witness DW 1 has admitted that defendant no. 1 and 2 sent their export consignment of 25000 KG of steel pipes through the plaintiff company vide bill of lading Ex. PW 1/E to Port of Spain to their buyer. This witness has further admitted that they had sent the bill of lading to their consignee and the goods were delivered to the consignee upon production of the original bill of lading. This witness was unable to prove any written correspondence with them to show that defendant no. 3 is the agent of the plaintiff. This witness has further admitted that he did not have any document to show that any agency ever existed in between the plaintiff and the defendant no. 3. This witness has further admitted that the consignment was booked by him with the plaintiff company through M/s Frequent Freight Pvt. Ltd. This witness has further admitted that the debit note dated 02.03.01 (Ex. PW 1/F) was issued in the name of M/s Advance Ispat Contd...
Page No. 25 Suit No. 1118/2008.
IAL Shipping Agencies Ltd. vs. Advance Ispat (India) Ltd. etc India Ltd. This witness has also admitted that the customs clearance was done by their CHA M/s RNC Freight Movers Pvt. Ltd. (whose name also appears on the debit note dated 02.03.2001). This witness has further admitted that no house bill of lading was issued by the defendant no. 3.
I am of the opinion that the Ld. counsel for the plaintiff in the written final arguments has rightly pointed out that the plaintiff has been able to establish that defendant no. 1 and 2 entered into an agreement for carriage of goods with the plaintiff which is evident from the bill of lading Ex. PW 1/E. It has been further rightly pointed out that debit note dated 02.03.01 Ex. PW 1/F was raised by the plaintiff in favour of defendant no. 1 for payment of freight and other charges. It has also been rightly pointed out that the plaintiff company issued the bill of lading Ex. PW 1/E to defendants upon receipt of cheque in question Ex. PW 1/G. It has also been rightly pointed out that DW 1 in his crossexamination has admitted the Contd...
Page No. 26 Suit No. 1118/2008.
IAL Shipping Agencies Ltd. vs. Advance Ispat (India) Ltd. etc liability of defendant no. 1 and 2 for making the payment of freight charges to the plaintiff company. It has also to be seen that defendant nos. 1 and 2 have failed to produce and prove the letter dated 03.05.2001 which they alleged to have issued to the consignee containing true facts. It has also been rightly pointed out that defendant nos. 1 and 2 have admitted the booking of goods for shipment with the plaintiff through the defendant nos. 3 to 5. It has been further rightly pointed out that defendant nos. 1 and 2 have stated that they paid Rs. 1,55,775/ to the defendant no. 3 against a debit note issued by the defendant no. 3 in respect of the shipment in question vide letter dated 26.04.2001 of the defendant no. 1 and 2, but defendant nos. 1 and 2 failed to produce any such debit note. I am of the opinion that it has been rightly pointed out that defendant nos. 1 and 2 have failed to prove that the said amount of Rs. 1,55,775/ was paid in respect of the shipment in question. I am also of the opinion that the debit note was issued by the plaintiff company for a sum of Contd...
Page No. 27 Suit No. 1118/2008.
IAL Shipping Agencies Ltd. vs. Advance Ispat (India) Ltd. etc Rs.1,69675/ and the defendant nos. 1 and 2 have paid a sum of Rs.1,55,775/ but the difference in the said two amounts has not been explained anywhere. I am of the opinion the defendant nos. 1 and 2 have admitted their privity of contract with the plaintiff as well as their liability for payment of freight and other charges towards the plaintiff in clear cut and unequivocal terms.
In view of the aforesaid discussion, I am of the opinion the plaintiff has been able to prove that the payment was not made by defendant no. 1 and 2 to the plaintiff for the shipment in question and as such the said defendants alongwith other defendants are jointly and severally liable to pay the suit amount to the plaintiff company.
Accordingly issue nos. 2 and 3 are decided in favour of the plaintiff and against the defendants.
So far as interest is concerned, in my opinion, it would be sufficient, in these circumstances of the case, if the interest @ 9 % per annum from the date of filing of the suit till the date of realization is Contd...
Page No. 28 Suit No. 1118/2008.
IAL Shipping Agencies Ltd. vs. Advance Ispat (India) Ltd. etc granted.
Accordingly, issue no. 4 is also decided in favour of the plaintiff and against the defendants.
Relief : The suit of the plaintiff has already been decreed in favour of defendant nos. 3 to 5. As such present suit is decreed in favour of the plaintiff and against the defendant nos. 1 and 2 only for a sum of Rs. 2,61,000/ alongwith interest @ 9 % per annum from the date of filing of the suit till the date of realization.
Decree Sheet be prepared accordingly.
File be consigned to Record Room.
Announced in the open Court today on 26th Day of February, 2010.
(RAJ KUMAR) ADMINISTRATIVE CIVIL JUDGE cumADDITIONAL RENT CONTROLLER (NORTH) TIS HAZARI COURT: DELHI.
Contd...