Delhi District Court
Food Corporation Of India vs M/S Madan Lal Jaggi & Sons on 3 April, 2019
IN THE COURT OF SH. LAXMI KANT GAUR, ADDITIONAL
DISTRICT JUDGE, CENTRAL, TIS HAZARI COURTS, DELHI
CS No.11827 of 2016
Food Corporation of India,
17 Prabhat Kiran Building,
Rajendra Place, New Delhi8. .....Plaintiff.
Versus
1. M/s Madan Lal Jaggi & Sons
Government & Army Contractors,
2, Todermal Lane, Bengali Market,
New Delhi.
2. Shri J.B. Jaggi, Partner,
M/s Madan Lal Jaggi & Sons,
Government & Army Contractors,
2, Todermal Lane, Bengali Market,
New Delhi.
3. Shri Ravinder Jaggi, Partner.
4. Shri Vipin Jaggi, Partner.
5. Miss Promilla Jaggi, Partner,
6. Smt. Kailash Rani Jaggi, Partner. .....Defendants
Date of filing of the suit: 24.05.1988
Date of reserving judgment: 22.03.2019
Date of judgment: 03.04.2019
Suit for recovery of Rs.27,44,570.05 (Rupees twenty seven lakh forty
four thousand five hundred seventy and paise five only)
Page No.1 of 31
JUDGMENT
1. By this judgment, I propose to decide the suit filed by the plaintiff for the recovery of Rs.27,44,570.05/ together with interest pendentelite and future interest @ 18% p.a. with cost.
Facts : Facts as stated in plaint
2. Plaintiff Food Corporation of India is a creation of a statute enacted by the Parliament to trade in foods stuff, in terms of the policy of the government, to ensure that the primary producers get the minimum price on the one hand, and on the other hand, the interest of the consumers from the vagaries of speculative trade are protected.It involves building of buffer stocks and engaging in the purchase, storage, movement, distribution and sale of food grains.
3. Defendant no.1 is a Partnership firm and Defendants no.2 to 6 are its partners.
4. In response to a tender floated by the Plaintiff for the appointment of loading, unloading, handling and transportation contractor at FCI, Railheads at Subzi Mandi, Kishan Ganj and at Lahori Gate in Delhi, Defendant no.1 had also submitted its tender like many others. It was the tender of defendant no.1 which was found to be lowest and accordingly, contract was awarded to defendant no.1 for the said Page No.2 of 31 operations from 25.05.1983 to 24.05.1985. There is no dispute between the parties to this extent.
5. Before, however, the term of this contract was to expire on 24.05.1985, a fresh tender was floated on 23.02.1985 for a period of two years beginning 25.05.1985. The tender was opened on 02.04.1985. Defendant no.1 too had submitted its bid. It may be noted here that the tender was awarded to defendant no.1 for the period from 25.03.1983 to 24.05.1985 @ 167.4 % 'Above the Schedule of Rates' (ASOR). This time, however, the rate quoted by the Defendant on.1 at 211% ASOR was found not the lowest but second lowest. The lowest tender was of M/s Oriental Carrier who had quoted the rate as 182.5% (ASOR). M/s Oriental, Carrier, however, resiled and therefore, the Plaintiff started negotiating with the Defendant no.1, whose rates, like stated above, were the second lowest.
6. Defendant no.1 did not move from its position during the discussions held on 20.05.1985. Ultimately, the officials of the plaintiff had relented and accepted the proposal of the Defendant no.1 to award contract to it at the rates quoted by it i.e. 211% (ASOR). There was a letter to this effect sent to the Zonal Manager for the acceptance of the proposal of the Defendant No.1 on 21.05.1985.
7. There was also a letter sent to the Defendant No.1 on 20.05.1985 with a Page No.3 of 31 request to continue to work beyond 24.05.1985 at the same old rates till the finalization of the contract at their previous rates. Defendant no.1 , however, by its letter dated 21.05.1985 had refused to work at the old rates and stated that it would continue to work after 24.05.1985 only if it is awarded the contract at the rate of 211% ASOR i.e the rate quoted by it for the period 25/05/1985 to 24/05/1987. Defendant No.1 also laid down the conditions, one that the letter of its appointment as contractor should reach by 24.05.1985, awarding the contract w.e.f. 25.05.1985 and second it should be for a period of two years. It offered to continue to work till 30.05.1985 as a stop gap arrangement but that too also at the same rate quoted by him i.e. 211% ASOR.
8. Plaintiff accepted this offer and conveyed it by an Express Savingram dated 22.05.1985 followed by a letter of appointment dated 24.05.1985. It was duly received by the defendant on 24.05.1985. Thus all the conditions laid down by the Defendants being accepted, a binding contract came into existence whereby the defendants were appointed as Handling Contractor w.e.f. 25.05.1985 to 24.05.1987 at 211% ASOR.
9. The problem, however, did not end here. The defendants did not start the work as they were supposed to from 25.05.1985, instead they issued a letter dated 27.05.1985 conveying that some of the labour unions had put the condition to be paid rates as per the decision of the Labour Page No.4 of 31 Commissioner, and the plaintiff should reimburse the same to the defendants. Plaintiff did not agree to it. Plaintiff's sent an Express Savingram dated 31.05.1985 to say that it was Defendant's responsibility to resolve its labour problems. During this period since the defendant did not remove the goods the plaintiff suffered demurrage and also wharfage.
10.This trend continued even thereafter. For one failure or the other on the part of the Defendants, Plaintiff continued to suffer and pay demurrages/ wharfages/rebooking charges. Defendants stopped working without notice on 26.07.1985. Once the defendant had left without notice, the plaintiff had to appoint another contractor M/s Nitin & Co. from 13.09.1985 who had worked with the plaintiff upto 10.12.1985. Thereafter, plaintiff had appointed one another contractor M/s Aggarwal Associates at 277 % ASOR for the period 11.12.1985 to 16.02.1985 on adhoc basis and at 242% ASOR for the period from 17.02.86 to 24.05.1987. It is stated as a result of it, Plaintiff had to incur also additional expenditure by hiring other Contractor at higher SOR.
11.According to the plaintiff, the defendant did not make good the losses despite repeated demands. On the date of filing of the plaint, the Defendants were liable to pay Rs.27,44,570.05P inclusive of interest at Page No.5 of 31 the rate of 18%pa to the tune of Rs.7,37,478.05P.
Facts as stated in the written statement
12.Before stating anything, one may point out at the time of going through the record it was found the written statement filed on record is neither signed nor verified by anyone on behalf of the Defendants, though its index bears the signature of the Ld Counsel of the Defendants and also stamp of the Dy Registrar of the Hon'ble High Court. This suit was filed way back in 1988. It is already more than thirty years. Parties have been acting on this written statement for years. Replication was filed in reply to this written statement and also issues framed. It is well settled, it is a curable defect and not fatal to a case 1. I feel it would be better and in the interest of justice that I proceed to accept this as a written statement appropriately filed as has been considered by the parties and the Court alike throughout the trial.
13.Defendants have not denied that they had continued to work beyond 25/04/1985. They, however, have denied that any binding contract came into existence on 25.05.1985. There is no denial in respect of savingram dated 22.05.1985 having been received by the Defendants. Though in respect of the letter dated 24.05.1985 it has been submitted 1 Uday Shankar Triyar Vs. Ram Kalewar Prasad Singh and Anr. 2005 IX AD (S.C.) 688 Page No.6 of 31 that this letter was received by the defendants but much later than referred to in the letter. According to defendants this letter was antedated. It is stated that this letter was handed over to one of the partners of the defendant firm who had merely taken the letter to read the same. This according to the Defendants did not lead to any binding contract.
14.According to the defendants, though they had agreed to work till 31.05.1985 but because of constant harassment at the hands of the plaintiff and the labour problems being created by the Plaintiff, they were left with no alternative but to withdraw.
15.Defendants have admitted the receipt of savingram of plaintiff dated 31.05.1988 stating interalia that it was the problem of the defendants and not of the Plaintiff to deal with the labour issues. According to defendants, labour belonged to plaintiff; they were adopting go slow tactics and avoiding do the necessary work. As a result of it, Defendants were suffering huge losses. They denied that they were responsible for demurrage and wharfage charges. It is stated that the plaintiff did not have the adequate storage. Their godowns were over flowing. Therefore, the trucks of the defendants had to wait for days to unload.
16.According to defendants, it was duty of the plaintiff to present their Page No.7 of 31 case for the waiver of and/or reducing of the demurrage and wharfage charges within the stipulated time with Railways, but they did not do so.
17.Defendants have also alleged that there had been lack of coordination between plaintiff and railways authorities. They were not receiving the instructions in time about the goods to be unloaded from wagons and therefore not liable to make any payment to the plaintiffs in this regard. It is added in the Written Statement that plaintiff itself wrote letter to railways authorities for the waiving of demurrage and wharfage admitting their own lapses. Therefore, they could not attribute those lapses to the defendants. Defendants too had written letters to the Plaintiff to bring to its notice the problems being faced by them but the plaintiff did not take any corrective steps.
18.According to defendants, the circumstances were beyond their control and so far as the plaintiff is concerned, it did not take any remedial steps to address the issues raised by them. The defendants stopped the work only after giving notice to the plaintiff. There is also a statement made in the Written Statement that the bills of the Defendants pending with the plaintiff had not been paid by them.
19.The defendants also have questioned the removal of M/s Nitin & Co. who was willing to work with the Plaintiff's at the same rates at which Page No.8 of 31 the Defendants were working and in turn appointed M/s Aggarwal Associates at much higher rates, first at 277% ASOR from 11.12.85 to 16.12.86 and thereafter at 242% ASOR for the period from 13.02.86 to 24.05.86. The Defendants have, therefore, denied thier liability for making any payment to the Plaintiff for any "additional expenditure"
incurred by the plaintiff.
20.It is alleged by the Defendants that the Plaintiff is only trying to cover its own negligence. They are not liable to make any payment to the plaintiff. It is also alleged that the Plaintiff have illegally withheld the payments of its bills and adjusted the security amount. The defendants reserved their right to file a counter claim against the plaintiff. (From the present proceedings it cannot be made if there was any such claim filed).
Issues On the basis of the pleadings following issues were framed: (1)Whether the suit has been instituted and plaint signed and verified by an authorised person on behalf of the plaintiff?
(2)Whether the averments in the plaint are vague? If so, to what effect? (3)Whether the terms of the agreement were void for uncertainty? If so, to what effect?
(4)Whether the suit is barred by section 51 of the Indian Contract Act? (5)Whether the plaintiff had incurred any demurrage and wharfage Page No.9 of 31 charges? If so, to what extent?
(6)If issue No.5 is proved in the affirmative, whether the defendant is liable to reimburse the amount of the said demurrage and wharfage charges?
(7)Whether the plaintiff is entitled to interest? If so, at what rate and for what period?
(8)Relief.
Examination of witnesses
21.On behalf of the Plaintiff there were many affidavits filed in evidence of many officers but ultimately one Sh. Darshan Lal Assistant General Manger of FCI was examined. His affidavit was drawn on the lines of the case of the Plaintiff. In his testimony many of the documents relating to the calculation of dues and calculation of interest had been filed. This witness was given the number PW1. The documents he had referred to his testimony were given the number Exhibit number PW2, PW3, PW4, PW5,PW6 and PW7. It's just being clarified here that by the numbeing of the exhibits it may not be construed that there were many witnesses examined. There is one more clarification required here. Plaintiff had been allowed to file certain documents at a late stage in the case. Witness PW1 Sh. Darshan Lal had retired by this time. Therefore, there was one witness Sh Subhankar, also working AGM with the Plaintiff, called to prove those documents,. This witness too Page No.10 of 31 was given the number PW1. He had placed documents on record which related to credit notes issued by the Railways for the payments made in respect of Demurrage and Wharfage also rebooking charges. He had also referred to statements showing calculation of the amount which Plaintiff was entitled to recover on account of the excess payments they had to make to the other contractor hired at higher rates.
22.On behalf of Defendants Sh. Madan Lal Jaggi one of the partners of the Defendant had filed his affidavit and deposed. He had though referred to various defenses alluded to in his written statement but did not refer to any document though he had filed many on record. Hearing to parties
23.I have gone through the record of the case and also the written submission filed.
Findings (1)Whether the suit has been instituted and plaint signed and verified by an authorised person on behalf of the plaintiff
24.This suit had been signed and verified by one Sh. B.S. Rathor, Dy Manger (S&C) Food Corporation India Regional Office New Delhi.
25.According to Order 29 Rule 12 of the Code in suits by a Corporation 2 Subscription and verification of pleading-- In suits by or against a corporation, any pleading may be signed and verified on behalf of the corporation by the security or by any director or other principal officer of the corporation who is able to depose to the facts of the case. Page No.11 of 31 any pleading can be signed by the secretary or any director or other Principal officer of the corporation who may be able to depose about the facts of the case.
26. It is stated in Para one of the Plaint that according to regulation 34(i)
(a) Zonal Manger has the delegated authority to institute all suits etc and he has the power to further delegate such power to other officers under Regulation 34(vi). In exercise of this power he had by a letter dated 09/05/88 authorized Sr. Regional Managers and Dy Manger (Cont.) FCI New Delhi to institute such proceedings. Sh. Rathore who has signed and verified the Plaint had been working as Dy Manger (S&C) with the Plaintiff. This document had been annexed with the Plaint as annexure A, but when it was put to the witness PW1 Sh. Darshan Lal, it was given Mark A considering that it was only a photocopy. This is the bases of the argument that the Plaintiff has been not been to establish if the Plaint in this case had been signed by an officer competent to do so.
27.The question, however, is, should this be allowed to defeat the claim of the Plaintiff?
28.Hon'ble Supreme Court of India in Union Bank of India v Naresh Kumar and others - 1996 (6) SCC 660 - had laid down thus "In cases like the present where suits are instituted or defended Page No.12 of 31 on behalf of a public corporation, public interest should not be permitted to be defeated on a mere technicality. Procedural defects which do not go to the root of the matter should not be permitted to defeat a just cause. There is sufficient power in the Courts, under the Code of Civil Procedure, to ensure that injustice is not done to any party who has a just case. As far as possible a substantive right should not be allowed to be defeated on account of a procedural irregularity which is curable.
It cannot be disputed that a company like the appellant can sue and be sued in its own name. Under Order 6 Rule 14 of the Code of Civil Procedure a pleading is required to be signed by the party and its pleader, if any. As a company is a juristic entity it is obvious that some person has to sign the pleadings on behalf of the company. Order 29 Rule 1 of the Code of Civil Procedure, therefore, provides that in a suit by against a corporation the Secretary or any Director or other Principal officer of the corporation who is able to depose to the facts of the case might sign and verify on behalf of the company. Reading Order 6 Rule 14 together with Order 29 Rule 1 of the Code of Civil Procedure it would appear that even in the absence of any formal letter of authority or power of attorney having been executed a person referred to in Rule 1 of Order 29 can, by virtue of the office which he holds, sign and verify the pleadings on behalf of the corporation. In addition thereto and de hors Order 29 Rule 1 of the Code of Civil Procedure, as a company is a juristic entity, it can duly authorise any person to sign the plaint or the written statement on its behalf and this would be regarded as sufficient compliance with the provisions Page No.13 of 31 of Order 6 Rule 14 of the Code of Civil Procedure. A person may be expressly authorised to sign the pleadings on behalf of the company, for example by the Board of Directors passing a resolution to that effect or by a power of attorney being executed in favour of any individual. In absence thereof and in cases where pleadings have been signed by one of it's officers a Corporation can ratify the said action of it's officer in signing the pleadings. Such ratification can be express or implied. The Court can, on the basis of the evidence on record, and after taking all the circumstances of the case, specially with regard to the conduct of the trial, come to the conclusion that the corporation had ratified the act of signing of the pleading by it's officer." ( emphasis supplied)
29.It is further laid down -
"The courts below could have held that Sh. L.K. Rohatgi must have been empowered to sign the plaint on behalf of the appellant. In the alternative it would have been legitimate to hold that the manner in which the suit was conducted showed that the appellant bank must have ratified the action of Sh. L.K. Rohatgi in signing the plaint. If, for any reason whatsoever, the courts below were still unable to come to this conclusion, then either of the appellate courts ought to have exercised their jurisdiction under Order 41 Rule 27 (1) (b) of the Code of Civil Procedure and should have directed a proper power of attorney to be produced or they could have ordered Sh. L.K. Rohatgi or any other competent person to be examined as a witness in order to prove ratification or the authority of Sh. L.K. Rohatgi to sign the plaint. Such a power should be exercised by a court in order to ensure that injustice is not done by rejection of a genuine Page No.14 of 31 claim.( emphasis supplied)"
30.Finally coming to the facts of the said case, conclusion was reached like this "The court had to be satisfied that Sh. L.K. Rohatgi could sign the plaint on behalf of the appellant. The suit had been filed in the name of the appellant company; full amount of court fee had been paid by the appellant bank; documentary as well as oral evidence had been led on behalf of the appellant and the trial of the suit before the Sub Judge, Ambala, had continued for about two years. It is difficult, in these circumstances, even to presume that the suit had been filed and tried without the appellant having authorised the institution of the same. The only reasonable conclusion which we can come to is that Sh. L.K. Rohatgi must have been authorised to sign the plaint and, in any case, it must be held that the appellant had ratified the action of Sh. L.K. Rohatgi in signing the plaint and thereafter it continued with the suit."
31.This case before us has gone down for more than thirty years. There has not been any let up from the side of the Plaintiff Corporation in following up this case. Evidence has been lead on its behalf. Senior officers of the rank of assistant general managers have come to deposed in this case. I am, therefore, of the view in the absence of the said letter Mark A, still there is every reason to say that Mr. B.S Rathore Dy Manger ( S&C) Regional Office New Delhi , had the authority to sign and verify the Plaint on behalf of the Plaintiff corporation. Page No.15 of 31
32.The issue is accordingly decided in favour of the Plaintiff against the Defendants.
(2)Whether the averments in the plaint are vague? If so, to what effect?
33. The best way to establish whether the plaint is vague or not is to read the Plaint itself. If the Plaint is read along with the annexure filed. One can say that the Plaint, on the contrary, is quite precise. It goes to the extent of explaining how the calculation of the interest has been made.
34.The issue is accordingly decided in favour of Plaintiff and against the Defendant.
(3)Whether the terms of the agreement were void for uncertainty? If so, to what effect?
35.It is an admitted fact that the parties were known to each other for at least two years. They knew precisely what was expected to be done under the contract. Defendant No.1 had submitted its Bid to the Tender Ex PW1/A.( It is a fairly detailed document). There is no dispute Defendant No.1 quoted its rate as 211% ASOR.
36.There is, however, a difficulty at a different level. It may be noted that the Defendant no.1 was not in picture as far as the second tender is concerned as there was no way contract could be awarded to it as its Page No.16 of 31 bid was second lowest. It is because the lowest bidder had backed out and there was, (there is a reason to believe) a difficult situation at hand for the Plaintiff. The old contract with the Defendant No.1 was coming to end and new contract was not in place, like it is said the Bidder who had given the lowest Bid had backed out. Therefore, by the letter dated 22/05/1985 the Defendant no.1 was "requested to continue handling and transportation work at Subzi Mandi Railhead beyond 24/05/1985 and continue the work till the appointment of a regular Handling and Transportation contractor at Subzi Mandi." Things, however, got complicated when the Defendant insisted to be paid at the rate quoted in his Bid i.e 211@ ASOR and extension of contract for a period of two years i.e. up to 24/05/1987.
37.Defendant No.1 in its written statement says " Since the Plaintiff did not keep its commitment regarding the increase rates, the answering defendants were left with no alternative but to withdraw from the said offer." If this was the case then why did it continue to wait till July 1985 according to its own averment in the written statement? There is no specific denial to the express savingram Ex PW1/C being sent to the Defendant No.1 which clearly refers to the acceptance of the terms set by the defendant No.1. There is also no denial to letter of 24/05/1985 having been received by the Defendant No.2 except it is stated in para Page No.17 of 31 no.7 in reply to the corresponding para no.7 of the plaint " Para 7 as laid is admitted to the extent that the appointment letter, as mentioned in the para under reply was given much later than the date mentioned in the para . the fact of matter is that the letter was ante dated and handed over to one of the partners of the answering defendant who only took the letter to read the same and there was therefore no question of acceptance of the terms as referred or a contract coming into existence." Though the said letter of 24/05/1985 has not been filed on record but again question would still remain if this was the question why did it continue to work thereafter? It is not the case of the defendant it had not raised any bills on the Plaintiff at the rate 211% ASOR subsequently.
38.It may be added that not one but many letters had been written on behalf of Defendant No.1 to the Plaintiff raising various issues with the Plaintiff but not once stating that there had been no contact between the Plaintiff and the Defendant No.1. In para 20 of the written statement it is stated "inspite of the defendants several letters, requests, moreover the bills of defendants were also not paid, the defendants Page No.18 of 31 were therefore constrained to give a notice to the Plaintiff to the effect that they were not able to work in these circumstances explained and it was only after giving notice that the work was stopped." This is also written in the letter dated 31/07/1085 sent by Defendant No.1 to the Plaintiff. It may be noted that this letter can be read in evidence against the defendant as the Defendant cannot deny this letter. The last para of this letter reads "In the events that have happened we hereby put an end to this contract and hold you responsible for the breach thereof. We reserve our right to claim damages from you against the losses suffered by us." What kind of breach the defendant No1 has been complaining of if there was no contract? As far as the terms of the contract are concerned they are clear from the tender document Ex P1/A. Even if there had been formal contract signed it could not have gone beyond it.
39.Coming to the other question of no formal contract being signed; performance security as referred to in Ex PW1/C Express Savingram or Bank guarantee not being submitted as per Appendix V of the Tender Document Ex PW1/A by the defendant, it may be stated the Plaintiff took risk by entering into this contract with the defendant without getting those documents signed but Defendant on its basis cannot turn around to say there was no contract. Plaintiff did not look for any other Page No.19 of 31 contractor till the time defendant No.1 had not stopped the work.
40.In my view there is no doubt that there was a contract between the parties for a period from 25/05/1985 to 24/05/2017.
41.Issue stands answered accordingly.
(4)Whether the suit is barred by section 51 of the Indian Contract Act?
42.It does not appear to me that in this case there is anything to suggest that it is a case of reciprocal promises being simultaneously performed. It is contract where the services would be rendered by the Defendant No.1 as Handing and Transportation contractor , present bills and the same would be paid. There is nothing expected simultaneously to be done by the plaintiff for the defendant to execute the contract.
43. The suit therefore cannot be said to be barred under section 51 of the Contract Act.
44. Issue is accordingly decided in favour of the Plaintiff and against the Defendant.
(5)Whether the plaintiff had incurred any demurrage and wharfage charges? If so, to what extent?
Paying the difference what Plaintiff had to pay if the Defendant had continued to work and they paid by having to engage other contractor.
45.Before coming to the question of Demurrage and Wharfage one may Page No.20 of 31 look at the claim of Rs.487515.16 (Rupees four lakh eighty seven thousand five hundred fifteen and paise sixteen only) made towards the difference of money they had to pay by engaging contractors M/s Aggarwal Associates for the period 11.12.85 to 16.02.1986 @ 277% ASOR and thereafter from 17/02/1986 to 24/05/1987 @ 242% ASOR and money they would have paid had Defendant No1 had continued to give his services during this period @ 211% ASOR.
46. To prove this fact there is statement filed on record Ex. PW1/F for the period from 11/12/1985 to 12/3/1986 during which M/s Aggarwal and Associates had been engaged first at 277% ASOR and Ex PW1/G for the period from 13/3/1986 to 24/5/1987 second time M/s Aggarwal Associates was engaged at 242% ASOR. The first statement ExPW1/F has been signed by Assistant Manager (STG), Assistant Manger (A/CS) and one District Manager. Similarly the other statement has also been signed by the same persons. Later statement is of 19/2/1988. There is no clarity has to when the former statement was signed but it bears initials of someone with the date 6/4/1988 under a note "compared with prestatement".
47.The documents had been exhibited on the basis of the affidavit filed by the witness PW1 Sh. Shubankar. He is not the author of those of documents. It is may be noted that at best it may mean the said Page No.21 of 31 documents may have been admitted in evidence, that by itself would not mean they have been proved. In Sudir Engineering Company vs Nitco Roadways Ltd 1995 IIAD Delhi 189 Hon'ble High Court had clarified thus:
"(13) Admission of a document in evidence is not to be confused with proof of a document.
(14) When the Court is called upon to examine the admissibility of a document it concentrates only on the document. When called upon to form a judicial opinion whether a document has been proved, disproved or not proved the Court would look not at the document alone or only at the statement of the witness standing in the box; it would take into consideration probabilities of the case as emerging from the whole record. It could not have been intendment of any law, rule or practice direction to expect the Court applying its judicial mind to the entire record of the case, each lime a document was placed before it for being exhibited and form an opinion if it was proved before marking it as an exhibit."
48.The best way to prove those documents in my view was to call any of the officers who had signed those documents or at least someone who was in a position to identify the signatures of the persons who had been able to identify their signatures. It is evident that is not the case here. There is no statement in the affidavit filed that he was in position to identify their signatures in any way. In reply to a question in reference Page No.22 of 31 to Ex PW1/F he had stated "it is correct that I have no personal knowledge about document Ex PW1/F or about the basis on which the said document had been prepared."
49.In my view, therefore, It cannot be said that said document have been proved.
50.For a moment even if it is assumed that the documents have been proved. Will that be of any help in establishing the claim of the Plaintiff? These documents are not strictly speaking statements of account but can be called as the calculation as to the money they would have paid had Defendant No.1 been the contractor and the money they had to pay at higher rates to M/s Aggarwal Associates. The statements set out the difference between the two which is being claimed by the Plaintiff. It is also not something which was maintained in the regular course of business. In fact these statements were prepared specifically only for this case. Even if it is treated akin to a statement of account and being maintained in the regular course of business, still this by itself it will not be sufficient to charge the defendants for any liability. According to section 34 of the Evidence Act, Books of Account kept in the regular course of business are relevant whenever they refer to any matter into which the Court has to inquire but such statements shall not alone be sufficient evidence to charge any person with liability. Page No.23 of 31
Therefore in the absence of any document which can vouch for the entries in those statement, the defendants cannot be held to be liable to make the said payment.
Demurrage, wharage and Rebooking Charges3
51.Plaintiff along with the Plaint has filed Annexure A to D (exhibits PW 2 to PW5). These annexure give details of the demurrage and wharfage and also rebooking charges for rebooking the goods to other destinations after Defendant No.1 had stopped the work in July, 1985, till the new contractor had been engaged. These details will have no meaning unless it will be possible to say that payments under these head had actually been made.
52.There is a bunch of receipts filed on record (43 in number) ExPW1/D(Colly). I have checked these receipts and matched the details given in those annexure. I have not been able to connect all but still large number of them. To make them understand it better I have put marks like X1, X2, X3 and so on for entries in the said Annexures and given the same mark to connected entries in the receipts ExPW1/D (Colly). I am putting this entire information in a tabulated form as follows:
3 Charges paid for rebooking of the same goods which had not been unloaded from wagons to avoid further incurring of demurrage and wharfage.Page No.24 of 31
TABLE- A Annexures Mark given to entries Amount of Demur Corresponding for identification in rage/warfage/ receipts (Ex.
annexures & Rebookings PW1/4)
corresponding entries Page Nos.
in Receipts
Annexure 'A' X1 1,27,176/- 70 (X1)
(Ex. PW2)
Annexure 'B' Nil Nil Nil
Annexure 'C' X2 1,628/- 86 (X2)
(Ex. PW4)
X3 609/- 86 (X3)
X4 1,218/- 87 (X4)
X5 820/- 88 (X5)
Annexure 'D' X6 133/- 92 (X6)
(Ex. PW5)
X7 127/- 92 (X7)
X8 2,84,951/- 82 (X8)
X9 2,157/- 81 (X9)
X10 58,819/- 95 (X10)
X11 45,085/- 96 (X11)
X12 63,116/- 97 (X12)
X13 72,151/- 98 (X13)
X14 674/- 99 (X14)
X15 2,755/- 100 (X15)
X16 54,899/- 101 (X16)
X17 2,081/- 102 (X17)
X18 4,118/- 103 (X18)
X19 2,066/- 104 (X19)
X20 48,180/- 105 (X20)
X21 51,669/- 106 (X21)
X22 13,349/- 107 (X22)
X23 1,143/- 108 (X23)
X24 59,317/- 109 (X24)
X25 2,172/- 110 (X25)
X26 2,286/- 111 (X26)
X27 4,139/- 112 (X27)
Total 9,06,838/-
Page No.25 of 31
53.There is no doubt that these receipts are relevant as per section 5 of the evidence Act as they help us determine the fact in issue herein. Witness PW1Sh. Shubhankar may have stated that he does not have personal knowledge about them but since it is no longer a possibility of calling authors of those receipts, these receipts are in my opinion admissible in evidence under section 32 (2) of the Evidence Act.
54.Ld counsel for the defendant also did not disbelieve those receipts either. The answers given by the witness to the questions put to him by Ld counsel for the defendants in respect these receipts are like this "I am not aware if appeals were filed with regard to demurrage on the basis of which the credit notes Ex PW1/D ( Colly) were issued. I am not aware of the orders passed by the Railway with regard to the waiver of the demurrage charges and on what basis." Levy of demurrage by the Railway is also not disputed. According to the line of questioning, Defendant was not liable for levy of demurrage because defendants could not have unloaded the goods because there was paucity of space in the godowns. To one of such suggestion given the witness had replied "It is wrong to suggest that the demurrage was levied by the Railway on account of goods being not lifted due to lack of space in the godowns." Page No.26 of 31
55.In terms of the calculation made above, I conclude that the Defendants are liable to pay Rs. 9,06,838/ (Rupes nine lakh six thousand eight hundred thirty eight only) to the Plaintiff.
56.This issue stands decided accordingly.
(6)If issue No.5 is proved in the affirmative, whether the defendant is liable to reimburse the amount of the said demurrage and wharfage charges?
57.Defendants have not denied their liability to pay but according to them they had a justification to not to pay.
58.In his Affidavit Sh. Jaggi, examined as DW1, has leveled various allegations ranging from lack of coordination within the officers of FCI, lack space in godowns, labour strike/ adoption of go slow tactics by labour employed and many other grievances but produced nothing in support to corroborate these statements not even many of the carbon copies of various letters written by it to the Plaintiff, complaining the same things time and again. It can therefore be said that the defendants have failed to provide any justification to end the contract or to say that it is not to liable to pay demurrage, wharfage or rebooking charges. It consequently means that it is liable to reimburse the demurrage, wharfage and rebooking charges paid by the Plaintiff to Railway as per the conclusion reached under issue no.5 above.
Page No.27 of 31 Issue No.(7)Whether the plaintiff is entitled to interest? If so, at what rate and for what period?
59.As one can see from the plaint and also the statement of interest filed along with the plaint as Annexure F (Ex.PW7) that the interest has been calculated by the plaintiff at the rate of 18% per annum from the dates amounts referred to therein were found to be due. The amount of interest claimed i.e. at the rate of 18% per annum does not appear to be excessive considering that it was a business relationship between the parties.
60.The amount of interest on the dues referred above in Table A ( above) calculated at 18% percent per annum is being reproduced herein in below in tabulated form:
TABLE-B Annexures Mark given to Amount of Interest @18% Corresponding entries for Demur p.a. receipts identification in rage/warfage/ (annexure (Ex. PW1/4) annexures & Rebookings F/Ex.PW7) Page Nos.
corresponding Page Nos.
entries in Receipts
Annexure X1 1,27,176/- 68,173.30/- (Page 70 (X1)
'A' 38 & Sl. No. 1)
(Ex. PW2)
Annexure Nil Nil Nil Nil
'B'
Annexure X2 1,628/- 846.20/- (Page 42 86 (X2)
'C' & Sl. No. 4)
(Ex. PW4)
X3 609/- 316.54/- (Page 42 86 (X3)
& Sl. No. 6)
X4 1,218/- 623.48/- (Page 42 87 (X4)
& Sl. No. 11)
Page No.28 of 31
X5 820/- 415.70/- (Page 43 88 (X5)
& Sl. No.18)
Annexure X6 133/- 64.08/- (Page 44 & 92 (X6)
'D' Sl. No. 27)
(Ex. PW5)
X7 127/- 61.18/- (Page 44 & 92 (X7)
Sl. No. 28)
X8 2,84,951/- 1,43,334.25/- 82 (X8)
(Page 39 & Sl. No.
13)
X9 2,157/- 1,082.89/- (Page 81 (X9)
39 & Sl. No. 12)
X10 58,819/- 29,818.81/- (Page 95 (X10)
40 & Sl. No. 1)
X11 45,085/- 22,789.54/- (Page 96 (X11)
40 & Sl. No. 2)
X12 63,116/- 31,841.58/- (Page 97 (X12)
40 & Sl. No. 3)
X13 72,151/- 36,328.52/- (Page 98 (X13)
40 & Sl. No. 4)
X14 674/- 339.03/- (Page 40 99 (X14)
& Sl. No. 4A)
X15 2,755/- 1381.82/- (Page 40 100 (X15)
& Sl. No. 5)
X16 54,899/- 27,470.58/- (Page 101 (X16)
40 & Sl. No. 6)
X17 2,081/- 1,039.58/- (Page 102 (X17)
40 & Sl. No. 7)
X18 4,118/- 2,053.13/- (Page 103 (X18)
40 & Sl. No. 8)
X19 2,066/- 1,029.03/- (Page 104 (X19)
40 & Sl. No. 9)
X20 48,180/- 23,807.52/- (Page 105 (X20)
40 & Sl. No. 11)
X21 51,669/- 25,276.75/- (Page 106 (X21)
40 & Sl. No. 12)
X22 13,349/- 6,556.73/- (Page 107 (X22)
40 & Sl. No. 13)
X23 1,143/- 560.28/- (Page 41 108 (X23)
& Sl. No. 14)
X24 59,317/- 29,018.20/- (Page 109 (X24)
41 & Sl. No. 15)
X25 2,172/- 1,059.34/- (Page 110 (X25)
41 & Sl. No. 16)
Page No.29 of 31
X26 2,286/- 1,113.81/- (Page 111 (X26)
41 & Sl. No. 17)
X27 4,139/- 2,012.57/- (Page 112 (X27)
41 & Sl. No. 18)
9,06,838/- 4,58,414.44/-
61.This case is now pending for more than thirty years, this delay can be attributed to parties, counsels to parties and to some extent also to Courts. If I have to grant interest at the rate as 18% for the period for which trial has been pending or for future, this amount would swell to a figure which would far more than the actual amount. I feel it would meet the ends of justice if the pendente lite interest is granted at the rate of 3.5%per annum on Rs.9,06,838/ from the date of the filing of suit till the date of passing this judgment i.e 03.04.2019 and future interest at the rate of 11% per annum on Rs.9,06,838/ till the date of realization. It may be also added that defendant no.1 is a partnership firm and defendant Nos.2 to 6 are its parters. They are jointly and severally liable to make the said payments.
(8)Relief
62.In view of the foregoing discussion, I am decreeing this suit in favour of the plaintiff and against the defendants for a sum of Rs.13,65,252.44 (Rs.9,06,838.00 + Rs.4,58,414.44 i.e. interest at the rate of 18%per annum till the date of filing of the suit) (Rupees thirteen lakh sixty five thousand two hundred fifty two and paise forty four only). Plaintiff Page No.30 of 31 shall also be entitled to interest at the rate of 3.5% per annum on Rs.9,06,838/ (Rupees nine lakh six thousand eight hundred thirty eight only) from the date of filing of the suit till the date of passing this judgment i.e. 03.04.2019 and future interest at the rate of 11%per annum on Rs.9,06,838/ (Rupees nine lakh six thousand eight hundred thirty eight only) till realization. All the defendants shall be jointly and severally liable to make the said payment.
Plaintiff is also held to be entitled to costs.
Decree sheet be prepared accordingly.
File be consigned to record room.
Announced in the open court on 03.04.2019 (Laxmi Kant Gaur) Additional District Judge, Central, Delhi.
Page No.31 of 31