Delhi District Court
Cs Dj Adj No. 997/2018 vs Tarun Aggarwal Page 2 Of 17 on 20 January, 2023
CS DJ ADJ No. 997/2018
CNR No. DLSW01-017096-2018
IN THE COURT OF MS. KIRAN GUPTA
ADDITIONAL DISTRICT JUDGE-01
SOUTH WEST, DWARKA COURTS, NEW DELHI
CS DJ ADJ No. 997/18
CNR No. DLSW01-017096-2018
M/s Freight Systems (India) Pvt. Ltd.
B-6/8, Okhla Industrial Area,
Phase II, New Delhi-110020 ...... Plaintif
Versus
Mr. Tarun Agarwal
M/S. Tarun Footwear (India)
Khasara No. 132, Runkata,
Delhi-Mathura Highway Road,
Agra 282007 ......Defendant
Date of Institution : 16.05.2011
Date of conclusion of
Final Arguments : 20.01.2023
Date of Judgment : 20.01.2023
JUDGMENT
1. Present suit is for recovery of Rs.5,39,459/-. The suit was initially decreed ex-parte vide judgment Digitally signed by KIRAN KIRAN GUPTA Date:
GUPTA 2023.01.20 15:55:14 +0530 Freight Systems Vs. Tarun Aggarwal Page 1 of 17 CS DJ ADJ No. 997/2018 CNR No. DLSW01-017096-2018 and decree dated 31.03.2012. Thereafter, the application of the defendant under Order IX Rule 9 CPC was allowed vide order dated 19.09.2018 and the ex- parte judgment and decree dated 31.03.2012 was accordingly set aside.
PLAINT
2. The case of plaintiff is that defendant approached it in December 2009-January 2010 and requested for making arrangement for carriage of their several shipment to Venice, Marco Polo, Italy as per the quotations of rates provided by the plaintiff. The defendant assured and promised to make the payment and booked several shipments with the plaintiff company between the period from 21.01.2010 to 11.02.2010 as per the following details:
Sr. Airway Invoice No & Weight Amount No. Bill No & Date of of Date Shipme Invoice nt in INR
1. 235- 1121-1269- 1502.00 23,946/-
Digitally signed by KIRAN KIRAN GUPTA Date:
GUPTA 2023.01.20
Freight Systems 15:55:20
+0530
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Tarun Aggarwal Page 2 of 17
CS DJ ADJ No. 997/2018
CNR No. DLSW01-017096-2018 6662- 100112210006 dt Kg 9640 dt 21.01.2010 21.01.20 10
2. 235- 1121-1269- 500.00 48,438/-
6662- 100112210008 dt Kg
9695 dt 28.01.2010
28.01.20
10
3. 235- 1121-1269- 344.00 41,560/-
6662- 100112210007 dt Kg
9710 dt 29.01.2010
29.01.20
10
4. 235- 1121-1269- 500.00 48,600/-
6663- 100212210001 dt Kg
4282 dt 01.02.2010
01.02.20
10
5. 176- 1121-1269- 372.00 44,635/-
1509- 100212210002 dt Kg
6233 dt 03.02.2010
03.02.20
10
6. 176- 1121-1269- 500.00 44,937/-
1509- 100212210003 dt Kg
6255 dt 05.02.2010
05.02.20
10
7. 176- 1121-1269- 500.00 44,827/-
Digitally
signed by
KIRAN
KIRAN GUPTA
Freight Systems GUPTA Date:
2023.01.20
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Tarun Aggarwal Page 3 of 17
CS DJ ADJ No. 997/2018
CNR No. DLSW01-017096-2018 1509- 100212210004 dt Kg 6244 dt 05.02.2010 05.02.20 10
8. 176- 1121-1269- 500.00 44,644/-
1509- 100212210005 dt Kg
6362 dt 08.02.2010
08.02.20
10
9. 176- 1121-1269- 542.00 50,373/-
1509- 100212210006 dt Kg
6373 dt 09.02.2010
09.02.20
10
10. 176- 1121-1269- 546.00 50,479/-
1509- 100212210007 dt Kg
6336 dt 11.02.2010
11.02.20
10
TOTAL 4,45,83
4/-
2.1 These shipments were delivered by the
plaintiff to the consignee at the desired destination and relevant invoices were issued and received by the defendant. It is alleged that defendant failed to make Digitally signed by KIRAN KIRAN GUPTA GUPTA Date:
2023.01.20 15:56:33 +0530 Freight Systems Vs. Tarun Aggarwal Page 4 of 17 CS DJ ADJ No. 997/2018 CNR No. DLSW01-017096-2018 the payment and an amount of Rs.4,45,834/- is due and outstanding against the defendant. Despite repeated oral, telephonic as well as request through email dated 13.11.2010 and 17.01.2010, defendant failed to make the payment. It is alleged that defendant after about 10 months took a false and concocted plea of late reaching of shipment to its customer in damaged condition and asked for compensation from it. Since the defendant failed to make the payment, legal notice dated 08.11.2010 was served upon the defendant. Despite the same, the defendant has failed to pay the outstanding amount of Rs.4,45,834/- and interest of Rs.93,625/-, hence, defendant is liable to pay Rs.5,39,459/- alongwith pendentelite and future interest @15% per annum alongwith cost of suit.
WRITTEN STATEMENT OF DEFENDANT
3. In the WS filed on behalf of defendant, it is alleged that the consignments in question were booked for delivery to Kostume srl, Venice, Italy through plaintiff. The defendant raised bills totaling in the sum Digitally signed by KIRAN KIRAN GUPTA GUPTA Date:
2023.01.20 Freight Systems 15:56:38 +0530 Vs. Tarun Aggarwal Page 5 of 17 CS DJ ADJ No. 997/2018 CNR No. DLSW01-017096-2018 of Euro 1,26,781.00 against the above said consignee but purchaser deducted an amount of Euro 25,000 due to delayed delivery and other defects like missing items, damaged goods due to exposure to external environment caused by damage to cartons due to negligence of the plaintiff company. It is stated that he is not liable to make any payment and is rather entitled to recover the losses from the plaintiff. Defendant in his WS has admitted the contents of para No. 1 to 6 and the consignments at Sr. No. 1 to 10 of para 6 of the plaint.
3.1 It is stated that he was engaged in manufacturing/ export of leather shoes during the period from 2008 to 2011 but was compelled to close the business due to heavy losses to the tune of Euro 25,000. It is stated that he had issued debit note dated 30.07.2010 in the sum of Rs.4,45,834/- which was duly accepted by the plaintiff company. It is prayed that the suit be dismissed.
Digitally signed by KIRAN KIRAN GUPTA GUPTA Date:
2023.01.20 15:56:43 +0530 Freight Systems Vs. Tarun Aggarwal Page 6 of 17 CS DJ ADJ No. 997/2018 CNR No. DLSW01-017096-2018 REPLICATION
4. In the replication to the WS of defendant, plaintiff has denied all the allegations and reiterated all the facts as stated in the plaint. It is stated that the debit note dated 30.07.2010 purported to be bearing the seal of the plaintiff is a forged and fabricated document.
ISSUES
5. On the basis of pleading of the parties, following issues were settled vide order dated 29.07.2019:
i) Whether the plaintiff has exported the goods of the defendant by shipment from Delhi to Venice, Marcopolo, Italy? OPP
ii) If the answer to the aforesaid issue is in affirmative, whether the plaintiff is entitled to the amount of Rs.5,39,459/- alongwith interest @15% thereupon? OPP Digitally signed by KIRAN KIRAN GUPTA Date:
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CNR No. DLSW01-017096-2018
iii) Whether there was a delay on the part of the plaintiff to deliver the goods at the destination i.e. Venice, Marcopolo, Italy and the goods were also got damaged by the plaintiff? OPD
iv) Relief PLAINTIFF EVIDENCE
6. Plaintiff in order to prove its case has examined Sh. Rohin Bhatnagar as PW1. He has tendered his evidence by way of affidavit Ex.PW1/A and relied upon following documents:
i) BR dated 29.10.2018 Ex. PW1/1A
ii) BR dated 11.02.2011 Ex. PW1/1
iii) BR dated 26.10.2012 Ex. PW1/1B
iv) Quotation dated 29.10.2009 Ex. PW1/2
v) Airway Bill(13-22); Invoice(23-32); Custom clearance certificate (33042) Ex. PW1/3(colly)
vi) email dated 13.11.2010 and 17.01.2010 Ex.
Digitally signed by KIRAN KIRAN GUPTA GUPTA Date:
2023.01.20 15:56:55 Freight Systems +0530 Vs. Tarun Aggarwal Page 8 of 17 CS DJ ADJ No. 997/2018 CNR No. DLSW01-017096-2018 PW1/4(colly)
vii) Copy of legal notice dated 08.12.2010 with original courier and postal receipt Ex. PW1/5
viii) Certificate under Section 65B IE Act Ex.PW1/6
DEFENDANT EVIDENCE
7. Defendant in order to prove his case has examined himself as DW1. He has tendered his evidence by way of affidavit Ex. DW1/A and relied upon following documents:
i) Copies of invoices from Sr No. 36-38; 40-45;47-49 Ex.DW1/1
ii) Airway Bill against invoice at Sr No. 36 Ex.DW1/2
iii) Airway Bill against invoice at Sr No. 37 Ex.DW1/3 iv) Copy of eMail Ex. DW1/4
v) Certificate under Section 65B IE Act Ex.DW1/5
Digitally signed by KIRAN KIRAN GUPTA Date:
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CNR No. DLSW01-017096-2018
vi) Copy of computer generated ledger account with certificate under Section 65B I E Act Ex.
DW1/6vii) Debit note dt 30.10.2010 Ex. PW1/7
viii) Account statement/ settlement Ex.
DW1/8(colly).
ANALYSIS AND FINDINGS
8. Heard Ld counsels for the parties and perused the complete record file. In the present matter, the defendant has admitted that he had booked for delivery several consignments to be delivered abroad through the plaintiff as detailed in para 6 of the plaint and that the said consignment were delivered by the plaintiff. The defendant has refuted the claim of plaintiff on the ground that consignment sent vide invoice No. 40 dt 23.1.10 and sent vide invoice No. 42 dt 28.1.10 was delivered with wrong labeling, in damaged condition and was delivered late by the plaintiff.
Digitally signed by KIRAN KIRAN GUPTA Date:
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9. The onus to prove that there was delay on part of plaintiff to deliver the goods at the required destination and that the goods were wrongly labeled and were delivered in damaged condition is on the defendant as the delivery of the goods as such is not denied / disputed by the defendant. The defendant in order to prove the same has placed on record the copy of email Ex.DW1/4 accompanied with the certificate under Section 65-B IEA Ex. DW1/5. It has been argued by Ld counsel for defendant that as per the various emails received from the consignee, the goods delivered vide AWB2356629640 arrived on 25.1.10 and vide AWB2356629695 arrived on 31.1.10. The goods delivered vide AWB23566634282 arrived on 17.2.10(Air delivery around Amsterdam) were received with ruined cartons, opened cartons with several pairs missing.
10. It is submitted by Ld Counsel for defendant that the consignee due to the delayed delivery and damaged goods had deducted Euro 25000 of the defendant. It is submitted that it is the plaintiff who had Digitally signed by KIRAN KIRAN Date:
GUPTA GUPTA 15:57:10 2023.01.20 +0530 Freight Systems Vs. Tarun Aggarwal Page 11 of 17 CS DJ ADJ No. 997/2018 CNR No. DLSW01-017096-2018 delivered the goods late and in damaged condition. It is stated that debit note Mark A for Rs. 4,45,834/- was accordingly issued to the plaintiff. The debit note is denied by the plaintiff and it is stated that it is forged and fabricated document.
11. DW1 during his cross examination admitted that the packaging work was done by him. He volunteered that the labeling on the packing was done by the plaintiff. When he was asked as to whether any eMail was sent to the plaintiff company with respect to the damage/ loss to the consignment during the period from 25.1.10 to 16.2.10, he deposed that the company representatives who was coming to their company was personally informed about it and they agreed the loss/ damage and accepted the debit note from them. When he was asked as to whether any communication in writing about loss was communicated to the plaintiff company, he deposed that they had given proof to the local office at Agra and they agreed but after few months, plaintiff company closed their office in Agra Digitally signed by KIRAN KIRAN GUPTA GUPTA Date:
2023.01.20 Freight Systems 15:57:15 Vs. +0530 Tarun Aggarwal Page 12 of 17 CS DJ ADJ No. 997/2018 CNR No. DLSW01-017096-2018 and they accepted debit note. He deposed that he does not remember the date of the debit note as it is 12 years old case. When he was asked about date, month or year of the closure of office of the plaintiff company in Agra, he deposed that after giving the debit note and settlement of matter, they do not know when they had closed their operation in Agra. He deposed that he does not remember the name of the person who had issued the debit note. When he was shown the ledger account of the period from 1.4.10 to 31.3.11, he admitted the same. It was accordingly exhibited as Ex.DW1/P1. He admitted that certain portions are highlighted in Ex.DW1/P1. He admitted that there is no eMail ID of plaintiff in Ex. DW1/4. He admitted that he does not know the name of the employee of plaintiff who used to deal with him in 2010 at Agra. When he was shown second page of Ex. DW1/6, he admitted that in the entry showing debit note, no date is mentioned.
12. From the testimony of DW1, it is evident that no information in writing about the alleged loss was Digitally signed by KIRAN KIRAN GUPTA GUPTA Date:
2023.01.20 Freight Systems 15:57:21 +0530 Vs. Tarun Aggarwal Page 13 of 17 CS DJ ADJ No. 997/2018 CNR No. DLSW01-017096-2018 communicated by defendant to the plaintiff company. DW1 has also failed to disclose the date when the debit note was issued, by whom it was issued and it was accepted by whom. I have perused the debit note Mark A. It is a photocopy bearing the stamp of plaintiff with some signatures on it with date 30.7.10. It has been argued by the counsel for plaintiff that said debit note is manufactured and is a forged and fabricated document. He has relied upon the emails Ex.PW1/4 (colly). It is submitted that the said emails are dated 13.11.2010. In the reply to the email dated 13.11.2010 duly sent by the defendant, he has raised the issue of late delivery in damaged condition for the first time and there is no reference of issuance of any debit note in the said reply.
13. I have perused the email dated 13.11.2010 sent by plaintiff to the defendant and the consequent reply sent by the defendant to plaintiff. In the reply, defendant has stated that the shipment reached late in damaged condition for which party has deducted their payment of EURO 15000 due to which they are facing Digitally signed by KIRAN KIRAN GUPTA GUPTA Date:
2023.01.20 Freight Systems 15:57:26 +0530 Vs. Tarun Aggarwal Page 14 of 17 CS DJ ADJ No. 997/2018 CNR No. DLSW01-017096-2018 many problems and for the same they have requested the plaintiff many times to sort out the matter to enable them to make their payment accordingly. In the entire reply dated 13.11.2011 which is with respect to the delivery of goods in the month of February 2010, there is no reference of any debit note issued by the defendant and accepted by the plaintiff. Even as per the invoices Ex.PW1/1, the same have been issued by the plaintiff office at Delhi. Even the goods were dispatched from Delhi, hence, the duty was cast upon the defendant to intimate the office of plaintiff at Delhi and to issue the debit note and get it accepted from the office of plaintiff at Delhi. The defendant has failed to explain as to why he issued the debit note at the office of plaintiff at Agra and got it accepted from the said office. The defendant has further failed to disclose the name of the person who prepared the debit note and the person who on behalf of plaintiff accepted the said debit note.
14. I have also perused the emails Ex.DW1/4 relied upon by the defendant. In the said email, there is Digitally signed by KIRAN KIRAN GUPTA Date:
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CNR No. DLSW01-017096-2018 reference of certain photos and list of discrepancy sent by the consignee to the defendant. The defendant has not filed even a single photograph to prove that the goods were delivered in damaged condition. Except the copy of email Ex DW1/4, the defendant has not lead any other evidence to prove that the goods were delivered late by the plaintiff. The cross examination of PW1 on the aspect that he had deposed regarding the delivery of goods without verifying the records is not relevant as the delivery of goods as such is not disputed by the defendant. The defendant has miserably failed to prove that the plaintiff has delayed the delivery of goods and that the goods were got damaged by the plaintiff. Hence, in the absence of any cogent evidence on this aspect, issue no. 3 is decided against defendant and in favor of the plaintiff.
15. Now coming to issue no 1 and 2. The onus to prove these issues is on plaintiff. As discussed above, the delivery of the goods and the invoices as stated in para 6 of the plaint is not disputed by the defendant.
The defendant has failed to prove that the goods Digitally signed by KIRAN KIRAN GUPTA Freight Systems GUPTA Date:
2023.01.20 15:57:37 +0530 Vs. Tarun Aggarwal Page 16 of 17 CS DJ ADJ No. 997/2018 CNR No. DLSW01-017096-2018 delivered vide invoice no. 40 and 42 were delivered late and in damaged condition and that it had issued the debit note to the plaintiff. Hence in view of the above discussion and in view of findings of issue no.3, issue no. 1 & 2 are decided in favor of plaintiff and against defendant.
RELIEF
15. The plaintiff is held entitled for recovery of Rs. 5,39,459/- from defendant with reasonable interest @ 9% from the date of filing of the suit i.e. 16.05.2011 till realization alongwith the cost of the suit.
Decree sheet be prepared accordingly. File be consigned to record room.
Digitally
signed by
KIRAN KIRAN GUPTA
Date:
GUPTA 2023.01.20
15:57:44
+0530
(KIRAN GUPTA)
Announced in open Court Addl. District Judge-01
today i.e. 20th of January 2023 South West, Dwarka
Freight Systems
Vs.
Tarun Aggarwal Page 17 of 17