Delhi District Court
M/S Arora Enterprises vs Ud Star Laboratories on 9 April, 2025
IN THE COURT OF MS. RAVINDER BEDI
DISTRICT JUDGE (COMMERCIAL COURT)-12
CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI.
Counter Claim No. 33/2021
M/s Arora Enterprises
office at: 1879, Kucha Chelan,
Khari Baoli, Delhi-110006
.......... Counter Claimant/Defendant
Vs.
UD Star Laboratories
office at: JL, Kapas Krampung, no. 135,
Surabaya, Indonesia
..................Respondent/Plaintiff
Date of Institution : 27.11.2021
Date of Final Arguments : 03.04.2025
Date of Judgment : 09.04.2025
Counter-claimant is represented by Ld. Counsel Mr Keshav Sehgal
Respondent is ex-parte.
Digitally signed
RAVINDER by RAVINDER
BEDI
BEDI Date: 2025.04.09
15:16:15 +0530
______________________________________________________________________________
Counter Claim no. 33/2021 Page 1 of 22
M/s Arora Enterprises v UD Star Laboratories
JUDGMENT
1. Present is the Counter-claim filed by Counter-claimant/M/s Arora Enterprises, (which is a Defendant in the main suit CS(Comm) 2498/21, titled as "UD Star Laboratories Vs. M/s Arora Enterprises"), praying for recovery of Rs.3,72,422/- along with interest pendente-lite and future against the UD Star Laboratories (hereinafter as Respondent).
2. It is worthwhile to state that Respondent had filed a suit i.e. CS(Comm) 2498/21 against the Counter-claimant on 17.07.2021 for recovery of amounts along with interest. The Counter-claimant appeared as Defendant in the said suit and filed its written statement containing objections to the suit. The Counter-claimant also filed its Counter-claim on 19.02.2022 against the Respondent. The main suit i.e. CS (Comm) 2498/2021 was contested by parties and on completion of pleadings, the issues were framed for adjudication on 24.01.2024. The matter was posted for the evidence of Respondent (Plaintiff).
3. Further by Order dated 07.09.2024, on the application of Counter-claimant, under Section-151 CPC dated 29.09.2024, praying for consolidation of main suit with counter-claim, the main suit was consolidated with the Counter-claim for the purpose of recording common evidence and common arguments.
Digitally signed by
RAVINDER RAVINDER BEDI
BEDI Date: 2025.04.09
15:16:21 +0530
______________________________________________________________________________ Counter Claim no. 33/2021 Page 2 of 22 M/s Arora Enterprises v UD Star Laboratories
4. It is pertinent to mention that the Respondent stopped appearing in the main suit and by Order dated 25.11.2024, the suit stood dismissed for non-prosecution.
Factual Matrix of "Counter-claim"
5. The material facts borne out from the contents of counter- claim are as follows:
Counter-claimant is a sole proprietorship firm running its business under the name and style of M/s Arora Enterprises and is a major importer of dry fruits, spices, pulses etc. The imported goods are then sold to various third parties across India. The Counter-claimant has been running its business since 1998. The Counter-claimant has been importing spices from Indonesia over a long period of 32 years. The Counter-claimant did not import any spices or had conducted any transaction with the Respondent prior to the transaction in dispute with Respondent. The Counter-claimant was looking to import clove stems and learnt through an Indentor, that Respondent was willing to supply the same at good price. The Counter-claimant approached Mr. Ijaz, Indentor, who introduced Respondent to the Counter-claimant and the entire transaction with all communication between parties was to be through the Indentor only.
Digitally signed by RAVINDER RAVINDER BEDI BEDI Date: 2025.04.09 15:16:27 +0530
______________________________________________________________________________ Counter Claim no. 33/2021 Page 3 of 22 M/s Arora Enterprises v UD Star Laboratories On 29.06.2019, parties entered into a Sales Contract whereby the Counter-claimant agreed to purchase 60,030 kg of clove- stems for a total sale consideration of $39,019.50/-. The Contract was signed by the Respondent/Plaintiff and then e- mailed to the Indentor, who then e-mailed the same to the Counter-claimant. The Counter-Claimant after certain corrections, signed and stamped the Contract and e-mailed the same to the Indentor, who would have sent it to the Respondent along-with shipping instruction.
Vide the said e-mail sent on 29.06.2019, the Counter-claimant conveyed to the indentor of certain shipping instructions, relevant and crucial for the purpose of drafting and shipping documents as also specified in para no.4 (C) of the plaint.
The Counter-claimant paid an advance money of $3902/- to the Respondent equivalent of 10% of the total sale consideration on 02.07.2019. As per terms of Contract, the Respondent was required to ship the goods in the month of July, 2019. However, the case were shipped by Respondent after considerable delay in the month of August, 2019, despite the fact that Respondent was aware that the time was the essence of the Contract.
Vide e-mail dated 07.08.2019, through SB Logistics and indentor, Respondent sent a draft of the shipping documents Digitally signed by RAVINDER RAVINDER BEDI BEDI Date: 2025.04.09 15:16:36 +0530 ______________________________________________________________________________ Counter Claim no. 33/2021 Page 4 of 22 M/s Arora Enterprises v UD Star Laboratories including COO, Bill of Lading (BL), Phytosanitary Certificate. However, the information in the said documents was incorrect and not as provided by Counter-claimant in their e-mail dated 29.06.2019. The name of exporter, HS Code etc. were wrongly mentioned in the shipping documents. Further, the said draft documents were provided merely one day before the goods were shipped.
The Counter-claimant replied to the said e-mail dated 07.08.2019 and asked for a copy of Invoice to authenticate the details of shipping documents. By the said e-mail dated 07.08.2019, Counter-claimant also requested that a single Bill of Lading (BL) be made for all three containers and clarified that the said BL must include the full address and Invoice value.
The Indentor forwarded an e-mail dated 08.08.2019 received from one shipping Agent of the Respondent namely SB Logistics, containing the revised shipping documents including the Invoice. To the shock of Counter-claimant, all documents sent by Respondent through its agent, stated the name of 'Star Laboratories' to be 'CV, DIVA DWI PUTRA BR. GENTONG TEGALLALANG, KAB. GIANYAR BALI' despite the fact that the advance payment was made by the Counter-claimant to Respondent.
Digitally signed
RAVINDER by RAVINDER
BEDI
BEDI Date: 2025.04.09
15:16:45 +0530
______________________________________________________________________________ Counter Claim no. 33/2021 Page 5 of 22 M/s Arora Enterprises v UD Star Laboratories On noticing the said mistake, the Counter-claimant vide e-mail dated 08.08.2019, pointed out the said mistake and requested to carryout necessary changes including the addition of Respondent's name against 'CV. DIVA DWI PUTRA BR. GENTONG TEGALLALANG, KAB. GIANYAR BALI', else it would be difficult for Counter-claimant to get clearance from the Bank.
Despite specific e-mails and requests of the Counter-claimant, Respondent through its agent, vide e-mail dated 15.08.2019, again sent documents with wrong information, the Counter- claimant by its e-mail dated 16.08.2019, detailed all the changes required to be made in documents. Similar requests were also made through e-mail dated 20.08.2019, 22.08.2019, 23.08.2019 and 26.08.2019 by Counter-claimant.
The Counter-claimant's case is that the vessel with the goods was to arrive on 25.08.2019 and Respondent was aware that without documents with correct information filed with custom authorities, charges would accrue for late presentation of Bill of entry. The Counter-claimant by an e-mail dated 26.08.2019 brought to the notice of the Respondent the said fact. After several repeated requests from Counter-Claimant, the Indentor acting on behalf of Respondent finally replied to the e-mail dated 26.08.2019 and 27.08.2019, stating that HS Code could Digitally signed by RAVINDER RAVINDER BEDI BEDI Date: 2025.04.09 15:16:51 +0530 ______________________________________________________________________________ Counter Claim no. 33/2021 Page 6 of 22 M/s Arora Enterprises v UD Star Laboratories not be changed from original and that the Defendant has to consult COSCO Mundra i.e. shipping line through which the goods were shipped by the Plaintiff, for such amendments and had to procure the NOC from them.
Vide e-mail dated 29.08.2019, Custom House Agent (CHA), the Counter-Claimant wrote an e-mail to COSCO Mundra asking for certain documents for issuance of NOC and further inform the Custom House Agent of Counter-Claimant that amendment had to be carried out by Counter-Claimant or its agent itself.
The Counter-Claimant by e-mail dated 29.09.2019 provided the bond letter received from Respondent to the COSCO Mundra for changing the HS Code of the goods. In the instant case, Respondent wrongly mentioned the HS Code as 09071020 instead of 09071030. The Counter-claimant, in order to avoid late charges, wrote an e-mail dated 30.08.2019 to Indentor and asked the Respondent to make documents in the like manner as provided in the e-mail so as to ease the process of clearance since the vessel had already arrived in India on 25.08.2019. The Counter-claimant also asked the Respondent to correct its mistake by writing a line 'ON BEHALF OF UD STAR LABORATORIES'.
On 03.09.2019 and 04.09.2019, the Custom House Agent (CHA) Digitally signed by RAVINDER RAVINDER BEDI BEDI Date: 2025.04.09 15:17:00 +0530 ______________________________________________________________________________ Counter Claim no. 33/2021 Page 7 of 22 M/s Arora Enterprises v UD Star Laboratories of the Counter Claimant paid an amount of Rs. 5,900/- twice (i.e. Rs. 11,800/-) to the shipping line i.e. COSCO India as well as to the Indentor. Similar payment was again made on 04.09.2021 for carrying out the amendments in the shipping documents. The same fact was conveyed by the Custom House Agent of the Counter-claimant by e-mail.
Despite this, Counter-claimant did not receive any NOC and other documents. After repeated requests, amended Bill of Lading was received by the Counter-claimant via e-mail dated 09.09.2019. Counter-claimant wrote another e-mail dated 10.09.2019 to the shipping agent of Respondent to Indonesia requesting them to surrender original Bill of Lading so that the Counter-claimant's agent could take delivery from Mundra Port. However, shipping agent of the Respondent via e-mail dated 11.09.2019 informed the Counter-claimant that they were not in a position to take decision on these surrendering of original Bill of Lading. Respondent admitted the negligence of its agents via e-mail but at the same time sent threatening WhatsApp messages and e-mails dated 11.09.2019 and 13.09.2019 to the Counter-claimant.
The Counter-claimant sent a table of charges likely to be levied on the Counter-claimant. Another letter dated 21.09.2019 was written by Counter-claimant to the Manager of the Karur Vyasa Digitally signed by RAVINDER RAVINDER BEDI BEDI Date: 2025.04.09 15:17:09 +0530 ______________________________________________________________________________ Counter Claim no. 33/2021 Page 8 of 22 M/s Arora Enterprises v UD Star Laboratories Bank Ltd. Vashi Navi Mumbai, requesting them to return the documents due to huge expenses incurred standing on the head of Counter-Claimant.
The Counter-Claimant stated that the Respondent had failed to provide the accurate shipping documents in a timely manner, the same resulted in breach of contractual obligation. The Respondent was liable to compensate the Counter-Claimant for the losses incurred by it due to the delay caused by the Respondent. The Respondent was also liable to refund to Counter-Claimant a sum of $3902 which was paid by Counter- Claimant as an advance money in terms of Contract dated 29.06.2019 along with interest.
Counter-claim avers that the subject matter of suit is a "Commercial Dispute", as provided under Section 2(1)(c)(i) of The Commercial Courts Act, 2015 (hereinafter as 'The CC Act'). Counter-Claimant has prayed for recovery of amount of Rs.3,72,422/- against Respondent alongwith an interest pendente lite and future till its realization.
6. The Respondent contested the Counter-claim by filing its written statement and took certain objections to the Counter-Claim, inter-alia :-
Respondent company was incorporated under the laws of Digitally signed by RAVINDER RAVINDER BEDI BEDI Date: 2025.04.09 15:17:16 +0530 ______________________________________________________________________________ Counter Claim no. 33/2021 Page 9 of 22 M/s Arora Enterprises v UD Star Laboratories Indonesia with Mr. Budi Harto as the sole owner and director of the Company. Plaintiff was engaged in exporting spices and food materials from India to other countries. The Counter- Claimant had agreed to purchase 60,030 Kg of clove-stems from Respondent for a total price of $39019.50/- out of which sum of $3900/- was paid as advance by Respondent. The goods were to be shipped from Surabaya Port to Mundra Port, India , where the goods reached on 26.08.2019.
that on 07.08.2019, the draft bill of lading with documents were sent by shipping agents of the counter claimant. The Counter claimant stated that on 09.08.2019, there were modifications required in the shipping documents. All shipping documents were sent to the agents of counter claimant alongwith suggested changes including changes in the Bill of Lading. The Respondent contended that the Counter claimant was informed through e-mail exchanges dated 26.08.2019 that the amendments in the Bill of Lading would be possible only after obtaining NOC from shipping line in India.
that the revised certificate of origin containing amendments was sent on 02.09.2019 to the Counter claimant, but the counter claimant erroneously refused to accept the said Certificate. The Respondent further referred to the exchange of e-mails between parties dated 03.09.2019 and 04.09.2019 and Counter claimant Digitally signed RAVINDER by RAVINDER BEDI BEDI Date: 2025.04.09 15:17:23 +0530 ______________________________________________________________________________ Counter Claim no. 33/2021 Page 10 of 22 M/s Arora Enterprises v UD Star Laboratories had confirmed on 04.09.2019 that all documents were correct as per the requirements. All documents were sent to the counter claimant as requested. No objection was received by Respondent from counter claimant.
that the Respondent contended that counter claimant should have informed about the changes before the goods left from Surabaya Port, Indonesia on 08.08.2019 and the delay in informing about the changes led to the entire delay in preparing the final shipment documents. Further, delay was caused due to the Counter claimant having not obtained the NOC for amendment in the Bill of Lading from Mundra Port, India in timely manner. The NOC was obtained only on 05.09.2019. The entire situation would not have arisen, if the counter claimant checked the documents on 07.08.2019. The counter claimant wrongly refused to accept the shipment and asked the respondent to sent the Bill of Lading , contrary to the agreed terms of shipment. The shipment arrived at Mundra port on 25.08.2019 and excluding this day, a period of 14 days was got over on 09.09.2019. Thus, uptill 09.09.2019, no demurrage or detention charges were applicable and counter claimant could have released the goods especially when the Bill of Lading was ready and the counter claimant was asked to collect the Bill of Lading.Digitally signed
RAVINDER by RAVINDER BEDI BEDI Date: 2025.04.09 15:17:30 +0530 ______________________________________________________________________________ Counter Claim no. 33/2021 Page 11 of 22 M/s Arora Enterprises v UD Star Laboratories that the Counter claimant agreed to take the goods against "
Cash against documents" pattern of transaction, refused to pay the amount and further refused to issue the NOC, which could have mitigated the damages. The loss was alleged to be incurred by Respondent, which was of balance sale price of USD 35,119.50/- or Rs. 25, 63,723.50/- . In addition, demurrages charges had been incurred because the Counter claimant did not receive the goods and returned the empty containers to the shipping company. The counter claimant is liable to compensate the Respondent for the demurrages charges being imposed upon the Respondent. Rest of the contents of the counter claim have been denied by the Respondent.
7. No replication was filed by the Counter claimant to the written statement. By Order dated 26.02.2025, following issues were framed for adjudication:
(i) Whether the counter -claimant is entitled for the refund of Rs. 3,72,422 /- as prayed in the prayer clause of the plaint ? OPP
(ii) If so, whether the counter claimant is entitled to any interest on the amount. If so, at what rate and for what period? OPP
(iii) Relief Digitally signed RAVINDER by RAVINDER BEDI BEDI Date: 2025.04.09 15:17:36 +0530 ______________________________________________________________________________ Counter Claim no. 33/2021 Page 12 of 22 M/s Arora Enterprises v UD Star Laboratories
8. Counter-claimant/Defendant examined Mr Harish Kumar Narang as DW-1. Mr Narang, DW-1 relied upon the documents in the present counter claim, which are Certificate of Import-Export Code of the Counter claimant as Ex. DW1/1 ; Sales Contract dated 29.06.2019 sent on email dated 29.06.2019 as Exhibit DW-1/2; Printout of the Email dated 29.06.2019 of the Plaintiff containing attachments as Exhibit DW-1/3 ; Printout of the Email dated 29.06.2019 of the Counter Claimant along-with attachments as Exhibit DW-1/4 ; Advance Payment Receipt dated 01.07.2019 sent along-with email dated 02.07.2019 as Exhibit DW-1/5 ; Printout of the Email dated 02.07.2019 containing attachments as Exhibit DW-1/6 ; Email dated 18.07.2019 marked as Exhibit DW-1/7 ; Printout of the Email dated 07.08.2019 sent by the Indentor containing attachments is exhibited hereto as Exhibit DW-1/8 ; Printout of the Email dated 07.08.2019 sent by the Counter Claimant at 04:03 PM and 04.04 PM as Exhibit DW-1/9 ; Printout of the Email dated 08.08.2019 sent by the Indentor containing attachments as Exhibit DW-1/10 ; Printout of the Emails dated 08.08.2019 sent by the Counter Claimant at 3.22 PM, 3.28 PM, 3.32 PM and 3.43 PM containing attachments as Exhibit DW-1/11, Exhibit DW-1/12, Exhibit DW-1/13 and Exhibit DW-1/14 respectively ; Printout of the Email dated 14.08.2019 containing attachments as Exhibit DW-1/15 ; Printout of the Email dated 15.08.2019 containing attachments as Exhibit DW-1/16 ; Printout of the Email dated 16.08.2019 containing attachments as Exhibit DW-1/17 ; Printout of the Email dated 20.08.2019 containing Digitally signed by RAVINDER RAVINDER BEDI BEDI Date: 2025.04.09 15:17:43 +0530 ______________________________________________________________________________ Counter Claim no. 33/2021 Page 13 of 22 M/s Arora Enterprises v UD Star Laboratories attachments as Exhibit DW-1/18 ; Printout of the Email dated 22.08.2019 containing attachments as Exhibit DW-1/19 ; Printout of the Email dated 23.08.2019 along-with attachments as Exhibit DW-1/20 (colly) ; Printout of the Email dated 26.08.2019 containing attachments i as Exhibit DW-1/21 ; Printout of the Emails dated 26.08.2019 of the Counter Claimant containing attachments as Exhibit DW-1/22 ; Printout of the Email dated 26.08.2019 containing attachments as Exhibit DW-1/23 ; Printout of the Email dated 27.08.2019 is containing attachments as Exhibit DW-1/24 ; Printout of the Email dated 28.08.2019 sent by the Indentor containing attachments is exhibited hereto as Exhibit DW-1/25 ; Printout of the Email dated 28.08.2019 sent by the Counter Claimant containing attachments as Exhibit DW-1/26 ; Printout of the Email dated 29.08.2019 sent by the Counter Claimant containing attachments as Exhibit DW-1/27 ; Printout of the Email dated 29.08.2019 sent as a reply by COSCO Mundra containing attachments as Exhibit DW-1/28 ; Printout of the Email dated 29.08.2019 at 12:07 PM sent by COSCO Mundra containing attachments as Exhibit DW-1/29 ; Printout of the Email dated 29.08.2019 sent by COSCO India containing attachments as Exhibit DW-1/30 ; Printout of the Email dated 29.08.2019 at 12:29 PM sent by COSCO India containing attachments as Exhibit DW-1/31 ; Printout of the Email dated 30.08.2019 containing attachments as Exhibit DW-1/32 ; Printout of the Email dated 03.09.2019 containing attachments as Exhibit DW-1/33 ; Printout of the Email dated 04.09.2019 containing attachments as Digitally signed RAVINDER by RAVINDER BEDI BEDI Date: 2025.04.09 15:17:51 +0530 ______________________________________________________________________________ Counter Claim no. 33/2021 Page 14 of 22 M/s Arora Enterprises v UD Star Laboratories Exhibit DW-1/34 ; Printout of the Email dated 05.09.2019 containing attachments as Exhibit DW-1/35 ; Printout of the Email dated 02.09.2019 sent at 04:12PM containing attachments as Exhibit DW-1/36 ; Printout of the Email dated 03.09.2019 containing attachments as Exhibit DW-1/37 ; Printout of the Email dated 04.09.2019 as Exhibit DW-1/38 ; Letters dated 04.09.2019 issued by the Counter Claimant and the CHA to COSCO India for payment of Rs. 5,900/- vide UTR No. N2461190917830626 as Exhibit DW-1/39 (colly) ; Printout of the Email dated 04.09.2019 sent by COSCO India as an acknowledgment of payment marked as Exhibit DW-1/40 ; Printout of the Email dated 04.09.2019 containing attachments for payment CHA vide UTR No. N247190918725836 as Exhibit DW-1/41 ; Printout of the Emails dated 04.09.2019 containing attachments as Exhibit DW-1/42 ; Printout of the Emails dated 05.09.2019 containing attachments as Exhibit DW-1/43 ; Printout of the Emails dated 09.09.2019 containing attachments as Exhibit DW-1/44 ; Printout of the Emails dated 09.09.2019 sent by COSCO India containing attachments as Exhibit DW-1/45 ; Printout of the Email dated 09.09.2019 sent by CHA containing attachments as Exhibit DW-1/46 ; Printout of the Emails dated 10.09.2019 containing attachments as Exhibit DW-1/47 ; Printout of the Email dated 11.09.2019 at 07.01 AM as Exhibit DW-1/48 ; Printout of the Email dated 11.09.2019 at 09.55AM and Printout of the Email dated 09.09.2019 at 03.24 PM as Exhibit DW-1/49 and Exhibit DW-1/50 respectively ; Printout of the Email dated 12.09.2019 containing Digitally signed RAVINDER by RAVINDER BEDI BEDI Date: 2025.04.09 15:17:57 +0530 ______________________________________________________________________________ Counter Claim no. 33/2021 Page 15 of 22 M/s Arora Enterprises v UD Star Laboratories attachments as Exhibit DW-1/51 ; Printout of the Email dated 13.09.2019 containing attachments as Exhibit DW-1/52 ; Printout of the WhatsApp Chats is exhibited hereto as Exhibit DW-1/53 ; Printout of the Email dated 16.09.2019 sent at 07.46 AM as Exhibit DW-1/54 ; Printout of the Emails dated 16.09.2019 containing attachments as Exhibit DW-1/55 ; Printout of the Email dated 16.09.2019 at 06.12 PM as Exhibit DW-1/56 ; Printout of the Email dated 16.09.2019 as Exhibit DW-1/57 ; Letter dated 21.09.2019 issued by the Counter Claimant to the Manager of The Karur Vysya Bank Limited, Vashi, Navi Mumbai as Exhibit DW-1/58 ; Printout of the Email dated 30.09.2019 containing attachments as Exhibit DW-1/59; Printout of the Email dated 01.10.2019 containing attachments as Exhibit DW-1/60 ; Aramex Courier Tracking Details dated 01.10.2019 as Exhibit DW-1/61 ; Printout of the Email dated 09.10.2019 containing attachments as Exhibit DW-1/62 and Affidavit dated 16.09.2021 under Section 65B of Indian Evidence Act, 1872 as Exhibit DW-1/63.
Submissions of Counsel For Counter Claimant
9. Ld. Counsel for Counter Claimant submits that Counter Claimant has been successful in proving its claims against the Respondent in respect of the advance money paid pursuant to the Contract Ex. DW1/2. Ld. Counsel refers to the barrage of e-mails Digitally signed RAVINDER by RAVINDER BEDI BEDI Date: 2025.04.09 15:18:04 +0530 ______________________________________________________________________________ Counter Claim no. 33/2021 Page 16 of 22 M/s Arora Enterprises v UD Star Laboratories exchanged between parties and the repeated requests of the Counter claimant to make necessary corrections in shipping documents. Ld. Counsel submits that the Respondent without such corrections proceeded to ship the consignment. It was only on 08.08.2019 that the shipping agent of Respondent mailed the Counter Claimant containing revised shipping documents including the invoice. Ld. Counsel draws my attention to the documents sent by Respondent which contained incorrect HS Code and thus Counter claimant could not have accepted the goods/Invoices from a stranger. Ld. Counsel argues that Respondent failed to furnish the documents in the manner as agreed between parties and which was essential for the bank to release the payment to the Respondent.
10. On the aspect of the Counter Claim within limitation, Ld. Counsel for Counterclaimant has placed reliance upon the Judgment of Hon'ble Apex Court in Mahesh Govindji Trivedi v Bakul Maganlal Vyas & ors (DOD as 12.10.2022) to argue that there is no limitation prescribed for filing of counterclaim and the same has been filed within the accrual of the cause of action. Ld. Counsel argues that Order 8 Rule 6 A CPC does not put any embargo on filing of counterclaim after filing the written statement in the main suit and the restriction is only in respect of the accrual of cause of action.
11 I find that after the issues were framed, the Respondent did not come forward for adducing his evidence nor entered the Digitally signed by RAVINDER RAVINDER BEDI BEDI Date: 2025.04.09 15:18:12 +0530 ______________________________________________________________________________ Counter Claim no. 33/2021 Page 17 of 22 M/s Arora Enterprises v UD Star Laboratories witness box for cross-examination of DW-1 Mr Harish Kumar Narang to contradict the case of Counter claimant. As per settled position, since the Respondent failed to examine himself, an adverse inference can be drawn against it as provided by Section 114 (g) of the Indian Evidence Act (Vidhyadhar vs Manikrao & Anr. (1999) 3 SCC 573).
12 Looking into the documentary evidence, the nature of transaction, the Sale Contract as well as the communication exchanged between parties, it is fairly established by Counter Claimant that time was the essence of the Contract and the Respondent was responsible for causing delay and the losses incurred as a result thereto. The Respondent failed to fulfill his obligations under The Sales Contract as is discernible from the e-mails Ex. DW1/61 and Ex. DW1/62. However, the Counter Claimant has failed to establish the factum of loss of financial losses/loss of reputation of the firm on account of the defaults of Respondent claimed at Rs.1,00,000/-. In the absence of any evidence having adduced, the claim as such could not be proved. Ld. Counsel for Counter Claimant during submissions did not press upon the said claim, the same stands dismissed being not pressed upon.
13. On the point of limitation, Hon'ble Supreme Court in "Yamini Manohar vs T K D Keerthi (DOD as 13.10.2023)" observed as :
"......the question whether a suit involves any urgent interim relief is to be determined solely on the basis of the pleadings Digitally signed RAVINDER by RAVINDER BEDI BEDI Date: 2025.04.09 15:18:21 +0530 ______________________________________________________________________________ Counter Claim no. 33/2021 Page 18 of 22 M/s Arora Enterprises v UD Star Laboratories and the relief(s) sought by plaintiff. If a plaintiff seeks any urgent interim relief, the suit cannot be dismissed on the ground that the plaintiff has not exhausted the pre-institution remedy of mediation as contemplated under Section 12A(1) of the Commercial Courts Act, 2015....."
14. The case of the Counter Claimant is further covered by the ratio of the Judgment of Hon'ble Apex Court in Mahesh Govindji Trivedi (supra) wherein it is observed that the requirements of Order 8 Rule-6A CPC do not operate as a bar to take the belatedly filed counterclaim on record, if it is filed before framing of issues. Hon'ble Apex Court further observed that the propriety requires that such a discretion should be exercised till the framing of issues for trial. Hon'ble Apex Court has further observed that the Courts can consider the outer limit for filing the Courter-claim, which is pegged till the issues are framed.
15. The Counter Claimant was served with the main suit in September, 2021 and had filed the Counter claim on 27.11.2021 without any substantial delay. The same is within two months filing of main suit and before the issues were framed. In view of ratio of Mahesh Govind Trivedi (supra), the counterclaim filed on record does not suffer from any bar of limitation.
16. The case of Counter claimant has gone un-challenged and duly corroborated by documents. I have no reason to disbelieve the Digitally signed RAVINDER by RAVINDER BEDI BEDI Date: 2025.04.09 15:18:29 +0530 ______________________________________________________________________________ Counter Claim no. 33/2021 Page 19 of 22 M/s Arora Enterprises v UD Star Laboratories version of Counter claimant. Applying priori and posteriori reasoning, I am satisfied that Counter claimant has been able to prove its case against the Respondent.
Interest
17. On the aspect of interest on the amount, Ld. Counsel for Counter claimant has prayed for an interest @ 18% per annum against the Defendant.
18 It goes without saying that awarding of an interest falls within the discretion of the Court and the purpose behind granting broad discretion to the Court is to empower the Court so as to establish an equilibrium between interests of both parties. Hon'ble Supreme Court in a line of judgments has held that in view of changed economic scenario, there is consistent fall in rates of interest and Courts must in accordance with the changed circumstances grant lesser rates of interest. The same is explained in Rajendra Construction Co. v. Maharashtra Housing & Area Development Authority, (2005) 6 SCC 678, McDermott International Inc. v. Burn Standard Co. Ltd., (2006) 11 SCC 181, Rajasthan State Road Transport Corporation v. Indag Rubber Ltd., (2006) 7 SCC 700, Krishna Bhagya Jala Nigam Ltd. v. G. Harischandra, (2007) 2 SCC 720 & State of Rajasthan v. Ferro Concrete Construction Pvt. Ltd. (2009) 3 Arb. LR 140 (SC).
Digitally signed by
RAVINDER RAVINDER BEDI
BEDI Date: 2025.04.09
15:18:37 +0530
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19. Reliance can further be placed on the decision of M/s Cimmco Ltd v Pramod Krishna Agrawal (DOD as 21.02.2019) of Hon'ble High Court of Delhi, wherein Hon'ble Supreme Court has mandated that lower rates of interest need to be granted.
20. Keeping in mind the ratio of settled law as above, the interest of justice would be served if Counter Claimant is granted an interest @ 12% pendent-lite and future to be paid by Respondent.
The Counter Claim of the Counter Claimant stands decreed for a sum of Rs. 3,72,422/- alongwith simple interest @ 12% pendente-lite and future from the date of suit till its realization to be paid by Respondent.
RELIEF
21. From the discussion as adumbrated herein-above, I hereby pass the following:
(a). A decree for sum of Rs. 3,72,422/- (Rupees Three Lakhs Seventy Two Thousand Four Hundred Twenty Two only) is passed in favour of Counter claimant and against Respondent Digitally signed RAVINDER by RAVINDER BEDI BEDI Date: 2025.04.09 15:18:52 +0530 ______________________________________________________________________________ Counter Claim no. 33/2021 Page 21 of 22 M/s Arora Enterprises v UD Star Laboratories alongwith interest @ 12% pendente-lite and future from the date of filing suit till its realization.
(b). The cost of the suit alongwith pleader's fee is also awarded in favour of the Counter Claimant and against Respondent.
Decree-sheet be prepared and file be consigned to Record Room after due compliance.
Digitally signed by
RAVINDER RAVINDER BEDI
Announced in open Court BEDI Date: 2025.04.09
15:18:59 +0530
on 09.04.2025 (Ravinder Bedi)
District Judge (Commercial Court)-12
Central District, Tis Hazari Courts Delhi
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