Delhi District Court
Ms Committed Cargo Care P. Ltd vs Ms Expo Freight P. Ltd on 28 November, 2023
IN THE COURT OF MS. SHILPI M JAIN : ADDL. DISTRICT
JUDGE-05, SOUTH WEST DISTRICT, DWARKA COURTS
NEW DELHI
CS No. 165/20
CNR No. DLSW01-000214-2012
Committed Cargo Care Pvt. Ltd.
Operation Office Situated at
Plot No. 409, Block-A,
Road No. 4, Street No. 8,
Mahipalpur Extn.,
New Delhi-110037
Through its authorized representative
Sh. Badri Prasad. ... Plaintiff
Versus
Expo Freight Pvt. Ltd.
A-113, Road No. 2, 1st Floor,
Mahipalpur Extn.,
New Delhi-110037
And also of
Plot No. 9A, Road No.4,
Mahipalpur Extn.,
National Highway-8,
New Delhi-110037.
Through its Director
namely Prem Shahny ....Defendant
Date of Institution : 03.07.2011
Date of Conclusion of Arguments : 25.11.2023
Date of Judgment : 28.11.2023
JUDGMENT
SUIT FOR RECOVERY OF RS. 4,06,021/-
CS No. 165/20 M/s. Committed Cargo Care Pvt. Ltd. Vs. M/s. Expo Freight Pvt. Ltd. Page No. 1 of 15
INDEX
FACTUAL BACKGROUND ....................2
ISSUES .....................4
EVIDENCE GIVEN BY PARTIES .....................4
SUBMISSIONS OF THE PARTIES .....................6
ISSUEWISE ANALYSIS & FINDINGS .....................8
CONCLUSION .....................14
1. Present suit for recovery of Rs. 4,06,021/- (Rupees Four Lacs Six Thousand Twenty one only) filed by the plaintiff towards outstanding amount as per the ledger account maintained by the plaintiff along with interest @24% per annum against the defendant.
FACTUAL BACKGROUND:
2. Briefly stated, plaintiff is Export/Import custom clearance agency doing business in the name and style of M/s. Committed Cargo Care Pvt. Ltd. It is case of the plaintiff that, plaintiff has valid and effective licence of Export/Import custom clearance for cargo/transportation of the goods in various part of the territory of the world and defendant approached the plaintiff company to supply/deliver its good in various part of the territory of world and in fact availed its services upto 16.03.2012.
3. It is further averred that, under said business terms, plaintiff used to pay all freight charges including other charges to the custom and concern transport department on behalf of the defendant and same is to be paid by the defendant subsequently.
4. It is further averred that, defendant breached the contract and did not assign any work to the plaintiff company w.e.f. 16.03.2012 and in fact failed to clear its outstanding of Rs. 4,06,021/-. Accordingly, present suit for CS No. 165/20 M/s. Committed Cargo Care Pvt. Ltd. Vs. M/s. Expo Freight Pvt. Ltd. Page No. 2 of 15 recovery filed against the defendant for recovery of outstanding amount of Rs. 4,06,021/- as per the ledger account maintained by the plaintiff along with interest @ 24% per annum from 16.03.2012 till realization.
5. The summons of the suit were issued to the defendant and written statement was filed on behalf of defendant, wherein defendant denied the entire averments made by the plaintiff, rather filed separate counter claim for recovery of Rs. 19,45,216/- i.e. Rs. 15,50,000/- towards the cost of goods lost by the plaintiff and Rs. 3,95,216/- towards loss on account of withholding of payment of its charges by the client of the defendant i.e. M/s. Survi Projects Private Limited due to default of plaintiff.
6. It is stated that, since plaintiff is a clearing agent and a freight forwarder, defendant assigned the work of clearance of shipment for its client i.e. M/s. Survi Projects Private Limited from customs from Inland Container Depot (ICD), Tughlakabad, whereby plaintiff was responsible to take clearance of shipment from ICD port and to deliver the same to the site of its client at Manesar, Gurgaon, India in good and safe condition.
7. It is further stated that, due to the negligence of plaintiff, said material found damage and in fact part of the contents were found missing/stolen due to which defendant's client i.e. M/s. Survi Projects Pvt. Ltd. withhold payment of Rs. 3,95,216/-. It is also averred that value of stolen goods due to negligence of plaintiff is assessed of Rs. 15,50,000/- and plaintiff is liable for the same. Lastly, it is submitted that defendant owes no liability towards plaintiff, rather the plaintiff is liable to make payment of Rs. 19,45,216/- to the defendant. It is worthwhile to mention here defendant filed counter claim alongwith its Written statement on 17th Oct 2012 which, is CS No. 165/20 M/s. Committed Cargo Care Pvt. Ltd. Vs. M/s. Expo Freight Pvt. Ltd. Page No. 3 of 15 registered as Counter Claim 36/23 and separately decided by this Court on even date.
8. Replication to the written statement of defendants was filed on behalf of the plaintiff, thereby, reiterating and reaffirming the contents of the plaint.
ISSUES:
9. On the basis of pleadings of parties, following common issues were framed in present suit as well as in counter claim vide order dated 20.03.2014:
i. Whether the plaintiff is entitled to the decree of amount as prayed for? OPP.
ii. If the answer to the aforesaid issue is in affirmative, whether the plaintiff is entitled to interest thereupon, if so at what rate and for what period? OPP.
iii. Whether the defendant is entitled to the decree of counter claim, as prayed for? OPD.
iv. If the answer to the aforesaid issue is in affirmative, whether the defendant is entitled to interest thereupon, if so at what rate and for what period? OPD.
v. Whether there was a relationship of bailor and bailee between the
plaintiff and defendant, if so its effect? OPD
vi. Relief.
EVIDENCE GIVEN BY PARTIES:
10. In support of its case and to contest counter claim filed by defendant, plaintiff examined only two witnesses in all. PW1 is Sh. Badri CS No. 165/20 M/s. Committed Cargo Care Pvt. Ltd. Vs. M/s. Expo Freight Pvt. Ltd. Page No. 4 of 15 Prasad has tendered his evidence by way of affidavit Ex. PW1/A and has relied upon following documents:
S. PARTICULARS EXHIBIT/MARKED
NO.
1. Ledger Account of the Ex. PW1/1 (colly) (running into nineteen
plaintiff and the defendant pages)
2. Invoice/bills Ex. PW1/2 (colly) (running into one hundred
eighty pages)
3. Legal notice dated 24.04.2012 Ex. PW1/3 (colly) (running into two pages) 4. Postal receipt Ex. PW1/4
5. Board of Directors Resolution Ex. PW1/5
11. PW-2 Sh. Amit Arora has tendered his evidence by way of affidavit Ex. PW2/A and also relied upon compliance certificate Ex. PW-
2/AA and he has been cross-examined on behalf of the defendant.
12. Thereafter, plaintiff closed its evidence and the matter was listed for defendant's evidence.
13. In support of its defence and counter claim, defendant examined total two witnesses in all. DW-1 Sh. Sunil Thomas has tendered his evidence by way of affidavit Ex. DW1/A and has relied upon following documents:
S. PARTICULARS EXHIBIT/MARKED
NO.
1. Copy of resolution dated 02.01.2015 Ex. DW1/1 (OSR)
2. Copy of letter dated 10.07.2012 Mark DX1
3. Copy of consignment Note No.4591 dated Ex. PW1/3 (colly) (running into
02.09.2011 two pages)
4. Postal receipt Mark A
5. Letter dated 07.09.2011 Ex. DW1/4
6. Written complaint dated 10.09.2011 Ex. DW1/5
addressed to SHO PS Pul Prahlad Pur,
Delhi
7. Certified copy of FIR No. 271/2011 Ex. DW1/6
8. Survey report dated 16.09.2011 and Ex. DW1/7 (colly-20 pages)
photographs of boxes (objected to by ld. Counsel for
plaintiff as in compliance
certificate this document Ex.
CS No. 165/20 M/s. Committed Cargo Care Pvt. Ltd. Vs. M/s. Expo Freight Pvt. Ltd. Page No. 5 of 15
DW1/7 is not mentioned)
9. Copy of letter dated 15.10.2011 Mark DX2
10. Debit Notes dates 22.08.2011 for Rs. Ex. DW1/9 to Ex. DW1/11
1,00,993-, debit note dated 21.09.2011 for
Rs. 1,89,697/- and debit note dated
03.10.2011 for Rs. 1,04,526/-
11. General Ledger Report w.e.f. 01.04.2011 Ex. DW1/12
to 31.03.2012
12. Bill of lading dated 08.06.2011 bearing Ex. DW1/13
carrier's reference No. 37515424 (objected to by ld. Counsel for
plaintiff as page No. 1 of 3 is not
mentioned)
13. Copy of FBL of Beweship dated Mark DX3
07.06.2011
14. Computerized copy of Sea Cargo Arrival Ex. DW1/15
notice cum Invoice dated 05.08.2011 (objected to by ld. Counsel for
plaintiff as in compliance
certificate this document Ex.
DW1/15 is not mentioned)
15. Bill of lading dated 02.07.2011 Ex. DW1/16
(objected to by ld. Counsel for
plaintiff as page no. 1 of 3 is not
mentioned)
16. FBL of Beweship dated 29.06.2011 Ex. DW1/17
17. Copy of invoice of Elematic to Survi Mark DX4
Projects dated 29.06.2011
18. Copy of invoices, packing list, Test Mark DX5 (colly-8 pages)
Certificate Inspection Certificate and
certificate of origin
19. Internet generated copy of mails Ex. DW1/20 (colly-42 pages)
exchanged between plaintiff, defendant (objected to by ld. Counsel for
and Survi Projects plaintiff as in compliance
certificate this document Ex.
DW1/20 is not mentioned)
20. Copy of resolution dated 07.08.2003 Ex. DW1/22 (OSR)
21. Resolution dated 23.05.2013 Ex. DW1/23.
14. DW-2 Sh. Adhip Nautiyal, Manager (Accounts) has tendered his affidavit in evidence which is Ex. DW2/A and relied upon certificate under Section 65B of Evidence Act as DW2/1.
SUBMISSIONS OF THE PARTIES
15. Ld. counsel for plaintiff submits that, Plaintiff worked as CHA with defendant and paid all freight charges and other charges to custom and CS No. 165/20 M/s. Committed Cargo Care Pvt. Ltd. Vs. M/s. Expo Freight Pvt. Ltd. Page No. 6 of 15 concerned department for transporting the goods of defendant. It is further submitted that, plaintiff had worked with defendant for hundreds of shipment and no deficiency in service was ever found on the part of plaintiff. Plaintiff further relied upon Ex. PW1/2 (colly) (running into one hundred eighty pages), thereby showing multiple transactions between the plaintiff and defendant. It is further submitted that, each invoice was issued on shipment on shipment basis and defendant was charged under various heads. It is further submitted that, defendant breached the contract and did not assign any work to the plaintiff company w.e.f. 16.03.2012 and in fact failed to clear its outstanding of Rs. 4,06,021/-. It is further submitted that, there is no delay in clearance of consignment under invoice no. SI.11/259 and same was timely delivered as per the instruction of defendant. It is further averred that, there is no bailor-bailee relationship existed between the plaintiff and defendant. It is also averred that, entire shipment was duly insured and no loss suffered by defendant. Lastly, it is submitted that, present Counter claim has been filed by defendant as the counter blast to the present suit.
16. Per contra, Ld. Counsel for defendant submitted that, defendant has incurred huge losses due to the default of the plaintiff in a contract of bailment entered in between the parties, which has been suppressed by the plaintiff. The plaintiff acting as bailee on account of its default lost the goods from its possession which goods were being transported from Inland Container Deport, Tughlakabad to Manesar in Gurgaon. The estimated cost of goods lost is Rs. 15,50,000/ (Rupees Fifteen Lakhs Fifty Thousand Only). Additionally, the defendant has incurred a loss of Rs. 3,95,216/- (Rs. Three Lakhs Ninety Five Thousand Only) on account of withholding of payment of its charges by the client's of the defendant, M/s Survi Projects Private Limited which is directly in account of the default of the plaintiff.
CS No. 165/20 M/s. Committed Cargo Care Pvt. Ltd. Vs. M/s. Expo Freight Pvt. Ltd. Page No. 7 of 15 ISSUEWISE ANALYSIS & FINDINGS:
17. Since in the present matter six issues were framed out of which Issue No. 6 was common and Issue No.1 & 2 related to present suit pending for adjudication before this court while Issue No. 3, 4 and 5 related to counter claim filed by defendant. Thus, in the present order this court analyse and given finding upon Issue No.1 and 2 i.e. relates to present controversy between the parties alongwith respective relief under Issue No. 6.
ISSUE NO. 1 : WHETHER THE PLAINTIFF IS ENTITLED TO THE DECREE OF AMOUNT AS PRAYED FOR? OPP
18. The entire claim of the plaintiff is based upon the ledger account i.e. Ex. PW1/1 (Colly) running into 19 pages whereby plaintiff pleaded that Rs. 4,06,018.62 is balance outstanding towards the defendant for which present suit for recovery is filed.
19. Careful perusal of Ex. PW1/1(Colly) reveals that the several entries were debited/credited between the parties during the period of 01.04.2008 to 01.03.2013. All invoices issued by plaintiff stands debited while payment received stands credited. Although, last entry in Ex.PW1/1 (Colly) done as on 22.01.2013. But, careful perusal of said ledger reveals that, the disputed amount stands outstanding w.e.f. 26.09.2011. For the purpose of clarification, relevant entries from ledger account w.r.t. the suit amount is reproduced herein below:
DATE NO. PARTICULARS DEBIT BALANCE
26.09.2011 SI/11/259 Bill /IMP\04090\2011-2012 FCL 1,97,201.36 1,21,312.461
26.09.2011 SI/11/260 Bill /IMP\03105\2011-2012 FCL 2,84,706.16 4,06,018.62
1 As Rs. 75,888.90 was lying credit as per Ex.PW1/1 (Colly) CS No. 165/20 M/s. Committed Cargo Care Pvt. Ltd. Vs. M/s. Expo Freight Pvt. Ltd. Page No. 8 of 15
20. Although in the present matter, plaintiff relied upon invoices i.e. Ex.PW1/2 (Colly) (running into 180 pages). In the considered opinion of this court, suit amount is limited to the extent of invoice no. SI/11/259 and SI/11/260, both dated 26.09.2011.
21. In invoice no. SI/11/259, plaintiff claimed Rs. 197201.36 from defendant w.r.t. HBL No. 7187610 as follows:
S. NO. PARTICULARS NON TAXABLE TAXABLE
AMOUNT AMOUNT
1. Computer Processing Charges - 70.00
2. Labour charges - 1,500.00
3. Transportation charges - 33,000.00
4. Concor Charges 90,446.00 -
5. Photocopy charges - 50.00
6. Agency charges - 30,000.00
7. Detention charges - 15,500.00
8. Pallestisation charges - 1,000.00
9 Delivery charges 17,280.00 -
Total 1,07,726.00 81,120.00
Service Tax @10% On Service - 8,112.00
Education Cess @2% On Service - 162.24
Secondary & Higher Ed. Cess @1% On - 81.12
Service
Total 1,07,726.00 89475.38
Grand Total Amount - 1,97,201.00
In Words Rs. One Lakh Ninety Seven Thousand Two Hundred One and Thirty Six Paise Only While in invoice no. SI/11/260, plaintiff claimed Rs. 2,84,706.16 from defendant w.r.t. BL No. P8W34221 as follows:
S. NO. PARTICULARS NON TAXABLE TAXABLE
AMOUNT AMOUNT
1. Examination Charges - 4,000.00
2. Computer Processing charges - 70.00
3. Opening/sealing/Strapping - 400.00
4. Labour Charges - 1,200.00
CS No. 165/20 M/s. Committed Cargo Care Pvt. Ltd. Vs. M/s. Expo Freight Pvt. Ltd. Page No. 9 of 15
5. Transportation charges - 48,000.00
6. Concur charges 1,92,363.00 -
7. Photocopy charges - 50.00
8. Agency charges - 20,000.00
9 Detention charges - 10,000.00
Total 1,92,363.00 83,720.00
Service Tax @10% On Service - 8,372.00
Education Cess @2% On Service - 162.24
Secondary & Higher Ed. Cess @1% On - 81.12
Service
Total 1,92,363.00 92343.16
Grand Total Amount 2,84,706.16
In Words Rs. Two Lakh Eighty Four Thousand Seven Hundred Six and Sixteen Paise Only
22. Ld. Counsel of defendant specifically submitted that, shipment has arrived at ICD, Tughlakabad w.r.t. HBL No. 7187610 and it is plaintiff who actually delayed in clearance. Therefore, it is averred that, plaintiff failed to prove disputed invoices and defendant is not liable for any Concur charges.
23. During his cross-examination PW-1 specifically deposed that:
"....It is correct that the bills Ex.PW-1/2 (colly) were not prepared by me. The same were prepared by the billing department. It is correct that the concerned officials of billing department is also a witness in this case. Examination charges are the charges of physical custom examination which are being charged by us from the party....
xxx xxx xxx In bill no. S1/11/259 dated 26.0.2011 (Ex.PW-1/2 colly) as sum of Rs. 33,000/- has been charged towards road transport charges paid to the transport owner for sending the goods/container to Manesar at the site of Survi Projects. Vol. It may be a Chaudhary Transport. The receipt of the said payment is not filed in the judicial record of this case. I do know whether Committed Cargo quoted the rate of transportation charges as Rs. 9,700/- to defendant. It is wrong to suggest that the transportation charges of Rs. 33,000/- have been wrongly charged by plaintiff from defendant as mentioned in bill no. SI/11/259 dated 26.09.2011 (Ex.PW-1/2 colly.). It is wrong to suggest that Shri Umesh Tiwari of plaintiff company quoted the rate of transportation charges @Rs.9,700/- to defendant vide mail dated 28.07.2011 at 4.01 p.m. Shri Umesh Tiwari was the executive in operation department who was dealing in the shipment. It is correct that after sending the bills through mail, sometimes the same are sent by hand in the form of hard copy on the demand of party. It is correct that CONCOR CS No. 165/20 M/s. Committed Cargo Care Pvt. Ltd. Vs. M/s. Expo Freight Pvt. Ltd. Page No. 10 of 15 charges are levied in bill no. SI/11/259 dated 26.09.2011 (Ex.PW-1/2 colly). CONCOR charges are paid to CONCOR as the rent of space in ICD TKD. It is correct that CONCOR are not levied in bill no. SI/11/169 dated 10.08.2011 (Ex.PW-1/2 colly). It is not in my knowledge when the shipment of no. SI/11/169 dated 10.08.2011 (Ex.PW-1/2 colly) had arrived at ICD TKD. The fact of arrival of shipment must be in the knowledge of operation department of plaintiff. It is correct that they are not made witness in the present case. It may be correct that the shipment was custom cleared on 29.07.2011. It is further correct that it may have been delivered on 31.07.2011. In Bill no.SI/11/169 dated 10.08.2011 (Ex.PW-1/2 colly) the CONCOR charges are not levied because the said shipment would have been cleared within time limit of custom department. I do not know the free time period for which CONCOR charges are being levied by Custom Department. I am not aware whether the CONCOR (container Corporation of India Ltd.) had sent a letter dated 10.07.2012 to Survi Projects thereby informing that the container of Bill no.SI/11/259 dated 26.09.2011 (Ex.PW-1/2 colly) was arrived at ICD TKD on 18.08.2011 and was dispatched on 03.09.2011/04.09.2011. The said shipment was got custom cleared on 19.08.2011. I was not present at ICD TKD at the time of physical examination of container by custom officials. Vol. At that time Mr. Prince Sharma was the concerned person who always accompanied with the custom officials at the time of physical examination of container. I do not know as to why this shipment was delivered to Survi Projects on 03/04.09.2011 after a long delay of about 16 days after getting it cleared from custom department on 19.08.2011....".
Thus, no justification was given w.r.t. Concur charges by the plaintiff for invoice no. SI/11/259.
24. Bare pursual of above cross examination clearly reveals that, PW1 admitted the custom clearance of shipment on 19.08.2011 and its delivery to party on 03/04.09.2011. No receipt or proof w.r.t. Concur charges given by the plaintiff to justify its claim.
25. This court also considered the objection raised by Ld. Counsel for defendant w.r.t. agency charges @ Rs. 30,000/- and transportation charges @ Rs. 33,000/- as levied by plaintiff in SI/11/259. Ld. Counsel of defendant relied upon the cross-examination of PW1 w.r.t. agency charges reproduced herein below:
" The plaintiff charges the agency charges for services provided by the plaintiff to party. It is correct that agency charges in bill no.
CS No. 165/20 M/s. Committed Cargo Care Pvt. Ltd. Vs. M/s. Expo Freight Pvt. Ltd. Page No. 11 of 15 SI/11/259 dated 26.09.2011 (Ex. PW1/2 Colly) are Rs. 30,000/-. It is correct that Sh. Umesh Tiwari was the person of operation in Committed Cargo. I do not know as to Sh. Umesh Tiwari quoted the rate of agency charges as Rs. 12,000/- vide mail dated 08.08.2011. The rates of agency charges vary from shipment to shipment. It is wrong to suggest that despite quoting the rates of agency charges as Rs. 12,000/- vide mail dated 08.08.2011, Committed Cargo has charged in excess @ 30,000/- in the bill no. SI/11/259 dated
26.09.2011 (Ex. PW-1/2 colly). It is wrong to suggest that said bill is inflated one."
"I do not know whether Committed Cargo quoted the rate of transportation charges as Rs. 9,700/- to defendant. It is wrong to suggest that the transportation charges of Rs. 33,000/- have been wrongly charged by plaintiff from defendant as mentioned in bill No. SI/11/259 dated 26.09.2011 (Ex. PW1/2 colly). It is wrong to suggest that Shri Umesh Tiwari of plaintiff company quoted the rate of transportation charges @ Rs. 9,700/- to defendant vide mail dated 28.07.2011 at 04.01 PM. Shri Umesh Tiwari was the executive in operation department who was dealing in the shipment."
Although none of the aforesaid mail exhibited during cross examination but, same were filed by defendant with its Written Statement. Careful pursual of mail dated 08.08.2011 reveals that, Sh. Umesh Tiwari, (claimed to be Executive Operation Department) quoted Rs. 12,000/- (Per Container) for Survi Projects Clearance Charges to defendant. Thus, total Agency charges comes out to Rs. 36,000/- (i.e. 12,000 X 3 Container). While in mail dated 28.07.2011, Sh. Umesh Tiwari mailed as follows: 'Transport charges is Rs. 9700.00 and if empty container off load at Dadri then 13,700.00 pls confirm'. Thus, no inference can be drawn from mail dated 28.07.2011 being unclear and non specific. As mail dated 28.07.2021 is seems to be with reference to some Dadri Shipment.
26. However, it is worthwhile to mention here that no specific deposition or cross-examination was done w.r.t. Invoice no. SI/11/260. During cross examination DW1 deposed as follows:
"It is correct that I was paying the amount of the bill whatsoever was raised by the plaintiff's company. Voltr. The amount was paid as per agreed terms CS No. 165/20 M/s. Committed Cargo Care Pvt. Ltd. Vs. M/s. Expo Freight Pvt. Ltd. Page No. 12 of 15 and conditions. The payment was made by way of cheque/DD/cash. However, I do not remember the bank name from which I was issuing cheques to the plaintiff at that time. Presently, there was two bank accounts in the name of defendant which are Axis Bank and Standard Charted Bank. It is correct that the defendant has received the invoices EX. PW1/2 (Colly) (180 pages)."
In fact, entire claim roamed around HBL No. 7187610 i.e. subject matter of Invoice SI/11/259 (Description of goods: Concrete Machinery & Equipment). Defendant failed to give any justified reason for withholding the payment for Invoice No. SI/11/260 (Description of goods: Light Gauge Cold) as same pertain to some other HBL.
27. Thus, in view of above facts and circumstances, this court is of the considered that plaintiff is entitled for the invoice amount for Invoice No. SI/11/260 dated 26.11.2011 as same remain undisputed in present matter as well as in counter claim. However, so far as dues towards Invoice No. SI/11/259 dated 26.09.2011 are concerned plaintiff is not entitled for Concur charges as claimed under aforesaid invoice. Hence, after deducting Concur charges and adjustment of Rs. 75,888.90 i.e. admittedly lying credited in the ledger account of plaintiff before issuing abovesaid invoices, Plaintiff is entitled for decree of Rs. 3,15,572.26 as follows:
S.N PARTICULARS AMOUNT AMOUNT
O.
1 Invoice no. SI/11/259 dt. 26.09.2011 1,97,201.00
Less: Concur Charges (90,446.00) 1,06,755.00
Net amount to be paid Invoice no. SI/11/259
2 Invoice no. SI/11/260 dt. 26.09.2011 2,84,706.16
Net amount to be paid under Invoice no. SI/11/260 2,84,706.16
4 Total net amount to be paid under two invoices 3,91,461.16
5 Less credit balance under ledger account (75,888.90)
6 Total liability of defendant 3,15,572.26
ISSUE NO. 2 : IF THE ANSWER TO THE AFORESAID ISSUE IS IN AFFIRMATIVE, WHETHER THE PLAINTIFF IS ENTITLED TO CS No. 165/20 M/s. Committed Cargo Care Pvt. Ltd. Vs. M/s. Expo Freight Pvt. Ltd. Page No. 13 of 15 INTEREST THEREUPON, IF SO AT WHAT RATE AND FOR WHAT PERIOD? OPP.
28. Pursual of both invoices reveals that, same were immediately due from the date of issuance. However, plaintiff failed to file any document, letter, notice of demand for clearance of outstanding towards the said two invoices dated 26.09.2011 until discontinuance of business with defendant. Even legal notice dt. 24.04.2012 i.e. Ex.PW1/3 was issued in the form of demand for general outstanding in running account maintained by plaintiff. While on the other hand, defendant filed counter claim w.r.t. theft and loss due to non payment by its client. Thus, in the light of the aforesaid discussion, this court is of the considered opinion that, plaintiff claim for interest @18% per annum, is at higher side. Thus, plaintiff shall be entitle for interest @ 9% per annum on decretal amount from the date of filing of the suit till its realization.
ISSUE NO. 6: Relief
29. Suit is decreed in favour of plaintiff in terms of following conclusions.
CONCLUSION
30. Considering the facts and circumstances of present case, pleadings/submissions made by the parties and material available on record as well as evidence led by the parties, Suit is decreed in favour of plaintiff in terms of following conclusions:
1. Suit amount is limited to the extent of invoice no. SI/11/259 and SI/11/260, both dated 26.09.2011 but, entire claim roamed around HBL No. 7187610 i.e. subject matter of Invoice SI/11/259. No justification was given w.r.t. Concur charges as levied in invoice no. SI/11/259 by the plaintiff while, Defendant failed to give any justified reason for CS No. 165/20 M/s. Committed Cargo Care Pvt. Ltd. Vs. M/s. Expo Freight Pvt. Ltd. Page No. 14 of 15 withholding the payment for Invoice No. SI/11/260 as same pertain to some other HBL;
2. In view of above facts and circumstances, this court is of the considered that plaintiff is entitled for the invoice amount for Invoice No. SI/11/260 dated 26.11.2011 as same remain undisputed in present matter as well as in counter claim. However, so far as dues towards Invoice No. SI/11/259 dated 26.09.2011 are concerned plaintiff is not entitled for Concur charges as claimed under aforesaid invoice. Hence, after deducting Concur charges and adjustment of Rs. 75,888.90 i.e. admittedly lying credited in the ledger account of plaintiff before issuing abovesaid invoices, Plaintiff is entitled for decree of Rs. 3,15,572.26 (Rs. Three Lac Fifteen Thousand Five Hundred Seventy Two and Twenty Six Paise Only);
3. Plaintiff shall be entitled for interest @ 9% per annum on above decretal amount from the date of filing of the suit till its realization;
4. Cost of the suit is also awarded in favour plaintiff.
31. Decree sheet be prepared accordingly. File be consigned to record room.
Digitally signedSHILPI by SHILPI M JAIN Announced in open court M JAIN Date: 2023.11.28 on 28.11.2023. 16:48:46 +0530 (SHILPI M JAIN) ADDL. DISTRICT JUDGE-05 DWARKA COURTS, NEW DELHI CS No. 165/20 M/s. Committed Cargo Care Pvt. Ltd. Vs. M/s. Expo Freight Pvt. Ltd. Page No. 15 of 15