Delhi District Court
Head Office At vs M/S. Msc Agency (India) Pvt. Ltd on 25 September, 2014
IN THE COURT OF Ms. TANVI KHURANA,CIVIL JUDGE1(South) SAKET COURTS NEW DELHI In the Matter of Civil Suit No.117/13 M/s. SCJ Plastics (a duly registered partnership firm of Shri Satish Chand Jain, Mrs. Meenu Jain.
Shri Darpan Jain and Mr. Rahul Jain) Represented by their Attorney Holder and Marketing Executive, Shri Deepak Kumar B11/22 Mohan Cooperative Industrial Estate Badarpur New Delhi110044 Head Office at:
70/A Rama Marg New Delhi110015 .......Plaintiff Versus M/s. MSC Agency (India) Pvt. Ltd.
4B, 4th floor, Lotus Tower
New friends Colony Community Centre
New Delhi110025 .......Defendant
Date of institution :09.07.2012/13.08.2013
Date of reserving the judgment :Nil
Date of pronouncement :25.09.2014
Decision : Relief of Rs. Rs. 77,350.07 decreed
Under Order XII Rule 6 CPC
SUIT FOR RECOVERY OF Rs.2,99,950/ ( TWO LACS NINETY NINE THOUSAND NINE HUNDRED FIFTY RUPEES ONLY) U/O XXXVII CPC Suit No. 117/13 M/s SCJ Plastics Vs. M/s MSC Agency Page 1 of 5 ORDER /JUDGMENT:
Present: Ld. counsel for the plaintiff.
Vide this order, I shall proceed to decide the application filed under Order XII Rule 6 CPC by the plaintiff.
2. Before, deciding the application it is important to give a brief resume of the facts.
3. Succinctly, the plaintiff has averred in the plaint that the present suit has been filed against the defendant for recovery of Rs. 2,99,950/ along with pendente lite and future interest at the rate 24% per annum based upon the transaction between the plaintiff and defendant. It is stated that the plaintiff purchased 4477 MT Carbon Black on high seas sale vide B/L No. MSCUB7599075 dated 11.11.2009. The original buyer was M/s 4F Union Enterprises. The goods were hazardous and therefore, the defendant had charged a sum of Rs. 31,666/ for payment to CONCOR for bringing the goods to ICD, Tughalakabad. The defendant being a shipping and forwarding company had taken the payment as leviable by CONCOR but they did not declare the goods as hazardous at CONCOR. Due to wrong declaration, penalty of Rs. 1,11,774/ was charged by CONCOR. The validity of D.O was till 18.12.2009 and the plaintiff came to know about the imposition of the penalty on 16.12.2009. The plaintiff met the representative of defendants on 17.12.2009 and communicated to either get the consignment released by 18.12.2009 or to get the DO revalidated without additional charges. It was also communicated by email of the same date. The defendant replied on 19.12.2009 and confirmed that they would bear 50% of the charges.
4. It is the grievance of the applicant/plaintiff that due to the wrong Suit No. 117/13 M/s SCJ Plastics Vs. M/s MSC Agency Page 2 of 5 declaration by the defendant, the plaintiff incurred penalty of Rs. 1,87,435/ which was paid. It is also averred that the entire liability was of the defendant and therefore the amount with interest be borne by the defendant.
5. On the other hand, in the written statement, the defendants contended that the defendant declared the goods as Non Hazardous in nature due to the declaration made to the said effect by the original consignee i.e. M/s 4 F Union Enterprises. It was also contended that this declaration was always known to the plaintiff. It was stated that the defendant had inadvertently made wrong declaration relying upon the declaration of M/s 4 F Union Enterprises for which M/s 4 F Union Enterprises should be made a party.
6. It was contended that the operation office of defendant at Nhava Sheva did not have accurate information on the Technical properties of Carbon Block N200 and enquiry was sent and the defendant enquired from M/s 4 F Union Enterprises assuming that the consignee would be well versed about the fact that whether Carbon Black was hazardous or not and declaration was accordingly made. Thereafter, on 14.12.2009, new consignee i.e. plaintiff approached defendant for release of the consignment with sale contract with M/s 4 F Union Enterprises.
7. The visit of the plaintiff was admitted and it was contended that vide e mail dated 18.12.2009 it was communicated that it was the original consignee who had declared the consignment as nonhazardous. It was agreed that pursuant to the negotiations with the plaintiff, the defendant agreed to bear "50% + Taxes of penal charges" out of good will only, for which credit note was issued. Dismissal of the suit was prayed for.
8. The applicant/plaintiff has filed the present application stating that the Suit No. 117/13 M/s SCJ Plastics Vs. M/s MSC Agency Page 3 of 5 defendant has admitted its liability to the extent of "50% + Taxes of penal charges". The applicant has also relied upon the email dated 22.12.2009 sent by Sh. Santosh Kumar Yadav, in which it is written that "(50% waiver on penalty of INR 52940.00)"
9. Whereas, the defendant has refused any such admission and it is stated that the it was a mere good will gesture.
10. Both the Ld. Counsel argued as per their pleas taken. I have heard their submissions at length and have perused the case record meticulously. Ld. Counsel for plaintiff relied upon the judgment of Cosmo Ferrites Ltd. V. Universal Commercial Corpn. & Ors, 2006 (3) RCR (Civil) (Del) 62, Jaila Singh (dead) through LRs V Avtar Singh (dead) through LRs., 2006 (2) RCR (Civil) (P & H) 437 and Umang Puri V. Lt. Col. Pramod Chandra Puri, 165 (2009) DLT 245. The defendant relied upon the judgment of Himani Alloys Ltd. Vs. Tata Steel Ltd., 2011 (3) CCC 721 in its pleadings.
11. In the present case, the plaintiff has sought decree on admission under Order XII Rule 6, CPC, 1908 based upon the admission made by defendant in para 11 of the preliminary objections and para 5, 9 and 11 of the reply on merits.
12. It can be noticed that the defendant has clearly stated that submitted in the written statement that:
"Further, pursuant to incessant pleadings and negotiations with the plaintiff, the Defendant agreed to bear 50% + Taxes of penal charges out of good mill only, for which a credit note was issued in favour of the plaintiff.
13. Though the defendant has argued that it was merely a good will gesture but it has been admitted to be agreed that the defendant would bear 50% + Taxes of the penal charges. Even if it was a good will gesture it was categorical and the Suit No. 117/13 M/s SCJ Plastics Vs. M/s MSC Agency Page 4 of 5 defendant had shown the intention to be bound by the same.
14. Therefore, it is an admission on the part of defendant which unequivocal, unambiguous and cleared.
15. It was held in Cosmo Ferrites Ltd. (Supra) that Order XII Rule 6 in powers of the court to pass judgment and decree in respect of admitted claims pending adjudication. In Jaila Singh (Supra), It was held that they can not be any better prove then admission of party against his own interest and that to in his pleadings.
16. However, in Umang Puri (Supra) it was held that the court can its own motion can proceed to pass the decree.
17. The plaintiff also relied upon Uttam Singh Duggal and Co. Ltd. Vs. Union Bank of India, (2007) SCC 120 and Delhi Jal Board Vs. Surender P. Malik, 104 (2003) DLT, 151 (DD) which were relied upon in the judgment of Umang Puri (Supra) These judgments also reiterated that its imperative to give speedy judgment to save the parties from the giving through rigmarole of protracted trial.
18. Whereas the judgment of Himani Alloys (Supra) does not held the defendant much as the admission made was made with the intention of completing it or else credit note would not have been issued by the defendant in the first place.
19. As there is clear admission on the part of the defendant, the present application is allowed to the extent of 50% + Taxes on the penal charges which is Rs. 77,350.07 (Seventy Seven Thousand Three Hundred Rupees and Seven paisa). However, the plaintiff is directed not to use the credit note, if any, if it was issued to the plaintiff by the defendant as has been contended. Therefore, the suit Suit No. 117/13 M/s SCJ Plastics Vs. M/s MSC Agency Page 5 of 5 to the extent of the admission under Order XII Rule 6 CPC is decree sheet be drawn accordingly.
20. The issue of interest as well as rest of the liability will be decided in trial suit shall proceed towards their claim. Matter is now fixed for filing of replication if not filed till date and admission denial of documents, framing of issues on 16.12.2014. Court notice be issued to the defendant and his counsel for the NDOH.
Announced in the open court on 25th September 2014. (TANVI KHURANA) The judgment contains 05 pages, Civil Judge01 (South) all checked and signed by me. Saket Courts/New Delhi 25.09.2014 Suit No. 117/13 M/s SCJ Plastics Vs. M/s MSC Agency Page 6 of 5