Delhi District Court
Civil Suit No. 56476/16 vs Shri Pran Nath Khanna on 9 July, 2018
IN THE COURT OF PRAVEEN KUMAR: ADDITIONAL
DISTRICT JUDGE 05 :NEW DELHI DISTRICT,
PATIALA HOUSE COURTS, NEW DELHI.
Civil Suit No. 56476/16
M/s Eagle Express Logistics (India) Limited,
having its Registered Office at 506,
5th Floor, DMall, Netaji Subhash Place,
PitamPura, New Delhi.
Through its General Manager (Credit Control)
Shri J K Hans. ................Plaintiff
Versus
1.Shri Pran Nath Khanna D45, Naraina Vihar Delhi110028. ..........Defendant no.2
2. Ms. Anju Khanna D45, Naraina Vihar, Delhi0110028. .........Defendant no.3
3. M/s Adigear International A40, Mayapuri Industrial Area, Phase1, New Delhi110064 Through its Director Shri Pran Nath Khanna ...........Defendant no.4 Note : M/s Adigear International Pvt. Ltd., Defendant no.1, was deleted vide order dated 7.8.2014.
JUDGMENT :
1. The plaintiff has filed the suit against the defendants for recovery of an amount of Rs.3,91,006/ along with pendente lite and future interest.
2.1 The case of the plaintiff, in brief, is that the plaintiff is a CS No.56476/16 Page 1 of 7 M/s Eagle Express Logistics (India) Ltd vs. Pran Nath Khanna & Others registered company incorporated under the Companies Act, 1956. The present suit has been signed, verified and filed by Mr. J K Hans, General Manager (Credit Control) of the plaintiff company who is duly authorized in this behalf vide Board Resolution dated 20.05.2014. It is the case of the plaintiff that plaintiff company is engaged in the business of cargo handling agents, transport agents, representatives of airline and other carriers and also arranges handling and delivering of goods by land, air and sea. The defendant no.1M/s Adigear International Pvt Ltd (since deleted) & 4 through defendants no. 2 & 3 are engaged in the business of fabrics and they hired the air/sea cargo services of the plaintiff company for importing the same by air/sea cargo respectively against freight charges as per the terms and conditions agreed between the parties. It is the case of the plaintiff that defendants used to collect the consignment imported by them after receipt of Cargo Arrival Notice (in short 'CAN') cum Invoice and payment of the freight charges to the plaintiff as per invoice. As per plaintiff, in case the freight is not paid within 30 days of of CAN, the interest on the freight charges was to be charged @ 24% per annum.
2.2 It is further case of the plaintiff that defendants no.1M/s Adigear International Pvt Ltd (since deleted) & 4 have imported four consignments through invoices of the plaintiff company viz EELI/AI/CN 10409/1213 dated 18.6.2012 for Rs.1,50,669/; EELI/AI/CN 10753/1213 dated 31.8.2012 for Rs.69,285/; EELI/AI/CN 10754/1213 dated 31.8.2012 for Rs.2,34,278/ and EELI/AICN 10755/1213 dated 31.8.2012 for Rs.13,837/. These consignments have been collected by the defendants to their entire satisfaction. However, defendants have not paid the entire freight charges within the prescribed period. Defendants were requested to CS No.56476/16 Page 2 of 7 M/s Eagle Express Logistics (India) Ltd vs. Pran Nath Khanna & Others clear the dues so many times through emails but in vain. As per plaintiff, a sum of Rs.2,43,069/ is due and outstanding towards the defendants excluding the interest of Rs.1,28,958/ @ 24% per annum calculated upto 20.5.2014. According to plaintiff, due to change in the exchange rates of the currency qua Indian Rupee and American dollar in the international market, the plaintiff also suffered loss of Rs.18,979/. Plaintiff issued legal notice dated 3.3.2014 to the defendants to clear the outstanding amount.
However, defendants did not pay any heed to the said notice. Plaintiff has prayed that the suit of the plaintiff be decreed.
3. Vide order 7.8.2014 on the submission of the Ld. Counsel for the defendants at bar that the defendant no.1 company does not exist, amended memo of the parties was directed to be filed by Ld. Predecessor of this court and, accordingly, the same was filed on 18.9.2014.
4. Defendants no. 2, 3 and 4 have filed joint written statement in the present case and have contested the suit. Sh. Randhir Batsa has been authorized by Special Power of Attorney to represent the defendants in the present case. It is admitted that plaintiff used to provide cargo services to the defendants. Defendants have denied that any amount against the four bills is due. It is averred that plaintiff has concealed the fact that material imported against the invoices upon which the claim of the plaintiff is based, delayed considerably on account of which defendant had to suffer huge losses in the business. It is averred that only an amount of Rs.3,406/ is due towards the plaintiffcompany. The statement of account of the plaintiff company in respect of the transactions between the plaintiff and the defendant firm or alleged interest is fabricated and self serving. It is further averred that there was no agreement to pay variation of rate of currency CS No.56476/16 Page 3 of 7 M/s Eagle Express Logistics (India) Ltd vs. Pran Nath Khanna & Others between Indian Rupee and U.S $ (Dollar). The undated cheque bearing no.358235 for Rs.25,000/ was given by the defendants to the plaintiff as a security for the future business. Defendants have prayed that suit of the plaintiff be dismissed with costs.
5. From the pleadings of the parties, following issues were framed on 19.12.2014 by Ld. Predecessor of this Court:
1. Whether the plaintiff is entitled for a decree of recovery of amount of Rs.3,91,006/ as prayed for ? OPP.
2. If the issue No.1 is proved in affirmative, whether the plaintiff is entitled of pendentlite and future interest & if so, at what rate ? OPP.
3. Relief.
6. Plaintiff in order to prove its case has examined Sh. J K Hans as PW1. PW1 has tendered his evidence by way of affidavitEx.PW1/A. He has deposed on the lines of the averments made in the plaint. He has proved Certificate of Incorporation as Ex.PW1/1; Memorandum and Articles of Association as Ex.PW1/2; Board Resolution dated 20.5.2014 as Ex.PW1/3; unpaid invoices as Ex.PW1/4 collectively; statement of account alongwith certificate u/s 65B of the Indian Evidence Act as Ex.PW1/5; statement showing the details of the amount accrued towards exchange loss as Ex.PW1/6; certified copy of the cheque bearing no.358235 dated 16.12.2013 for a sum of Rs.25,000/; cheque return memo as Ex.PW1/7 (colly.); copies of emails dated 30.4.2013, 17.10.2013, 22.11.2013 & 15.1.2014 and reply of emails dated 30.4.2013, 6.5.2013 and 1.11.2013 as Ex.PW1/8 (collectively); legal notice along with original postal receipts, original courier receipts and delivery proof as Ex.PW1/9 (collectively).
7. On the other hand, defendants after filing the written statement CS No.56476/16 Page 4 of 7 M/s Eagle Express Logistics (India) Ltd vs. Pran Nath Khanna & Others did not crossexamine the PW1 despite several opportunities granted to them. A cost of Rs.2000/ and Rs.10,000/ was also imposed upon the defendants vide orders dated 18.4.2016 and 29.5.2017 passed by Ld. Predecessor of this court which has not been paid till date. S.35B CPC clearly provides that the payment of such costs, on the date next following the date of such order, shall be a condition precedent to the further prosecution of the defence by the defendant, where the defendant was ordered to pay such costs. However, defendants neither deposited the cost imposed upon them nor led any evidence in support of its defences taken in the written statement. In absence of any evidence adduced on behalf of the defendants, the pleas taken in the written statement of the defendant stand not proved.
8. I have heard arguments in the present case. Ld. Counsel for the plaintiff has prayed that in view of the evidence on record, the suit of the plaintiff is liable to be decreed.
9. I have gone through the file. My issuewise findings are as hereunder :
Issue No.1 & 2:
10. As these issues are interlinked, they are being decided together. The onus to prove these issues is on the plaintiff. The present suit has been instituted by Sh. J K Hans, General Manager (Credit Control) of the company who has been duly authorized vide Board Resolution dated 20.5.2014 (Ex.PW1/3). Defendants no.2 and 3 reside within the jurisdiction of this Court. Hence, this Court has jurisdiction to try the present suit. Plaintiff's claim is based on the four invoices of consignments viz EELI/AI/CN 10409/1213 dated 18.6.2012 for Rs.1,50,669/; EELI/AI/CN CS No.56476/16 Page 5 of 7 M/s Eagle Express Logistics (India) Ltd vs. Pran Nath Khanna & Others 10753/1213 dated 31.8.2012 for Rs.69,285/; EELI/AI/CN 10754/1213 dated 31.8.2012 for Rs.2,34,278/ and EELI/AICN 10755/1213 dated 31.8.2012 for Rs.13,837/. All the invoices pertain to the period w.e.f 18.6.2012 to 31.8.2012. The present suit has been filed on 3.7.2014. Hence, the present suit has been filed within the period of limitation. Defendants in their written statement have admitted that they availed the services of the plaintiff against the aforesaid invoices. However, the plea of delay in consignment, as taken by the defendants in the written statement does not stand proved in absence of any evidence led on behalf of the defendants. A perusal of the various emails sent by the plaintiff shows that plaintiff has time and again made several requests to the defendants to clear the dues. In the email dated 6.5.2013 12:02 PM defendants have even stated "Sir pls don't write mails everyday. Your payments will get cleared in a fortnight or so.".
11. Further, at serial no.4, the invoices contain the clause that "If the freight amount is not paid within 30 days of CAN date, we reserve the right to charge interest at 24 percent per annum". The statement of accountEx.PW1/5 shows the principal amount due from the defendants to the tune of Rs.2,43,069/. The said statement of account is relevant u/s 34 of the Indian Evidence Act. PW1 has also furnished Certificate u/s 65B of the Indian Evidence Act qua the eletronically generated documents. A legal notice (Ex.PW1/9) dated 3.3.2014 was also sent to the defendants which was not replied to. PW1 has also proved certified copy of the cheque No.358235 dated 16.12.2013 of Rs.25,000/ (Ex.PW1/7) issued by the defendants towards part payment of the due amount to the plaintiff. It is pertinent to mention that there is nothing on record to show regarding any CS No.56476/16 Page 6 of 7 M/s Eagle Express Logistics (India) Ltd vs. Pran Nath Khanna & Others term and condition which may prove that defendants are also liable to pay the loss to the plaintiff on account of fluctuation in the exchange rate of currency qua Indian Rupee and American dollar in the international market. Hence, the claim of Rs.18,979/ by the plaintiff in the said head is hereby rejected. Taking into consideration the deposition of PW1 and the documentary evidence, I am of the opinion that plaintiff is entitled to recover a sum of Rs.3,72,027/ from the defendants. Hence, this issue is decided in favour of the plaintiff and against the defendants to the extent of Rs.3,72,027/.
Relief.
12. From the perusal of evidence on record, I am of the opinion that the plaintiff has proved its case against the defendants no. 2, 3 and 4. However, interest claimed @ 24% per annum is on higher side. Hence, the suit of the plaintiff is decreed with costs in favour of the plaintiff and against the defendants no. 2, 3 and 4 for a sum of Rs.3,72,027/ (Rs. Three lakhs, seventy two thousand and twenty seven only). As the decretal amount includes the interest, the decretal amount be paid or deposited by the defendant within one month from today. The grant of interest over interest is prohibited under Section 3 (3) (c) of the Interest Act, 1978. Hence, suit is further decreed in favour of the plaintiff and against the defendants to pay pendente lite & future interest @ 12% per annum on the principal outstanding sum of Rs.2,43,069/ till realization. Decree Sheet be drawn accordingly. File be consigned to record room after due compliance.
Digitally signed by PRAVEEN PRAVEEN KUMAR
KUMAR Date: 2018.07.10
08:32:09 +0530
Dictated & announced today in (Praveen Kumar)
open court i.e on 09.07.2018 Additional District Judge05
N.D. Distt.PHC/New Delhi. s
CS No.56476/16 Page 7 of 7
M/s Eagle Express Logistics (India) Ltd vs. Pran Nath Khanna & Others