Delhi District Court
Forin Containerline Pvt.Ltd vs Interblocco Furniture on 23 April, 2024
CS SCJ 85/22
FORIN CONTAINERLINE PVT.LTD. Vs. INTERBLOCCO FURNITURE
IN THE COURT OF MS. KANIKA AGARWAL, CIVIL
JUDGE-01 (SOUTH) SAKET COURT, NEW DELHI
Civil Suit No :- 85/22
CNR No. :- DLST03-000136-2022
M/S FORIN CONTAINER LINE PVT. LTD.
having its registered office at:-
A-128 & 129, Mahipalpur Extn.,
N.H.-8, New Delhi-110037 ......PLAINTIFF
VERSUS
1. M/S INTER BLOCCO FURNITURE
Plot No. 170, Sector-6, IMT Manesar
Gurugram-122050 (Haryana) ......DEFENDANT NO. 1
2. MR. PRADEEP KUMAR AGGARWAL
Partner, Interblocco Furniture
A-6, Hauz Khas,
New Delhi-110016 ......DEFENDANT NO. 2
3. MR. ROHIT KUMAR
Partner, Interblocco Furniture
A-6, Hauz Khas,
New Delhi-110016 ......DEFENDANT NO. 3
4. MS. ISHA AGGARWAL
Partner, Interblocco Furniture
A-6, Hauz Khas,
New Delhi-110016 ......DEFENDANT NO. 4
Digitally signed
by KANIKA
KANIKA AGARWAL
Page no. 1 of 25 AGARWAL Date:
2024.04.23
16:17:10 +0530
(Kanika Agarwal)
CJ-01/(South) Saket Court/New Delhi
CS SCJ 85/22
FORIN CONTAINERLINE PVT.LTD. Vs. INTERBLOCCO FURNITURE
5. MS. SAKSHI AGGARWAL
Partner, Interblocco Furniture
A-6, Hauz Khas,
New Delhi-110016 ......DEFENDANT NO. 5
Date of Institution : 21.01.2022
Date of Decision : 23.04.2024
Date of framing of issues : 03.08.2022
Date of final arguments : 05.04.2024
Decision : DECREED
SUIT FOR RECOVERY OF RS. 2,44,306.96/- AS ON
29.05.2021 ALONG WITH FUTURE AND PENDENTE LITE
INTEREST @ 24% P.A.
JUDGMENT
1. This is the suit filed by the plaintiff for recovery of amount of Rs. 2,44,306.96/- as on 29.05.2021 along with pendente lite and future interest @ 24% per annum till payment and/ or realization.
AVERMENTS OF THE PLAINT
2. Succinctly, the case of plaintiff is that plaintiff is a company incorporated under the provisions of the Companies Act, 1956 involved in the business of Ocean Freight Services and its allied. Defendant no. 1 is a partnership firm and defendant no. 2 to 5 are partners of defendant no. 1 who manages and control the day to day affairs of defendant no. 1.
Digitally signed by KANIKA KANIKA AGARWAL Page no. 2 of 25 AGARWAL Date: 2024.04.23 16:17:15 +0530 (Kanika Agarwal) CJ-01/(South) Saket Court/New Delhi CS SCJ 85/22
FORIN CONTAINERLINE PVT.LTD. Vs. INTERBLOCCO FURNITURE
3. It is averred that defendant had approached the plaintiff to provide ocean freight services for transport of goods from India to Mexico as per the requirements. Accordingly, plaintiff offered services to the defendant and had raised bills/ invoices bearing no. FCD/FY22/000558 dated 29.05.2021. However, despite various requests and reminders, defendant failed to make the payment. It is stated that in the running account maintained by the plaintiff in their usual course of business an amount of Rs. 2,44,306.96/- along with contractual rate of interest @ 24% as on 29.05.2021 is still due and outstanding against the defendant. A legal notice dated 04.10.2021 was issued to the defendant. Defendants vide reply dated 13.10.2021 raised false and frivolous grounds to evade the payment of legitimate dues. Having left with no other option, the present suit is filed seeking following reliefs:-
(a) pass a decree for recovery of a sum of Rs. 2,44,306.96/- as on 29.05.2021 together with interest @ 24% per annum till payment and / or realization in full in favour of the plaintiff and against the defendant;
(b) cost of suit; and
(c) any other relief.
AVERMENTS OF THE WRITTEN STATEMENT
4. Per contra, it is stated that present suit is frivolous, baseless and based upon concocted facts. It is stated that present suit is devoid of merits and full of contradictions, inconsistencies, Digitally signed by KANIKA KANIKA Page no. 3 of 25 AGARWAL AGARWAL Date:
2024.04.23 16:17:20 +0530 (Kanika Agarwal) CJ-01/(South) Saket Court/New Delhi CS SCJ 85/22 FORIN CONTAINERLINE PVT.LTD. Vs. INTERBLOCCO FURNITURE suppression of material facts and deficiencies. It is stated that plaint is to be returned under Order VII Rule 10 CPC. It is stated that the present transaction under dispute does not fall within the territorial jurisdiction of this court. It is further stated that no part of cause of action has arisen within the territorial jurisdiction. It is stated that plaintiff has improperly impleaded defendant no. 2 to 5. It is stated that the plaintiff has filed the present suit by suppressing material facts and on conjectures and surmises. It is stated that there is no privity of contract between the plaintiff and the defendant as the defendant was appointed / nominated as the transporter/ agent from handling the shipment from India to Mexico by the buyer of defendant no. 1 i.e. M/s Decorcaciones Dupuis S.A. Dev C.V. Further, it is stated that the plaintiff has failed to discharge their duty as nominated agent in a proper and timely manner. It is stated that plaintiff was obligated to ensure smooth and timely shipping of cargo by ensuring submission of documentation to shipping line (i.e. the carrier). It is stated that the plaintiff did not submit the documents on time to the shipping line, therefore, the exorbitant detention charges have been levied upon the plaintiff by the carrier. Further, it is submitted that as per International Commercial Terms (INCO Terms), the responsibility of freight and carriage are of buyer in Mexico who had appointed plaintiff and not of defendant. It is stated that the container containing shipment in question had reached port of loading at Mundra, Gujarat on 18.03.2021, however, Digitally signed by KANIKA Page no. 4 of 25 KANIKA AGARWAL AGARWAL Date:
2024.04.23 16:17:25 +0530 (Kanika Agarwal) CJ-01/(South) Saket Court/New Delhi CS SCJ 85/22 FORIN CONTAINERLINE PVT.LTD. Vs. INTERBLOCCO FURNITURE it missed three vessels and was finally loaded and discharged on 17.04.2021 due to delay by the plaintiff in the submission of shipping instructions documents with the carrier. It is claimed that plaintiff has tried to shrug off the liability and pass their liability upon the defendant by way of the present suit. It is further stated that the plaintiff vide e-mail dated 23.09.2021 has admitted that plaintiff's partner has agreed to issue credit note for the invoice bearing no. FCD/ FY22/000558 dated 29.05.2021 for an amount of Rs. 2,16,553.36/- Ex. PW1/2 (colly) and in view of the same, the plaintiff cannot now claim the amount from the defendant. All the other averments of the plaint have been denied. Hence, it is prayed that the present suit be dismissed. REPLICATION
5. In replication, averments of the plaint have been reiterated and contents of the written statement have been denied. It is further stated that it was the defendant who had submitted the documents namely the shipping instructions on 22.03.2021 when the date of shipment of goods was 12.03.2021. It is submitted that after 22.03.2021, the next vessel to Mexico was shipped on 04.04.2021, however, it was skipped by the shipping line for some reason and ultimately, the goods were shipped on 17.04.2024. It is further stated that though the talks for issuance of credit note were going on between the plaintiff and shipping line, however, the latter has subsequently refused to waive off the detention charges. It is Digitally signed by KANIKA KANIKA AGARWAL Page no. 5 of 25 AGARWAL Date:
2024.04.23 16:17:29 +0530 (Kanika Agarwal) CJ-01/(South) Saket Court/New Delhi CS SCJ 85/22 FORIN CONTAINERLINE PVT.LTD. Vs. INTERBLOCCO FURNITURE submitted that the detention charges have been imposed by the shipping line owing to inability of the defendant to supply the documents on time.
ISSUES
6. From the pleadings of the parties following issues were framed by Ld. Predecessor of this Court vide order dated 03.08.2022:-
(i) Whether plaintiff is entitled to decree of Rs. 2,44,306.96/- as claimed? OPP
(ii) Whether plaintiff is entitled to any future interest, if so, at what rate? OPP
(iii) Whether the present suit is bad in law for misjoinder of parties? OPD
(iv) Whether plaintiff is not liable to claim any amount as he has admitted to issue credit notes for invoice bearing no. FCD/ FY22/000558 dated 29.05.2021? OPD
(v) Relief.
PLAINTIFF EVIDENCE
7. To prove his case, the plaintiff has examined AR of the plaintiff as PW1 and tendered his affidavit of evidence as Ex. PW1/A and has relied upon following documents i.e. :-
(i) Ex. PW1/1 i.e. Board resolution dated 27.12.2021;
(ii) Ex. PW1/2 (colly) i.e. Invoice dated 06.04.2021 & 29.05.2021;Digitally signed by KANIKA AGARWAL
KANIKA Page no. 6 of 25 Date:
AGARWAL 2024.04.23 16:17:34 +0530 (Kanika Agarwal) CJ-01/(South) Saket Court/New Delhi CS SCJ 85/22 FORIN CONTAINERLINE PVT.LTD. Vs. INTERBLOCCO FURNITURE
(iii) Ex. PW1/3 i.e. Ledger account of the defendant;
(iv) Ex. PW1/4 i.e. Legal notice dated 04.10.2021;
(v) Ex. PW1/5 i.e. Reply dated 13.10.2021; and
(vi) Ex. PW1/B i.e. Certificate u/s 65B IEA.
8. PW-1 was duly cross-examined by Ld. Counsel for the defendant. During cross-examination of PW1, it is stated that he does not know how the defendant approached the plaintiff company for shipment of goods as he was from the accounts branch and only approach the clients about the outstanding payment. It is stated that he cannot say what are the services that have been provided to defendants as it is an operational charges. It is stated that he does not aware as to what documents are supplied to plaintiff under shipping instructions and manifest. It is stated that as per his knowledge, the current dispute is pertaining to a debit note raised by defendants of which, defendants are looking for a credit note for the same amount which they are denying. It is stated that the issue at hand is an operational issue and he is not aware of the same. It is denied that there is no privity of contract between the parties. It is further denied that defendants are not liable for any claim and that defendants never approached plaintiff. It is denied that plaintiff is liable for late submission of shipping instructions. It is further denied that freight and carriage were the responsibility of consignee in Mexico. It is denied that defendants are not liable for any payment since MSC (shipping line) account has been settled. It is Digitally signed by KANIKA AGARWAL KANIKA Page no. 7 of 25 AGARWAL Date:
2024.04.23 16:17:39 +0530 (Kanika Agarwal) CJ-01/(South) Saket Court/New Delhi CS SCJ 85/22 FORIN CONTAINERLINE PVT.LTD. Vs. INTERBLOCCO FURNITURE denied that plaintiff has not made any payment to shipping line MSC. It is denied that the suit of plaintiff is frivolous because plaintiff has accepted to issue credit note to defendants. PW1 cross- examination was concluded on 23.03.2023.
9. Further, plaintiff examined Sh. Sunil Kashyap as PW2 who was the Manager Operations of the plaintiff company and tendered his affidavit of evidence as Ex. PW2/A and has relied upon following documents:-
(i) Ex. PW2/1 i.e. Board resolution dated 07.10.2022;
(ii) Ex. PW2/2 (colly) i.e. Copy of e-mails exchanged between the parties;
(iii) Ex. PW2/3 i.e. Certificate u/s 65B IEA.
10. PW2 was duly cross-examined by Ld. Counsel for the defendant. During cross-examination of PW2, it is stated that the defendants approached plaintiff for present transaction by way of mail communication. It is admitted that Ex. PW1/D1 is the one wherein they were introduced to defendants by the consignee in Mexico. It is stated that plaintiff has booked and paid directly to shipping line (MSC). It is stated that neither the consignee nor the defendant/ consignor has paid them carrier charges till date. It is stated that the terms of shipment were FOB (free on board) and, therefore, the defendant had provided the cargo to them in stuffed condition. It is stated that the Cargo was entrusted to them at ICD Tugalkabad and, thereafter, they had taken care of the movement of Digitally signed by KANIKA AGARWAL KANIKA Page no. 8 of 25 Date:
AGARWAL 2024.04.23 16:17:44 +0530 (Kanika Agarwal) CJ-01/(South) Saket Court/New Delhi CS SCJ 85/22 FORIN CONTAINERLINE PVT.LTD. Vs. INTERBLOCCO FURNITURE cargo. It is stated that defendants never agreed to pay / clear the invoice dated 29.05.2021 i.e. Ex. PW1/2. It is stated that the stuffed container was provided by defendant to carrier on or about 12.03.2021 and it was loaded on vessel on or about 17.04.2021. It is stated that the delay / gap (for the period 12.03.2021 to 22.03.2021) was due to delay in submission of shipping instructions by defendants. It is stated that the delay / gap (for the period 22.03.2021 to 17.04.2021) was due to unavailability of vessel with the carrier / MSC. It is stated that the credit note referred to by plaintiff talks about the credit note that plaintiff was to receive from shipping line/ MSC. It is stated that they had shifted their stand from offering credit to demanding payment from 23.09.2021 (mail) to legal notice (04.10.2021) because the shipping line had refused them any waiver. It is stated that the shipping line issues waiver on detention charges as a business practice considering the relations between parties. It is denied that there is no privity of contract between the parties. It is further denied that defendants are not liable for any claim. It is denied that defendants never approached plaintiff. It is denied that plaintiff is liable for late submission of shipping instructions. It is further denied that freight and carriage were the responsibility of consignee in Mexico. It is denied that defendants are not liable for any payment since MSC (shipping line) account has been settled. It is further denied that plaintiff has not made any payment to shipping line MSC. It is denied that the suit of Digitally signed by KANIKA Page no. 9 of 25 KANIKA AGARWAL AGARWAL Date:
2024.04.23 16:17:50 +0530 (Kanika Agarwal) CJ-01/(South) Saket Court/New Delhi CS SCJ 85/22 FORIN CONTAINERLINE PVT.LTD. Vs. INTERBLOCCO FURNITURE plaintiff is frivolous because plaintiff has accepted to issue credit note to defendants under Ex. PW2/D1 (colly). It is denied that plaintiff has not paid any money to shipping line / MSC towards detention charges (all extra charges). It is denied that they have not placed on record any documentation / invoice with MSC pertaining to payment of detention charges by plaintiff. It is denied that whatever documentation was required from defendants was duly and timely provided to plaintiff. It is denied that delay has been caused by plaintiff only. PW2 cross-examination was concluded on 23.03.2023. Thereafter, vide separate statement of the AR of the plaintiff, plaintiff evidence was closed on 23.03.2023. DEFENDANT EVIDENCE
11. On the other hand, in support of its case, defendant has examined defendant no. 2 as DW1 and tendered his affidavit of evidence as Ex. DW1/A. He has relied upon following documents i.e. :-
(i) Ex. PW1/D1 i.e. mail dated 02.03.2021 received by defendants;
(ii) Ex. PW2/D1 i.e. mail dated 23.09.2021 at 05.04 PM and 05.27 PM;
(iii) Ex. DW1/1 i.e. copy of booking release order dated 08.03.2021;
(iv) Mark A i.e. copy of commercial invoice dated 03.03.2021 and incoterms obligations;
Digitally signed by KANIKA AGARWALKANIKA Date:
Page no. 10 of 25 AGARWAL 2024.04.23
16:17:55
+0530
(Kanika Agarwal)
CJ-01/(South) Saket Court/New Delhi
CS SCJ 85/22
FORIN CONTAINERLINE PVT.LTD. Vs. INTERBLOCCO FURNITURE
(v) Ex. DW1/3 i.e. certificate u/s 65B IEA.
12. DW1 during cross-examination has stated that he does not know since when the defendant no. 1 firm is doing business with the plaintiff company. It is stated that the terms and conditions agreed between defendant no. 1 & plaintiff was FOB with respect to the transaction in dispute. It is stated that he do not remember when the consignment was to be shipped to the defendant no. 1's buyer in Mexico. It is stated that he do not remember the date when the shipping documents were handed over by the defendant no. 1 to the plaintiff. It is admitted that the documents were handed over to the plaintiff by him on 22.03.2021 at 07.50 pm. It is stated that he do not know whether initially the shipment was to be sent to Mexico on 12.03.2021 as he was not dealing with the transaction personally and his manager was dealing with the plaintiff with regard to the transaction in dispute. It is admitted that the defendant is responsible for providing the documents to the plaintiff after custom clearance at the port. It is stated that the buyer has no role in providing the documents to the plaintiff. It is admitted that the shipment was FOB and he was to pay inland hollage charges and custom clearance charges. It is admitted that they have not paid any amount to the plaintiff for the shipment in dispute. It is stated that they have asked the defendant to issue credit note for the excess amount they have billed so that they can release the balance payment of Rs. 27,753/- Ex. PW1/2 (colly) (page 18). It is denied that the defendants are Digitally signed by KANIKA Page no. 11 of 25 KANIKA AGARWAL AGARWAL Date:
2024.04.23 16:18:00 +0530 (Kanika Agarwal) CJ-01/(South) Saket Court/New Delhi CS SCJ 85/22 FORIN CONTAINERLINE PVT.LTD. Vs. INTERBLOCCO FURNITURE liable to pay the invoice amount towards delay in submissions of documents by the defendant to the plaintiff. It is admitted that the plaintiff has not sent any credit note along with the e-mail dated 23.09.2021. It is further admitted that the e-mail mentioned giving the credit note on the partner agreed to pay the rest of the amount. It is admitted that the defendants have not taken any action for recovery of the credit note from the plaintiff. It is stated that the defendants were only informed that the ship has been cancelled or the ship has been missed on e-mails. It is stated that they only exchanged e-mails and he do not remember any specific e-mail. It is admitted that the shipping documents were forwarded to the plaintiff vide e-mail dated 22.03.2021 at page 37 in Ex. PW2/2 (colly). It is admitted that the defendants have received the e-mail dated 07.04.2021 at page 30 in Ex. PW2/2 (colly) with regard to the vessel being skipped by the shipping line. It is admitted that the defendants was also informed about the next available vessel on 17.04.2021 by the plaintiff vide e-mail dated 14.04.2021 at page 32 in Ex. PW2/2 (colly). DW1 cross-examination was concluded on 23.08.2023.
Thereafter, vide separate statement of defendant no. 2, defence evidence was closed on 23.08.2023 and matter was fixed for final arguments.
FINAL ARGUMENTS
13. Final arguments advanced by both parties were heard on 05.04.2024. The file has been carefully and minutely perused and Digitally signed by KANIKA AGARWAL Page no. 12 of 25 KANIKA Date:
AGARWAL 2024.04.23 16:18:05 +0530 (Kanika Agarwal) CJ-01/(South) Saket Court/New Delhi CS SCJ 85/22 FORIN CONTAINERLINE PVT.LTD. Vs. INTERBLOCCO FURNITURE my issue-wise findings with reasons thereof are as under :-ISSUE NO. 4
Whether plaintiff is not liable to claim any amount as he has admitted to issue credit notes for invoice bearing no. FCD/ FY22/000558 dated 29.05.2021? OPD
14. This issue is decided first as it will have its bearing on other issues. One of the defence being taken by the defendant is that the plaintiff had admitted vide e-mail dated 23.09.2021 Ex. PW2/D1 that they would issue credit note qua invoice bearing no. FCD2/FY22/000558 Ex. PW1/2 (colly) as plaintiff's partner has agreed to pay the detention charges. The e-mail Ex. PW1/2 (colly) shows that the plaintiff has merely informed the defendant that they would issue credit note to the defendant as the carrier / shipping line had agreed to pay the rest of the charges. However, the plaintiff in his cross-examination dated 23.03.2023 has clarified that credit note was not issued to the defendant as their partner did not accept the waiver of detention charges. Since the burden was upon the defendant, therefore, it was their duty to prove that plaintiffs were issued credit note with respect to invoice dated 29.05.2021 Ex. PW1/2 (colly) and the plaintiff are malafidely claimed the detention charges from the defendant. Hence, for the reasons as mentioned above, issue no. 3 is decided against the defendant and in favour of the plaintiff.
Digitally signed by KANIKA AGARWALKANIKA Date:
AGARWAL 2024.04.23 Page no. 13 of 25 16:18:12 +0530 (Kanika Agarwal) CJ-01/(South) Saket Court/New Delhi CS SCJ 85/22 FORIN CONTAINERLINE PVT.LTD. Vs. INTERBLOCCO FURNITURE ISSUE NO. 1 Whether plaintiff is entitled to decree of Rs. 2,44,306.96/- as claimed? OPP AND ISSUE NO. 2 Whether plaintiff is entitled to any future interest, if so, at what rate? OPP
15. Both these issues being interconnected are taken up together. The burden of proof is upon the plaintiff to establish that plaintiff company is entitled for recovery of amount of Rs. 2,44,306.96/-. In nutshell, it is the case of the plaintiff that defendant had approached the plaintiff to provide ocean freight services for transport of goods from India to Mexico. Accordingly, the plaintiff offered services to the defendant for shipment of the goods and two invoices were raised upon the defendant i.e. invoice dated 29.05.2021 for an amount of Rs. 2,16,553.36/- and another invoice dated 06.04.2021 for Rs. 27,753.60/- Ex. PW1/2 (colly). However, the defendant has failed to discharge its obligation to pay the amount of Rs. 2,44,306.96/- along with contractual rate of interest @ 24% as stipulated in the invoices. Hence, the present suit is filed.
16. Per contra, Ld. Counsel for defendant has claimed that the plaintiff has filed the present suit by suppressing material facts and on conjectures and surmises. It is stated that there is no privity of contract between the plaintiff and the defendant as the defendant Digitally signed by KANIKA AGARWAL KANIKA Page no. 14 of 25 Date:
AGARWAL 2024.04.23 16:18:18 +0530 (Kanika Agarwal) CJ-01/(South) Saket Court/New Delhi CS SCJ 85/22 FORIN CONTAINERLINE PVT.LTD. Vs. INTERBLOCCO FURNITURE was appointed / nominated as the transporter/ agent from handling the shipment from India to Mexico by the buyer of defendant no. 1 i.e. M/s Decorcaciones Dupuis S.A. Dev C.V. Further, it is claimed that the plaintiff has failed to discharge their duty as nominated agent in a proper and timely manner. It is stated that plaintiff was obligated to ensure smooth and timely shipping of cargo by ensuring submission of documentation to shipping line (i.e. the carrier). It is stated that the plaintiff did not submit the documents on time to the shipping line, therefore, the exorbitant detention charges have been levied upon the plaintiff by the carrier. Further, it is submitted that as per International Commercial Terms (INCOTerms), the responsibility of freight and carriage are of buyer in Mexico who had appointed plaintiff and not of defendant. It is stated that the container containing shipment in question had reached port of loading at Mundra, Gujarat on 18.03.2021, however, it missed three vessels and was finally loaded and discharged on 17.04.2021 due to delay by the plaintiff in the submission of shipping instructions documents with the carrier. It is claimed that plaintiff has tried to shrug off the liability and pass their liability upon the defendant by way of the present suit. It is further stated that the plaintiff vide e- mail dated 23.09.2021 has admitted that plaintiff's partner has agreed to issue credit note for the invoice bearing no. FCD/ FY22/000558 dated 29.05.2021 for an amount of Rs. 2,16,553.36/- Ex. PW1/2 (colly) and in view of the same, the plaintiff cannot now Digitally signed by KANIKA Page no. 15 of 25 KANIKA AGARWAL Date:
AGARWAL 2024.04.23 16:18:22 +0530 (Kanika Agarwal) CJ-01/(South) Saket Court/New Delhi CS SCJ 85/22 FORIN CONTAINERLINE PVT.LTD. Vs. INTERBLOCCO FURNITURE claim the amount from the defendant.
17. The plaintiff has primarily relied upon the invoice dated 06.04.2021 and 29.05.2021 Ex. PW1/2 (colly) and copy of e- mails correspondence Ex. PW2/2 between the plaintiff and defendant and booking release order dated 08.03.2021 Ex. DW1/1 to demonstrate the liability of the defendants and to show that the detention charges were imposed due to delay of submissions of shipping instructions and other documents by the defendant. Booking release order dated 08.03.2021 shows that estimated time of arrival of vessel as 12.03.2021. Thus, it is evident from the booking release order that all the required documents were to be submitted prior to 12.03.2021. Further, the special instructions attached to the booking release order dated 08.03.2021 Ex. DW1/1 stipulates that custom clearance with respect to containers to be shipped is to obtained within free time failing which the detention charges shall be levied.
18. Now, the court deems it fit to refer to various e-mails placed on record by the plaintiff. E-mail dated 12.03.2021 Ex. PW2/2 (colly) sent by the plaintiff company to the defendant firm would show that the defendant firm was requested to submit shipping instructions along with other relevant documents. Thus, it is evident that till 12.03.2021, the required documents were not submitted by the defendant. Another e-mail dated 15.03.2021 shows that the defendants were again reminded by the plaintiff to share Bill Digitally signed by KANIKA KANIKA AGARWAL Page no. 16 of 25 AGARWAL Date:
2024.04.23 16:18:27 +0530 (Kanika Agarwal) CJ-01/(South) Saket Court/New Delhi CS SCJ 85/22 FORIN CONTAINERLINE PVT.LTD. Vs. INTERBLOCCO FURNITURE of Lading which form part of shipping instructions and same were supplied to the plaintiff by the defendant vide e-mail dated 22.03.2021. Vide another e-mail dated 25.03.2021, the plaintiff had informed the defendant of tentative estimated date of shipment of goods on 04.04.2021. Vide another e-mail dated 07.04.2021, the defendant was apprised that the vessel scheduled for 04.04.2021 was skipped by the shipping line. Further, vide e-mail dated
19.04.2021, the plaintiff was finally apprised of date of shipment of goods on 17.04.2021.
19. All these e-mails as referred above shows that it was only on 22.04.2021 that the defendant had supplied the necessary documents required for shipment of goods to the plaintiff.
20. The defendant during the final arguments have raised the contention that there is no explanation by the plaintiff to explain why the goods could not be shipped between 22.03.2021 and 17.04.2021. With respect to these arguments, it is important to refer to the cross-examination of PW2 Sh. Sunil Kashyap dated 23.03.2023 wherein the witness has stated that the goods were shipped on 17.04.2021 due to unavailability of the vessel with the shipping line/ MSC. It is important to note that the plaintiff has also placed on record an e-mail dated 07.04.2021 whereby the defendants were informed that the vessel scheduled for 04.04.2021 was skipped by the shipping line/ MSC. No cogent evidence has been led by the defendant to show that there were several vessels Digitally signed by KANIKA KANIKA AGARWAL Page no. 17 of 25 AGARWAL Date:
2024.04.23 16:18:32 +0530 (Kanika Agarwal) CJ-01/(South) Saket Court/New Delhi CS SCJ 85/22 FORIN CONTAINERLINE PVT.LTD. Vs. INTERBLOCCO FURNITURE available between 22.03.2021 to 17.04.2021 and it was due to delay in submission of the documents by the plaintiff after receiving the same on 22.02.2021with the shipping line that the goods could not be shipped on time.
21. In the opinion of the court, the onus upon the plaintiff was discharged the moment the defendant have admitted to avail the services of the plaintiff for shipment of their goods. The defendants have only challenged their alleged liability to pay the bills as their opinion, the detention charges were levied due to inability of the plaintiff to submit the documents with the shipping line on time.
However, no evidence has been led by the defendant to show carelessness or negligence on the part of the defendant.
22. Further, from the e-mails Ex. PW2/2 (colly) as discussed above, it is evident that the defendants were all along kept in loop with respect to the tentative date for shipment of goods. In none of the e-mails exchanged between the parties, the defendant has questioned the plaintiff with respect to alleged delay on part of the plaintiff. From e-mail dated 22.03.2024, it is evident that the goods could not be shipped between 12.03.2021 till 22.03.2021 as the necessary documents were supplied by the defendant on 22.03.2021 only. The defendants were duly apprised by the plaintiff vide e-mail dated 07.04.2021 that the goods could not shipped on 04.04.2021 as vessel was skipped by the shipping line, however, still no query or concern was ever raised by the defendant. Further, Digitally signed by KANIKA AGARWAL KANIKA Page no. 18 of 25 Date:
AGARWAL 2024.04.23 16:18:37 +0530 (Kanika Agarwal) CJ-01/(South) Saket Court/New Delhi CS SCJ 85/22 FORIN CONTAINERLINE PVT.LTD. Vs. INTERBLOCCO FURNITURE the defendant being regular exporter of goods cannot be given a benefit of doubt that they were not aware of the concept of detention charges by the shipping line if goods are not shipped within the free time/stipulated time period
23. Further, as far as claim of plaintiff with respect to there being no privity of contract between the plaintiff and defendant is concerned, it is an admitted fact that the defendant was appointed by the buyer of the defendant. It is also an admitted fact that the goods which were to be shipped/ transported in Mexico belonged to defendants. Further, from the e-mails Ex. PW2/2 (colly) as discussed above, it can be inferred that even the defendants have not challenged to appointment of defendant as agent for ensuring transportation of goods from India to Mexico. Further, it is evident that plaintiff was continuously following up with the defendant with respect to shipment of goods from India to Mexico. Also, it is not disputed that the sale of goods by the defendant to the buyer in Mexico was by way of free on board contract. It is a settled practice that in free of board contracts, it is usually the buyer who nominates the ship upon which the goods are to be boarded and it is the duty of the seller alone to put goods safely on board and meet the cost of doing it. In these circumstances, it can not be held that there is no privity of contract between plaintiff and defendant.
24. In this context, the court deems it fit to refer to judgment of Hon'ble Supreme Court of India in M/S Bawa Paulins Digitally signed by KANIKA AGARWAL KANIKA Page no. 19 of 25 Date:
AGARWAL 2024.04.23 16:18:42 +0530 (Kanika Agarwal) CJ-01/(South) Saket Court/New Delhi CS SCJ 85/22 FORIN CONTAINERLINE PVT.LTD. Vs. INTERBLOCCO FURNITURE Pvt. Ltd. vs Ups Freight Services (India) Pvt. Ltd.SLP (Civil) No. 16722 of 2015 decided on 10.11.2022 wherein it has been held as under:-
"30. In the instant case, the sale of goods was through a 'FOB' contract. 'FOB' contract means a contract "Free on Board". By such a contract the seller is to put on board at his own expenses which means this is a contract for sale of goods to be delivered free on board a ship. The buyer must name the ship upon which they are to be delivered and the seller must put them safely on board, meet the cost of doing so and for the buyer's protection, give possession of them to the ship only upon the terms of a reasonable and ordinary bill of lading or other contract of carriage; there the contractual liability of the seller as seller ceases and delivery to the buyer is complete as far as he is concerned.
The goods are then at the risk of the buyer, he is responsible for the freight, and subject to the seller reserving the right of disposal, the property passes to the buyer. The price being payable against the bill of lading, they are at the risk of the buyer and he must pay the price on presentment of the bill of lading even if the goods have been lost.
31. Under the 'FOB' contract the seller is under no duty to make advance arrangements for shipping the goods or to bear any expense beyond that of putting the Digitally signed by KANIKA AGARWAL KANIKA Date:
AGARWAL 2024.04.23 Page no. 20 of 25 16:18:48 +0530 (Kanika Agarwal) CJ-01/(South) Saket Court/New Delhi CS SCJ 85/22 FORIN CONTAINERLINE PVT.LTD. Vs. INTERBLOCCO FURNITURE goods on board. That while putting the goods on board the seller is directly a party to the contract of carriage and he may be bound to get the bill of lading issued in buyer's name on the terms usual in the trade."
25. From the above, it is clear that under a free on board contract, the seller is under duty to put the goods safely on a ship and bear the expenses for the same. Thus, until the goods are boarded, every expenses is to be borne by the seller only.
26. Next, the contention raised by the defendant was that the defendants have not paid any detention charges to the shipping line and they are falsely claiming the same from the defendants. At this stage, it is important to refer to the cross-examination of PW2 Sh. Sunil Kashyap dated 23.03.2023 where the plaintiff has stated that the detention charges which have been levied upon them by the shipping line have been forwarded to the defendants. In the same cross-examination, the PW2 was also confronted with the e-mail dated 23.09.2021 Ex. PW2/D1 (Colly) wherein the plaintiff had informed the defendant that they will issue credit note with respect to invoice no. FCDL/FY22/000558 Ex. PW1/2 (colly) as their partner have agreed to issue the same. On the basis of this e-mail dated 23.09.2021, the defendants were trying to establish that the shipping line has already issued credit note to the plaintiff with respect to the said invoice and therefore, the defendants are not Digitally signed by KANIKA AGARWAL KANIKA Page no. 21 of 25 Date:
AGARWAL 2024.04.23 16:18:53 +0530 (Kanika Agarwal) CJ-01/(South) Saket Court/New Delhi CS SCJ 85/22 FORIN CONTAINERLINE PVT.LTD. Vs. INTERBLOCCO FURNITURE liable to pay the same. PW2 in his cross-examination dated 23.03.2023 has deposed that since the shipping line had refused to waive off the detention charges, therefore, the demand for payment of detention charges was raised against the defendant. Since the defendants have taken the stand that the detention charges were waived off by the shipping line, therefore, it was their duty to prove the same. However, no evidence has been led by the defendant to that effect. For these reasons, the court holds that the plaintiff has successfully proved its claim for recovery of amount of Rs...
27. The plaintiff has also claimed interest @ 24% per annum till the payment of the invoice amount. It is not specifically mentioned by the plaintiff as to from which date the plaintiff company is demanding the interest. Perusal of invoices in question Ex. PW1/2 (colly) shows that as per the terms and conditions of the invoices in question, the plaintiff is entitled to charge interest @ 2% per month in case of late payment. In the opinion of the court, the interest stipulated is excessive and exorbitant, therefore, on equitable grounds, the court deems it fit to reduce it to 12% per annum to be paid from date of filing of the suit till its actual realization.
28. In view of the discussion above, the court is of the opinion that the plaintiff has been able to prove the case on the scale of balance of probabilities. Accordingly, issue no. 1 and 2 are decided in favour of the plaintiff and against the defendant.Digitally signed
Page no. 22 of 25 by KANIKA KANIKA AGARWAL AGARWAL Date:
2024.04.23 16:18:59 +0530 (Kanika Agarwal) CJ-01/(South) Saket Court/New Delhi CS SCJ 85/22 FORIN CONTAINERLINE PVT.LTD. Vs. INTERBLOCCO FURNITURE ISSUE NO. 3 Whether the present suit is bad in law for misjoinder of parties?
OPD
29. The onus to prove this issue is upon the defendant. Ld. Counsel for defendant have taken a strong objection for impleadment of all the partners of defendant as partnership firm as defendant in the present case on grounds that impleadment of all the partners is not necessary when the partnership firm is already impleaded in light of Order 30 Rule 1 CPC.
30. At the outset, court deems it fit to refer to Order 30 Rule 1 CPC.
"1. Suing of partners in name of firm.- (1) Any two or more persons claiming or being liable as partners and carrying on business in India may sue or be sued in the name of the firm (if any) of which such persons were partners at the time of the accruing the cause of action, and any party to a suit may in such case apply to the court for a statement of the names and addresses of the persons who were, at the time of the accruing of the cause of action, partners in such firm, to be furnished and verified in such manner as the court may direct.
(2) Where persons sue or are sued as partners in the name of their firm under sub-rule (1), it shall, in the case of any Digitally signed by KANIKA AGARWAL KANIKA Page no. 23 of 25 Date:
AGARWAL 2024.04.23 16:19:03 +0530 (Kanika Agarwal) CJ-01/(South) Saket Court/New Delhi CS SCJ 85/22 FORIN CONTAINERLINE PVT.LTD. Vs. INTERBLOCCO FURNITURE pleading or other document required by or under this Code to be signed, verified or certified by the plaintiff or the defendant, suffice if such pleading or other document is signed, verified or certified by any one of such persons."
31. From the above, it is clear that partners of the firm may be sued in the name of the firm and impleadment of all the partners as such is not necessary when the suit is filed against the firm. Order 30 Rule 1 CPC enable the partners of the partnership to sue or to be sued in to name of the firm. Be that as it may, in the opinion of the court even if all the partners are impleaded as a matter of abundant caution, there is nothing irregular about it unless it can be proved by the defendants that there exists no cause of action against the partners or some of the partners. No steps have been taken by the defendant to prove that no cause of action against the defendant no. 2 to 5 or that the transaction in question did not take place during their tenure as partners. Hence, in the opinion of the court, defendant no. 2 to 5 are severally and jointly liable for the liability in question. Hence, for the reasons as mentioned above, issue no. 3 is decided against the defendant and in favour of the plaintiff.ISSUE NO. 5
Relief
32. In light of the aforesaid discussion, the suit of the plaintiff is decreed to the effect that defendants are severally and Digitally signed by KANIKA AGARWAL KANIKA Page no. 24 of 25 Date:
AGARWAL 2024.04.23 16:19:07 +0530 (Kanika Agarwal) CJ-01/(South) Saket Court/New Delhi CS SCJ 85/22 FORIN CONTAINERLINE PVT.LTD. Vs. INTERBLOCCO FURNITURE jointly liable to pay sum of Rs. 2,44,306.96/- as on 29.05.2021 along with pendente lite and future interest @ 12% per annum from filing of suit till its actual realization.
33. Cost of the suit is also awarded in favour of the plain- tiff.
34. Decree Sheet be accordingly prepared.
35. File be consigned to record room thereafter. Pronounced in open court:
Digitally signedby KANIKA KANIKA AGARWAL AGARWAL Date: 2024.04.23 Dated: 23.04.2024 16:19:13 +0530 (Kanika Agarwal) CJ-01(South)Saket/New Delhi/23.04.2024 Note :-This judgment contains twenty five pages and all the pages have been checked and signed by me. Digitally signed by KANIKA AGARWAL KANIKA Date:
AGARWAL 2024.04.23 16:19:17 +0530 (Kanika Agarwal) CJ-01(South)Saket/New Delhi/23.04.2024 Digitally signed by KANIKA AGARWAL KANIKA Date:
AGARWAL 2024.04.23
Page no. 25 of 25 16:19:23
+0530
(Kanika Agarwal)
CJ-01/(South) Saket Court/New Delhi