Delhi District Court
vs M/S. Triton Logistics And Maritime P. ... on 22 March, 2010
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IN THE COURT OF SH DHEERAJ MOR, CIVIL JUDGE, TIS HAZARI
COURTS, DELHI
Suit No. 378/03
M/s. Gora Mal Hari Ram Limited,
With its registered office at
39, Rama Road, Najafgarh Road,
Industrial Area, New Delhi110015.
Plaintiff.
V/s
M/s. Triton Logistics and Maritime P. Ltd.
34/A, Walchand Hirachand Marg,
Opp. Rex Chambers,
Ballard Estate,
Mumbai 400 0038.
Defendant
SUIT FOR RECOVERY OF RS. 21,945/
Date of Institution : 25.11.2003
Date of Judgment : 22.03.2010
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J U D G M E N T :
This judgment shall dispose of the suit for recovery of Rs. 21,945/
filed by the plaintiff against the defendant.
2. The brief facts of the case as averred by the plaintiff are that the
plaintiff is a public limited company duly registered with the Registrar of the
Companies, New Delhi with its registered office at 39, Rama Road, Najafgarh
Road, Industrial Area, New Delhi. Sh. Vinod Kumar is the director of the
plaintiff company who is authorised to institute the present suit and to sign and
verify the pleadings thereof. It is further asserted by the plaintiff that they
booked consignment of Palm Acid Oil from Port Klang, Malaysia which was
brought from Nhava Sheva to ICD, Tughlaqabad and defendant acted as the
agent for Inter Asia Lines Limited, Singapore. The defendant was entitled to
charge inland haulage charges(IHC), however, they charged Rs. 33,600/ per
container which was excessive and was not in accordance with the normal
charges paid in the normal course of business to the other shipping lines and
their agents.
3. The plaintiff has asserted that normal haulage charges vary between
Rs. 22,000/ to Rs. 23,150/ per container. However, the defendant charged Rs.
10,500/ per container over and extra charge than that of normal shipping
lines. The consignment consisted of two containers and therefore, amount of
Rs. 21,000/ was excessively charged from the plaintiff. The plaintiff has
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averred that they had written various letters to the defendant for taking up the
matter of over charging of the haulage charges. However, the defendant has
replied to the said various letters and in the reply they have stated that they
have received instructions from their principal i.e. Inter Asia Line Limited,
Singapore to collect IHC @ US $ 700 per container. It is further asserted that in
reply the defendant did not produce the said instructions and stated that the
said instructions are internal matter of the company and therefore, cannot be
disclosed.
3. It is asserted by the plaintiff that they wrote to Sky Line Cargo
Agents Private Limited Licensed Custom House Agents and took up this matter
with them. The said agents by their letter dated 01.07.03 addressed to
defendant and copy endorsed to the plaintiff explained the position of IHC
which were being paid under the normal course of business relation with
shipping agents. Vide said letter they categorically asserted that the defendant
has charged Rs. 10,500/ per container over and extra charge on the normal
IHC. The plaintiff has affirmed that despite several written communications to
the defendant, they failed to refund the extra IHC which they over charged on
the aforesaid consignment. Therefore, the present suit for recovery of Rs.
21,945/ was filed by the plaintiff against the defendant.
4. The notice of the present suit was served upon the defendant.
Defendant filed his WS and in his WS he has controverted the claim of the
plaintiff on the ground that this court does not have territorial jurisdiction to try
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the suit and the suit is barred U/s 230 of Contract Act, 1872. The defendant has
further rebutted the claims of plaintiff and has contended that the plaintiff is
not entitled to the recovery of the claimed amount. In the WS the defendant
has contended that defendant has its own rates which are fixed as per the
directions received from its principal from time to time and the said rates are
not dependent on what the other shipping lines are charging their customers.
It has been further contended that plaintiff must have ascertained before hand
as to what was the rate charged by the defendant and if the same did not suit
the plaintiff, it had full liberty to take the delivery of the shippment at Nhava
Sheva and to transport the containers by making alternate arrangements. It is
therefore submitted by the defendant that they have charged in accordance
with the rate fixed by their principal and no excessive or extra IHC was charged
from the plaintiff. Hence, the present suit is without cause of action and
therefore, should be dismissed.
5. Replication on behalf of plaintiff to the WS of defendant is filed and
in the said replication the plaintiff has reiterated and reaffirmed its stand that
was taken by in its plaint. In the replication the plaintiff has countered the
contentions of the defendant and has pleaded that the consignment was
delivered at Delhi, payment of IHC was made at Delhi and the order was also
booked from Delhi, therefore, this court has territorial jurisdiction to entertain
the suit.
6. From the pleadings following issues were framed by the Ld.
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Predecessor of this court on 21.12.2004:
1.Whether the suit of the plaintiff is not maintainable in its present form? OPD.
2. Whether this court has no territorial jurisdiction to entertain the present suit? OPD.
3. Whether the plaintiff is entitled for the recovery of the amount claimed if so at what rate of interest and for which period? OPP.
4. Relief.
On 02.06.05 an application U/o 14 rule 5 CPC of the defendant was allowed and therefore, following two additional issues were framed and the fourth issue of the original issues was renumbered as follows:
4. Whether the plaint has been signed, verified and instituted by a duly authorised person? OPP.
5. Whether the suit of the plaintiff is barred against the defendant under Section 230 of the Contract Act? OPD.
6. Relief.
7. Thereafter, suit proceeded for plaintiff evidence. In order to substantiate its claim plaintiff has examined PW1 Sh. Arun Sharma and he has tendered his affidavit as EX PW 1/X. In his examinationinchief PW1 proved letter dated 27.06.03, dated 05.07.03 and 12.07.03 written to the defendant as EX PW 1/1 to EX PW 1/3 respectively. Vide said letters plaintiff claimed refund of 6 the excess/over charges of IHC from the defendant. PW1 exhibited legal notice dated 22.07.03 issued to the defendant by the counsel of the plaintiff for demand of refund of extra charges and the same is exhibited as EX PW 1/7. The AD card and receipt of said notice are exhibited as EX PW 1/8 and EX PW 1/9 respectively. The PW1 has also testified that a notice U/o 12 rule 8 CPC r/w Section 65 (e) of the Evidence Act was served upon the defendant. The said notice and its courier receipt are exhibited as EX PW 1/4 and EX PW 1/5 respectively. The certificate of incorporation of the plaintiff company dated 22.11.1964 is exhibited as EX PW 1/10, the resolution deed dated 20.05.1985 passed in the board meeting is exhibited as EX PW 1/11 and the resolution dated 10.02.1992 whereby PW1 was authorised to verify and file the present suit is exhibited as EX PW 1/12. The PW1 has also proved the letter dated 14.07.03 issued by the defendant to the plaintiff wherein the defendant has stated that they cannot produce the instructions received from the Inter Asia Lines Ltd. as it is an internal matter of the company In his examinationin chief, the PW1 testified that plaintiff company is entitled to receive amount of Rs. 21,000/ with interest from the defendant as over/extra charge on IHC. He has reiterated the contentions of plaintiff company in the plaint and thereafter he was cross examined by the Counsel for defendant. Thereafter, plaintiff evidence was closed on 05.03.08 on the basis of the statement of Counsel for plaintiff and the suit proceeded for defendant evidence.
8. The defendants to controvert the claim of the plaintiff and to prove its case examined DW1 Sh. Jose Antony. He has tendered his affidavit in his 7 examinationinchief and same is exhibited as EX DW1/A. In his examination inchief DW1 has relied upon EX PW1/6 and EX PW1/D1 to state that they have already explained the basis of their freight charges to the plaintiff vide the aforementioned documents. In his examinationinchief, he has testified that he is the executive (operations) of the defendant company and therefore, conversant with the facts and circumstances of the instant case. In his testimony DW1 has deposed that they have charged IHC on the basis of rate as per their normal tariff and the plaintiff is not entitled to recovery of the claimed amount. IN the crossexamination of DW1 the bill of lading was exhibited as Ex. DW1/P1.The said witness was cross examination by the Counsel for plaintiff and thereafter, DE was closed on 21.10.09 on the basis of the statement of the Counsel for defendant and then, the suit proceeded to final arguments.
9. I have heard the arguments of the counsel for both the parties and have gone through the case file carefully.
My issue wise findings are as follows:
10. Issues no. 1& 2 The issues no. 1 & 2 are hereby taken together as they are interrelated and common evidence was required to be led by the defendant to prove the said issues.
8The onus of proving these issues lies on the defendant. The defendant has not led any evidence to substantiate the said issues. Moreover, the plaintiff in his arguments has pleaded that the order was made from Delhi, the consignment was delivered at Delhi and the payment was also made at Delhi, therefore, cause of action has arisen at Delhi and therefore, this court has territorial jurisdiction to try this suit. The aforesaid contentions of the plaintiff are convincing as the DW1 has not uttered even a single word to counter the averment of the plaintiff in respect of territorial jurisdiction. Further, PW1 was not cross examined in respect of the territorial jurisdiction of this court, therefore, the averrment of PW1 in respect of territorial jurisdiction of this court has remained unrebutted and unchallenged. Moreover, as per the deposition of PW1 the freight charges were paid at Delhi, therefore, cause of action for the recovery of excess/over freight charges has arisen at Delhi. In addition to that, onus of proving the said issues regarding the non maintainability of the present suit on the basis of improper form and territorial jurisdiction lies on the defendant who has failed to discharge his onus. Further, preponderance of the probability also lies in the favour of the plaintiff.
In view of the above discussion the present issues are decided in favour of the plaintiff and against the defendant.
11. Issue no. 3 The onus of proving this issue lies on the plaintiff. The plaintiff has 9 examined PW1 to substantiate this issue. The only point of contention involved in the present suit is whether the defendant has over charged the plaintiff in respect of IHC or not. The plaintiff has failed to produce even a single documentary proof to establish as to what was the rate of charge for transportation of IHC prevalent at the relevant time. The PW1 in his deposition has vaguely stated that normal rate of IHC charged by the other shipping lines was between Rs. 22000/ to Rs. 23, 150/ per container and the said deposition is not supported by any documentary proof. Therefore, it has remained a bald assertion. In his deposition PW1 has given reference of another company namely, M/s Sky Line Cargo Agents Pvt. Ltd., New Delhi to establish that the said company is also of the view that defendant has charged Rs. 10, 500/ per container extra on the IHC. However, the plaintiff has not examined even a single authorised person from the said company to establish that the defendant company has overcharged IHC.
Besides that, if for the sake of arguments it is assumed that the other companies were charging rates between Rs. 22,000/ to Rs. 23,150/ per container for the IHC, even then also the liberty of the defendant cannot be curtailed to have their own tariff in respect of IHC. Rather the plaintiff should have ascertained the rates from the defendant before taking the services from the defendant. Once the plaintiff has decided to order transportation from the defendant company, then the plaintiff is bound by the tariff of the defendant company as it is a executed agreement wherein the defendant has performed his part of agreement subject to payment of charges of IHC in accordance with 10 the tariff of the defendant company. Further, in his cross examination the PW1 has admitted that there is no regulatory authority which fixes or finalise the freight that a company may charge for transportation of consignment from Mumbai to Delhi. Therefore, the rates of IHC can vary from company to company depending on quality of the service, responsibility of the company, quick, prompt and safe service rendered by the company. Moreover, the plaintiff had option to engage any other company for the transportation of the consignment but the plaintiff in its wisdom selected the defendant company. Hence, plaintiff is bound to pay IHC in accordance with the tariff of the defendant company. In the instant case the plaintiff has failed to prove that the charges claimed by the defendant was excessive and therefore, it is not entitled to recovery of the claimed amount In view of the above discussion the present issue is decided in favour of the defendant and against the plaintiff.
12. Issue no. 4 The onus of proving the present issue lies on the plaintiff. The plaintiff has placed on record the copy of the minutes of the Board Meeting of the plaintiff company held on 20.05.1985 and the same is exhibited as EX PW 1/11. As per the contents of the said EX PW 1/11, Sh. Viond Kumar, Director of the Company was authorised to represent the plaintiff company in the legal proceedings by or against the plaintiff company. The resolution of the plaintiff 11 company dated 10.02.1992 is exhibited as EX PW1/12 whereby Sh. Satya Pal and Sh. Vinod Kumar, the directors of the company, were authorised to represent the plaintiff company in all the legal proceedings by or against the company. Therefore, Sh. Vinod Kumar is duly authorised to verify, sign and institute the suit on behalf of the plaintiff company. The present suit has been filed, signed and verified by said Sh. Vinod Kumar who in the light of EXPW 1/11 and EX PW 1/12 is duly empowered and authorised to institute the present suit.
In view of the above discussion the present issue is decided in favour of the plaintiff and against the defendant.
13. Issue no. 5 The onus of proving the present issue lies on the defendant. The DW1 in his cross examination has testified that Inter Asia Lines Ltd. is the actual principal and defendnat is the agent.
Moreover, PW1 in his examinationinchief has testified that defendant is the agent of Inter Asia Lines Ltd, Singapore. Therefore, the plaintiff has themselves admitted that the defendant was acting as the agent of its principal i.e. Inter Asia Lines Ltd, Singapore. Section 58 of Indian Evidence Act, 1972 provides that facts admitted need not be proved. This Section deals with admission during trial as well as the admissions made in the pleadings. In the present case, the plaintiff company in their plaint as well as during their 12 evidence admitted that the defendant is the agent of Inter Asia Lines Limited, Singapore. Therefore, it is convincingly established that defendant acted as agent of Inter Asia Lines Limited, Singapore while dealing with the plaintiff company. This is also not the case of the plaintiff that principal of the defendant is undisclosed.
Section 230 of Indian Contract Act, 1872 provides that in the absence of any contract to that effect an agent cannot personally enforce contracts entered into by him on behalf of his principal nor he is personally bound by them. Therefore, the agent cannot be personally made liable for the contracts entered by him on behalf of his principal. In the instant case the defendant has entered into contract with the plaintiff in the capacity of the agent of his principal i.e. Inter Asia Lines Limited, Singapore. The plaintiff should have impleaded the said principal as one of the defendant for seeking relief of recovery of claimed amount, and therefore, it is a necessary party. A necessary party is the one whose presence is indispensable to the constitution of the suit and without whom no effective order can be passed. Therefore, the present suit is liable to be dismissed for nonjoinder of necessary parties.
In view of the above discussion the present issue is decided in favour of the defendant and against the plaintiff.
14. Relief: In view of the findings given in the above issues the suit of the 13 plaintiff is without merits and therefore, same is dismissed. The parties are to bear their own costs. File be consigned to record room after due compliance.
Announced in the open court ( Dheeraj Mor)
on 22.03.10 Civil Judge, North (IV)
Tis Hazari Courts, Delhi
22.03.10
This judgment consists of 12 pages and all the pages are duly signed by me.
(Dheeraj Mor) Civil Judge, North (IV) Tis Hazari Courts, Delhi 22.03.10 14 15