Delhi District Court
Sh. Laxmi Narain Yadav vs M/S. Tricon Shipping Pvt Ltd on 27 November, 2021
IN THE COURT OF SH. AJAY GARG,
ADDITIONAL DISTRICT JUDGE 01, NEW DELHI
DISTRICT, PATIALA HOUSE COURTS,
NEW DELHI
Suit No.58382/16
CNR no. DLND01006674206
Sh. Laxmi Narain Yadav
Prop. M/s ESS & BEE International
131, Village Kishan Garh,
Near Vasant Kunj,
New Delhi
........Plaintiff
Versus
M/s. Tricon Shipping Pvt Ltd
909, Surya Kiran Building,
K.G. Marg, Connaught Place,
New Delhi - 110 001
Through its Managing Director / Directors
Also at :
Rowther Chamber
53 & 55, Rajaji Salai, IV Floor,
Chennai - 600 001
.....Defendant
Plaint presented on: 03.10.2011
Arguments heard on: 11.11.2021
Judgment delivered on: 27.11.2021
EXPARTE JUDGMENT
1.Plaintiff has filed this suit against the defendant for recovery of Rs.52,38,667/.
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2. As per averments, the plaintiff is the sole proprietor and deals in manufacturing and trading of garments. It has been issued a Certificate of ImporterExporter (IEC) from the Ministry of Commerce and registered member of Apparel Export Promotion Council. It is having business dealings in India and abroad and one of its customer M/s Galeria Centrum is having its establishment in Poland.
3. Defendant is an incorporated private limited company managed and supervised by its Managing Director and directors and is carrying business of shipment of consignment to various destinations.
4. Plaintiff had earlier entrusted the defendant with one consignment for transportation to M/s Galeria Centrus, Poland through Fortis Bank Polska SA, Poland. At the time of entrustment of first consignment plaintiff had informed defendant that the first consignment from the same contract were linked in fashion garments. The first consignment of 20,465.57 Euro was entrusted to defendant on 23.01.2009 against TRIMS Challan no. 4115 dated 23.01.2009 and invoice no. 012/09 dated 07.01.2009. The same was delivered by defendant against its House Air Way bill no. HAWB 3476 dated 23.01.2009.
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5. Plaintiff entrusted the second consignment of 15,347.66 Euro to defendant against TRIMS Challan no. 4139 dated 24.02.2009, invoice no. 49/09 dated 09.02.2009 and invoice no. 27/09 dated 22.01.2009. The same was received by defendant and it issued House Air Way bill no. HAWB3485 dated 25.02.2009. Defendant was informed that the said consignments are time bound and to be reached at the destination in the given dates and time as the garments were of seasonal requirements. Plaitniff will suffer financial losses and will not be able to meet the commitments and targets.
6. It is averred that the freight charges of the first consignment was to be collected from the consignee while the freight charges of second consignment was prepaid to the defendant by the plaintiff to avoid any hassle and for timely delivery of the consignment. Upon enquiry regarding the second consignment defendant handed over a POD of the second consignment as delivered to consignee on 04.03.2009. When plaintiff did not get any response about the second consignment from consignee and the banker through whom the said consignment was to be delivered it came to its knowledge that the second consignment had not reached the destination and the defendant had made wrongful and false representation.
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7. It is averred that plaintiff personally visited Poland between 01.06.2009 to 04.06.2009 alongwith Sh. Sanjay of Vizzione (Buying Agency in India) and met consignee's Chief Executives. It was informed that the second consignment was not received by them and since both the consignments were coordinated and for a particular fashion period and the two consignments were containing part of the dress and were to be received together to make a complete dress therefore, the consignee declined to make payment of the first consignment to the plaintiff.
8. Plaintiff contacted Mr. Daniel Szudega the person of whom defendant had provided telephone and address, however, he informed that they will not release the said consignments. Due the said act of defendant, the plaintiff has suffered loss of both the consignments worth 20,465.57 Euro and 14,348 Euro alongwith Rs.61,764f/ as prepaid freight charges against the second consignment.
9. Plaintiff served legal notice dated 01.07.2009 calling upon the defendant to pay Rs.61,764/ towards prepaid freight charges of the second consignment and cost of both the consignments worth 35,814.35 EURO which is equivalent to Rs.23,27,924.95p alongwith interest. Defendant sent reply dated CS no. 56587/16 Laxmi Narain Yadav vs M/s Tricon Shipping Pvt Ltd Page no. 4 of 12 13.07.2009 admitting all the facts of the legal notice dated 01.07.2009 and reiterated that the second consignment was delivered by them to the consignee on 04.03.2009. Details of amount payable by defendant is enumerated in para no. 25. The same is reproduced as under :
a. Cost of the consignments worth Rs.23,27,924.95 35,814.23 Euro equivalent to INR Rs.23,27,924.95 @ Rs.65/ Per Euro b. Prepaid freight charges Rs.61,764.00 c. Expenditure as incurred by the Rs.3,00,000.00 plaintiff for visiting Poland Between 1.6.09 to 4.6.09 Total Rs.26,89,688.95 d. Interest @ 18% p.a. from Rs.10,48978.67 1.7.2009 to 31.8.2011 on Rs.26,89,688.95 Total Rs.37,38,667.62 e. Damages and compensation for Rs.15,00,000.00 loss of business, goodwill and future prospects, etc Grand Total Rs.52,38,667.00
10. Defendant put appearance through counsel on 19.04.2012 and filed written statement averring that the suit is not maintainable as it has not been framed as per the amended provision of CPC. The plaintiff has no locus standi as it has not suffered any CS no. 56587/16 Laxmi Narain Yadav vs M/s Tricon Shipping Pvt Ltd Page no. 5 of 12 loss nor there was deficiency of service as per The Carriage Act, 1972. Infact the plaintiff has to pay the dues regarding the second shipment which is still pending against plaintiff and plaintiff has to pay the same with interest.
11. It is averred that the defendant was not aware that the shipments were inter linked. The second consignment was prepaid but the money was to be paid by the consignee at the destination and consignee was Fortis Bank Polska Sa UL, Poland. As the consignee was bank and without the bank release order and only after clearing of the dues regarding the shipment, then only shipment will be released in favour of the buyer by the consignee bank. The consignment reached on time but it was the buyer who failed to pay the dues of the consignee bank
12. Replication to the written statement was filed on behalf of plaintiff wherein the contents of written statement were denied submitting that the suit is well within the legal parameters. At the time of handing over the second consignment, it was informed to the defendant that the said consignment was time bound and to be reached at the destination at the given date and time. Defendant had handed over to the plaintiff the POD of the second consignment showing the consignment delivered to the consignee. Plaintiff CS no. 56587/16 Laxmi Narain Yadav vs M/s Tricon Shipping Pvt Ltd Page no. 6 of 12 contacted the consignee and it was learnt by it that the second consignment did not reach its destination nor at all delivered to the consignee / banker. The averments made in the plaint were reiterated and reaffirmed.
13. No one appeared on behalf of the defendant.
Accordingly, vide order dated 29.04.2014, the defendant was proceeded exparte.
14. In order to substantiate its case, the plaintiff has examined Sh. Laxmi Narain Yadav, Proprietor as PW1, Sh. P.S.Pllai as PW2 and Sh. Sanjay Kumar as PW3.
15. PW1 Sh.Laxmi Narain Yadav tendered evidence by way of affidavit Ex. PW1/A. In his affidavit Ex. PW1/A, PW1 has reiterated the facts averred in the plaint and has placed reliance on the following documents:
i. Certificate of importerexporter code Mark A ii. Registration cum membership certificate Mark B iii. House Airway bill dated 23.01.2009 Ex. PW1/1 iv. Trim Challan No. 4115 dated 23.01.2009 Ex. PW1/2 v. Invoice dated 07.01.2009 alongwith packing list and other bank documents, certificate of origin issued by CS no. 56587/16 Laxmi Narain Yadav vs M/s Tricon Shipping Pvt Ltd Page no. 7 of 12 Textile Committee Ex. PW1/3 (Colly) vi. House Airway bill dated 25.02.2009 Ex. PW1/4 vii. Trim challan no. 4139 dated 24.02.2009 Ex. PW1/5 viii. Invoice dated 09.02.2009 and 22.01.2009 alongwith packing list and other bank documents, certificate of origin issued by Textile Committee Ex. PW1/6 (Colly) ix. Email received Ex. PW1/7 (colly) x. Statement of account showing the clearance of the payment to the defendant alongwith certificate prepared on the basis of the statement of account Ex.
PW1/8 (colly)
xi. Legal notice dated 01.07.2009 Ex. PW1/9
xii. Postal receipts Ex. PW1/10 (colly)
xiii. UPC Ex. PW1/11
xiv. AD card Ex. PW1/12
xv. Reply dated 13.07.2009 to the legal notice Ex. PW1/13
xvi. Another reply dated 15.07.2009 Ex. PW1/14
16. PW2 Sh. P. Sivan Pillai tendered evidence by way of affidavit Ex. PW2/A. In his affidavit Ex. PW2/A, PW2 has reiterated the facts averred in the plaint and has placed reliance on certificate u/s 65B of the Indian Evidence act Ex. PW2/1.CS no. 56587/16
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17. PW3 Sh. Sanjay Kumar working partner of plaintiff tendered evidence by way of affidavit Ex. PW3/A. He has reiterated the facts averred in the plaint.
18. The Court has heard Sh. Sanjay Rathi, ld counsel for the plaintiff and has gone through the record with his assistance.
19. The case of the plaintiff is that the plaintiff being the sole proprietor deals in manufacturing and trading of garments and has been issued a Certificate of ImporterExporter (IEC) and has business dealings in India and abroad and one of its customer M/s Galeria Centrum is having its establishment in Poland. The defendant is carrying business of shipment of consignment to various destinations. The plaintiff had earlier entrusted the defendant with one consignment for transportation to M/s Galeria Centrus, Poland through Fortis Bank Polska SA, Poland. At the time of entrustment of first consignment plaintiff had informed defendant that the first consignment from the same contract were linked in fashion garments. The first consignment of 20,465.57 Euro was entrusted to defendant on 23.01.2009 against TRIMS Challan no.
4115 dated 23.01.2009 and invoice no. 012/09 dated 07.01.2009. The same was delivered by defendant against its House Air Way bill no. HAWB3476 dated 23.01.2009.
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20. At the time of entrustment of second consignment plaintiff had informed defendant that the said consignments are time bound and to be reached at the destination in the given dates and time as the garments were of seasonal requirements or else Plaintiff will suffer financial losses and will not be able to meet the commitments and targets. Thereafter the plaintiff entrusted the second consignment of 15,347.66 Euro to defendant against TRIMS Challan no. 4139 dated 24.02.2009, invoice no. 49/09 dated 09.02.2009 and invoice no. 27/09 dated 22.01.2009. The same was received by defendant and it issued House Air Way bill no. HAWB 3485 dated 25.02.2009.
21. Upon enquiry regarding the second consignment defendant handed over a POD of the second consignment as delivered to consignee on 04.03.2009. When plaintiff did not get any response about the second consignment from consignee and the banker through whom the said consignment was to be delivered it came to its knowledge that the second consignment had not reached the destination and the defendant had made wrongful and false representation. Plaintiff personally visited Poland between 01.06.2009 to 04.06.2009 alongwith Sh. Sanjay of Vizzione (Buying Agency in India) and met consignee's Chief Executives. It was informed that the second consignment was not received by them CS no. 56587/16 Laxmi Narain Yadav vs M/s Tricon Shipping Pvt Ltd Page no. 10 of 12 and since both the consignments were coordinated and for a particular fashion period and the two consignments were containing part of the dress and were to be received together to make a complete dress therefore, the consignee declined to make payment of the first consignment to the plaintiff. Due the said act of defendant, the plaintiff has suffered loss of both the consignments worth 20,465.57 Euro and 14,348 Euro alongwith Rs.61,764/ as prepaid freight charges against the second consignment.
22. The defendant also did not bother to appear in the court after filing written statement and was proceeded exparte vide order dated 29.04.2014. Therefore, it can be safely presumed that the defendant had no real defence to put forth. The testimony of plaintiff witnesses have remained unrebutted and uncontroverted. Moreover, the case of the plaintiff is based on and substantiated by documentary evidence and books of accounts maintained in the ordinary course of business.
23. In exparte suits, where defendant does not file a written statement or does not appear to contest the case, the plaintiff proceeds on the basis that there is no real opposition to put forth. Hence, the plaintiff is required only to prove a prima facie case, which in my considered view has been successfully done by the CS no. 56587/16 Laxmi Narain Yadav vs M/s Tricon Shipping Pvt Ltd Page no. 11 of 12 plaintiff in this case. However, the plaintiff was unable to bring on record the documents i.e. ticket with regard to the trip undertaken by him to visit Poland w.e.f. 01.06.2009 to 04.06.2009 and further damages has also not been explained by the plaintiff. However, the Court is of the considered opinion that grant of interest @10% p.a. as well as costs would meet the ends of justice.
24. In view of the unrebutted and uncontroverted evidence adduced by the plaintiff, the Court holds that it has been successful in substantiating its case against the defendant and the plaintiff is held entitled to recovery of a sum of Rs. 23,89,688.95 (i.e. cost of both consignments and freight charges) alongwith interest @ rate of 10% p.a. from the date of filing of the suit till the date of its realization. Costs of the suit are also awarded to the plaintiff. Decree sheet be prepared accordingly.
File be consigned to the record room.
Pronounced in open Court
on 27.11.2021 (Ajay Garg)
Additional District Judge01,
New Delhi District,
Patiala House Courts,
New Delhi
CS no. 56587/16
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