Delhi District Court
M/S Chc Logistics (P) Ltd vs M/S Feather Touch Ceramics (P) Ltd on 9 October, 2018
IN THE COURT OF MS. NAINA
CIVIL JUDGE-04(W), TIS HAZARI COURTS DELHI.
CS SCJ No.7006/2016
M/s CHC Logistics (P) Ltd
A-29, Mangolpuri, Industrial Area
Phase-II, New Delhi
Through its Managing Director
Sh. Ramesh Chawla
.......... Plaintiff
Versus
M/s Feather Touch Ceramics (P) Ltd
4/14, West Patel Nagar, New Delhi
Through its Director
S.Surinder Singh Sethi
....... Defendant
SUIT FOR RECOVERY OF FREIGHT CHARGES OF GOODS
DELIVERED AMOUNTING TO RS. 2,69,920/- U/O XXXVII CPC
TOGETHER WITH INTEREST PENDENTELITE WITH COST
Date of Institution : 04.09.2010
Date of matter reserved for judgments : 13.09.2018
Date of Decision : 09.10.2018
CS SCJ No. 7006/17 Pages 1/22
JUDGMENT
CASE OF PLAINTIFF
1. The plaintiff has filed this suit for recovery of Rs.2,69, 960/- alongwith interest @ 24 % from the institution of the suit till realization. The case of the plaintiff is that the plaintiff is a company doing the business of transportation of goods all over India as a broker on commission basis on the goods/consignment under the goods receipt. Sh. Ramesh Chawla is the managing director of the plaintiff company and is competent and entitled to sign, verify and to file the present suit. The defendant is also a limited company and S. Surinder Singh is the director of the company who is looking after the affairs of the company.
2. The defendant company approached the plaintiff for transport of their goods to their destination, Delhi to Bombay and Bombay to Delhi. It is stated that it was settled between the parties that on to-pay basis goods/consignment payment will be made at destination at Bombay and the paid freight charges of the consignment and other expenses were to be paid by the defendant company at Delhi office to the plaintiff company after delivery of consignment at Bombay or Delhi office. The defendant company used to receive an acknowledgment of the goods and the authorized representative of the defendant passed the bills as freight charges and other expenses. It is averred that from April 2008 to 16.09.2010 the defendant company booked so many consignments on different dates to their destination which were duly received and acknowledged by the defendant company at their Bombay office or at Delhi office and the authorized representative of the defendant company CS SCJ No. 7006/17 Pages 2/22 issued acknowledgment receipt thereof and passed the bill of the consignment and the goods received by them. It is averred that plaintiff maintained a running account of freight charges of the consignment and expenses incurred by the plaintiff during the course of their business and an amount of Rs. 2,69,920/- is outstanding.
3. It is averred that the defendant company previously booked consignment with Chawla's Delite carriers (Regd) but later on plaintiff company took over M/s Chawla's Delite Carriers (Regd.) in the month of April 2009 alongwith the liability and assets of Chawla's Delite Carriers (Regd.) It is averred that the plaintiff had supplied the docket book to the defendant which was filed by the defendant company or its staff as per the instructions of the defendant company. It is averred that the plaintiff company requested many times to defendant company to clear the outstanding amount but the defendant company avoided to make the outstanding payment.
4. It is averred that on 19.04.2010, the defendant company book consignment for M/s Wrapster Food (P) Ltd to their destination on the assurance that at the time of delivery of consignment the defendant company will clear the outstanding amount of the plaintiff company but the defendant failed to fulfill its promise and no arrangements were made to clear the outstanding amount of the plaintiff company. Defendant requested the plaintiff to deliver the consignment/goods on credit basis. Plaintiff was ready to deliver the consignment booked on 19.04.2010 on cash payment of freight charges and other expenses, but no one from the defendant or addressee came forward to get the delivery of consignment on cash payment of freight charges and other expenses.
CS SCJ No. 7006/17 Pages 3/225. Plaintiff issued legal notice dated 20.08.2010 intimating the defendant company to take the delivery of the consignment/goods on cash payment but till now one has come to take the delivery of consignment. It is averred that in order to avoid and clear the outstanding amount of Rs.2,69,920/- of the plaintiff, the defendant started sending their goods through other transporter. Plaintiff got issued a legal notice dated 04.08.2010 through counsel which was received by the defendant company. But till now no payment was made by the defendant company. Thus, the plaintiff has filed this suit for recovery of the outstanding amount i.e. 2,69,920/- along with pendente lite and future interest and costs of the suit. Permission for sale of consignment dated 19.04.2010 which is still in the possession of the plaintiff has been sought, if the defendant does not want to take the delivery after payment, for adjustment of the sale proceeds towards the outstanding amount towards plaintiff.
CASE OF THE DEFENDANT
6. The defendant has taken preliminary objections that the suit has not been filed, signed and verified by a duly and competent authorized person and the suit is bad for misjoinder of cause of actions. It is averred that two different companies, one of the present plaintiff and second M/s Chawla's Delite Carrier (Regd) cannot by way of present suit claim certain amounts the dues of which the defendant denies. It is alleged that the documents filed by the plaintiff alongwith the plaint are forged and fabricated documents and the statement of account was never sent to the defendant. It is averred that the plaintiff has illegally, without any CS SCJ No. 7006/17 Pages 4/22 reason withheld the delivery of goods supplied by the defendants to its buyers. The defendant has filed a suit for recovery of the price of the goods as well as damages.
7. It is submitted that on all the goods receipts/transport receipts, it is clearly mentioned as to who is to make the payment, I.e the whether the consignor or the consignee and that once the goods are dispatched there is no question of any arrears being recoverable from the defendants. It is stated that the responsibility of the consignor ceases once the lorry/goods receipt is issued. It is stated that if the transporter does not collect his dues at the destination, then it is his responsibility and not that of the consignor. It is averred that the freight was to be paid in case not paid in advance at the destination and by the consignee against the transport receipts. The defendant has denied that there was any amount outstanding towards the plaintiff. It is stated that for every consignment sent through the plaintiff transport company, a transport receipt was issued and that the defendant is in possession of all the invoices through which the consignment was sent and transport receipt was obtained.
8. It is contended by the defendant that the plaintiff illegally withheld against the transport receipt to consignee M/s Wrapster Food Pvt. Ltd., even on presentation of GR and even on payment of freight amount as claimed in the G.R. Due to non delivery the consignment was cancelled by the consignee and the goods which were especially manufactured for the consignee are lying waste. With these averments, the defendant has prayed for dismissal of the suit with costs.
CS SCJ No. 7006/17 Pages 5/22REPLICATION
9. In replication, the plaintiff has denied all the averments made in the written statement and has reasserted the averments made in the plaint. It is stated that the plaintiff company has taken over all the assets and liabilities of its sister concern M/s Chawla Delite Carrier (Regd.) vide resolution dated 21.04.2009. The defendant has failed to state when and how much freight charges and other expenses have been paid by the defendant to the plaintiff till date, It is stated that the all the dockets were prepared by the defendant himself or its employee. The word paid mentioned in the docket means that the consignor will make the payment after the receiving acknowledgment of goods and expenses were passed by the defendant's Bombay office employee.
10. It is reiterated that the staff of the defendant have passed the bills at Bombay office along with Lorry Receipt, freight charges and other expenses born by the plaintiff during transportation. The bills bear the original stamp of the defendant company. It is denied that any goods of the defendant were illegally withheld. The plaintiff has submitted that it was agreed between the parties that the goods in question will be taken at Bombay after cash payment but the defendant insisted the plaintiff to deliver the goods on credit.
11. It is stated that the docket book was supplied to the defendant and the defendant's staff used to fill it up. The goods were dispatched and the defendant has availed the transport services of the plaintiff but has not paid for the services.
CS SCJ No. 7006/17 Pages 6/22ISSUES
12. From the pleadings of the parties, the following issues have been framed vide order sheet dated 13.02.2012:
1. Whether the suit has been instituted by duly authorized person on behalf of the plaintiff? OPP
2. Whether the suit is bad for misjoinder of cause of action? OPD
3. Whether the suit is within limitation? OPP
4. Whether the suit is without cause of action? OPD
5. Whether the plaintiff is entitled for the recovery of suit amount as prayed? OPP
6. Whether the plaintiff is entitled for the interest on the suit amount? If so, at what rate and for which period? OPP
7. Relief.
EVIDENCE OF THE PLAINTIFF
13. Plaintiff has examined 4 witnesses, i.e PW-1 Ramesh Chawla, PW-3 Pratap Singh, PW-4 Ashok Singh, and PW-5 Rachit Chawla.
14. PW-1 Ramesh Chawla has tendered his evidence by way of affidavit Ex. P-1. He relied upon the documents, i.e. certificate of incorporation Ex. PW-1/1, authorization letter Ex. PW-1/2, copy of the notice dated 04.08.2010 alongwith postal receipt and UPC Ex. PW-1/3 to Ex. PW-1/5, copy of legal notice dated 20.08.2010 alongwith postal receipt, UPC and A.D. Card Ex. PW-1/6 to Ex. PW-1/9, copy of the CS SCJ No. 7006/17 Pages 7/22 ledger account of the CHC Ex. PW-1/10, copies of the bills of different dates, octroi charges alongwith gate pass Ex. PW-1/11(colly). The consignment bill dated 19.04.2010 alongwith octroi charges Ex. PW- 1/12, copy of taking over M/s Chawla's Delite Carrier (Regd) in the month of April alongwith liabilities and assets of Chawla Dilite Carrier(Regd) Ex. PW-1/13. He also filed his additional evidence by way of affidavit Ex. PW-1/B and relied upon the documents, i.e. the MOU Ex. PW-1/X, the board resolution passed by the plaintiff company to take over the assets and liabilities of the said firm Ex. PW-1/Z.
15. PW-3 Pratap Singh tendered his evidence by way of affidavit Ex. PW-3/A. He relied upon the document already Ex. PW-1/11. He was cross-examined at length by the counsel for the defendant.
16. PW-4 Ashok Singh tendered his evidence by way of affidavit Ex. PW-4/A. He cross-examined at length by the counsel for the defendant.
17. PW-5 Rachit Chawla has tendered his evidence by way of affidavit Ex. PW-5/A. He has brought the original minutes book of the board resolution passed by the plaintiff company in its regular course of business and activities. He has relied upon the copy of board resolution dated 21.04.2009 already Ex. PW-1/Z. EVIDENCE OF THE DEFENDANT
18. Defendant examined Surinder Pal Sethi, Director of defendant company, 85, Adchini, Shi Aurvindo Marg, New Delhi as DW1. He tendered his evidence by way of affidavit Ex.DW1/A. CS SCJ No. 7006/17 Pages 8/22
19. I have heard the submissions made by the parties and have perused the file. My issue-wise findings are as follows:-
FINDINGS
20. Issue no. 1.
Whether the suit has been instituted by duly authorized person on behalf of the plaintiff? OPP The onus to prove this issue is upon the plaintiff. The plaintiff has relied upon Ex. PW-1/1 certificate of incorporation of the plaintiff company, Ex. PW-1/2 certified copy of the resolution passed by the board of directors of the plaintiff company authorizing Sh. Ramesh Chawla to take all necessary steps against the defendants for recovery on behalf of the company. It is the case of the plaintiff that earlier plaintiff's sister concern Chawla's Delite Carriers was being run by Sh. Ramesh Chawla as a sole proprietor and later the plaintiff's company was incorporated consisting of Sh. Ramesh Chawla and his son Rachit Chawla as Directors. The plaintiff's company took over all the assets and liabilities of Chawla's Delite Carriers. In support of its case, the plaintiff has brought on record the certified copy of the resolution Ex. PW-1/Z passed at the meeting of the Board of Directors of the plaintiff company stating that Chawla's Delite Carriers will close the transportation business w.e.f 27.04.09 in Mumbai region and w.e.f. 23.05.09 in Delhi region. All the commercial operations of the Chawla's Delite Carriers were taken over by the plaintiff company and the plaintiff company resolved to make all necessary efforts to recover and realize the assets of the Chawla's Delite Carriers. Memorandum of Understanding executed between the plaintiff company and Chawla's Delite Carriers is Ex. PW-1/X, which has been duly signed CS SCJ No. 7006/17 Pages 9/22 by Ramesh Chawla, the proprietor of Chawla's Delite Carriers and Rachit Chawla, Director of the plaintiff company.
21. In view of the evidence led by the plaintiff's company, it is established that Sh. Ramesh Chawla is the authorized person to institute the present suit on behalf of the plaintiff's company. Ex. PW-1/2 is very clear in this regard. All these documents have been duly proved by Sh. Ramesh Chawla, the proprietor of the Chawla's Delite Carriers and Director of the plaintiff's company also. The plaintiff has also examined PW-5 Sh. Rachit Chawla to prove its case who filed his affidavit Ex. PW- 5/A. He had brought the original minutes of Board of Resolution passed by the plaintiff company in its regular course of business and activities, which has already been discussed above as Ex. PW-1/Z. Both the witnesses are cross-examined at length but nothing to challenge the case of the plaintiff has come out. PW-5 Rachit Chawla stated that vide resolution dated 31.08.2010 his father Ramesh Chawla was authorized to take care of this matter. The plaintiff has been able to prove that the present suit has been duly instituted by the authorized person on behalf of the plaintiff. In view of this, the issue no. 1 is decided in favour of the plaintiff and against the defendants.
22. Issue no. 2.
Whether the suit is bad for misjoinder of cause of action? OPD The defendant in its written statement has taken the preliminary objection that the suit is bad for misjoinder of cause of action on the ground that the cause of actions arise against two different companies, the plaintiff's company and M/s Chawla's Delite Carriers. As already CS SCJ No. 7006/17 Pages 10/22 discussed above, vide resolution Ex. PW-1/Z passed at the meeting of the Board of Directors of the plaintiff company all the commercial operations of the Chawla's Delite Carriers were taken over by the plaintiff company and the plaintiff company resolved to make all necessary efforts to recover and realize the assets of the Chawla's Delite Carriers. Memorandum of Understanding executed between the plaintiff company and Chawla's Delite Carriers Ex. PW-1/X has also been brought on record as per which the plaintiff company had undertaken to make all necessary efforts to recover and/or realize the assets of Chawla's Delite Carriers under the name and style of M/s CHC Logistics Pvt. Ltd. It is pertinent to note that Chawla's Delite Carriers was the sole proprietorship of Sh. Ramesh Chawla (HUF). The plaintiff company constitutes Sh. Ramesh Chawla and Rachit Chawla as the only directors and it has taken over the earlier proprietorship in the name of Chawla's Delite Carriers.
23. Both PW 1 Sh. Ramesh Chawla and PW 5 Sh. Rachit Chawla have entered the witness box to support their case. Both the witnesses have been cross examined at length. PW1 was put the following question.
"Q. Did you execute any document of purchase qua the outstanding recoverable on behalf of Chawla's Delite Carrier"? Ans. Balance sheet and MOU was prepared and no other document was prepared or executed. It is correct that in the MOU no specific amount has been claimed or shown which was recoverable from the defendant. Vol. The same was duly mentioned in the balance sheet which I can bring.
In the cross examination of PW 5, the following question was put.CS SCJ No. 7006/17 Pages 11/22
"Q. Did your father tell you whether he filed the statement of assets and liability of the delight carrier in this case or not. Ans. My board resolution dated 31.08.2010 my father was duly authorized to take care of the said matter hence he is the right person to answer this. I had gone through the statement of assets and liability of the delight carrier. I cannot tell as to what was the assets amount of the said firm and what was the liability of the said firm."
24. Merely suggesting that no detailed statement of assets and liabilities of Chawla's Delite Carriers has not been produced does not mean that no amount was recoverable against the firm from the defendant. Details of assets and liabilities of the firm are not relevant to this suit for recovery. The fact that has been established is that the plaintiff company undertook to recover the assets of the Chawla's Delite Carriers. Thus, in the cross examination the testimony of the witnesses as in their affidavit could not be shattered. Documents relied upon by them stand proved. Thus, this suit is not bad for misjoinder of cause of action. In view of this, the issue no. 2 is decided in favour of the plaintiff and against the defendants.
25. Issue no. 3.
Whether the suit is within limitation? OPP The present suit has been filed on 04.09.2010. The oldest bill against which the plaintiff has filed the present suit is dated 18.04.2008. The period of limitation for recovery of amount due against a bill is three years and accordingly the suit of the plaintiff is within limitation. In view of this, Issue no. 3 is decided in favour of the plaintiff and against the defendant.
CS SCJ No. 7006/17 Pages 12/2226. Issue no. 4.
Whether the suit is without cause of action? OPD Cause of action means the bundle of facts which gives rise to a right or liability. Whether a particular fact constitutes cause of action is determined with reference to the facts as disclosed in the plaint and it has no relation whatsoever to the defence which may be set up by the defendant. Plaintiff has alleged that the defendant after having availed its services for transport of goods has not paid for its services. Bills and invoices have been placed on record to show that the plaintiff had transported goods on the request of the defendant's company. Thus, sufficient cause of action has been disclosed in favour of the plaintiff and against the defendant. Therefore, issue no.4 is decided in favour of the plaintiff and against the defendant.
27. Issue no.5.
Whether the plaintiff is entitled for the recovery of suit amount as prayed? OPP The plaintiff to prove his case has relied upon the statement of account Ex. PW1/10, copies of the bills, octroi receipts, gate pass receipts and G.R.s Ex. PW1/11 and bill dated 19.04.2010 Ex. PW1/12. Both the directors of the company Sh. Ramesh Chawla and Sh. Rachit Chawla have been examined as PW1 and PW5. In affidavit Ex. P1 of Sh. Ramesh Chawla all the facts mentioned in the plaint are reiterated. In his cross examination he stated it to be correct that sometimes the freight charges is paid at the time of booking and sometimes it is paid at destination by the consignee. He self stated that sometimes, the payment is made after the acknowledgment of delivery submitted to the CS SCJ No. 7006/17 Pages 13/22 customer. No further question as to mode of business transaction has been put to the witness. The witness further stated that there is no writing with the plaintiff where the defendant has acknowledged the due of Rs. 2,69,920/- and he volunteered that bills passed by the defendant to this effect have been placed on record.
28. PW3 Sh. Pratap Singh, delivery incharge of the plaintiff company at Mumbai in his affidavit PW3/A has supported the entire case of the plaintiff. He stated that he had handed over the original bills of octroi forms and octroi bank receipts and original gate pass to the defendants or to the person to whom the goods were delivered. PW-3 had got the same verified and acknowledged by the authorized representative of the defendant company and he can recognize the handwriting and signatures of Pradeep Singh on the bills as they were signed in his presence. In his cross examination he stated as follows:-
"As per rules, goods were delivered to the consignee on the production of goods receipt. It is right to suggest that they have to deliver the goods as per the goods receipt to the consignee whose name is endorsed on the back of the goods receipt. It is right to suggest that the freight charges are either paid to them at the time of booking or at the time of release of goods to the consignee. "
29. He has further stated, "Our earlier Seth Mr. Amarjeet Singh and Balbir Singh owner of the delite Carrier had instructed him to release the goods on credit to the defendant. His present boss Mr. Chawla has not instructed him to release the consignment on credit but since the tradition was goin on as such he released the goods on credit. The amounts claim for the period April 2008 to 16.09.2010 are recoverable on CS SCJ No. 7006/17 Pages 14/22 behalf of the plaintiff." Thus, PW 3 proved the bills/GRs in question by identifying the signatures of Pradeep Singh on the bills. He also stated that he had delivered goods of the defendant on credit. No question has been put to the PW-3 as to the identification of handwriting or signatures.
30. PW 4 Ashok Singh is the manager of the plaintiff company at Delhi. In affidavit Ex. PW4/A he stated that transportation of the defendant company was looked after by its employees namely Kuldeep Singh and Suresh. He has further stated that the G.R. book had been given to the defendant on good faith and Kuldeep Singh and Suresh used to prepare the G.R. of the goods and the plaintiff collected goods at their instruction from their Patel Nagar office and transported them to their destination. It is stated that the goods transported by the plaintiff company were duly received and acknowledged by the defendant and the authorized representative at Bombay used to pass the bill of the consignment. He also explained the mode of transport business.
31. PW 4 has been cross examined at length by the Ld. Counsel for the defendant. He admitted that on the goods receipt both things are mentioned i.e. freight to be paid and freight paid. He admitted that if the consignee fails to make the freight charges (if payable by consignee) in that event they do not release the goods and some are re-booked. They used to claim the freight from defendant if the consignee fail to pay the freight charges.
Q. Was there any instructions in writing from the defendant to release the goods to the consignee without charging the freight? Ans. We have no instructions in writing from the defendant in this regard. Vol. As per understanding an acknowledgement used to be issued by CS SCJ No. 7006/17 Pages 15/22 Bombay office with direction to claim the outstanding claim from Delhi office.
32. The defendant to prove his case has examined DW1 Sh. Surinder Pal Singh Sethi, one of the directors of the defendant company. He has tendered affidavit Ex. DW1/A on his behalf. He has denied that freight was to be paid in the manner claimed by the plaintiff. He stated that the freight was to be paid either at the place of booking or at the place of delivery. He further stated that for every consignment sent by the defendant, the freight was paid either at the time of booking or at the time of delivery and that no time is due from the defendant to the plaintiff.
33. DW 1 has been cross examined at length by the Ld. Counsel for the plaintiff. Extracts from the cross examination are as follows:
"Q. I put it to you whether your company maintained any ledger account to record the transaction between the plaintiff concern your company? Ans. There is no credit dealing with the plaintiff company and therefore there was never any need to maintain any account."
He admitted that their employee Kuldeep Singh used to fill the GR receipt at the time for booking the transportation. He is not aware whether his employee Kuldeep Singh used to retain the bilty books. He was shown the documents GR No. 70401, 70447, 70472, 70406, 73214, 73252, 73258, 73255, 73265, 73284, 73290, 73265, 73284, 73258, 73255, 73248, 73271, 73278, 17906, 5835, 5836, 29613, 296314, 296321 and 296324 and it was observed that in all the aforesaid GRs the consignor as mentioned is feather touch and the consignee is mentioned as self. The said GR receipts are Ex. DW1/P1 to Ex. DW1/P27. He admitted that the name of the actual consignee is not mentioned on the CS SCJ No. 7006/17 Pages 16/22 aforesaid GR and he has not brought on record anything to prove that any payment was paid by the consignee in the present suit.
34. DW-1 was shown the document no. Ex. PW1/11 and after going through the said bill he showed his ignorance about the stamp embossed on it. He did not admit or deny the stamp embossed on bill dated 29.08.2008 the same is Ex. DW1/P28. He stated that after receiving the copies of the aforesaid bills alongwith the plaint he never verified from his staff about the payment status as there was no need to verify as they have settled everything. He has not placed on record any documents to show that the transportation charges of the plaintiff company were paid by the consignee as it is responsibility of plaintiff to deliver the material against the payment only.
35. After going through the evidence led by both the parties, it is clear that the plaintiff has been able to establish that the defendant availed the services of the plaintiff company for transportation and the delivery of the goods was made by the plaintiff on credit. The plaintiff has examined his employees to support his case who have proved Ex. PW1/10, PW1/11 and Ex. PW1/12. The defendant has not denied that it had availed the services of the plaintiff company for transport of goods. The defence of the defendant is that all dues have been settled as there was no credit dealing, the bills and other documents filed by the plaintiff are forged and fabricated. The case of the defendant is that once the goods have been dispatched, there is no question of any arrears being recoverable from the defendants as on all the bills, it is clearly mentioned that as to who is to make the payment i.e. consignee.
CS SCJ No. 7006/17 Pages 17/2236. The plaintiff has proved all the bills and invoices Ex. PW- 1/11(colly). PW-3 Pratap Singh in his examination in chief has deposed that Pradeep Singh has passed the bills and he identified his signatures on the bills. PW-3 Ashok Singh has also proved the entire transaction and mode of business between the parties in his affidavit. In their cross examinatin, their testimony to this effect could not be shattered. PW 4 stated that the GRs placed on record have been prepared by employee of the defendant Kuldeep Singh. DW 1 in his cross examination also admitted that the Grs were prepared by Kuldeep Singh. In the cross examination of all the witnesses not a single suggestion has been put with respect to any payment already made by the defendant to the plaintiff for the transport services availed. From the cross examination of PW 4 it is clear that the goods were indeed delivered on credit and both the consignor and consignee have failed to make the payment for transportation services of the plaintiff.
37. Further, careful perusal of the bills and the GRs placed on record shows that the consignor and the consignee are the same as the consignee has been mentioned as 'Self '. Thus, when the consignor and the consignee are the same, it is no defence that the payment was to be made by the consignee. The defendant has also alleged that the documents relied upon by the plaintiff are false and fabricated. But, the defendant has not led any evidence to prove that the GR/bills are false and fabricated. On the other hand, the plaintiff has duly proved all the bills and GRs.
38. Ld. Counsel for the defendant in arguments also contended that the entire case of the plaintiff is primarily based on statement of CS SCJ No. 7006/17 Pages 18/22 accounts which is Ex. PW-1/10. But by just filing the statement of account without production of original ledger book and without producing the accountant to prove the ledger, the said statement of account cannot be looked into. Further it has been argued that the copies of bills relied upon by the plaintiff cannot be automatically exhibited unless the originals are called and compliance of order XII Rule 8 of CPC and Section 66 of Indian Evidence Act is done. In response to these arguments, counsel for the plaintiff submitted that books of accounts/statement of account are themselves not sufficient to fasten the liability on the head of the person against whom they are produced and they carry only corroborative value. In this case, the statement of account Ex. PW-1/10 is duly supported by all the documents like bills, GR, as reflected in the statement of account/ledger. All these documents have been duly proved by the plaintiff. It has been submitted that the bills/GR placed on record are not mere copies. It is submitted that the GR receipts are prepared in triplicate at the same time and the carbon copies retained carry the same weight as a primary document. I am in agreement with the Ld. Counsel for the plaintiff. Carbon copies prepared at the same time as the original is prepared are covered under Explanation 2 to Section 62 Indian Evidence Act. I draw support from Prithi Chand Vs State of H.P. AIR 1989 SC 702.
39. The plaintiff had to prove each and every bill as shown in the statement of account Ex. PW-1/2. I have carefully gone through the bills produced on record. Careful perusal Ex. PW-1/11(colly) shows that the bills are either carbon copies or originals. I have tallied each and every bill claimed by the plaintiff in the statement of account with the bills/invoices placed on record. All the bills are either originals or carbon CS SCJ No. 7006/17 Pages 19/22 copies except for bill dated 24.12.2008 for an amount of Rs.1600/- which is a mere photocopy without any original to support the same. Rest of the bills are either originals or carbon copies. Some bills also bear stamp of the defendant alongwith signatures of employee of the defendant. Some bills are also in the name of Shan Tablewares Pvt.Ltd but nothing with respect to these bills have been claimed in the statement of account. The defendant has alleged that these bills are forged and fabricated but the defendant has not led any positive evidence to support the same. DW 1 did not admit or deny the stamp of the company on the bills. The plaintiff on the other has examined PW-3 Pratap Singh, who in his affidavit Ex. PW-3/A stated that one Pradeep Singh had passed the bills and he identified the signatures of Pradeep Singh on the bills. In his cross-examination, no suggestion as to identification of the signatures has been put to PW-3.
40. With respect to transaction regarding Bill dated 19.04.2010 it has been alleged that the plaintiff illegally withheld the goods of the plaintiff. From, the aforesaid discussion it has been proved that the defendant had availed the services of the plaintiff and the services were tendered on credit in the past. It has also been proved that the defendant failed to make the payment with respect to the services tendered. The case of the plaintiff is that the goods were withheld as no cash payment with respect to those goods was made and the plaintiff was not ready to deliver the goods on credit. In this respect, Section 170 of the Indian Contract Act, 1872 is important. The relationship between a transport company and the person transporting the goods is that of a bailor and bailee. Section 170 of the Indian Contract Act recognizes Bailee's particular lien.- Where the bailee has, in accordance with the CS SCJ No. 7006/17 Pages 20/22 purpose of the bailment, rendered any service involving the exercise of labour or skill in respect of the goods bailed, he has, in the absence of a contract to the contrary, a right to retain such goods until he receives due remuneration for the services he has rendered in respect of them.
Thus, in case of non-payment, the bailee in this case the plaintiff could have exercised lien on the goods in question. Since the defendant did not make any payment, the plaintiff is entitled to the payment for the services tendered with respect to bill dated 19.04.2010. The plaintiff has stated that he requested the defendant to take back the goods after making payment but no one came forward.
In view of the aforesaid discussion, the plaintiff is entitled to recovery of the amount prayed for except bill dated 24.12.2008 for an amount of Rs.1600/- which has not been duly proved. Issue no. 4 is decided in favour of the plaintiff and against the defendant.
41. Issue no. 6.
Whether the plaintiff is entitled for the interest on the suit amount ? If so, at what rate and for which period? OPP As the Issue no. 5 is decided in favour of the plaintiff and against the defendant, the plaintiff is entitled to interest. Pendente lite interest and future interest is at the discretion of the court and the interest @ 24 % is excessive. Accordingly the plaintiff is entitled to interest @ 9 % per annum from the date of institution of the present suit till its realization.
CS SCJ No. 7006/17 Pages 21/2242. Relief.
In view of aforesaid findings, the suit of the plaintiff is decreed with cost and defendant is directed to pay Rs.2,68,320/- to the plaintiff alongwith interest @ 9 % per annum from the institution of the suit till realization. The goods with respect to bill dated 19.04.2010 be returned back to the defendant after payment of the decreetal amount. In case of failure, the goods may be sold to realize the decreetal amount.
Decree sheet be prepared accordingly.
File be consigned to record room after due compliance.
Pronounced in open court on 9th October, 2018 (Naina) CJ-04 (West)/THC:
Delhi.CS SCJ No. 7006/17 Pages 22/22