Delhi District Court
Proneet Biswas vs M/S Air7Seas Transport Logistics on 4 August, 2022
IN THE COURT OF SH. DIVYANG THAKUR,
ADDITIONAL DISTRICT JUDGE- 03 (SOUTH-
WEST), DWARKA, DELHI.
CS No. 16691/16
CNR No. DLSW01-001344-2014
PRONEET BISWAS
H-1515, CHITTARANJAN PARK,
NEW DELHI-110019
....PLAINTIFF
VERSUS
1. M/S AIR7SEAS TRANSPORT LOGISTICS, INC
2825 HOURET CT.
MILPITAS, CA 95035 USA
THROUGH : RAKESH SHARMA
....DEFENDANT NO. 1
2. M/S TRACK CARGO
T-5, PLOT NO. 3, THIRD FLOOR,
MANISH TWIN PLAZA-II, SECTOR-22,
DWARKA, NEW DELHI
THROUGH : SUDHIR KUMAR
....DEFENDANT NO. 2
CS No. 16691/16
Proneet Biswas Vs. AIR7Seas and Anr. 1
Date of institution of the suit : 28.03.2014
Date on which order was reserved : 31.05.2022
Date of decision : 04.08.2022
JUDGMENT
1. Present suit is for recovery of damages on account of the non-delivery of goods by defendants and breach of contract. Suit was filed by the plaintiff on 28.03.2014. Defendants entered appearance and filed WS to which replication was filed by the plaintiff. Admission and denial of documents was conducted on 30.09.2016 and on 07.11.2016, the following issues were framed:
(I) Whether the plaintiff has breached the terms and conditions of the contract? (OPD1) (II) Whether suit of the plaintiff is not valued properly for the purpose of court fees and jurisdiction? (OPD2) (III) Whether suit of plaintiff is barred by law of limitation? (OPD2) (IV) Whether there has not been any privity of contract with defendant no. 2? (OPD2) (V) Whether plaintiff is entitled to the recovery of a sum of Rs. 11 lacs against the defendants? (OPP) (VI) Whether the plaintiff is entitled to the pendente lite and future interest? If yes, at what rate? (OPP) CS No. 16691/16 Proneet Biswas Vs. AIR7Seas and Anr. 2 BRIEF FACTS OF THE CASE/PLAINT The pleadings in the plaint are summarised hereunder:
The plaintiff contacted the defendant no. 1 who were the freight forwarding agent, custom broker, carrier and shipping agents claiming to handle international and domestic transportation of goods by air, sea and land. Defendant no. 2 is stated to be the agent of defendant no. 1 in India. The plaintiff lured by the representation of defendant no. 1 decided to engage the services of defendant no. 1 for transporting his household goods and personal effects from USA to India. It is further averred that a sum of $1690 USD was agreed upon between the plaintiff and defendant no. 1 which was later revised to $4043 USD and which was then further revised to $2300 USD inclusive of custom clearance, door-to-door unloading and customs etc. It is further averred that when the goods reached India, the defendant no. 1 started demanding a sum of $4000 USD and a further sum of $547 USD as customs spot check exam charges. It is further averred that defendant no. 1 came up with the excuse that the problem was due to palletization. It is further averred that the defendants started pressurising the plaintiff and harassing him. It is further averred that one customer representative Mr. Rakesh assured the plaintiff that the goods would be cleared from customs within 10 minutes of the receipt of payment which had been revised to $2300 USD. As per the plaintiff, the same is CS No. 16691/16 Proneet Biswas Vs. AIR7Seas and Anr. 3 reflected in e-mail dated 08.03.2011. The plaintiff further avers that in order to put an end to the matter, he agreed to pay $2300 USD and asked a friend in USA to deposit a cashier's cheque with defendant no. 1. The plaintiff further avers that the payment was received on 18.03.2011 but despite the said payment, the defendant no. 1 refused to release the goods and get the same delivered at the residence of the plaintiff. The plaintiff further avers that the goods were left at CWC (Central Warehousing Corporation) without any intimation to the plaintiff and that he came to know about it only when he received an auction notification on 09.05.2011 that the goods had been lying since January 2011. The plaintiff further avers that he was ready and willing to get his goods released from the customs after making the required payment but defendant no. 2 was unwilling to give NOC and furnish the delivery order and custom out of charge documents. The plaintiff further avers that he approached the Hon'ble High Court of Delhi in WP (Civil) 4087/2011 whereby the Hon'ble High Court of Delhi passed order to have the goods delivered to the plaintiff on the payment of demurrage charges. The plaintiff claims a total sum of Rs. 11 lacs as per the following table:
Value of Goods as per the enclosed Rs. 2,77,000 list Service Charge paid to the defendant US$ 2300 plus interest i.e. Rs.
no. 1 (2300 USD) plus interest 1,90,000
Expenses incurred including travel Rs. 1,33,000
legal
Mental agony and harassment Rs. 5,00,000
Total Rs. 11,00,000
CS No. 16691/16
Proneet Biswas Vs. AIR7Seas and Anr. 4
WRITTEN STATEMENT AND REPLICATION
2. Written Statement was filed on behalf of both the defendants. The defendants contested the suit by submitting that the quote given specifically excluded duties/taxes/octroi which were to be charged as actual and applicable. The defendants further averred that the plaintiff accepted the rates and terms and conditions of the quotation and finally rate of USD 1690 was quoted as per the list of items forwarded by the plaintiff. It is further averred that the defendants informed the plaintiff that if the volume exceeded 150 CFT then, USD 6.95 would be charged per CFT which was agreed to by the plaintiff. Thereafter, it is averred that due to the additional goods packed and shipped on behalf of the plaintiff, the CFT increase due to which invoice of USD 4043.40 was raised. It is further averred that bill of lading and other dispatched documents were sent to the plaintiff. It is further averred that on 18.11.2010, the representative of defendant no. 1 received an e-mail dated 18.11.2010 stating that Customs Border Protection has targeted the container for custom examination. The defendants through e-mail dated 01.12.2010 informed the plaintiff that the said container was pulled out from the port by the customs authorities in USA without knowledge of the shipping line. The defendant no. 1 only came to know when custom assignees vendor asked them to pay the custom examination charges. The defendant no. 1 further avers that they informed the plaintiff that delay had been caused due to the CS No. 16691/16 Proneet Biswas Vs. AIR7Seas and Anr. 5 custom spot check/examination of the said container and that the total charges of custom examination have been divided among the shipment/consignment which worked out to USD 547 which was to be paid by the plaintiff as his share. It is further averred that the plaintiff agreed to pay the custom examination charges about which he was informed vide e-mail dated 01.12.2010 and also vide e-mail dated 03.12.2010 wherein, the plaintiff was informed that the customs spot check examination charges did not form part of the costing.
3. It is further averred that plaintiff was well informed about the movement of the goods but he started to dispute the shipment charges of USD 4043.40. It is further averred that final notice was given to plaintiff by defendant no. 1 through e-mail dated 01.03.2011 and the plaintiff continued to negotiate w.r.t the payment to be made and tried to get discount from the defendant no. 1. The defendant despite suffering heavy losses offered a maximum discount and reduced the invoice value to USD 2300 which was paid to the defendant no. 1. The defendant no. 1 informed the plaintiff through e-mail dated 23.03.2011 that during the telephonic talk, plaintiff did not question the custom charges and that the plaintiff has misunderstood about the final amount of USD 2300. The defendants sent several mails on 23.03.2011, 05.04.2011, 07.04.2011 and 08.11.2011 highlighting the concerns. Plaintiff issued legal notice dated 20.05.2011, a reply to which was sent by the defendants demanding USD 547.
4. It is further averred that in pursuance of the orders of the Hon'ble High Court of Delhi, defendants have released the CS No. 16691/16 Proneet Biswas Vs. AIR7Seas and Anr. 6 delivery order on 31.01.2014. Defendant no. 2 presented the documents to CWC for further processing and learnt that huge amount of damages to the extent of Rs. 7,00,000/- to Rs.
10,00,000/- has been levied on account of the storage. The plaintiff was sent several e-mails and verbal requests to arrange the amount of demurrage and custom charges so as to facilitate custom clearance. However, the plaintiff did not arrange the funds for payment on account of custom duties and demurrage charges. The plaintiff abandoned the consignment. It is further averred that the plaintiff has suppressed material and therefore, should not be given relief by the Court.
5. In the WS filed by defendant no. 2, the defendant no. 2 pleaded that there was no privity of contract between the defendant no. 2 and plaintiff. The role of defendant no. 2 was limited to ensure clearance of goods from customs subject to payment of duties, taxes and transfer by the plaintiff as per terms and conditions specified in bill of lading/invoice. It is further averred that plaintiff was required to pay USD 547 to defendant no. 2 as per instructions of defendant no. 1 before the release of the delivery order. It is further averred that defendant no. 1 through e-mail dated 21.03.2011 informed defendant no. 2 to release the consignment only after receiving custom related charges.
6. The plaintiff filed an amended replication to the WS filed by defendant no. 1 and defendant no. 2 denying all the allegations made by the defendants.
7. As already noted above, after the completion of CS No. 16691/16 Proneet Biswas Vs. AIR7Seas and Anr. 7 pleadings, the Court conducted admission-denial wherein, various documents were admitted to by the parties. The relevant documents which have been relied upon by this Court to come to a decision are listed below:
ADMITTED DOCUMENTS (TABLE A) S.No. Nature of documents Remarks 1
1. Exchange of E-mail An e-mail sent by defendant no. 1 to the between the parties (Ex. plaintiff where total cost is quoted as "1690 PW-1/1) USD door-to-door".
2. Invoice dated 18.10.2010 The said invoice is for a total amount of (Ex. PW-1/2) 4043.40 USD.
3. Exchange of E-mail Plaintiff made an inquiry from the defendant between the parties (Ex. no. 1 regarding the breakdown of the charges PW-1/3) in reply to which the defendant no. 1 replied that CFT had gone up as the movers put sofa on the pallet.
4. Bill of Lading (Ex. PW- As per the bill of lading, the destination agent 1/4) is Track Cargo Private Ltd. i.e. defendant no.2.
5. Exchange of e-mail As per e-mail dated 16.11.2010 sent by between the parties (Ex. defendant no. 1 to plaintiff, defendant no. 1 PW-1/5) asked plaintiff to wait for one week as volume had gone up due to palletization.
6. Exchange of e-mail As per the e-mail sent by defendant no.1 to between the parties (Ex. plaintiff, defendant no. 1 has informed the PW-1/6) plaintiff on his asking about the charges that "please be informed that we have not taken this amount into our costing. It is an exceptional case. We are not in a position to absorb this cost. As such, we are constrained to pass it on to the customers. This process is not in our control as customs makes its own decisions. It is a consolidated consignment.
1 For the sake of convenience, I have noted the relevant portions of the admitted documents in this column for ready reference in the later part of the judgment.CS No. 16691/16 Proneet Biswas Vs. AIR7Seas and Anr. 8
There were four consignments in the container and we have divided the amount among all the customers on the basis of the size of the consignment." The aforesaid e-mail is dated 03.12.2010.
7. Exchange of e-mail This e-mail exchange from February 2011 between the parties (Ex. deals with the demand of USD 547 by the PW-1/9) defendant no. 1 and the plaintiff's reply, refusing to pay such amount.
8. E-mail dated 03.03.2011 This is an e-mail sent by defendant no. 1 to (Ex. PW-1/10) plaintiff whereby the defendant no. 1 states that "we have already give you a final notice and I am sending an e-mail by the end of business day to our agents to abandon the goods."
9. E-mail dated 03.03.2011 As per this e-mail, the defendant no. 1 asked sent by defendant no. 1 to defendant no. 2 to make arrangements to defendant no. 2 with CC auction the goods.
to plaintiff (Ex. PW-1/11)
10. E-mail from defendant As per this e-mail, the defendant no. 1 offers no. 1 to plaintiff dated shipment charges at revised rate of USD 2300 08.03.2011 (Ex. PW- for door-to-door. The relevant portion is "you 1/12) pay $2300 and we will drop it off at the door after clearance."
11. E-mail exchange between As per the e-mail, reply of the plaintiff dated the parties (Ex. PW-1/13) 11.03.2011, the plaintiff states "that's fine, we will go with 2300".
12. E-mail sent by defendant The defendant no. 1 informs the plaintiff that no. 1 to plaintiff dated they would accept only via transfer and 08.03.2011 (Ex. PW- mentions the bank details of Bank of America. 1/13)
13. Cashier's cheque dated Cashier's cheque of 2300 USD having Sr. No. 18.03.2011 in favour of 0014204049 in favour of AIR 7 SEAS defendant no. 1 (Ex. PW- Transportation Logistics Inc. 1/14)
14. E-mail exchange between As per the e-mail dated 21.03.2011, defendant the parties (Ex. PW-1/15) no. 1 thanks the plaintiff for the payment but states that they are still waiting for the custom examination charges and request that the same be paid and that an early reply will help them in sending the release to their agent, in reply to which the plaintiff states that he had "double confirmed with you that 2300 is the final charges for door-to-door" to which again CS No. 16691/16 Proneet Biswas Vs. AIR7Seas and Anr. 9 defendant no. 1 replies that "I am sorry if there was any miscommunication. If you remember correctly, when I called and talked to you, you said that you are not questioning the customs charges, it is the quotation that you are questioning. You were very clear on that. I conveyed the message to the management that you are OK with the customs as this was a charge that was not within our control. I am sorry that you misunderstood about the final amount that was sent to you. The settlement amount was considered before the customs charges. Since this was a charge that we cannot be responsible for, as we have already take a major loss.......Please make the payment for the customs charges to our agents.......as a goodwill gesture I will be able to give you a $50 off."
15. Order of the Hon'ble In the said order, it is stated that "This Court is High Court in WP (Civil) of the view that as the disputes between the 4087/2011 dated petitioner and respondent nos. 3 and 4 arise out 08.01.2014 (Ex. PW- of a private contract,the same cannot be 1/16) adjudicated upon in the present writ proceedings. However, to ensure that no further demurrage is incurred and space at Central Warehousing Corporation (for short CWC) is available for storing other valuables, this Court directs the CWC to release the goods upon the petitioner paying upto date storage and demurrage charges within four weeks as well as furnishing the delivery order and customs out of charge document. Since the aforesaid documents are stated to be in possession of respondent nos. 3 and 4, they are directed to forward the same to CWC forthwith. Both petitioner and respondent nos. 3 and 4 are at liberty to agitate their disputes in an appropriate forum in accordance with law. In the interest of justice, it is clarified that for the purpose of calculating the limitation for the suit to be filed, if any, by either petitioner or respondent nos. 3 and 4, the time spent in prosecuting the present petition shall not be taken into account. In the event, petitioner does not pay the storage and demurrage charges within four weeks, CWC shall be at liberty to take action in accordance with law."
CS No. 16691/16 Proneet Biswas Vs. AIR7Seas and Anr. 1016. Delivery order issued by defendant no. 2 to Deputy Commissioner of Customs dated 29.01.2014 (Ex. PW-
1/20)
17. E-mail sent by defendant Defendant no. 2 requests plaintiff to pay the no. 2 to plaintiff dated demurrage charges in compliance of the Order 11.02.2014 (Ex. PW- of the Hon'ble High Court. 1/22)
18. E-mail dated 18.08.2010 This e-mail contains the terms and conditions.
sent to plaintiff by For the sake of convenience, the relevant defendant no. 1 (Ex. DW- portion of the e-mail is being extracted herein:
1/2) VOLUME DOOR-TO-DOOR IN
DEL WITHIN CITY
LIMIT
50 Cft $995
After 50 Cft $6.95/Cft
Packing @ Origin $95/Hr with 2 Pesons &
(OPTIONAL) 2 Hrs. Minimum
Packing Material @ At Actual
Origin (OPTIONAL)
*Above rates Subject to Emergency Fuel Surcharge (This includes Pick Up from your Door steps, liftgate truck charge, palletizing, ship it to the port, ocean freight to New Delhi CFS) includes Document transfer fee, destination delivery, customs filling & documentation, providing labour during customs examination, loading and unloading, opening & repacking during customs clearance, single strapping on each box, includes service tax, after customs examination, delivery upto your door steps) *The above quote includes custom clearance & door delivery includes D/O, DDC, (THC IN DEL) The above quote excludes the following:-
Inside pick up, basement pick up and any additional floor pick ups, which is additional cost. Any extra man for pickup, which is $45/Hr/Men. Insurance: 2.5% of the value with $250 deductible, Minimum $75.
Duties/Taxes/Octroi: As Applicable as per Tariff & Receiptable.
Storage: If any at Destination after 5 days of Shipment Landing.
Inside Door Delivery @ Destination *IMPORTANT: Once warehouse palletize your boxes, the volume of the whole shipment goes up & the charges are based on Gross Volume. Palletization means that we put all the boxes on Wooden platform, CS No. 16691/16 Proneet Biswas Vs. AIR7Seas and Anr. 11 which is 48" X 40" & Shrink wrap them with the plastic, so all the boxes stays together & handling of the pallet is more safer than loose boxes. It's easy to pick up the whole pallet with the Fork Lift.
19. E-mail dated 09.09.2010 The quote given by defendant no. 1 to plaintiff sent by defendant no. 1 to was USD 1690 door-to-door. plaintiff (Ex. PW-1/D3)
20. E-mail dated 01.12.2010 Relevant portion of the said e-mail is extracted sent by defendant no. 1 to herein: "Customs decided to spot exam plaintiff (Ex. DW-1/8) (attached message from the vendor) this container and pulled from the port the day of loading without knowledge of shipping line and us and we found out only when Customs assigned vendor asked us the charges before they can return the container to port. This has caused three weeks delay of your shipment.
The charges has been divided per your shipment and these charges are to be paid by you. (US $547). This amount would be collected by our destination agent from you at the time of making the delivery to you in Delhi. Please address your questions to us."
21. E-mail dated 08.03.2011 Relevant portion of this e-mail is "Your from defendant no. 2 to shipment is payment HOLD so there is no plaintiff (Ex. DW-1/13) question of custom clearance and delivery of the shipment until you sort out your freight related matter with AIR7Seas."
22. E-mail dated 22.03.2011 As per the e-mail, the defendant no. 1 states from defendant no. 1 to that payment has been received and further defendant no. 2 with CC writes that "as such please release the to plaintiff (Ex. DW- consignment to the consignee after collecting 1/14) the customs exam related charges against invoice #A7S1-49256...."
23. E-mail dated 05.04.2011 Relevant portion of this e-mail is "Our sent by defendant no. 1 to management has never agreed to waive off plaintiff. custom charges as these are out of pocket expenses. You have also agreed to pay these charges. As such, please pay these charges to our agent in New Delhi and take the delivery of your consignment."
24. Legal notice dated 18.04.2011 sent on behalf of plaintiff to defendants.
25. E-mail dated 16.01.2014 As per this e-mail, the plaintiff was requested sent by Adv. for to provide name and address for delivering the CS No. 16691/16 Proneet Biswas Vs. AIR7Seas and Anr. 12 respondent nos. 3 and 4 necessary documents in compliance of the i.e. the defendants (Ex. Order of the Hon'ble High Court. DW-1/15) EVIDENCE OF WITNESSES
8. PW-1 Sh. Proneet Biswas was examined, scross examined and discharged. During his evidence, he tendered his affidavit Ex. PW-1/A and relied upon the documents Ex. PW-1/1 to Ex. PW-1/26. Thereafter, PW-1 was cross examined. In the cross-examination, plaintiff admitted that defendant no. 1 had sent an e-mail giving an offer along with rates, terms and conditions of shipment. He admitted Ex. PW-1/D1 filed by the defendant which was an e-mail dated 18.08.2010 and further admitted that he had not filed the said e-mail on record. The plaintiff refuted the suggestion that the customs spot examination charge were not included in the offer of door-to-door delivery. The plaintiff admitted that the defendant had informed that checking charges were not included in the quotation/charges levied for consignment of goods to India. He further admitted the suggestion that renegotiation w.r.t invoice prices took place with defendant no. 1 and further volunteered that the renegotiation took place with defendant no. 1 and 2 on 08.03.2011. He further admitted that there was no dispute w.r.t volume and weight of the consignment. PE was closed vide separate statement of plaintiff.
9. DW-1 Sh. Sudhir Kumar Srivasta was examined, cross examined and discharged. During his evidence, DW-1 tendered his affidavit Ex. DW-1/A which was in line with the WS CS No. 16691/16 Proneet Biswas Vs. AIR7Seas and Anr. 13 filed on behalf of defendants no. 1 and 2. He testified that he was the Power of Attorney holder on behalf of defendant no. 1 vide Power of Attorney Ex. DW-1/1 and also Director of defendant no. 2. He relied upon the following documents:
(i) Special Power of Attorney dated 11.08.2014 as Ex. DW-1/1.
(ii) E-mail dated 18.08.2010 as Ex. DW-1/2.
(iii) E-mail dated 20.08.2010 as Ex. DW-1/3.
(iv) E-mail dated 09.09.2010 as Ex. DW-1/4.
(v) E-mail dated 28.09.2010 as Ex. DW-1/5. (vi) Packing-Moving-Loading-Form recording
satisfaction of work with remarks as Excellent as Ex. DW-1/6.
(vii) E-mail dated 18.11.2010 as Ex. DW-1/7.
(viii) E-mail dated 01.12.2010 as Ex. DW-1/8.
(ix) E-mail dated 23.12.2010 as Ex. DW-1/9.
(x) E-mail dated 01.03.2011 as Ex. DW-1/10.
(xi) E-mail dated 07.03.2011 as Ex. DW-1/11.
(xii) E-mail dated 23.03.2011 as Ex. DW-1/12.
(xiii) E-mail dated 09.03.2011 as Ex. DW-1/13.
(xiv) E-mails dated 22.03.2011, 05.04.2011 and 07.04.2011 as Ex. DW-1/14 (colly).
(xv) Reminders dated 15.01.2014, 10.02.2014, 11.02.2014, 27.02.2014 and 13.03.2014 are Ex. DW-1/15 (colly). (xvi) E-mails dated 08.03.2011, 09.03.2011, 10.03.2011, 11.03.2011, 21.03.2011, 22.03.2011, 07.04.2011, 08.04.2011 and 16.01.2014 as Ex. DW-1/16 (colly).
(xvii) E-mails dated 10.02.2014, 11.02.2014, 19.02.2014, CS No. 16691/16 Proneet Biswas Vs. AIR7Seas and Anr. 14 27.02.2014 and 13.03.2014 are Ex. DW-1/17 (colly). DW-1 further relied upon the documents which were relied upon by plaintiff during his evidence by way of affidavit Ex. PW-1/A viz. Ex. PW-1/1 to Ex. PW-1/4, Ex. PW-1/6, Ex. PW-1/9 and Ex. PW-1/22.
10. Thereafter, DW-1 was cross examined and discharged and DE was closed vide separate statement of Ld. Counsel for the defendants at Bar. During the cross-examination, he testified that the services of defendant no. 2 were hired for custom clearance and transportation of goods. He testified that in door-to-door delivery after making whole payment like delivery order charges, custom duty, warehouse charges in advance, goods are delivered to the door. As per the witness, in door-to-door delivery, party making payment of delivery order charges from shipping line/console agent, custom duty charges, CWC charges in advance and after that, custom clearing agent clears the goods and hand over the goods at the party's address. He admitted that freight charges had been negotiated for 2300 USD from USA to India. He further testified that the consignee was intimated after landing of goods in India to make the payment of delivery order charges and balance payment of custom duty. He testified that he was not aware of the exact date when such intimation was given to the plaintiff. He was not sure about when the goods were placed at CWC. In response to a suggestion that even after the order of Hon'ble High Court dated 08.01.2014, out of custom clearance documents were not released, the witness replied that party had not made payment and therefore, they were not able to CS No. 16691/16 Proneet Biswas Vs. AIR7Seas and Anr. 15 clear the goods till date for delivery order charges, custom warehousing charges and customs duty.
11. The following documents which were led in evidence and denied by the opposite party but in the opinion of the Court stand duly proved are as follows:
PROVED DOCUMENTS (TABLE B) S. No. Nature of Documents Remarks
1. Notice u/s 48 of the Vide this notice dated 09.05.2011, the Custodian Customs Act, 1962 informed the plaintiff that the consignment of his sent to the plaintiff by goods was lying uncleared since 24.01.2011 and CWC (Ex. PW-1/16) further notified him that if the goods were not cleared within ten days, then they would be sold by public auction.
2. Letter written by the This letter was written in reply to the notice Ex. PW-
plaintiff to 1/16 wherein the plaintiff requested that the storage Commissioner of charges be waived.
Customs (Ex. PW-
1/17)
3. Letter written by the Vide this letter, plaintiff requested again for the plaintiff to Manager, waiver of demurrage charges.
CWC, Patparganj
dated 04.02.2014 (Ex.
PW-1/21)
4. Letter written by the Vide this letter, plaintiff requested information plaintiff to Manager, regarding the status of his request for waiver of CWC, Patparganj demurrage charges.
dated 18.03.2014 (Ex.
PW-1/24)
5. Exchange of e-mails This set of e-mails is communication between the between the parties on parties w.r.t the release of consignment from CWC. I 10.02.2014 (Ex. DW- find that this document has been duly proved as no 1/15) suggestion was given to defendant's witness that the said document is forged or fabricated and there is no reason to disbelieve the genuineness of this e-mail.
6. Letter from defendant This letter is w.r.t the clearance of goods from CWC.
no. 2 to plaintiff dated 13.03.2014 (Ex. DW-
1/15) CS No. 16691/16 Proneet Biswas Vs. AIR7Seas and Anr. 16 CONTENTION OF PARTIES
12. After the completion of evidence, written submissions were filed on behalf of all the parties. Oral arguments were also heard by this Court. The main contention and thrust of the arguments on behalf of the plaintiff is that the defendants had agreed to the door-to-door delivery of the goods for USD 2300 which were duly paid by the plaintiff. However, the Ld. Counsel for plaintiff has submitted that the charge of USD 547 was later on imposed unilaterally by the defendants to which the plaintiff had never agreed to. In the absence of such consensus ad-idem the defendants cannot now plead that it was due to the breach of the contract by the plaintiff due to which the goods were not delivered. He has relied on Ex. PW-1/12 to bolster his argument. He has further submitted that the goods had been abandoned by the defendants in January 2011 itself and which fact was never disclosed to the plaintiff which shows the conduct of the defendants and their intention to not honor the contract despite receiving the complete payment. It has been further submitted that despite the orders of the Hon'ble High Court, the defendant no. 2 did not furnish the requisite documentation to allow the plaintiff to get the goods released from CWC resulting in further loss to the plaintiff.
13. Per contra, the Ld. Counsel for defendants had submitted that as per the terms and conditions vide e-mail dated 18.08.2010 which is Ex. DW-1/2, the duties, taxes and octroi CS No. 16691/16 Proneet Biswas Vs. AIR7Seas and Anr. 17 were excluded from the quotation of USD 1690 for 150 CFT (Volume). He has submitted that due to the increase in volume, invoice of 4043.40 USD had been issued but as the plaintiff was reluctant to pay the amount, after negotiations, a quote of 2300 USD was given for door-to-door delivery. However, it is further submitted that the renegotiation of the delivery amount for door- to-door delivery did not result in the complete novation of the terms and conditions of the contract which were entered into between the parties and which were contained in Ex. DW-1/2 whereby duties, taxes and octroi were excluded from such delivery amount. It is further submitted that the customs spot examination charge would fall within the definition of duties, taxes and octroi and such charges being excluded as per the terms and conditions of the contract, it was the plaintiff who refused to perform his part of the contract and therefore, the defendants in such situation, cannot be held guilty for a breach of contract when the other party had failed to perform his part of the contract. It is, therefore, submitted that there was no breach of contract by the defendants and therefore, there can be no question of awarding damages to the plaintiff. He has further submitted that the plaintiff has been guilty of suppressing the relevant documents that were in his possession and therefore, such conduct disentitles him from a decree and the suit deserves to be dismissed on this ground alone. He has further submitted that in so far as, the liability of defendant no. 2 is concerned, defendant no. 2 was only an agent and had no privity of contract with the plaintiff and therefore, defendant no. 2 cannot be made liable for CS No. 16691/16 Proneet Biswas Vs. AIR7Seas and Anr. 18 any breach of contract.
FINDINGS (ISSUE WISE) ISSUES NO. 2 and 3
14. I would decide issues no. 2 and 3 in the first instance and together as they relate to limitation and jurisdiction of the Court. The burden of proof was on the defendants to show that the suit is barred by law of limitation. At the outset, I note that neither in the written submissions nor in the oral submissions made on behalf of the defendants were the point on limitation addressed. After going through the written statement of defendant no. 1 as well as defendant no. 2, I find that no averments have been made in this regard.
15. However, considering the fact that the Court is duty bound to consider the law of limitation, even though the same has not been set up as defence, I proceed to examine whether the suit is within limitation on the basis of the evidence that has been adduced by the parties at trial.
16. Though, neither Counsel has pointed it out, I find that the present suit falls under Article 11 of the Schedule to the Limitation Act. Article 11 prescribes the limitation period for suits against a carrier for compensation, for non delivery of or delay in delivering goods. It is notable that the aforesaid Article is listed under Part II of the Schedule "Suits relating to contracts." The period of limitation for such suit is three years and the time from which the period begins to run is from when CS No. 16691/16 Proneet Biswas Vs. AIR7Seas and Anr. 19 the goods ought to be delivered. This Article covers all suits for non delivery irrespective of the causes of non delivery. The limitation starts on the expiry of time fixed between the parties and in the absence of any such agreement, the limitation starts on the expiry of reasonable time which is to be decided according to the circumstances of each case.2 The burden lies on the carrier defendant to show when the goods ought to have been delivered. 3 The Court must decide the reasonable time within which the consigned goods ought to have been delivered. Where the correspondence between the parties gives reasonable hopes of delivery, then that alone could be relevant for determining as to when the goods ought to be delivered especially when the whole consignment has not been delivered.4 Where there has been correspondence between the consignee and the carrier, such correspondence might have stayed the hands of the consigner from instituting the suit and in such cases, the Courts liberally construe the third column of Article 11.5
17. I find that the present suit filed on 28.03.2014 is within limitation for the reason that the defendants vide e-mail dated 21.03.2011 (at Sr. No. 14 of Table A of this judgment Ex. PW-1/15) had accepted the payment of USD 2300 and requested for the payment of the custom examination charges and stated 2 Reference can be had in this regard to the commentary on the Limitation Act by B.B. Mitra, 21st Edition, Page 674 and also Boota Mal Vs. Union of India AIR 1962 SC 1716, Commissioners for the Port of Calcutta Vs. Agarpara Co. AIR 1971 Cal 17 and Union of India Vs. Vithallsa AIR 1971 Bom 172. 3 B.B. Mitra (supra) 4 B.B. Mitra (supra) Page 678 and also reference can be had to Himmat Singh Timber Ltd. Vs. Union of India AIR 1962 Cal 494 and Oriental Silk Stores Vs. General Manager AIR 1961 AP 454.
5 B.B. Mitra (supra) Page 678 and also reference can be had to Rameswar Vs. Union of India AIR 1962 Cal 175.
CS No. 16691/16 Proneet Biswas Vs. AIR7Seas and Anr. 20that an early payment would help in the release of goods. Thereafter, vide e-mail dated 05.04.2011 (at Sr. No. 23 of Table A of this judgment) which is an admitted document and placed on record by the defendants whereby the defendant no. 1 had requested the plaintiff to pay the charges and take delivery of the consignment. Therefore, the aforesaid correspondence shows that payment of 2300 USD was acknowledged as late as 21.03.2014 and negotiations were going on with respect to the payment of custom charges of USD 547 and therefore, such correspondence could be said to have stayed the hand of the plaintiff in contemplating legal action with the hope of delivery of goods, the only barrier to which was the payment of USD 547 which was disputed between the parties. Taking a liberal interpretation, it can be said that the suit would be within limitation of three years as the limitation could have started at earliest by 05.04.2011 when the defendants gave hope to the plaintiff of delivery but refused to consider his pleading that the custom charges were included in the agreed upon amount of USD 2300. In any case, defendants have not led any evidence to discharge their burden as to when the goods ought to have been delivered nor was this point pressed during written and oral submissions. Taking into the totality of the facts and circumstances, I find that issue no. 3 has to be held in favour of plaintiff and against the defendants. Issue no. 3 stands decided accordingly.
18. In so far as issue no. 2 is concerned, only a formal objection has been taken in this regard by the written statement of defendant no. 2. The plaintiff is at liberty to quantify the CS No. 16691/16 Proneet Biswas Vs. AIR7Seas and Anr. 21 amount of damages provided that the appropriate court fees is filed. I find that the Court fees has been paid and the suit has been properly valued for the purpose of jurisdiction. Therefore, issue no. 2 is held in favour of plaintiff and against the defendants and stands decided accordingly.
ISSUE NO. 419. Neither the plaintiff nor the defendants have pleaded or led evidence that there was any contract entered into between the plaintiff and the defendant no. 2. Even as per the plaintiff's pleadings and evidence, it has come on record that the plaintiff had entered into a contract with the defendant no. 1. The evidence led by the defendants clearly proves that defendant no. 2 was acting as the agent of defendant no. 1 in India. As per Section 182 of the Indian Contract Act, an agent is a person employed to do any act for another, or to represent another in dealings with third person. The correspondence through e-mails placed on record clearly shows that defendant no. 2 was acting on the instructions of defendant no. 1. This would be clear from a reading of the correspondence e-mail dated 22.03.2011 which is Ex. DW-1/14 and an admitted document (at Sr. No. 22 of Table A in this judgment) whereby, the defendant no. 1 informed defendant no. 2 that the payment had been received and asked them to release the consignment to the consignee after collecting the custom related charges. This correspondence clearly shows CS No. 16691/16 Proneet Biswas Vs. AIR7Seas and Anr. 22 that the defendant no. 2 was an agent of defendant no. 1 and there was no privity of contract with the plaintiff. In such circumstances, Section 230 of the Indian Contract Act comes into effect. The provision states that in the absence of any contract, to the contrary, an agent can neither enforce the contract entered into nor is he personally bound by them. In the present case, the agent (defendant no. 2) had not even entered into any contract on behalf of defendant no. 1 and therefore, cannot be held liable under such contract. The cause of action in the present suit is on the basis of contract and not one in tort. In fact, para 23 of the plaint does not even disclose any cause of action specifically against defendant no. 2 apart from stating that the cause of action arose when the plaintiff demanded the delivery order and custom out of charge documents from defendant no. 2. Even assuming that the defendant no. 2 could be held liable for loss of the goods due to not delivering the required documents for getting the goods released from CWC, it would not mean that the same would create any privity of contract between the defendant no. 2 and plaintiff. The plaintiff has relied upon the judgment of the Hon'ble Supreme Court in Link International and Anr. Vs. Mandya National Paper Mills Ltd. 2004 6 SCC 516 to submit that the defendant no. 2 should be made liable as an agent of defendant no. 1 despite there being no privity of contract. The said contention is rejected as misplaced in law for the reason that in that case, the Hon'ble Supreme Court had found that the trial court and appellate court had given finding of fact that the agent had facilitated the playing of a fraud upon the plaintiff in that CS No. 16691/16 Proneet Biswas Vs. AIR7Seas and Anr. 23 case and therefore, in such cases, the agent would be personally liable for the loss caused. The said decision is inapplicable in the present case as there is no pleading of fraud, nor do I find that there is any element of fraud in the evidence led by the parties. Therefore, this issue is held in favour of defendant no. 2 and against the plaintiff and stands decided accordingly.
ISSUES NO. 1, 5 and 620. I would decide issues no. 1, 5 and 6 together as the said issues are interconnected and the decision of one would automatically lead to the decision in the rest. Now, question that arises is whether there has been a breach of contract and by whom. If, it is found that the defendant no. 1 had breached the contract, then the plaintiff would succeed in recovery of damages provided that he meets the conditions of Section 73 of the Indian Contract Act. If, however, it is found that it was the plaintiff who had breached the contract, then the situation would be different.
21. In Civil Appeal No. 4083 of 2020 titled "Anglo Americal Metallurgical Coal Pty. Ltd. Vs. MMTC Ltd. (2021) 3 Supreme Court Cases 308, it is held by Hon'ble Supreme Court of India that:
"38. The approach of the Singapore Court of Appeal has our broad approval, being in line with the modern contextual approach to the interpretation of contracts. When Proviso (6) and Illustration (f) to Section 92, Section 94 and Section 95 of the Evidence Act are read together, CS No. 16691/16 Proneet Biswas Vs. AIR7Seas and Anr. 24 the picture that emerges is that when there are a number of documents exchanged between the parties in the performance of a contract, all of them must be read as a connected whole, relating each particular document to "existing facts", which include how particular words are used in a particular sense, given the entirety of correspondence between the parties. Thus, after the application of Proviso (6) to Section 92 of the Evidence Act, the adjudicating authority must be very careful when it applies provisions dealing with patent ambiguity, as it must first ascertain whether the plain language of a particular document applies accurately to existing facts. If, however, it is ambiguous or unmeaning in reference to existing facts, evidence may then be given to show that the words used in a particular document were used in a sense that would make the aforesaid words meaningful in the context of the entirety of the correspondence between the parties.
39. This approach is also reflected in a recent judgment of this Court in Transmission Corpn. Of Andhra Pradesh Ltd. v. GMR Vemagiri Power Generation Ltd., as follows: (SCC p. 727, para 21) '21. In the event of any ambiguity arising, the terms of the contract will have to be interpreted by taking into consideration all surrounding facts and circumstances, including correspondence exchanged, to arrive at the real intendment of the parties, and not what one of the parties may contend subsequently to have been the CS No. 16691/16 Proneet Biswas Vs. AIR7Seas and Anr. 25 intendment or to say as included afterwards, as observed in Bank Of India v. K. Mohandas: (SCC p. 328, para 28) '28. The true construction of a contract must depend upon the import of the words used and not upon what the parties choose to say afterwards. Nor does subsequent conduct of the parties in the performance of the contract affect the true effect of the clear and unambiguous words used in the contract. The intention of the parties must be ascertained from the language they have used, considered in the light of the surrounding circumstances and the object of the contract. The nature and purpose of the contract is an important guide in ascertaining the intention of the parties.' "
22. In CS (OS) No. 1599/1999 titled as Sandvik Asia Pvt. Ltd. v. Vardhman Promoters Pvt. Ltd. 2007 (94) DRJ 762, it is held by Hon'ble High Court of Delhi that:
"17. On the question of interpretation of contracts, Courts have time and again reiterated the principle of harmonious construction of the terms of a contract. Chitty, in Chitty on Contracts, Volume 1, (29 th Edition) observes:-
'12-063 The whole contract is to be considered. Every contract is to be construed with reference to its object and the whole of its terms [Throcmerton v. Trucey CS No. 16691/16 Proneet Biswas Vs. AIR7Seas and Anr. 26 (1585) 1 Plow. 145, 161] and accordingly, the whole context must be considered in endeavoring to collect the intention of the parties, even though the immediate object of inquiry is the meaning of an isolated word or clause. [International Fina Services AG v. Katrina Shipping Limited, (1995) 2 Lloyd's Rep. 344, 350]. It is true rule of construction that the sense and meaning of the parties in any particular part of an instrument may be collected ex antecedentibus et consequentibus;
every part of it may be brought into action in order to collect from the whole one uniform and consistent sense, if that may be done. [Coles v. Hulme (1828) 8 B. & C. 568] And so Lord Davey said in N.E. Railway v. Hastings, [(1900) A.C. 260, 267] quoting Lord Watsons. [Chamber Golliery v. Twyerould (1893), [1951] 1 Ch. 268n., 272]. "The deed must be read as a whole in order to ascertain the true meaning of its several clauses, and the words of each clause should be interpreted as to bring them into harmony with the other provisions of the deed if that interpretation does no violence to the meaning of which they are naturally susceptible."
23. Therefore, in light of the law as laid down with respect to the interpretation of contracts, the terms and conditions of the contract in the present case have to be inferred from the holistic reading of the correspondence between the parties as the terms and conditions of the contract are not contained in one CS No. 16691/16 Proneet Biswas Vs. AIR7Seas and Anr. 27 document/deed. Therefore, I have considered all the e-mails as mentioned in Table A of this judgment. It is apparent that vide the exchange of e-mails which are Ex. PW-1/1, the parties were exploring the possibility of entering into a contract for transport and delivery of goods and no contract had been concluded as such. Vide Ex. PW-1/D1, the defendant no. 1 had sent an e-mail on 18.08.2010 whereby it is written "dear Proneet, thanks for giving us the opportunity to quote you for your relocation. Here is our introduction, service types and quotation attached with this e-mail for your kind perusal. Looking forward for your biz and assuring our best service all the way......" Annexed with this e-mail are the terms and conditions which have been already extracted in Table A at Sr. No. 18 of this judgment. At this point, i.e. on 18.08.2010, there was no concluded contract and the defendant no. 1 had merely informed the plaintiff about the rough estimate that he might expect if he chose to avail of the services of defendant no. 1. This is made clear by the e-mail dated 20.08.2010 which is Ex. DW-1/3 (admitted document) sent by defendant no. 1 to plaintiff which reads as "it was nice talking to you, please provide the final no. of boxes and we can quote the final cost." Thereafter, on 09.09.2010, the plaintiff gave a list of items and also inquired whether the defendant no. 1 could handle fragile material like glass coffee tables vide e-mail Ex. DW-1/4 which is an admitted document. On the same day, in reply, the defendant no. 1 replied that total cost would be USD 1690 door- to-door vide e-mail Ex. PW-1/D3 which is an admitted document. In reply to this on 28.09.2010, the plaintiff gave a list CS No. 16691/16 Proneet Biswas Vs. AIR7Seas and Anr. 28 of items to be packed which included one glass coffee table vide e-mail Ex. DW-1/5 which again is an admitted document. On a perusal of the correspondence, vide e-mail dated 27.09.2010 which is again admitted, the plaintiff informed the defendant no. 1 about the pick up and drop addresses as well as the pick up date. Pick up order dated 06.10.2010 was issued by defendant no. 1 which is again an admitted document. Therefore, it appears that contract had been concluded finally and the defendant no. 1 had agreed to transfer the goods of the plaintiff from USA to India door-to-door at the rate of 1690 USD.
24. There is no dispute that the goods were picked up from the plaintiff, packed and shipped to New Delhi. However, trouble arose when according to defendant no. 1, an unexpected custom inspection took place. The plaintiff was informed about this vide e-mail dated 01.12.2010 which is admitted document Ex. DW-1/8. It is important to note that the defendant no. 1 was informed about the customs examination vide e-mail dated 18.11.2010 which is an admitted document Ex. DW-1/7 sent to defendant no. 1 by Leticia Ramirez. Invoice for this customs examination was generated on 30.11.2010 as per defendant no. 1 and there is no reason to disbelieve the evidence on this account. Vide e-mail dated 03.12.2010 (admitted document Ex. PW-1/6 at Sr. No. 6 of Table A in this judgment), defendant no. 1 admitted that the custom spot examination had not been taken into account and that it was an exceptional case and that they were constrained to pass it on to the customers.
25. After continued renegotiations vide e-mails dated CS No. 16691/16 Proneet Biswas Vs. AIR7Seas and Anr. 29 16.02.2011, 17.02.2011 and 28.02.2011, which are admitted documents Ex. PW-1/9, finally one fresh offer vide e-mail Ex. PW-1/12 which is an admitted document (at Sr. No. 10 of Table A in this judgment) was made by the defendant no. 1. Here, it would be necessary to relate the complete contents of this e-mail which are as follows:
"Hello Proneet Thanks for your e mail. After I received your e mail we dicused it with the management and this is the decision we have come to. The original quote clearly states $ 1690 for 150 cft. Your CFT was 361.30. The quote also states sales First 50 Cft $995 and additional @$ 6.95/CFT.
You handed over your shipment and left. The shipment cannot accrue storage here as, the console was leaving and if we miss this console we have to wait for one more month. The customs does this random examination, and it is unfortunate your container was the one chosen. This cost should be shared by the console shipments.
Based on all the above, you know very clearly we were not at fault. The warehouse receipt has also been sent. To come to a settlement we are willing to take a loss and give you the benefit of your shipment.
If it goes for auction, it is a loss of money and sentiment as there is TV/exercise equipment/clothes/WII games, kitchen utensils books and a lot more on 3 pallets.
I have been on your side for the discussions yesterday and this is what we have concluded.CS No. 16691/16 Proneet Biswas Vs. AIR7Seas and Anr. 30
Now to clear the shipment you can choose from two options.
1) Door to Port.......you pay $ 1750 and all destination and customs clearance charges will be your responsibility.
2) Door to Door.......You pay $ 2300 and we will drop it off at the door after clearance............."
26. Vide exchange of e-mails Ex. PW-1/13 (at Sr. Nos. 11 and 12 of Table A in this judgment), the plaintiff and defendant no. 1 again negotiate with respect to verification of wire transfer and mode of payment. It is interesting to note that vide e-mail dated 11.03.2011 sent by defendant no. 1, the defendant no. 1 states that USD 2300 is the last offer as it is the actual cost. The aforesaid offer is accepted finally by the plaintiff by his conduct of paying 2300 USD through cashier's cheque Ex. PW-1/14 which is dated 18.03.2011 and which is acknowledged vide e-mail Ex. PW-1/15 dated 21.03.2011. What comes out from a reading of the correspondence is that USD 2300 was offered and accepted vide payment of the same by the plaintiff on 18.03.2011. Therefore, the previous contract that had been concluded stood novated. The cost of USD 547 was well within the contemplation of defendant no. 1 as would be clear from the e-mail Ex. PW-1/12 and after taking everything into consideration, defendant no. 1 had made an offer of USD 2300 for door-to-door and USD 1750 for door-to-port. Vide subsequent e-mail, they had confirmed this offer and noted that it was the actual cost. No doubt that once the payment was received, vide e- mail dated 23.03.2011 which is again an admitted document Ex.
CS No. 16691/16 Proneet Biswas Vs. AIR7Seas and Anr. 31PW-1/15 (at Sr. No. 14 of Table A in this judgment), the defendant no. 1 tried to portray that there was a miscommunication and that USD 547 which were the custom spot check examination charges did not form part of the offer of USD 2300 door-to-door. However, in my view, the defendant no. 1 cannot be allowed to prove that there was any ambiguity in the offer of USD 2300. This is because of Section 94 of the Indian Evidence Act which states that when language used in a document is plain in itself and when it applies accurately to existing facts, evidence may not be given to show that it was not meant to apply to such facts. In the present case, what comes out is that on the day on which the fresh offer of USD 2300 for door- to-door delivery was made, the charge of USD 547 was well within the knowledge of defendant no. 1. The defendant no. 1 himself then touted that USD 2300 was the actual cost born by defendant no. 1 and that it was the final amount. The formation of the contract stood concluded by the payment of USD 2300 by the plaintiff on 18.03.2011 which amount was received latest by 21.03.2011 by defendant no. 1. The defendant no. 1 was therefore, under an obligation under the contract to deliver the goods door-to-door. The phrase "door-to-door" carries no hidden meaning and simply means that the consignment would be delivered at the doorstep of the consignee that is the plaintiff in the present case. This would also be clear from the cross- examination of DW-1 where the witness was specifically asked about the meaning of door-to-door wherein the witness DW-1 CS No. 16691/16 Proneet Biswas Vs. AIR7Seas and Anr. 32 admitted that in door-to-door delivery, goods are handed over at the party's address.
27. Therefore, the concluded contract which was a fresh contract and which substituted the previous contract was one for door-to-door delivery on the payment of USD 2300. The plaintiff performed his promise, however, the defendant no. 1 was in breach of this contract as they instructed defendant no. 2 not to release the consignment till such time the amount of USD 547 was not paid by the plaintiff. Ultimately, the goods were not delivered as promised by the defendant no. 1 at the doorstep of the plaintiff. Therefore, this Court finds that it was the defendant no. 1 who breached the contract and not the plaintiff. Issue no. 1 is therefore, decided in favour of the plaintiff and against the defendant no. 1.
28. Coming to the issue of the quantification of damages, it is trite law that every breach of contract does not lead ipso facto a decree for recovery of damages. As per the law which has developed under Section 73 of The Indian Contract Act, a party is entitled to receive compensation for the actual loss or damage caused to him thereby. Damages are granted only for the actual loss caused and cannot be based on guesswork.6 The principle is to put the aggrieved party monetarily in the same position as far as possible in which it would have been if the contract would have been performed.7 No damages in contract are awarded for injury to the plaintiff's feelings, or for his mental 6 Reference can be had to ONGC Ltd. Vs. Offshore Enterprises 2011 (14) SCC 147 and also to Pollock & Mulla, Indian Contract Act, 1872, 15th Edition, 2018 p. 1093. 7 Pollock & Mulla (supra) p. 1093 CS No. 16691/16 Proneet Biswas Vs. AIR7Seas and Anr. 33 distress, anguish, annoyings, loss of reputation, etc. 8 Party claiming compensation is under an obligation to plead and prove the loss suffered on account of breach and the burden lies strictly on the plaintiff.9 Damages cannot merely be granted on the basis of the claim statement without any supporting material and evidence on record.10 The plaintiff must also plead that he took measures to mitigate the damages. The plaintiff has to take all reasonable steps to mitigate the loss consequent to the breach.
29. In the present case, the plaintiff has suffered a loss of USD 2300 which was paid by him to the defendant no. 1, but even after such payment, the service contracted for was not rendered. Judicial notice can be taken of the fact that in 2011, the average exchange rate was Rs. 45 per US dollar and therefore, the amount of USD 2300 would amount to Rs. 1,03,500/-. The loss of the aforesaid amount is clearly made out. Even otherwise, the defendant no. 1 cannot be allowed to retain the sum of money received under a contract for which they have been found to be in breach thereof.
30. The plaintiff has further claimed an amount of Rs. 2,77,000/- for the value of goods not delivered. I find that the amount of damages of Rs. 2,77,000/- for the value of goods cannot be granted firstly, for the reason that the plaintiff has placed on record no evidence to enable this Court to determine whether the aforesaid amount is a reasonable estimate of the 8 Ghaziabad Development Authority Vs. Union of India 2000 (6) SCC 113 and Pollock & Mulla (supra) p. 1093.
9 Pollock & Mulla (supra) p. 1150.
10 Reference can be had to State of Rajasthan Vs. Ferro Concrete Construction Ltd. 2009 (12) SCC 1 and Pollock & Mulla (supra) p. 1151.
CS No. 16691/16 Proneet Biswas Vs. AIR7Seas and Anr. 34value of goods. No corroborating evidence was placed on record to prove the value of goods and moreover, it was not even led in evidence as to the number of years that had elapsed since the purchase of the household goods. Judicial notice can be taken of the fact that such items as disclosed by the plaintiff are depreciating in value and lose most of their value immediately after purchase. The claim of the plaintiff with respect to such value of goods is merely a bland assertion and no more. Secondly, damages for the loss of goods cannot be granted because the plaintiff has failed to mitigate the damages. It has come in evidence that the plaintiff had become aware that his goods were lying with CWC on 09.05.2011 vide notice of the CWC which is Ex. PW-1/16 since 24.01.2011. However, it is not clear as to what steps were immediately taken by the plaintiff to get the goods released. Any reasonable person would have paid the demurrage at the earliest and insisted for the release of goods, before the demurrage exceeded the cost of goods. In the present case, even after the order of the Hon'ble High Court dated 08.01.2014, the extract of which is at Sr. No. 15 of Table A in this judgment, the plaintiff kept trying to get the demurrage charges waived. At no point, did the plaintiff show that he was ready to pay the heavy sum of demurrage charges which had accumulated by the year 2014. This was so despite the order of the Hon'ble High Court directing the plaintiff to pay the storage and demurrage costs within four weeks vide order dated 08.01.2014. It would be reasonable to assume that this was so because on a CS No. 16691/16 Proneet Biswas Vs. AIR7Seas and Anr. 35 cost benefit analysis, the demurrage charges must have been more than the actual cost of the goods themselves. Moreover, if one were to accept as correct that the goods were valued at 2,77,000/- INR then the simplest course of action for a reasonable man would have been to pay the charge of USD 547 under protest (which at the then exchange rate of 2011 comes to 24,615 INR) and take delivery of the goods. The plaintiff could then have claimed the costs of demurrage and the extra amount of 547 USD as damages which would be much less than the value of goods valued by the plaintiff at Rs. 2,77,000/-. This also makes the valuation of Rs. 2,77,000/- unbelievable and unreliable. For the aforesaid two reasons, I find that the damages as claimed of Rs. 2,77,000/- cannot be granted to the plaintiff.
31. In so far as the damages for travel and legal of Rs. 1,33,000/- are concerned, again, they cannot be granted for the reason that no evidence has been placed on record with respect to the same and no pleader certificate has been placed on record.
32. In so far as, the damages of Rs. 5,00,000/- on account of mental agony and harassment cannot be granted due to the law already cited above. The action brought by the plaintiff is for a breach of contract and not in tort and therefore, the Court cannot, in the absence of any special evidence, showing that the goods had special sentimental value, grant damages on the ground of mental agony. Therefore, the issue no. 5 is decided accordingly i.e. partially in favour of plaintiff and against the defendant no. 1. As I have already found that defendant no. 2 being an agent cannot be held liable for the contract of his CS No. 16691/16 Proneet Biswas Vs. AIR7Seas and Anr. 36 principal, he cannot be held liable and therefore, issue no. 5 is decided in favour of defendant no. 2 and against the plaintiff.
33. There is one more reason that the plaintiff should not be granted damages, for the loss of goods. It has come on record during the cross-examination of PW-1 i.e. the plaintiff that he did not place on record Ex. PW-1/D1 which was the e-mail dated 18.08.2010 containing the original quote and terms and conditions (extracted herein at Sr. No. 18 of Table A in this judgment). This is despite the fact that otherwise the plaintiff has taken great pains to place on record all the e-mails exchanged between the parties. No explanation has been given as to why the said document was not placed on record by the plaintiff. Even though, the decision of the case ultimately did not wholly rely on the aforesaid document, however, it was the duty of the plaintiff to produce all the documents in his possession.
34. In so far as the interest pendente lite is concerned, in absence of any special contract, or trade usage, I find that the interest of 6% per annum pendente lite is sufficient. Moreover, the plaintiff is also granted pre litigation interest from 21.03.2011 till date of filing of the suit i.e. 28.03.2014. Issue no. 6 is decided accordingly, in favour of plaintiff and against the defendant no. 1.
RELIEF
35. Therefore, it is held that the plaintiff is entitled to a recovery of Rs. 1,03,500/- along with interest of 6% per annum CS No. 16691/16 Proneet Biswas Vs. AIR7Seas and Anr. 37 pendente lite i.e. from the date of filing of the present suit till date of decree and pre litigation interest of 6% per annum from 21.03.2011 till the date of filing of the present suit i.e. 28.03.2014 from defendant no. 1 i.e. M/s AIR7Seas Transport Logistics Inc. only.
36. Cost of the suit is awarded in favour of plaintiff and against the defendants.
37. Decree-sheet be prepared accordingly.
38. File be consigned to Record Room after due compliance.
Digitally signed by DIVYANG THAKUR DIVYANG Date:
THAKUR 2022.08.04
16:03:37
+0530
Announced in the open court (Sh. Divyang Thakur)
On 04.08.2022 ADJ-03/South West
Dwarka / New Delhi
Note: This judgment is having 38 pages and each page is bearing my signatures. Digitally signed by DIVYANG THAKUR DIVYANG Date:
THAKUR 2022.08.04
16:03:47
+0530
(Sh. Divyang Thakur)
ADJ-03/South West
Dwarka / New Delhi
CS No. 16691/16
Proneet Biswas Vs. AIR7Seas and Anr. 38