Delhi District Court
M/S Eximcorp India Pvt. Ltd. vs . M/S Cosco Shipping Lines (India) Pvt. on 23 October, 2021
IN THE COURT OF SHEETAL CHAUDHARY PRADHAN
Administrative Civil Judge - Commercial Civil Judge
Additional Rent Controller
SouthEast, Saket Courts, Delhi
CS No.990/2019
M/s Eximcorp India Pvt. Ltd. Vs. M/S COSCO Shipping Lines (India) Pvt.
Ltd.
M/s Eximcorp India Pvt. Ltd.
Having its registered office at 25, RN, Mookherjee
Road, Mission Court, 4th Floor,
Suite C, Kolkata700001.
And
Branch office at:88/1417, Mundka Industrial Area,
Delhi Rohtak Road, Road No.12, New Delhi110041.
Through its authorized person
Mr. Aashish Kumar
......Plaintiff
VERSUS
M/S COSCO Shippng Lines (India) Pvt. Ltd.
227, 2nd Floor, Okhla Industrial Estate,
PhaseIII, New Delhi110020.
Ph: +911166266600
Email: coscoshipping@coscoindiadelhi.net .....
Defendant
Date of institution : 28.05.2019
Arguments heard : 30.09.2021
Date of order : 23.10.2021
________________________________________________________________
CS SCJ 990/2019
M/s Eximcorp India Pvt. Ltd. Vs. M/S COSCO Shipping Lines (India) Pvt. Ltd.
Page 1 of 12
JUDGMENT
FACTS OF THE CASE:
1. The present suit seeking recovery of Rs.2,12,495/ has been preferred by plaintiff company against defendant company.
2. It is the case of plaintiff company that it is involved in the business of imports since 1996 and is dealing with different world renowned shipping lines. The plaintiff company issued a Bill of Lading No.COSU8018185940 dated 08.03.2019 for shipment of goods of 05x40 HC Container said to contain 64 bundles with 18432 pieces of the plaintiff having Port of Loding as Navegantes in Brazil to Port of Discharge as Mundra and ICD (Inland Container Depot) Tuglakabad, India as a place of delivery, type of movement FCL/FCL CYCY (Container Yard to Container Yard).
3. The defendant acting as an agent in India of the said shipping line issued invoice no.IMPDEL190500542 dated 02.05.2019 and had sent to the same to the plaintiff through email in respect to the said shipment in which the defendant had charged the plaintiff for Inland Haulage at discharge for an amount of Rs.5,30,270/, for equipment management fee Rs.10,000/, for containing cleaning charges Rs.10,000/, mandatory user charges Rs.725/ and container imbalance surcharges for Rs.50,000/. In this ________________________________________________________________ CS SCJ 990/2019 M/s Eximcorp India Pvt. Ltd. Vs. M/S COSCO Shipping Lines (India) Pvt. Ltd.Page 2 of 12
regard plaintiff through email dated 02.05.2019 requested the defendant to remove the containing imbalance surcharge, equipment management fee and mandatory user charges which were not applicable and requested to issue amended invoice. However vide return email on 02.05.2019 defendants refused to waive off any charges. Vide another email dated 02.05.2019, plaintiff disputed the charges and the invoice generated by the defendant and again requested to amend and modify the invoice. Vide email dated 03.05.2019 defendant replied that the charges were as per local tariff, to which plaintiff replied that the charges were unreasonable. However plaintiff had no option but paid the charges on delivery of the goods on an online payment on 09.05.2019 for the said invoice no.IMPDEL190500542 for an amount of Rs.7,14,485/. Plaintiff has averred that an amount of Rs.1,62,495/ was illegally charged by the defendant for releasing the cargo of the plaintiff on 09.05.2019. Further that the plaintiff was harassed by the defendant and a compensation of Rs.50,000/ is required to be paid to the plaintiff for the harassment caused and therefore the plaintiff is entitled to recovery an amount of Rs.2,12,495/.
4. It is submitted on behalf of the defendants in the written statement filed that the plaintiff are not entitled for any claims since firstly the jurisdiction of the present court is not made out and the court of jurisdiction is only at Mumbai in view of Section 20 of CPC. Further ________________________________________________________________ CS SCJ 990/2019 M/s Eximcorp India Pvt. Ltd. Vs. M/S COSCO Shipping Lines (India) Pvt. Ltd.
Page 3 of 12defendant had been into shipping business for a long time and having good reputation in the market and the charges levied were not arbitrary. Further defendants have not mentioned about any charges in the bill of lading as claimed by the plaintiff and infact it is stated in the bill of lading under the terms and conditions that the information in regards to the tariff need to be obtained from the carrier or his agent but the same was not done by the plaintiff. It is further averred that the bill of lading cannot be treated as part of invoice defendant relied upon the judgment in the case of {Shipping Corporation of India Vs. Bharat EARth Movers Ltd. 2008 (2SCC)79}.
5. On service of summons, defendants appeared and filed their written statement. It is their stand in the said statement that allegations against them are frivolous and vexatious, without any substance in the eyes of law. It is their case that the charges levied on the Cargo were as per the norms and the bill of laiding cannot be treated as part of the invoice. It is, thus, requested that suit be dismissed.
6. Plaintiff company, in reply to the aforesaid written statement, filed a replication wherein it is submitted that defendants have relied upon a cooked up story to defeat its legal right. It is stated that defendant has raised frivolous objections pertaining to the jurisdiction of the present court since the defendant is already having a subordinate office in jurisdiction of the ________________________________________________________________ CS SCJ 990/2019 M/s Eximcorp India Pvt. Ltd. Vs. M/S COSCO Shipping Lines (India) Pvt. Ltd.
Page 4 of 12present court and thus, the pleas are an afterthought. Plaintiff has denied all the allegations of defendants in its replication.
7. On completion of pleadings, the following issues were framed:
1. Whether the plaintiff is entitled to the decree for the sum of Rs. 2,12,495/ alongwith pendent lite and future interest @ 18% p.a.? OPP
2. Whether the suit has been filed without territorial jurisdiction? OPD
3. Whether the plaintiff is entitled to the cost of proceedings? OPP
4. Relief.
8. In support of its case, plaintiff examined its AR Aashish Kumar as its witness. The said witness reiterated the averments made in plaint and relied upon the following documents in affidavit Ex. PW1/A.
a) Board Resolution dated 05.01.2012 as Ex. PW1/1;
b) Certified copy of incorporation certificate as Ex. PW1/2;
c) The original bill of Lading No.COSU8018185940 dated 08.03.2019 along with terms and conditions as Ex.PW1/3 (Colly.);
d) Copy of the tax invoice as Ex. PW1/4;
e) Certificate U/s 65 B of Indian Evidence Act in respect of,
Tax Invoice, Emails exchanged between the parties and ________________________________________________________________ CS SCJ 990/2019 M/s Eximcorp India Pvt. Ltd. Vs. M/S COSCO Shipping Lines (India) Pvt. Ltd.
Page 5 of 12proof of payment as Ex. PW1/5;
f) Correspondence exchanged (through email) with the defendant as Ex. PW1/6 (Colly.);
g) Legal demand notice dated 06.05.2019 as Ex. PW1/7;
h) Proof of sending legal notice through email on
06.05.2019 as Ex. PW1/8;
I) Postal receipt dated 06.05.2019 as Ex. PW1/9;
j) Tracking report as Ex. PW1/10;
k) Certificate U/s 65 B of Indian Evidence Act in respect of
proof of sending notice through email and downloading tracking report as Ex/ PW1/11; &
l) Copy of online payment of Rs.7,14,485/ as Ex PW1/12.
9. The witness was cross examined at length by learned counsel for defendants. PE was closed on statement of AR of plaintiff.
10. To rebut the case of plaintiff, AR for defendant company Sh. Vinod Goswami examined himself as DW1. He also reiterated the averments made in written statement and filed an affidavit of evidence which is Ex. DW1/X. He also relied upon document Ex.DW1/1(colly). The mode and manner of proof was objected by Ld. Counsel for the plaintiff. The witness was cross examined in detail by learned counsel for plaintiff.
________________________________________________________________ CS SCJ 990/2019 M/s Eximcorp India Pvt. Ltd. Vs. M/S COSCO Shipping Lines (India) Pvt. Ltd.
Page 6 of 1211. Final arguments advanced by both the learned counsels for parties heard. Record carefully perused.
12. The issuewise discussion and appreciation of evidence is as follows:
Issue No.1 & 3 Whether the plaintiff is entitled to a decree of Rs.2,12,495/ alongwith pendelite and future interest @ 18% per annum as prayed for? OPP and Whether the plaintiff is entitled to the cost of proceedings? OPP 12.1. As succinctly stated in the preceding paragraphs, plaintiff company is seeking an amount of Rs.2,12,495/ as preestimated damages and compensation from the defendants for over charging and same be unreasonable for the delivery of the goods.
12.2. The claim has interalia been challenged by defendants by examination of DW1/AR for defendant who in his crossexamination has stated that the standard tariff charges were charged from the plaintiff and the same is charged from each and every customer at the time or before booking of any shipment. The invoice was issued only after the container arrived at ICD Tuglakabad, Mundra. Further they were not charged as per the revised tariff which was effective from 15.05.2019 and the Cargo was delivered on ________________________________________________________________ CS SCJ 990/2019 M/s Eximcorp India Pvt. Ltd. Vs. M/S COSCO Shipping Lines (India) Pvt. Ltd.Page 7 of 12
02.05.2019.
12.3. Before adverting to the rival contentions of learned counsels for the parties, the admitted facts and documents must be listed out to curtail discussion on the same. Defendant admittedly issued tax invoice Ex.PW1/4 to the plaintiff company. It is also not disputed that the goods were delivered on 02.05.2019 and the payment for the same was received by the defendant.
Defendant has not disputed the documents relied upon by the plaintiff i.e. document Ex.PW1/1 to Ex.PW1/12. The only defence of defendant is that, the charges levelled by them were as per the norms prevalent during that time and the same were communicated to the plaintiff prior to the delivery of the goods, and were accepted by the plaintiff upon payment.
12.4. It is a matter of common knowledge that any person while booking for the services on knowing the charges always has an option to cancel the booked shipment or look for other options. Further it is admitted by the plaintiff that when it came to its knowledge regarding the charges which shall be levied by the defendant for delivery of the articles, it was assumed that the plaintiff was ready and willing to accept the goods on payment made. Further the plaintiff had written several emails to the defendant objecting to the amount raised in the bill of lading and in each reply to the aforesaid emails defendant maintained its stand by showing ________________________________________________________________ CS SCJ 990/2019 M/s Eximcorp India Pvt. Ltd. Vs. M/S COSCO Shipping Lines (India) Pvt. Ltd.
Page 8 of 12incapacity for any change in the charges and therefore the claim of the plaintiff that he still will exercise his right to approach the court, challenging the charges is not tenable. Plaintiff had enough opportunities to reconsider the delivery of goods through the defendant but still continue to receive the same on making payment. Therefore, it is necessary to see the law laid down by under the Indian Contract Act in this regard to effectively appreciate the contentions of the learned counsels.
Sec. 74 of the Indian Contract Act, provides that in the event of a breach of a contract in which there was a stipulation that a sum or penalty is to be paid in case of such breach, then the party claiming such breach is entitled to receive, from the defaulting party such sum or penalty.
12.5. It is clear that to be a valid contract prerequisities of a valid contract are free consent, competent parties, lawful object, lawful consideration and not being expressly declared void are fulfilled.
12.6. It is the argument of learned counsel for defendant that defendant entered into the contract and also disclosed the amount or the charges for the shipment and had not done any misrepresentation of the facts and the plaintiff had given the consent willfully by making the payment to the defendant. Learned counsels for plaintiff, however, denied the averments ________________________________________________________________ CS SCJ 990/2019 M/s Eximcorp India Pvt. Ltd. Vs. M/S COSCO Shipping Lines (India) Pvt. Ltd.
Page 9 of 12made on behalf of defendant and has stated that they were well within their legal right to challenge the unreasonable charges imposed upon by them by the defendant company and they had mentioned repeatedly to the defendant that they were making the payment under protest. As far as the averments on behalf of both the parties are made, no duress, coercion or misrepresentation can be imputed upon defendant in getting the shipment of the plaintiff delivered to Delhi.
12.7. In the opinion of Court, the tax invoice Ex.PW1/4 clearly mentions the different heads under which the charges are made agaisnt the delivery of goods/shipmet of the plaintiff. The same was delivered to the plaintiff within time and there was no breach of contract. The same was duly received by the plaintiff.
12.8. In the opinion of court, plaintiff company has failed to satisfactorily explain the manner in which, defendant company had over charged and has failed to explain or bring on record any document to show as to what were the existing charges as per the plaintiff. Further the contentions raised by the plaintiff that the charges raised by the plaintiff in the invoice were unreasonable is also fanciful and imaginary and the plaintiff has failed to bring on record any evidence in the form of document pertaining to the prevalent charges as per the norms of the trade. This ________________________________________________________________ CS SCJ 990/2019 M/s Eximcorp India Pvt. Ltd. Vs. M/S COSCO Shipping Lines (India) Pvt. Ltd.
Page 10 of 12observation is fortified by the fact that even the emails written by the plaintiff does not disclose as to what was the reasonable charges that the plaintiff was expecting from the defendant. Further the plaintiff has failed to state the factors which should have been specially taken into consideration by the defendant while levying charges on the plaintiff for the shipment to be delivered. In fact plaintiff chose to keep silent till the last day of the delivery of the goods which he eventually received. Such a conduct of plaintiff does not strengthen his contention of raising the claim before the court.
12.9. In the present factual gamut, it is explicit that plaintiff utilized the services of the defendant company and thereafter chose to prosecute the defendant. The categorical answers of DW1 during his cross examination lend credence to the case of defendant.
12.10. It is observed that all the necessary prerequisities of a valid contract like free consent, competent parties, lawful object and consideration, not being expressly declared void have been duly adhered to in this case. Besides the essentials of contract, the tax invoice was also found reasonable.
12.11. Therefore, in my consider view no case in favour of plaintiff is ________________________________________________________________ CS SCJ 990/2019 M/s Eximcorp India Pvt. Ltd. Vs. M/S COSCO Shipping Lines (India) Pvt. Ltd.
Page 11 of 12made out to seek recovery of amount and cost to the sum of Rs.2,12,495/ from the defendant. Issue no. 1 & 3 are, therefore, decided in favour of defendant.
Issue no. 2: Whether the suit has been filed without territorial jurisdiction? OPD
13. It is observed that since the defendant was having a subordinate office at Okhla Industrial Estate, and the defendant was served upon the aforesaid address which is in the jurisdiction of the present court, the suit is filed by the plaintiff within the territorial jurisdiction of the court. The issue is, accordingly, decided in favour of plaintiff and against the defendants.
Relief.
14. In view of the above discussion, no relief is made out in favour of plaintiffs and the present suit is, accordingly, dismissed. No order as to costs. Decreesheet be prepared accordingly.
Digitally signed by SHEETALAnnounced in open Court SHEETAL CHAUDHARY
CHAUDHARY Date: 2021.10.25 15:10:25
on 23rd October, 2021 (Sheetal Chaudhary Pradhan)
+0530
ACJcumCCJcumARC (South East)
Saket Courts, New Delhi
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