Delhi District Court
M/S. Daga Air Agents vs M/S. Sai Globals on 31 January, 2015
1
IN THE COURT OF SH. LAL SINGH,
ADJ-03 (SOUTH WEST), DWARKA COURT COMPLEX, NEW DELHI
SUIT NO.229/11
IN THE MATTER OF :
M/s. Daga Air Agents
(a partnership firm)
through authorized representative
Shri Anurag Daga,
S/o. Shri D.D. Daga,
at ACAAI Cargo Terminal,
near Nagal Dairy,
New Delhi-37. .............Plaintiff.
Versus
M/s. Sai Globals,
through Ajay Jain, sole prop.
A-9, Oberoi Apartment,
2, Shamnath Marg,
Delhi-110054. ..........Defendant.
Date of Institution of petition: 06/07/2011
Date on which judgment was reserved: 08/01/15
Date of judgment : 31/01/2015
JUDGMENT
1. The present suit for recovery in the sum of Rs.
7,06,977/- (Rupees seven lacs six thousand nine hundred seventy seven only) along with interest has been filed by the plaintiff against the defendant.
2. Brief relevant facts of the case are that the plaintiff is a registered partnership firm and working as Cargo booking agents for different airlines and plaintiff's firm also make booking for and on behalf of airlines as their authorized agents for sending cargo to Suit No.229/11 M/s. Daga Air Agents Vs. M/s Sai Globals 2 different destinations around the world. Plaintiff states that the defendant is a sole proprietorship and an exporter who is manufacturing garments and the plaintiff had worked for defendant by sending their goods for export to their buyers at different destination worldwide. Plaintiff claims that these service were rendered by the plaintiff to the defendant at their request and for these service the plaintiff used to raise the bills from time to time as and when the services were rendered. Plaintiff also claims that the plaintiff and defendant were having cordial business relationship for the last 6 years.
3. It is averred by the plaintiff that the plaintiff for and on behalf of the defendant had sent three consignments and raised bills for the same and in spite of numerous requests to the defendant for settlement of bills, the same remained outstanding. The details of pending bills for the services rendered by the plaintiff for sending the consignment of defendant to different destinations and for which bills were raised and remained unpaid are as under:
Bill No. Date of receipt of Bill Amount
goods
065-6209-9376 2.7.08 Saudi Arabian Rs.3,02,196/-
241/08-09 Airlines
098-8943-5253 08.7.09 Air India Rs.1,18,913/-
178/09-10
098-8965-0956 21.8.09 Air India Rs. 64,157/-
250/09-10
TOTAL : Rs.4,85,266/-
Suit No.229/11
M/s. Daga Air Agents Vs. M/s Sai Globals
3
4. It is further averred that plaintiff made requests to the defendant for settlement of the pending bills on phone, in person and also by e-mail, but the defendant instead of making the payment kept giving excuses for not settling the above bills. Hence, plaintiff by notice dt. 29/3/2010 requested the defendant to immediately pay the outstanding amount of Rs.4,85,266/- alongwith interest @ 18% p.a. Calculated from the bill date within 15 days. However, defendant has filed the reply dt. 22/4/2010 to the notice but defendant has not paid the amount and not even the amount of Rs.1,46,311/- as offered by them in their reply dated 22/4/2010 till date. As such, the plaintiff filed the present suit for recovery in the sum of Rs.7,06,977/- alongwith interest @ 18 % p.a from the date of filing of suit till realization alongwith all costs.
5. As per plaintiff, cause of action arose on 2/7/2008 when the bills for the services rendered were raised and submitted and it further arose on 8/7/2009 and 21/8/2009 when the demand bills for payment were raised and also from time to time when demand for payment was made by the plaintiff. Cause of action further arose when the defendant received the notice dt. 29/3/2010 and responded to the same by its reply/letter dt. 22/4/2010. As per the plaintiff, cause of action is still continuing and subsisting.
6. Defendant has been duly served and filed the written Suit No.229/11 M/s. Daga Air Agents Vs. M/s Sai Globals 4 statement, stating therein that the plaintiff has not filed any documents to show that plaintiff firm is registered partnership firm and present suit is barred by the provisions of Section 69(2) of Indian Partnership Act and present suit is time barred and same has not been filed within limitation. In the WS, defendant contended that plaintiff has not got any cause of action to file the suit against the defendant, therefore, it is barred under Order 7 Rule 11 CPC and also barred under Order 7 Rule 14 CPC as plaintiff has not filed any documentary proof in respect of its claim. It is further contended by the defendant that suit of the plaintiff is not maintainable as per Order 6 Rule 15 of CPC and the suit is not properly signed, verified and filed by the competent person. It is also contended by the defendant in WS that plaintiff has not approached this court with clean hands and has concealed the true and material facts. Defendant also contended in WS that no outstanding amount is due towards the plaintiff. Defendant further contended that plaintiff made breach of trust and breach of contract with the defendant and plaintiff has cheated the defendant by delay in sending the cargo and hence, the suit is liable to be dismissed.
7. Plaintiff also filed the replication to the WS of defendant and denied the allegation of the defendant and reiterated the averments as made in the plaint.
8. Thereafter, on 08/11/2011 on the basis of pleadings, Suit No.229/11 M/s. Daga Air Agents Vs. M/s Sai Globals 5 following issues were framed:-
1. Whether the present suit is barred by Section 69 of the Indian Partnership Act?........OPD.
2. Whether the suit of the plaintiff is not properly signed and verified in accordance with Order VI Rule 15 CPC?......OPD.
3. Whether the suit of the plaintiff is not maintainable in its present form?....OPD.
4. Whether the plaintiff is entitled to a decree of amount claimed in the suit?........OPP.
5. Whether the plaintiff is entitled to any interest on such amount and if so, at what rate and for what period?.....OPP.
6. Relief.
9. So as to prove its case, plaintiff has examined PW1 Sh. Anurag Daga, AR of plaintiff and PW1 has tendered his evidence by way of affidavit vide Ex.PW1/A. PW1 also relied upon the documents i.e. photocopy of partnership deed of the firm Mark A, power of attorney Ex.PW1/B(same mentioned as Ex.PW1/1 on the said document), copies of three airways bills Ex.PW1/C(Colly), photocopies of e-mails dt. 22/8/2008, 29/12/2008 and 30/3/2009 collectively marked as Mark B, notice dt. 29/3/2010 Ex.PW1/D, reply dt. 22/4/2010 of the defendant to the notice of the plaintiff Ex.PW1/E. PW1 has also filed additional evidence by way of affidavit vide Ex.PW1/F and also relied upon the document i.e. deed of partnership Ex.PW1/G, which was Suit No.229/11 M/s. Daga Air Agents Vs. M/s Sai Globals 6 earlier marked as Mark A. PW1 has been cross examined by the counsel for defendant.
10. Defendant has examined himself as DW1 and has tendered his evidence by way of affidavit vide Ex.DW1/A. DW1 has also been cross examined by the counsel for plaintiff.
11. I have heard the final arguments on behalf of both the Ld. Counsels for the parties.
12. Counsel for plaintiff submitted that the defendant sent his shipping documents by e-mail for preparation of shipping bills and thereafter, fully packed cargo used to be received by the plaintiff through their agent at godowns of Central warehousing corporation, Nangal Dairy, near IGI Airport, New Delhi. He further argued that plaintiff for and on behalf of the defendant had sent three consignments and raised bills for the same and despite numerous requests for settlement of bills, the defendant did not clear the same and as such the amount of Rs.4,85,266/- remained outstanding against the defendant. He further argued that in reply to the legal notice issued by the plaintiff to the defendant, the defendant offered to pay only Rs. 1,46,311/- against the outstanding bills of Rs.4,85,266/-. He further submitted that the defendant witness in his cross examination had stated that all the 136 boxes were delivered by him in one go whereas as per record 100 boxes were delivered in one go and rest one were Suit No.229/11 M/s. Daga Air Agents Vs. M/s Sai Globals 7 handed over on 3/7/2008. He further argued that there was no compliant about the performance of the plaintiff as the defendant was fully satisfied with the services rendered by the plaintiff. Counsel for plaintiff also argued that the defendant witness has admitted in his cross examination about the dispute regarding bill no.00241 dt. 2/7/08 but defendant has continued to avail services of plaintiff firm and sent consignment vide bill no. 178 dt. 8/7/09 and bill no. 250 dt. 21/8/2009 and has not cleared the bills for these services also. Counsel for plaintiff also submitted that plaintiff witness has duly proved the documents placed on record and further submitted that plaintiff is entitled for the amount claimed in the suit from the defendant.
13. On the other hand, counsel for defendant submitted that in the month of July, 2008, the defendant sent an urgent consignment to New York, where, time was the essence of contract and plaintiff assured the defendant that the delivery be shipped through plaintiff and it was further assured that it will be delivered within time as agreed. It is further submitted that there has been unprecedented delay in the shipment as it was scheduled to be delivered on 5/7/2008. It is also argued that such delay is not acceptable by the defendant's buyer and had refused to take the merchandise and has asked for recall of shipment, however, with constant persuasion and request of defendant not to cancel the shipment, the buyer of the defendant has Suit No.229/11 M/s. Daga Air Agents Vs. M/s Sai Globals 8 agreed to accept the shipment on late payment charge back of 10% on the invoice amount and 50 % of the freight amount. He further argued that after deducting the damages for which plaintiff is liable, a sum of Rs.1,46,311/- is outstanding towards plaintiff, which was offered by the defendant to the plaintiff subject to full and final settlement of all the dispute. Counsel for defendant also argued that plaintiff is guilty of concealment of material facts and has not approached the court with clean hands. He further submits that suit is liable to be dismissed.
14. I have considered the submissions of ld. Counsels for the parties as well as gone through the evidence on record and perused the file.
15. My issue wise findings are as under:
16. ISSUE NO.1 Whether the present suit is barred by Section 69 of the Indian Partnership Act?........OPD.
The onus to prove this issue was upon the defendant. On behalf of the defendant, Sh. Ajay Jain, Sole Proprietor of the defendant has examined himself as DW1 and filed the evidence by way of affidavit vide Ex.DW1/A. In the written statement as well as in the affidavit Ex.DW1/A of DW1, defendant has taken the objection that the plaintiff firm is not a registered partnership firm and suit is barred by the provisions of Section 69 (2) of Indian Partnership Act. However, Suit No.229/11 M/s. Daga Air Agents Vs. M/s Sai Globals 9 except contending that the suit is barred under the aforesaid provisions of Partnership Act, the defendant has not specifically proved or brought any evidence that the plaintiff firm is not a registered firm. On the other hand, the plaintiff has placed on record the photocopy of Partnership Deed and same was earlier marked by PW1 as Mark A' in evidence. Thereafter, the plaintiff has also moved an application under Order 7 Rule 14 (3) read with section 151 CPC to file additional documents and to adduce additional evidence and same was allowed vide order dt. 07/10/2013 and thereafter, PW1 has tendered his additional evidence by way of affidavit vide Ex.PW1/F and proved the document i.e. Deed of partnership already marked as Mark A', as Ex.PW1/G. The plaintiff has also produced the original of the said partnership deed which was returned to the plaintiff after exhibiting the document as Ex.PW1/G. As such, the PW1 has proved the partnership deed and hence, there is no force in the contention of the defendant that suit is barred under the provision of 69 Indian Partnership Act. Therefore, the defendant has failed to prove this issue. Accordingly, this issue is decided against the defendant and in favour of the plaintiff.
17. ISSUE NO.2 Whether the suit of the plaintiff is not properly signed and verified in accordance with Order VI Rule 15 CPC?......OPD.
Suit No.229/11 M/s. Daga Air Agents Vs. M/s Sai Globals 10 The onus to prove this issue is also upon the defendant. The defendant in the written statement has taken the preliminary objection that the suit is not maintainable under Order VI Rule 15 CPC and suit is not properly signed, verified and filed by the competent person. However, the DW1 in his evidence by way of affidavit Ex.DW1/A not taken the said objection. The defendant has not brought anything material on record and also failed to show as to how the suit is not maintainable under Order VI Rule 15 CPC. However, perusal of the plaint it is amply clear that suit has been properly verified by the AR of the plaintiff. Moreover, the plaintiff witness i.e. PW1 Sh. Anurag Daga who has filed the present suit, has also proved the power of attorney vide Ex.PW1/B in favour of him whereby the PW1 was appointed as attorney of M/s. Daga Air Agents. Therefore, the defendant has also failed to prove this issue. Accordingly, the issue no. 2 is also decided against the defendant and in favour of the plaintiff.
18. ISSUE NO.3 Whether the suit of the plaintiff is not maintainable in its present form?....OPD.
The onus to prove this issue is also upon the defendant. In the WS, the defendant has also taken the objection that the suit is not maintainable in the present form. In the WS, the defendant also contended that suit is otherwise time barred and hence, Suit No.229/11 M/s. Daga Air Agents Vs. M/s Sai Globals 11 not maintainable. However, the defendant/DW1 in his evidence not led any evidence in respect of his contention that suit is barred by limitation and hence, not maintainable. However, the three airways bills collectively exhibited as Ex.PW1/C were raised on 2/7/2008,8/7/2009 and 21/8/2009 and notice was issued by the plaintiff to the defendant on 29/3/2010 and further the defendant replied the said notice vide reply dt. 22/4/2010. The present suit was filed on 5/7/2011 and as such the present suit is also within limitation period. Moreover, it is incumbent upon the defendant to show as to how the suit is time barred. In absence of any material on record to show that the suit is time barred, the contention of the defendant can not be accepted. Otherwise also, the defendant has not brought any evidence and also failed to brought on record anything material which would show that the suit is not maintainable in the present form. As such, the issue no.3 is also decided against the defendant and in favour of the plaintiff.
19. ISSUE NO.4 Whether the plaintiff is entitled to a decree of amount claimed in the suit?........OPP.
The onus to prove this issue is upon the plaintiff. Plaintiff has examined Sh. Anurag Daga as PW1 who has filed his evidence by way of affidavit vide Ex.PW1/A and additional evidence by Suit No.229/11 M/s. Daga Air Agents Vs. M/s Sai Globals 12 way of affidavit Ex.PW1/F. So as to prove the case of the plaintiff, the PW1 has relied upon the documents i.e. Power of attorney in favour of the PW1 vide Ex.PW1/B , the copy of three airways bills dt. 2/7/2008, 8/7/2009 and 21/8/2009 and bills raised from time to time by the plaintiff vide Ex.PW1/C (collectively), photocopies of e-mails dt. 22/8/2008, 29/12/2008 and 30/3/2009 collectively marked as Mark B', copy of legal notice dt. 29/3/2010 vide Ex.PW1/D and copy of reply of the defendant to the said legal notice vide Ex.PW1/E. PW1 has also relied upon the additional evidence by way of affidavit vide Ex.PW1/F and the deed of partnership vide Ex.PW1/G.
20. As per the three airways bills collectively exhibited as Ex.PW1/C, the first bill dt. 2/7/2008 vide bill No.065-6209-9376/241 is for the sum of Rs.3,02,196/-, the second bill dt. 8/7/2009 vide bill No. 098-8943-5253/178 is for the sum of Rs.1,18,913/- and third bill dt. 21/8/2009 vide bill No. 098-8965-0956/250 is for the sum of Rs. 64,157/- . The PW1 has duly proved the aforesaid three airways bills vide Ex.PW1/C collectively. However, the defendant has in WS as well as in the evidence by way of affidavit of DW1 vide Ex.DW1/A has contended that there has been unprecedented delay in the shipment and as such the delay was not acceptable to the defendant's buyer and after constant request of the defendant, the buyer of the goods of the defendant agreed to accept the shipment on late payment chargeback Suit No.229/11 M/s. Daga Air Agents Vs. M/s Sai Globals 13 of 10 % on the invoice amount and 50 % of freight amount. Defendant in Ws as well as in DW1 in his affidavit stated that after deducting the damages, a sum of Rs.1,46,311/- was outstanding towards the plaintiff and same was offered to the plaintiff subject to full and final settlement. As such, it is clear that the defendant has admitted their liability atleast to the tune of Rs.1,46,311/- towards the plaintiff. DW1 who is the Sole Proprietor of the defendant,in his cross examination categorically deposed that he has only a dispute in respect of bill No. 065-6209-9376-241/08-09 dt. 2/7/2008. Hence, in view of the specific admission of the DW1 in respect of airways bills Ex.PW1/C collectively, as raised by the plaintiff, the defendant has not disputed regarding the bills dt. 8/7/2009 for a sum of Rs.1,18,913/- and bill dt. 21/8/2009 for a sum of Rs.64,157/- . As such only dispute remains with regard to the bill dt. 2/7/2008 for a sum of Rs.3,02,196/-.
21. So as to aforesaid claim of the defendant regarding chargeback of 10 % on invoice amount and 50 % of freight amount by the buyer of the goods of the defendant for delay in shipment is concerned, the defendant has not brought forth any evidence on record so as to establish the aforesaid charges. It was incumbent upon the defendant to prove or show in evidence that the buyer of the defendant has charged 10 % on invoice amount and 50% of freight amount for delay. DW1 has not brought on record any single document in Suit No.229/11 M/s. Daga Air Agents Vs. M/s Sai Globals 14 evidence in support of the claim of the defendant. As such, the contention of the defendant that buyer of the defendant has charged 10 % on invoice amount and 50% of freight amount, for delay can not be accepted as defendant failed to show any material in respect of its claim. Moreover, the DW1 in his cross examination also deposed that he is not aware about the terms and conditions of export business regarding sending the shipment. DW1 also deposed that he does not know whether the delay was caused by the forwarding agent or not. DW1 further deposed in cross examination that he had filed the suit for damages against the Saudi Arabian Airlines. As such the defendant himself was not sure that if there was any delay,then as to who was responsible for the same. Moreover, the defendant failed to show any material on record that due to the aforesaid alleged delay, the defendant suffered damages as the buyer of the defendant charged 10% on invoice amount and 50% of freight amount, for delay.
22. On the other hand, the plaintiff witness has specifically proved the airways bills raised by the plaintiff against the defendant vide Ex.PW1/C collectively. PW1 has also proved the legal notice dt.29/3/2010 issued by the plaintiff to the defendant vide Ex.PW1/D whereby the plaintiff has called upon the defendant to settle the entire three airways bills amount for sum of Rs.4,85,266/- alongwith interest @ 18 % per annum from the individual bill date. Therefore, in Suit No.229/11 M/s. Daga Air Agents Vs. M/s Sai Globals 15 these circumstances, it is amply clear that the defendant has failed to bring on record anything material to substantiate its claim regarding delay on the part of the plaintiff and alleged damages caused to the defendant due to the alleged delay. The defendant has failed to show anything in that respect and hence, the claim of the defendant regarding damages can not be accepted. Contrary to the contention of the defendant, the plaintiff has proved the airways bills in the evidence of PW1 vide Ex.PW1/C collectively. Apart from, the airways bills amount of Rs.4,85,266/-, the plaintiff has also claimed interest of Rs.2,21,711/- @ 18% per annum from the respective bill date. Therefore, the plaintiff has claimed a total sum of Rs.7,06,277/- from the defendant in the instant suit. Hence, the plaintiff is entitled for the amount in the sum of Rs.7,06,277/- as claimed in the suit from the defendant. As such, the plaintiff has proved its claim against the defendant. Accordingly, the issue no. 4 is decided in favour of the plaintiff and against the defendant.
23. ISSUE NO.5 Whether the plaintiff is entitled to any interest on such amount and if so, at what rate and for what period?.....OPP The onus to prove this issue is upon the plaintiff. The plaintiff has claimed interest @ 18 % per annum from the date of filing of the suit till realization of the amount. The interest @ 18 % as Suit No.229/11 M/s. Daga Air Agents Vs. M/s Sai Globals 16 claimed by the plaintiff from the date of filing of the suit is appears to be highly excessive and unreasonable and also very higher side. This court is of the opinion that the interest of justice would be met if the rate of interest is quantified @ 9 % per annum from the date of filing of the suit till realization of the decreetal amount. As such, the interest is quantified @ 9 % per annum from the date of filing of the suit till realization of the decreetal amount. This issue is accordingly decided in favour of the plaintiff and against the defendant.
24. RELIEF As held above, the issue no.1, 2 and 3 have been decided against the defendant and in favour of the plaintiff. The issue no.4 and 5 have been decided in favour of the plaintiff and against the defendant. While deciding issue no.4, it has been held that plaintiff is entitled to recover a sum of Rs.7,06,277/- (Rupees Seven Lacs Six Thousand Two Hundred Seventy Seven only) as claimed in the suit from the defendant and while deciding issue no.5, it has been held that plaintiff is entitled for interest @ 9 % per annum from the date of filing of suit till its realization of the decreetal amount.
Therefore, accordingly the suit of the plaintiff is decreed in favour of the plaintiff and against the defendant for recovery in the sum of Rs.7,06,277/- (Rupees Seven Lacs Six Thousand Two Hundred Seventy Seven only) along with interest @ 9% per annum Suit No.229/11 M/s. Daga Air Agents Vs. M/s Sai Globals 17 from the date of the filing of the suit till realization of the decreetal amount.
25. Plaintiff is also entitled to cost.
26. Decree sheet be prepared accordingly.
27. File be consigned to the record room.
ANNOUNCED IN THE OPEN COURT ON 31/01/2015 (LAL SINGH) ADDL. DISTRICT JUDGE-03(SW) DWARKA COURTS, NEW DELHI Suit No.229/11 M/s. Daga Air Agents Vs. M/s Sai Globals 18 Suit No.229/11 M/s. Daga Air Agents vs. M/s. Sai Globals 31/01/2015 Present: None for plaintiff.
None for defendant.
Vide my separate judgment of even date, the suit of the plaintiff is decreed in favour of the plaintiff and against the defendant for recovery in the sum of Rs.7,06,277/- (Rupees Seven Lacs Six Thousand Two Hundred Seventy Seven only) along with interest @ 9% per annum from the date of the filing of the suit till realization of the decreetal amount.
Plaintiff is also entitled to cost.
Decree sheet be prepared accordingly.
File be consigned to Record Room.
(LAL SINGH) ADDL. DISTRICT JUDGE-03(SW) DWARKA COURTS, NEW DELHI Suit No.229/11 M/s. Daga Air Agents Vs. M/s Sai Globals