Delhi District Court
Zenith International vs M/S Sitara Shipping Ltd on 7 April, 2011
IN THE COURT OF SH. SUNIL RANA
ADDL. DISTRICT & SESSIONS JUDGE: 03 (WEST)
TIS HAZARI COURTS
DELHI
Suit No. 128/08/98
Unique ID No. 02401C6057542004
1. Zenith International
Having its registered office
At A45, Kirti Nagar,
New Delhi110015.
..................PLAINTIFF
AND
M/s Sitara Shipping Ltd.
319, Administrative Buidling
ICD, Tughlakabad,
New Delhi110020.
Also at
18, Onlooker Building,
Sir P. M. Road,
Fort, Mumbai400001
.............DEFENDANT
Date of Filing : 21.09.1998
Date of Reserving Order : 07.04.2011
Date of Decision : 07.04.2011
Suit No. 128/08/98 ............1/13
J U D G M E N T
Vide this judgment, I shall dispose of the suit for recovery of Rs. 5,81,760/ filed by the plaintiff against the defendant.
1. Brief facts as stated in the plaint are that the plaintiff is a partnership firm registered under the Indian Partnership Act, 1932 having its registered office at A45, Kirti Nagar, New Delhi110015. It has been averred that plaintiff firm is dealing in trading of rubber roll complete with spindle and Sh. H. S. Paintal, partner is authorized to sign, file and verity the present suit and M/s Sitara Shipping Ltd. defendant herein, is a company engaged in shipping business. It has been averred that plaintiff had booked two wooden boxes through their Clearing and Forwarding Agent, M/s Time Cargo and Travel Ltd., 113 A, DDA Commercial Complex, Cycle Market, Jhandewalan, New Delhi, containing 20 Nos. of new printing Rubber Rollers complete with spindle vide defendant's bill of landing No. ANNA/222/ND/ DOH/041 dt. 18.05.1995, VesselMV Annapurna to Doha, Qatar sailed on 18.05.1995 and the goods were valued at US $ 7,350/ vide plaintiff's Invoice No. Z1/002 dt. 16.05.1995 and all the documents like Invoice, Bill of landing, Certificate of Origin, Shipping Bill etc. were given to the plaintiff after despatch of consignment and the plaintiff had forwarded all the documents to their buyer namely, M/s Dar Al Sharq Printing Suit No. 128/08/98 ............2/13 Publishing and Distribution, Doha, Qatar through bank so that they could get the material released but despite their constant follow up with the Port authorities in Doha did not find the consignment in the said container and the matter was conveyed to the defendant as well as their forwarding agents and on 09.08.1995 the defendant had informed that two packages of the plaintiff have been stuffed in container No. 084219 and has been loaded in Vessel M.V. I AL PRESIDENT VOY13 ETD 26.05.1995 for Dubai and was reloaded on Vessel M.V. QN 116 V15 for Doha and the consignment was transhipped from Dubai to Doha by Bill of landing No. NOR/DOH/168 dt. 12.06.1995 of Normar Line Inc. Vessel MV QN 116 V15, and accordingly the plaintiff had intimated the name and address of Doha clearing agent to their buyer, who informed that consignment was not found in that container as the goods had not reached Doha, Qatar and the whole position was conveyed to the defendant as buyer was putting pressure on the plaintiff and finally the banker had returned the documents back which were received back on 09.09.1995 with debit note of Rs. 7,076.00/.
2. It has been further averred that due to delay in delivery of the consignment the buyer has stopped future business with the plaintiff thus affecting the good reputation of the plaintiff in the international market and has suffered a heavy loss and complaint was also lodged regarding Suit No. 128/08/98 ............3/13 consignment vide letter no. Z1/VN/95:96 dt. 14.09.1995 and plaintiff was informed that claim was forwarded to the insurance and subsequently the plaintiff was informed that Insurance Company is ready to settle the claim at 50 % of the Invoice value and plaintiff was willing to accept 50 % of his claims and a letter dt. 03.08.1996 was written to the defendant. It has been further averred that on 13.02.1997 the defendant's Capt. Kapoor had informed the plaintiff that he was personally chasing the matter and shall be in Dubai on 17/18.02.1997 and will revert from there, however, nothing positive came out despite plaintiff's repeated reminders and finally plaintiff had sent a legal notice dt. 07.10.1997 to the defendant calling upon them to pay the amount of its claim together with interest and the defendant is liable to pay the following losses suffered by the plaintiff: A) Invoice Value US $ 7,350 B) Interest on Invoice Value @ 2 % per month from 18.05.1995 till the filing of the suit US $ 5,880 US $ 13,230 1 US $ = Rs. 42/ (Current Exchange Rates) Rs. 5,37,138.00/ C) Documentation Charges Rs. 8,000.00/ D) Forwarding agent fee Rs. 6,500.00/ E) Bank Charges Rs. 7,500.00/ F) Other Misc. expenses Postage, Suit No. 128/08/98 ............4/13 Courier charges, Fax, Telephone etc. Rs. 3,000.00/ Total C+D+E=F Rs. 25,000.00/ G) Cost of legal notice Rs. 1,100.00/ Total claim A+B+C+D+E+F+G = Rs. 5,81,770.00/
3. It has been further averred that defendant is liable to pay to the plaintiff a sum of Rs. 581770/ along with pendente--lite and future interest @ 24 % per annum.
4. Summons of this suit was issued and the defendant has contested the suit and filed W/S by raising preliminary objections that plaintiff is guilty of concealing the material facts as plaintiff was asked to submit the original bill of landing issued by the defendant for staking claim from the Insurance Company and despite several demand the said original bill of landing was never given by the plaintiff and subsequently a bond was executed stating that in case original bill of landing is discovered or utilized the defendant will be indemnified. It has been further urged that the Insurance Company had refused to accept the claim in the absence of original Bill of landing which is material and goes to the root of the matter as per the terms of the contract between the parties. It has been further urged that limitation for initiating the proceedings for recovery of the goods lost or delay in delivery of goods etc should have been initiated within a period of nine months from 14.09.1995 and the Suit No. 128/08/98 ............5/13 present suit was filed on 11.09.1998 which is time barred and thus not maintainable as filed after three years and is sufficient for dismissing the present suit at the very outset.
5. It has been further urged that suit is also bad for non joiner of parties as M/s Dar Al Sharq Printing Publishing and Distribution is a necessary party to the suit and the plaintiff has no locus standi to file the present suit against the defendant as per the terms of Bill of landing title pertaining to the goods contained in the consignment in question were passed to the consignee when the documents/ bill dt. 18.05.1995 was issued and the goods were put into container no. 084219 and were loaded in Vessel on 26.05.1995 and were sent to Dubai and subsequently in another Cargo i.e. Vessel MV QN 116V15 for Doha. It has been further urged that short landing certificate from the port authorities was not produced to show that the consignment did not reach at Doha port and this fact clearly shows that there was no negligence or fault and therefore, the defendant cannot be held liable for the same since the plaintiff did not submit the original bill of landing due to which no claim by the Insurance company was processed or rejected and the plaintiff has no cause of action and the suit is liable to be dismissed with cost.
6. On the pleading of the parties, following issues were framed on 05.07.2005 by Ld. Predecessor of this court which are as follows:
Suit No. 128/08/98 ............6/13 i. Whether the plaintiff is entitled to the suit amount ? OPP. ii. Relief.
7. Plaintiff has examined Sh. H. S. Paintal as PW1 and the defendant has examined Sh. S. S. Sahi as DW1.
8. I have heard the counsel for the parties and perused the evidence on record. My issue wise findings are as follows:
Issue No. 1: Whether the plaintiff is entitled to the suit amount ? OPP.
In order to prove his case, plaintiff has examined PW1 Sh. H. S. Paintal and deposed that the plaintiff is a registered partnership firm and he is one of the partner and authorised to sign, file and verify the present suit against the defendant and the registration certificate dt. 04.09.1998 of the firm in Form 'B' & 'A' are Ex. PW1/1A and PW1/1B respectively and the defendant company M/s Sitara Shipping Ltd, is engaged in shipping business and plaintiff had booked two wooden boxes through their clearing and forwarding Agent, M/s Time Cargo and Travel Ltd., 113 A, DDA, Commercial Complex, Cycle Market, Jhandewalan, New Delhi55 containing 20 nos. of new Printing Rubber Rollers complete with spindle vide defendant's Bill of landing No. ANNA/222/DOH/0412 dt. 18.05.1995, VesselMV Annapurna to Doha Qatar sailed on 18.05.1995 and goods were valuded at US $ 7,350/ vide plaintiff's Invoice No. Z1/002 dt. 16.05.1995 Suit No. 128/08/98 ............7/13 which is Ex. PW1/2 and the bill of landing dt. 18.05.1995 is Ex. PW1/3 and all the documents like Invoice, Bill of landing, Certificate of Origin, Shipping Bill etc. were given to the plaintiff and were forwarded but despite their constant follow up with the port authorities in Doha, the consignment was not found in the said container and on 08.07.1995 the matter was conveyed to defendant as well as their forwarding agents vide fax letter dt. 06.07.1995 which is Ex. PW1/4 and on 09.08.1995 the defendant had informed the plaintiff that two packages of plaintiff was stuffed in container No. 084219 and was sent from Delhi to Bombay and was loaded on vessel M.V. I. AI PRESIDENT VOY 13 ETD for Dubai and from Dubai this cargo was loaded on Vessel M.V. ON 116 V15 and was transshipped from Dubai to Doha by Bill of landing No. NDR/DOH/168 dt. 12.06.1995 of Normar Line Inc. Vessel MV QN 116 V15 but the consignment was not found in container as the goods had not reached Doha, Qatar and finally the documents were returned back to the plaintiff's bank and the same was received on 12.09.1995 with debit note of Rs. 7,076.00/ and claim was lodged vide letter no. Z1/VN/95:96 to settle and were informed that the plaintiff's claim was forwarded to the insurance company and was ready to settle the claim at 50 % of the Invoice Value and thereafter reminder was also sent on 24.09.1996 and 28.09.1996 which are Ex. PW1/12 and PW1/13 respectively and finally legal notice dt. 07.10.1997 was sent to the Suit No. 128/08/98 ............8/13 defendant calling upon them to pay the amount of its claim which is Ex.
PW1/18 but the defendant has failed to compensate the plaintiff for the loss suffered due to the negligence of the defendant's agents and is liable to pay the plaintiff a sum of Rs. 5,81,770/ with interest @ 24 % per annum.
Let us see the cross examination of PW1. PW1 has stated in his cross examination that buyer was required to release those documents and the duplicate documents were sent to the buyers directly and as per the banking procedure delivery order cannot be obtained without producing the original documents and for this reason the buyer could not have taken the delivery of consignment and he is not aware whether the buyers has obtained the short landing documents from the port authority and is not aware whether the Dubai Port authorities had tallied the list on 11.06.1995.
PW1 has further stated in his cross examination that he does not remember whether there was no negligence on the part of the defendant or his agent and his claim was rejected by the insurance company as they have failed to produce the original bill of landing which was not filed within time.
On the other hand defendant has also examined DW1 and deposed that he is the Managing Director of defendant company M/s Sitara Shipping Ltd and the plaintiff and has concealed the material facts as the plaintiff was asked to produce the original bill of landing for staking claim Suit No. 128/08/98 ............9/13 from, the Insurance Company and plaintiff has failed to produce the document and the claim of the plaintiff was refused in the absence of original bill of landing and the suit of the plaintiff is not maintainable in the present form as barred by limitation and the action for the recovery of compensation on account of alleged loss of goods could have been initiated within a period of nine months.
DW1 has further deposed that plaintiff had issued the Bill of landing dt. 10.05.1995 when the goods were put in container No. 08421 sent from Delhi on 19.05.1995 to Mumbai and from Mumbai the same were loaded on Vessel on 26.05.1995 and were sent to Dubai as the Dubai port authorities had tallied the list vide dt. 11.06.1995 which shows that goods were at Dubai on that date and the copy of the telly list is Ex. DW1/1. PW1 has further deposed that Dubai Port Authorities had put the goods in another Vessel MV (ON) 116V15 for Doha and there has been no negligence on the part of defendant in handling the consignment in question and the negligence is rather attributable to the plaintiff and his buyer namely DAR SHARQ PRINTING PUBLISHING DISTRICUTION,who failed to produce the documents including Bill of landing to obtain delivery from the defendant's agent at Doha and the buyer of the plaintiff have been negligent by not obtaining a short landing certificate from the Port Authorities at Doha and the plaintiff has further failed to produce the Suit No. 128/08/98 ............10/13 original bill of landing for staking a claim from the Insurance Company.
Let us see the cross examination of DW1. During the cross examination of DW1, following questions were asked:
Q Is it true that the consignment was not delivered to the buyer? Ans. No, it is not correct. In fact, the buyer of the consignment did not come forward to take delivery of the goods as per the records.
Witness has denied the suggestion that the defendant company was negligent in handling the consignment and has further denied that the defendant has ever agreed to settle the claim of the defendant at 50 %. DW1 has further stated in cross examination that plaintiff was asked to submit necessary original documents to process their claim, which were never produced. Nothing has come in the cross examination of defendant witness to show that defendant was negligent. Plaintiff has also not brought any evidence on record to establish that defendants were negligent. Plaintiff has also not examined any independent witness to prove that the defendant was negligent and was liable to pay the suit amount. On the other hand the defendant has been able to show that the plaintiff's buyer had not come forward to take the delivery of the goods and had failed to produce the original bill of landing. Defendant has also been able to prove that as per the Ex. DW1/1, the tally list dt. 11.06.1995, the goods have reached at Dubai Port on that date and subsequently the Dubai Port Authorities put the Suit No. 128/08/98 ............11/13 goods in another container for Doha. Defendant has also been able to prove that buyer of the plaintiff did not produce the documents including Bill of landing in order to obtain the delivery order from the defendant's agent in Doha. Defendant has also been able to prove that defendant had tried to process the claim of the plaintiff with Insurance Company which was in the absence of original documents like short landing certificate from the Port Authorities and original bill of landing could not be processed.
9. Counsel for the defendant has urged that period of limitation to take an action as per section 24 of Multimodal Transportation of Goods Act, 1993 is within 9 months, since the present suit has been filed much beyond the period of limitation of nine months hence the suit is liable to be dismissed on this ground alone.
10. The initial onus to prove its claim is always on the plaintiff and if he discharges that onus and makes out a case which entitles him to a relief, the onus shifts to the defendant to prove those circumstances, if any, which would disentitle the plaintiff to the same. Pleading is no evidence, far less proof. In view of the evidence placed on record and considering the rival contention made on behalf of the parties, it can be easily concluded that plaintiff has failed to establish any negligence on the part of the defendant, however, the plaintiff was rather negligent in not producing the original bill of landing and other documents like short Suit No. 128/08/98 ............12/13 landing certificates from the port authorities due to which the claim by the insurance company could not processed. In view of the discussion made above, the plaintiff has failed to prove its case, accordingly the present issue is decided against the plaintiff and in favour of the defendant.
Relief
10. In view of the finding given on issue no. 1. Since the plaintiff has failed to prove its case, I am of the opinion that the plaintiff has not been able to prove any negligence on the part of the defendant on record to claim the suit amount from the defendant, therefore, suit of the plaintiff fails and the plaintiff is not entitled for any relief hence the present suit is dismissed accordingly. However, in the peculiar facts and circumstances, no order as to cost. Decree sheet be prepared accordingly. File be consigned to record room.
Announced in the open court ( Sunil Rana ) today i.e 7th April, 2011. ADJ - 03 (West)/Delhi Suit No. 128/08/98 ............13/13