Delhi District Court
Ms Gst Corporation vs Ms Atlas Shipping Services Pvt. Ltd on 16 February, 2026
IN THE COURT OF MS. AMBIKA SINGH
DISTRICT JUDGE - 01, SOUTH DISTRICT,
SAKET COURTS, NEW DELHI
CS DJ No. 206892/2016
In the matter of :
M/s GST Corporation
B-13, Okhla Industrial Area,
Phase-II,
New Delhi-110020
.....Plaintiff
vs.
M/s Atlas Shipping Servicing Pvt. Ltd.
B-13 B, Kalkaji,
New Delhi - 19
.....Defendant
Date of Institution : 15.02.2011
Arguments heard on : 10.02.2026
Date of Judgment : 16.02.2026
Decision : Dismissed
SUIT FOR DECLARATION, PERMANENT & MANDATORY
INJUNCTION & RECOVERY OF DAMAGES
JUDGMENT
1. Vide this judgment, the Court shall decide the suit for declaration, permanent and mandatory injunction and recovery of damages filed on behalf of plaintiff against the defendant.
2. The brief and necessary facts of the case are that the plaintiff, is a CS DJ 206892/2016 Page No. 1 of 28 M/s GST CORPORATION VS. M/s ATLAS SHIPPING SERVICES PVT. LTD. registered partnership firm under the name and style of M/s GST Corporation engaged in the business of manufacturing and export of medical goods and the present suit has been filed by the plaintiff through Sh.Manu Grover, partner of the plaintiff firm who is authorised to institute the present suit. The defendant, M/s Atlas Shipping Services Pvt. Ltd., is engaged in the business of freight forwarding and carriage of goods from one country to another. The plaintiff approached the defendant for shipment of medical goods from Shanghai to Lilongwe, Malawi. After negotiations, the freight charges for the said shipment were settled at $8,950/- and the plaintiff asked the defendant to send the shipment and the same was done by the defendant.
3. It is submitted that during the course of said transaction, the plaintiff came to know that the defendant is charging too much freight charges from the plaintiff as compared to prevailing market rates. Thereafter, the plaintiff asked the defendant to reconsider the rates but the defendant refused the same but finally discounted the rates for only $200, however, the defendant had overcharged an amount of $2650 from the plaintiff. It is averred that the plaintiff upon discovering the overcharging, it instructed the defendant on 21.12.2010 to stop the shipment and subsequently requested to de-stuff the container, which was allegedly feasible at that stage.
4. It is the plaintiff's case that despite clear instructions to stop the shipment, the defendant malafidely allowed the shipment to continue, misrepresented the sailing dates of the vessel, and refused to de-stuff the container. It is further alleged that the defendant wrongfully withheld the CS DJ 206892/2016 Page No. 2 of 28 M/s GST CORPORATION VS. M/s ATLAS SHIPPING SERVICES PVT. LTD. original Bill of Lading in order to force the plaintiff for paying the allegedly overcharged freight amount without even deducting the discounted amount of $200. Accordingly, the defendant had cheated the plaintiff and by non- issuance of bill of lading to the plaintiff, the cargo title withheld by the defendant and the same cannot be cleared by the plaintiff's buyer at destination. It is also averred that the plaintiff had requested to the defendant that if the physical delivery of bill of lading is not given by the defendant and the port/demurrage charges would be levied upon the consignment, the plaintiff would suffer irreparable loss, loss in reputation, harassment, and mental agony.
5. Summons of the suit had been issued to the Defendant upon which the defendant had put its appearance and has filed the written statement wherein the defendant had denied all allegations of overcharging and had stated that the freight charges were mutually agreed upon. It was submitted that once the container was handed over after custom clearance and boarded for shipment, it was not possible to stop or de-stuff the cargo under the shipping laws of China. The defendant further pleaded that the Bill of Lading was withheld only due to non-payment of the agreed freight charges and that payment and delivery are concurrent obligations under law. The defendant also raised a preliminary objection regarding the existence of an arbitration clause in the freight bill and disputed the territorial jurisdiction of the Court.
6. Plaintiff filed the replication wherein it reiterated its case and controverted the stand taken by defendant in the written statement. On the CS DJ 206892/2016 Page No. 3 of 28 M/s GST CORPORATION VS. M/s ATLAS SHIPPING SERVICES PVT. LTD. basis of pleadings of the parties, the following issues were framed :
1. Whether the plaintiff is entitled to declaration, as prayed for? OPP.
2. Whether the goods were shipped through a shipping line other than the mutually agreed shipping line? If yes, whether the plaintiff is entitled to refund of freight charged? OPP.
3. Whether the plaintiff himself had failed to perform his part of contract?
If yes, whether the defendant had the rights of unpaid seller to withhold the Bill of Lading and have a lien over the goods till the payment of freight? OPD.
4. Whether the plaintiff is entitled to decree of damages, as prayed for?
OPP
5. Whether the plaintiff is not entitled to demurrage charges on account of non-compliance of the order dated 19.02.2011? OPD
6. Whether the plaintiff is entitled to interest on suit amount? OPP
7. Relief.
7. Thereafter, matter was fixed for plaintiff's evidence. The plaintiff had examined Mr.Manu Grover as PW1 and has tendered his affidavit as Ex.PW1/A and additional affidavit as Ex.PW1/A and has relied upon following documents :
1. Copy of certificate of incorporation as Mark A,
2. Copy of certificate of Commencement of business as Mark B,
3. Copy of Form 32 as Mark C
4. Copy of Board Resolution dated 05.07.2012 as Ex.PW1/1-D,
5. Copy of e-mails exchanged between the plaintiff and the defendant dated 07.12.2010 and 08.12.2010 are Ex.PW1/2 (Colly.),
6. Copy of e-mails exchanged between the plaintiff and the defendant dated 21.12.2010 to 24.12.2010 are Ex.PW1/3 (Colly.),
7. Copy of e-mails exchanged between the plaintiff and the defendant dated 16.12.2010 and 24.12.2010 are CS DJ 206892/2016 Page No. 4 of 28 M/s GST CORPORATION VS. M/s ATLAS SHIPPING SERVICES PVT. LTD.
Ex.PW1/4 (Colly.),
8. Copy of Bill of demurrage is Mark D,
9. Copy of e-mails exchanged between the plaintiff and the defendant dated 27.12.2010 and 08.01.2011 are Ex.PW1/6 (Colly.),
10. Copy of legal notice alongwith postal receipts are Ex.PW1/7 to Ex.PW1/7C,
11. Copy of Partnership Deed dated 13.04.2004 is Ex.PW1/8, Ex.PW1/8A and Ex.PW1/8B (OSR),
12. Copy of Sea Freight Charges vide invoice dated 08.01.2011 is Ex.PW1/9,
13. Certificate under Section 65B of Indian Evidence Act regarding the aforesaid e-mails is Ex.PW1/10.
8. During cross-examination, witness deposed that his address is mentioned on Ex.PW1/D-1 i.e. reply to the legal notice. He further deposed that he is not sure if the reply was received by him or his counsel. He affirmed the suggestion that legal notice was issued by his counsel. He denied the suggestion that he had not placed on record the document Ex.PW1/D1 as he has to file false case against the defendant. He deposed that he was not into the business of export of surgical medical devices. The said devices were exported to 50-60 countries mostly from India and sometimes from other country. He deposed that the transaction in question were to be shipped from China to Malawi. He deposed that he is understanding the procedure qua shipment of good from one country to other but he has no idea of operation of shipment. He deposed that the medical devices were to be shipped in one container which was to be arranged by the defendant. He deposed that the shipper handed over the CS DJ 206892/2016 Page No. 5 of 28 M/s GST CORPORATION VS. M/s ATLAS SHIPPING SERVICES PVT. LTD. consignment/goods to the defendant and after seeing the records, he deposed the name of shipper is Shandunge Zibo Shanchung.
9. He deposed that the plaintiff firm is based in India and on plaintiff's instructions the goods were handed over to the defendant. He deposed that he was not part of the operation when the goods were exported via sea from China to Malawi. He deposed that the rates quoted by the defendant were 8950 on shipping line SAF Marine and they were verbally assured that the best rates offered to them. He affirmed that the SAF Marine is not mentioned in para no.4 of the affidavit. He denied the suggestion that any specific shipping line was assured by the defendant. He deposed that goods were shipped on board on 30.12.2010. He denied the suggestion that the goods were exported via ship on 30.12.2010. He denied the suggestion that the goods were shipped prior to 29.12.2010. He deposed that he is not aware of the date when his shipper had handed over the goods/consignment to the defendant and that no information of receipt of goods was provided to him by the defendant. He deposed that the shipper was manufacturer of product and he had purchased the goods from him.
10. PW-1 admitted that no document has been placed on record to show the date on which the supplier in China handed over the goods or consignment to the defendant. He categorically stated that he is unable to tell the date on which the goods were handed over by the supplier to the defendant. He was confronted with the email dated 01.01.2002 (Ex. PW-1/3), and had deposed that the said email bears an incorrect date and time. He submitted that the date was incorrect due to computer system error and further admitted that all the emails were printed from the same CS DJ 206892/2016 Page No. 6 of 28 M/s GST CORPORATION VS. M/s ATLAS SHIPPING SERVICES PVT. LTD. computer system. He also deposed that the mistake of date and time stamp was of the computer, though he denied manipulating the emails. He further admitted that the goods in China were to be custom cleared by his supplier and that he did not possesses any document or email to show when such customs clearance was obtained. He admitted that he is not aware of the procedure required for loading a container onto a vessel in China and that he has never visited any Chinese port.
11. He denied the suggestion that the container immediately upon sealing is shipped on board and deposed that generally it takes 5 to 20 days to get the container on board the ship after custom clearance. He deposed that he has no corroborative material in support of his assertions. He further admitted that his entire correspondence was only with the defendant and that he had no direct communication with the shipping line. He voluntarily deposed that the defendant was also required to assist in delivery of the goods through the shipping line agent at the destination port for handover to the buyer. However, he has failed to produce any document to show that the defendant was rendering the services to give assistance of delivery through the shipping line agent at the destination port for handover to buyer. He also admitted that he does not know whether the goods were stuffed in the container by his supplier after customs clearance. He further deposed that whether the vessel left Qingdao port on 19.12.2010 with the container, or whether the vessel had entered high sea thereafter. He further stated that he needs to verify from the emails whether any intimation regarding rescheduling of the vessel due to bad weather was ever received. He further deposed that the de-stuffing of a sealed container is only possible under the CS DJ 206892/2016 Page No. 7 of 28 M/s GST CORPORATION VS. M/s ATLAS SHIPPING SERVICES PVT. LTD. supervision of customs officials.
12. Thereafter, on 02.08.2019, further cross-examination of PW1 was treated as Nil, opportunity given and the matter was fixed for defendant's evidence. Vide order dated 11.10.2019, the defendant was allowed to further cross-examine the witness and Mr.Atul Sharma was appointed as Local Commissioner for recording of evidence, hence, PW1 was further examined.
13. During his cross-examination, PW-1 Mr.Manu Grover deposed that even prior to the present transaction, his firm used to deal with different companies who provided freight and forwarding of container transportation services internationally. He deposed that the defendant had quoted the freight rates upon his request, and further clarified that the quoted rates were specifically for SAF Line. On being specifically asked, he failed to show any written request to the defendant requesting the quote for SAF Line. He further deposed that it is generally expected of a freight forwarder to provide rates for all shipping lines with which they have business relations. He further deposed that he could have obtained competitive quotes from other companies for different shipping lines before accepting the defendant's offer. However, he voluntarily stated that since his firm had prior dealings with the defendant and had been assured of receiving the best market rates, he relied upon the defendant's quotation. On being specifically asked about the defendant's status, PW-1 stated that he could not comment on the legal technical status of the defendant, i.e., whether the defendant was a shipping line or only a service provider for transportation of goods.
CS DJ 206892/2016 Page No. 8 of 28 M/s GST CORPORATION VS. M/s ATLAS SHIPPING SERVICES PVT. LTD. On being asked about SAF Marine, PW-1 stated that he was not sure, but it could be a shipping line with or without carriers. PW-1 further confirmed that after finalizing the transportation rates, he supplied the invoice and packing list containing details of goods to the defendant. He further deposed that he had provided the details of supplier to the defendant. He further stated that he could not comment whether the defendant provided the said details of the supplier's details to its agent in China. He further stated that he could not confirm or deny whether after receiving the details of the Chinese agent from the defendant, he gave instructions to his shipper that the goods were to be shipped through the said agent. He further stated that he cannot confirm or deny whether his supplier gave the booking to the Chinese Agent on his instructions. He voluntarily stated that their nominated agent was the defendant and all instructions run through the defendant.
14. PW-1 deposed that he was not aware about the date on which the container was picked up in China or that on which date the goods were stuffed in the Container by the shipper in China. He further deposed that he is not aware about the date when the goods were custom cleared by your shipper in China after stuffing the goods in the container. Witness further deposed that he was not aware about any document/e-mail exchanged between him and his shipper indicating the date of picking the container, stuffing the container and custom clearance of container in China. He volunteered that he can provide the same after going through the records. He further deposed that he was not aware about the laws of China would be prevailing in respect of picking the container, stuffing the container and CS DJ 206892/2016 Page No. 9 of 28 M/s GST CORPORATION VS. M/s ATLAS SHIPPING SERVICES PVT. LTD. custom clearance of container. After going through the records, the witness deposed that he neither admit or deny that the container was picked by the shipper on 10.12.2010, after stuffing the goods, the custom clearance was done on 16/17.12.1010, thereafter, container was moved to ship on 18.12.2010 for sailing. He did not admit or deny whether they had asked the defendant to provide the sailing dates. He deposed that he could not comment whether the HBL was generated only after the container was handed over for shipment after Custom Clearance. He deposed that the defendant was nominated as the plaintiff's agent and the instructions to stop the Cargo was given to the nominated agent and if the Cargo was stopped it would give time to plaintiff to take action. PW-1 admitted the contents of the email dated 21.12.2010, wherein it was stated that "If you already taken, we will give you address of the forwarder to hand over the cargo to them." He deposed that the goods were shipped in one container only. He further deposed that he is not aware of the laws of China on being specifically asked that the defendant had no role to play after the goods were put on vessel as after the container are kept on vessel, the same cannot be taken back, de-stuffed or returned back as per the law of China, however, as per their understanding the container was not on board on 21.12.2010. He deposed that he was not aware whether the plaintiff had asked from his shipper in China to confirm the status of container as on 21.12.2010 or that he could not quote any law of China which could have made it possible for the agent of the defendant to take back the container which was on ship. He further deposed that he is unable to show any email exchanged between his shipper and the agent of defendant in China to take back the container CS DJ 206892/2016 Page No. 10 of 28 M/s GST CORPORATION VS. M/s ATLAS SHIPPING SERVICES PVT. LTD. which was on the ship. He further deposed that he is unable to show any email exchanged between the plaintiff and his shipper to show whether any dispute was going on between the plaintiff and the defendant in respect of the Shipment. He further deposed that no payment was made before filing of the suit and further admitted that payment was made only pursuant to the orders of the Ld. ADJ and the Hon'ble High Court. He could not give any satisfactory explanation for non-payment of freight charges when the invoice was raised, except stating that the shipment was requested to be held. He further deposed that there is no document on record showing that the plaintiff had nominated the shipping line Saf Marine, except an email dated 07.12.2010, which was sent by the defendant quoting prices or that there is no email from the plaintiff specifically nominating Saf Marine. PW1 further deposed that the emails dated 05.01.2011, 08.12.2010, 20.12.2010 & 17.12.2010 are not part of the transaction in question. He was unable to state since when business relations existed with the defendant and had expressed difficulty in retrieving records on account of the transaction being from the year 2010. He further stated that no business was conducted with the defendant after the present litigation commenced. He denied that the defendant was not within the reach of the forwarder to shift the cargo. He further deposed that they had not changed any dates and there was a computer error and the emails prior and post to the email dated 20/21.12.2010 confirming the time line. He deposed that to the best of his knowledge, the ships only berth for few hours or one day and can only be placed in that period on vessel. He deposed that he is not shipping expert to say how many days prior to placing the containers on berth, the custom CS DJ 206892/2016 Page No. 11 of 28 M/s GST CORPORATION VS. M/s ATLAS SHIPPING SERVICES PVT. LTD. clearance of the containers takes place in India and in China. He deposed that it is very difficult to check the record as it was a very old matter of 2010. He deposed that the defendant was nominated for shipping/freight forwarding of the Cargo and they coordinated with the shippers in China through the Defendan't agent. On being specifically asked about the meaning of nomination, the witness deposed that he did not know the exact English or legal definition of the word nomination. He voluntarily replied that giving the order by plaintiff to the defendant may be construed as nomination especially as the Defendant acted on it. He deposed that he did not recall whether any written contract was executed between the parties. He did not comment on being specifically asked that no written contract executed between the plaintiff and the defendant is on judicial record. PW-1 deposed that he was informed by email dated 04.01.2011 that the container had been picked up on 18.12.2010. He deposed that on vide email dated 24.12.2010 the defendant had informed the plaintiff that once the container was shipped it could not be shifted to another forwarder. He deposed that he had verbally sought government rules or notifications regarding shifting of forwarder after stuffing the container but the defendant could not produce any written request or correspondence to that effect. PW-1 further admitted that he could not place any additional document relating to the present litigation on record, being lapse of time. PW-1 stated that he does not remember whether permission was taken from the Court for placing additional documents on record which were not filed along with the plaint. He deposed that he couldn't comment on specifically asked whether the defendant was free to charge for transportation services as per their CS DJ 206892/2016 Page No. 12 of 28 M/s GST CORPORATION VS. M/s ATLAS SHIPPING SERVICES PVT. LTD. discretion. He further denied that freight charges differ depending on whether payment is made in advance or after delivery. He denied the suggestion that the plaintiff had attempted to get release of consignments without making any payment and that the present suit was filed for that purpose. He also denied that no damages were caused to him or that the defendant faced frivolous and malicious litigation due to the suit. He further deposed that he did not remember if the subsequent consignments were transported by the plaintiff at a discounted rate from the rate quoted by the defendant. He further stated that he was not a shipping expert and therefore could not comment on differences in rates for loose consignments and container consignments. He deposed that he does not recollect whether the initial quotations were for container consignments and subsequent quotations for loose consignments. He also did not recollect whether any quotations from other forwarders were placed on record. He denied that the defendant's officers had no opportunity to stop the cargo from China due to Chinese law. However, he denied that the defendant lied about the sailing date of the vessel. He deposed that he did not recollect whether the plaintiff had ever tried to settle the matter amicably. He denied that there was no intention to resolve the dispute or that the sole intention was to release the consignment without making any payment. He deposed that permission was sought to release the consignment for boarding, but stated that they had instructed the defendant to stop the shipment. He admitted that no such email was sent on 17.12.2010. He further deposed that instructions to stop shipment were given around 21.12.2010. He further deposed that to the best of his knowledge, the delivery order information was received after a gap of CS DJ 206892/2016 Page No. 13 of 28 M/s GST CORPORATION VS. M/s ATLAS SHIPPING SERVICES PVT. LTD. 20-30 days and that issuance of the delivery order was inconsequential to their request to stop movement of the container. He deposed that he did not remember whether any communication was made with the shipping line CMA CGM, but maintained that it was the defendant's duty as the nominated agent to coordinate with all concerned parties. He denied the suggestion that there was no documentary proof of any communication with the shipping line and reiterated that the defendant was responsible for coordination. PW-1 deposed that the defendant was appointed by the plaintiff to handle the consignment and that the defendant had acted accordingly. He denied that the defendant's role was limited only to shipment from China to Malawi. He further deposed that the consignment was duly delivered in Malawi.
15. Thereafter, the plaintiff closed his evidence and matter was fixed for defendant's evidence.
16. The defendant examined Sh. Preet Kanwar Singh, Senior Manager & Authorized Representative of M/s Atlas Shipping Services Pvt. Ltd. He has been examined and partly cross-examined. However, the witness stopped appearing before the Local Commissioner for evidence and he had also not appeared before the Court for recording of his further cross-examination. Thereafter, DE was closed vide order dated 08.08.2025 and the matter was fixed for final arguments.
17. Thereafter final arguments were addressed by both the parties and after hearing final arguments and going the through the records carefully, my issue wise findings are as under:-
CS DJ 206892/2016 Page No. 14 of 28 M/s GST CORPORATION VS. M/s ATLAS SHIPPING SERVICES PVT. LTD. Issue No.1 Whether the plaintiff is entitled to declaration, as prayed for? OPP.
18. The onus to prove this issue was upon the plaintiff. It is a settled principle of law that a decree of declaration under Section 34 of the Specific Relief Act, 1963 is a discretionary relief and cannot be granted merely because it is lawful to do so. The plaintiff must establish a clear legal right and corresponding legal character and infringement thereof. Mere assertions, disputed questions, or speculative grievances do not entitle a party to declaratory relief.
19. The Hon'ble Supreme Court in Anathula Sudhakar v. P. Buchi Reddy, (2008) 4 SCC 594 has held that a declaration cannot be granted where the plaintiff is unable to establish a clear title or legal right and where the matter rests on disputed facts requiring proof. The Court further cautioned that declaratory relief is not meant to be granted where the plaintiff seeks to remove a cloud without first proving the existence of a right.
20. It is well settled that a declaratory decree cannot be passed on mere assumptions or expectations and that the plaintiff must succeed on the strength of his own evidence, irrespective of the weakness of the defence. Where the plaintiff's right itself is uncertain or not established by cogent evidence, the Court ought not to grant a declaration, as such relief cannot be used to create or assume a legal right. Declaratory relief cannot be founded on conjectures or incomplete facts, particularly where the declaration sought involves technical or commercial matters requiring strict proof.
CS DJ 206892/2016 Page No. 15 of 28 M/s GST CORPORATION VS. M/s ATLAS SHIPPING SERVICES PVT. LTD. Discretionary reliefs such as declaration must be refused where the plaintiff fails to place clear, affirmative, and reliable evidence establishing the legal wrong complained of. Thus, a declaration cannot be granted merely because the defendant has failed to prove its defence or has withheld evidence, unless the plaintiff independently establishes the legal right sought to be declared and its violation by legally admissible evidence.
21. It is the case of the plaintiff that they have issued stopping instructions but still the defendant continued with shipment which has ultimately caused them loss which was not only monetary in nature but also caused loss of reputation in the business world. PW1 Mr.Manu Grover deposed in his evidence by way of affidavit that the plaintiff is trusted the defendants and as per assurance given by the defendant and believing that the defendant has followed the principles of fair trade practice and had offered the best rates. On 21.12.2010 the plaintiff has asked the defendant not to handover the shipment on account of excessive freight charged by the plaintiff. Therefore, the relief of declaration has been sought praying that in view of specific stop instructions given by the plaintiff, the action of the defendant in allowing the shipment is illegal and also that the defendant is not entitled to receive any amount of freight charges towards the said transaction. PW1 has claimed that the instructions to stop the shipment was issued to the defendant on 21.12.2010, however, when questioned about the procedure in which the goods are shipped, he himself admitted in his cross- examination that he had no idea of operation of shipment. PW1 has also admitted in his cross-examination that he was not aware of the date when his shipper handed over the consignment/goods to the defendant or that he CS DJ 206892/2016 Page No. 16 of 28 M/s GST CORPORATION VS. M/s ATLAS SHIPPING SERVICES PVT. LTD. did not remember the date of stuffing of the goods and the name of the shipper. He also did not remember the date of custom clearance of the shipment.
22. He deposed that he is not aware of the date when his shipper had handed over the goods/consignment to the defendant and that no information of receipt of goods was provided to him by the defendant. PW-1 admitted that no document has been placed on record to show the date on which the supplier in China handed over the goods or consignment to the defendant. He denied the suggestion that the container immediately upon sealing is shipped on board and deposed that generally it takes 5 to 20 days to get the container on board the ship after custom clearance. He deposed that he has no corroborative material in support of his assertions. PW-1 deposed that he was not aware about the date on which the container was picked up in China or that on which date the goods were stuffed in the Container by the shipper in China. He further deposed that he is not aware about the date when the goods were custom cleared by defendant's shipper in China after stuffing the goods in the container. After going through the records, the witness deposed that he neither admit or deny that the container was picked by the shipper on 10.12.2010, after stuffing the goods, the custom clearance was done on 16/17.12.1010, thereafter, container was moved to ship on 18.12.2010 for sailing. In view thereof, it is crystal clear that his reply is evasive in nature.
23. He did not visit any Chinese port and he does not know about the proceedings required for loading of container at the vessel in China. This CS DJ 206892/2016 Page No. 17 of 28 M/s GST CORPORATION VS. M/s ATLAS SHIPPING SERVICES PVT. LTD. clearly show that the plaintiff has not been able to prove that the defendant could have stopped the shipment at the relevant time which is of the utmost importance in our case. PW1 has admitted that the entire correspondence was with the defendant and there was no correspondence with the shipper. Meaning thereby, the plaintiff never instructed the shipper directly to stop the delivery. More importantly, the PW1 admitted that he could not show any document to prove that the shipment could have stopped after custom clearance.
24. Declaratory relief under Section 34 of the Specific Relief Act requires the plaintiff to establish the legal character or right which has infringed. The plaintiff has alleged illegality in the shipment despite stop instructions. However, as I have discussed earlier, the PW1 has failed to acknowledge regarding the shipment procedure regarding the exact date of shipment or custom clearance for loading. It is well settled law that the declaratory relief cannot be granted where the plaintiff has failed to establish his clear legal right. In our case, the plaintiff has failed to prove that the stopping of shipment was legally and practically valid or even possible and under the control of defendant.
25. To obtain the decree regarding the declaratory relief, it was required that the plaintiff prove all the illegalities and contractual breach. In the present case, the plaintiff has not established that the shipment was unauthorized or that there was no stoppage instructions which was capable of being implemented in Chinese Shipping Procedure. There is clear admission on the part of the plaintiff regarding his lack of knowledge of CS DJ 206892/2016 Page No. 18 of 28 M/s GST CORPORATION VS. M/s ATLAS SHIPPING SERVICES PVT. LTD. custom and shipping procedure in China. He deposed that he is understanding the procedure qua shipment of good from one country to other but he has no idea of operation of shipment.
26. He deposed that he is not shipping expert to say how many days prior to placing the containers on berth, the custom clearance of the containers takes place in India and in China. Even when having knowledge regarding PW1's ignorance of Chinese/Indian custom law, which had come on record, the plaintiff chose not to examine any other witness in his support who could have clarified that defendant was infact under control to get the shipment stopped
27. Though, it is agreed that there are many e-mail from the side of the plaintiff asking the defendant to provide the exact date of stuffing/sealing of the container and defendant has not disclosed these dates. However, in civil law, the plaintiff must succeed his case on his own evidence and not on the weakness or default of the defendant. The plaintiff has to first establish most importantly minimum facts. Even otherwise also, the non-discovery of the sealing date does not come to the rescue of the plaintiff when the plaintiff has not even prima-facie proved that the sealing date was after 21.12.2010 or most importantly even before the sealing was done by the defendant and the defendant had legal control and in power to stop the shipment.
28. Proceeding further, PW1 Mr.Manu Grover further admitted that the goods in China were to be custom cleared by his supplier and that he did not possesses any document or email to show when such customs clearance was obtained. He admitted that he is not aware of the procedure required for CS DJ 206892/2016 Page No. 19 of 28 M/s GST CORPORATION VS. M/s ATLAS SHIPPING SERVICES PVT. LTD. loading a container onto a vessel in China. He also admitted that he does not know whether the goods were stuffed in the container by his supplier after customs clearance. PW1 admitted that he was not aware about any document/e-mail exchanged between him and his shipper indicating the date of picking the container, stuffing the container and custom clearance of container in China. He further deposed that he was not aware about the laws of China would be prevailing in respect of picking the container, stuffing the container and custom clearance of container. He deposed that he could not comment whether the HBL was generated only after the container was handed over for shipment after Custom Clearance. He further deposed that he is not aware of the laws of China on being specifically asked that the defendant had no role to play after the goods were put on vessel as after the container are kept on vessel, the same cannot be taken back, de-stuffed or returned back as per the law of China, however, as per their understanding the container was not on board on 21.12.2010. However, very interestingly, the PW1 has failed to show the basis of his this 'understanding'. No witness or any written document/e-mail/chat/message has been produced in the Court to prove the same.
29. PW1 Mr.Manu Grover deposed that he was not aware whether the plaintiff had asked from his shipper in China to confirm the status of container as on 21.12.2010 or that he could not quote any law of China which could have made it possible for the agent of the defendant to take back the container which was on ship. He further deposed that he is unable to show any email exchanged between his shipper and the agent of defendant in China to take back the container which was on the ship. He CS DJ 206892/2016 Page No. 20 of 28 M/s GST CORPORATION VS. M/s ATLAS SHIPPING SERVICES PVT. LTD. deposed that he had verbally sought government rules or notifications regarding shifting of forwarder after stuffing the container but the defendant could not produce any written request or correspondence to that effect. However, the plaintiff cannot put entire burden on defendant when it was the plaintiff who was to prove his case. He denied that the defendant's officers had no opportunity to stop the cargo from China due to Chinese law.
30. Therefore, in view of the careful scrutiny of testimony of PW1, it is crystal clear that the plaintiff has failed to prove that the defendant was having the power to stop the shipment and therefore, the plaintiff has failed to prove that there is infringement of any legal right which entitle him for relief of declaration.
31. In view of the aforesaid discussion, the issue no.1 is decided against the plaintiff and in favour of the defendant.
Issue No.2.
Whether the goods were shipped through a shipping line other than the mutually agreed shipping line? If yes, whether the plaintiff is entitled to refund of freight charged? OPP.
32. Onus to prove this issue was upon the plaintiff. It is the case of the plaintiff that the defendant has committed breach of contract, as only SAF Marine Line was nominated but the shipment was carried through CMA CGM. However, there is no written document or e-mail showing exclusive nomination of SAF Marine by the plaintiff has been placed on record. PW1 Mr. Manu Grover during cross-examination has admitted that there was no CS DJ 206892/2016 Page No. 21 of 28 M/s GST CORPORATION VS. M/s ATLAS SHIPPING SERVICES PVT. LTD. written contract fixing SAF marine as exclusive shipping line. The entire trial allegedly based on the emails exchanged between the parties and despite this no email from the plaintiff expressing exclusive nomination of SAF Marine has been placed on record. Moreover, no e-mail can show that any other marine line was prohibited from establishment was ever produced. There is material irregularity when the plaintiff on the one hand alleged that they have entered into a contract on the other hand the they have failed to produce any exclusive documents evidencing the said agreement. The e- mail relied upon by the plaintiff shows that the it contain certain quotations and they itself materialize into exclusive contractual obligation unless it has been exclusively accepting the terms of agreement.
33. PW1 Mr.Manu Grover deposed that the rates quoted by the defendant were for the shipping line SAF Marine and they were verbally assured that the best rates offered to them. He affirmed that the SAF Marine is not mentioned in para no.4 of the affidavit. He denied the suggestion that any specific shipping line was assured by the defendant. He deposed that the defendant had quoted the freight rates upon his request, and further clarified that the quoted rates were specifically for SAF Line. On being specifically asked, he failed to show any written request to the defendant requesting the quote for SAF Line. He further deposed that he is unable to show any email exchanged between the plaintiff and his shipper to show whether any dispute was going on between the plaintiff and the defendant in respect of the Shipment. Meaning thereby, the shipment was not exclusively decided between the parties. He further deposed that there is no document on record showing that the plaintiff had nominated the shipping line Saf Marine, CS DJ 206892/2016 Page No. 22 of 28 M/s GST CORPORATION VS. M/s ATLAS SHIPPING SERVICES PVT. LTD. except an email dated 07.12.2010, which was sent by the defendant quoting prices or that there is no email from the plaintiff specifically nominating SAF Marine.
34. In these circumstances, when the plaintiff is not able to show that the goods were being shipped without agreeing on the shipping line, therefore, they are not entitled to refund of freight charges. The plaintiff though as alleged that wrongful shipment but he did not bring a single witness who could have conclusively established that as to when the container was dropped or when the shipment was custom cleared as per Chinese Marine Policy. It was of utmost important in our case is that the plaintiff to succeed in his claim and he has to show that the defendant had control over the shipment in Chinese Seaport. There is no e-mail or correspondence on record to show what was the procedure of the shipment in China. In these circumstances, the plaintiff has miserably failed to prove that there was any mutually agreed shipping line or there was any breach thereof making them entitled for any refund of freight charges.
35. In view of the aforesaid discussion, the issue no.2 is also decided against the plaintiff and in favour of defendant.
Issue No.3 Whether the plaintiff himself had failed to perform his part of contract? If yes, whether the defendant had the rights of unpaid seller to withhold the Bill of Lading and have a lien over the goods till the payment of freight? OPD.
36. Onus to prove this issue was upon the defendant. No evidence has CS DJ 206892/2016 Page No. 23 of 28 M/s GST CORPORATION VS. M/s ATLAS SHIPPING SERVICES PVT. LTD. been led by the defendant regarding the same. However, PW1 Mr.Manu Gover has admitted that no payment of freight was made by him prior to filing of the present case. He further admitted that the payment of freight was made only pursuant to the orders passed by the Court. He admitted that he does not have any document to show that the emails were exchanged between the plaintiff and his shipper to show whether any dispute was going on between the plaintiff and the defendant in respect of the Shipment. However, the plaintiff has himself admitted that they are withholding the freight charges and the payments were made only after the Court's order. So, if the payment have not been made, then the defendant was well within his right not to issue bill of lading.
37. Hence, this issue is decided accordingly.
Issue No.4 Whether the plaintiff is entitled to decree of damages, as prayed for? OPP
38. Onus to prove this issue was upon the plaintiff. The plaintiff has alleged that the plaintiff had suffered irreparable loss, loss in reputation, harassment and mental agony. PW1 Mr.Manu Grover denied that no damages were caused to him or that the defendant faced frivolous and malicious litigation due to the suit. PW1 Mr.Manu Grover further stated that he was not a shipping expert and therefore could not comment on differences in rates for loose consignments and container consignments. He deposed that he does not recollect whether the initial quotations were for container consignments and subsequent quotations for loose consignments.
CS DJ 206892/2016 Page No. 24 of 28 M/s GST CORPORATION VS. M/s ATLAS SHIPPING SERVICES PVT. LTD. He also did not recollect whether any quotations from other forwarders were placed on record. Meaning thereby, there is absolutely no material on record to show that there were actual damage.
39. At this stage, reliance can be placed upon judgment passed in Kailash Nath Associates v. Delhi Development Authority, (2015) 4 SCC 136 , wherein the Hon'ble Supreme Court has observed in paragraphs 43 and 44:
"43. Section 74 of the Contract Act does away with the necessity of proving actual loss or damage. However, compensation can only be awarded for loss or damage which naturally arose in the usual course of things or which the parties knew when they made the contract to be likely to result from the breach of it.
44. Where the contract does not provide for forfeiture of earnest money as liquidated damages, and where no loss is proved, the party complaining of breach cannot recover any compensation. Unless the contract expressly bars recovery of general damages, the remedies available under Section 73 are not excluded."
The plaintiff has prayed for damages regarding loss of reputation, however, the plaintiff has not produced any evidence to show that there was loss of reputation, mental agony or business loss. The plaintiff has failed to prove on record on what basis he has calculated the damages. PW1 has admitted repeatedly that he has no personal knowledge regarding the date of container pickup and the date of goods loaded. He did not have even personal knowledge of the clearance custom procedure in China. He even did not have any knowledge regarding the chinese shipment and custom clearance. He claim his knowledge regarding the fact that once the container shipped or goods have already been loaded and custom clear it cannot be CS DJ 206892/2016 Page No. 25 of 28 M/s GST CORPORATION VS. M/s ATLAS SHIPPING SERVICES PVT. LTD. legally emptied again. These admissions are fatal to stand of fact that the defendant illegally failed to de-stuff the shipment despite instructions. It is of utmost important that whether the shipment was legally and practically feasible is an important aspect qua shipment procedure governed by Chinese law regarding custom clearance.
40. He deposed that he is not aware of the date when his shipper had handed over the goods/consignment to the defendant and that no information of receipt of goods was provided to him by the defendant. PW-1 Mr.Manu Grover has admitted that no document has been placed on record to show the date on which the supplier in China handed over the goods or consignment to the defendant.
41. He denied the suggestion that the container immediately upon sealing is shipped on board and deposed that generally it takes 5 to 20 days to get the container on board the ship after custom clearance. He deposed that he has no corroborative material in support of his assertions. However, it can be well understood that once the shipment was custom cleared, then it could not have been emptied or de-stuffed only on instructions of one of the party as it could have been possible only if some government department/custom permission would have been taken.
42. PW-1 deposed that he was not aware about the date on which the container was picked up in China or that on which date the goods were stuffed in the Container by the shipper in China. He further deposed that he is not aware about the date when the goods were custom cleared by defendant's shipper in China after stuffing the goods in the container. After CS DJ 206892/2016 Page No. 26 of 28 M/s GST CORPORATION VS. M/s ATLAS SHIPPING SERVICES PVT. LTD. going through the records, the witness deposed that he neither admit or deny that the container was picked by the shipper on 10.12.2010, after stuffing the goods, the custom clearance was done on 16/17.12.2010, thereafter, container was moved to ship on 18.12.2010 for sailing.
43. In view of the aforesaid discussion, it is crystal clear that the plaintiff has failed to prove on record any document to show that how he had calculated damages or that how he had suffered loss in reputation, harassment and mental agony. Hence, the issue no.4 is decided against the plaintiff.
Issue No.5 Whether the plaintiff is not entitled to demurrage charges on account of non-compliance of the order dated 19.02.2011? OPD
44. Though, the plaintiff has not led any defence evidence. However, in view of my findings on aforesaid issues, and the order dated 17.03.2011 passed by Hon'ble High Court & order dated 03.03.2011 of my Ld. Predecessor, the plaintiff was required to prove that demurrage was in fact levied and paid alongwith its quantum. The plaintiff was also to prove that such demurrage was directed & proximate consequence of wrongful conduct of defendants. There is no evidence like invoice, receipt or any bill detail which has been placed on record to show the exact claim of demurrage accrued. In view of my findings to all the aforesaid issues, the plaintiff has failed to prove on record that demurrage accrued only because of defendant's non-compliance rather than due to inherent defects attributable to plaintiff's conduct.
CS DJ 206892/2016 Page No. 27 of 28 M/s GST CORPORATION VS. M/s ATLAS SHIPPING SERVICES PVT. LTD.
45. In view thereof, though the defendant has not led any evidence, however, the plaintiff has also failed to show entitlement to demurrage charges.
46. Hence, issue no.5 is decided accordingly.
Issue no.6 Whether the plaintiff is entitled to interest on suit amount? OPP
47. As the plaintiff has failed to prove its case against the defendant and all the issues have been decided against the plaintiff and in favour of the defendant, hence, the plaintiff is not entitled for any interest as prayed for.
Relief.
48. In view of the aforesaid discussion, issue no.1, 2 & 4 are decided against the plaintiff and in favour of the defendant, the present suit stands dismissed. No order as to costs.
Decree sheet be prepared accordingly.
File be consigned to Record Room.
Digitally signed
Ambika by Ambika
singh
Announced in the Open Court singh Date:
2026.02.16
16:59:01 +0530
on 16.02.2026
(Ambika Singh)
DJ-01/South District
Saket Courts, New Delhi
CS DJ 206892/2016 Page No. 28 of 28
M/s GST CORPORATION VS. M/s ATLAS SHIPPING SERVICES PVT. LTD.