Delhi District Court
Expo Freight (P) Ltd vs M/S Best Tanning Industries Pvt Ltd on 6 May, 2023
IN THE COURT OF MS VINEETA GOYAL,
DISTRICT JUDGE (COMMERCIAL-03),
PATIALA HOUSE, NEW DELHI
CS No. 643/2021
In the matter of:
Expo Freight (P) Ltd
Plot No. 9-A, Road No. 4,
Mahaipal Extension,
National Highway-8,
New Delhi ........ Plaintiff
Versus
M/s Best Tanning Industries Pvt Ltd
Through its Director
16-B, Gajjupurwa,
150, Feet Road, Jajmau,
Kanpur, Uttar Pradesh
Also at:
7/94, Tilak Nagar,Kanpur,
Uttar Pradesh-208002 ......Defendant
Date of institution of suit : 18.12.2021
Judgment reserved on : 01.05.2023
Date of Judgment : 06.05.2023
Appearance : Sh. M. Asif Khan, Ld. Counsel for plaintiff.
Defendant ex-parte.
JUDGMENT
1. The plaintiff has instituted the present suit for recovery of Rs. 3,30,654/- (Rupees Three Lacs Thirty Thousand Six Hundred Fifty Four only) along-with pendente lite and future interest @ 24% per CS 643/21 Expo Freight Pvt Ltd Vs. Best Tanning Industries Pvt Ltd & Ors Page 1 of 9 annum with monthly rest till realization against the defendant.
2. Facts as epitomized in plaint are that the plaintiff is a company duly incorporated under the Companies Act, 1956 having its office at PlotNo. 9-A, Road No. 4, Mahipalpur Extension, NH-08, New Delhi. It is an International Freight Forwarder, handles international cargo on behalf of various exporters & importers and logistics providers to its various agents / customers in international trade market and is carrying out its business worldwide. Sh. Sunil Thomas is authorized representative of the plaintiff duly authorized vide Board Resolution dated 10.03.2020.
2.1 It is averred that the defendant no. 1, a Private Limited Company is engaged in the business of leather safety shoes etc. Defendant nos. 2 to 4 are directors of defendant no. 1 and are liable & responsible for the day to day affairs of defendant no. 1.
2.2 It is averred that defendant nos. 2 to 4 approached the plaintiff with a request for clearance of its shipment from New Delhi IGI Airport to Abroad by air. The defendants also issued commercial invoices for delivery of goods through buyer.
2.3. It is further averred that plaitniff handled their shipment at the request on the agreed terms, conditions and rates as per the discussions with the defendants. Accordingly, the plaintiff raised various invoices against the defendant no. 1 from time to time. The said shipments were sent to the desired destination by the plaintiff in good condition and on time and necessary documents such as Airway bills & CS 643/21 Expo Freight Pvt Ltd Vs. Best Tanning Industries Pvt Ltd & Ors Page 2 of 9 house airway bills were got prepared. The plaintiff is maintaining books of running accounts in the name of defendant no. 1 and an amount of Rs. 3,30,654/- is outstanding against the defendants, which they are liable and bound to pay to the plaintiff jointly and / or severally. The defendants have bound and liable to pay the said amount to the plaintiff. It is further averred that the invoices were duly received and acknowledged by the defendants and they reiterated the commitments of making the balance payment of amount as appearing in the invoices as well as statement of account in due course of time. It seems that defendants have received their payment from buyers but intentionally had not paid the outstanding amount to the plaintiff.
2.4 It is averred that defendants, however, failed to keep their promise of making the payment of above said outstanding and are illegally withholding the above said payment without any reason whatsoever. Further, of late now, the defendants have started avoiding even to talk to the plaintiff whenever, a representative of the plaintiff tried to contact the defendants. The defendants have committed the offence of cheating upon the plaintiff, which punishable under Section 420 & 406 of Indian Penal Code (IPC). A legal notice dated 15.07.2019 through its counsel was sent by the plaintiff vide registered AD & Speed post to all the defendants. The said notice was duly served upon the defendants, however, the AD card has not been received. Till date, the defendants have not made the payment of the plaintiff despite service of notice and despite various requests and demands. The defendants have failed to comply with their part of obligation, are liable to pay a sum of Rs. 3,30,654/- towards principal amount to the plaintiff and further liable to pay interest @ 24% per annum on the aforesaid CS 643/21 Expo Freight Pvt Ltd Vs. Best Tanning Industries Pvt Ltd & Ors Page 3 of 9 amount. The claim of the plaintiff is well within the period of limitation. The subject matter of suit is "commercial dispute" of Commercial Court, Commercial Division & Commercial Appellate Division of High Courts Act, 2015. The plaintiff filed an application for pre-litigation mediation before New Delhi District, Legal Service Authority, New Delhi, wherein, the defendants did not participate in mediation process despite service of notice. Non Starter Report dated 15.01.2021 was issued by Competent Authority.
2.5 It is further averred that plaintiff is situated at Delhi and cause of action also arose in Delhi. The defendants contacted the plaintiff at Delhi for clearance of their shipments. The entire work was done and shipments were received by the plaintiff at Delhi and the said shipments were sent to abroad by plaintiff from IGI Airport, New Delhi, hence, this Court has jurisdiction to try / entertain and decide the present suit. Hence, this suit for recovery.
3. Summons of suit sent to the defendants vide order dated 14.02.2022, 26.04.2022, 11.07.2022, 22.08.2022 and 16.09.2022. Defendant no. 1 & 2 were served by way of publication in newspaper "Dainik Jagran" having circulated in Kanpur, Uttar Pradesh. Defendant nos. 3 & 4 refused to receive the process. Defendants did not appear and were proceeded ex parte. It is significant to mention here that on 25.03.2023, plaintiff filed an memo of parties deleting the names of defendant nos. 2 to 4 from array of parties being not liable for any claim outstanding towards plaintiff.
CS 643/21 Expo Freight Pvt Ltd Vs. Best Tanning Industries Pvt Ltd & Ors Page 4 of 93.1 In the plaintiff's evidence, Sh. Sunil Thomas, AR of plaintiff, who was authorized by the plaintiff to depose in this matter vide Board Resolution dated 10.03.2020 Ex. PW1/1 was examined as PW1, who tendered evidence by way of affidavit Ex. PW1/X and relied upon following document:
Copies of Importer - Exporter Code Ex. PW1/3. Copies of Commercial Invoices Ex. PW1/4 & Ex. PW1/5 respectively.
Tax Invoice No. 1819035901 dated 06.02.2019 Ex. PW1/6. Airway Bill No. 589-8294-4805 Ex. PW1/7. House Airway Bill No. 100067016 Ex. PW1/8. Tax Invoice No. 00003741 dated 16.05.2019 Ex. PW1/9. Airway Bill No. 235-3883-9942 is Ex. PW1/10. House Airway Bill No. 17719078514 Ex. PW1/11. Statement of Account Ex. PW1/12.
Legal Notice dated 15.07.2019 Ex. PW1/13, Postal receipts Ex. PW1/14 (colly) and six returned envelops Ex. PW1/15 (colly).
Non Starter Report dated 15.01.2021 Ex. PW1/16.
5. I have heard arguments advanced by the Learned Counsel for the plaintiff and have perused the evidence as well as documents proved on record.
6. To prove its case, the plaintiff adduced oral & documentary evidence by examining AR as PW1 and the said witness produced and marked the documentary evidence as Ex. PW1/1 to Ex. PW1/16. PW1 categorically deposed that the defendants approached the plaintiff with request for clearance of CS 643/21 Expo Freight Pvt Ltd Vs. Best Tanning Industries Pvt Ltd & Ors Page 5 of 9 its shipments from IGI Airport, New Delhi for abroad by air and defendants have issued commercial invoice Ex. PW1/4 786/41/SHOES/18-19 dated 28.01.2019 and invoice Ex. PW1/5 786/5/19-20 dated 08.05.2019 for delivery of goods to its buyer. The plaintiff handled their shipment as per the agreed terms and accordingly, the plaintiff raised tax invoice no. 181035901 dated 06.02.2019 Ex. PW1/6 for Rs. 69,225.70 and tax invoice no. 00003741 dated 16.05.2019 Ex. PW1/9 for Rs. 2,61,429/-. The said shipments were sent to the desired destination by plaintiff in good condition. The plaintiff has also produced airway bill no. 589-8294-4805 Ex. PW1/7, house airway bill no. 100067016 Ex. PW1/8 bearing invoice no. 41 and further produced airway bill no. 235-3883-9942 Ex. PW1/10 and house airway bill no. 17719078514 Ex. PW1/11 bearing tax invoice no. 05. The documents Ex. PW1/6 and Ex. PW1/9 disclose that the said invoices are in respect of defendant and bears goods description invoice number, order number along with other details such as cargo facilitation charges, transportation charges, freight, port and terminal handing charges etc. The plaintiff has also claimed that it is a running account and as per Statement of Account Ex. PW1/12, there is an outstanding of Rs. 3,30,654.70 and defendant is liable to pay the said amount. There is no rebuttal to the above documents and the documents proved on record are sufficient to show that the the plaintiff rendered its services in shipments of the goods of the defendant to the desired destination. Plaintiff proved that defendant engaged it in shipment of their goods by issuing CS 643/21 Expo Freight Pvt Ltd Vs. Best Tanning Industries Pvt Ltd & Ors Page 6 of 9 commercial invoices dated 28.01.2019 and 08.05.2019. The plaintiff also adduced oral as well as documentary for proving the fact that he has provided services and raised the invoices. The plaintiff produced the said invoices along with the airway bills and house airway bills and the same are marked as Ex. PW1/6 to Ex. PW1/11. The documentary evidence at Ex. PW1/12 is the Statement of Account, which plaintiff maintained for the account of its business. Plaintiff by producing and also by adducing cogent evidence proved that it is entitled to recover logistics provided to the defendant and there is no reason to disbelieve the same.
7. From the oral evidence in the form of PW1 coupled with documentary evidence, the plaintiff has cogently established that the plaintiff handled the shipments of the defendant but the defendant failed to repay to the plaintiff in accordance with the invoices raised by the plaintiff. From un-rebutted testimony of plaintiff's witness and the documents proved on record, the plaintiff has successfully established its case in respect amount i.e. Rs. 3,30,654/- (Rupees Three Lacs Thirty Thousand Six Hundred Fifty Four only) and plaintiff is entitled for recovery of the same. The plaintiff has stated that the plaintiff is entitled for the interest @ 24% per annum on the above amount. The plaintiff has not been able to justify the claim of default interest @ 24% per annum claimed in the plaint and no pleadings have been set up to justify the interest at such an exorbitant rate of interest. The transaction CS 643/21 Expo Freight Pvt Ltd Vs. Best Tanning Industries Pvt Ltd & Ors Page 7 of 9 between the parties being commercial, this Court feels that the interest can be granted @ 9% per annum which would meet the ends of justice. Under these circumstances, the plaintiff is entitled for suit claim i.e. Rs. 3,30,654/- (Rupees Three Lacs Thirty Thousand Six Hundred Fifty Four only) along-with pendente lite and future simple interest @ 9% per annum from the date of institution of suit till its realization.
Relief.
8. In view of above discussions, suit for recovery is decreed in favour of the plaintiff and against the defendant for an amount of Rs. 3,30,654/- (Rupees Three Lacs Thirty Thousand Six Hundred Fifty Four only) along-with pendente lite and future simple interest @ 9% per annum from the date of institution of suit till its realization. The plaintiff has also claimed the costs of suit.
9. Keeping in view provisions as contained in Section 35 and Section 35A of CPC, more particularly when the defendant has not contested the claim of the plaintiff, defendant is responsible for the cost of litigation to the extent of Court Fee and Advocate Fee etc as per rules. Accordingly, the plaintiff is entitled for costs of litigation and the costs of the suit. The Advocate fee is assessed to be Rs. 20,000/- only and same is hereby awarded in favour of plaintiff. Cost suit i.e. court fee etc., are also awarded in favour of plaintiff.
CS 643/21 Expo Freight Pvt Ltd Vs. Best Tanning Industries Pvt Ltd & Ors Page 8 of 910. Decree sheet be prepared accordingly.
11. File be consigned to record room.
Pronounced in the open Court (VINEETA GOYAL)
on this 06.05.2023 District Judge (Commercial-03)
Patiala House, New Delhi
CS 643/21 Expo Freight Pvt Ltd Vs. Best Tanning Industries Pvt Ltd & Ors Page 9 of 9