Delhi District Court
New Delhi vs Union Of India on 16 September, 2021
IN THE COURT OF ADDITIONAL DISTRICT JUDGE(ADJ-01)
SOUTH DISTRICT, SAKET COURTS
PRESIDED OVER BY MS. POOJA TALWAR
CS No.8172/2016
ID No.DLST-01-000505/2011
IN THE MATTER OF:
1. D.C.S. International Trading Company
A registered partnership firm
through its registered partners
Sh. Dal Chand Solanki,
Sh. Prem Kumar Solanki &
Sh. Harsh Solanki
Registered office
16/E-293, Tank Road, Bapa Nagar,
Karol Bagh, New Delhi-110005
Also at:
Administrative office at:
33/33A, Rama Road Industrial Area,
Shivaji Marg, New Delhi-110015
2. Sh. Dal Chand Solanki
S/o Late Sh. Sadhu Ram Solanki
R/o 31/3 & 31/5, Punjabi Bagh (East)
New Delhi
3. Sh. Prem Kumar Solanki
S/o Sh. Dal ChandSolanki
R/o 31/3 & 31/5, Punjabi Bagh (East)
New Delhi
4. Sh. Harsh Solanki
S/o Sh. Dal Chand Solanki
R/o 31/3 & 31/5, Punjabi Bagh (East)
CS No. 8172/2016, D.C.S. International Trading Company & Ors. v. Union of India & Ors. Page 1 of 18
New Delhi
.....Plaintiffs
VERSUS
1. Union of India
through its finance Secretary
Ministry of Finance, Govt. of India
North Block, New Delhi-110001
2. Central Warehousing Corporation
Through it s chairman-cum-Managing Director/
Secretary/Principal Officer,
4/11, Siri Institution Area,
August Kranti Marg,
Hauz Khas, New Delhi-110016
3. Additional Commissioner of customs (I.C.D.)
Patparganj, New Delhi
.... Defendants
Date of filing : 19.08.2011
Final arguments heard on : 14.09.2021.
Judgment pronounced on : 16.09.2021.
Suit under Section 9 CPC.
J U D G M E N T:
1. This is a suit under Section 9 CPC filed by the plaintiffs against the defendants.
PLAINTIFF CASE:
2. The case of plaintiffs is that plaintiffs are in the business of export of human hair and also recognized as Star Export House by Ministry of Commerce and Industry. Plaintiffs entered into contract dated 14.05.2007 with M/s. Xuchang Peng Hui Hair Products Co. Ltd.
CS No. 8172/2016, D.C.S. International Trading Company & Ors. v. Union of India & Ors. Page 2 of 18for several materials with shipment latest by 30.05.2017 and insurance. The said order was placed on the basis of physical inspection of the product by President of the said company on 14.05.2007 in Delhi and a certificate for the same was also issued certifying that the goods were packed in his presence is cartons containing 25 kg each and were sealed by both sides after due satisfaction. The plaintiff also raised invoice dated 16.05.2017 for the amount of US $3,93,412.50 for a total 158 cartons having total net weight of 3,950 kg. It is further stated that the said 158 cartons were duly handed over by plaintiff to custom department through Bhumika International (shipping agent) (hereinafter referred as CHA) and after necessary checkups of the goods handed over same to the Central Warehousing Corporation (hereinafter referred to as CWC) vide receipt dated 17.05.2007 for the sum of Rs.577 included Rs.214/- as insurance charges and the sum of Rs.1000/- was also deposited by the plaintiff towards customs duty. After clearance of shipment by customs, the shipping order was issued to the shipping company vide Bill of Lading dated 19.05.2007. WSA Lines Pvt. Ltd. transmitted bill of lading dated 19.05.2007 and the goods of the plaintiffs also got opened/issued documentary letter of credit dated 18.05.2007. The said letter of credit was submitted by plaintiffs to Canara Bank, Kirti Nagar Branch for negotiation of the whole amount of the shipment US $ 393412.50 and submitted all required shipping documents alongwith bill of lading. The LC was negotiated and negotiation documents were sent to bank of China.
3. It is further stated that Bhumika International by virtue of letter dated 01.06.2007 addressed to Dy. Commissioner of Customs conveyed that it had filled DEPB Shipping of the goods having invoice CS No. 8172/2016, D.C.S. International Trading Company & Ors. v. Union of India & Ors. Page 3 of 18 value vide shipping bill dated 16.05.2007, the same was of the actual value of US $ 39412.50 but as per mistake, checklist showed the invoice value was US $ 393412.50 and requested to amend the same. The request of plaintiffs was allowed vide order dated 18.05.2007 subject to penalty of Rs.1000/- and sum of Rs.2,051/- was paid in settlement of other charges.
4. It is further stated that WSA lines conveyed to Ms. Paragon Freight International vide letter dated 23.05.2007, that at the time of stuffing of the container, some of the cartons were found opened and two cases appeared to be empty. It was further conveyed that they would not stuff the said shipment until the representative of WSA Lines would came and check the packages and give them go ahead for the same.
5. Plaintiff vide letter dated 24.05.2007 informed the Regional Manager, Central Warehousing about their consignments and said consignment were found open and two of the cartons were totally empty and also requested to examine the matter on priority. They asked for status of the goods from the Manager of the Custom House Agent Central. Plaintiffs also wrote letter dated 24.05.2007 to Manager CWC conveying that they were the custodian of the goods and were legally responsible for the safety of the consignments. Thereafter, similar letters were also addressed by the plaintiff on 24.05.2007 to Manager of CWC. Vide letter dated 26.05.2007 Manager CWC reported the matter to the police, however despite all efforts could not find the missing cargo. Plaintiff also wrote letter dated 01.10.2007 addressed to Regional Manager, CWC about the loss to the plaintiff to the tune of Rs.11,6,,278.65 due to the said theft. However, plaintiff did not receive any information and FIR got registered at the PS Kalyanpuri. However, CS No. 8172/2016, D.C.S. International Trading Company & Ors. v. Union of India & Ors. Page 4 of 18 vide letter dated 16.05.2008 issued by Regional Manager, CWC it is reported that plaintiff had not cooperated with the police as well as Surveyors of the insurance company. However, plaintiffs without any fault suffered huge loss, reputation and goodwill of the business. Plaintiffs sent a representation dated 02.02.2009 to the Chairman and Managing Director of the defendant no.2 however, same was not replied by the defendant. Reminder dated 21.10.2009 was also sent which was also not replied. Hence, the present suit.
Defendant's Case:
6. Defendant no.2 filed its written statement stating that present suit is barred by limitation. It is also contended that suit is bad for mis joinder and non joinder of necessary parties as the plaintiff has not impleaded the insurance agency who insured the consignment of the plaintiff. It is further contended that plaintiff has not come to the court with clean hands as plaintiff has suppressed the material facts. It is further stated that the representative of shipping line and CHA visited the godown no.5B who shifted cargo for physical verification of the packets and observed that contents of 2 packets out of total 158 packets were completely missing whereas 19 cartons were found slightly cut and torn. Further the counting of the packets was done by Surveyor of M/s. Perfect Marine Agency who got carted the cargo and issued receipt for 158 packets. On 23.05.2007 representative of CHA shifted cargo for physical verification of the packets and observed that contents of 2 packets out of total 158 packet was completely missing. It is further stated that plaintiff was under obligation to have his own insurance cover under Marine insurance. It is further stated that matter was got investigated by the police for the alleged theft. However, plaintiff did CS No. 8172/2016, D.C.S. International Trading Company & Ors. v. Union of India & Ors. Page 5 of 18 not cooperate. All the other averments made in the plaint have been categorically denied. It is prayed by defendant that suit be dismissed being not maintainable and devoid merits.
7. Written statement filed by defendant no.3 wherein it is contended that suit is not maintainable for want of notice under Section 80 CPC and also barred by limitation as the cause of action arose on 17.05.2008 and the suit has been filed on 18.07.2011. It is submitted that goods were never handed over to the defendant no.3 department and they were in custody of custodian i.e. CWC. All the other averments made in the plaint have been denied by the defendant no.3.
8. Plaintiffs filed the replication wherein they reiterated their case and controverted the stand taken by defendants in the written statements.
9. From the pleadings of the parties, issues were framed in the suit on 25.08.2014 which are as under:
1. Whether there was any loss/damage to the goods of the plaintiff? If so, which of the defendant was responsible for the loss? OPP
2. Whether notice under Section 80 CPC has been served on the defendant no.1? OPP
3. Whether the written statement filed by defendant no.2 has not been verified in proper form? If so, its effect?OPP
4. Whether the written statement filed by defendant no.3 has not been verified in accordance with law? OPP
5. Whether the suit is barred by time? OPD 2 and D-3
6. Whether the plaintiff failed to extend cooperation to the surveyor of insurance company to establish his claim? If so, its effect? OPD
7. Whether the suit is bad for misjoinder and non-joinder of the necessary parties? OPD
8. Relief.CS No. 8172/2016, D.C.S. International Trading Company & Ors. v. Union of India & Ors. Page 6 of 18
10. Vide order dated 16.03.2018, defendant no.1 was proceeded ex- parte.
11. During plaintiff's evidence, plaintiff no.3 himself examined as PW-1 who tendered his affidavit as Ex.PW-1/A. He tender and rely upon Ex.P-1 to Ex.P-6 and also the following documents:
1. Incorporation Certificate of the plaintiff company is Ex.PW1/1.
2. Form 'A' dated 10.12.2004 issued by Registrar of Firms is Ex.PW1/2 (OSR).
3. Coloured photocopy of Partnership Deed dated 25.03.1991 is Ex.PW1/3 (OSR).
4. Partnership Deed dated 01.01.2008 is Ex.PW1/4 (OSR).
5. Two Certificates dated 23.08.2004 and their true copy of English translation is Ex.PW1/5 (OSR).
6. Certificate of recognition dated 14.06.2005 is Ex.PW1/6 (OSR).
7. Registration-cum-Membership Certificate dated 20.04.2007 is Ex.PW1/7.
8. Certificate of Importer-Exporter Code (IEC) is Ex.PW1/8.
9. Sale and Purchase Contract dated 14.05.2007 is Ex.PW1/9 (OSR).
10.Certificate of Inspection dated 14.05.2007 is Ex.PW1/10.
11.Proforma Invoice dated 14.05.2007 is Ex.PW1/11.
12.Invoice dated 16.05.2007 is Ex.PW1/12.
13.Packing List dated 16.05.2007 is Ex.PW1/13.
14.Letter dated 23.05.2007 and its fair version is Ex.PW1/14 (OSR).
15.Letters dated 24.05.2007 are Ex.PW1/15 (OSR) to Ex.PW1/19 CS No. 8172/2016, D.C.S. International Trading Company & Ors. v. Union of India & Ors. Page 7 of 18 (OSR) (original document Ex.PW1/17 placed on record).
16.E-mail dated 03.07.2007 of the plaintiff is Ex.PW1/20.
17.Letter dated 03.07.2007 of Gen. Jie Yang is Ex.PW1/21.
18.Letter dated 04.07.2007 is Ex.PW1/22.
19.E-mail dated 06.07.2007 is Ex.PW1/23. Letter dated 01.10.2007 is Ex.PW1/24.
20.Reply dated 02.01.2008 is Ex.PW1/25.
21.Foreign Bills Purchase Advice dated 23.05.2007 is Ex.PW1/26.
22. Letter dated 20.10.2007 issued by Manager (ICD) to plaintiff no.1 is Ex.PW1/27.
23.Letter/Reply dated 19.11.2007 of plaintiffs to CWC is Ex.PW1/28.
24.Legal Notice dated 14.05.2011 Ex.PW1/29.
25.Two postal receipts dated 14.05.2011 are Ex.PW1/30 & Ex.PW1/31.
26. Certificate dated 10.12.2000 Mark-A.
27. Certificate dated 17.05.2007 Mark-B.
28. Challan dated 18.05.2007 of Rs.1,000/- Mark-C.
29. Copy of bill of lading dated 19.05.2007 and its fair version Mark-
D.
30. Copy of e-mail dated 19.05.2007 and its fair version Mark-E.
31. Copy of intimation to Beneficiary documentary letter of credit dated 19.05.2007 and its fair version Mark-F.
32. Copy of shipping bill no.165198 dated 16.05.2007 Mark-G.
33. Copy of weighment list dated 31.05.2007 and its true version Mark-H.
34. Copy of letter dated 01.06.2007 and its fair version Mark-I. CS No. 8172/2016, D.C.S. International Trading Company & Ors. v. Union of India & Ors. Page 8 of 18
35. Copy of letter dated 26.06.2007 and its fair version Mark-J.
36. Copy of letter dated 16.07.2007 Mark-K.
37. E-mail communication dated 16.07.2007 Mark-L.
38. Copy of covering letter Foreign Documentary Bill Mark-M.
39. Copy of Foreign Bill Realization Advice dated 12.06.2007 Mark-
N.
40. Copy of undated letter/reply of plaintiffs to Mr. Genjie Yang Mark-O.
41. Computerized copy of e-mail dated 10.07.2007 Mark-P.
42. Copy of Sailing Certificate dated 10.07.2007 Mark-Q.
43. Copy of undated letter/reply of plaintiffs to Mr. Genjie Yang Mark-R.
44. Copy of undated letter from plaintiff Mark-S.
45. Copy of undated letter of Mr. Genjie Yang Mark-T.
46. Copy of undated letter from plaintiff Mark-U.
47. Copy of undated letter of Mr. Genjie Yang Mark-V.
48. Copy of undated e-mail letter from Mr. Genjie Yang to plaintiff Mark-W.
49. Copy of undated letter from Mr. Genjie Yang to plaintiff Mark-X.
50. Copy of undated letter from plaintiff to Mr. Genjie Yang Mark-Y.
51. Copy of undated letter Mark-Z.
52. Computerized copy of e-mail letter dated 04.07.2007 from Mr. Xuchang Peng Hui Hair Products Co. Ltd. to plaintiff Mark-Z1.
53. Copy of Shipping Bill for export dated 19.05.2007 Mark-Z2.
12. In defendants evidence, defendant examined two witnesses. Sh. Gaurav Jawa, Manager, ICD, Patparganj, CWC, is examined as DW2 who tendered his affidavit as Ex.DW2/A and additional affidavit CS No. 8172/2016, D.C.S. International Trading Company & Ors. v. Union of India & Ors. Page 9 of 18 as Ex.DW2/AA and relied upon the following documents:
1. Copy of letter dated 18.05.2007 is Ex.DW2/1/P
2. Copy of Note Sheet of custom is Mark A (colly)
3. Copy of complaint dated 26.05.2007 is Ex.DW2/2P.
4. Copy of reminder letter dated 03.07.2007 is Ex.DW2/3/P.
5. Copy of letter dated 01.02.2008 is Ex.DW2/4P.
6. Copy of final investigation report dated 07.03.2008 is Mark B.
7. Copy of letter dated 16.05.2008 is Ex.DW2/5/P.
8. Copy of letter dated 28.11.2007 is Ex.DW1/2/6P.
9. Copy of interim report dated 08.02.2008 is Mark C (Colly).
13. ASI Rajvir Singh, PS Kalyanpuri, is examined as DW-2/2. He brought the report of destruction of old record i.e. order dated 27.04.2017. His report is Mark X (colly).
14. I have heard Ld. counsels for both the parties and have gone through the records carefully. My issue wise findings are as under:
FINDINGS OF THE COURT:
I ssue no.5 Whether the suit is barred by time? OPD 2 and D-3
15. The onus to prove this issue was on defendant no.2 and 3. It is stated in the respective written statements of both the defendants that the suit of the plaintiff is barred by time. As per the plaint, the cause of action arose in favour of the plaintiff on 17.05.2008 and the suit has been filed on 18.07.2011. As per the defendants the suit is belatedly filed, hence beyond limitation.
16. On the contrary, it is stated by plaintiff that since Union of India was impleaded as defendant no.1 hence a notice under Section 80 CPC was issued to defendant no.1 and 2 on 14.05.2011. The notice is CS No. 8172/2016, D.C.S. International Trading Company & Ors. v. Union of India & Ors. Page 10 of 18 deemed to be served within two days i.e. 16.05.2011.17.05.2011 was a Sunday and the suit was filed on 18.05.2011 i.e. within limitation.
17. Admittedly, no relief has been sought against defendant no.1. In the entire plaint the plaintiff has not explained as to how Union of India through Ministry of Finanace is a necessary party. PW-1 in his cross-examination stated that since CWC is under Union of India so Union of India has been made a party. Admittedly CWC is a Public Sector Undertaking and is not government, hence the plea of plaintiffs that CWC is under Union of India is incorrect.
18. The plaintiff has unnecessarily made Union of India as a party and has also exceeded the period of limitation on the basis of notice u/s 80 CPC. Once no relif was sought against Union of India, no notice was required to be sereved upon them and in case no notice was required to be served under Section 80 CPC the suit is byond limiation. In view of the same, the present issue is decided in favour of defendant no.2 and 3.
Issue no.7: Whether the suit is bad for misjoinder and non-
joinder of the necessary parties? OPD
19. The onus to prove this issue was on the defendant. It is claimed by defendant no.2 that the suit is bad for mis joinder and non joinder of necessary parties. As per the defendants, the insurance agency was a necessary party as it is obligatory under the international trade that every importer has to cover the consginement by way of marine insurance. Hence, the plaintiffs were required to implead IFFCO TOKIO General Insurance Company as the defendant.
20. It is stated by the plaintiff that the consigment was insured by defendant no.2 and not by the plaintiff. There is no privity of contract CS No. 8172/2016, D.C.S. International Trading Company & Ors. v. Union of India & Ors. Page 11 of 18 between the plantiff and the insurance company. Further no relief has been sought by the plaintiffs against the insurance company hence it was not a necessary party.
21. It is undisputed that defendant no.2 has insured the consignment with IFFCO TOKIO General insurance company for the goods of plaintiff. so, privity of contract, if any, was between plaintiff and defendant no.2. The plaintiff could have filed a suit only against defendant no.2 not against the insurance company with which it did not have any privity. Hence this issue is decided in favour of the plaintiff.
Issue no.3 Whether the written statement filed by defendant no.2 has not been verified in proper form? If so, its effect?OPP Issue no.4. Whether the written statement filed by defendant no.3 has not been verified in accordance with law?
OPP
22. The onus to prove these issues was on the plaintiffs. It is stated by plaintiffs that written statement filed by both defendant no.2 and 3 has not been properly verified. Perusal of written statement filed by defendants would reveal that the same has been duly verified by authorised agents of both the defendants. However, the written statements have not been verified by stating the paragraph numbers. It is not disputed by the plaintiffs that the written statement has not been filed by the duly authorised person, the only dispute is with respect to proper verification.
23. It is a settled proposition of law through various pronouncements that improper verification is a curable defect. Even CS No. 8172/2016, D.C.S. International Trading Company & Ors. v. Union of India & Ors. Page 12 of 18 otherwise, the plaintiff has to prove his case himself and improper verification would not be of any resort to it. Reliance in this regard is being placed on SPECIAL LEAVE PETITION (CIVIL) NO.10678 OF 2020 titled Saritha S. Nair Vs. Hibi Eden of Hon'ble Supreme Court : wherein it has been held that:
"33. Order VI, R.15 which speaks about verification of pleadings reads as follows:
"15. Verification of pleadings. (1) Save as otherwise provided by any law for the time being in force, every pleading shall be verified at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the court to be acquainted with the facts of the case.
(2) The person verifying shall specify, by reference to the numbered paragraphs of the pleading, what he verifies of his own knowledge and what he verifies upon information received and believed to be true. (3) The verification shall be signed by the person making it and shall state the date on which and the place at which it was signed.
(4) The person verifying the pleading shall also furnish an affidavit in support of his pleadings."
34. It is to be noted that Subrule (1) of Rule 15 of Order VI also permits the verification of pleading to be done by a person other than the party pleading, provided it is proved to the satisfaction of the Court that such other person was acquainted with the facts of the case.
36. In Murarka Radhey Shyam Ram Kumar vs. Roop Singh Rathore1 , a preliminary objection to the maintainability of the election petition was raised on the ground that the verification was defective. The verification stated that the averments made in some paragraphs of the petition were true to the personal knowledge of the petitioner and the averments in some other paragraphs were verified to be true on advice and information received from legal and other sources. There was no statement that the advice and information received by the election petitioner were believed by him to be true. Since this case arose before the amendment of the Act under Act 47 of 1966, the election petition was dealt with by the Tribunal. The CS No. 8172/2016, D.C.S. International Trading Company & Ors. v. Union of India & Ors. Page 13 of 18 Tribunal held the defect in the verification to be a curable defect. The view of the Tribunal was upheld by this Court in 1 AIR (1964) SC 1545 Murarka Radhey Shyam Ram Kumar (supra). This Court held that "it is impossible to accept the contention that a defect in verification which is to be made in the manner laid down in the Code of Civil Procedure for the verification of pleadings as required by Clause (c) of Subsection (1) of Section 83 is fatal to the maintainability of the petition".
41. In K.K. Ramachandran Master vs. M.V. Sreyamakumar5, this Court followed F.A. Sapa (supra) and Sardar Harcharan Singh Brar (supra) to hold that defective verification is curable. The Court again reiterated that the consequences that may flow from a defective affidavit is required to be judged at the trial of an election petition and that such election petition cannot be dismissed under Section 86(1)."
In view of aforesaid discussion, both these issues are accordingly decided against the plaintiff.
Issue no.2: Whether notice under Section 80 CPC has been served on the defendant no.1? OPP
24. The onus to prove this issue was on the plaintiff. The plaintiff was required to prove that whether the notice under Section 80 CPC was served upon the defendant no.1. The plaintiff in order to prove the same has relied upon speed post receipts Ex.PW1/30 and Ex.PW1/31 addressed to defendant no.2 and 1 respectively. As per the General Clauses Act once a letter is posted at the correct address the same is presumed to reach the addressee. Even otherwise, since it has already been decided in issue no.5 that Union of India is not a necessary party, hence this issue is not relevant. However, keeping in mind the fact that the plaintiff has placed on record the speed post receipts addressed to defendant no.1 and 2 it is presumed that notice was served upon defendant no.1. Moreover defendant no.1 and 2 have not come forward CS No. 8172/2016, D.C.S. International Trading Company & Ors. v. Union of India & Ors. Page 14 of 18 to dispute the address to be incorrect. Accordingly this issue is decided against defendants and in favour of plaintiff.
Issue no.1:Whether there was any loss/damage to the goods of the plaintiff? If so, which of the defendant was responsible for the loss? OPP
25. The onus to prove this issue was on the plaintiffs. The plaintiffs were required to prove that a loss/damage to the goods was sufferred by the plaintiffs and they were also required to prove that which of the defendants was responsible for the loss. It is claimed by the plaintiffs that defendant no.2 was the custodian of goods of the plaintiffs and that a theft was committed while the goods were in custody of defendant no.2. In order to prove its case, plaintiffs examined PW-1 Sh. Prem Kumar Solanki.
26. The plaintiffs were first and foremost required to prove that 158 cartons were actually placed in the custody of defendant no.2. In his cross examination, it is admitted by PW-1 that stacking of 158 cartons in custody of defendant no.2 was done by custom house agent (CHA). In response to the question that the cartoons were neither opened nor weighed by defendant no.2 before storing them with deendant no.2, it is stated by PW-2 that he does not know. It is also admitted by PW-1 that packaging and weighing of cartons was done in godwon of the plaintiffs. The same was not weighed from any independent agency. The goods as per PW-1 were weighed in his presence. But he could not tell that weight bridged of which company was used for weighing the consignment. The packaging of the goods as per plaintiffs was done by staff of the plaintiffs. Though the cartons were inspected by the importer CS No. 8172/2016, D.C.S. International Trading Company & Ors. v. Union of India & Ors. Page 15 of 18 but the same were not sealed in his presence. The consigment was handed over to the custom house agent of the plaintiffs who placed the same in the warehouse of defendant no .2. PW-1 could not tell if defendant no.2 accepted the consignment on "said to contain and said to weigh basis." PW-1 further admitted that at the relevant time of export of goods his father was looking after the business and that he joined the business one year back. Since PW-1 was not looking after the business at the relevant time so he could not have deposed that 158 cartoons weighing 3950 kg of human hair were placed in the custody of defendant no.2 by their custom house agent. The plaintiffs have not examined their custome house agent to prove that 158 cartoons weight 3950 kg of human hair were actually placed in the custody of defendant no.2. Moreover the alleged theft was detected by custom house agent of the plaintiffs itself. Now the best person to have deposed that 158 cartoons weight 3950 kg were acutally in custody in defendant no.2 i.e. M/s. Bhumika International.
27. Further it has also come on record through admitted document about the observation of the investigating officer who carried out investigation in the FIR got registered for theft of goods of plaintiffs by defendant no.2 that the plaintiffs did not cooperate in the investigation and that no case is made out for theft. In case the theft was actually committed the plaintiffs should have come forward to file a complaint with the police but the same was not done. No complaint by plaintiffs has been placed on record to prove the same. Since the factum of theft could not be proved the claim could not be raised with the insurance company by defendant no.2.
28. The plaintiffs have also not placed on record any document to CS No. 8172/2016, D.C.S. International Trading Company & Ors. v. Union of India & Ors. Page 16 of 18 show that the final report given by the police with respect to investigation of the FIR in question was challenged by them. Even the past conduct of the plaintiffs would be relevant here that the plaintiffs had given a mis-declaration in the value of consignment and the custom department had imposed a penalty of Rs.1000 against the plaintiffs.
29. The plaintiffs have not been able to prove on record that the consignment of 158 cartons weight 3950 kg was acutally placed in the custody of CWC. Plaintiffs have not examined any person on their behalf as to who was looking after the work of export of goods in question at the relevant time nor the custom house agent of plaintiffs has been examined to prove the same. The past conduct of the plaintiff would show a mis-declaration was made about the weight of the goods with the customs. The plaintiffs have also failed to prove that the alleged theft had actually occurred, which is evident from the fact neither the plaintiffs filed complaint with the police nor joined the investigation when called upon by the police several times. Even the final report given by the police which was against the plaintiffs was never challenged. In view of evidence brought on record, the plaintiffs have not been able to discharge the onus cast upon them. Hence these issues are decided against the plaintiffs.
Issue no.6: Whether the plaintiff failed to extend cooperation to the surveyor of insurance company to establish his claim? If so, its effect? OPD
30. The onus to prove this issue was on the defendant. It is the contention of defendant no.2 that the plaintiffs failed to extend cooperation to the surveyor of insurance company to establish their claim. The Defendant has not led any evidence to prove that the CS No. 8172/2016, D.C.S. International Trading Company & Ors. v. Union of India & Ors. Page 17 of 18 plaintiffs have failed to extend cooperation to the inurance company. In the written statement as well as in the evidnce it is stated that the plaintiff did not join investigation conducted by the police on the FIR got registered on the complaint of the defendant no.2. The defendant has no nowhere stated that the plaintiffs have not cooperated with the surveyor of the insurance company. Since the defendant has not produced any evidence to prove the same, accordingly this issue is decided against defendant no.2.
Relief:
31. In view of the aforesaid discussion, suit of the plaintiffs is dismissed. No order as to costs. Decree sheet be prepared accordingly. File be consigned to Record Room after due compliance.
Announced in the open court
on 16.09.2021 through Video Conferencing
via CISCO WebEx.com
Digitally (Pooja Talwar)
signed by Additional District Judge-01,
POOJA
(South) Saket District Courts,
POOJA TALWAR
New Delhi.
TALWAR Date:
2021.09.18
15:48:15
+0530
CS No. 8172/2016, D.C.S. International Trading Company & Ors. v. Union of India & Ors. Page 18 of 18