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[Cites 8, Cited by 0]

Delhi District Court

M/S. Sunrise Freight Forwarders Pvt. ... vs M/S. Scl Logistics (India) Pvt. Ltd on 25 March, 2022

                       M/s. Sunrise Freight Forwarders Pvt. Ltd. v. M/s. SCL Logistics (India) Pvt. Ltd. & Anr.


          IN THE COURT OF HELLY FUR KAUR : CIVIL JUDGE - 08 (CENTRAL),
                    ROOM NO.231, TIS HAZARI COURTS, DELHI


                                           SUIT NO : 1048/19

        In the matter of :­

        M/s. Sunrise Freight Forwarders Pvt. Ltd.
        Surya Bhawan, A­1023, Road No.6,
        Mahipalpur, New Delhi­ 110037.                                           ...PLAINTIFF

                                                  VERSUS

1.      M/s. SCL Logistics (India) Pvt. Ltd.
        Having its Registered office at:
        C­18, 2nd Floor, C­Block, Dabri Extension,
        New Delhi­ 110045.

2.      Umesh Bhatt
        Director, M/s. SCL Logistics (India) Pvt. Ltd.,
        Having its registered office at:
        C­18, 2nd Floor, C­Block, Dabri Extension,
        New Delhi­ 110045.                                                          ...DEFENDANTS

                       Date of institution                  :         15.04.2019
                       Date of judgment                     :         25.03.2022

                   SUIT FOR RECOVERY OF RS.2,31,906/­ WITH
                 PENDENTE LITE INTEREST & FUTURE INTEREST
           FROM THE DATE OF DECREE UP TO THE DATE OF REALIZATION;
                AND COSTS OF THE SUIT WITH INTEREST THEREON.

                                             JUDGMENT

1. Vide this judgment, I shall decide a suit for recovery of Rs.2,31,906/­.

CS No.1048/19 Pg 1 of 19 M/s. Sunrise Freight Forwarders Pvt. Ltd. v. M/s. SCL Logistics (India) Pvt. Ltd. & Anr. THE BRIEF FACTS OF THE PLAINT:

2. The brief facts of the plaint as alleged by the plaintiff which are necessary for the disposal of the suit are that the plaintiff is a private limited company incorporated under the Companies Act, 1956, having its registered office at Surya Bhawan, A­1023, Road No.46, Mahipalpur, New Delhi­110037. Mr. Karthik Handa is the Chairman & Managing Director of the plaintiff company; is duly authorized by the Board of Director Resolution dated 01.04.2019 to file and institute the present suit. The present suit is accordingly being signed, verified and instituted by Mr. Karthik Handa on behalf of the plaintiff company. That the plaintiff is a customs cleaning clearing and freight forwarding agent duly approved by the by the International Air Transport Association (IATA). The plaintiff carries on its business as cargo agents for transshipment and customs clearance etc. of consignment (s) on India to/from various foreign countries on behalf of its clients/exporters/importers. That the defendant No.1 is private limited company. It is stated that the defendant No.1 is basically a shell company floated and deployed by the defendant No.2 Mr. Umesh Bhatt; further, the defendant No.1 is nothing but a front for the defendant No.2. That since December 2015, the defendants had been availing the services of the plaintiff for trans­shipment and custom clearance etc. of their import CS No.1048/19 Pg 2 of 19 M/s. Sunrise Freight Forwarders Pvt. Ltd. v. M/s. SCL Logistics (India) Pvt. Ltd. & Anr. consignment at the custom station at Jaipur. That during the course of dealings with the defendants, the plaintiff had also been issuing the invoices/bills/debit notes upon the defendants, giving details about the services availed by the defendants, the rate and value thereof, besides other charges etc. That the aforesaid invoices/bills/debit notes issued by the plaintiff were duly accepted and acknowledge by the defendants and in acknowledgment of their liability towards the plaintiff, the defendants had been making 'on account' payments to the plaintiff. That after appropriating the total payments made by the defendants 'on account' as on 22.08.2017, the defendants were still liable (jointly and severally) to pay the balance principal amount of Rs.1,80,004.51p to the plaintiff. That the defendants had agreed and undertaken to adjust the balance outstanding in their account within a short span of time and in any event, as and when demanded by the plaintiff. That one of the terms of the aforesaid invoices/bills issued by the plaintiff and /or execution of work by the plaintiff was that in case the invoice/bill was not paid on presentation, in that event, the plaintiff shall be entitled to charge interest @ 18% per annum. It is pertinent to state that the Spl. Note No.2 printed at the foot of the invoices/bills issued by the plaintiff upon the defendants reads as under: "2 interest @18% per annum is chargeable on bill, if not paid on presentation."

CS No.1048/19 Pg 3 of 19 M/s. Sunrise Freight Forwarders Pvt. Ltd. v. M/s. SCL Logistics (India) Pvt. Ltd. & Anr. That the transaction between the parties was a commercial transaction. The aforesaid rate of interest claimed is equivalent and/or less than the interest charged by the nationalized banks from their customers with respect to the loan transactions. Even otherwise, as per market usage and trade, the defendants are liable to pay interest at the said rate. That in view of the above, the defendants were/are therefore, also liable (jointly and severally) to pay interest to the plaintiff at the rate of 18% per annum on the said amount of Rs.1,80,004.51 with effect from 01.09.2017 till the date of actual payment. That despite repeated requests and demands made by the plaintiff, the defendants however, failed to liquidate their liability towards the plaintiff and pay the aforesaid amount due to the plaintiff. That the plaintiff maintains books of account (computerized) in the regular course of its business. The aforesaid invoices/bills/debit notes issued by the plaintiff were therefore, debited to the account maintained in the name of the defendants and similarly, whenever the payments were received, the same were credited to the account of the defendants. That prior to the institution of the present suit, the defendants were also served with the legal notice dated 02.01.2019 (sent through M/s. Manish Kohli & Company, Advocates) calling upon the defendants to liquidate their liability towards the plaintiff and pay the amount of Rs.1,80,004.51 together with costs and interest, as CS No.1048/19 Pg 4 of 19 M/s. Sunrise Freight Forwarders Pvt. Ltd. v. M/s. SCL Logistics (India) Pvt. Ltd. & Anr. mentioned in the said notice. Despite the said notice being served upon the defendants, the defendants however, failed to pay any amount to the plaintiff. Hence, the plaintiff has filed the present suit. That on the date of institution of the present suit, the defendant are (jointly and severally) liable to pay to the plaintiff the following amounts: 

     (1)        Balance outstanding amount,
                as mentioned above                      :                     Rs.1,80,004.51/­
     (2)        Interest at the rate of 18% per annum
                on Rs.1,80,004.51 with effect from
                01.09.2017 till the date of institution
                of the present suit                     :                     Rs. 48,601.21/­
     (3)        Costs of the legal notice dated 02.01.2019:                   Rs. 3,300/­
                Total                                   :                     Rs.2,31,906/­

Hence, the present suit for recovery of Rs.2,31,906/­.

3. Summons of the suit was issued to the defendants, however, despite service by way of ordinary process on 11.05.2019, defendants did not appear before the court and was proceeded against ex­parte vide order dated 01.10.2019.

4. As per Order 8 Rule 5 (1) of the Code of Civil Procedure, 1908 in absence of any denial of allegations in the plaint by the defendant, the Court shall presume the facts to be admitted. Section 58 of Indian Evidence Act states that a fact admitted even by way of any rule of pleading need not be proved. However, both the provisions empower the Court to require the CS No.1048/19 Pg 5 of 19 M/s. Sunrise Freight Forwarders Pvt. Ltd. v. M/s. SCL Logistics (India) Pvt. Ltd. & Anr. admitted facts to be proved, whether admitted expressly or impliedly. Order 8 Rule 5 (2) of Code of Civil Procedure, 1908 is similar to Section 58 of Indian Evidence Act. Moreover, Order 8 Rule 10 of Code of Civil Procedure, 1908, which deals with power of Court in total absence of written statement also leaves it on a discretion of the Court whether to pronounce judgment or make such other order as the court deems fit.

In Balraj Taneja & Anr v. Sunil Madan & Anr (1999) 8 SCC 396, in the context of Section 58 and Order 8 Rule 5, it was held by the Hon'ble SC that:­ " A court, at no stage, can act blindly or mechanically." In exercise of the above powers and as a matter of caution, this Court had required the plaintiff to prove its case through evidence. PLAINTIFF'S EVIDENCE:

5. In support of its case, plaintiff examined following witnesses:
• Sh. Karthik Handa, Managing Director of plaintiff company as PW­1 who tendered his affidavit in evidence Ex.PW­1/A. PW­1 relied on the following documents:
1. Ex.PW­1/1 Board Resolution dated 01.04.2019.
2. Ex.PW­1/2 Invoice/Debit Note dated 05.12.2015.
3. Ex.PW­1/3 Invoice/Debit Note dated 05.12.2015.
CS No.1048/19 Pg 6 of 19 M/s. Sunrise Freight Forwarders Pvt. Ltd. v. M/s. SCL Logistics (India) Pvt. Ltd. & Anr.
4. Ex.PW­1/4 Invoice/Debit Note dated 31.12.2015.
5. Ex.PW­1/5 Invoice/Debit Note dated 31.12.2015.
6. Ex.PW­1/6 Invoice/Debit Note dated 31.12.2015.
7. Ex.PW­1/7 Invoice/Debit Note dated 23.01.2016.
8. Ex.PW­1/8 Invoice/Debit Note dated 27.01.2016.
9. Ex.PW­1/9 Invoice/Debit Note dated 27.01.2016.
10. Ex.PW­1/10 Invoice/Debit Note dated 27.01.2016.
11. Ex.PW­1/11 Invoice/Debit Note dated 23.02.2016.
12. Ex.PW­1/12 Invoice/Debit Note dated 23.02.2016.
13. Ex.PW­1/13 Invoice/Debit Note dated 23.02.2016.
14. Ex.PW­1/14 Invoice/Debit Note dated 29.02.2016
15. Ex.PW­1/15 Invoice/Debit Note dated 29.02.2016.
16. Ex.PW­1/16 Invoice/Debit Note dated 29.02.2016.
17. Ex.PW­1/17 Invoice/Debit Note dated 29.02.2016.
18. Ex.PW­1/18 Invoice/Debit Note dated 29.02.2016.
19. Ex.PW­1/19 Invoice/Debit Note dated 29.02.2016.
20. Ex.PW­1/20 Invoice/Debit Note dated 29.02.2016.
21. Ex.PW­1/21 Invoice/Debit Note dated 04.03.2016.
CS No.1048/19 Pg 7 of 19 M/s. Sunrise Freight Forwarders Pvt. Ltd. v. M/s. SCL Logistics (India) Pvt. Ltd. & Anr.
22. Ex.PW­1/22 Invoice/Debit Note dated 11.03.2016.
23. Ex.PW­1/23 Invoice/Debit Note dated 11.03.2016.
24. Ex.PW­1/24 Invoice/Debit Note dated 11.03.2016.
25. Ex.PW­1/25 Invoice/Debit Note dated 11.03.2016.
26. Ex.PW­1/26 Invoice/Debit Note dated 15.03.2016.
27. Ex.PW­1/27 Invoice/Debit Note dated 15.03.2016.
28. Ex.PW­1/28 Invoice/Debit Note dated 21.03.2016.
29. Ex.PW­1/29 Invoice/Debit Note dated 21.03.2016.
30. Ex.PW­1/30 Invoice/Debit Note dated 21.03.2016.
31. Ex.PW­1/31 Invoice/Debit Note dated 21.03.2016.
32. Ex.PW­1/32 Invoice/Debit Note dated 21.03.2016.
33. Ex.PW­1/33 Invoice/Debit Note dated 21.03.2016.
34. Ex.PW­1/34 Invoice/Debit Note dated 21.03.2016.
35. Ex.PW­1/35 Invoice/Debit Note dated 21.03.2016.
36. Ex.PW­1/36 Invoice/Debit Note dated 22.04.2016.
37. Ex.PW­1/37 Invoice/Debit Note dated 22.04.2016.
38. Ex.PW­1/38 Invoice/Debit Note dated 28.04.2016.
39. Ex.PW­1/39 Invoice/Debit Note dated 28.04.2016.
CS No.1048/19 Pg 8 of 19 M/s. Sunrise Freight Forwarders Pvt. Ltd. v. M/s. SCL Logistics (India) Pvt. Ltd. & Anr.
40. Ex.PW­1/40 Invoice/Debit Note dated 28.04.2016.
41. Ex.PW­1/41 Invoice/Debit Note dated 28.04.2016.
42. Ex.PW­1/42 Invoice/Debit Note dated 19.05.2016.
43. Ex.PW­1/43 Invoice/Debit Note dated 19.05.2016.
44. Ex.PW­1/44 Invoice/Debit Note dated 30.05.2016.
45. Ex.PW­1/45 Invoice/Debit Note dated 30.05.2016.
46. Ex.PW­1/46 Invoice/Debit Note dated 06.07.2016.
47. Ex.PW­1/47 Invoice/Debit Note dated 06.07.2016.
48. Ex.PW­1/48 Invoice/Debit Note dated 06.07.2016.
49. Ex.PW­1/49 Invoice/Debit Note dated 06.07.2016.
50. Ex.PW­1/50 Invoice/Debit Note dated 23.07.2016.
51. Ex.PW­1/51 Invoice/Debit Note dated 23.07.2016.
52. Ex.PW­1/52 Invoice/Debit Note dated 23.07.2016.
53. Ex.PW­1/53 Invoice/Debit Note dated 23.07.2016.
54. Ex.PW­1/54 Invoice/Debit Note dated 25.07.2016.
55. Ex.PW­1/55 Invoice/Debit Note dated 25.07.2016.
56. Ex.PW­1/56 Invoice/Debit Note dated 09.08.2016.
57. Ex.PW­1/57 Invoice/Debit Note dated 09.08.2016.
CS No.1048/19 Pg 9 of 19 M/s. Sunrise Freight Forwarders Pvt. Ltd. v. M/s. SCL Logistics (India) Pvt. Ltd. & Anr.
58. Ex.PW­1/58 Invoice/Debit Note dated 13.08.2016.
59. Ex.PW­1/59 Invoice/Debit Note dated 13.08.2016.
60. Ex.PW­1/60 Invoice/Debit Note dated 13.08.2016.
61. Ex.PW­1/61 Invoice/Debit Note dated 13.08.2016.
62. Ex.PW­1/62 Invoice/Debit Note dated 16.09.2016.
63. Ex.PW­1/63 Invoice/Debit Note dated 16.09.2016.
64. Ex.PW­1/64 Invoice/Debit Note dated 16.09.2016.
65. Ex.PW­1/65 Invoice/Debit Note dated 16.09.2016.
66. Ex.PW­1/66 Invoice/Debit Note dated 17.09.2016.
67. Ex.PW­1/67 Invoice/Debit Note dated 19.09.2016.
68. Ex.PW­1/68 Invoice/Debit Note dated 24.09.2016.
69. Ex.PW­1/69 Invoice/Debit Note dated 24.09.2016.
70. Ex.PW­1/70 Invoice/Debit Note dated 29.09.2016.
71. Ex.PW­1/71 Invoice/Debit Note dated 29.09.2016.
72. Ex.PW­1/72 Invoice/Debit Note dated 07.10.2016.
73. Ex.PW­1/73 Invoice/Debit Note dated 07.10.2016.
74. Ex.PW­1/74 Invoice/Debit Note dated 07.10.2016.
75. Ex.PW­1/75 Invoice/Debit Note dated 05.11.2016.
CS No.1048/19 Pg 10 of 19 M/s. Sunrise Freight Forwarders Pvt. Ltd. v. M/s. SCL Logistics (India) Pvt. Ltd. & Anr.
76. Ex.PW­1/76 Invoice/Debit Note dated 05.11.2016.
77. Ex.PW­1/77 Invoice/Debit Note dated 05.11.2016.
78. Ex.PW­1/78 Invoice/Debit Note dated 05.11.2016.
79. Ex.PW­1/79 Invoice/Debit Note dated 09.11.2016.
80. Ex.PW­1/80 Invoice/Debit Note dated 09.11.2016.
81. Ex.PW­1/81 Invoice/Debit Note dated 15.11.2016.
82. Ex.PW­1/82 Invoice/Debit Note dated 15.11.2016.
83. Ex.PW­1/83 Invoice/Debit Note dated 21.11.2016.
84. Ex.PW­1/84 Invoice/Debit Note dated 21.11.2016.
85. Ex.PW­1/85 Invoice/Debit Note dated 06.12.2016.
86. Ex.PW­1/86 Invoice/Debit Note dated 06.12.2016.
87. Ex.PW­1/87 Invoice/Debit Note dated 06.12.2016.
88. Ex.PW­1/88 Invoice/Debit Note dated 26.12.2016.
89. Ex.PW­1/89 Invoice/Debit Note dated 26.12.2016.
90. Ex.PW­1/90 Invoice/Debit Note dated 26.12.2016.
91. Ex.PW­1/91 Invoice/Debit Note dated 26.12.2016.
92. Ex.PW­1/92 Invoice/Debit Note dated 31.12.2016.
93. Ex.PW­1/93 Invoice/Debit Note dated 31.12.2016.
CS No.1048/19 Pg 11 of 19 M/s. Sunrise Freight Forwarders Pvt. Ltd. v. M/s. SCL Logistics (India) Pvt. Ltd. & Anr.
94. Ex.PW­1/94 Invoice/Debit Note dated 31.12.2016.
95. Ex.PW­1/95 Invoice/Debit Note dated 31.12.2016.
96. Ex.PW­1/96 Invoice/Debit Note dated 10.01.2017.
97. Ex.PW­1/97 Invoice/Debit Note dated 10.01.2017.
98. Ex.PW­1/98 Invoice/Debit Note dated 17.01.2017.
99. Ex.PW­1/99 Invoice/Debit Note dated 17.01.2017.
100.Ex.PW­1/100 Invoice/Debit Note dated 19.01.2017.
101.Ex.PW­1/101 Invoice/Debit Note dated 23.01.2017.
102.Ex.PW­1/102 Invoice/Debit Note dated 23.01.2017.
103.Ex.PW­1/103 Invoice/Debit Note dated 24.01.2017.
104.Ex.PW­1/104 Invoice/Debit Note dated 24.01.2017.
105.Ex.PW­1/105 Invoice/Debit Note dated 24.01.2017.
106.Ex.PW­1/106 Invoice/Debit Note dated 24.01.2017.
107.Ex.PW­1/107 Invoice/Debit Note dated 24.01.2017.
108.Ex.PW­1/108 Invoice/Debit Note dated 09.02.2017.
109.Ex.PW­1/109 Invoice/Debit Note dated 09.02.2017.
110.Ex.PW­1/110 Invoice/Debit Note dated 17.02.2017.
111.Ex.PW­1/111 Invoice/Debit Note dated 17.02.2017.
CS No.1048/19 Pg 12 of 19 M/s. Sunrise Freight Forwarders Pvt. Ltd. v. M/s. SCL Logistics (India) Pvt. Ltd. & Anr.
112.Ex.PW­1/112 Invoice/Debit Note dated 17.02.2017.
113.Ex.PW­1/113 Invoice/Debit Note dated 21.02.2017.
114.Ex.PW­1/114 Invoice/Debit Note dated 21.02.2017.
115.Ex.PW­1/115 Invoice/Debit Note dated 21.02.2017.
116.Ex.PW­1/116 Invoice/Debit Note dated 21.02.2017.
117.Ex.PW­1/117 Invoice/Debit Note dated 21.02.2017.
118.Ex.PW­1/118 Invoice/Debit Note dated 21.02.2017.
119.Ex.PW­1/119 Invoice/Debit Note dated 21.02.2017.
120.Ex.PW­1/120 Invoice/Debit Note dated 25.02.2017.
121.Ex.PW­1/121 Invoice/Debit Note dated 25.02.2017.
122.Ex.PW­1/122 Invoice/Debit Note dated 23.03.2017.
123.Ex.PW­1/123 Invoice/Debit Note dated 23.03.2017.
124.Ex.PW­1/124 Invoice/Debit Note dated 23.03.2017.
125.Ex.PW­1/125 Invoice/Debit Note dated 23.03.2017.
126.Ex.PW­1/126 Invoice/Debit Note dated 30.03.2017.
127.Ex.PW­1/127 Invoice/Debit Note dated 31.03.2017.
128.Ex.PW­1/128 Invoice/Debit Note dated 22.07.2017.
129.Ex.PW­1/129 Invoice/Debit Note dated 22.07.2017.
CS No.1048/19 Pg 13 of 19 M/s. Sunrise Freight Forwarders Pvt. Ltd. v. M/s. SCL Logistics (India) Pvt. Ltd. & Anr.
130.Ex.PW­1/130 Invoice/Debit Note dated 22.07.2017.
131.Ex.PW­1/131 Invoice/Debit Note dated 22.07.2017.
132.Ex.PW­1/132 Invoice/Debit Note dated 22.07.2017.
133.Ex.PW­1/133 Invoice/Debit Note dated 22.07.2017.
134.Ex.PW­1/134 Invoice/Debit Note dated 22.07.2017.
135.Ex.PW­1/135 Invoice/Debit Note dated 22.07.2017.
136.Ex.PW­1/136 Invoice/Debit Note dated 26.07.2017.
137.Ex.PW­1/137 Invoice/Debit Note dated 26.07.2017.
138.Ex.PW­1/138 Invoice/Debit Note dated 26.07.2017.
139.Ex.PW­1/139 Invoice/Debit Note dated 26.07.2017.
140.Ex.PW­1/140 Invoice/Debit Note dated 08.08.2017.
141.Ex.PW­1/141 Invoice/Debit Note dated 08.08.2017.
142.Ex.PW­1/142 Invoice/Debit Note dated 13.08.2017.
143.Ex.PW­1/143 Invoice/Debit Note dated 13.08.2017.
144.Ex.PW­1/144 Invoice/Debit Note dated 18.08.2017.
145.Ex.PW­1/145 Invoice/Debit Note dated 18.08.2017.
146.Ex.PW­1/146 Invoice/Debit Note dated 22.08.2017.
147.Ex.PW­1/147 Invoice/Debit Note dated 22.08.2017.
CS No.1048/19 Pg 14 of 19 M/s. Sunrise Freight Forwarders Pvt. Ltd. v. M/s. SCL Logistics (India) Pvt. Ltd. & Anr.
148.Ex.PW­1/148 Ledger account/statement of account from 01.04.2015 to 31.03.2019.
149.Ex.PW­1/149 Certificated dated 07.04.2019 U/S 65­B (4)(c) of Indian Evidence Act.
150.Ex.PW­1/150 Office copy of Legal Notice dated 02.01.2019.
151.Ex.PW­1/151 to Ex.PW­1/154 Postal receipts (2) as well as speed post receipts respectively of the legal notice.

• PW­2 Sh. Sunil Kumar, Assistant Manager from Central Bank of India, Karol Bagh Branch, New Delhi - 110 005 was a summoned witness who brought the summoned record i.e. record pertaining to period starting from 01.04.2015 to 31.03.2019 running into approx. 2000 pages Ex.PW­2/1, computer generated bank account statement pertaining to account No.3091526988 in the name of Sunrise Freight Forwarders Private Ltd for 03.12.2015, 05.12.2015, 29.12.2015, 06.01.2016, 22.01.2016, 16.03.2016, 08.02.2016, 08.03.2016, 10.03.2016, 04.04.2016, 06.04.2016, 18.04.2016, 28.04.2016, 20.05.2016, 17.07.2016, 20.07.2016, 22.07.2016, 08.08.2016, 11.08.2016, 03.09.2016, 17.09.2016, 19.09.2016, 05.10.2016, 15.10.2016, 27.10.2016, 24.11.2016, 26.11.2016, 24.12.2016, 05.01.2017, 21.01.2017, 15.02.2017, 23.02.20217, 17.03.2017, 10.04.2017, 25.04.2017, CS No.1048/19 Pg 15 of 19 M/s. Sunrise Freight Forwarders Pvt. Ltd. v. M/s. SCL Logistics (India) Pvt. Ltd. & Anr. 24.05.2017, 10.08.2017. PW­2 also brought letter from Branch Manager dated 10.12.2021 to this effect. The entire statement of accounts along with letter of Branch Manager dated 10.12.2021 is Ex.PW­2/2 (Colly.)

6. I have heard the arguments and perused the record. Plaintiff has relied upon following citations on point of lifting of corporate veil:

• AIR 1996 SC 2005 Delhi Development Authority v. Skipper Construction Co. (P) Ltd. & Anr.
• AIR 2004 SC 4368 Singer India Ltd. v. Chander Mohan Chadha & Anr.
• 2006 SCC OnLine Del 336 Saurabh Exports v. Blaze Finlease & Credits Pvt. Ltd.
• AIR 2002 Madhya Pradesh 145 Union Bank of India v. M/s. Chhatarpur Siliment Sales Corporation & Ors.

7. It is trite law that in absence of cross examination, testimony as it is can be deemed as correct. At this juncture, judgment of Hon'ble Hgh Court of Delhi in M/s Eco Lab Inc. v. Eco Labs Ltd. 2011 (185) DLT 664 may be referred, wherein it was held:

Since the plaintiff's evidence has gone unrebutted as the defendant has also failed to cross­examine the witness of the plaintiff, the evidence filed by the plaintiff is liable to be taken as correct.

8. Accordingly, the documents exhibited and identified by the plaintiff in his evidence are taken to be correct.

CS No.1048/19 Pg 16 of 19 M/s. Sunrise Freight Forwarders Pvt. Ltd. v. M/s. SCL Logistics (India) Pvt. Ltd. & Anr.

9. Insofar as nature and extent of liability of defendants No.1 and 2 is concerned, Ld. Counsel for plaintiff had pressed for joint and several liability of both the defendants while relying upon concept of lifting of corporate veil. It is a settled law that a company is a separate and artificial entity and its Directors cannot be held personally liable except in certain circumstances. Corporate veil can be lifted only if it is shown that company was formed only to be used as a cloak for fraud or improper conduct or for defrauding others. Corporate veil can also be lifted where the company has been formed to evade obligations imposed by law. Therefore, the court is aware and concisions of the law relied upon by the plaintiff. However, except a mere averment in the plaint that defendant No.1 is a shell company and merely a front of defendant No.2, nothing has been brought on record which can empower the court to invoke lifting of veil. In fact, admittedly defendant No.1 is a private limited company and it has not been disputed that the same must be registered as per the provisions of Companies Act, 1956/2013. It was orally argued that plaintiff is not aware of any other Director of the company, however, patently plaintiff has not made any effort to bring the Master Data of the Company which could be the easiest way to trace out other Directors and details of the company. In absence of any such Master Data and any evidence, court cannot presume that there was only one CS No.1048/19 Pg 17 of 19 M/s. Sunrise Freight Forwarders Pvt. Ltd. v. M/s. SCL Logistics (India) Pvt. Ltd. & Anr. Director and company was run by defendant No.2 single handedly, more specifically when a company gets incorporated and can commence business only upon compliance of provisions of Companies Act. It cannot be lost sight of that as per record, plaintiff had been dealing with the defendant No.1 company for about two - three years and as per statement of account Ex.PW­1/148 several times payments have been made by the defendant company to the plaintiff. Therefore, it cannot be inferred that defendant No.1 company was floated merely to defraud others or for improper conduct. Even if, for the sake of arguments defendant No.2 is held jointly liable with the company merely on the basis of mere averment of the plaintiff, in ignorance of other record available and any specific proof, it would open flood gates of litigation against the Directors of the company to hold them personally liable which would dilute the concept of artificial legal entity attributed to a company and also the concept of limited liability. Besides, no specific allegation has been made against the defendant No.2 in the plaint nor Master Data of defendant No.1 company has been placed on record to show that defendant No.2 is the Director of defendant No.1, therefore, even otherwise no liability can be imposed upon defendant No.2.

10. Insofar as pre­suit interest of Rs.48,601/­ claimed (from 01.09.2017 till institution of suit i.e. 15.04.2019) at the rate of 18% per annum on the CS No.1048/19 Pg 18 of 19 M/s. Sunrise Freight Forwarders Pvt. Ltd. v. M/s. SCL Logistics (India) Pvt. Ltd. & Anr. invoice amount is concerned, it is a settled law that court can indeed grant pre­suit interest on the basis of agreement, usage or trade or on the basis of equity, however, at the same time, it is equally a trite law that court is not bound to grant the rate of interest claimed, especially if excessive being against public policy. (Pandit Munshi Ram Associates v. DDA 2010 (9) AD (Delhi). In the present case, as per the invoices, there was an agreement as to interest at the rate of 18% per annum in case of non­payment on presentation. Accordingly, in view of the above stated law and considering the prevailing market rates, pre­suit interest at the rate of 7% per annum on Rs.1,80,004/­ w.e.f. 01.09.2017 till 15.04.2019 is granted which comes out to be Rs.19,425.15/­.

11. In view of my observation herein above, present suit is hereby decreed for a sum of Rs.1,99,429.15/­ (including pre­suit interest) against defendant No.1 with costs of the suit. Under these circumstances, plaintiff is also awarded interest at the rate of 6% per annum (simple) from date of filing of the suit till realization of the decreetal amount. The cost of the suit is awarded at the rate of Rs.6500/­.

12. Decree sheet be prepared accordingly. HELLY Digitally signed by HELLY FUR KAUR FUR Date:

2022.03.25

13. File be consigned to Record Room. KAUR 16:21:24 +0530 Announced in the open court (HELLY FUR KAUR) on 25.03.2022 Civil Judge - 08 (Central)/Delhi CS No.1048/19 Pg 19 of 19