Delhi District Court
Vivek Singhal vs M/S Servotexh Power Systems Ltd on 4 October, 2024
CS (Comm) No.263/202: Vivek Singhal V/s M/s Servotech Power Systems Limited
DOD: 04.10.2024
IN THE COURT OF VINOD YADAV:
DISTRICT JUDGE (COMMERCIAL COURT)-02:
NORTH-WEST DISTRICT: ROHINI COURTS: NEW DELHI
CNR No.DLNW01-002866-2021
Civil Suit (Comm.) No.263/2021
In the matter of:
Vivek Singhal,
Sole Proprietor, M/s Industrial Freight Carrier,
Rahul Chambers, Rear Building,
Office No.11, Mumbai Pune Road,
Kasarwadi, Pune-411034.
E.Mail: [email protected]
[email protected]
.....Plaintiff
(Through Shri Sunil Goyal and Shri Sumit Panwar, Advocates)
Versus
M/s Servotech Power Systems Limited,
Through Its Directors,
806, 8th Floor, Crown Heights, Hotel Crown Plaza Complex,
Sector-10, Rohini, New Delhi-110085.
E.Mail: [email protected]
[email protected]
.....Defendant
(Through Shri Neeraj Gupta and Shri Saransh Goel, Advocates)
Date of Institution of Suit : 31.03.2021
Date of transfer to this Court : 03.07.2023
Date of hearing final arguments : 21.09.2024
Date of judgment : 04.10.2024
Page 1 of 23
CS (Comm) No.263/202: Vivek Singhal V/s M/s Servotech Power Systems Limited
DOD: 04.10.2024
SUIT FOR RECOVERY FOR SUM OF Rs.6,21,611/- (Rupees Six Lakhs Twenty One
Thousand Six Hundred Eleven Only) INCLUSIVE OF INTEREST ALONGWITH
PENDENTELITE AND FUTURE INTEREST @24% PER ANNUM
04.10.2024
JUDGMENT
1. The facts of the case, in brief, as borne out from the record are that plaintiff is the proprietor of M/s Industrial Freight Carrier and is engaged in the business of transportation and has been providing carrier services from Pune to all over India through trucks, trailers etc., for transportation of high mast poles, octagonal poles and accessories.
2. The defendant is a company engaged in the business of LED lights and solar panels. The Directors of defendant approached the plaintiff on 19.09.2018, with a request to avail its services for transportation of their high mast poles and octagonal poles, required for the project of M/s Bajaj Electricals Limited. The goods were to be sent to Bhatinda, Jammu, Srinagar and Sangrur. The plaintiff gave his quotation on 20.09.2018 in response to the enquiry about the rates made by the defendant. It appears that initially the plaintiff claimed 70% of the charges of invoice amount in advance, however, after negotiations the same was reduced to 50% of the invoice amount. As regards the freight rates, there appears to be no dispute between the plaintiff and defendant. Accordingly, the plaintiff transported the goods from Pune to the aforementioned places and eleven invoices were raised upon the defendant from 22.09.2018 to 05.12.2018. As on 05.12.2018, a sum of Rs.4,05,575/- (Rupees Four Lakhs Five Thousand Page 2 of 23 CS (Comm) No.263/202: Vivek Singhal V/s M/s Servotech Power Systems Limited DOD: 04.10.2024 Five Hundred Seventy Five Only) remained outstanding in the running account maintained by the plaintiff in due course of business.
3. After raising the demand of the outstanding amount several times through e.mails, the plaintiff got issued a legal notice on 26.09.2019. Even that did not yield any fruitful result for the plaintiff. Even the pre- institution mediation also did not bore any fruits for the plaintiff in this regard. Accordingly, the plaintiff filed the instant suit, inter alia seeking a sum of Rs.6,21,611/- from the date of filing of suit alongwith interest @24% per annum till the date of recovery.
4. After getting served with the summons, defendant filed written statement, inter alia raising preliminary objections to the effect that it was the plaintiff who had come to the defendant offering its services of transportation. Initially, the plaintiff offered to transport the material without receiving any advance payment, however, later on he turned opportunistic and started demanding 70% of the invoice amount as advance. As the defendant company had time constraints, it had to agree to payment of 50% of the invoice amount as advance. It was specifically stated that the defendant had never agreed upon exact freight charges for transportation of material. The defendant had acted upon the assurance given by the plaintiff that the freight charges would be decided after mutual agreement at the time of raising of invoices, whereas, the plaintiff raised the invoices containing inflated freight charges, which had never been agreed upon. Thereafter, the defendant company made payment as Page 3 of 23 CS (Comm) No.263/202: Vivek Singhal V/s M/s Servotech Power Systems Limited DOD: 04.10.2024 per the prevalent rate of freight in the market and nothing remained due and payable to the plaintiff.
5. The plaintiff filed replication, categorically refuting the stand of defendant and specifically pleaded that on 19.09.2018 plaintiff had requested for quotation (RFQ) from the defendant, which was replied to by the plaintiff on 20.09.2018, inter alia seeking 70% of the invoice amount as advance and when go ahead was given to the plaintiff by the defendant, on 20.09.2018 itself that the goods were loaded for transporation from 22.09.2018 and transported till 05.12.2018. It was further stated that plaintiff had even agreed to receive 50% as advance charges. It was further clarified that it was the defendant who on 24.09.2018 had proposed 50% advance of the total freight. It was further stated that after the goods were transported in time by the plaintiff, the defendant turned dishonest and started raising dispute about the price quoted in the invoices.
6. With these pleadings of the parties, vide order dated 04.11.2023, following issues were settled for trial in the matter:
Issues:
(i) Whether the plaintiff is entitled to the decree of suit amount, as prayed for? OPP.
(ii) If answer to aforesaid issue is in affirmative, whether the plaintiff is entitled to interest thereupon. If so, at what rate and for what period? OPP.
(iii) Relief.Page 4 of 23
CS (Comm) No.263/202: Vivek Singhal V/s M/s Servotech Power Systems Limited DOD: 04.10.2024
7. Pursuant to framing of issues in the matter, vide order dated 04.11.2023 itself, Shri O.P Gupta, learned District & Sessions Judge (retired) was appointed as "Local Commissioner" to record evidence in the matter.
8. In order to discharge the onus of proving issues put upon him, plaintiff/Shri Vivek Singhal examined himself as PW-1 in the matter, who in his evidence by way of affidavit Ex.PW1/A has reiterated the averments made in the plaint and proved on record the following documents:
(i) Office copies of Tax-Invoices dated 22.09.2018, 25.09.2018, 26.09.2018, 26.09.2018, 28.09.2018, 12.10.2018, 12.10.2018, 15.05.2019, 15.05.2019, 15.05.2019, 15.05.2019 alongwith copies of Lorry Receipts (L.Rs) as Ex.PW1/1 (Colly);
(ii) Duly certified copy of statement of account/ledger account, maintained by plaintiff company in respect of the transactions done with the defendant company as Ex.PW1/2 (Colly);
(iii) Copies of various e.mails exchanged between the parties as Ex.PW1/3 (Colly);
(iv) Affidavit U/s 65-B of Indian Evidence Act in respect of the statement of account and various e.mails as Ex.PW1/4;
(v) Office copy of legal demand notice dated 26.09.2019, sent on behalf of plaintiff to the defendant alongwith postal receipts and tracking report(s) thereof as Ex.PW1/5 (Colly);
(vi) Attested true copy of Certificate of Non-Starter Report, dated 13.10.2020 as Ex.PW1/6;
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(vii) Copy of notice dated 30.11.2023, issued on behalf of plaintiff to the defendant U/o IX Rule 5 of Commercial Courts Act, 2015, inter alia asking the defendant to produce certain documents as Ex.PW1/7;
9. During the cross-examination of PW-1 by learned counsel for the defendant, following documents were also produced by him:
(i) Copy of Registration Certificate of plaintiff under Maharashtra Shop Establishment Act, 2018 as Ex.PW1/DA;
(ii) Udyog Aadhar Memorandum, issued by Ministry of Micro, Small and Medium Enterprises regarding plaintiff as Ex.PW1/DB;
(iii) Copy of PAN Card of Industrial Freight Carrier as Ex.PW1/DC;
10. On the other hand, defendant company, i.e M/s Servotech Power Systems Limited examined its Authorized Representative/Managing Director namely Shri Raman Bhatia as DW-1, who in his evidence by way of affidavit Ex.DW1/A has reiterated the averments made in the written statement and proved on record the following documents:
(i) Original Board Resolution, dated 26.02.2024, executed by defendant company in favour of DW-1/Raman Bhatia as Ex.DW1/1;
(ii) Original Board Resolution, dated 27.08.2021, executed by defendant company in favour of Shri Nimesh Malhotra, Whole Time Director as Ex.DW1/2;
(iii) Original Board Resolution, dated 12.11.2022, executed by defendant company in favour of Ms.Priya Pandey, Company Secretary, as Ex.DW1/3;Page 6 of 23
CS (Comm) No.263/202: Vivek Singhal V/s M/s Servotech Power Systems Limited DOD: 04.10.2024
11. During the course of cross-examination of DW-1 by learned counsel for the plaintiff, following document(s) were put to him:
(i) Copy of e.mail sent on behalf of defendant to the plaintiff as Ex.DW1/X (also part of Ex.PW1/3 Colly);
12. This is all as far as evidence recorded in the matter is concerned.
13. I have heard arguments advanced at Bar by both the sides and gone through the entire material on record. My issue wise findings in the matter are as under.
14. Issues No.(i):
Whether the plaintiff is entitled to the decree of suit amount, as prayed for? OPP.
The onus to prove this issue was upon the plaintiff. The learned counsel for the plaintiff has referred to e.mails exchanged between the parties (Ex.PW1/3 Colly) to contend that the rates of freight, duly communicated by the plaintiff to the defendant were duly accepted by the defendant and only thereafter the plaintiff transported the material/goods in terms of invoices coupled with transporter's receipt as Ex.PW1/1 (Colly). A running account was being maintained by the plaintiff in respect of the invoices raised upon the defendant and payment(s) received from it from time to time, which showed an account balance of Rs.4,05,575/- as on 05.12.2018 (Ex.PW1/2). Same position is getting reflected in the ledger Page 7 of 23 CS (Comm) No.263/202: Vivek Singhal V/s M/s Servotech Power Systems Limited DOD: 04.10.2024 account of the plaintiff for the period from 01.04.2018 till 08.03.2021. The learned counsel has very vehemently contended that the legal notice Ex.PW1/5, which was duly served upon the defendant, as is apparent from the tracking report filed alongwith the postal receipts and as such, an adverse presumption against the defendant is liable to be raised. In support of his aforesaid contentions, learned counsel for the plaintiff has referred to Section 27 of the General Clauses Act.
15. The Hon'ble Supreme Court of India in case reported as, "(2007) 6 SCC 555", titled as, "C.C Alavi Haji V/s Palapetty Muhammed & Anr. (DOD: 18.05.2007) has been pleased to enunciate the presumption under Section 114 of the Evidence Act and Section 27 of the General Clauses Act, the relevant paragraphs whereof reads as under:
xxxxx "13. According to Section 114 of the Act, read with Illustration (f) thereunder, when it appears to the court that the common course of business renders it probable that a thing would happen, the court may draw presumption that the thing would have happened, unless there are circumstances in a particular case to show that the common course of business was not followed. Thus, Section 114 enables the court to presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business in their relation to the facts of the particular case. Consequently, the court can presume that the common course of business has been followed in particular cases. When applied to communications sent by post, Section 114 enables the Page 8 of 23 CS (Comm) No.263/202: Vivek Singhal V/s M/s Servotech Power Systems Limited DOD: 04.10.2024 court to presume that in the common course of natural events, the communication would have been delivered at the address of the addressee. But the presumption that is raised under Section 27 of the GC Act is a far stronger presumption. Further, while Section 114 of the Evidence Act refers to a general presumption, Section 27 refers to a specific presumption. For the sake of ready reference, Section 27 of the GC Act is extracted below:
"27. Meaning of service by post.--Where any Central Act or Regulation made after the commencement of this Act authorises or requires any document to be served by post, whether the expression 'serve' or either of the expression 'give' or 'send' or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post."
14. Section 27 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. In view of the said presumption, when stating that a notice has been sent by registered post to the address of the drawer, it is unnecessary to further aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which Page 9 of 23 CS (Comm) No.263/202: Vivek Singhal V/s M/s Servotech Power Systems Limited DOD: 04.10.2024 the letter would have been delivered in the ordinary course of business. This Court has already held that when a notice is sent by registered post and is returned with a postal endorsement "refused" or "not available in the house" or "house locked" or "shop closed" or "addressee not in station", due service has to be presumed. (Vide Jagdish Singh v. Natthu Singh [(1992) 1 SCC 647 : AIR 1992 SC 1604] ; State of M.P. v. Hiralal [(1996) 7 SCC 523] and V. Raja Kumari v. P. Subbarama Naidu [(2004) 8 SCC 774:
2005 SCC (Cri) 393].) It is, therefore, manifest that in view of the presumption available under Section 27 of the Act, it is not necessary to aver in the complaint under Section 138 of the Act that service of notice was evaded by the accused or that the accused had a role to play in the return of the notice unserved.
xxxxx
16. (i) Despite service of the legal notice (Ex.PW1/5), no reply thereto was submitted by the defendant, which goes against him. The Hon'ble High Court of Delhi in case reported as, "1980 RLR (Note 44)", titled as, "Kalu Ram V/s Sita Ram" has been pleased to hold that adverse presumption will be drawn if the legal notice is not replied to. The relevant portion of the said judgment reads as under:
xxxxx "It was held that the plaintiff before filing suit had served defendant with a notice making serious allegations that defendant was a trespasser and that his possession was illegal. Defendant did not refute these charges and remained silent by ignoring to reply the notice. Silence showed that he had nothing to deny and hence it was a fit case for raising adverse presumption. Besides the defendant also Page 10 of 23 CS (Comm) No.263/202: Vivek Singhal V/s M/s Servotech Power Systems Limited DOD: 04.10.2024 failed to prove the two contentions that he had raised. There is nothing on record to support the pleas that he had taken. His appeal is without force. The appeal of the plaintiff is supported by the provisions of O. 20 R.12, CPC and trial court should have ordered mesne profits till the delivery of possession. Plaintiff is held entitled to same."
xxxxx (Emphasis supplied)
(ii) Furthermore, the Hon'ble High Court of Delhi in case reported as, "98 (2002) DLT 573", titled as, "Metropolis Travels & Resorts (I) Pvt. Ltd. V/s Sumit Kalra & Ors.", (DOD: 07.05.2002) has been pleased to lay down as under:
xxxxx
13. There is another aspect of the matter which negates the argument of the respondent and that is that the appellant served a legal notice on the respondent vide Ex. PW-1/3. No reply the same was given by the respondent. But inspite of the same no adverse inference was drawn against the respondent.
This Court in the case of Kalu Ram v. Sita Ram 1980 RLR (Note) 44 observed that service of notice having been admitted without reservation and that having not been replied in that eventuality adverse inference should be drawn because he kept quite over the notice and did not send any reply.
Observations of Kalu Ram's case (Supra) apply on all force to the facts of this case. In the case in hand also despite receipt of notice respondent did not care to reply nor refuted the averments of demand of the amount on the basis of the invoices/bills in question. But the learned Trial Court failed to draw inference against the respondent.
xxxxx Page 11 of 23 CS (Comm) No.263/202: Vivek Singhal V/s M/s Servotech Power Systems Limited DOD: 04.10.2024
(iii) Even recently on the similar aspect in case reported as, "RFA (OS) No.93/2010", titled as, "Krishan Kumar Aggarwal V/s Life Insurance Corporation" (DOD: 29.08.2014), the Hon'ble High Court of Delhi has been pleased to lay down as under:
xxxxx
65) No explanation has been rendered by the respondent as to why letter dated 23rd August, 2008 and the legal notice sent by the appellant were not repudiated or even replied. Despite due receipt, the respondent did not bother to even send any response to the letter dated 23rd August, 2008 or the legal notice, the contents whereof would be deemed to have been admitted. In the judicial precedents reported in Rakesh Kumar Vs. Hindustan Everest Tool Ltd. (1988) 2 SCC 165 & Hiralal Kapur Vs. Prabhu Chaudhary (1988) 2 SCC 172 it was held by the Supreme Court that a categorical assertion by the landlord in a legal notice if not replied to and controverted, can be treated as an admission by a tenant.
66) In a Division Bench proceedings of this court reported in Metropolis Travels & Resorts Vs. Sumit Kalra 98 (2002) DLT 573 (DB), no adverse inference was drawn against the respondent for failure to reply the legal notice on consideration of the facts and circumstances of the case. Reference was made to proceedings reported in Kalu Ram Vs. Sita Ram 1980 RLR (note) 44 wherein it had been observed that service of notice being admitted without reservation and that having not been replied, in that eventuality adverse inference should be drawn.
xxxxx Page 12 of 23 CS (Comm) No.263/202: Vivek Singhal V/s M/s Servotech Power Systems Limited DOD: 04.10.2024
17. The learned counsel for the plaintiff has further contended that a notice purportedly issued under Order IX Rule 5 of Commercial Courts Act, 2015 (akin to Order 12 Rule 8 CPC) (Ex.PW1/7) was issued by the plaintiff to the defendant, inter lia seeking production of following documents before the Court:
(a) Copies of Tax Invoices alongwith Lorry Receipts;
(b) Copies of e.mails exchanged between the parties starting from 20.09.2018 to 24.07.2019;
(c) Copy of the legal notice of demand dated 26.09.2019, issued by M/s Goyal & Company;
(d) Copy of statement of account with respect to plaintiff for the period 01.04.2018 to 08.03.2021.
18. The said documents were never produced by defendant in Court, thereby making itself liable for drawing of an adverse inference against it in this matter.
19. (i) Per contra, learned counsel for the defendant has very vehemently argued that plaintiff has miserably failed to prove invoices (Ex.PW1/1 Colly), statement of account/ledger account (Ex.PW1/2 Colly) as well as e.mails exchanged between the parties Ex.PW1/3 Colly for want of Affidavit under Order XI Rule 6 CPC. It has further been very vehemently argued that the Certificate issued U/s 65-B of Indian Evidence Act, 1872 (Ex.PW1/4) is a faulty certificate and the same cannot be treated as a substitute for a Certificate under Order XI Rule 6 CPC. Therefore, the Page 13 of 23 CS (Comm) No.263/202: Vivek Singhal V/s M/s Servotech Power Systems Limited DOD: 04.10.2024 question which arises for consideration is whether the Certificate U/o XI Rule 6 CPC has pre-dominance over Certificate U/s 65-B of Indian Evidence Act. The aforesaid proposition will have to be considered on the basis of facts existing in the matter on record. The learned counsel for the plaintiff has very vehemently argued that notice Ex.PW1/7 was issued to the defendant as per Order 11 Rule 5 CPC, which reads as under:
xxxxx "ORDER XI: Disclosure, Discovery and Inspection of Documents:
Rule 5: Production of documents.-- (1) Any party to a proceeding may seek or the court may order, at any time during the pendency of any suit, production by any party or person, of such documents in the possession or power of such party or person, relating to any matter in question in such suit.
xxxxx
(ii) Pursuant whereto copies of documents sought from the defendant were placed on record in terms of Order XI Rule 6 Sub-Rule 1 CPC and as such, not filing of Certificate U/o 11 Rule 6 CPC is not fatal to the case of plaintiff.
20. I agree with the argument of learned counsel for the plaintiff. As regards the Certificate U/s 65B of Indian Evidence Act, 1872 (Ex.PW1/4) is concerned, the same has been issued by the plaintiff in respect of statement of account Ex.PW1/2 and e.mail exchanges between the parties Ex.PW1/3 (Colly). A perusal of record reveals that the invoices in the matter are second copies of the original and are deemed to be Page 14 of 23 CS (Comm) No.263/202: Vivek Singhal V/s M/s Servotech Power Systems Limited DOD: 04.10.2024 primary evidence which does not require authentication as a secondary evidence under Section 65-B of Indian Evidence Act. As far as statement of account is concerned, the aforesaid Certificate is perfect, but whether the defendant can be permitted to raise doubt about the Certificate in e.mail exchanges between the parties, firstly when the defendant did not take objection about exhibition of this Certificate/Affidavit at the time of exhibition. In this regard, the Hon'ble Supreme Court of India in case reported as, "Civil Appeal No.10585/2016", titled as, "R.V.E Venkatachala Gounder V/s Arulmigu Viswesaraswami & V.P Temple & Anr." (DOD:
08.10.2003), has been pleased to lay down as under:
xxxxx However, the present one is a case which calls for the correct position of law being made precise. Ordinarily an objection to the admissibility of evidence should be taken when it is tendered and not subsequently. The objections as to admissibility of documents in evidence may be classified into two classes:- (i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as 'an exhibit', an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken before the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode Page 15 of 23 CS (Comm) No.263/202: Vivek Singhal V/s M/s Servotech Power Systems Limited DOD: 04.10.2024 adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit.
xxxxx
21. Seeing the matter from another angle, e.mail exchange has been relied more by the defendant in the matter than the plaintiff. No question about Ex.PW1/4 to be false and fabricated document was put to the witness. Even no attempt was made by the defendant to lead its own evidence to disprove the said document. Therefore, the Certificate Ex.PW1/4 is held to be legally sustainable document.
22. The learned counsel for the defendant also questioned the territorial jurisdiction of this Court on the ground(s) that the office of defendant falls in Sector-10, Rohini and as such is part of North-Delhi. It appears that this argument has been raised by learned counsel for the defendant considering Sector-10, Rohini from the angle of police District, wherein the same may be filed in North Police District; but as regards the Revenue District, the same falls in North-West District, as is apparent from the Notification in this regard, therefore, the issue of jurisdiction appear to be an after thought, particularly in the teeth of the fact that in the written statement, the defendant did not take any such objection.
23. Now, let us deal further with the further arguments raised by learned counsel for the defendant. The learned counsel very categorically submitted that initially the plaintiff had offered to transport the goods Page 16 of 23 CS (Comm) No.263/202: Vivek Singhal V/s M/s Servotech Power Systems Limited DOD: 04.10.2024 without asking for any advance freight amount, but later on the plaintiff turned opportunistic after coming to know that time of delivery was the essence for the defendant. He started demanding 70% of the invoice amount as advance payment, which the defendant had to agree to the extent of 50%. It is further argued that the defendant had never agreed to freight charges as it was decided between the parties at the start of the negotiations itself that the rates would be mutually settled at the time of placing invoices. It is further argued that defendant had made payment to the plaintiff with regard to invoices as per prevalent freight charges; whereas, the invoices of the plaintiff are highly inflated as an after thought and as such cannot be acted upon by the defendant.
24. Per contra, learned counsel for plaintiff has meticulously taken me through each e.mail contained in Ex.PW1/3 (Colly) which clarifies the position that the first e.mail (page 51) sent by defendant to the plaintiff on 20.09.2018 shows that defendant had asked four things from the plaintiff, i.e "Required Vehicle", "Best Price", "Date of Loading" and "Date of Despatch". Plaintiff had duly replied to the same on 20.09.2018 (page
52), wherein the defendant had asked the plaintiff to arrange the transport by 21.09.2018, which as per the plaintiff was the acceptance of the freight charges quoted by the plaintiff to the defendant, as appearing at page(s) 53-
54. The plaintiff had even quoted his demand of 70% of the freight charges to be paid in advance, but the defendant had agreed for only 50% of the charges.
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25. Thereafter, at page 56, defendant even mentioned the addresses from where the material was to be picked up at Pune, Maharashtra and the place of its destination.
26. (i) The learned counsel for the plaintiff has argued that this was an acceptance of contract by the parties, as contemplated U/s 8 of the Indian Contract Act, 1872 and as such the freight charges and issue with regard to advance payment was clearly decided and acted upon by the parties.
(ii) Same is the position at page 55 to page 58, where both the parties acted upon the contractual obligations as per the settlement/consensus arrived at between the parties, as appearing from a joint reading of page Nos.51 to 53. On 28.02.2019 (page 59), the plaintiff had communicated the outstanding amount. The defendant did not raise any dispute with regard to delay in delivery of goods or deficiency in services.
27. On page 60, the defendant appears to have sought time of one week to settle the account with the plaintiff. At page 61, the defendant again sought time of 3-4 days for settlement of the account. At page 62, for the first time, the defendant demanded issuance of credit note by the plaintiff to him; and at page 64, which is an e.mail dated 16.05.2021 from defendant to the plaintiff, the defendant expressed confusion about the outstanding amount.
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28. From the reading of the aforesaid e.mails, it is evident that the parties had mutually settled the freight charges. There was no complaint from the defendant with regard to delay in the delivery of the goods. It appears that later on the defendant turned dishonest and he tried to avoid making payment to the plaintiff.
29. Let us analyze the position in the evidence recorded in the matter.
30. In the cross-examination of PW-1, following questions and answers are very important.
xxxxx Q3: Have you filed any document on record to show that defendant approved the rates of freight?
Ans. Yes, I have filed copy of e.mail which is at page 53 and part of Ex.PW1/3 (Colly). The portion encircled red on the said page contains rates of freight.
Q4: I put it to you that that you are deposing falsely and there is no document to show the approval of rate? What do you have to say?
Ans.: It is wrong to suggest. The writing below portion encircled red which recites please proceed further, indicates the approval of rates. (Vol. Earlier the defendant telephonically accepted the rates).
................
Page 19 of 23CS (Comm) No.263/202: Vivek Singhal V/s M/s Servotech Power Systems Limited DOD: 04.10.2024 Q22: I put it to you that defendant had told you on 20.09.2018 to proceed further. What do you have to say?
Ans.: The defendant asked me to place the vehicle on 20.09.2018.
xxxxx
31. From the aforesaid answers given by witness/PW-1, it becomes clear that time was the essence of delivery of goods; the plaintiff had picked up and delivered the goods in time and there was clear approval of the freight charges and the advance payment.
32. A deep analysis of the further cross-examination of PW-1 reveals that learned counsel for the defendant had put out of the pleading questions to this witness, as it was put to him that there had been delay in delivery of the goods, which is not the case of defendant in written statement. It is further not the case of defendant that plaintiff had refused to pick up the goods before receiving the advance payment. It was also sought to be put to the witness that the invoices were raised by the plaintiff without mutually settling the freight charges at the time of delivery of goods.
33. As regards the cross-examination of DW-1, with a view to wriggle out from making payment of the outstanding amount, he stated concocted facts by stating that initially the plaintiff had agreed to deliver the goods/material without any advance amount, but he could not produce any document in this regard. In his examination-in-chief, he stated in para Page 20 of 23 CS (Comm) No.263/202: Vivek Singhal V/s M/s Servotech Power Systems Limited DOD: 04.10.2024 3 that it was the plaintiff who had approached him seeking transportation work; whereas, in his cross-examination he admitted that he had approached the plaintiff on the recommendation of M/s Bajaj Electricals, who had introduced the plaintiff to him. He stated that the payment of freight charges was dependent upon the invoice value and it was agreed that it could be 8% to 10% of the invoice amount and he stated that invoice amount kept ranging between Rs.10.00 lakhs to Rs.1.00 Crore. This has never been the stand of defendant in the written statement. He further could not say anything tangible with regard to quantum of inflation in freight charges by the plaintiff. Initially he denied having received the invoice Ex.PW1/1, however, in the later part of his cross-examination he admitted having received the same. He further could not prove the prevalent market rate of the freight charges. Then he tried to create confusion with regard to earlier invoices and later invoices; whereas, there are only eleven invoices, but he could not specifically state in which invoices there had been inflation in freight charges and in which invoices there was no inflation.
34. Considering the matter from holistic point of view, it is apparent that the conduct of the defendant in the matter is not above board. It has taken different and conflicting stands at several places. The conflicting stands appear to be with the sole object of arm twisting the plaintiff and not to pay him the outstanding amount.
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35. In my considered opinion, the plaintiff has amply proved the outstanding amount towards the defendant as on 05.12.2018 as Rs.4,05,575/- (Rupees Four Lakhs Five Thousand Five Hundred Seventy Five Only). Therefore, the plaintiff is entitled to seek decree of the aforesaid amount. The issue is decided accordingly in favour of plaintiff and against the defendant.
36. Issue No.(ii):
If answer to aforesaid issue is in affirmative, whether the plaintiff is entitled to interest thereupon. If so, at what rate and for what period? OPP.
The learned counsel for the plaintiff has very vehemently argued that the invoices (Ex.PW1/1 Colly) stipulates interest @ 24% per annum on the outstanding payment. Though, the transactions between the parties were commercial in nature, however, in my view interest @ 24% per annum appears to be on the higher side and interest @ 12% per annum would meet the ends of justice. I order accordingly.
Relief
37. (i) In view of the above, a decree in the sum of Rs.4,05,575/- (Rupees Four Lakhs Five Thousand Five Hundred Seventy Five Only) alongwith interest @12% per annum w.e.f 05.12.2018 till realization thereof is passed in favour of plaintiff and against the defendant.
(ii) Plaintiff is also held entitled to costs and counsel's fee which is quantified as Rs.22,000/-.
Page 22 of 23CS (Comm) No.263/202: Vivek Singhal V/s M/s Servotech Power Systems Limited DOD: 04.10.2024
38. Decree Sheet be drawn accordingly, subject to payment of deficient Court Fees, if any.
39. File be consigned to Record Room after completion of necessary formalities.
VINOD Digitally signed
by VINOD YADAV
Date: 2024.10.04
YADAV 16:42:20 +0530
Dictated & Announced in the (Vinod Yadav)
open Court on 04.10.2024 District Judge (Commercial Court)-02
North-West/Rohini Courts
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