Delhi District Court
Cs (Comm) No. 9/2 vs Thermoking on 19 November, 2022
In the Court of Shri Sanjiv Jain,
District Judge (Commercial Court)03, Patiala House Courts
New Delhi
CS (Comm) No. 9/21
Navigators Visa Global Logistics Ltd
At D-123, 3rd floor, Saket,
New Delhi-110017
... Plaintiff
Versus
1.Thermoking Through its proprietor, Pradeep Khanna, At A-24, 2nd Floor, Naraina Industrial Area, Phase-1, New Delhi-110028 Also at:
G-68, G Block Greater Kailash Part II, New Delhi-110048 ........ Defendant Date of institution : 07.01.2021 Date of reserving of judgment : 02.11.2022 Date of decision : 19.11.2022 JUDGME NT
1. This suit for recovery of a sum of Rs. 3,39,101/- has been filed by the plaintiff Navigators Visa Global Logistics Ltd against the defendant Thermoking.
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2. Briefly, the facts as alleged in the plaint are that defendant during April, 2016 to March,2017 had availed the services of the plaintiff, a service provider of logistics and freight forwarding involved in the business of 'end to end' logistics, for its logistics need and purposes. It entered into business transactions with regard to freight forwarding and logistical handling of its consignments with the plaintiff for which, plaintiff raised various invoices which were duly acknowledged by the defendant. It is stated that the plaintiff duly delivered the shipments of the defendant on time at the destination and raised the invoices but the defendant failed to make the balance payment against the invoices despite follow ups through mails and other modes. It is stated that defendant had initially sought extension of date lines of payments but subsequently, started avoiding meeting its employees/ representatives. This made it send a legal notice dated 12.10.2018 to the defendant calling upon the defendant to pay Rs. 3,39,101/-
within 10 days of receipt of notice along with interest @18% per annum from the due date but the defendant neither responded to the legal notice nor made the payment.
3. Summons of the suit were sent to the defendant who filed the written statement alleging that the suit is barred by limitation. It is stated that defendant has already made full payments on 20.06.2017 in respect of the services provided by the plaintiff to the defendant and there is no outstanding dues of the plaintiff against the defendant. It is stated that the payments were made CS No. 9/21 Navigators Visa Global Logistics Ltd v/s Thermoking Page No.2 of 12 within the period as agreed upon. It is stated that the dealings between them commenced in 2015 and defendant all along had been making regular payments to the plaintiff however, statement of accounts do not reflect the true facts as in the year 2015-16, it had paid Rs. 50,000/- in cash on 16.12.2015, Rs. 50,000/- in cash on 29.01.2016 and Rs. 49,830/- in cash on 18.03.2016 against the receipts given on the payment vouchers by the representatives of the plaintiff namely Pankaj and R. Kumar. However, the said payments are not reflected in the statement of accounts filed by the plaintiff. It is stated that as per the statement of accounts of year 2016-17, there were an outstanding dues of Rs. 6,39,101/-. The plaintiff deliberately not reflected the amount of Rs. 1,49,830/- received in cash on various dates in 2015-16 from the defendant. After deducting the said amount, there ought to be an outstanding amount of Rs. 4,79,271/-. It is alleged that plaintiff also deliberately omitted the account of Rs. 2,40,887/- received in cash on various dates for cargo expenses in its statement of accounts and after substracting the said amount received in cash, there remained only a sum of Rs. 2,48,384/- after adjusting the security deposit of Rs. 40,000/- paid earlier. Against the said outstanding, it had issued three cheques on 04.05.2017, 10.06.2017 and 20.06.2017 for Rs. 1,00,000/- each which were duly encashed by the plaintiff. Thus, the defendant has paid a surplus amount of Rs. 51,616/- which the defendant is entitled to claim with interest @ 24% per annum. It denied the averments made in the suit and stated that it is not liable to pay any amount to the plaintiff.
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4. The plaintiff filed the replication to the written statement of defendant wherein it reiterated the facts as stated in the plaint. It denied that the suit is barred by limitation or that the statement of accounts do not reflect the correct facts. It also denied having received the amount in cash.
5. From the pleadings of the parties, following issues were framed vide order dated 06.10.2021.
1. Whether the plaintiff is entitled to recovery of a sum of Rs. 3,39,101/- as prayed for ? OPP.
2. Whether the plaintiff is entitled to interest, if so, at what rate and of which period? OPP.
3. Whether the suit is barred by limitation? OPD.
4. Relief.
6. To substantiate its case, plaintiff examined Sh. Akhilesh Kumar Singh as PW-1. He tendered his affidavit in evidence Ex.PW-1/A and proved the details of defendant and importer-exporter code Ex.PW-1/2, copy of invoices against which payments were not received along with statement of accounts Ex.PW-1/3 (colly), copy of bill of lading Ex.PW-1/4, emails Ex.PW-1/5 (colly), notice dated 12.10.2018 along with tracking report Ex.PW-1/6 and certificate under Section 65B of Evidence Act Ex.PW-1/7 in support of documents generated from computer Ex.PW-1/2 to Ex.PW-1/5.
On being cross examined, he stated that he has not placed any CS No. 9/21 Navigators Visa Global Logistics Ltd v/s Thermoking Page No.4 of 12 of the invoices which were raised and sent to the defendant/acknowledged by the defendant. He has filed the statement of accounts Ex.PW-1/3 (colly) for the financial year 2016-17. He admitted that plaintiff had business transactions with the defendant since 2015. He was confronted with statement of accounts of the period 2015-16 Ex.PW-1/D1 but stated that the plaintiff does not accept the payment in cash. He stated that Pankaj Kumar and Rakesh Kumar were the employees of the plaintiff but they have left the company. He was also confronted with the statement of accounts of Financial year 2016-17 Ex.PW- 1/D2 (colly) which reflects various entries related to receipt of cash on various dates by Pankaj Kumar and Rakesh Kumar but he stated that no cash was received in the account of the plaintiff from Pankaj Kumar and Rakesh Kumar. He denied that the account was reconciled with the defendant on 31.03.2016. He denied that there was no outstanding due against the defendant. He also denied that Rs. 2,40,887/- were received in cash by Pankaj Kumar and Rakesh Kumar which they had acknowledged on the payment vouchers. He admitted that Rs. 40,000/- were given by defendant as security which is still with the plaintiff. He admitted that all the three payments made through cheque were received. He denied that an amount of Rs. 51,616/- is surplus and is payable by the plaintiff.
7. The Defendant examined its Proprietor Pradeep Khanna as DW-1. He tendered his affidavit in evidence Ex.DW-1/A and proved the statement of accounts for the financial year 2015-16 CS No. 9/21 Navigators Visa Global Logistics Ltd v/s Thermoking Page No.5 of 12 Ex.DW-1/1, 2016-17 Ex.DW-1/5 and 2017-18 Ex.DW-1/6, payment vouchers bearing the signatures of representatives of plaintiff Ex.DW-1/2 (colly), calculation sheet bearing the signatures of representatives of plaintiff after reconciliation of accounts Ex.DW-1/3, payment vouchers bearing the signatures of representatives of plaintiff for the period from 12.08.2016 to 06.01.2017 Ex.DW-1/4.
On being cross examined, he stated that its mail id [email protected]. He does not dispute the invoices raised by the plaintiff. He denied that he has not made any payments in cash. He stated that payments made through cash are reflected in the statement of accounts furnished with the Income Tax Authorities. Statement of account of plaintiff also shows receipt of payments by cash. He stated that he used to make the payment in cash to the representatives of the plaintiff including Pankaj and he had made the last payment of Rs. 1.0 lakh on 20.06.2017. He denied that except Pankaj, he did not make any payment to the representative of the plaintiff. He admitted that he did not initiate any recovery proceedings qua the excess payment against the plaintiff.
8. DW-2 Gaurav Jain is the General Manager (Finance) of the plaintiff. He has been working with plaintiff since 2014. He stated that he had gone to the office of the defendant once with Pankaj to settle the outstanding/accounts but he denied that on 31.03.2016, he along with Pankaj had gone to the office of defendant. He stated that document Ex.DW-1/3 does not bear his signatures at CS No. 9/21 Navigators Visa Global Logistics Ltd v/s Thermoking Page No.6 of 12 point A. He stated that no settlement took place with the defendant in his presence.
9. DW-3 is Pankaj Singh, ex-employee of the plaintiff. He stated that he was the Manager (Sales) in the plaintiff company and had negotiated with the defendant number of times regarding settlement of accounts. He admitted that on 31.03.2016, he had gone to the office of the defendant and settled the accounts. He admitted his signatures on the document Ex.DW-1/3 and admitted that as per this document, the accounts were fully settled and there were no dues against the defendant. He stated that Gaurav had gone with him to the office of defendant on that day since Gaurav used to look after the accounts. He admitted that settlement Ex.DW-1/3 had taken place in presence of Gaurav.
On being cross examined, he stated that mail dated 12.05.2016 was not sent by him but it was sent through his mail which was an official mail and it was not with his consent. He stated that he worked with the plaintiff till 20.05.2016. He stated that he never made any cash collection from the defendant. Gaurav used to send another person for cash collection. He stated that the document Ex.DW-1/3 was signed by Anuj.
10. I have heard the arguments advanced by ld. Counsels Sh. Rishabh Kaushik for the plaintiff and Sh. S.M Hashmi for the defendant.
11. Ld. Counsel for the plaintiff reiterated what has been stated in CS No. 9/21 Navigators Visa Global Logistics Ltd v/s Thermoking Page No.7 of 12 the plaint and the replication. Ld. Counsel stated that defendant has admitted the invoices which were raised for the services rendered by the plaintiff. Defendant has stated that it has made some of the payments in cash against the invoices to Pankaj but DW-3 has denied having received any cash from the defendant. Ld. Counsel stated that no cash transactions took place between the plaintiff and the defendant and defendant is liable to pay the amount as claimed.
12. Ld. Counsel for defendant per contra argued that all the accounts were settled prior to filing of the suit. He referred the statement of accounts Ex.PW-1/3 and stated that last transaction took place on 06.01.2017, suit for recovery has been filed on 07.01.2021 and therefore, the suit is barred by limitation. Ld. Counsel stated that the statement of accounts Ex.DW-1/5 clearly reflects that cash transactions had taken place but the plaintiff did not reflect the transactions in the statement of accounts filed by it. Rather, plaintiff is liable to pay surplus amount to the defendant.
13. I have given my thoughtful consideration to the rival contentions and perused the evidence and the documents on record. My findings on the issues are as follows.
Issue no.3- Whether the suit is barred by limitation? OPD.
Issue no.1- Whether the plaintiff is entitled to recovery of a sum of Rs. 3,39,101/- as prayed for ? OPP.
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14. It is not in dispute that defendant had availed the services of the plaintiff for its logistics need and purposes. It had entered into business transactions with regard to freight forwarding and logistical handling of its consignments with the plaintiff for which the plaintiff had raised the invoices Ex.PW-1/3 (colly) vide bill of lading Ex.PW-1/4. Defendant has not disputed any of the invoices which were raised by the plaintiff. Dispute is with regard to reconciliation of accounts as according to the defendant, some of the payments against the invoices were made in cash which were not reflected by the plaintiff in its statement of accounts.
Though the defendant has raised the issue of limitation stating that the suit is barred by limitation but statement of accounts furnished by the defendant Ex.DW-1/6 shows that the last transaction/payment was made on 20.06.2017 for Rs. 1,00,000/-. This suit for recovery has been filed on 07.01.2021. In view of the judgment in writ petition No. 03/2020 of the Supreme Court, vide which the limitation has been extended for filing the suits till March 2022, this suit is maintainable and is not barred by limitation.
15. Issue no.3 is accordingly decided against the defendant and in favour of the plaintiff.
16. In this case, DW-3, who was the employee of the plaintiff and had worked with the plaintiff till 20.05.2016, has admitted that on 31.03.2016, he had gone to the office of the defendant and settled the accounts. He has admitted his signatures on the document Ex.DW-1/3 and stated that as per this document, the accounts were CS No. 9/21 Navigators Visa Global Logistics Ltd v/s Thermoking Page No.9 of 12 fully settled and there were no dues against the defendant. He has stated that Anuj, employee of the plaintiff had signed the document Ex.DW-1/3. DW-3 has also stated that Gaurav was with him when the settlement Ex.DW-1/3 had taken place. DW-2 Gaurav who is still working with the plaintiff has admitted that he had gone to the office of defendant with DW-3 to settle the accounts. Though he denied the settlement but from the document Ex.DW-1/3 coupled with the testimony of DW-3, it is clear that a settlement Ex.DW-1/3 had taken place between the parties and all the accounts were settled.
17. Though the plaintiff's witness PW-1 has stated that the plaintiff never transacted with the defendant in cash but testimony of DW-3 shows that DW-2 used to send another person for cash collection. In the instant case, the plaintiff with the suit had only filed the statement of accounts for the period from 01.04.2016 to 31.03.2017 Ex.PW-1/3 (colly) but PW-1 has admitted that plaintiff had business dealings with the defendant since 2015. The defendant/DW-1 has filed the statement of accounts of the period from 01.04.2015 to 31.03.2016 Ex.DW-1/1, 01.04.2016 to 31.03.2017 Ex.DW-1/5 and 01.04.2017 to 31.03.2018 Ex.DW-1/6 which reflect that some of the transactions were made in cash. The defendant has also filed the vouchers Ex.DW-1/2 and Ex.DW-1/4 in this respect qua receipt of amounts in cash by Pankaj, Anuj and others. This assumes significance since it has come in the testimony of DW-3 that DW-2 used to send another person for the cash collection and Anuj had signed the document Ex.DW-1/3. It CS No. 9/21 Navigators Visa Global Logistics Ltd v/s Thermoking Page No.10 of 12 has also come in the testimony of DW-1 that it used to file income tax returns and the transactions made through cash were also shown in the income tax returns.
18. Facts and circumstances show that payments against the invoices used to be made through cheque as well as cash however, the plaintiff did not reflect the cash transactions in the statement of accounts. From the document Ex.DW-1/3 and the statement of accounts of Ex.DW-1/1, Ex.DW-1/5 and Ex.DW-1/6, it is clear that defendant had cleared its liability towards the plaintiff by making payments either through cheque/cash which were duly received by the plaintiff through its employees/representatives. The defendant has explained how the payments were made against the total sum due.
19. For the aforesaid reasons, I am of the view that plaintiff is not entitled to recovery of the sum as claimed.
Issue no.1 is accordingly decided against the plaintiff and in favour of the defendant.
Issue no.2- Whether the plaintiff is entitled to interest, if so, at what rate and of which period? OPP.
20. Since vide finding on issue no.1, it has been held that plaintiff is not entitled to recovery of any sum, so, it is not entitled to interest.
Issue no.2 is accordingly decided against the plaintiff and in favour of the defendant.
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21. In view of my findings on the aforesaid issues, the suit of the plaintiff is dismissed with no order as to costs.
22. Decree sheet be prepared accordingly. File be consigned to record room.
Announced in open court (Sanjiv Jain)
today i.e. 19th November, 2022 District Judge
(Commercial Court)-03
New Delhi
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