Delhi District Court
M/S. Friends Overseas vs Prag International And Anr on 31 August, 2022
In the Court of Ms. Gurmohina Kaur: Additional District Judge-03
(South District) Saket Court Complex, New Delhi.
DLST010038572016
Suit No.: 8815/2016
In the matter of :-
M/s. Friends Overseas
Through its Proprietor
Mr. Pamaljeet Singh
Having Office at:-
2151/2A, New Patel Nagar,
Opposite Shadipur Depot,
Delhi-110008 .........Plaintiff
VERSUS
1. Prag International and Anr.
Having office at :-
2365 E Devon Ave
Elk Grove Village,
Illinois 60007
USA
Also at:-
G-2, Green Park (Main),
New Delhi -110016
(Defendant No. 1).
2. Mr. Kanwaljeet Singh,
Having Office at:
E-30, Naraina Main Road,
New Delhi-110028.
(Defendant No. 2). .......... Defendants
Date of institution : 23.04.2012
Date of decision : 31.08.2022
CS No: 8815/16 Page no. 1 of 19
SUIT FOR RECOVERY
JUDGMENT
1. The facts as stated in the plaint filed before Hon'ble High Court of Delhi, are that the Plaintiff is a sole proprietorship firm engaged in the manufacture, marketing, sale and export of various food products such rice, atta etc., and the Plaintiff firm through its Proprietor also provided its services for customized printing of packaging material as per the requirements of their customers as per the purchase order. It is stated that to the best knowledge of the Plaintiff, the Defendant No. 1 was a sole proprietorship firm with Mr. Ravi Kapoor (herein referred as Defendant No.
2) being the sole proprietor and Defendant No. 1 represented to be inter alia engaged in the business of importing food products from India and selling and marketing the same in the United States of America under the trademark Shudh. It is averred that Defendant No. 1 though based in Illinois, USA also had a residential property at Greater Kailash-II, New Delhi, from where Mr. Ravi Kapoor operated as and when he came to India for placing orders. It is stated that Defendant No. 2 were the owners of Hotel Picasso in New Delhi having its branch at E-30, Naraina, Main Road, New Delhi and B-374, Meera Bagh, Outer-Ring Road, Paschim Vihar, New Delhi. It is the case of the Plaintiff that the proprietor of the Plaintiff, Mr. Pamaljeet Singh and Defendant No. 2 have known each other since long time and had co-ordial business relations. It is stated that in the January 2011, Defendant No. 1 was introduced to the Plaintiff by Defendant No. 2 at Plaintiff's office at 2151/2A, New Patel Nagar, Shadipur Depot, New Delhi-008, where Defendant no. 1 expressed his desire to import various food products as manufactures/marketed/exported by the Plaintiff and sell them in USA. It is stated that on the recommendation of Defendant no. 2, the Plaintiff agreed to do business with Defendant No. 1 and Defendnat No. 1 placed an order on CS No: 8815/16 Page no. 2 of 19 07.01.2011 for purchase of various foods products such as atta, rusk, saag, spices, etc., and as a practice the same was noted in the office diary by the Plaintiff. The initial order placed by Defendant No. 1 as mentioned in the plaint is reproduced as follows:-
ITEM QUANTITY Rusk 100 Boxes Atta Cookies 100 Boxes Pista Cookies 100 Boxes Kaju Cookies 100 Boxes Kaju Badam Cookies 100 Boxes Makki Atta 4LBS 100 Boxes Besan 2 LBS 100 Boxes Besan 4 LBS 100 Boxes Saag 400 G 300 Boxes (150 * 2) Saag 800 G 100 Boxes (50 * 2) Masala 80G, Haldi, Lal Mirch, Extra 50 Boxes each Hot Lal Mirch, Garam Masala, Dhania Brooms of 4 kinds 100 each Pachranga Mix Pickle 50 Boxes
2. It is further averred that Defendant No. 1 kept on placing additional orders either through phone or through Defendant NO. 2 and in the first week of January 2011, Defendant No. 1 again approached the Plaintiff's office for printing of customized printing material for its purchase order and it was orally agreed between the parties that the Plaintiff would manufacture printing material for Defendant No. 1 with the trade mark label 'Shudh' and thereafter, the food products would be packaged as per the purchase order. Plaint further states that the cost of customizing printing material was to be adjusted in the price of goods and it was further agreed between the parties that Rs. 1,50,000/- in cash was paid by Defendant No. 1 to the Plaintiff in advance towards the cost of making of printing cylinder for CS No: 8815/16 Page no. 3 of 19 customized printing material for Defendant No. 1, secondly, all the shipment were to be agreed on CNF basis, thirdly, the mode of payment was agreed to be DA (documents against acceptance) and AP (Account payable). It is stated that no advance payment was made by the Defendant to the Plaintiff and it was agreed between the parties that the documents would be routed through bank and all payments would be done at the time of acceptance of documents. It is stated that emails were exchanged between the parties in January 2011 for finalizing the design and packaging and the Plaintiff through its emails dated 15.01.2011 and 02.02.2011 sent samples of packaging to Defendant no. 1 for its approval and the Defendant No. 2 became the middle man, who was also marked in these emails and also played a vital role in selection and approval of the designs. It is stated that vide email dated 04.02.2011, the Plaintiff was further informed by Defendant No. 1 that the Defendant No. 1 had registered the domain name www.shudhfood.com in his name and asked the Plaintiff to print the same on the packaging material as well. It is averred that after receiving approval from the Defendant No. 1, the Plaintiff got the printing cylinder made at the cost of Rs. 2 lacs in access to Rs. 1,50,000/-. However, still the Plaintiff maintained cordial relations with Defendant no. 1. The Plaint further states that vide email dated 02.03.2011, all the additional information sought by the Defendant No. 1 were supplied to them along with the shipment in order to assist the clearance. It is averred that the Plaintiff sent the performa invoice bearing No. FO/23/10-11 dated 11.03.2011 to Defendant No. 1 with respect to its first shipment clearly mentioning the quality of goods being exported along with their price which was duly received by Defendant No. 1 and acknowledged through email dated 14.03.2011 and the Defendant No. 1 had no issue/dispute with regard to the price quoted by the Plaintiff for supplying the products and further rendering service. It is further averred that sometime in the end of March 2011, the Plaintiff informed Defendant No. 1 that the orders placed by him would have to be sent through two shipments as the quantity of goods demanded was large and it was not possible to ship them in CS No: 8815/16 Page no. 4 of 19 one installment and it was further informed by Defendant No. 1 that in such a scenario the second shipment would be 40 % empty and Defendant No. 1 in order to save the extra shipping cost asked the Plaintiff to send excess pickle so that the containers do not remain empty at the time of shipping. It is stated that pursuant to the email dated 01.04.2011, the Plaintiff provided all information, documents pertaining to SIF Form and FDI Number for all manufactures along with the shipment on 05.04.2011 and pursuant to the email dated 03.05.2011, the Plaintiff provided the SCAC code and shipping documents, such as bill of lading, freight bill, packing list and purchase order. It is stated that the said shipment was delivered to Defendant no. 1 at his address on 04.06.2011 and the goods exported by the Plaintiff to Defendant No. 1 amounted to $47649.20 and thereafter invoice no. FO/23/11-12 dated 05.04.2011 was raised by the Plaintiff which was duly received and accepted by Defendant No. 1. It is stated that on 16.05.2011, the second shipment was sent by the Plaintiff for the remaining order, which was delivered to the Defendant no. 1 on 03.07.2011 and through this shipment the Plaintiff exported goods amounting to $27696.25 to Defendant No. 1 and raised invoice no. FO/26/11-12 dated 16.05.2011 which was duly received and accepted by Defendant No. 1. It is averred in the Plaint that the payments towards the two invoices totalling to USD 75345.45 became due and payable by Defendants to Plaintiff on 16.05.2011 and till that time the Defendant No. 1 had no issue to the price quoted by the Plaintiff. It is stated that the Plaintiff made repeated phone calls asking for bank details but the Defendant No. 1 started acting strangely and thereafter the Plaintiff sent an email dated 18.05.2011 to Defendant No. 1 reminding him of all the terms and conditions and asking for his bank details so that the documents would be routed to Defendant No. 1. It is stated that this email was also marked to Defendant No. 2. It is averred that despite repeated reminders to Defendant No. 1 by the Plaintiff as well as to Defendant No. 2, the Defendant No. 1 did not clear any outstanding dues to the Plaintiff for the export of the goods and the malafide intention of Defendant No. 1 became clear from the email dated CS No: 8815/16 Page no. 5 of 19 08.06.2011, wherein the Defendant No. 1 started taking out defects to the goods exported by the Plaintiff and further malafidely stated that the goods were supplied in excess of the purchase order. It is averred that the Defendant No. 1 also started complaining to the Plaintiff that the prices charged was very high and it is stated in the plaint that such issues were raised belatedly with the malafide intention for not paying the consideration amount for the goods received. It is stated that the Defendant No. 2 vide its email dated 08.06.2011 asked the the Defendant No. 1 to pay the Plaintiff the outstanding amount and the Defendant No. 1 towards partial discharge of the obligation wired a nominal amount USD 5000 from his bank account no. XXXX323 to the Plaintiff's Canara Bank on 09.06.2011. It is averred till that time the Plaintiff had spent Rs. 3,50,000/- equivalent to USD6800 for making of the printing cylinder, packaging material, freight etc., and the Plaintiff was shocked to receive such a nominal amount. It is stated that vide email dated 21.06.2011, the Plaintiff again requested Defendant no. 1 to honour the agreement and pay the remaining balance amount. It is averred that another payment of USD 5000/- was received by the Plaintiff in his Canara Bank Account from Defendant No. 1 on 18.06.2011 leading to total outstanding amount of USD 65345. It is averred in the Plaint that the Defendant No. 1 in the meantime, assured the Plaintiff that he would make further payment and again placed order with the Plaintiff through email dated 01.07.2011 for making advertisement for him in the newspaper and pursuant to the order, the Plaintiff prepared a newspaper advertisement as desired by Defendant No. 1, qua which Defendant No. 1 again defaulted in the making the payment to the Plaintiff and further defaulted in paying the services provided by the Plaintiff in preparing the advertisement in newspaper. It is stated that requests were made by Plaintiff to Defendant No. 1 several times, including email dated 21.06.2011, 06/07.08.2011, but the Defendant kept on ignoring the calls and avoided making any payment. It is stated that Defendant No. 2 again asked the Defendant No.1 vide its email dated 25.08.2011 to clear all the outstanding dues and Defendant No.1 vide CS No: 8815/16 Page no. 6 of 19 its email dated 25.08.2011 acknowledged the amount due to the Plaintiff and assured that he would make payment within a week. It is stated that 22.10.2011, the Plaintiff received an email from Defendant No.1, wherein Defendant No.1 apologized for his behaviour and stated that he would pay the amount which was due and payable and will finally settle the amount. However, the Defendant No. 1 vide email dated 30.10.2011 sent some fictitious amount and unilaterally (contrary to the agreement) decided as to what amount was to be paid by the Plaintiff for the goods exported and services provided. It is stated that the Defendant No. 1 had ordered the entire quantity of shipment after getting it carefully scrutinized by Defendant No. 2 as to the quality and the payment was to be received by the Plaintiff for the exports of goods which was not conditional upon the goods being sold in the market. Hence, way of the present suit, it is prayed by the Plaintiff that from the time of filing of suit USD 65345 equivalent to Rs. 33,78,336/- was due and payable besides interest by Defendants to the Plaintiff.
3. Pursuant to the summons issued, the Defendants entered their appearance and filed their respective written statements. Defendant No. 1 has contended the present suit and stated that the Defendant No. 1 was a Limited Company registered in Illinois, USA, having no branch in India and Defendant No. 1 was holding a post of President of this company with 32 % share. It is stated that as per Article 5 (9) of the Indian Constitution, since the Defendant No.1 had acquired American Citizenship, this court had no territorial jurisdiction as defined in Civil Procedure Code and further, since the cause of action did not arise in India, this court did not have jurisdiction to dispose this case. It is stated that there was no contract or agreement between the Plaintiff and Defendant No.1 and the Plaintiff was introduced to Defendant No. 1 by Defendant No.2 being his maternal uncle and the Plaintiff had stated during his visit that he was exporting foods items in the brand name of Swadi and requested Defendant No.1 to establish his business in USA. It is averred that initially the Defendant No.1 had refused however CS No: 8815/16 Page no. 7 of 19 after lot of pressure was created by Defendant No.2, the Plaintiff suggested another brand name 'Shudh' for purpose of export to USA and the Plaintiff suggested to the Defendant No.1 that they will send some samples and requested Defendant No.1 to distribute the same in their store on trial basis. It is further stated in the written statement that Defendant No.1 had warned the Plaintiff several times through phone calls that the expenses and investments in perishable food items like saag, could not be recovered, which was also stated in the email dated 08.06.2011 but the Plaintiff sent consignment of these items which was forced on Defendant No.1 despite protest. It is averred that the export documents have not been filed by the Plaintiff and left blank and do not show any fixed terms and conditions. He stated that for some of the items which was sold Defendant No. 1 he sent the Plaintiff an amount of $ 10000/- and the remaining items such as cookies had been refused by the stores, since the Plaintiff had copied the design of Bikaner, which was already an established brand and the retails further refused saag also as the water contents of saag was very high which was not expected from a good quality brand. It is stated that these details were informed to the Plaintiff vide email dated 19.05.2011 and the Plaintiff was also asked vide email dated 27.12.2011 to take back his consignment as the customers had rejected the food items sent by him and his company did not agree to hold the same in their warehouse. It is further averred that despite several requests, calls and emails the Plaintiff instead of collecting the rejected food items demanded payment, which he had also claimed from his insurance company and that Defendant No. 1 had spoken to the insurance agent. It is further stated that Defendant No.1 had never placed any order or entered into any contract with the Plaintiff.
4. The Defendant No. 2 filed his written statement inter-alia contending that the present suit had been filed without any cause of action and there was brevity of contract of jural relationship between the Plaintiff and the answering Defendant. It is averred that the answering Defendant No. CS No: 8815/16 Page no. 8 of 19 2 was the common friend of Pamaljeet Singh, Proprietor of Plaintiff and Ravi Kapoor of Defendant No.1 and the answering Defendant No. 2 had introduced them and apart from that he had no role to play in respect to the transactions involving the Plaintiff and Defendant No. 1. It is stated that it was on the insistence of the Plaintiff, the answering Defendant no. 2 had requested Defendant No.1 to settle the dispute with the Plaintiff. It is stated by Defendant No.2 was not liable to pay any amount to the Plaintiff for any transaction.
5. On these grounds, it was prayed by both the Defendants that suit of the Plaintiff is liable to be dismissed.
6. Replication to written statement of Defendant no. 1 has been filed on behalf of the Plaintiff wherein contents of the written statement were denied and pleadings made in the plaint are reiterated. It was further stated that this Court has jurisdiction to entertain this suit.
7. After completion of pleadings before Hon'ble High Court of Delhi, admission denial of documents was conducted. Thereafter vide order dated 22.05.2014, the following issues were framed by Hon'ble High Court of Delhi:-
"1. Whether the Plaint has not disclosed any cause of action against Defendant no. 2?OPD-2.
2. Whether the suit filed by the Plaintiff against Defendant No. 2 is bad for non joinder of the parties?OPD-2.
3. Whether the Plaintiff is entitled to recovery of US$62345 equivalent to Rs. 33,78,336/- (as per the exchange rate at the time of filing of the present suit) along with interest @ 12 % per annum amounting to Rs. 4,05,379/- from 5th April, 2011 till the institution of the present suit totaling to Rs. 37,83,716/- along with pendente-lite and future interest @ 12 % per annum till its recovery and from whom?OPP.
CS No: 8815/16 Page no. 9 of 19
4. Whether the written statement of Defendant No. 1 has been verified in accordance with law?OPD-1.
5. Whether this court has no territorial jurisdiction to entertain and try the present suit?OPD-1.
6. Relief.
8. In support of its case, the Plaintiff has examined its Proprietor Mr. Pamaljeet Singh Panesar as PW-1. He tendered his evidence by way of affidavit Ex. PW1/A. He relied upon the documents Ex.PW-1/1 to Ex.PW- 1/24.
8.1. During his cross-examination conducted on 19.05.2017 by Ld. Counsel for Defendant No.1, PW-1 he stated that he knew Defendant no. 2 for the last 20 years and Defendant no.1 was the cousin of Defendant no.2. It is stated that Defendant no.1 was residing in USA and name of his company was Prag International and as per his knowledge Prag International had no office in India. He stated that his brand name was Swadi and he stated that Defendant no.1 told him that he was going to register brand name Shudh and that he was not aware whether the same was registered or not. He stated that in his cross-examination that there was no written agreement or contract between them for export of grocery items and Defendant no. 2 explained that there was no contract or agreement required. He further stated that the supply order was over the phone as well as through email and as per the terms, the Plaintiff has to submit documents in bank and receive payment. He stated that the goods supplied by him was not insured and Prag International had received the consignment. He stated that the sale of consigned supplied goods was not his role and he used to received calls from Defendant No. 1 that the items were good and the Defendant no.1 had sent him $10000 after sale of items sent by him. He stated that his designs were also approved by Defendant no.1. He denied the suggestion that the some of the goods supplied by him were already expired and he further admitted that he has CS No: 8815/16 Page no. 10 of 19 informed by Defendant no.1 that the goods to be supplied should have atleast one year time to expire at the time of reaching of goods to USA. He denied the suggestion that the custom duty and other charges were liable to be paid by him and not by Defendant No. 1 and he had not sent the performa invoice to Defendant no.1 and he had never visited USA. He denied the suggestion that the Defendant No. 1 had done all the things regarding sale of goods sent by him in USA not for profit but only for helping him in his business because Defendant no. 2 was the cousin of Defendant no.1.
8.2. During cross-examination of PW-1 by Counsel for Defendant No. 2, he admitted that the Defendant no. 2 had introduced him to Defendant no.1. He further admitted that Defendant no.2 had no business transaction with him. He further admitted that Defendant no.2 had no legal liability towards him.
9. The Defendant No. 2 did not opt to lead any evidence and Defence Evidence of Defendant no.1 was closed vide order dated 05.04.2018 as no evidence was lead on behalf of Defendant No. 1.
10. Thereafter, final arguments were heard on behalf of all the Parties. It was argued on behalf of the Counsel for the Plaintiff that the Plaintiff had been able to prove its case as all the documents had been duly proved and during trial no evidence had been led on behalf of the Defendant No. 1 to show that he was not entitled to pay any amount. It was further argued that the copy of the invoices and emails placed on record corroborated the averments made by the Plaintiff. It was further argued that the trademark of the Defendant No. 1 had been registered with Green Park office address which reflected that the Defendant had its registered office within the jurisdiction of this court. It was stated that Defendant No. 2 was a proforma party and there was no claim qua Defendant No. 2 by the Plaintiff.
CS No: 8815/16 Page no. 11 of 19
11. Per contra, it has been argued on behalf of the counsel for the Defendant No. 1 that the Defendant No. 1 company was registered in USA and Mr. Ravi Kapoor was also a resident of United States of America and therefore this court did not have the jurisdiction to dispose of the present suit as per law. It was further argued that there was no contractual relation between the parties and the Defendant No. 1 had never agreed to any kind of business transaction with the plaintiff. It is further argued that the purchase order relied upon by the plaintiff was a noting in the diary which did not prove the case of the plaintiff. It was further argued that no certificate under section 65B of the Indian Evidence Act had been attached along with the documents by the plaintiff for them to be admissible as per law.
12. Ld. Counsel for Defendant No. 2 agreed that there was no liability of Defendant No. 2 in the present case.
13. Arguments heard on behalf of all the parties. Record perused. Considered.
14. My issue wise findings are as under:
15. Issue No. 1 - whether the plaint has not disclosed any cause of action against Defendant No. 2? OPD2 Issue No. 2 - whether the suit filed by the plaintiff against Defendant no. 2 is bad for non-joinder of parties? OPD2 The onus to prove these issue was on Defendant No. 2.
15.1 It is the case of the plaintiff that Defendant No. 2 had introduced him to Mr. Ravi Kapoor who was the proprietor of Defendant No.
1. In the written statement filed on behalf of Defendant No. 1, it has been stated that Defendant No. 1 is a Limited Company. However, it has been admitted that Mr. Pamaljeet Singh, Defendant No. 2, was the proprietor of CS No: 8815/16 Page no. 12 of 19 the Plaintiff Firm and he was introduced to Mr. Ravi Kapoor through Mr. Kanwaljeet Singh. This factum that Mr. Kanwaljeet Singh had introduced Mr. Pamaljeet Singh and Mr. Ravi Kapoor therefore is an admitted fact. Further, the evidence placed on record during the trial by plaintiff reflects that communication between plaintiff and Defendant no. 1 also includes reference of Defendant no. 2 Mr. Kanwaljeet Singh as can be seen vide Ex.PW-1/21. Further, email dated 06.08.2011 also reflects discussions made with Defendant no. 2 by plaintiff regarding payment which was outstanding from Defendant no. 1. In fact, Ex. PW-1/22 is the email by Defendant no. 2 to Defendant no. 1 seeking invitation on behalf of the Mr. Pamaljeet Singh for his U.S. trip on the business letterhead of Defendant no. 1. Admittedly, there is no certificate of Section 65 B of Indian Evidence Act annexed along with these emails for them to be read and be admissible in evidence. Furthermore, apart from these emails, no documentary evidence has been lead on record to show the role of Mr. Kanwaljeet Singh Defendant No. 2. However, in view of the pleadings and admissions made by both the Plaintiff and Defendant No. 1 and Defendant No. 2 acted as an intermediary or middle man and had introduced Plaintiff with Defendant No. 2, the factum of Mr. Kanwaljeet Singh, Defendant No. 2 being a part of the transaction cannot be denied. However, these pleadings do not give rise to any cause of action against Defendant No. 2.
15.2. The plaintiff is seeking recovery of Rs. 33,78,336/- from the Defendants and it is an admitted fact that though the Defendant no. 2 was an integral part of transaction between plaintiff and Defendant no. 1, there was no outstanding liability qua Defendant no. 2. It will also not be out of context to mention here that though no evidence has been lead during trial by Defendant no. 2 to prove that the present suit was filed without any cause of action qua him, the bare reading of the Plaint reflects that nothing has come on record to show that firstly, the plaintiff had any cause of action against Defendant No. 2 and secondly, that Defendant No. 2 was either necessary or CS No: 8815/16 Page no. 13 of 19 proper party in the present case. The record further reflects that Plaintiff and Defendant No. 1 had an independent business transaction and there was no claim/payments ever sought from Defendant No. 2 by Plaintiff. There issued are accordingly decided.
16. Issue No. 4 - whether the written statement filed by Defendant no. 1 has been verified in accordance with law? OPD1.
16.1. The onus to prove this issue was on the Defendant no. 1. Perusal of the written statement filed by him reflects that though a verification has been filed after the written statement by Mr. Ravinder Kapoor for Defendant no. 1, it states that paras 1 to 42 were correct as per the records maintained by him and the last para was Relief. The same appears to be a printed color copy with the appended signatures of Defendant no. 1. The affidavit states that Defendant No. 1 was a citizen of USA and was residing in Illinios, US. There is no verification of the paras of reply/ written statement. Perusal of the affidavit annexed alongwith the written statement also contain the printed copy of the signatures of the Defendant and it contains the copy of the official seal of notary public- state of Illinios. It is pertinent to mention that though verification is required as per law, however lack of verification is a mere irregularity and further it is seen that the affidavit has been attested by Notary Public of United States of America, whose printed copy of stamp is annexed along with the affidavit since the Defendant No. 1 is a resident of USA and was residing there at the time of filing of his Written Statement. The Written Statement was filed through Counsel of Defendant no. 1 before Hon'ble High Court of Delhi.
16.2 In view of these observations, it cannot be said that the written statement of Defendant no. 2 was not verified in accordance with Law. Accordingly this issue was decided in favour of the Defendant no. 1.
CS No: 8815/16 Page no. 14 of 19
17. Issue no. 5-- whether this court has no territorial jurisdication to entertain and try the present suit? OPD1.
The onus to prove this issued was on the Defendant no. 1.
17.1. The plaintiff by way of the present suit is seeking recovery of Rs. 33, 78,336 along with interest on the ground that the plaintiff and the Defendant No. 1 had entered into business transactions with each other pursuant to which plaintiff exported goods and rendered services to Defendant No. 1 for sale of certain articles and food products in the United States of America. The Defendant No. 1, on the other hand, has contended that he was only trying to help the plaintiff and there was no business transaction between the parties. The Defendant No. 1 has also raised objections as to the jurisdiction of this court with regard to the present dispute. At this stage, it is relevant to mention that the plaintiff has stated that the Defendant no. 1 also had his office at the property at G-2, Green Park Main, New Delhi-110016 from where he operated, whenever Defendant no. 1 came to Delhi. Perusal of the record further states that the articles were supplied and exported by the plaintiff to the Defendant no. 1 under the trade name 'Shudh'. It is pertinent to mention that the trademark 'Shudh' belong to and was owned by Defendant no. 1 and the same is also reflected from Ex.PW-1/1 where as the address of the proprietor of Parag International has been mentioned with Ravinder Kapoor being its proprietor and the same address of Green Park, New Delhi has been stated. The counsel for Defendant No. 1 has stated that no certificate u/s 65 B of the Indian Evidence Act has been filed alongwith this document and therefore the same cannot be read in evidence. However, the factum that a trade-name has been registered in the name of Defendant No. 1 has not denied by Defendant No. 1 at any time during trial also goes on to show that the domain name www.shudhfood.com was registered by Defendant no. 1 in India at their Green Park address and the deposition of parties as reproduced earlier further reflects that the parties Defendant no. 1 and the Plaintiff had met in India CS No: 8815/16 Page no. 15 of 19 prior to agreeing to have any business transaction with each other. Therefore, in view of Section 20 of the Civil Procedure Code, 1908, the cause of action arose within the jurisdiction of the court. Accordingly, this issued is decided against Defendant no. 1 and in favour of the plaintiff.
18. Issue no. 3 - whether the plaintiff is entitled to a recovery of US $ 65345 equivalent to Rs. 33,78,336/- (as per the exchange rate at the time of filing the present suit) alongwith interest @ 12% p.a. amounting to Rs. 4,05,379/- from 05.04.2011 till the institution of the present suit totaling to Rs. 37,83,716/- alongwith pendentalite and future interest @ 12% till recovery of the present suit? OPP The onus to prove this issued was on the plaintiff.
18.1 During trial, the Plaintiff has placed on record the Purchase Order Ex.PW-1/2 given by Mr. Ravi Kapoor of Defendant No. 1. The Plaintiff has also relied upon certain emails to show that the Plaintiff and Defendant No. 1 had business transactions with each other. Perusal of these emails reflect that the same are not accompanied by any certificate under Section 65 B of the Indian Evidence Act in the present case. Therefore, the same cannot be read in evidence. However, the Plaintiff has also filed invoices pertaining to the food items/articles dispatched and exported by him for Defendant No. 1 and the same are Ex.PW-1/8, Ex.PW-1/10, Ex.PW- 1/13 and Ex.PW-1/15. It is pertinent to mention that perusal of Ex.PW-1/8 reflects that the same was dated 11.03.2011 for an amount of $37837.50/-. Further, the Ex. PW-1/10 is the invoice dated 05.04.2011, the same for an amount of USD 47,649.20, and is accompanied by a bill of lading dated 23.04.2011. Similarly, invoice Ex.PW-1/13 is dated 16.05.2011 for USD 2769625 and the bill of lading dated 31.05.2011 for the same is Ex.PW- 1/14. Furthermore, perusal of the files shows that shipping bill of export dated 24.05.2011, which is the document issued by Custom Department pertains to invoices dated 05.04.2011 & 16.05.2011. It is pertinent to CS No: 8815/16 Page no. 16 of 19 mention here that during the cross-examination of PW-1, no questions have been put to the Plaintiff witness by the Ld. Counsel for Defendant No. 1 qua these bills or invoices. The evidence placed on record by the Plaintiff have not been contradicted and it is not the case of the Defendant No. 1 that he did not receive any of the articles/food items exported by the Plaintiff. No document has been placed on record on behalf of Defendant No. 1 to show that the amount claimed by the Plaintiff in the present suit was incorrect or that he was not entitled to pay the same. As already reiterated in above evidence that has been lead on behalf of Defendant in the present suit to prove the contentions. The invoices and bill of lading placed on record by Plaintiff stands proved as there are sufficient evidence of the articles/material supplied by the Plaintiff to the Defendant with respect to the business transactions with each other. It also requires mentioning that Defendant no. 1 in his written statement has stated that there was no contract or any other business relationship between the parties .i.e Plaintiff and Defendant No. 1 whatsoever but he was helping Defendant No. 1 to establish his export business in USA. However, the documents on record and evidence led during trial by the Plaintiff prima facie reflects a business relationship. No documents has been placed on record by the Defendant No. 1 during trial, nor has any evidence has lead by the Defendant No.1 to prove his contentions that the Defendant no. 1 was only assisting the Plaintiff in establishing business in USA. Accordingly, the factum of a business transactions between the Plaintiff and Defendant no. 1 has been prima facie proved by the Plaintiff during trial. In fact, the payment of USD 10,000 by the Defendant No. 1 to the Plaintiff contradicts these contentions of Defendant No. 1 and prima facie prove the falsity of their defence. Furthermore, from the cross-examination of PW-1, it can be seen that the Counsel for Defendant No. 1 has questioned PW-1 regarding emails received by Defendant No. 1 of defective items and insurance and have not denied receiving of any of these e-mails. Suggestions were even put regarding date of expiry of food items further corroborates that the Plaintiff had exported CS No: 8815/16 Page no. 17 of 19 articles/food items to Defendant No. 1. It is also pertinent to mention that issuance of bill of lading also reflect delivery of food items and article to Defendant no. 1 on behalf of Plaintiff. The Hon'ble Apex Court in judgment of British India Steam Navigation Co., Ltd Vs. Shanmughavilas Cashew Industriesd and Ors, 1990 SCR (1) 884, 1900 SCC (3), 481 held that :-
"The bill of lading is the symbol the goods, and the right to possess those passes to the transferee of the bill of lading. In other words, its transfer is symbolic of the transfer of the goods themselves and until the goods have been delivered, the delivery of the duly endorsed bill of lading operates as between the transferor or transferee, and all who claim through them, as a physical delivery of the goods would do. The bill of lading is a negotiable instrument in the sense of carrying with it the right to demand and have possession of the goods described in it. It also carries with it the rights and liabilities under the contract, where the property in the goods also is transferred."
18.2 Therefore, the bill of lading and invoices corroborated business transaction between the Plaintiff and Defendant No. 1 and that of export of goods by Plaintiff to Defendant No. 1. The Defendant No. 1 has also not been able to show that the registration of domain name Shudh was done at the suggestion of the Plaintiff as contended by him. The Defendant No. 1 has also failed to contradict any of the evidences placed on record by the Plaintiff and the suggestions put by the Counsel for Defendant No. 1 to PW-1 prima facie prove the avernments made in the Plaint that the Plaintiff and Defendant No. 1 had entered into a business transactions against which the Plaintiff exported certain foods items/articles and raised invoices. The payment of USD 10,000/- by Defendant No. 1 further corroborates the claim of the Plaintiff and the Defendant No. 1 has not placed on record any invoice, statement of account, any oral or documentary evidence to show that it had paid the entire outstanding amount as claimed in the cross-examination of PW-1 or that the Plaintiff was not entitled for any payment as alleged in CS No: 8815/16 Page no. 18 of 19 Written Statement. The Plaintiff, on the other hand, has been able to prove its contentions and prove his case during trial. Accordingly, this issue is decided in favour of Plaintiff that it is entitled to recovery of Rs. 33,78,336/-.
19. The Plaintiff has claimed interest @ 12 % from 05.04.2011 till institution of the present suit along with pendente lite and future interest @ 12 % per annum till recovery.
20. In the considered opinion of this court, justice would be served if Plaintiff is granted simple interest at the rate of 6% per annum from 24.05.2011, which is a date of shipping bill of export till the date of the decree. Section 34 CPC postulates and envisages the pendent-elite interest at any rate not exceeding 6 % and future interest at any rate, not exceeding the rate, at which nationalized banks advance loan. Therefore, the Plaintiff is granted future interest @ 9 % per annum, till its realization.
Relief
21. In view of above discussion, the suit is decreed in favour of Plaintiff. The Defendant No. 1 is directed to pay Rs. Rs. 33,78,336/- along with simple rate of interest @ 6 % per annum from 24.05.2011 till date of decree and also entitled to future interest @ 9% per annum till its realization.
Cost of the suit is also awarded in favor of the plaintiff. Decree sheet be prepared accordingly.
File be consigned to record room.
Pronounced in the Open Court on 31.08.2022 (Gurmohina Kaur) Additional District Judge-03 South District: Saket: New Delhi CS No: 8815/16 Page no. 19 of 19