Delhi District Court
M/S Air 7 Seas Transport Logistic Inc vs Sh. Kanwal Chib on 9 September, 2019
IN THE COURT OF SH. HARGURVARINDER SINGH JAGGI,
ADDL. DISTRICT JUDGE - 02, SOUTH WEST DISTRICT,
DWARKA COURTS, DELHI
CS DJ ADJ No.: 516711/2016
CNR No.: DLSW010000762011
IN THE MATTER OF:
1. M/s Air 7 Seas Transport Logistic Inc.
Through Sh. Surya Dhamija, CEO
P.O. Box 611117
San Jose, CA 95161
United States of America
Through Special Power of Attorney -
Sh, Sudhir Kumar Srivastava
S/o Sh. Mahavir Prasad Srivastava
R/o H.No. 497 - B, Gali No. 16
Sadh Nagar, New Delhi - 110045 ... Plaintiff
Versus
1. Sh. Kanwal Chib
Through Managing Director / Director / Manager
JAS Forwarding Worldwide Pvt. Ltd.
2nd Floor, 'A' Wing Commercial Plaza
Radisson Hotel, National Highway - 8
New Delhi - 110037
CS DJ ADJ No. 516711/2016
Page No. 1/43
2. Ms. Gunjan Kashayap
Through Managing Director / Director / Manager
JAS Forwarding Worldwide Pvt. Ltd.
2nd Floor, 'A' Wing Commercial Plaza
Radisson Hotel, National Highway - 8
New Delhi - 110037
3. M/s Koyana Logistic (India) Pvt. Ltd.
Through Managing Director / Director / Manager
JAS Forwarding Worldwide Pvt. Ltd.
2nd Floor, 'A' Wing Commercial Plaza
Radisson Hotel, National Highway - 8
New Delhi - 110037
Through Kanwal Chib
4. M/s Sound Solution
GFL 91, Bharat Nagar
NFC, New Delhi - 110048
5. M/s Vibrations Indoor & Outdoor Advertising
B - 274, First Fl
Okhla Industrial Area, Phase - 1
New Delhi - 110020
6. M/s Manna Clinic and Maternity Home & Eye Care
C/o Dr. Mrs. Basant Malhotra
WZ - 1367, Rani Bagh
Delhi - 110034 ... Defendants
Date of institution of suit: 12.01.2011
Date of judgment reserved: 08.07.2019
Date of pronouncement of judgment: 09.09.2019
CS DJ ADJ No. 516711/2016
Page No. 2/43
JUDGMENT
1. The plaintiff has preferred a summary suit under Order XXXVII of the Code of Civil Procedure, 1908 (hereinafter "CPC") for recovery of $7,783.73/- (USD Seven thousand seven hundred eighty three and seventy three cents only) or equivalent amount in Indian Rupees along with pendente lite and future interest @18% per annum against the defendants.
Facts
2. The facts of the case in a nutshell are that the plaintiff, namely, M/s Air 7 Seas Transport Logistic Incorporation, an international freight forwarder based out of the State of California, United States of America provided services to the defendant No. 3, namely, Koyana Logistics (India) Private Limited (hereinafter "defendant No. 3") and defendant No. 1, namely, Kanwal Chib (hereinafter "defendant No.1"), who is the director of the defendant No. 3. The defendant No. 2, namely, Gunjan Kashyap (hereinafter "defendant No.2) is an employee of the defendant No. 3 has been impleaded, as one of the defendants, as she handled the business operation and accounts of international customers. The defendant Nos. 4 to 6, namely, M/s Sound Solution (defendant No. 4), M/s Vibrations Indoor & Outdoor Advertising (defendant No. 5) and M/s Manna Clinic and Maternity Home & Eye Care (defendant No. 6) are the consignees/importers, whose shipment were handled and dispatched by the plaintiff at the behest of the defendant No. 1. The plaintiff has preferred the summary CS DJ ADJ No. 516711/2016 Page No. 3/43 suit for recovery of money against the defendants on the basis that after having availed the services of the plaintiff, the defendants failed to make the payment for the invoices raised by the plaintiff. Pleadings
3. The plaintiff has preferred the plaint against the defendants, through its duly appointed and constituted attorney, namely, Sudhir Kumar Srivastava. As per the averments in the plaint, the plaintiff is an international freight forwarder based out of Houret Milpitas, California, United States of America.
4. The plaintiff has averred in the plaint that the defendant No.1 was facing some difficulty with regard to importing consignments from USA, as he had no point of contact in USA. The defendant No.1 sought help of Sudhir Kumar Srivastava who suggested the name of the plaintiff company. The defendant No.1 contacted the CEO of the plaintiff company with regard to arranging the shipment of consignment belonging to the clients of the defendant company. After numerous telephonic conversations and discussions, the plaintiff, defendant Nos.1, 2 and 3 agreed to work and render personal assistance with regard to shipment from United States of America to Delhi. The plaintiff has averred that over the period of time, particularly from the months of August 2009 to December 2009, the plaintiff shipped four different consignments at the behest of defendant Nos. 1 to 3 against which the invoices were raised in ordinary course of business.
CS DJ ADJ No. 516711/2016 Page No. 4/435. The gravamen of the plaintiff averred in the plaint against the defendants is that after having availed the services of the plaintiff, the defendant Nos.1, 2 and 3 failed to honour their commitment in making payment against the invoices raised. The plaintiff has averred that not only he repeatedly wrote emails to the defendant Nos.1, 2 and 3 but also contacted them telephonically. It is averred by the plaintiff that the defendants gave assurance that they would remit the outstanding amount to the plaintiff at the earliest. It is averred by the plaintiff that in the emails exchanged amongst the plaintiff and defendant Nos. 1, 2 and 3, the defendants have acknowledged their liability of outstanding amount. The plaintiff has averred that neither there has been delay in shipment of the consignment nor any damage was caused to the consignment forwarded by the plaintiff from USA to Delhi airport. It is also averred by the plaintiff that the defendants have resiled from their commitment and have became dishonest.
6. The plaintiff has averred in its plaint that despite emails sent by the plaintiff to the defendant Nos. 1, 2 and 3 and no payment released by them against the invoices raised by the plaintiff, the plaintiff issued a legal notice dated 19.08.2010 and called upon the defendants to pay the outstanding amount of $7,783.73/- (USD Seven thousand seven hundred eighty three and seventy three cents only). It is averred by the plaintiff that despite receiving the legal notice dated 19.08.2010, the defendant Nos. 1, 2 and 3 failed to reply to the notice and above all did not make any payment against the outstanding amount. Hence, the CS DJ ADJ No. 516711/2016 Page No. 5/43 present summary suit under Order XXXVII, CPC, seeking recovery of $7,783.73/- (USD Seven thousand seven hundred eighty three and seventy three cents only).
7. The defendant Nos.1, 2 and 3 filed a joint written statement wherein they have denied the plaintiff's claim for the reason being a false and frivolous claim. The defendant Nos. 1 to 3 have averred in their written statement that the plaintiff did not approach the court with clean hands and no relief shall be granted to the plaintiff. The defendants in their written statement have also averred that plaint preferred by the plaintiff is neither signed nor verified by a competent person and the plaint ought to be dismissed on this ground. It is also averred in their written statement that the authorised representative of the plaintiff at that point in time was the director of the defendant No.
3.
8. The defendant Nos. 1 to 3 in the written statement have admitted that Sudhir Kumar Srivastava introduced the plaintiff to the defendant No. 3. However, the defendants have averred that Sudhir Kumar Srivastava did not disclose to the plaintiff that defendant No. 3 was his venture.
9. The defendant Nos. 1 to 3 in their written statement have admitted that the defendant No. 3 only brought two shipments through the plaintiff and the payment of the same was withheld at the request of Sudhir Kumar Srivastava, who at that point in was the director of defendant No. 3 citing the reason that he has $1000 of pending CS DJ ADJ No. 516711/2016 Page No. 6/43 commission recoverable from the plaintiff. The defendants have also averred that the amount of the first two invoices is also not outstanding, as the same was adjusted by them with the plaintiff.
10. The defendants have also urged the defence with regard to the remaining two invoices out of the total four unpaid invoices, as they pertain to the personal consignments of Sudhir Kumar Srivastava. It is also averred by the defendant Nos. 1 to 3 in their written statement that they were shocked to receive the court notice and to gain knowledge that Sudhir Kumar Srivastava was the constituted attorney of the plaintiff.
11. The defendant Nos. 1 to 3 in their written statement have also urged that the plaintiff has not maintained a statement of account in respect of the answering defendants in regular course of business, as they only brought two shipments through the plaintiff and no shipments were brought either before or after the aforesaid two shipments. The defendants thereafter never dealt with the plaintiff company.
12. The defendant No. 1 and defendant No. 2 have averred that they never gave any personal guarantee to the plaintiff with regard to the dues and they cannot be sued in individual capacity.
13. The defendant No. 6 in her written statement urged that she is a proforma party and no claim against her had been claimed by the plaintiff. The defendant No. 6 in her written statement averred that no privity of contract exists between the plaintiff and herself.
CS DJ ADJ No. 516711/2016 Page No. 7/4314. The defendant No. 6 in her defence urged that neither the plaintiff nor the defendant Nos. 1 to 3 were appointed by her with regard to her import shipment. The defendant No. 6 urged that she appointed and availed services of M/s Nimit Cargo Movers as her agent to import consignment on her behalf and she even paid all their bills. The defendant No. 6 in the written statement has urged that the suit is bad for non-joinder of parties, as M/s Nimit Cargo Movers had not been impleaded by the plaintiff.
Questions
15. On completion of pleadings the following issues were framed by the court vide order dated 29.01.2013:
i. Whether the plaintiff is entitled to recover from the defendants an amount of US $7883.73? ... OPP.
ii. Whether the plaintiff is entitled to interest, if so, to what extent?...OPP.
iii. Relief.
16. To prove the issues, for which the onus was casted upon the plaintiff, Sudhir Kumar Srivastava (PW1) stepped into the witness box, whereas, the defendant No. 2, namely, Gunjan Kashyap (DW1) deposed as a witness for defendant Nos. 1 to 3, Dr. Basant Malhotra (D6W1) and Yagya Dutt Sharma (D6W2) deposed as witnesses for the defendant No. 6.
17. The plaintiff relied upon and proved the following documents:
S.No. Description and date, if any of the Exhibit Mark put CS DJ ADJ No. 516711/2016 Page No. 8/43 document on the document
(a) Copy of board resolution dated 08.06.2010 Ex.PW1/I
(b) Original copy of special power of attorney dated Ex.PW1/II 08.06.2010
(c) Copy of the documents forwarded to the Ex.PW1/III (Colly.) defendant Nos. 1 to 3
(d) Copy of the documents forwarded to the Ex. PW1/IV (Colly.) defendant Nos. 1 to 3
(e) Copy of the documents forwarded to the Ex.PW1/V (Colly.) defendant Nos. 1 to 3
(f) Copy of the documents forwarded to the Ex.PW1/VI (Colly.) defendant Nos. 1 to 3
(g) Certified copy of the statement of account Ex.PW1/VII
(h) Copy of email dated 05.12.2009 Ex.PW1/VIII
(i) Copy of email dated 06.12.2009 forwarded by Ex.PW1/IX defendant No. 2
(j) Copy of email dated 10.12.2009 forwarded by Ex.PW1/X the plaintiff
(k) Copy of email dated 10.12.2009 forwarded by Ex.PW1/XI the defendant
(l) Copy of email dated 13.04.2010 forwarded by Ex.PW1/XII the plaintiff
(m) Copy of email dated 13.04.2010 forwarded by Ex.PW1/XIII Sudhir Kumar Srivastava
(n) Copy of email dated 01.05.2010 forwarded by Ex.PW1/XIV the defendant
(o) Copy of legal notice dated 19.08.2010 along Ex.PW1/XV with proof of service
(p) Copies of email from 26.11.2009 to 11.12.2009 Ex.PW1/XVI CS DJ ADJ No. 516711/2016 Page No. 9/43
18. The defendant Nos. 1 to 3 did not file rely any documentary evidence.
19. The defendant No. 6 through two witnesses, D6W1 and D6W2 relied upon and proved the following documents:
S.No. Description and date, if any of the Exhibit Mark put document on the document
(a) Original TR6 challan Ex.D6W1/1
(b) Original bill of entry for home consumption Ex.D6W1/2
(c) Original debit note for air shipment Ex.D6W1/3
(d) Original receipt Ex.DW6/4
(e) Original receipt Ex.D6W1/5
(f) Original authority letter Ex.D6W2/1 Submissions by Counsel for the parties
20. Sh. Bijendra Singh, learned counsel for the plaintiff; Sh. Joydeep Sarma, learned counsel for the defendant Nos. 1 to 3, and Sh. Sudhir Jain, learned counsel for the defendant No. 6 advanced their arguments.
21. Shri Bijendra Singh, Ld. Counsel for the plaintiff submitted that the suit has been preferred by the plaintiff seeking recovery of money of unpaid invoices raised by the plaintiff against the defendant Nos. 1 to 3 for the services provided by the plaintiff to defendant No. 3. The learned counsel further submitted that the plaintiff is a freight forwarder based in USA, the defendant No. 3 is private limited company based in New Delhi, India, of whose defendant No. 1 is one of the directors and defendant No. 2 is an employee and officer of the CS DJ ADJ No. 516711/2016 Page No. 10/43 defendant No. 3. The learned counsel further submitted that the plaintiff along with the authorized representative, namely, Sudhir K. Srivastava (hereinafter "authorised representative") of the plaintiff helped the defendant No. 3 to settle and start its business operations. The learned counsel further submitted that the defendant No. 3 through the plaintiff imported four consignments from the USA and for which the defendant No. 3 failed to make the payment despite having availed the services rendered by the plaintiff.
22. Sh. Singh, learned counsel for the plaintiff submitted that it is not the case of the defendants that the delivery of the consignments was either short or goods suffered any damages during the shipment. The learned counsel further submitted that the plaintiff not only telephonically contacted the defendant No. 3 and its officers but also exchanged emails with the defendants and called upon them to make payment of the unpaid invoices. The learned counsel further submitted that even after lapse of considerable time the defendant Nos. 1 to 3 failed to make payment to the plaintiff and the plaintiff had no other resort but to issue notice to the defendants. Learned counsel further submitted that the defendant Nos. 1 to 3 even after receipt of the notice did not pay the amount, as per the invoices raised, the plaintiff had no other option than to institute the present suit for recovery of money along with interest against the defendants.
23. Ld. counsel for the plaintiff submitted that the suit preferred by the plaintiff against the defendants is for recovery of $7,783.73/-
CS DJ ADJ No. 516711/2016 Page No. 11/43(USD Seven thousand seven hundred eighty three and seventy three cents only) or equivalent amount in Indian currency. The counsel further submitted that defendant Nos. 1 to 3 admitted receiving two consignments and whereas about remaining two consignments they stated that they do not know the whereabouts of the same. Learned counsel submitted that the defendant No. 6 not only appeared before this court but also testified that she received her import consignment booked through M/s Nimit Cargo Movers and defendant No. 3. Learned counsel submitted that the two consignments denied by the defendant Nos. 1 to 3 were received on 23.11.2009 and 11.12.2009 and the acknowledgment with regard to the delivery of consignment at the point of destination has been duly admitted in the emails exchanged amongst the plaintiff and defendant Nos. 1 to 3, particularly by defendant No. 2.
24. Sh. Singh further submitted that defendant No. 6 (D6W1) during her cross-examination stated that she paid the entire money to M/s Nimit Cargo. Learned counsel further submitted that Yagya Dutt Sharma (D6W2) from M/s Nimit Cargo Movers on 20.03.2019 during his cross-examination stated that the logistics were arranged by Kanwal Chib (defendant No. 1) of M/s Koyana Logistics (India) Pvt. Ltd. (defendant No. 3 herein) and M/s Nimit Cargo made payment on behalf of Dr. Basant Malhotra to Kanwal Chib. Learned counsel further submitted that D6W2 testified that all the professional charges of defendant No. 3 were paid to the defendant No. 1.
CS DJ ADJ No. 516711/2016 Page No. 12/4325. The counsel for the plaintiff further drew the attention of the court to the cross examination of defendant No. 6 (D6W1), wherein she has unequivocally stated, to have handed over all the requisite documents to Kanwal Chib. The learned counsel further submitted that the defence raised by the defendant Nos. 1 to 3 is baseless and the defendants have knowingly withheld the rightful payment of the plaintiff. The counsel further submitted that the admitted facts are that all the four consignments were duly delivered to the defendant No. 3, as per their instructions. With regard to the issue No. 2 for the payment of interest on the unpaid amount, the learned counsel submitted that all the invoices - Ex.PW1/IV (Colly.) -- Ex.PW1/VII (Colly.) have due mention that in case of delay in payment, interest @ 18% per annum shall be applicable.
26. Learned counsel for the plaintiff placed reliance upon the judgment passed by the Hon'ble High Court of Bombay in Jatin Koticha v. VFC Industries Pvt. Ltd.1 on the proposition that the plaintiff has preferred the summary suit on the basis of the invoices, which have been duly proved by the plaintiff.
27. The learned counsel for the plaintiff placed reliance upon the judgment passed by the Division Bench of the Hon'ble High Court of Delhi in Jasjeet Singh Marwaha v. Union of India2 and submitted that in the present case, the defendant No. 1 to 3 have denied that any amount is payable to the plaintiff, however, for clearance of imported 1 (2008) SCC OnLine Bom 1092 :: (2008) 2 Bom CR 155 2 2009 (239) ELT 407 (Del) CS DJ ADJ No. 516711/2016 Page No. 13/43 goods, bill of entry, certificate for home consumption, etc. establish and prove that the defendant Nos. 1 to 3 availed the services of the plaintiff and thereafter turned dishonest and intentionally withheld the payment against the invoices raised. Learned counsel further submitted that it has come on record by the admission made by the defendant No. 6 that she imported certain goods and the payment was made by her to the defendant No. 1 through her intermediary, M/s Nimit Cargo Movers but however, the defendant Nos. 1 to 3 failed to make the payment to the plaintiff.
28. Learned counsel for the plaintiff submitted that the original bills stand proved in accordance with law and to buttress his submission placed reliance upon the judgment passed by the Hon'ble High Court of Delhi in Truman IT Infrastructure & Services Ltd. v. Kalakriti Interiors.3
29. Sh. Joydeep Sarma, learned counsel for the defendant Nos. 1 to 3 valiantly contended the submissions advanced by the learned counsel for the plaintiff.
30. Learned counsel for the defendant Nos. 1 to 3 flanked his attack on the testimony of the sole witness of the plaintiff, PW1. Sh. Sarma, learned counsel submitted that the testimony of PW1 cannot be relied upon, as he is not a competent witness. The reasons cited by the learned counsel for the defendant Nos. 1 to 3 questioned the standing and veracity of PW1.
3 2018 (168) DRJ 350 CS DJ ADJ No. 516711/2016 Page No. 14/43
31. Firstly, the suit is based on the statement of accounts and entry by entry has to be proved, whereas PW1 has stated in his testimony that he cannot vouch for the statement of accounts filed by the plaintiff. Learned counsel submitted that PW1 admitted that emails Ex.PW1/IX to Ex.PW1/XII were neither addressed to him nor marked to him. Learned counsel further submitted that PW1 stated that he is not aware from which computer the emails were exchanged.
32. Secondly, during the cross-examination of PW1, nowhere in the testimony it has come out that it is the defendant Nos. 1 to 3, who owe money to the plaintiff. Learned counsel further submitted that the emails filed by the plaintiff along with the list of documents cannot be relied upon merely because no certificate under Section 65B, Indian Evidence Act, 1872, has been filed by the plaintiff, and it is for that reason the printout of emails cannot be relied by the plaintiff, as the same are not proved.
33. Sh. Sarma, learned counsel further submitted that the onus to prove the issues was casted upon the plaintiff, and the plaintiff has miserably failed to shift the onus and the suit preferred by the plaintiff ought to fail, as the same stands not proved. Learned counsel further submitted that the plaintiff has failed to prove that the consignments in question were forwarded by the defendant No. 3 with the help of the plaintiff.
34. To buttress his submissions, learned counsel for the defendant Nos. 1 to 3 placed reliance upon the law reports Bharat Aluminium CS DJ ADJ No. 516711/2016 Page No. 15/43 Co. Ltd. v. M/s Maharashtra Aluminium Corporation 4 and Madras Cements Ltd. v. T.M.T. Kannammal Educational Trust & Anr. 5 on the proposition that the plaintiff failed to prove the statement of accounts, as per Section 34 of the Indian Evidence Act, 1872. Learned counsel for the defendant Nos. 1 to 3 submitted that the plaintiff cannot prove its case on conditional admission and it is for that reason to prove, the statement of accounts, as a document, was of great relevance for the plaintiff to succeed against the defendants. Learned counsel submitted the same has not been proved by the plaintiff in accordance with law and for that reason the suit must fail.
35. With regard to the admission in the paragraph 9 of the written statement, learned counsel for the defendant Nos. 1 to 3 submitted that a conditional acceptance is no admission in the eyes of law. The learned counsel further submitted that it is the plaintiff who has failed to prove its own case. The counsel strenuously submitted that the plaintiff miserably failed to prove the shipment documents, and thus, the present suit must fail for that reason also. Learned counsel placed reliance upon the judgment pronounced by Hon'ble High Court of Delhi in the case of Sunil Mittal Properties of M/s Shree Shyam Packaging Industries v. M/s LML Ltd.,6 wherein it was held that a conditional admission is no admission in the eyes of law. Sh. Sarma, learned counsel concluded his arguments on the note that the plaintiff 4 (2009) 110 DRJ 333 :: (2009) 159 DLT 489 :: (2009) 80 AIC 304 (Del) 5 (2015) 1 LW 312 6 (2011) 123 DRJ 249 CS DJ ADJ No. 516711/2016 Page No. 16/43 has failed to prove its case and the suit must be dismissed with exemplary costs, as the defendant Nos. 1 to 3 had been dragged in unwarranted round of litigation by the plaintiff and its constituted attorney.
36. Sh. Sudhir Jain, learned counsel for the defendant No. 6 advanced his arguments and submitted that defendant No. 6 was the importer, who imported the goods from USA through M/s Nimit Cargo Movers and the defendant No. 3, namely, M/s Koyana Logistics (India) Pvt. Ltd. Learned counsel submitted that it has come on record that the defendant No. 6 paid the entire amount due to M/s Nimit Cargo Movers and the goods are always released after payment is made by the importer/consignee. Learned counsel further submitted that there was no privity of contract between the plaintiff and defendant No. 6, and thus, the present suit has been filed by the plaintiff to merely harass the defendant No. 6.
37. Sh. Jain, learned counsel further submitted that the plaintiff did not raise any demand and/or invoice against the defendant No. 6. Learned counsel stated that neither any averment has been made by the plaintiff in its plaint against the defendant No. 6 nor any relief has been sought against her. The learned counsel for the defendant concluded his arguments on the note that the defendant No. 6 is not liable to pay any money to the plaintiff.
38. Sh. Bijendra Singh, learned counsel for the plaintiff rejoined his arguments and submitted that the reliance placed upon by the CS DJ ADJ No. 516711/2016 Page No. 17/43 defendant Nos. 1 to 3 on the aforesaid three judgments is misplaced, as the same are on Section 34 of the Indian Evidence Act, 1872 and not relevant to the plaintiff's case. Learned counsel further submitted that the plaintiff's case is not based upon statement of accounts, as portrayed by the counsel for the opposite parties. Learned counsel submitted that the plaintiff's case is based upon email, invoices, etc. Learned counsel for the plaintiff further stated that the argument with regard to the non-filing of certificate under Section 65B of the Indian Evidence Act, 1872 is an after thought, as the defendant Nos. 1 to 3 on 21.10.2013 did not take and flag any objections to the mode of proof of the documents proved by the plaintiff. Learned counsel further submitted that substantial evidence has come on record in favour of the plaintiff and against the defendants.
39. Sh. Singh, learned counsel for the plaintiff submitted that the judgments relied by the plaintiff strengthen its case and a money decree along with interest shall be passed in favour of the plaintiff and against the defendants.
Reasoning & Findings
40. I, have perused the complete case record and considered and deliberated the submissions advanced by the learned counsel for the plaintiff. My issue-wise findings ensue in the following paragraphs of this judgment.
Issue No. 1 CS DJ ADJ No. 516711/2016 Page No. 18/43Whether plaintiff is entitled to recover from the defendants an amount of $7883.73?
41. The onus to prove issue No. 1 was casted upon the plaintiff. The basic issue to be decided is whether the plaintiff is entitled to recover the monies against its unpaid invoices from the defendants.
42. At the outset, I would observe that the plaintiff preferred a summary suit on the basis of four invoices dated 13.08.2009, 05.10.2009, 23.11.2009 and 11.12.2009, which have been filed in original by the plaintiff. The invoice value of the said four invoices are $451.00, $363.40, $3,320.40 and $3,748.93, respectively and hence the unpaid amount against the four invoices computes to be $7,783.73/- (USD Seven thousand seven hundred eighty three and seventy three cents only). It is further observed that the defendant No. 5 was deemed to be served vide order dated 19.07.2011 and thereafter on 06.03.2012 the suit was decreed qua defendant No. 5. Whereas, the defendant No. 4 was served by way of publication on 31.07.2012 and with no appearance on record on behalf of the defendant No. 4, the suit was also decreed qua the defendant No. 4 on 29.01.2013.
43. The defendant Nos. 1 to 3 in their written statement have urged the contention that the suit by the plaintiff has neither been filed, signed and instituted by a duly authorized person. The defendant Nos. 1 to 3 have also contended that Sh. Sudhir Kumar Srivastava, through whom the present suit has been instituted was not competent to sign, verify and file the present suit. Sh. Sarma, learned counsel for the CS DJ ADJ No. 516711/2016 Page No. 19/43 defendant Nos. 1 to 3 had also contended that the constituted attorney of the plaintiff was working as director with the defendant No. 3 at the relevant time. The counsel for the defendant No. 3 during his oral arguments had contended and drawn attention to the testimony of PW1, wherein, PW1 had admitted that he had no personal knowledge about the facts of the transaction between the plaintiff and the defendant No. 3 prior to filing of the suit.
44. With regard to the above contention it is observed that the plaintiff has proved a board resolution dated 08.06.2010 - Ex.PW1/I and power of attorney dated 08.06.2010 Ex.PW1/II in favour of the constituted attorney, namely, Sudhir Kumar Srivastava. It is further observed that vide order dated 10.05.2019, an application moved by the plaintiff under Order VII, Rule 14, CPC seeking permission to place on record the general power of attorney 17.09.2012 was allowed subject to costs.
45. I do not find any merit in the contention raised by the learned counsel for the defendant Nos. 1 to 3 on the maintainability of the suit on the ground of lack of competence of the attorney holder in filing of the suit, as not only Ex.PW1/I and Ex.PW1/II - board resolution dated 08.06.2010 and power of attorney dated 08.06.2010 but also the power of attorney dated 17.09.2012 duly empowered the constituted attorney to sign and verify the plaint filed on behalf of the plaintiff company.
CS DJ ADJ No. 516711/2016 Page No. 20/4346. I place reliance upon the pronouncement of the Apex Court in United Bank of India v. Naresh Kumar and Ors. 7 wherein, it was held that the plaint can be signed and verified by a person duly authorised. A company is a juristic entity, who can sue and be sued in its own name. On reading Rule 14 of the Order VI along with Order XXIX, Rule 1, CPC it would appear that even in the absence of any formal letter of authority or power of attorney having been executed a person referred to Rule 1 of the Order XXIX can by virtue of the office which he holds, sign and verify the pleadings on behalf of the corporation. In addition thereto and dehors Order XXIX, Rule 1, CPC, as a company is a juristic entity, it can duly authorise any person to sign the plaint or the written statement on its behalf and this would suffice and be in compliance of Order VI, Rule 14, CPC. The Apex Court also observed that it would be a travesty of justice if the plaintiff bank is to be non-suited for a technical reason which does not go to the root of the matter. It was held that the suit preferred by the plaintiff bank did not suffer from any jurisdictional infirmity and the only defect which was alleged by the defendants was curable.
47. In view of the ratio of United Bank of India v. Naresh Kumar and Ors.8 it is held that the constituted attorney appointed by the plaintiff company is in consonance with law.
7 (1996) 6 SCC 660 8 ibid.
CS DJ ADJ No. 516711/2016 Page No. 21/4348. Before proceeding further, I would like to observe and hold that the since the plaintiff has failed to prove that the defendant No. 1 and defendant No. 2 gave personal guarantee and assurance to the plaintiff with regard to the contract between them and for the payment of the invoices, the defendant Nos. 1 and 2 cannot be held liable for the outstanding invoices raised by the plaintiff against the defendant No.
3. It is an admitted position that the defendant No. 3 is a duly incorporated private limited company and the defendant No. 1 is the director and the defendant No. 2 is the employee of the defendant No. 3 company. It is also observed that there exists no privity of contract between the plaintiff and the defendant No. 6. Thus, sans defendant Nos. 4 and 5, who were proceeded ex parte and an ex parte judgment and decree dated 29.01.2013 was passed against them, the liability of unpaid and outstanding invoices, if any, can only be fastened upon the defendant No. 3 and not upon the defendant Nos. 1, 2 and 6.
49. The general principle with regard to the burden of proof is that, one who asserts must prove. Hence, the burden of proof rests on the party, who substantially asserts the affirmative of the issue and not upon the party who denies it. Accordingly, the issue must be proved by the party who asserts it and not by the party who denies it. Section 102 of the Indian Evidence Act, 1872, clearly provides that the burden of adducing evidence rests on the party who would lose, if no evidence is led by any of the parties. But it is to be noted that the burden to prove does not remain static and when a party adduces such evidence, as will CS DJ ADJ No. 516711/2016 Page No. 22/43 support the prima facie case, the onus shifts on the defendant who has then to adduce rebuttal evidence to meet the case made out by the party.
50. In the above regard, fruitful reliance may be placed upon the decision rendered by the Apex Court in Union of India v. Moksh Builders and Financiers Ltd. and Others9 wherein, it was laid down as under:
"The burden of proof is, however, not static, and may shift during the course of the evidence. Thus while the burden initially rests on the party who would fail if no evidence is led at all, after the evidence is recorded, it rests upon the party against whom judgment would be given if no further evidence were adduced by either side i.e. on the evidence on record. Where evidence has been led by the contesting parties on the question in issue, abstract considerations of onus are out of place, and the truth or otherwise of the case must always be adjudged on the evidence led by the parties. This will be so if the Court finds that there is no difficulty in arriving at a definite conclusion."
51. The plaintiff being a freight forwarder based out of the State of California, USA preferred the present suit through a duly appointed and constituted attorney, namely, Sudhir Kumar Srivastava on the basis of a board resolution dated 08.06.2010 - Ex.PW1/I and power of attorney dated 08.06.2010 - Ex.PW1/II. The defendant Nos. 1 to 3 have lodged a strong contention that the suit has not been preferred by 9 AIR 1977 SC 409 CS DJ ADJ No. 516711/2016 Page No. 23/43 the competent person, as the attorney of the plaintiff was the director of defendant No. 3 for the relevant period during which the invoice were raised and he cannot be permitted in law to lodge a claim on behalf of the plaintiff against the defendants.
52. The case of the plaintiff is that after negotiations and telephonic calls, the deal was struck on four point modalities - (1) plaintiff would undertake shipment of consignments on behalf of the defendant No. 3 from any port in USA to Delhi airport; (2) all the expenses in USA including air freight, air handling and incidental expenses were to be paid by the plaintiff in USA and after shipment, the plaintiff will forward the pre-alert documents along with air way bill, etc. and raise an invoice upon the defendant company through email and other modes; (3) defendant No. 3 was to make the total payment in US dollars against the invoices raised by the plaintiff within 15 (fifteen) days from the date of receipt of invoice through wire transfer, and (4) the plaintiff company was to maintain a credit account in respect of the outstanding payment with regard to the status of payment by the defendant No. 3.
53. The plaintiff has averred that there has been no complaint with regard to the status, delivery of consignments handled and forwarded by the plaintiff, above all the delivery has been accepted by the defendant No. 3.
54. It is observed that out of the four invoices raised by the plaintiff upon the defendant No. 3 not only the defendant Nos. 1 to 3 in their CS DJ ADJ No. 516711/2016 Page No. 24/43 written statement have admitted bringing in only two shipments through the plaintiff. The relevant extract from the paragraph Nos. 5 and 6 of the written statement of the defendant Nos. 1 to 3 are reproduced as under:
"5. The Defendant No. 3 brought only two shipments through the Plaintiff. The details of the two shipments are given hereunder:
Airway No. Air 7 Seas Date Consignee Amount
Invoice No.
589-9342- A7 SI 44205 13.08.2009 Kabir Leathers USD 451.00
7961
297-6852- A7 SI 44635 24.09.2009 Sound USD 363.40
5363 Solutions
TOTAL USD 814.40
That the above shipments were billed by the
Defendant No. 4 and payment was recovered from
the consignee in Delhi accordingly as per books and records of the Defendant No. 3 Company. That the above payment was payable to the plaintiff company and there was a mail also from the staff of Defendant no. 3 confirming that this amount is payable.
6. Since Mr. Sudhir Kumar Srivastava was director in both the Defendant No. 3 as well as the Plaintiff Company, he personally told the answering Defendants to hold the payment of the Plaintiff Company as he had some old issues of pending commission of USD 1000.00 recoverable from the Plaintiff Company. Mr. Sudhir Kumar Srivastava said that the payment will be adjusted against CS DJ ADJ No. 516711/2016 Page No. 25/43 these payables and he will talk with Mr. Surya Dhamija (CEO of Plaintiff Company) and settle the same. Mr. Sudhir Kumar Srivastava said that the Defendant No. 3 should not therefore pay the above mentioned amount to the Plaintiff Company and that the same will be settled in the books accordingly. That the Answering Defendants considered the matter resolved there and then."
[Emphasis added by underlining and highlighting of text]
55. With regard to the remaining two invoices i.e. invoice dated 17.11.2009 and 09.12.2009, the defence urged by the defendant Nos. 1 to 3 is that Sudhir Kumar Srivastava brought his own personal consignments through the plaintiff company and got invoices raised upon the defendant No. 3 through the plaintiff. The defendant No. 3 has urged the defence that the invoices raised by the plaintiff are forged. It is observed that the defendant Nos. 1 to 3 have also averred in their written statement that Sudhir Kumar Srivastava (constituted attorney of the plaintiff herein) was in a position to issue invoices to the plaintiff on behalf of the defendant No. 3 and committed criminal breach of trust. It has come in admission by DW1 that no complaint to the plaintiff was lodged by the defendant No. 1, who is the director of the defendant No. 3 with regard to the fraud committed by Sudhir Kumar Srivastava, as he brought his own consignments.
56. The reliance placed by the learned counsel for the defendant Nos. 1 to 3 upon the judgment pronounced by Hon'ble High Court of CS DJ ADJ No. 516711/2016 Page No. 26/43 Delhi in the case of Sunil Mittal Properties of M/s Shree Shyam Packaging Industries v. M/s LML Ltd.,10 is misplaced and does not come to the aid of the defendant Nos. 1 to 3.
57. With all due deference it is observed that the facts of the case before the Hon'ble High Court were clearly distinguishable, as the plaintiff had filed a money recovery suit against the defendant on account of non-payment of invoices and therein the defendant moved an application under Section 22(1) of the Sick Industrial Companies (Special Provisions) Act, 1985 on the ground that the defendant company was a sick company and the suit preferred by the plaintiff against the defendant company be adjourned sine die and the recovery of money claim cannot proceed and continue with the permission of BIFR.
58. The learned counsel for the defendant Nos. 1 to 3 placed granular reliance upon the contents of paragraph No. 9 of the said judgment stating that the conditional admission of liability is no admission in eyes of law.
59. I have carefully read and examined the judgment and from the contents of paragraph No. 9, I can only conclude that the contents of paragraph No. 9 of Sunil Mittal Properties of M/s Shree Shyam Packaging Industries v. M/s LML Ltd., 11 are mere submissions and contentions of the counsel for the parties. It is observed that the same cannot be held as an applicable legal principle to the case at hand. 10 (2011) 123 DRJ 249 11 (2011) 123 DRJ 249 CS DJ ADJ No. 516711/2016 Page No. 27/43
60. I, must not refrain to state that the submissions advanced by the learned counsel for the defendant Nos. 1 to 3 to the effect that the admission by the defendant Nos. 1 to 3 are conditional admissions are not impressive and the same are fallacious. It is observed, particularly in the light of the admission by the defendant Nos. 1 to 3 in their written statement and by DW1 during her cross-examination with regard to the two invoices dated 13.08.2009 and 24.09.2009 the admission cannot be held to be a conditional acceptance and/or admission. It is observed that not only the defendant Nos. 1 to 3 in their written statement have unequivocally admitted having brought (read imported) two shipments through the plaintiff but also their sole witness, DW1 stated that she has personal knowledge that an amount of $814.00 is outstanding against the defendant No. 3 payable to the plaintiff. DW1 also admitted that defendant No. 3 have imported several consignments through plaintiff. DW1 also admitted that she on behalf of the defendant No. 3 intimated the plaintiff about the description of the item, quantity and value of the product. The DW1 also admitted that the shipment documents such as airway bills, house airway bills, master airway bills, cargo manifest were prepared by the plaintiff company under the instruction of the defendant No. 3. It is observed that it has come on record that there has been no discrepancy with regard to non-adherence to the general procedure involved for import of goods and freight forwarding on behalf of the plaintiff.
CS DJ ADJ No. 516711/2016 Page No. 28/4361. The defendant Nos. 1 to 3 in their written statement have urged the defence with regard to the first two invoices out of the four unpaid invoices that Sudhir Kumar Srivastava asked them to withhold the payment of $814, as he had an adjustment of unpaid commission to the tune of $1000 with the plaintiff. DW1 during her cross- examination on 29.01.2018 stated that she does not remember the date and year when the defendant No. 1 informed her to hold the payment of plaintiff company, as per instruction of Sudhir Kumar Srivastava. DW1 further stated that defendant No. 1 informed her about the same by an email written to her and the accounts department. DW1 admitted that she has not filed the copy of the said email. DW1 also stated that she did not check with Sudhir Kumar Srivastava with regard to old pending commission of $1000.
62. The Apex Court in Gopal Krsihnaji Ketkar v. Mohamed Haji Latif12 has held that even if the burden of proof does not lie on a party the court may draw an adverse inference, if he withholds important documents in his possession which can throw light on the facts in issue. The Apex Court held that it is not a sound practice for those desiring to rely upon a certain state of facts to withhold from the court the best evidence which is in their possession, which could throw light upon the issues in controversy and to rely upon the abstract doctrine of onus of proof.
12 AIR 1968 SC 1413 CS DJ ADJ No. 516711/2016 Page No. 29/43
63. DW1 during her cross-examination admitted that it is only defendant No. 3 or its authorised signatory, who could receive the delivery order from the concerned airlines for the shipment in process. DW1 during her cross-examination admitted that the defendant Nos. 1 to 3 have not filed any book of account and records for the items with regard to the contents of paragraph No. 4 and 12 of her evidence by way of affidavit - Ex.DW1/A. DW1 denied the suggestion that the defendant No. 3 did not file books of accounts, records pertaining to import of items in question, as it would expose defendant No. 3 with regard to the plaintiff's claim for the other shipments referred in the plaint.
64. DW1 during her cross-examination admitted that no complaint was written by the defendant No. 1 to the plaintiff with regard to the commission of fraud by Sudhir Kumar Srivastava for having brought his own consignment through the defendant No. 3 and the plaintiff. DW1 also admitted that neither herself nor defendant No. 3 wrote any letter to the plaintiff informing about the instructions given by Sudhir Kumar Srivastava not to make the payment of $1000, as he had some old issues to settle with the plaintiff.
65. DW1 also admitted that the plaintiff did raise demand of outstanding amount. She voluntarily stated that numerous reminders were received by defendant No. 3 and Sudhir Kumar. The relevant extract of the DW1's cross-examination recorded on 18.01.2019 is reproduced as under:
CS DJ ADJ No. 516711/2016 Page No. 30/43"... ....
It is correct that Ex.PW-1/XVI is the e-mail dated 30.04.2010 and a reply to the same e-mail dated 01.05.2010 have been sent from my e-mail address (Vol., my e-mail address/account [email protected] was access by three different people from the office, namely, Anshul, Kanwal Chib and Naresh Rana). It is correct that in that e-mail, defendant no. 3 had admitted that an amount of US$ 700 was owed to the US Counter Part of Air 7 Seas. At this stage, witness states that she is not aware about the contents of e-mail as the same has not been sent by her. It must have been sent by any of the above named three persons.
It is correct that the defendant no. 3 did not reply to the legal notice sent by the plaintiff company.
It is wrong to suggest that not two but four shipments were sent through defendant no. 3 company and defendant no.3 is liable to make the payment of US$7,883.73 to the plaintiff company.
It is correct that Anshul was working with defendant no.3.
Ques: Whether any cases are pending against defendant Nos. 1 to 3 filed by Raina International.
Question is disallowed as it is not relevant for the present suit. The plaintiff has filed the suit for recovery of US$778.73(sic) against the defendants of whom Raina International is not a party.CS DJ ADJ No. 516711/2016 Page No. 31/43
It is wrong to suggest that I am deposing falsely."
66. Out of the four invoices, the non-payment of the two invoices is admitted and with regard to the remaining two unpaid invoices dated 23.11.2009 and 11.12.2009, the defence urged by the defendant Nos. 1 to 3 is that Sudhir Kumar Srivastava (constituted attorney of the plaintiff herein) imported his own consignments through the plaintiff and thus no amount is to be paid by the defendant Nos. 1 to 3. It is observed that with regard to the fourth invoice dated 11.12.2009, the goods in question were imported by M/s Manna Clinic and Maternity Home & Eye Care, who has been impleaded as defendant No. 6 through Dr. Mrs. Basant Malhotra. It is observed that not only defendant No. 6 filed her written statement but also the defendant No. 6 (D6W1) along with one more witness, namely, Yagya Dutt Sharma (D6W2) of M/s Nimit Cargo Movers stepped in the witness box.
67. Dr. Basant Malhotra deposed as D6W1 on 20.03.2019 and relied upon and proved the documents - Ex.D6W1/1 to Ex.D6W1/5. D6W1 during her cross-examination stated that her clinic is operational since 1978. D6W1 stated to have full knowledge about all the consignments with regard to Ex.DW6/1 to Ex.D6W1/5. On being shown Ex.PW1/6 (sic) read as Ex.PW1/VI [at page No. 23 to 27] and asked D6W1 stated that the items imported by her, as mentioned in Ex.D6W1/1 to Ex.D6W1/5 are same as Ex.PW1/6 (sic) to be read as Ex.PW1/VI [at page No. 23 to 27]. D6W1 voluntarily stated that the CS DJ ADJ No. 516711/2016 Page No. 32/43 imported goods were cleared by M/s Nimit Cargo and she made full payment to Nimit Cargo and no amount towards M/s Nimit Cargo is outstanding on her behalf.
68. Yagya Dutt Sharma (D6W2) along with the authority letter (Ex.D6W2/1) in his favour also proved the TR6 challan (Ex. D6W1/1), bill of entry for home consumption (Ex.D6W1/2), debit note for air shipment (Ex.D6W1/3) and the receipts marked Ex.D6W1/4 and Ex.D6W1/5. It is observed that D6W2 during his cross-examination stated that he has been working with M/s Nimit Cargo since last 12 - 13 years and he has personal knowledge and information about the shipment. D6W2 further stated that Dr. Basant Malhotra handed over documents, such as commercial invoice, original packing list, original airway bill, copy of IEC code, copy of PAN card and catalogue of the equipment imported. D6W2 voluntarily stated that he did try to trace the documents but he could not find them as the documents were more then 10 (ten) years old and even their office had shifted from the previous location.
69. It is observed that D6W2 was put across a specific question that at what stage was he involved in the import of the shipment? D6W2 retorted that the logistics were arranged by Kanwal Chib (defendant No. 1) of M/s Koyana Logistics (India) Pvt. Ltd (defendant No. 3). He further stated that M/s Nimit Cargo Movers made payment on behalf of Dr. Basant Malhotra to Kanwal Chib of M/s Koyana Logistics (India) Pvt. Ltd. D6W2 voluntarily stated that without payment the CS DJ ADJ No. 516711/2016 Page No. 33/43 delivery order is not released by the logistics company - M/s Koyana Logistics (India) Pvt. Ltd. D6W2 further stated that M/s Nimit Cargo Movers made payment of all the professional charges of M/s Koyana Logistics (India) Pvt. Ltd. to Kanwal Chib.
70. At this stage, I deem appropriate to delve into the elementary aspect of an examination of a witness. There are three stages of examination of a witness i.e. (1) examination-in-chief, (2) cross- examination by the adversary party and (3) re-examination by the party who had called such a witness after the cross-examination.
71. Section 137 of the Indian Evidence Act, 1872 defines examination-in-chief as examination of a witness by the party who calls him for giving evidence. The examination of that witness by the adverse party is called cross-examination. The examination of that witness subsequent to the cross-examination, by the party who called him is called re-examination. Section 138 of the Indian Evidence Act, 1872 lays down the order of examination and provides that a witness shall be first examined-in-chief, then (if the adverse party so desires) cross-examined, and then (if the party calling him so desires) re- examined. The examination-in-chief and cross-examination must relate to relevant facts. The cross-examination need not be confined to facts to which the witness testified on his examination-in-chief. The re-examination shall be directed to the explanation of matters referred to in cross-examination and if new matter is, by permission of the CS DJ ADJ No. 516711/2016 Page No. 34/43 court, introduced in re-examination, the adverse party may further cross-examine upon that matter.
72. The main object of the cross-examination is to find out the truth and detection of falsehood in human testimony. It is designed either to destroy or weaken the force of evidence a witness has already given in the person or elicit something in favour of the party which he has not stated or to discredit him by showing from his past history and present demeanour that he is unworthy of credit.
73. No special provision is made in the Indian Evidence Act, 1872 for the cross-examination of the co-defendant's witnesses. But the procedure to be adopted may be regulated by the well-known rule that no evidence should be received against one who had no opportunity of testing it by cross-examination.
74. Principles and Digest of the Law of Evidence by M. Monir, Third Edition, p. 114 -
"A defendant may cross-examine a co-defendant or any other witness who has given evidence against him, and reply on such evidence, though there is no issue joined between them."
75. It is observed that D6W1 and D6W2 were cross-examined on 20.03.2019 in the presence of the learned counsel for the defendant Nos. 1 to 3 and no question was put to D6W1 and D6W2. It is not out of place to state that the defendant Nos. 1 to 3 until the date of final arguments did not take any steps to recall D6W1 and D6W2 and challenge their testimony.
CS DJ ADJ No. 516711/2016 Page No. 35/4376. On juxtaposing Ex.PW1/VI (Colly.) with Ex.D6W1/1 to Ex.D6W1/3 not only the particulars of the shipment, airway bill, invoice value and date of goods imported but also the port of origin and port of destination are the same and the documents filed by the plaintiff are held to be proved and genuine. It is observed that the defendant Nos. 1 to 3 have failed to lead even a single shred of documentary evidence in support of their pleadings and defence. It is further observed that the defendant Nos. 1 to 3 miserably failed to shift the onus by rebuttal evidence. The testimony of D6W1 and D6W2 is the deathknell to the defence urged by the defendant Nos. 1 to 3 that the invoices raised by the plaintiff are false and no consignment was brought through the plaintiff company by the defendant No. 3.13
77. The contention of the learned counsel for the defendant Nos. 1 to 3 with regard to the non-filing of certificate under Section 65B of the Indian Evidence Act, 1872 in support of the emails relied upon by the plaintiff, it is observed that at the time when the said emails were tendered in evidence by the plaintiff' witness, no such objection was flagged by the defendants. It is also observed that during the cross- examination extensive questions were put by the learned counsel for the defendants to PW1 and there was no objection to the mode of proof. It is also not out of place to mention that DW1 during her cross- examination admitted of the general procedure in the import of 13 See paragraph No. 8 under the heading, 'Preliminary Objections' of the written statement by the defendant Nos. 1 to 3.
CS DJ ADJ No. 516711/2016 Page No. 36/43shipments being done through emails between the parties. DW1 also admitted receiving emails from the plaintiff with regard to the outstanding amount against the invoices. The mandate of Section 65B of the Indian Evidence Act, 1872 with regard to a certificate is that the electronic record before the courts is in the nature of a secondary evidence, thus the genuineness and veracity of the electronic record is vouched by the party who is tendering the same in evidence. Now in the present case, the emails exchanged between the parties have been duly corroborated by the witnesses of the parties, thus the non-filing of the certificate under Section 65B of the Indian Evidence Act, 1872 would not be fatal to the case.
78. Now coming to the law report of Bharat Aluminium Co. Ltd. v. M/s Maharashtra Aluminium Corporation14 relied upon by the learned counsel for the defendant Nos. 1 to 3 that the plaintiff failed to prove the statement of accounts, as per Section 34 of the Indian Evidence Act, 1872, I humbly observe that the same is distinguishable on facts and the same cannot be applied as Euclid's theorem to the facts of the case at hand.
79. In Bharat Aluminium's case15 the suit for recovery of money along with interest was filed on the basis of mere statement of account, which was disputed by the defendant therein. It was in that light Hon'ble High Court observed and held that the plaintiff has failed to prove its statement of account by leading any evidence in 14 (2009) 110 DRJ 333 :: (2009) 159 DLT 489 :: (2009) 80 AIC 304 (Del) 15 ibid.
CS DJ ADJ No. 516711/2016 Page No. 37/43regard to the same. Whereas, in the case at hand, the plaintiff has not filed a statement of accounts as the basis of the recovery of money, the plaintiff has filed the four invoices along with relevant documents such as air way bills, invoices, emails and above all the defendant Nos. 1 to 3' sole witness, DW1 has admitted during her cross- examination of two unpaid invoices of the plaintiff, exchanging emails. The clincher evidence against the defendant comes from the two witnesses of the defendant No. 6, who clearly establishes that the shipment was imported by the defendant No. 6 through M/s Nimit Cargo Movers, defendant No. 3, defendant No. 1 and shipped by the plaintiff from USA. It is observed that in the present case there is cogent evidence on record to fasten the liability upon the defendant No. 3.
80. The third judgment of Madras Cements Ltd. v. T.M.T. Kannammal Educational Trust & Anr. 16 relied upon by the learned counsels for the defendant Nos. 1 to 3, I am in complete consonance that Section 34 of the Indian Evidence Act, 1872 will not be satisfied by the production of accounts simpliciter and such statements shall not alone be sufficient evidence to charge any person with liability. In Madras Cements' case17 the plaintiff neither produced the books nor ledgers and the person who wrote the accounts was not examined. It was held by the Hon'ble High Court of Madras that there was absolutely no evidence and no corroboration. However, the position is 16 (2015) 1 LW 312 17 ibid.
CS DJ ADJ No. 516711/2016 Page No. 38/43different in the present case, merely for the reason that the plaintiff has not only produced the invoices, airway bills, etc, as primary documents but also there is substantial corroborative evidence on record to establish the link between the plaintiff and the defendant No.
3. The judgment of Madras Cements' case18 is clearly distinguishable to the present case.
81. With unrefuted testimonies of the D6W1 and D6W2, the conclusion which can be safely arrived is that the goods with regard to the fourth invoice i.e. invoice dated 11.12.2009 were shipped by the plaintiff from the USA and the same were released by the defendant No. 3 to the importer (defendant No. 6 herein) through M/s Nimit Cargo Movers. It has also come on record that all the payments were made by the defendant No. 6 to M/s Nimit Cargo Movers and further by M/s Nimit Cargo Movers to the defendant No. 3 through defendant No. 1. Thus, the plaintiff is entitled for the unpaid amount.
82. The findings qua issue No. 1 are as under:
i. the plaintiff has proved that all the four invoices dated 13.08.2009, 05.10.2009, 23.11.2009 and 11.12.2009 remain unpaid by the defendant No. 3;
ii. the defendant Nos. 1 to 3 and DW1, the sole witness for the defendant Nos. 1 to 3 have admitted that the payments for two invoices - invoice dated 13.08.2009 and invoice dated 18 ibid.
CS DJ ADJ No. 516711/2016 Page No. 39/4305.10.2009 had been withheld by the defendant No. 3 and the same remains unpaid;
iii. with regard to the third invoice dated 23.11.2009, the plaintiff successfully shifted the onus upon the defendant No. 3 but who failed to dispel the same, and iv. the import shipment with regard to the fourth invoice dated 11.12.2009 also stands proved in the favour of the plaintiff, as the defendant No. 6, the importer consistently pleaded and proved that she made the entire payment and charges to M/s Nimit Cargo Movers and who further made the payment against invoice dated 11.12.2009 to Kanwal Chib (defendant No. 1) director of the defendant No. 3.
83. In short, the defendant No. 3 is liable to pay the outstanding amount of $7,783.73/-(USD Seven thousand seven hundred eighty three and seventy three cents only) against the four invoices to the plaintiff. In view of the above observations and findings, the issue No. 1 is decided in favour of the plaintiff and against the defendant No. 3.
Issue No. 2Whether the plaintiff is entitled to interest, if so, to what extent?
84. The onus to prove issue No. 2 was casted upon the plaintiff. It is observed that with the issue No. 1 held in favour of the plaintiff and against the defendant No. 3, the plaintiff is entitled for the interest on the unpaid four invoices.
CS DJ ADJ No. 516711/2016 Page No. 40/4385. The nature of transaction between the plaintiff and the defendant No. 3 was commercial. It has also come on record that one of the importers, defendant No. 6 made all payments to M/s Nimit Cargo and who further made payment to the defendant No. 3. It is observed that all the four invoices raised by the plaintiff upon the defendant No. 3 clearly state that delay in payment shall attract an interest @18%p.a. It is also averred by the plaintiff in the plaint that one of the four conditions which were mutually agreed that the payment to be made within 15 days. It is observed that the first unpaid invoice of the plaintiff raised upon the defendant No. 3 is dated 13.08.2009; second unpaid invoice raised by the plaintiff upon the defendant No. 3 is dated 05.10.2009; third unpaid invoice raised by the plaintiff upon the defendant No. 3 is dated 23.11.2009 and the fourth unpaid invoice raised by the plaintiff upon the defendant is dated 11.12.2009.
86. The defendant Nos. 1 to 3 in their written statement and coupled with the clear admission by DW1 during her cross-examination with regard to the two invoices being withheld by the defendant No. 3 also tilts in the favour of the plaintiff. DW1 also admitted the receipt of reminders through email sent by the plaintiff. The receipt of the legal notice dated 19.08.2010 (Ex.PW1/XVI) was also admitted by DW1 and yet no payment was made by the defendant No. 3 to the plaintiff. With all the four invoices remaining unpaid by the defendant No. 3 to CS DJ ADJ No. 516711/2016 Page No. 41/43 the plaintiff till date, the plaintiff is accordingly held entitled for interest @18%p.a. on the total amount of the unpaid invoices.
87. The issue No. 2 is also decided in favour of the plaintiff and against the defendant No. 3.
Issue No. 3Relief
88. The plaintiff having succeeded to prove both the issues in its favour and against the defendant No. 3, I deem appropriate to award the money decree of $7,783.73/- (USD Seven thousand seven hundred eighty three and seventy three cents only) for which the exchange rate of $1.00 can be taken as ₹46.75/-. The said conversion amount has been traced from the Ex.D6W1/2, which is the bill of entry for home consumption dated 09.12.2009 issued by the Indian Customs (Imports). I, would like to mention that the exchange rate mentioned in Ex.D6W1/3 i.e. debit note for air shipment dated 14.12.2009 issued by M/s Nimit Cargo Movers is on the higher side, wherein the conversion rate of $1.00 is stated as ₹47.85/-. On comparison to the prevalent exchange rate, weightage is given to the prevalent conversion rate mentioned in the document - Ex.D6W1/2 issued by the Indian Customs.
89. That said, in light of the above findings and discussions, the suit of the plaintiff is dismissed against the defendant Nos. 1, 2 and 6 but the same is decreed against the defendant No. 3. The plaintiff is held entitled for the money decree from the defendant No. 3 for a sum of CS DJ ADJ No. 516711/2016 Page No. 42/43 ₹3,63,889/- (Rupees Three lakhs sixty three thousand eight hundred and eighty nine only), computed to the closest rounded figure ($7783.73 X ₹46.75) along with simple interest @18%p.a. w.e.f. 27.12.2009 until the date of actual payment and realisation including for the pendente lite period. The costs of the suit are awarded in favour of the plaintiff and against the defendant No. 3. Decree sheet be drawn, accordingly.
90. File be consigned to record room only after due compliance and necessary action, as per Rules. Digitally signed by HARGURVARINDER HARGURVARINDER SINGH JAGGI SINGH JAGGI Date: 2019.09.09 16:40:53 +0530 Pronounced in the Open Court (Hargurvarinder Singh Jaggi) on September 09, 2019 Addl. District Judge - 02 South West District Dwarka Courts, Delhi CS DJ ADJ No. 516711/2016 Page No. 43/43