Delhi District Court
Suit No. 743/2010 Rgti Enterprise Ltd vs . Atlas Surgical on 10 June, 2011
Suit no. 743/2010 RGTI Enterprise Ltd Vs. Atlas Surgical 10.6.2011
Present None.
By this order I shall disposed off the application u/O 14 Rule 5 of CPC as well as application u/O 12 Rule 6 of CPC filed by the plaintiff.
In the first application the plaintiff has prayed that the issue no. 2 and 3 be deleted. He has argued that the goods were delivered at the right destination and the port of destination had been changed at the behest of the client of the defendant. I am not in agreement with the said contention. Defendant has categorically stated in reply to para 2, 3, 4 and 5 that the goods were delivered at wrong destination in a damaged condition and therefore, the issue no. 2 has been rightly framed.
The third issue pertaining to diminution or extinction of sale price ought to be deleted as this is not a case of contract of sale of goods but a case of contract of shipment i. e. a service contract and Sale of Goods Act would have no application. I am in agreement with the argument. The third issue is , therefore, liable to be deleted as erroneously framed.
M/s RGTI Enterprises P. Ltd. Vs. 1 of 5 M/s Cargo Systems Suit no. 131/2010 Application u/O 12 Rule 6 of CPC.
The case of the plaintiff is that the defendant has admitted that goods were given to the plaintiff for delivery, goods were shipped by the plaintiff, the bills have been admitted, and the delivery of the consignment at port of destination has been admitted. The plaintiff is, therefore, entitled to a decree u/O 12 Rule 6 of CPC. The plaintiff has argued that the averment in the WS that goods were delivered at a wrong place i. e. Rotterdam instead of Hamburg as agreed and that too in damaged condition is of no avail. The averment that defendant suffered loss of Rs.Ten lacs due to delivery at wrong place and damaged condition and is, therefore, not liable to pay any amount as claimed in the suit, is also of no avail to the defendant. The said averment does not amount to a set off or counter claim. Counsel has relied upon the decision in Bank of Rajasthan Vs. Pala Ram Gupta AIR 2001 Delhi 58, Durga Pharma Distributors, Hyderabad & Anr. Vs Geoffrey Manners & Co. Ltd. & Ors. AIR 2000 AP 242, Pathrose Samual & Anr. Vs. Karumban Parameswaram AIR 1988 Kerala 163 and Mani Bhusan Malik Vs. Pioneer Bank Ltd. AIR 1959 Cal 746. His contention is M/s RGTI Enterprises P. Ltd. Vs. 2 of 5 M/s Cargo Systems Suit no. 131/2010 that no court fees has been paid.
I am of the view that the decision in Bank of Rajasthan (Supra) was passed after evidence had been recorded and the suit had gone through trial. The court held that the averments could not be treated as set off as neither the plea was raised nor court fees was affixed. Thus, this decision helps the defendant more than the plaintiff. The other decision in Durga Pharma Distributors(Supra), on the other hand, applies to the facts of the case before me on all fours. Relevant portion of the said decision is reproduced hereinafter:
"The right to set off dealt with by O.8, R. 6 C.P.C. Is a legal set off. Its characteristics are that the sum of money is ascertained and both the parties fill the same character as they fill in the suit. Independently of the provisions in the C.P.C. The Court of equity in England allowed a plea of equitable set off being entertained though the amount was unascertained and there were mutual debits and suits amounting to cross demands arising out of the same transaction or so connected in their nature and circumstances as to make it unequitable so that the plaintiff should recover and the defendant driven to a cross suit. For M/s RGTI Enterprises P. Ltd. Vs. 3 of 5 M/s Cargo Systems Suit no. 131/2010 payment of Courtfee there is no distinction between legal and equitable set off. Both attract applicability of Sec. 1.Art. 1 of the Curt Fees Act.
13 Applying the above principles to the case on hand, it can be easily seen that all the claims made by the defendant in the written statement are really in the nature of a set off or counterclaim but not any payment or adjustment. It is not at all the case of the defendant that it made any payment towards the amount claimed in the suit or that it adjusted any amount of the plaintiff lying in its hands towards the amounts allegedly due to it under the various heads mentioned in the written statement. On the other hand, it is the case of the defendant that the plaintiff has to make such adjustment but failed to do so and the defendant, therefore, now wants to set off those amounts against the amount claimed by the plaintiff in the suit and accordingly paid Court fee on the difference between the two.
For the foregoing reasons, I am inclined to agree with the conclusion of the lower Court that the various claims made by the defendants in the written statement are in the nature of a set off or counterclaim and the defendant is liable to pay Courtfees in respect of those M/s RGTI Enterprises P. Ltd. Vs. 4 of 5 M/s Cargo Systems Suit no. 131/2010 claims. However, in so far as the claim for damages at the rate of Rs.1,00,000/ per month is concerned, I am of the view that the defendant is liable to pay Courtfees on past damages only for the time being."
The defendant before this court has categorically stated that he suffered damage due to delivery of goods at wrong destination and in damaged condition. The loss is stated to be of Rs.ten lacs. Albeit, no counter claim has been filed, the averment that due to this loss of Rs.ten lacs nothing is due and payable to the plaintiff is but a set off as no recovery has been sought against plaintiff but liability has been sought to be deemed on basis of damages suffered. The Defendant shall, therefore, pay court fees on the same accordingly. In that view of the matter, this application is liable to be dismissed.
Harjyot Singh Bhalla,
CJ1, South District,
New Delhi 10.6.2011
M/s RGTI Enterprises P. Ltd. Vs. 5 of 5
M/s Cargo Systems
Suit no. 131/2010