Delhi District Court
M/S Cine Aryan vs Dtdc Express Ltd. And Anr on 16 August, 2024
IN THE COURT OF SANJEEV KUMAR MALHOTRA
DISTRICT JUDGE (COMMERCIAL COURT)
NORTH EAST: KARKARDOOMA COURTS: DELHI
CS (Comm.) 104/2019
CNR No.DLNE01-003511-2019
M/s Cine Aryan
Through its Proprietor
Mr. Surender Kumar Yadav
Having office at 441/9, Shaheed
Bhagat Singh Colony, West Karawal
Nagar, Delhi-110094. .... Plaintiff
Versus
1. DTDC Express Ltd.
Khasra no. 16/6, Telephone Exchange Road,
Village Samalkha, New Delhi-110037.
Also at
DTDC House No.3, Victoria Road,
Bangaluru-560047, Karnataka
2. QSC LLC Ltd.
C/o Expeditors no.116, Devanari Village
Road Sholavaran, Chennai-600067, Tamil Nadu
3. Mr. Deepak F. Gracias
Director Operations,
M/s QSC LLC India
C/o Expeditors No.116, Devanari Village Road
Sholavaran, Chennai-600067, Tamil Nadu
4. Mr. Rajesh Sinha (Name of defendant no.4 was deleted from the
Manager Operations array of parties vide order dated 20.11.2020)
M/s QSC LLC India
C/o Expeditors No.116, Devanari Village Road
Sholavaran, Chennai-600067, Tamil Nadu
5. Mr. Pradeep Chaubey (Name of defendant no.5 was deleted from the
Regional Sales Manager-West array of parties vide order dated 20.11.2020)
M/s QSC LLC India
CS (Comm.) 104/2019 M/s Cine Aryan vs. DTDC Express Ltd and Ors. Page 1 of 27
Digitally signed by
SANJEEV SANJEEV KUMAR
KUMAR MALHOTRA
Date: 2024.08.16
MALHOTRA 16:33:48 +0530
C/o Expeditors No.116, Devanari Village Road
Sholavaran, Chennai-600067, Tamil Nadu
6. Mr. Nadeem Sheriff
M/s QSC LLC India
C/o Expeditors No.116, Devanari Village Road
Sholavaran, Chennai-600067, Tamil Nadu .... Defendants
Date of Institution : 07.09.2019
Date of Arguments : 19.07.2024
Date of Judgment : 16.08.2024
JUDGMENT
1. This is a suit for recovery of Rs.14,27,030/- alongwith interests and costs, as filed by plaintiff against the defendants.
2. In brief, facts of case are that plaintiff is the sole proprietor concern of Mr. Surender Kumar Yadav having office at 441/9, Shaheed Bhagat Singh Colony, West Karawal Nagar, Delhi and is inter-alia engaged in the business of sale, purchase and maintenance of audio/visual equipments and has been maintaining impeccable reputation and unmatched integrity in the field. It is stated that plaintiff had received a requisition for cinematic and audio/visual equipments from M/s Chintpurni Durga Films LLP, 32, New Grain Market, Hissar-125001, Haryana and defendant no.2 company is manufacturing the products that were requisitioned from the plaintiff by M/s Chintpurni Durga Films LLP.
3. It is case of the plaintiff that after extensive negotiations, plaintiff placed a purchase order dated 15.06.2017 with defendant no.2 company and against the CS (Comm.) 104/2019 M/s Cine Aryan vs. DTDC Express Ltd and Ors. Page 2 of 27 Digitally signed SANJEEV by SANJEEV KUMAR KUMAR MALHOTRA MALHOTRA Date: 2024.08.16 16:33:58 +0530 said purchase order, defendant no.2 raised a proforma invoice dated 15.11.2017 for a total amount of Rs.34,09,919/- including IGST amount of Rs.5,20,157.08 calculated @18% as applicable on the aforesaid products. It is stated that defendant no.2 claimed that the prices have escalated and raised a final tax invoice dated 26.04.2018 for a modified amount of Rs.34,65,802/- which was duly paid by plaintiff by way of advance payment. Thereafter, plaintiff was informed by the defendant no.2 to 6 that the aforesaid consignment was ready for delivery and the plaintiff duly conveyed to defendant no. 2 to 6 that the said consignment was to be shipped directly to M/s Chintpurni Durga Films LLP at Hissar, Haryana and plaintiff also sent tax invoice raised by it against the consignee M/s Chintpurni Durga Films LLP for ready reference.
4. It is further case of the plaintiff that it was conveyed by defendant no. 2 to 6 that the consignment be transported through defendant no.1 and its quotation was forwarded to the plaintiff by defendant no.2 on 28.04.2018 and an amount of Rs.71,089/- including insurance and GST towards freight charges was additionally raised against the plaintiff for transportation of the consignment from Chennai to Hissar, Haryana and it was agreed that the freight charges shall be paid against delivery. Thereafter, it was conveyed to plaintiff that the goods had been dispatched from the warehouse of defendant no.2 on 04.05.2018 and consignment no.G90313141 of defendant no.1 was forwarded to the plaintiff.
5. It is further case of the plaintiff that on 12.05.2018, CS (Comm.) 104/2019 M/s Cine Aryan vs. DTDC Express Ltd and Ors. Page 3 of 27 Digitally signed SANJEEV by SANJEEV KUMAR KUMAR MALHOTRA MALHOTRA Date: 2024.08.16 16:34:04 +0530 plaintiff was shocked to receive a call from an Excise and Taxation Officer, Hissar claiming that one truck bearing no.HR 39C 7110 had been intercepted at Toll Naka, VPO Mayyar, Hissar, Haryana as the driver/person in charge of vehicle was not carrying the requisite documents for transportation of consignment and plaintiff was called upon there immediately. Thereafter, plaintiff reached and met with concerned Excise and Taxation Officials, where he was informed that the driver/person in-charge of the truck was carrying invalid E-way bill. It is stated that the E-way bill bearing unique no.781010019913 dated 04.05.2018 at 07:53 pm had only part A filled and further it was mentioned in the E-way bill "Not valid for movement as part B is not entered", as such, show cause notice was issued to the plaintiff by Excise and Taxation Officials and truck and goods were detained under Section 129 (1) of the Central Goods and Service Tax, 2017. It is stated that plaintiff repeatedly contacted defendant no. 2 to 6 for resolution of the problem, but all messages and requests were ignored and no assistance was provided to the plaintiff.
6. It is further case of the plaintiff that a tax liability towards IGST of Rs.5,28,682/- and penalty of Rs.5,28,682/- was imposed upon the plaintiff by the Excise and Custom Officials, Hissar, Haryana and plaintiff was warned that in case of non-payment, the goods shall be confiscated and auctioned by the department and since the goods of substantial amount and the prestige of the plaintiff was at stake, as such the plaintiff arranged the aforesaid CS (Comm.) 104/2019 M/s Cine Aryan vs. DTDC Express Ltd and Ors. Page 4 of 27 Digitally signed SANJEEV by SANJEEV KUMAR KUMAR MALHOTRA MALHOTRA Date: 2024.08.16 16:34:09 +0530 amount of Rs.10,57,364/- to get the consignment released from the Excise and Custom Department. It is stated that due to carelessness and negligence of the defendants, the truck carrying the goods was dispatched from the warehouse of defendant no.2 without providing the necessary documents. Thereafter plaintiff sent a legal notice to the defendants for calling upon them to pay Rs.11,79,364/- alongwith interest @ 18% per annum and the defendant no.2 to and 6 have given false reply to legal notice.
7. It is averred that defendants are jointly and severally liable to pay an amount of Rs.14,27,030/- which includes outstanding amount of Rs.11,79,364/- and an interest of Rs.2,47,666/- calculated @18% per annum. Hence, the present suit for recovery of Rs.14,27,030/- alongwith pendent lite and future interest @ 18 % per annum is filed.
8. Defendant no.1 contested the suit by filing written statement while taking preliminary objections that suit of plaintiff is without any cause of action qua defendant no. 1 and is not maintainable; that suit of plaintiff has been filed as an afterthought with malafide intention, ulterior motives in order to put pressure and extract illegal money; that plaintiff without filing reply/objections to the show cause notice issued by the Excise and Taxation Department and depositing the amount for prestige, cannot seek recovery of the same from defendant no.1 that is too when the consignment in question was not transported through the defendant no. 1; that plaintiff has sought to recover the amount deposited towards tax and penalty, which is not an CS (Comm.) 104/2019 M/s Cine Aryan vs. DTDC Express Ltd and Ors. Page 5 of 27 Digitally signed SANJEEV by SANJEEV KUMAR KUMAR MALHOTRA MALHOTRA Date: 2024.08.16 16:34:13 +0530 ordinary transaction of merchants and the damages as sought to recover by the plaintiff does not arise out of any commercial contract qua defendant no.1 as defined under the provisions of Section 2 (c) of the Commercial Courts Act; that it was only the responsibility of defendant no.2 or the plaintiff to provide the entire documents to the truck driver and defendant no.1 is not connected with the matter; that plaintiff is guilty of suppression of certain material facts and that plaintiff is well aware that defendant no. 2 has misused the consignment of the defendant no. 1; that Mr. Kumaravel, proprietor of K. S. Enterprises has purchased the consignment note booklet series which contains consignment note no.G90313141; that the dispute alleged in the present suit is payment of tax and penalty by the plaintiff which cannot give rise to any cause of action to the plaintiff against defendant no.1; that defendant no.1 does not reside for gain within the jurisdiction of this court.
9. On merits, the contents of the plaint have been denied as wrong. It is submitted that defendant no.1 was never been party to the transaction/contract between the plaintiff and defendant no.2. It is further submitted that defendant no.2 has taken the quotation from the franchisee of defendant no.1 but the consignment was never entrusted to the defendant no.1 for transportation. It is stated that suit of plaintiff is liable to be rejected/dismissed.
10. Defendant no. 2, 3 and 6 contested the suit by filing written statement while taking preliminary objections that contents of plaint are ex-facie baseless, false, vexatious and mala fide; that this court does not have the territorial CS (Comm.) 104/2019 M/s Cine Aryan vs. DTDC Express Ltd and Ors. Page 6 of 27 Digitally signed SANJEEV by SANJEEV KUMAR KUMAR MALHOTRA MALHOTRA Date: 2024.08.16 16:34:19 +0530 jurisdiction to try and entertain the present suit or no cause of action has arisen within the territorial limits of this court and the plaint is liable to be returned under Order VII Rule 10 CPC; that suit is bad for misjoinder of the parties.
11. It is submitted that it was the duty of plaintiff or the defendant no.1 to generate an E-way bill and the plaintiff is solely responsible to bear all the cost and consequence without the responsibility of defendant no.2, 3 and 6. It is stated that defendant no.2, 3 and 6 have no contractual or legal liability to bear or reimburse any amount whatsoever to the plaintiff. It is further submitted that the present suit has been filed with malafide intention and ulterior motives afterthought to illegally extract money from the defendant no.2, 3 and 6. It is further submitted that in the email dated 15.05.2018, it was clearly stated that as per the agreed understanding, the price of the products was ex-warehouse Chennai and that the plaintiff was responsible for collecting the products from defendant no.2 warehouse in Chennai. It is submitted that plaintiff has concealed the fact that he received an amount of Rs.30,000/- as compensation in addition to waiver of the freight charges of Rs.71,089/- from defendant no.1. It is further submitted that plaintiff even otherwise cannot claim any amount from defendant no.2, 3 and 6 as the plaintiff has waived off its right by acceding to the settlement with defendant no.1. It is stated that it is also evident from the fact that neither the plaintiff nor defendant no.1 realized that the address on first E-way bill was incorrectly mentioned as of Delhi and thereafter the address was changed to Hissar. Further, after the change of CS (Comm.) 104/2019 M/s Cine Aryan vs. DTDC Express Ltd and Ors. Page 7 of 27 Digitally signed SANJEEV by SANJEEV KUMAR KUMAR MALHOTRA MALHOTRA Date: 2024.08.16 16:34:24 +0530 address, part B of E-way bill was not even filled inter se by plaintiff or defendant no.1 and the defendant no.2, 3 and 6 cannot be held liable for the negligence done on the part of plaintiff.
12. On merits, the contents of plaint have been denied as wrong. It is submitted that defendants introduced the plaintiff to defendant no.1, an independent third party transporter for shipment of the products purchased by the plaintiff and the defendant no.2/its representative acted as a mere facilitator in a bona fide manner. It is further submitted that it is the plaintiff/defendant no.1 negligence that resulted in to the culmination of impounding of vehicle and imposition of penalty in the present case. It is further submitted that defendant no.2,3 and 6 had no responsibility once the plaintiff approved the transporter and purchased products left the warehouse of defendant no.2 for dispatch. It is prayed that present suit is liable to be dismissed.
13. Rejoinder to the written statements of defendant no.1, 2, 3 and 6 was filed on behalf of plaintiff, wherein plaintiff denied the facts as mentioned in written statements while re-affirming the facts as mentioned in the plaint.
14. From the pleadings of the parties, following issues were framed vide order dated 07.03.2024:-
(i) Whether the present suit is not a commercial dispute as defined under Section 2 (c) of the Commercial Courts Act? OPD-1
(ii) Whether the suit of plaintiff is without any cause of action against defendant no.1? OPD-1 CS (Comm.) 104/2019 M/s Cine Aryan vs. DTDC Express Ltd and Ors. Page 8 of 27 Digitally signed SANJEEV by SANJEEV KUMAR KUMAR MALHOTRA MALHOTRA Date: 2024.08.16 16:34:29 +0530
(iii) Whether this Court has no territorial jurisdiction to try the present suit ? OPD-1
(iv) Whether to generate duly filled in E-way bill was the responsibility inter se the plaintiff and defendant no.1 ? OPD-2, 3 and 6.
(v) Whether plaintiff is entitled for recovery for a sum of Rs.14,27,030/-, if yes from all the defendants jointly and/or severally? OPP
(vi) Whether plaintiff is entitled for pendente lite and future interest @ 18 % per annum? OPP
(vii) Relief.
15. In support of its case, plaintiff examined Sh. Surender Kumar Yadav, Proprietor as PW-1 and tendered his examination in chief by way of affidavit Ex.PW1/A. PW-1 has relied upon following documents:-
1. Copy of VAT Registration Certificate, Form ST-2 of M/s Cine Aryan i.e. Ex.PW1/1.
2. Attested copy of Certificate of Registration under Delhi Value Added Tax Act -2004, Form B of M/s Cine Aryan i.e. Ex.PW1/2.
3. Copy of certificate of Provisional GST Registration of M/s Cine Aryan i.e Mark A.
4. Copy of Certificate of GST Registration of M/s Cine Aryan i.e. Mark B.
5. Copy of purchase Order dated 15.06.2017 issued by M/s Cine Aryan i.e. Ex.PW1/5.
6. Copy of Proforma Invoice dated 15.11.2017 i.e. Mark C. CS (Comm.) 104/2019 M/s Cine Aryan vs. DTDC Express Ltd and Ors. Page 9 of 27 Digitally signed by SANJEEV SANJEEV KUMAR KUMAR MALHOTRA Date: 2024.08.16 MALHOTRA 16:34:34 +0530
7. Copy of Tax Invoice issued by defendant no. 2 i.e. Mark D.
8. Attested copy of bank statement of M/s Cine Aryan i.e. Ex.PW1/8.
9. Copy of consignment note dated 04.05.2018 issued by defendant no. 1 i.e. Mark E.
10. Original show cause notice issued by Excise and Taxation Department, Haryana i.e Ex.PW1/10.
11. Copy of e-mails/correspondence between the plaintiff and defendants i.e. Ex.PW1/11.
12. Copy of WhatsApp communication between the plaintiff and the defendants i.e. Ex.PW1/12.
13. Certificate u/s 65B of the Indian Evidence Act in support of the documents i.e. Ex.PW1/13.
14. Copy of order u/s 129 (3) of the Central Goods and Services Tax Act, 2017 dated 16.05.2018 i.e. Ex.PW1/14.
15. Computer generated copy of the receipt of payment made by the plaintiff to the Excise and Taxation Department, Hisar i.e. Mark F.
16. Legal notice dated 20.05.2019 alongwith its postal receipts i.e. Ex.PW1/16.
17. Reply dated 30.05.2019 received from defendant no. 1 alongwith envelop i.e. Ex.PW1/17 (Colly).
18. Reply dated 06.06.2019 received from defendant no. 2 to 6 alongwith envelop i.e. Ex.PW1/18 (Colly).
19. Rejoinder dated 21.06.2019 sent by the plaintiff to the defendant no.1 alongwith postal receipts i.e. Ex.PW1/19 (Colly).CS (Comm.) 104/2019 M/s Cine Aryan vs. DTDC Express Ltd and Ors. Page 10 of 27 Digitally signed by SANJEEV
SANJEEV KUMAR KUMAR MALHOTRA MALHOTRA Date:
2024.08.16 16:34:40 +0530
20. Reply dated 28.06.2019 received by plaintiff from defendant no. 2 to 6 i.e. Ex.PW1/20.
16. Defendant no.1 has examined Sh. Neeraj Kumar Singh, Manager (Legal) and AR of defendant no.1 as D1W1 and tendered his evidence by way of affidavit Ex.D1W1/A. D1W1 has relied upon the letter of authority alongwith Board Resolution dated 20.03.2019 i.e. Ex.D1.
17. Defendant no.2, 3 and 6 have examined Sh. Rohan Ravindranath Amin, AR of defendant no.2 as D2W1, Sh. Deepak Franco Gracias as D3W1 and Mr. Nadeem M. Sheriff as D6W1 and tendered their evidence by way of affidavit Ex.D2, Ex.D3 and Ex.D6. D2W1 has relied upon the following documents:-
1. Certified true copy of the Board Resolution dated 14.03.2024 i.e. Ex.D2W1/1.
2. E-mail dated 26.04.2018 i.e. Ex.D2W1/2.
3. E-mail dated 28.04.2018 i.e. Ex.D2W1/3.
4. E-mail dated 30.04.2018 i.e. Ex.D2W1/4.
5. E-mail dated 03.05.2018 i.e. Ex.D2W1/5.
6. E-mail dated 04.05.2018 i.e. Ex.D2W1/6.
7. E-way bill docket i.e. Ex.D2W1/7.
8. E-mail dated 12.05.2018 along with the e-way bill i.e. Ex.D2W1/8.
9. E-mail dated 11.05.2018 at 23:33:27 EDT (approx. 09:00 am IST) i.e. Ex.D2W1/9.
10. Copy of GST return obtained from the web-site of the GST i.e. Ex.D2W1/10.CS (Comm.) 104/2019 M/s Cine Aryan vs. DTDC Express Ltd and Ors. Page 11 of 27 Digitally signed
SANJEEV by SANJEEV KUMAR KUMAR MALHOTRA MALHOTRA Date: 2024.08.16 16:34:45 +0530
11. Copy of WhatsApp Communication and bank deposit receipt dated 17.05.2018 i.e. Ex.D2W1/11.
12. Certificate u/s 65B of the Indian Evidence Act i.e. Ex.D2W1/12.
18. D3W1 has relied upon the certified copy of Board Resolution dated 22.12.2016 i.e. Ex.D3W1/1.
19. Arguments have been advanced by Sh. Abhishek Kishore, Ld. Counsel for plaintiff, as also by Sh. Aniruddha Choudhary and Sh. Rohit Tomar, Ld. Counsels for defendant no.1 and by Mr. Iman Naqvi and Ms. Rupal Bhatia, Ld. Counsels for defendant no.2, 3 and 6. I have given my thoughtful consideration to the rival submissions made by the parties and also gone through the record as well as written arguments, as filed on behalf of parties. My issue wise findings are as under:-
Issue no.1
(i) Whether the present suit is not a commercial dispute as defined under Section 2 (c) of the Commercial Courts Act? OPD-1
20. Onus to prove this issue was upon the defendant no.1.
It was contended by Ld. Counsel for defendant no. 1 that the claim of the plaintiff in the present suit is for recovery of penalty which he paid to Excise Department on account of alleged negligence of the defendant no. 1 and 2 in filling Part B form of the E-way bill and as such the present suit does not come within the purview of section 2 (c) of the Commercial Courts Act. Per contra, it was argued by Ld. Counsel for plaintiff that his claim in the present suit is CS (Comm.) 104/2019 M/s Cine Aryan vs. DTDC Express Ltd and Ors. Page 12 of 27 Digitally signed SANJEEV by SANJEEV KUMAR KUMAR MALHOTRA MALHOTRA Date: 2024.08.16 16:34:51 +0530 regarding the damages paid by him in the form of penalty for not filling the Form B of E-way bill during the tranportation of the goods from Chennai to Hissar and same comes within the purview of section 2 (c) (v) of the Commercial Courts Act.
21. Section 2 (c) (v) of the Commercial Courts Act says that the commercial dispute means a dispute arising out of carriage of goods. As per the case of plaintiff, the goods of the plaintiff were being transported from Chennai to Hissar and during the transit of goods, the truck was detained by the Excise and Customs Officials u/s 129 (1) of the Central Goods and Service Tax Act, 2017 as the driver incharge of the truck was carrying invalid E-way bill therefore, the case of plaintiff falls under section 2 (c) (v) of the Commercial Courts Act, 2015 and is a commercial dispute. Accordingly, this issue is decided in favour of the plaintiff and against the defendant no. 1.
Issue no.2:-
(ii) Whether the suit of plaintiff is without any cause of action against defendant no.1? OPD-1
22. Onus to prove this issue was upon the defendant no.1.
Ld. Counsel for defendant no. 1 vehemently contended that the plaintiff has not pleaded to show as to what was the role of defendant no. 1 in the entire transaction and as such there is no cause of action against defendant no. 1. Per contra, Ld. Counsel for plaintiff argued that there are specific averments in para no. 7 of the plaint that the defendant no. 2 to 6 conveyed and recommended to the plaintiff that the CS (Comm.) 104/2019 M/s Cine Aryan vs. DTDC Express Ltd and Ors. Page 13 of 27 Digitally signed by SANJEEV SANJEEV KUMAR KUMAR MALHOTRA Date: 2024.08.16 MALHOTRA 16:34:56 +0530 consignment be transported through defendant no. 1 and the quotation of defendant no. 1 was forwarded to plaintiff. It is submitted that the consignment note no. G90313141 as filed along with the plaint was also issued by the defendant no. 1. Ld. Counsel for plaintiff vehemently contended that defendant no.1 also filed an application under Order VII Rule 11 CPC on the same ground, which was dismissed by this court vide order dated 20.12.2023 and the said order has not been challenged by the defendant no. 1.
23. In Rajasthan High Court Advocates' Association Vs. Union of India, AIR 2001 SC 416, it was held by Hon'ble Apex Court "that in the restricted sense, cause of action means the circumstances forming the infraction of the right or the immediate occasion for the action. In the wider sense, it means the necessary conditions for the maintenance of the suit include only the infraction of the right, but the infraction coupled with the right itself. Compendiously, the expression means every fact which it would be necessary for thte plaintiff to prove, if traversed, in order to support his right to the judgment of the court. Every fact which is necessary to be proved, as distinguished from every piece of evidence which is necessary to prove each fact, comprises 'cause of action'."
24. As per pleadings, the defendant no. 2 to 6 recommended that the consignment in question be transported through defendant no. 1 and quotation of DTDC towards freight charges was forwarded to the plaintiff. Plaintiff was informed about the consignment number G90313141 and that the consignment was dispatched by the truck of defendant CS (Comm.) 104/2019 M/s Cine Aryan vs. DTDC Express Ltd and Ors. Page 14 of 27 Digitally signed SANJEEV by SANJEEV KUMAR KUMAR MALHOTRA MALHOTRA Date: 2024.08.16 16:35:02 +0530 no. 1. The plaint shows that plaintiff has an actionable remedy in law on the facts stated in the plaint read in conjunction with the documents against defendant no. 1. Accordingly, this issue is decided in favour of the plaintiff and against the defendant no. 1.
Issue no.3:-
(iii) Whether this Court has no territorial jurisdiction to try the present suit ? OPD-1
25. Onus to prove this issue was upon the defendant no.1.
Ld. Counsel for defendant no. 1 argued that no part of cause of action has arisen within the jurisdiction of this court as the goods were loaded on a truck from the warehouse of the defendant no. 2 at Chennai and to be delivered at Hissar, Haryana. It is submitted that the truck was seized at Hissar Haryana and penalty was also paid to Excise Department, Haryana.
26. Per contra, Ld. Counsel for plaintiff argued that this court has territorial jurisdiction to try the present suit as the order was placed by the plaintiff via E-mail from his office situated in West Karawal Nagar, Delhi and all the money transfers in relation to the said order were made through RTGS from the bank account maintained by the plaintiff with its banker having branch at Karawal Nagar, Delhi. It is submitted that plaintiff sent various E-mails from his office regarding the purchase order and transportation of the goods to Hissar, Haryana and he also received replies of those E-mails at his office situated within the jurisdiction of this court. It is thus submitted that part cause CS (Comm.) 104/2019 M/s Cine Aryan vs. DTDC Express Ltd and Ors. Page 15 of 27 Digitally signed SANJEEV by SANJEEV KUMAR KUMAR MALHOTRA MALHOTRA Date: 2024.08.16 16:35:07 +0530 of action also arose within the territorial jurisdiction of this court.
27. Admitted facts are that plaintiff is having his office at West Karawal Nagar, Delhi. He had received a requisition for cinematic and visual equipments from M/s Chintpurni Durga Films LLP, Hissar, Haryana. The plaintiff placed a purchase order with defendant no. 2 company having its warehouse at Chennai through E-mail. As per proforma invoice Ex. PW1/D2-1, the terms of delivery was ex- warehouse. Plaintiff conveyed to defendant no. 2 that consignment was to be shipped directly to Hissar, Haryana. The defendant no. 2 conveyed and recommended that the said consignment be transported through DTDC i.e. defendant no. 1 and also forwarded the quotation regarding freight charges. The consignment was shipped through truck bearing no. HR39C7110 from the warehouse of defendant no. 2 at Chennai and was detained by the Excise and Taxation Officers at Hissar, Haryana as the driver/person incharge of the truck was carrying invalid E- way bill for which a penalty of Rs. 10, 57,368/- was imposed upon the plaintiff by the Excise and Taxation Officers of Hissar, Haryana.
28. The main thrust of arguments of Ld. Counsel for defendant no. 1 is that this court has no territorial jurisdiction to try the present suit as no cause of action arose within the territorial jurisdiction of Delhi courts. Hon'ble Supreme Court in a case titled as Bhagwandas Goverdhan Das Kedia Vs. M/s Girdharilal Parshottamdas CS (Comm.) 104/2019 M/s Cine Aryan vs. DTDC Express Ltd and Ors. Page 16 of 27 Digitally signed by SANJEEV SANJEEV KUMAR KUMAR MALHOTRA MALHOTRA Date:
2024.08.16 16:35:13 +0530 & Co.,1996 AIR 543 held as under:-
" Making of an offer at a place which has been accepted elsewhere does not form part of the cause of the action in a suit for damages for breach of contract. Ordinarily, it is the acceptance of offer and intimation of that acceptance which result in a contract....... ......The trial Court was therefore right in the view which it has taken that a part of the cause of action arose within the jurisdiction of the City Civil Court, Ahmedabad, where acceptance was communicated by telephone to the plaintiffs."
29. Plaintiff has filed the present suit to recover the damages which he paid as a penalty for carrying invalid E- way bill by the driver/person incharge of the truck carrying the consignment. The copies of e-mails/correspondence between the plaintiff and defendant no.2 to 6 i.e. Ex. PW1/11 (Colly) show that after negotiations, competitive quote from DTDC regarding freight charges of Rs. 71,089/- including insurance and GST (To pay basis) was communicated to plaintiff through e-mail dated 28.04.2018 at 01:16 pm. The acceptance of freight charges of Rs. 71,089/- including insurance and GST (To pay basis) of DTDC was communicated by defendant no. 2 to the plaintiff through e-mail at his Delhi office. Therefore, part cause of action arose within the territorial jurisdiction of this court.
30. Moreover, plaintiff i.e. PW -1 in his cross-examination deposed that the truck driver was not ready to deliver the goods to end user on account of delay, as the truck was impounded, he paid the fuel/diesel charges of Rs. 30,000/- to the truck driver which was later on paid to him by defendant no. 1. In this regard DW1 Sh. Neeraj Kumar CS (Comm.) 104/2019 M/s Cine Aryan vs. DTDC Express Ltd and Ors. Page 17 of 27 Digitally signed SANJEEV by SANJEEV KUMAR KUMAR MALHOTRA MALHOTRA Date: 2024.08.16 16:35:18 +0530 Singh in his cross-examination admitted that Kumaravel is the franchise of DTDC at Chennai and that he cannot tell why Kumaravel had given Rs. 30,000/- to the plaintiff. Ex. D2W1/11 is a receipt of deposit of Rs. 30000/- in the account of plaintiff which is reflected in the bank statement of plaintiff Ex. PW1/8. Thus, part payment i.e. diesel charges paid by plaintiff to the truck driver was also deposited by the franchisee of defendant no. 1 in the bank account of the plaintiff i.e. Bank of India, Karawal Nagar Branch, Delhi, which also shows that part cause of action arose within the jurisdiction of this court. Accordingly, this issue is decided in favour of plaintiff and against the defendant no. 1.
Issue no.4:-
(iv) Whether to generate duly filled in E-way bill was the responsibility inter se the plaintiff and defendant no.1 ? OPD-2, 3 and 6.
31. Onus to prove this issue was upon defendant no.2, 3 and 6. Ld. Counsel for defendant no. 2, 3 and 6 argued that the transaction between plaintiff and defendant no. 2 was on ex-warehouse basis and defendant no. 2 had no legal obligations to transport the products purchased by the plaintiff. It is submitted that the defendant no. 2 recommended the name of defendant no. 1 as a transporter to the plaintiff only upon the request of the plaintiff and as a good faith measure.
32. Ld. counsel for defendant no. 2, 3 and 6 vehemently argued that under sub rule of 138 of the CG and ST Rules, CS (Comm.) 104/2019 M/s Cine Aryan vs. DTDC Express Ltd and Ors. Page 18 of 27 Digitally signed SANJEEV by SANJEEV KUMAR KUMAR MALHOTRA MALHOTRA Date: 2024.08.16 16:35:25 +0530 2017, where E-way bill is not generated under sub rule 2 as the goods are handed over to the transporter for transportation by road and are not being transported directly by the registered person as a consignor or as a consignee, in such eventuality as per sub rule 3 of 138 of CG and ST Rules, it is responsibility of the transporter to fill Part B of the E-way bill. It is thus submitted that defendant no. 2 cannot be held liable for not filling Part B of the E-way bill and the consequence thereof.
33. Ld. Counsel for defendant no. 1 argued that plaintiff and defendant no. 2, 3 and 6 have not proved that services of defendant no. 1 were taken for the transaction in question as they are relying upon photocopy of the consignment note Mark E which as per defendant no. 1 was obtained by fraud and is a forged and fabricated document. Ld. Counsel for defendant no. 1 further argued that without prejudice to his submissions, Part B of E-way bill is required to be filled either by the registered person who is either the consignee or the recipient of the goods and defendant no. 1 is not liable to fill Part B of E-way bill and no liability can be casted upon defendant no. 1.
34. D1W1 Sh. Neeraj Kumar Singh in his cross-
examination admitted that in para 10 (v) of the written statement which is also filed by him, it is stated that consignment note in question was provided by Mr. Kumaravel to Mr. Nathin and Mr. Arif representatives of dispatch team of defendant no. 2 for booking of a shipment through route vehicles of defendant no. 1 to Hissar, CS (Comm.) 104/2019 M/s Cine Aryan vs. DTDC Express Ltd and Ors. Page 19 of 27 Digitally signed by SANJEEV SANJEEV KUMAR KUMAR MALHOTRA MALHOTRA Date:
2024.08.16 16:35:31 +0530 Haryana in terms of the franchisee agreement and they have not stated in their written statement that the consignment note was forged and fabricated. Defendant no. 1 has taken a plea as also mentioned in written submissions that consignment note was obtained by fraud and misused therefore, the onus was upon the defendant no. 1 to prove the alleged fraud and misuse of consignment note G90313141 by examining its franchisee Mr. Kumaravel or any other witness.
35. D1W1 Sh. Neeraj Kumar Singh has admitted in his cross-examination that Kumaravel is the franchisee of the DTDC at Chennai. It was argued by Ld. Counsel for defendant no. 1 that plaintiff has not impleaded Mr. Kamaravel as a party. It is a settled law that principal is liable for all lawful acts done by his agent in exercise of the authority conferred upon him. Therefore, when the plaintiff has sued the principal, the agent is neither necessary nor proper party. The authorities as relied upon by Ld. Counsel for defendant no. 1 are not helpful in the present facts and circumstances of the case.
36. Ex. PW1/11 (Colly) are the printouts of e-mails exchanged between plaintiff and officials of defendant no. 2 regarding the transportation of consignment. Perusal of same shows that vide e-mail dated 17.04.2018, plaintiff was asked to confirm his freight forwarder so that they can take it forward accordingly and in reply to the said e-mail, plaintiff vide e-mail dated 18.04.2018 informed the defendant no. 2 about the shipping address and requested CS (Comm.) 104/2019 M/s Cine Aryan vs. DTDC Express Ltd and Ors. Page 20 of 27 Digitally signed SANJEEV by SANJEEV KUMAR KUMAR MALHOTRA MALHOTRA Date: 2024.08.16 16:35:36 +0530 while mentioning 'please make arrangement for the dispatch'. The other e-mails which are part of Ex. PW1/11 (Colly) between the plaintiff and officials of defendant no. 2 show that the defendant no. 2 had taken competitive quote from DTDC and informed about the best price they could get and thereafter the freight charges of Rs.71,089/- including insurance and GST (To pay basis) as a quote for dedicated vehicle from DTDC was communicated to the plaintiff. Proforma invoice Ex. PW1/D2-1 also shows that terms of delivery was ex-warehouse Chennai. Thus, defendant no. 2 or his employees were under no legal obligation for transportation of the consignment as they facilitated the transportation of goods at request of the plaintiff after taking his approval for DTDC as a transporter and also got finalized the freight charges. Therefore, it was not the responsibility of the defendant no. 2 or its officials i.e. defendant no. 3 and 6 to fill the Part B of the E-way bill either on behalf of plaintiff or defendant no. 1.
37. It is also plea of the defendant no. 1 that the plaintiff was equally negligent in the entire transaction in question with regard to transportation of goods and as such guilty of contributory negligence. It is also not in dispute that part A of E-way bill was generated from the GST portal and it was mentioned thereupon 'Not valid for movement as Part B is not entered'. The WhatsApp chatting between plaintiff and defendant no. 2 i.e. Ex. PW1/12 shows that the Part A of E- way bill was generated by using the ID and password of the plaintiff which he provided to the official of defendant CS (Comm.) 104/2019 M/s Cine Aryan vs. DTDC Express Ltd and Ors. Page 21 of 27 Digitally signed by SANJEEV SANJEEV KUMAR KUMAR MALHOTRA MALHOTRA Date: 2024.08.16 16:35:42 +0530 no. 2 through WhatsApp. Now, the question arises whether it was responsibility of plaintiff or of defendant no. 1 to fill Part B of the E-way bill when the goods were transported from the warehouse of defendant no. 2 situated at Chennai for delivery at Hissar, Haryana. In this regard, Rule 138 of the C.G. & ST Rule 2017 reads as under:-
(2) Where the goods are transported by the registered person as a consignor or the recipient of supply as the consignee, whether in his own conveyance or a hired one or a public conveyance, by road, the said person shall generate the e-way bill in FORM GST EWB -01 electronically on the common portal after furnishing information in Par B of FORM GST EWB-01. .......... (3) Where the e-way bill is not generated under sub-rule (2) and the goods are handed over to a transporter for transportation by road, the registered person shall furnish the information relating to the transporter on the common portal and the e-way bill shall be generated by the transporter on the said portal on the basis of the information furnished by the registered person in Part A of FORM GST EWB -01.
38. Copy of order u/s 129 (3) of the Central Goods and Services Act, 2017 dated 16.05.2018 i.e. Ex. PW1/14 by which penalty was imposed upon the plaintiff also shows that Part A of the E-way bill was generated and Part B was not entered and submitted online on the website. As the driver of truck no. HR39C7110 was carrying an invalid E- way bill, a total liability of Rs. 10,57,364/- was imposed and same was paid by the plaintiff vide payment receipt 16.05.2018 i.e. Mark F. Thus, the responsibility of the plaintiff being a registered person was to furnish the information relating to the transporter on the common portal which is appearing in Part A of the E-way bill and therefore as per Rule 138 (3) of C.G. & S.T. Rule 2017, it CS (Comm.) 104/2019 M/s Cine Aryan vs. DTDC Express Ltd and Ors. Page 22 of 27 Digitally signed SANJEEV by SANJEEV KUMAR KUMAR MALHOTRA MALHOTRA Date: 2024.08.16 16:35:49 +0530 was duty of the transporter to generate E-way bill on the basis of information furnished by the registered person in Part A of the Form GST.
39. DW2 Sh. Rohan Ravindernath Amin in his affidavit of evidence Ex. DW2/W1 deposed that it was the responsibility of the defendant no. 1 being the transporter to fill Part B of the E-way bill and any negligence in filing the E-way bill was of the defendant no. 1 which fact is evident as upon confiscation of the vehicle carrying the products of the plaintiff, Part B of the E-way bill was filled by defendant no. 1 and sent to defendant no.2 vide E-mail dated 12.05.2018 which was thereupon forwarded to the plaintiff vide E-mail dated May 11,2018 at 23:33:27 EDT (i.e. approx. 09:00 am IST May 12, 2018) and proved the e-mails alongwith E-way bill as Ex. DW2/8 and Ex. DW2/9. In his cross-examination to a specific suggestion as put by Ld. Counsel for defendant no. 1, D2W1 admitted that except one e-mail dated 12.05.2018 which was sent by DTDC to defendant no. 2, which was forwarded by defendant no. 2 to plaintiff regarding the Part B of the E-way bill when the truck was impounded, other e-mails are between plaintiff and defendant no. 2. Thus, it is admitted by defendant no. 1 that the Part B of the E-way bill was forwarded to defendant no. 2 by the defendant no. 1 which was thereafter forwarded to the plaintiff after the truck was impounded. This fact also shows that it was the responsibility of the transporter i.e. defendant no. 1 to fill the Part B of the E-way bill before movement of the truck/vehicle for transportation of the goods but the same CS (Comm.) 104/2019 M/s Cine Aryan vs. DTDC Express Ltd and Ors. Page 23 of 27 Digitally signed by SANJEEV SANJEEV KUMAR KUMAR MALHOTRA MALHOTRA Date: 2024.08.16 16:35:56 +0530 was done by defendant no. 1 after the vehicle was confiscated by the Excise and Taxation Officer, Hissar, Haryana. Accordingly, this issue is decided against defendant no. 1 and in favour of the defendant no. 2, 3 and
6. Issue no.5:-
(v) Whether plaintiff is entitled for recovery for a sum of Rs.14,27,030/-, if yes from all the defendants jointly and/or severally? OPP
40. Onus to prove this issue was upon the plaintiff.
Plaintiff in his affidavit of evidence Ex. PW1/A deposed that a tax liability towards IGST of Rs. 5,28,682/- and penalty of Rs. 5,28,682/- was imposed upon him by the Excise and Custom Officer, Hissar with a warning that in case of non payment of the said amount, the goods shall be confiscated and auctioned by the Department and as his prestige was at stake, he arranged the amount of Rs. 10,57,364/- and paid the same to get the consignment released. He further deposed that he already paid IGST amounting to Rs. 5,20,157.80 calculated at the rate of 18% as applicable on the goods and due to the negligence of the defendants, he had to pay GST twice for the same goods. Plaintiff has claimed Rs. 1,22,000/- towards expenses and thus demanded a sum of Rs.11,79,364/- alongwith interest @18% per annum vide legal notice Ex. PW1/16.
41. Ld. Counsel for defendant no. 1 argued that plaintiff admitted his mistake in legal proceedings before his statutory authority and paid up the penalty therefore, he CS (Comm.) 104/2019 M/s Cine Aryan vs. DTDC Express Ltd and Ors. Page 24 of 27 Digitally signed SANJEEV by SANJEEV KUMAR KUMAR MALHOTRA MALHOTRA Date: 2024.08.16 16:36:02 +0530 cannot make a case of negligence to claim refund of the penalty. It is further submitted that plaintiff has not taken any steps to mitigate the loss rather he admitted his mistake and paid the entire penalty amount. The penalty was imposed upon the plaintiff as the truck driver was carrying invalid E-way bill and while answering issue no. 4, I have already held that it was the responsibility of the transporter/defendant no. 1 to fill the Part B of E-way bill on the portal after the plaintiff generated Form A on the portal alongwith information relating to transporter. A sum of Rs.30,000/- was also deposited in the account of plaintiff by defendant no. 1 as diesel charges and after the truck was confiscated, the defendant no. 1 also sent the E-way bill with filled Part B to the defendant no. 2 who forwarded the same to the plaintiff. As per plaintiff, he arranged the penalty amount and deposited the same to get released the goods as his prestige was at stake. Therefore, I do not find force in the contention of Ld. Counsel for defendant no. 1 that as plaintiff admitted his mistake in legal proceedings, he cannot claim refund of penalty from defendant no. 1.
42. Further, PW1 in his cross-examination by Ld. Counsel for defendant no. 1 denied the suggestion that he had not taken steps to mitigate his losses and voluntarily deposed that he made efforts to claim benefits of paid GST but due to penalty imposed by the Excise Department, the same was not refunded to him. Therefore, it is held that plaintiff is entitled for refund of loss/penalty i.e. Rs.10,57,364/- from the transporter i.e. defendant no. 1 on account of not filling of Part B of the E-way bill which was to be filled by CS (Comm.) 104/2019 M/s Cine Aryan vs. DTDC Express Ltd and Ors. Page 25 of 27 Digitally signed by SANJEEV SANJEEV KUMAR KUMAR MALHOTRA MALHOTRA Date: 2024.08.16 16:36:07 +0530 the transporter. Plaintiff has not given the details of expenses of Rs. 1,22,000/- incurred by him and therefore he is not entitled for these expenses of Rs. 1,22,000/-. It is thus held that the plaintiff is entitled for recovery for a sum of Rs. 10,57,364/- from defendant no. 1. Accordingly, this issue is decided in favour of plaintiff and against the defendant no. 1.
Issue no.6:-
(vi) Whether plaintiff is entitled for pendente lite and future interest @18 % per annum? OPP
43. Onus to prove this issue was upon the plaintiff.
Plaintiff has claimed interest @18% per annum. The present suit is filed by plaintiff for claiming damages on account of penalty paid by him and therefore plaintiff is entitled for reasonable interest as provided u/s 34 CPC i.e. 6% per annum. Accordingly, it is held that plaintiff is entitled for interest @ 6% per annum from the date of filing of the suit till realization. Accordingly, this issue is decided in favour of plaintiff and against the defendant no. 1.
Relief.
44. In view of my findings on the above said issues, suit of the plaintiff is decreed for a sum of Rs.10,57,364/- (Rupees Ten Lacs Fifty Seven Thousand Three Hundred Sixty Four Only) along with interest @ 6% per annum from the date of filing of the suit till realization in favour of plaintiff and against the defendant no. 1. Costs of the CS (Comm.) 104/2019 M/s Cine Aryan vs. DTDC Express Ltd and Ors. Page 26 of 27 Digitally signed SANJEEV by SANJEEV KUMAR KUMAR MALHOTRA MALHOTRA Date: 2024.08.16 16:36:13 +0530 suit are also awarded to the plaintiff.
Decree Sheet be prepared accordingly.
Digitally signedFile be consigned to Record Room. SANJEEV by SANJEEV KUMAR MALHOTRA KUMAR MALHOTRA Date:
Announced in the open court 2024.08.16 16:36:19 +0530 on 16.08.2024 (Sanjeev Kumar Malhotra) District Judge (Commercial Court) North-East District Karkardooma Courts, Delhi CS (Comm.) 104/2019 M/s Cine Aryan vs. DTDC Express Ltd and Ors. Page 27 of 27