Delhi District Court
M/S Radha Madhav Exim Ltd vs Sandeep Sharma on 11 February, 2015
In the Court of Dr. Rakesh Kumar : Additional District Judge
(South District), Saket Court Complex, New Delhi
Suit No. 9/2014
Unique ID No :02406C0020752013
In the matter of :
M/s Radha Madhav Exim Ltd.
having registered office at
Suite #4G, Uppals M6 Plaza
Jasola District Centre,
New Delhi110076. ......Plaintiff
V E R S U S
1.Sandeep Sharma partner of M/s Star Exim, M/s Rattan Logistics and M/s Karan Logistics Office at: Suit #106, G.K. House, Sant Nagar, New Delhi 110065.
2. Savinder Sharma W/o Sandeep Sharma partner of M/s Star Exim, M/s Rattan Logistics and M/s Karan Logistics Office at: Suit #106, G.K. House, Sant Nagar, New Delhi 110065.
3. M/s Star Exim
4. M/s Rattan Logistics
5. M/s Karan Logistics (all 3, 4 & 5 having address) 5 & 6, Ganpati Complex Main Vasant Kunj Road Mahipalpur, New Delhi37 .......Defendants CS No: 19/14 Page no. 1 / 12 Date of institution : 24.01.2013 Reserved for Judgment : 06.02.2015 Date of decision : 11.02.2015 Suit for Recovery J U D G M E N T (e xparte )
1. This is a suit for recovery of Rs. 7,48,437/ (Rupees Seven Lakhs Forty Eight Thousand Four Hundred Thirty Seven Only) along with interest and costs.
2. Facts alleged in the plaint are that the plaintiff company is a reputed trading and merchant exporters of heavy industrial machinery, spare parts and allied items and has been selling and exporting the heavy machinery and parts to Nigeria for last several years. The defendants no. 1 and 2 are husband and wife and have been working as custom clearing and forwarding agents and have been handling export consignment of their clients for the purpose of inland transportation to various ports, customs clearances and also further transshipment to destination country. The plaintiff entrusted various consignments to the defendants no. 1 and 2 on regular basis and in the name of their three firms for transporting the same to the Mundra port for onward shipment to the destination. The defendant submitted that the plaintiff separate bills/invoices of their firms for each CS No: 19/14 Page no. 2 / 12 consignment separately. The officials of the plaintiff believing that the invoices raised by the defendants no. 1 and 2 were real and genuine made full payment of invoices. The auditors of the plaintiff company while finalizing the accounts and scrutinizing the invoices submitted by the defendants no. 1 to 5 noticed that there are discrepancies in respect of CTN and THC charges as were claimed by the defendants no. 1 to 5 in their invoices and they claimed at a much higher rate than what was actually charged by the service provided. The detailed scrutiny of all the invoices submitted by the defendants no. 1 to 5 reveals that the defendants submitted various forged and fabricated invoices. The defendants by their illegal acts of forgery and cheating obtained a total of Rs. 12,54,677/ from the plaintiff company despite the fact that this amount was not payable by the defendant company to the plaintiff.
3. The defendants could not be served in ordinary way. Thereafter, the defendants were served through publication in the newspaper, "The Statesman" published on 12.07.2013. The defendants failed to enter their appearances and they were proceeded exparte and the plaintiff was directed to bring ex parte evidence.
4. The plaintiff examined two witnesses. PW1 is H.S. Patwal who also produced the documents Ex.PW1/1 to Ex.PW1/33. PW2 is S.N. Garg, who also produced the documents from Ex. PW2/1 CS No: 19/14 Page no. 3 / 12 to Ex. PW2/145.
5. I have heard counsel for the plaintiff and perused the material available on record.
6. To prove the plaintiff' case, it is stated by PW2 S.N. Garg that he was working as Deputy General Manager with the plaintiff company and was authorized representative of the plaintiff company vide Resolution dated 31.12.2012(copy of Board Resolution is Ex.PW2/1) of the Board of Directors of the plaintiff company. It is further stated by PW2 S.N. Garg that he was well conversant with the facts of the case and he had dealt with the matter. It is further stated by PW2 that Mr. Y.N. Sharma, General Manager is also authorised by the same resolution to institute the present suit and he had seen him writing and signing. It is further stated by PW2 that the plaintiff company is a reputed traders, merchant exporters of heavy industrial machinery, spare parts and allied items and has been selling and exporting the heavy machinery and parts to Nigeria for last several years. It is further stated by PW2 that the defendants no. 1 and 2 are husband and wife and have been working as custom clearing and forwarding agents and have been handling export consignment of their clients for the purpose of inland transportation to various ports, customs clearances and also further transshipment to destination country. It is further stated CS No: 19/14 Page no. 4 / 12 by PW2 that after the number of meetings with the defendant, the plaintiff company agreed to give to the defendant a job of transportation of their consignment containers to Mundra Port, Kandla, for uploading in the ship for overseas transportation to Nigeria and also for customs clearances etc. It is further stated by PW2 that accordingly, the plaintiff entrusted various consignments to the defendants no. 1 and 2 on regular basis and in the name of their three firms for transporting the same to the Mundra port for onward shipment to the destination country i.e. Nigeria. It is further stated by PW2 that after completing the transportation and custom clearance job whenever required, the defendant submitted with the plaintiff the separate bills/invoices for each consignment separately. It is further stated by PW2 that in these bills/ invoices the defendants claimed the transport charges and other expenses towards the CTN Charges, THC charges, Customs clearance charges etc. It is further submitted by PW2 that these bills/ invoices raised by the defendants also contained charges towards the CTN i.e. (Consignment Tracking number) obtained by the defendants, from M/s Hind Freight Services Pvt. Ltd., Andheri (E), Mumbai for each consignment separately. It is further submitted by PW2 that along with their invoices the defendants also submitted the invoices alleged to be issued by M/s Hind Freight Services Pvt. Ltd. for issuance of the CTN for each consignment and the defendants thus claimed the CS No: 19/14 Page no. 5 / 12 amounts mentioned in the said invoice of M/s Hind Freight Services Pvt. Ltd. from the plaintiff. It is further submitted by PW2 that the defendants raised various invoices during the financial year 20102011 as well as in financial year 20112012 to the plaintiff company in the name of their firms M/s Karan Logistics (Defendant no.5), M/s Star Exim (Defendant no. 3), M/s Rattan Logistics (Defendant no.4) in this suit and along with the invoices they submitted the debit notes alleged to be issued by M/s Hind Freight Services Pvt. Ltd. on account of issuing CTN charges in respect of containers containing the export consignment of the plaintiff company and also the Bill of Landings issued by carrier and the invoices issued by M/s Hind Terminals Pvt. Ltd. It is further submitted by PW2 that in the invoices of the M/s Karan Logistics, the defendants claimed the charges of CTN as alleged to be paid by defendants on behalf of plaintiff company. The copies of the various invoices of M/s Karan Logistics along with debit notes of M/s Hind Freight Services Pvt. Ltd, Hind Terminals Pvt. Ltd, and Bills of Landings are Ex. PW2/2 to PW2/108. It is further submitted by PW2 that officials of plaintiff believing that the invoices raised by the defendant no. 1 and 2 in the name of their firms M/s Star Exim, M/s Rattan Logistics and M/s Karan Logistics (defendants no. 3 to 5) and also the invoices/ Debit notes of M/s Hind Freight Services Pvt Ltd for issuance of CTN and also the invoices in CS No: 19/14 Page no. 6 / 12 respect of THC charges as submitted by the defendants along with the invoices of their firms, were real and genuine, have made the full payment of various invoices of M/s Star Exim, M/s Rattan Logistics and M/s Karan Logistics as raised by defendants from time to time. It is further submitted by PW2 that besides availing services from the defendants for the transportation and clearance of their export consignments to Nigeria, the plaintiff also transported various other consignments through other agencies from the same Mundra Port of shipment to same destination country i.e. Nigeria. It is further submitted by PW2 that these other clearing agents firms M/s Atlas Shipping Services Pvt Ltd., M/s Omtrans Logistics Pvt. Ltd. etc. also did the same jobs i.e. transportation and clearance of export consignments for the plaintiff company on similar terms as were settled with the defendants 1 and 2. The bills/ invoices as raised by these firms were also paid in the due course. It is further submitted by PW2 that the auditors of the plaintiff company while finalizing the accounts and scrutinizing the invoices submitted by defendants 1 to 5 and also all other such firms named above including M/s Atlas Shipping Services Pvt. Ltd., M/s Omtrans Logistics Pvt. Ltd., noticed various discrepancies in respect of CTN and THC charges as were claimed by defendants 1 to 5 in the invoices of their firms names M/s Star Exim, M/s Karan Logistics and M/s Rattan Logistics. The defendants no. 1 to 5 claimed the CTN charges at CS No: 19/14 Page no. 7 / 12 much higher rates than what was actually charged by the service provider. The charges fixed by the service provider M/s Hind Freight Services Pvt Ltd are @ Euro 50 for the 20 feet container and Euro 100 for the 40 feet container. The enquiries made in details with other clearing agents and also M/s Hind Freight Services Pvt Ltd confirmed that the CTN charges are fixed and the said charges are @ Euro 50 for each 20 feet container and Euro 100 for each 40 feet container. The copies of the various invoices of M/s Atlas Shipping Services Pvt Ltd and M/s Omtrans Logistics Pvt Ltd along with debit notes M/s Hind Freight Services Pvt Ltd along with copy of order placed by plaintiff are Ex. PW2/109 and PW2/119. It is further submitted by PW2 that thereafter a detailed scrutiny of all the invoices submitted by the defendants 1 to 5 in respect of their three firms above named during the period 01.04.2010 to 30.06.2011, was done and it is revealed that the defendants no. 1 to 5 submitted various forged and fabricated invoices of their firms namely M/s Hind Freight Services Pvt. Ltd., Mumbai along with various invoices of their firms namely M/s Star Exim, M/s Karan Logistics and M/s Rattan Logistics with the plaintiff company and claimed excess amounts than as were actually paid by the defendants to M/s Hind Freight Services Pvt. Ltd. on behalf of plaintiff company. It is further submitted by PW2 that the defendants no. 1 to 5, in connivance and in association with their employees namely Bhuwan Chandra and CS No: 19/14 Page no. 8 / 12 S.K. Dubey, cheated the plaintiff company and caused wrongful loss to the plaintiff company and made wrongful gains to themselves. It is further submitted by PW2 that the defendants no. 1 to 5 by submitting forged and fabricated invoices of M/s Hind freight Services Pvt Ltd claimed and obtained an excess amount of Rs.1,65,187/ from the plaintiff company in the name of their firm M/s Star Exim for issuing CTN. The statement of accounts showing the details of the various invoices under which the above mentioned excess amount of Rs.1,65,187/ was so claimed in the name of Star Exim is Ex. PW2/120. It is further submitted by PW2 that the defendants also submitted forged and fabricated invoices of M/s Hind Freight Services Pvt. Ltd and claimed and obtained an excess amount of Rs.1,50,578/ from the plaintiff company int he name of their firm M/s Ratan Logistics is Ex. PW2/121. It is further submitted by PW2 that the defendants also submitted forged and fabricated invoices of M/s Hind Freight Services Pvt. Ltd and claimed and obtained an excess amount of Rs.9,38,912/ from the plaintiff company in the name of their firm M/s Karan Logistics is Ex. PW2/122 to Ex. PW2/124. It is further submitted by PW2 that the defendants illegally obtained Rs.12,54,677/ from the plaintiff company by raising forged and fabricated invoices of M/s Hind Freight Pvt Ltd. It is further submitted by PW2 that thereafter plaintiff company raised debit entries/ vouchers in the name of above named three CS No: 19/14 Page no. 9 / 12 firms of the defendants no. 3 to 5 and copy of statement of accounts Ex. PW1/120 to PW 1/124. It is further submitted by PW2 that they requested defendants to refund the excess amount illegally obtained by them on the basis of forged documents and invoices. The copy of debit notes/ vouchers issued by plaintiff to defendants and the statement of accounts Ex. PW2/125 to Ex. PW2/133 and copy of letter dated 18.10.2011 issued to the defendants demanding the payment of excess amount obtained by defendants along with postal receipts are Ex. PW2/134 to Ex. PW2/139. It is further submitted by PW2 that there was a credit balance in the name of M/s Star Exim is Rs.74,670.50/ prior to the date of scrutiny of documents by auditors and a sum of Rs. 90,516.50/ is payable by defendant. It is further submitted by PW2 that there was a credit balance in the name of M/s Karan Logistics is Rs.6,00,973/ prior to the date of scrutiny of documents by auditors and a sum of Rs.3,37,939/ is payable by defendant and the officials of the plaintiff, believing that the invoices raised by the defendant no. 1 and 2 were real and genuine, made full payment of invoices. It is also stated that alongwith the debit notes alleged to be issued by M/s Hind Freight Services Pvt. Ltd. on account of issuing CTN charges in respect of containers containing the export consignment and bill of lading issued by carrier and M/s Hind Freight Services Pvt. Ltd. are Ex.PW2/2 to Ex.PW2/108. It is further stated by PW2 that the CS No: 19/14 Page no. 10 / 12 auditors of the plaintiff company, while finalizing the accounts and scrutinizing the invoices submitted by defendant no. 1 to 5, noticed that there are discrepancies in respect of CTN and THC charges as were claimed by defendant no. 1 to 5 in their invoices. It is also stated by PW2 that the defendants claimed at a much higher rate than what was actually charged by the service provided and the copies of the various invoices are Ex.PW2/109 to Ex.PW2/119. It is further stated by PW2 that the detailed scrutiny of all the invoices submitted by defendant no. 1 to 5 reveals that the defendants submitted various forged and fabricated invoices and the statement of account showing the details of the various invoices and the excess amount of Rs. 1,65,187/ was claimed is Ex.PW2/120. It is further stated by PW2 that excess amount paid in account of M/s Star Exim is Rs. 90,516.50/, excess amount paid in account of Rattan Logistics is Rs.1,50,578/ and excess amount paid in account of M/s Karan Logistics is Rs.3,37,939/ (Total Rs.5,78,673.50/). It is further stated by PW2 that interest on such sum till 10.01.2013 @ 18% is Rs.1,69,403.50/.
7. The defendant has not put his presence or contested the case despite service by way of publication.
8. In the light of evidence of the plaintiff witnesses, it is proved that the defendant charged excess amount from the plaintiff vide the invoices Ex. PW2/2, PW2/5, PW2/8, Pw2/11, PW2/13, CS No: 19/14 Page no. 11 / 12 PW2/16, PW2/19, PW2/22, PW2/25, PW2/28, PW2/31, PW2/34, PW2/37, PW2/41, P2/44, PW2/47, PW2/53, Pw2/57, PW2/60, PW2/63, PW2/68, PW2/71, PW2/77, PW2/80, PW2/83, PW2/88, PW2/91, PW2/95, PW2/104, PW2/11, PW2/107 and PW2/99 which amounts to Rs.5,79,033.50/ which is liable to be refunded to the plaintiff.
9. For the discussion abovestated, this suit is decreed. The defendant shall pay a sum of Rs.5,79,033.50/ (Rupees Five Lacs Seventy Nine Thousand Thirty Three and Fifty paise only) to the plaintiff. The plaintiff has claimed interest on such sum at the rate of 24% per annum but there is no document to prove that the interest at such rate is payable, therefore, I deem it appropriate that the defendant shall pay interest on such sum at the rate of 12% per annum from the date of demand notice i.e. 18.10.2011 till the date of payment. Costs of the suit is also awarded in favour of the plaintiff. Decree sheet would be prepared accordingly.
Announced in the Open Court on 11.02.2015 (Dr. Rakesh Kumar) Additional District Judge South District, Saket Court Complex New Delhi CS No: 19/14 Page no. 12 / 12