Delhi District Court
Amritras India (Through Partner Sh. S. ... vs M/S Godara Roadways Pvt Ltd (Th. ... on 17 February, 2024
IN THE COURT OF SHRI PANKAJ GUPTA:
DISTRICT JUDGE, (S/W) (COMMERCIAL COURT)-01,
DWARKA COURTS : DELHI.
CS (COMM) NO. 54-2022
ID No. CNR No. DLSW01-012996-2021
In the matter of :
AMRITRAS INDIA
PARTNERSHIP FIRM
THROUGH PARTNER
SH. S. BHUPINDER SINGH CHAWLA
17A/39, W.E.A. VARDAN HOUSE, 1st FLOOR,
AJMAL KHAN ROAD, KAROL BAGH
NEW DELHI-110005
e-mail: [email protected]
...........PLAINTIFF
Versus
M/S. GODARA ROADWAYS PVT. LTD.
(THROUGH DIRECTOR/MANAGING DIRECTOR/
AUTHORIZED SIGNATORY
KHASRA NO. 8/26/1, BIJWASAN KAPESHERA,
NEW DELHI
MOB: 7506476993
e-mail: [email protected]
...........DEFENDANT
Date of Institution : 16.02.2022
Date when the case reserved
for Judgment : 17.02.2024
Date of Judgment : 17.02.2024
JUDGMENT
1. The plaintiff filed the suit for recovery of Rs.
5,49,758/- along with interest @ 18% p.a. from the date of filing of the suit till realization on the money.
Amritras India Vs. Page No. 1 Of 20M/s Godara Roadways Pvt. Ltd.
2. In the plaint, it is stated that the plaintiff, a registered partnership firm, is engaged in the business of the automotive accessories. Mr. S. Bhupender Singh Chawla, partner of the plaintiff's firm, is competent to sign, verify and institute the suit on behalf of the plaintiff. The defendant, a private limited company, is engaged in the business of transport and used to provide trucks for that purpose.
3. In the plaint, it is also stated that the plaintiff is the sole agent of various products of 'Areon Brand' a registered brand of 'Balev Corporation Bulgaria' with respect to the car and home fragrance products for Indian Market and used to import the Areon products from Bulgaria Port, Varna to Nhava Sheva Port in Mumbai. The plaintiff had engaged R.S. Shipping Agency India. Ltd. (Clearing and Forwarding Agent) (hereinafter referred to as 'RSSAIPL') as its custom handling agent. In the year 2012, RSSAIPL introduced the defendant to the plaintiff and the defendant assured the plaintiff to provide its services for transportation of the plaintiff's consignment from Nhava Sheva Port, Mumbai to its warehouse at 1/58, WHS Raman Timber, Kirti Nagar, New Delhi. On negotiations, it was agreed that the plaintiff's containers would be sealed at Mumbai and their seal image would be recorded and would be shared with the plaintiff. On arrival of the containers at Delhi, the plaintiff would compare their seal image with the actual seal and on being satisfied, it would allow unloading of the goods. The unloading process would include matching the incoming consignment with the invoice and packaging slip issued by Amritras India Vs. Page No. 2 Of 20 M/s Godara Roadways Pvt. Ltd.
Balev Corporation as part of shipping documents. In last five years, the defendant handled more than 15 containers movement every year for the plaintiff. The plaintiff had been making the payments to the defendant as agreed between them. The plaintiff has maintained a ledger account in the name of the defendant.
4. In the plaint, it is also stated that on 17.02.2020, the plaintiff received a consignment i.e. 20 feet container vide invoice no. 1000102345 and bill of lading no. CBJ0117359 dated 16.12.2019 from Varna Port at Bulgaria (hereinafter referred to as the "consignment-I"). After necessary clearance, the consignment-I reached at Nhava Sheva Port in Mumbai and from there, it was transported to Delhi via the defendant's truck no. HR-55AB-9451 which arrived at the plaintiff's warehouse early morning on 17.02.2020. That time, the plaintiff was shocked to note that the seal of the container carrying the consignment-I was missing. Hence, the plaintiff refused to unload the consignment-I and immediately, informed the defendant and its director Mr. Balbir Singh about missing seal of the container. Consequently, the defendant deputed its two officials to visit at the site and till then, the plaintiff had neither opened the container nor unloaded the consignment-I. Later, the defendant lodged a police complaint at PS Kirti Nagar, Delhi. Subsequently, the consignment-I was unloaded in the presence of the police officials, the defendant's official and the plaintiff and it was noted that against the goods receipt (GR) for 820 cases, the consignment-I had 784 cases only. As such, 36 cases were missing. The said fact was Amritras India Vs. Page No. 3 Of 20 M/s Godara Roadways Pvt. Ltd.
acknowledged by the defendant on GR. As such, the defendant acknowledged its liability for the missing cases. Accordingly, the plaintiff suffered loss of Rs. 4,13,352/- on account of the missing cases.
5. In the plaint, it is also stated that on 18.03.2020, the plaintiff received another consignment at Nhava Sheva Port, Mumbai (hereinafter referred to as the "consignment-II") and its clearing agent got the said consignment cleared. However, there was delay in completion of clearing process due to lock down imposed because of Covid-19 pandemic. On 20.05.2020, the plaintiff initiated the process of clearing through customs. Once the consignment-II got cleared, the plaintiff engaged the defendant for its transportation to Delhi. The consignment-II was scheduled to arrive at the plaintiff's warehouse at Delhi on 27.05.2020, however, it was not arrived. On inquiry, the defendant's official informed that by that time, one truck must reached at the plaintiff's warehouse. The plaintiff was shocked to hear the same because as per practice, the 20 feet container consignment used to be in single truck. On inquiry, the defendant's official informed that initially, the consignment- II was boarded in one truck but on the highway, it met with an accident due to which the consignment-II was shifted in two small trucks and was brought to Delhi and had reached at the defendant's warehouse. The defendant asked the plaintiff to first clear the outstanding dues relating to the consignment-I and only then, it would hand over the consignment-II to the plaintiff. The plaintiff protested against the said act of the defendant as the defendant had to Amritras India Vs. Page No. 4 Of 20 M/s Godara Roadways Pvt. Ltd.
settle the plaintiff's loss of Rs. 4,13,352/- on account of the consignment-I but the defendant did not accede to the request of the plaintiff. Since, the cost of the consignment-II was Rs. 66 lacs approximately, hence, the plaintiff under coercion and threat of the defendant was left with no option but to clear the outstanding dues relating to the consignment-I to get the consignment-II at its warehouse. The consignment-II had some packages in damaged condition but the plaintiff had not raised issue to that effect. Hence, the plaintiff is entitled to recover Rs. 4,13,352/- along with interest @ 18 % p.a. for 18 months from March 2020 till the date of the institution of the suit. Hence, the plaintiff has filed the suit for recovery of Rs. 5,49,758/-.
6. Notice of the suit was served upon the defendant and the defendant has filed the written statement (WS). In WS, the defendant has raised the objections that this court does not have territorial jurisdiction to entertain the present suit; that the plaintiff is not a registered partnership firm, hence, it cannot file the suit in its own name and that the suit is bad for non-joinder of RSSAIPL as necessary and proper party to the suit. On merit, it is stated that the defendant, being a carrier, is governed by the provision of Carriage by Road Act 2007, and the Rules of 2017. The defendant admitted that the plaintiff used to book the consignment(s) for transportation through its truck from Mumbai to Delhi but stated that the seal was not affixed by the defendant on the container every time. It is also stated that the loss relating to the consignment-I was due to act of antisocial elements/thieves which took place in the premises of the Amritras India Vs. Page No. 5 Of 20 M/s Godara Roadways Pvt. Ltd.
plaintiff and not due to fault of its driver as the plaintiff's go-down was located in theft prone area. Hence, it is prayed that the suit may be dismissed.
7. The plaintiff filed the replication and reiterated the averments made in the plaint.
8. On 04.01.2023, the following issues were framed:-
1. Whether the plaintiff is entitled to recover the amount claimed? OPP
2. If answer to the issue no. 1 is in affirmative, whether the plaintiff is entitled to interest? If so, at what rate and for which period ? OPP.
3.Relief.
9. To prove its case, the plaintiff examined two witnesses i.e. Arvind Kumar Mittal as PW-1 and Surender Singh Bisht as PW-2.
10. PW-1 tendered his affidavit by way of evidence Ex. PW-1/A and relied upon the following documents:-
1. Certificate of registration dated 07.02.2017 (form A and form B) Ex. PW-1/1 (OSR).
2. Commercial invoice bearing no. 1000102345 dated 16.12.2019 Ex. PW-1/2 (colly).
3. Bill of lading bearing no. CBJ0117359 Ex. PW-1/3.
4. Consignment note no. 083842 dated 14.02.2020 Ex. PW-1/4.
5. Consignment note no. 083843 dated 14.02.2020 Ex.
PW-1/5.
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6. Copy of FIR dated 17.02.2020 Ex. PW-1/6.
7. List of missing materials Ex. PW-1/7.
8. Letter dated 17.02.2020 Ex. PW-1/8.
11. PW-2 tendered his affidavit by way of evidence Ex. PW-2/A and relied upon the documents relied upon by PW1.
12. Counsel for the defendant cross-examined PW-1 and PW-2 at length.
13. The defendant examined Rajeev Kumar in its defence as DW-1 who tendered his affidavit by way of evidence Ex. DW-1/A and relied upon the following documents :-
1. Board Resolution dated 23.04.2022 Ex.DW1/1.
2. Authority letter dated 23.04.2022 Ex.DW1/2.
3. Master Data of defendant company Ex.DW1/3.
4. Affidavit under Section 65B of the Indian Evidence Act Ex.DW1/4.
14. Counsel for the plaintiff cross-examined DW-1 at length.
15. I have heard the learned counsel for the plaintiff and counsel for the defendant and have perused the material available on record.
16. Counsel for the defendant pleaded that this court does not have the territorial jurisdiction to entertain the present Amritras India Vs. Page No. 7 Of 20 M/s Godara Roadways Pvt. Ltd.
suit. Vide order dated 04.01.2023, it was held that this court has territorial jurisdiction to entertain the present suit. As per record, the said order is final as on date. Hence, the defendant cannot re-agitate the said issue at this stage.
ISSUES NO. 1 AND 217. The onus to prove the issues no. 1 and 2 was on the plaintiff. The issues no. 1 and 2 are taken up together as they involve common discussion.
18. Counsel for the defendant pleaded that the plaintiff, an unregistered partnership firm, has filed the present suit in its own name, hence, the suit is hit by section 69 of the Indian Partnership Act, 1932. Therefore, the suit may be dismissed being non maintainable.
19. It is the case of the plaintiff that it is a registered partnership firm under the Indian Partnership Act 1932, and S Bhupender Singh Chawla, one of its partner, is competent to sign, verify and institute the suit on behalf of the plaintiff. PW-1 in his testimony proved the certificate of registration of the plaintiff firm Ex.PW-1/1. It is nowhere of the case of the defendant that the certificate Ex.PW-1/1 is not the authenticated one. Even in cross examination of PW-1, no suggestion to that effect was given by counsel for the defendant. Hence, it is proved that the plaintiff, a registered partnership firm, has instituted the present suit through one of the partners. As such, the suit is maintainable. Hence, there is no substance in the plea raised by the defendant.
Amritras India Vs. Page No. 8 Of 20M/s Godara Roadways Pvt. Ltd.
20. Counsel for the plaintiff pleaded that the plaintiff received the 20 feet container vide invoice number 1000102345 dated 16.12.2019 for total value of US $72,938/- Ex. PW-1/2 i.e. the consignment-I and booked it for transportation with the defendant vide invoices Ex. PW- 1/4 and Ex. PW-1/5. However, the driver of the defendant parked the truck carrying the consignment-I outside the plaintiff's warehouse in early morning on 17.02.2020. Once the plaintiff noticed that the seal of the container was missing, it immediately informed the defendant about the said fact and had not unloaded the consignment-I. Subsequently, the defendant's officials came and informed the police. The police official visited at the site. Thereafter, the consignment-I was unloaded in the presence of officials of the plaintiff, the defendant and the police officials and it was noticed that the consignment-I was short of 36 cases. Hence, FIR Ex. PW-1/6 was lodged by the officials of the defendant. As such, the plaintiff suffered loss of 36 cases of value Rs. 4,13,352/- due to negligence of the defendant in discharge of duty by the defendant.
21. Counsel for the plaintiff also pleaded that in May 2020, the defendant transported the consignment-II of the plaintiff but not as per the agreed terms. However, the defendant asked the plaintiff to first clear the outstanding dues relating to the consignment-I and only then, it would hand over the consignment-II to the plaintiff. The plaintiff protested against the said act of the defendant. But since, cost of the consignment-II was Rs. 66 lacs approximately, hence, the plaintiff under coercion and threat of the Amritras India Vs. Page No. 9 Of 20 M/s Godara Roadways Pvt. Ltd.
defendant cleared the outstanding dues relating to the consignment-I to get the consignment-II at its warehouse.
22. On the other hand, counsel for the defendant pleaded that the suit is bad for non-joinder of RSSAIPL as necessary and proper party to the suit. He also pleaded that the plaintiff had not got insured the consignments. Further, the truck was parked at the premises of the plaintiff and not outside its warehouse. Hence, the defendant cannot be held liable for the loss suffered by the plaintiff.
23. It is the case of the plaintiff that RSSAIPL as its custom handling agent used to get its consignment cleared from the custom authority. Further, since the year 2012, it has been availing the services of the defendant for the transportation of its consignment from Nhava Sheva Port in Mumbai to warehouse at Delhi.
24. DW-1 in his cross examination deposed that RSSAIPL was involved in the process of clearing the plaintiff's consignment from the custom and thereafter, RSSAIPL used to provide all documents related to the custom clearance to the defendant for transportation of the consignments through its trucks and after due satisfaction in all respect, the defendant used to upload the consignment in the truck for the purpose of transportation.
25. In view of the foregoing discussions, it can be held that the role of RSSAIPL was only to get the consignment of the plaintiff cleared from the custom authority and then to Amritras India Vs. Page No. 10 Of 20 M/s Godara Roadways Pvt. Ltd.
provide the necessary documents to the defendant to enable it to load the consignment in its trucks for transportation to the warehouse of the plaintiff at Delhi. As discussed in later part of the judgment, the subject dispute pertains to missing of 36 cases out of total 820 cases part of the consignment-I loaded in the defendant's trucks on 17.02.2020 for the purpose of transportation to the plaintiff's warehouse at Delhi. Admittedly, in the said process, RSSAIPL had not role to play. Therefore, it can be held that RSSAIPL is not the necessary and proper party for adjudication of the present suit. Therefore, there is no substance in the plea raised by the defendant to this effect.
26. Admittedly, the plaintiff booked the consignment-I for transportation from Mumbai to Delhi with the defendant. It is evident from the testimony of PW-1 that when the consignment-I was loaded in the truck at Mumbai, the truck was properly sealed and the said fact was verified by RSSAIPL in the presence of the defendant's official. DW-1 in his cross examination also deposed that it used to load the consignment in the truck only after satisfaction about all clearances. Therefore, it can be held that once the consignment-I was loaded in the truck of the defendant at Mumbai against the invoices Ex.PW-1/4 and Ex. PW-1/5, a seal was affixed to ensure that there should be no tampering with that consignment till it reached at Delhi.
27. It is evident from the testimonies of PW-1, PW-2 and DW-1 that the consignment-I reached at the warehouse of the plaintiff at Delhi and it was noticed that the container Amritras India Vs. Page No. 11 Of 20 M/s Godara Roadways Pvt. Ltd.
was unsealed and intimation to that effect was given to the defendant. Admittedly, FIR Ex. PW-1/6 was lodged by the officials of the defendant because on unloading of the consignment-I, it was found short of 36 cases.
28. DW-1 in his cross examination admitted that total number of cases mentioned as 820 in the invoice Ex. PW- 1/2 were loaded in the truck for transportation vide invoices Ex. PW-1/4 and Ex. PW-1/5 and that the description of the consignment-I and its value have been mentioned in list Ex. PW-1/7 and letter dated 20.02.2020 Ex. PW1/8. Hence, it is proved that value of 36 missing cases out of the consignment-I was Rs. 4,13,352/-.
29. Now the question arises as to whether the defendant is liable for loss of 36 cases valued at Rs. 4,13,352/-.
30. Admittedly, the defendant, a registered company, is engaged in the business of transport and the plaintiff has availed the services of the defendant for transportation of its the consignments from Mumbai to its warehouse at Delhi. It is the case of the defendant that it is a "Carrier" and is governed by the provisions of Carriage by Road Act 2007, and the Rules framed thereunder in the year of 2017. DW-1 proved the master data of the defendant company Ex. DW- 1/3 to substantiate the same. The plaintiff has failed to shake the testimony of DW-1 to this effect. Hence, it can be held that the defendant is a carrier with the meaning of Carriage by Road Act, 2017. As discussed in later part of the judgment, the subject dispute pertains to loss of 36 cases out Amritras India Vs. Page No. 12 Of 20 M/s Godara Roadways Pvt. Ltd.
of total 820 cases loaded in the defendant's trucks on 17.02.2020 for the purpose of transportation to the plaintiff's warehouse at New Delhi.
31. In the judgment titled as "Essemm Logistic vs. Darcl Logistic Limited & Anr.", reported in (2023) 9 SCC 753, the Hon'ble Supreme Court held:
"5. It may be noted that the plaintiff-first respondent is a common carrier and is governed by the Carriage by Road Act, 2007 (new Act) which came into force with effect from 20.07.2010 repealing the Carriers Act, 1865.
6. The Carriers Act, 1865 vide Section 10 provided that no suit shall be instituted against the common carrier for the loss of, or injury to, goods including containers, pallets or similar articles of transport entrusted for carriage, unless a notice in writing for such loss of injury is given before the institution of the suit within six months of the loss coming to the knowledge of the plaintiff.
7. The above Section 10 of the Carriers Act, 1865 for convenience sake is reproduced hereinbelow:
"No suit shall be instituted against a common carrier for the loss of, or injury to, goods [including containers, pallets or similar articles of transport used to consolidate goods] entrusted to him for carriage, unless notice in writing of the loss or injury has been given to him before the institution of the suit Amritras India Vs. Page No. 13 Of 20 M/s Godara Roadways Pvt. Ltd.
and within six months of the time when the loss or injury first came to the knowledge of the plaintiff."
8. The above Section 10 of the Carriers Act, 1865 bars the institution of a suit only against a common carrier for the loss of, or injury to, goods entrusted to the common carriage for the purposes of carriage without giving a notice in writing of the alleged loss within six months of the loss or injury first coming to the knowledge of the plaintiff. In other words, only a suit for recovering damages for the loss of or injury to the goods entrusted to the common carrier for carriage is barred without a legal notice, as aforesaid but not suits of other nature or for recovery of any amount other than due loss or injury to the goods entrusted for carriage.
9. The Carriage by Road Act, 2007 (new) which replaced the earlier Act vide Section 16 provides as under:
"No suit or other legal proceeding shall be instituted against a common carrier for any loss of, or damage to, the consignment, unless notice in writing of the loss or damage to the consignment has been served on the common carrier before the institution of the suit or other legal proceeding and within one hundred and eighty days from the date of booking of the consignment by the consignor."
10. The aforesaid Section 16 of the new Act is more or less in pari materia with the Section 10 of the Carriers Act, 1865 which has been repealed. It also Amritras India Vs. Page No. 14 Of 20 M/s Godara Roadways Pvt. Ltd.
lays down that no suit or legal proceedings shall be instituted against a common carrier for any loss of, or damage to, a consignment unless a notice in writing of such loss to the consignment has been served upon the carrier before the institution of the suit or the legal proceedings within six months from the date of booking of the consignment by the consignor. A close look to the above provision would reveal that it not only bars the suit but also legal proceedings which were not included in the earlier provision of Section 10 of the Carriers Act, 1865. The other deviation is by the use of word "consignment" in place of "goods entrusted". In other words, both the aforesaid provisions though Section 10 of the Carriers Act stands repealed and ceased to in force, provides for a notice before instituting any suit/legal proceedings against a common carrier for any loss or damage to the consignment. The aforesaid provision is only in context of the institution of a suit or a legal proceeding for the loss of or damage to the consignment and not in respect of any other kind of loss or damage or claim other than to the loss or damage to the consignment.
15. A plain reading of Section 16 of the new Act reveals that it is applicable only in respect of institution of a suit or legal proceeding against a common carrier for any loss of, or damage to, the consignment. The use of the word "Consignment" in the said provision is very material. It denotes that the suit and legal proceedings in connection with the loss Amritras India Vs. Page No. 15 Of 20 M/s Godara Roadways Pvt. Ltd.
or damage to the consignment alone are covered by it for which purpose, a notice is mandatory. The said provision has no application in reference to loss of any other kind or the suit or legal proceedings instituted for recovery of damages in respect of loss of different nature.
32. In view of the above cited judgment, it can be held that in terms of section 16 of the Carriage by Road Act, 2007, no suit or legal proceedings shall be instituted against a common carrier i.e. the defendant herein for any loss of, or damage to, a consignment unless a notice in writing of such loss to the consignment has been served upon the carrier before the institution of the suit or the legal proceedings within six months from the date of booking of the consignment by the consignor. In the present case, before institution of the present suit, the plaintiff had only sent letter dated 17.02.2020 Ex. PW1/8 to the defendant and perusal of it nowhere reveals that the plaintiff had held the defendant liable for the said loss and was inclined to take any legal action against it. On the contrary, vide the said letter, the plaintiff had requested the defendant to investigate the matter at its end. Hence, it can be held that the suit is hit by section 16 of Carriage by Road Act, 2007 and is liable to be dismissed outrightly.
33. However, I propose to decide the case on merit also.
34. PW1 in his cross examination admitted that the consignment-I was not insured for transportation from Amritras India Vs. Page No. 16 Of 20 M/s Godara Roadways Pvt. Ltd.
Mumbai to Delhi and deposed that in past also, whenever the plaintiff dealt with the defendant, it had not got insured its consignment for the purpose of transportation. To this effect, DW1 in his cross examination, admitted that the defendant did not object to the plaintiff or RSSAIPL that it would not load the consignment-I for transfer as the same was not insured for transportation.
35. In view of the forgoing discussions, it can be held that it was prudent for the plaintiff to get the consignment-I insured against any loss. However, the said default on the part of the plaintiff in itself is not sufficient to exonerate the defendant from its liability, if the defendant is held liable for the loss caused to the plaintiff.
36. Counsel for the plaintiff that once, the truck carrying the consignment-I reached at its warehouse early morning on 17.02.2020, it noted that seal of the container was missing and therefore, its official refused to unload the consignment-I and has heavily relied upon the testimony of PW2 wherein he deposed that on 17.02.2020 at 10:00 am, when he reached at the go-down/warehouse, the truck carrying the consignment-I was parked outside the premises.
37. In the entire plaint, the plaintiff has not disclosed the exact time when the truck carrying consignment-I had reached at its warehouse and name of its official who refused to unload the consignment-I. It is also not the case of the plaintiff that the said official was PW2 or that PW2 was the first official who had noticed the container in Amritras India Vs. Page No. 17 Of 20 M/s Godara Roadways Pvt. Ltd.
unsealed condition for the first time on 17.02.2020 at 10:00 a.m. Further, the plaintiff has not filed any document to prove the presence of PW2 on 17.02.2020 at 10:00 a.m. at that place. According to PW2, other officials of the plaintiff namely Kamal, Gaurav, Chandan and Sarbjeet were also present that time. However, the plaintiff has not examined any of the said officials. It is also not disclosed whether the said officials were already present, once, PW2 had reached there or they came at the spot subsequently. Hence, the testimony is not reliable in nature.
38. In the entire plaint, it is not the case of the plaintiff is that the truck was parked outside its premises. In letter dated 17.02.2020 Ex.PW1/8, the plaintiff mentioned that it had received the material that day at its warehouse and noticed the missing seal and 36 cases. Even in that letter, the plaintiff has not mentioned that the truck was parked outside its premises. On the contrary, the plaintiff admitted that it had received the consignment at its warehouse. Further, the plaintiff has not produced any letter to show that even thereafter, it brought to the notice of the defendant that the truck was parked outside its premises. Hence, it can be held that the plaintiff has failed to prove that the driver of the truck carrying the consignment-I parked it outside the warehouse of the plaintiff and at that place, the theft had taken place.
39. It is evident from the testimony of PW1 that in May 2020, the defendant transported the consignment-II of the plaintiff from Mumbai to its warehouse at Delhi.
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40. According to the plaintiff, the consignment-II was scheduled to reach at its warehouse at Delhi on 27.05.2020, but it had not reached. On inquiry, the defendant's official informed that one truck must have been reached at the plaintiff's warehouse. The plaintiff was shocked to hear it because as per practice, the 20 feet container used to in single truck. On inquiry, the defendant' official informed the plaintiff that the consignment was boarded in one truck but on the highway, it met with an accident due to which it was shifted in two small trucks which had reached at its warehouse. The defendant asked the plaintiff to first clear the outstanding dues and only then, it would hand over the consignment to the plaintiff. The plaintiff protested against the said act of the defendant as the defendant had to settle its loss of Rs. 4,13,352/- on account of the previous consignment but the defendant did not accede to the request of the plaintiff. Since, cost of the consignment was Rs. 66 lacs approximately, hence, the plaintiff under coercion and threat of the defendant was left with no option but to clear the outstanding dues to get the consignment-II at its warehouse. It is pertinent to mention that the plaintiff has not filed any document to prove the said transaction. Further, the plaintiff has not disclosed the name of the defendant's official who pressurized, coerced and threatened it to clear the dues of Rs. 4,13,352/-. The plaintiff has also not disclosed the date and time, when it was threatened and where. The plaintiff has also not filed any document to show that it had ever protested against the act of the defendant. The plaintiff has also not filed any document to prove it had made the payment of Rs. 4,13,352/- due against the Amritras India Vs. Page No. 19 Of 20 M/s Godara Roadways Pvt. Ltd.
consignment-I under protest and had reserved its right to take the legal action against the defendant to recover the said amount.
41. In view of the foregoing discussions, it can be held that the plaintiff had voluntarily paid Rs. 4,13,352/- due against the consignment-I to the defendant. Hence, the plaintiff is estopped by its act, conduct and acquiescence to claim refund of the said amount via present suit.
42. In view of the forgoing discussions, it can be held that the plaintiff is not entitled to the suit amount. Hence, there is no occassion to grant interest in favour of the plaintiff. Accordingly, the issues no. 1 and 2 are decided against the plaintiff and in favour of the defendant.
ISSUE NO. 3 (RELIEF)
43. In view of the foregoing discussions, the plaintiff is held not entitled to the decree as prayed for. Accordingly, the suit is dismissed. No order as to cost. Decree sheet be prepared accordingly.
File be consigned to Record Room.
Digitally
signed by
Pankaj Pankaj Gupta
ANNOUNCED IN THE OPEN COURT, Date:
Gupta 2024.02.17
On this 17th day of February, 2024. 16:30:56 +0530 (PANKAJ GUPTA) District Judge, S/W (Commercial Court)-01 DELHI Amritras India Vs. Page No. 20 Of 20 M/s Godara Roadways Pvt. Ltd.