Delhi District Court
M/S Natvar Parikh Industries Ltd vs M/S O.T.I.E. (India) Pvt. Ltd on 16 February, 2008
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IN THE COURT OF SH. RAKESH TEWARI, ADJ,
TIS HAZARI, DELHI
SUIT NO. 451/04
M/S Natvar Parikh Industries Ltd.
Through its Executive Legal & Administration
7B, Atmaram House,
1, Tolstoy Marg, Connaught Place,
New Delhi-110001. ....PLAINTIFF
VERSUS
M/s O.T.I.E. (India) Pvt. Ltd.
Through its Directors
Sh.Inder Mohan Puri & Mrs.Renu Puri
4, Feorz Gandhi Road,
New Delhi.
Also at:
7-A, Maruti Industrial Area,
Sector-18, Gurgaon,
Haryana. ....DEFENDANT
Date of Institution : 16.11.2004
Date when the case reserved for Judgment: 6.2.2008.
Date of Judgment: 16.2.2008
JUDGMENT
1. The case of the plaintiff company is that it is engaged in the business of shipping, forwarding and transportation of goods, both inland and overseas and that the defendant, a private limited company, 2/27 entered into a contract with the plaintiff company vide bill of lading no.27325 dated 13.8.2002 for sea carriage of its cargo to its consignee M/s Bona Texcil GMBH, Harrigstrafe 53881 Euskirchen-Wiffkirchen, which was consigned/carried on "Frieght Collect, IHC Collect and Destination THC Collect" and ancillary charges also payable at destination by the consignee.
2. It is further mentioned in the plaint that the defendant stuffed the cargo at plaintiff's depot in 40' container no.CTNR No.MSCU- 4203722 provided by the plaintiff and the defendant handed over duly custom sealed container to the plaintiff at Delhi through its custom agent M/s On Dot Express and the container was said to contain furniture for living room and the port of delivery was hamburg but later on it transpired that a fraud was played by the defendant as the container contained only useless material.
3. It is further mentioned that the cargo sailed by vessel MSC Brussels Voyage No.5R on 19.08.2002 to port of Hamburg which reached the said port on 21.9.2002 and a cargo arrival notice was issued on 21.9.2002 to the consignee M/s Bona Texcil GMBH who did not take delivery of the cargo nor paid the ocean freight and other dues.
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4. That the plaintiff intimated the defendant vide a Fax Letter dated 21.10.2002 regarding the said non clearance of the cargo by its consignee and advised the defendant to pay the charges and to effect the taking of delivery of cargo by its consignee to avoid further charges.
5. It is further alleged that the plaintiff received letters dated 26.10.2002 and 11.11.2002 from the local agents of the Vessel Operator V5R, MSC Agency (India) Pvt. Ltd. holding the petitioner liable for all costs and damages at the said destination port due to the said undelivered cargo and by letter dated 27.2.2003, the defendant was served with debit note no.11889 for Rs.4,51,654/- and also informed the defendant's liability for paying all costs, charges including ocean freight, inland haulage charges, expenses, levies duties, storage taxes and all disposal auction charges and handling and demurrage charges etc. and a second debit note no.DEL /EXP/1931 dated 22.03.2003 for Rs.1,58,217/- towards additional stoage and detention charges upto 31.03.2002 was also issued to the defendant who did not make the payment despite repeated requests and reminders and thus, the legal notice dated 19.6.2003 was got served on the defendant which was returned with the report as "closed". 4/27
6. It is further averred in the plaint that the defendant's consignee finally informed the agent of the plaintiff on 20.2.2003 that it would not take over the container, the agent of the plaintiff in preparation of holding an auction of the contents of the container, opened the same after informing defendant's consignee, on 7.4.2003 and it was found that the contents were bulky refuse type useless items due to which the mandatory auction did not hold any prospect and it was informed to the plaintiff that the same would be destroyed if not taken over by 11.4.2003 and as the defendant's consignee did not respond, the said contents were destroyed and the said facts were noted in the judgment passed by Hon'ble Hamburg Higher Court on 12.11.2003 in case No.418 O 41/03 filed by the Vessel operators M/s Mediterranean Shipping Company S.A., 40 Eugene Pittaed, CH-1206, Geneva, Switzerland against M/s. Emons Impex Speditions GmBH, the agent of the plaintiff, for recovery of container demurrages, warehousing charges and other charges and the said court also imposed liability to the tune of Rs.7,46,222.91 towards the said charges and the plaintiff had already paid the said amount to the Vessel Operator.
7. It has been further alleged by the plaintiff that it has re-examined the outstanding dues receivable from the defendant and the ocean freight plus IHC, the charges paid as per order of the Hamburg 5/27 Higher Court, charges of lawyer at the said court and other charges came to Rs.11,57,543.28 and the plaintiff sent legal notices along with debit note dated 31.3.2004 seeking 24% interest on the principle amount to the defendant on 5.5.2004 at four addresses and the notice returned unserved at Lajpat Nagar, New Delhi address but on the remaining addresses the notice was served. In these circumstances, the plaintiff has prayed for passing a decree for a sum of Rs.11,57,543.28 in its favour and against the defendant along with an interest @ 24% per annum from the date of institution of suit till realization.
8. The defendant in his written statement has taken an objection that there was no privity of contract between the plaintiff and the defendant and it never entered into any contract, either written or oral with the plaintiff for booking the cargo as consignor and that there are no signatures of any official of the defendant on the bill of lading no.27325 dated 13.8.2002 nor the consignment was ever booked in favour of the said consignee through the plaintiff and that the Fax message was received by the defendant from the plaintiff but it was made clear to the plaintiff that defendant never booked any consignment as alleged. It has been further objected in the written statement that although a debit note was received by the defendant 6/27 from the plaintiff but it was made clear that there was no relation of consignor and consignee between the plaintiff and the defendant and the defendant is not bound to pay anything towards the debit note which was erroneously sent to the defendant. The legal notice dated 19.6.2003 was denied to have received by the defendant.
9. It has been further averred in the written statement that action brought before the Hamburg Higher Court was between the agent of the plaintiff and some other companies with whom the defendant had no concern nor the defendant is liable to pay any loss allegedly suffered by the plaintiff and that the suit is misconceived and liable to be dismissed.
10. In the replication the plaintiff has denied the objection that there was no privity of contract between the parties and reiterated the contents of the plaint and additional facts have been put in the replication to the effect that the statutory shipping bill no.O.T.I.E./619/2002 dated 8.7.2002 was submitted by the defendant to the custom department for export of goods under claim for duty drawback which also established that the custom department had permitted the defendant to re-export the cargo in question vide their order no.43/2002 dated 1.7.2002 and the said documents of the 7/27 defendant submitted with the custom also proved that the cargo was indeed sent by the defendant only.
11. On the pleadings of the parties, my learned predecessor vide his order dated 10.4.2006 framed the following issues:-
i. Whether there is no privity of contract between the plaintiff and defendant? OPD ii. Whether the plaintiff is entitled for charges of ocean freight, inland haulage charges, expenses, levies duties, storage taxes, handling demur rage charges from the defendant and as claimed in the suit? OPP iii. Whether the plaintiff is entitled for recovery of the amount of Rs.7,46,222.91p. towards the container demurrage, warehousing charges and various other charges as per liability fixed by Hamburg Court on the plaintiff?
iv. Whether the plaintiff is entitled for interest @ 24% p.a. from the date of the amount as claimed in the suit? v. Relief.
12. The plaintiff in order to prove its case has examined PW1 Sh.Sudhir Singh Yadav, the General Manager of the plaintiff company who filed his examination-in-chief by way of affidavit Ex.PW1/1 and 8/27 has proved the documents i.e. the resolution of the Board of Directors of the plaintiff company as Ex.PW1/2 and Ex.PW1/3, the bill of lading as Ex.PW1/4, the letter dated 21.10.2002 and Fax transmission reports of the same as Ex.PW1/5A to Ex.PW1/5D, copy of letter dated 26.10.2006 and 11.11.2002 as Ex.PW1/6 and Ex.PW1/7, the registered letter dated 27.2.2003 and its postal receipt as Ex.PW1/8 and Ex.PW1/8A, the debit note dated 27.2.2003 as Ex.PW1/9, the debit note dated 22.3.2003 as Ex.PW1/10, the cargo arrival notice sent to the consignee as Ex.PW1/11, the office copy of legal notice dated 19.6.2003 as Ex.PW1/12, the certified copy of the judgment of Hamburg Higher Court as Ex.PW1/13A and its English Translation Ex.PW1/13B, the original covering letter dated 9.12.2003 from the Attorney as Ex.PW1/14A and its English Translation Ex.PW1/14B, the debit note dated 31.3.2004 as Ex.PW1/15, the copies of legal notice dated 5.5.2004 sent to the defendant by courier service as Ex.PW1/16A to Ex.PW1/16H and courier receipts as Ex.PW1/17A to Ex.PW1/17B, the dispatches returned unserved as Ex.PW1/18A to Ex.PW1/18C, the suit as Ex.PW1/19 and the affidavit with regard to the suit as Ex.PW1/20 and he has also proved the document i.e., the carbon courier bill dated 12.12.2003 of the APK Worldwide Courier GMBH as Ex.PW1/21, the cover of the courier in which the judgment Ex.PW1/13A was received as Ex.PW1/22, the original translation of 9/27 the said judgment received by Indo German Chamber of Commerce as Ex.PW1/23, original invoice no.2235570 by M/s Emons Impex Speditions GMBH Hamburg as Ex.PW1/24A and Ex.PW1/24B, bank advise dated 10.2.2004 with respect to crediting the balance amount given to the plaintiff as Ex.PW1/25, Statement of accounts of M/s Emons Impex Speditions for the month of December 2003 as Ex.PW1/26, copy of NPIL statement of account of M/s Emons Impex for December 2003 as Ex.PW1/27, original Invoice sent by M/s Emons Impex dated 24.2.2003 as Ex.PW1/28, duplicate carbon copy of the bank advise to the plaintiff for crediting the balance amount dated 9.5.2003 as Ex.PW1/29, copy of statement of accounts as on 31.3.2003 and original invoice dated 26.11.2003 sent to the plaintiff by M/s Emons Impex as Ex.PW1/30A and Ex.PW1/30B, carbon copy of the bank advise dated 22.1.2004 regarding crediting of account of the balance amount to the plaintiff as Ex.PW1/31, copy of statement of account for the month of December 2003 of M/s Emons Impex as Ex.PW1/32, original E.Mails between M/s Emons Impex and the plaintiff as Ex.PW1/33, copy of NPIL statement of account of the said firm for December 2003 as Ex.PW1/34, the original E.Mail correspondence dated 21.11.2003 from the said firm as Ex.PW1/35, copy of letter between Hollestchek and Hollestchek and M/s Emons Impex Ex.PW1/36, copy of shipping bill/invoice no.OTIE/619/2002 10/27 dated 8.7.2002 raised by the defendant against their consignee exhibited as Ex.PW1/37, the original letter dated 20.8.2002 from plaintiff to defendant agent M/s On Dot Express along with Fax Transmission report as Ex.PW1/38A and Ex.PW1/38B, copy of ocean bill of lading no.MSCUMU199735 dated 21.8.2002 issued by Mediterranean Shipping Company to the plaintiff as Ex.PW1/39, copy of the letter dated 29.7.2002 sent by On Dot Express to the plaintiff Ex.PW1/40, original E.Mail correspondence between 8.1.2003 and 16.4.2003 between the plaintiff and their agent along with cargo arrival notice as Ex.PW1/41 and original E.Mail correspondence between 5.11.2002 and 8.4.2003 between the plaintiff and their agent as Ex.PW1/42 and thereafter the PW1 was cross-examined.
13. PW2, the Assistance Manager of the plaintiff company has filed his examination-in-chief by way of affidavit as Ex.PW2/1 and he has proved the said bill of lading as Ex.PW2/2, documents Ex.PW1/38A, Ex.PW1/5A, 1/5B, Ex.PW1/9, 1/10, 1/15 and the statement of charges/freight payable by OTIE (India) Ltd. as Ex.PW2/3 and thereafter he was cross-examined. PW3 Sh.S.S.Bora, the Inspector in Drawback Section of the Custom Department, I.C.D. Tuglakabad, New Delhi has produced the record pertaining to shipping bill no.819 dated 2.7.2002 and proved the letter of 11/27 Additional Commissioner of Customs with regard to non production of the invoice no.OTIE/619/2002 dated 8.7.2002 as Ex.PW3/1, the bill of entry generated from computer pertaining to Shipping Bill No.819 dated 2.7.2002 as Mark-A, the copy of drawback refund register as Ex.PW3/2, the photocopy of the relevant page whereby the drawback amount was returned by the cheque as Ex.PW3/3 and he has also proved the specimen authorization form executed by the defendant company in favour of Sh.B.S.Raghav to receive the cheque of the drawback payment as Ex.PW3/4 (3 pages).
14. On the other hand, the defendant has produced DW1 Sh.Rajesh Pandey who has filed his examination-in-cheif by way of affidavit as Ex.DW1/A who has proved the copy of the resolution of the Board of Directors of the defendant company as Ex.DW1/1.
15. I have heard the counsels for both the parties and perused the list of dates filed by the plaintiff and the written points of argument on behalf of the defendant and also perused the record. My finding issue-wise are as under:
16. Issue No.1
(i) The issue no.1 as to whether there is no privity of contract between the plaintiff and the defendant was negatively couched and as 12/27 such the burden to prove the same was given to the defendant but in my considered opinion, mere denial of any privity of contract by the defendant was sufficient to shift the burden on the plaintiff to prove that there was a contract between the parties for shipping the cargo in question. In fact it was inherent in the very language of the issue no.1 that it required shifting of burden to prove.
(ii) The above opinion is also established by the course of pleadings and facts narrated therein by both the parties. For example, in the plaint its mentioned by the plaintiff that a custom sealed container was given to the plaintiff at Delhi by the defendant through its agent M/s On Dot Express but the documents from the customs department as proved by PW3 were not averred in the plaint. As the defendant denied any privity of contract in its written statement, it was in the replication that the plaintiff referred the said document of the custom department stated to have been given by the defendant. It is further mentioned in the replication that copy of the shipping bill no.OTIE/619/2002 was obtained from the custom department during the plaintiff's inquiry but it is not mentioned as to when the said inquiry was conducted or the date when the said document was received by the plaintiff so as to show as to whether the said fact in the form of the said document was available with the plaintiff at the time of filing the suit or not. Be as it may, the plaintiff was also 13/27 required to stand on its own legs.
(iii) Further the issue no.1 is pivotal in nature and if it is answered in affirmative that there was no privity of contract between the parties, there remains no question of deciding the remaining issues and as the only witness who has appeared for the defendant has also deposed in negative language, it becomes necessary to deal with the plaintiff evidence also so far as the same relates to proving the alleged contract of carriage between the parties. Further more, the negative evidence led by the defendant can better be appreciated in terms of the positive evidence which the plaintiff has placed on record to prove that there was a privity of contract between the parties. Hence, for deciding this issue I shall be dealing with the plaintiff's evidence also along with its denial by the defendant.
(iv) The PW1 and PW2 have proved the documents i.e., the bill of lading Ex.PW1/4 (PW2 has proved the same document as Ex.PW2/2 but Ex.PW1/4 and Ex.PW2/4 are one and the same document). The defendant has denied the said document as the same has not been signed by anyone on behalf of the defendant company. The DW1 has specifically deposed in his affidavit Ex.DW1/A that the bill of lading, on which the plaintiff company was relying upon, bearing no.27325 dated 13.8.2002 does not bear the signature of any official of the defendant company nor it booked any consignment in 14/27 favour of M/s Bona Textile GMBH as mentioned in the said document. In his cross-examination on behalf of the plaintiff, only suggestions were thrown by the plaintiff that the defendant company entered into a contract with the plaintiff vide the said bill of lading for sea carriage of its cargo to the said consignee which the DW1 denied and also denied that original of the said document was ever sent to or retained by the defendant company. So far as, cross-examination of PW1 is concerned, he has admitted that there was no signature on the bill of lading Ex.PW1/4 as no such signature was required on bill of lading as per Marine Law but no such Marine Law produced, proved or discussed during the course of final arguments on behalf of the plaintiff. PW1 has further answered that original of the bill of lading Ex.PW1/4 was handed over to the defendant but he did not recollect as to where the acknowledgment of the same on behalf of the defendant was nor he could produce the same. It has been further answered by the PW1 that there was no prescribed format for Multi Modal Transport document from the Government but the bill of lading Ex.PW1/4 was a Multi Modal Transport document. Similarly PW2 in his cross-examination has replied that original bill of lading was sent to the defendant but he had no proof of sending the said document to the defendant. The PW3, the official of the custom department has not deposed with regard to the said bill of lading.
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(v) From the said evidence on record with regard to the bill of lading Ex.PW1/4, the first thing established is that the original of the same was never produced in the court. It is further established that the said bill of lading mentions the defendant as the consignor, name of the consignee as mentioned above, the feeder vessel, ocean vessel, the agent as M/s Emons Impex, place and date of issue and "said to contain" the furniture for living room and bears the signatures of the authorized signatory of the plaintiff company as the carrier. It is well established and rather the admitted case of the PW1 and PW2 that the bill of lading was not signed by anyone on behalf of the defendant nor any document, showing that the said bill in original was delivered or handed over to the defendant, could be produced or proved by the plaintiff.
(vi) Further objections of the defendant with regard to the bill of lading are that the said document is a Multi Modal Contract document which is hit by the provisions of the Multi Modal Transportation of Goods Act, 1993 and the rules, regulations, notifications issued thereunder. It was submitted on behalf of the defendant that in the said document the cargo was stated to have been received at Tuglakabad, New Delhi, the place of loading was JNPT, Mumbai and port of discharge was Hamburg, Germany and as Tuglakabad, New Delhi was not a sea port, the cargo was required to 16/27 be carried to the sea port by rail/road and from sea to Hamburg, Germany and from that point of view, as per section 2 (k) of the Multi Modal Transportation of Goods Act 1993, the said means of transport become Multi Modal Transportation which defines the same as carriage of goods, by at least two different modes of transport under the multi modal transport contract, from the place of acceptance of the goods in India to a place of delivery of the goods outside India and as per section 2 (l) of the said Act "multi modal contract" means a contract under which a multi modal transport operator undertakes to perform or procure the performance of multi modal transportation against payment of freight and the plaintiff company is not registered under the said Act as provided in section 4 of the same and section 3 of the said Act commands that no person shall carry on or commence the business of multi modal transportation unless he is registered under the said Act. It was further submitted on behalf of the defendant that to hide the said illegality of Ex.PW1/4, the plaintiff got issued in its own name a subsequent bill of lading which is Ex.PW1/39 bearing no.MSCUMU199735 dated 21.8.2002 issued at Delhi by Mediterranean Shipping Company showing the plaintiff as the shipper and consignee as the Emons Impex. Thus, it was contended that the said bill of lading was an illegal document and that the plaintiff company, being not registered under the said Act of 1993, 17/27 could not have even executed or issued the said document.
(vii) From the said evidence, submissions and the said law, the only inference is to be drawn is that the bill of lading Ex.PW1/4 does not establish the contract of carriage of the cargo of the defendant by the plaintiff as the carrier.
(viii) The next document placed and proved on record by the plaintiff was Ex.PW1/40 which is a letter written to the plaintiff by one Ms. Priti Goswami on behalf of M/s On Dot Express dated 29.7.2002 with the subject "Booking of Container No.MSCU4203722" and it was requested to book the container through the plaintiff company. On the basis of this letter the plaintiff has tried to prove the averments in para 4 of the plaint Ex.PW1/19 mentioning that the said cargo was delivered by the defendant to the plaintiff with the duly custom sealed container no.CTNR No.MSCU4203722 through its agent M/s On Dot Express. The DW1 has denied the suggestion in his cross-examination to that effect. The PW1 in his cross-examination has also denied the suggestion that the plaintiff was having the contract for booking of the said cargo with M/s On Dot Express only. He has further replied that the contract was with the defendant. PW2 and PW3 are silent about the same.
(ix) Although, the said letter Ex.PW1/40 was never produced in original nor there is an evidence on the record as to how 18/27 the said letter reached the plaintiff but assuming it for the sake of argument that the said letter was written as such, the same nowhere mentions that the said container was booked through the plaintiff by M/s On Dot Express on behalf of the defendant company or M/s On Dot Express was the custom agent of the defendant company. Further even if I assume that M/s On Dot Express was the agent for the defendant, the said firm has not been impleaded as a party to the suit or produced as a witness in the witness box so as to prove that the said container was booked on behalf of the defendant company by the said firm as an agent of the defendant company which would have clearly established a legal contract between the plaintiff and the defendant. But the same was not done for the reasons best know to the plaintiff and thus the plaintiff has deviated from the "best evidence theory" and withheld the said best evidence in its favour. Thus, this document also does not lead to any inference that there was a contract between the plaintiff and the defendant as alleged.
(x) Plaintiff has placed further reliance on the document i.e., the shipping bill/invoice bill no.OTIE/619/2002 dated 8.7.2002 raised by the defendant against their consignee M/s Bona Textile GMBH which is Ex.PW1/37 and also relied on the document produced by PW3, the official of the custom department which are Ex.PW3/1 to Ex.PW3/4. 19/27
(xi) Ex.PW3/1 is a letter written by Additional Commissioner of Custom addressed to the court in which it is mentioned that the copy of shipping bill no.819 dated 2.7.2002 cannot be retrieved from the system as reexport cases were processed manually and that best efforts were made to trace out the said shipping bill and the invoice no.OTIE/619/2002 dated 8.7.2002 but the said document could not be located, being almost five years old. Ex.PW3/2 as per deposition of PW3 is the copy of drawback refund register wherein vide token no.936 dated 10.9.2002 M/s OTIE India Pvt. Ltd. had received the drawback amount of Rs.1,64,068/- towards shipping bill no.819. The document Ex.PW3/3 is the copy of original cheque register in which the cheque no.568718 dated 1.1.2003 was mentioned towards the payment of drawback in respect of the re- exported goods as mentioned in shipping bill no.819. The document Ex.PW3/4 is the specimen of authorization form submitted by the defendant company bearing the signature of Sh.Inder Mohan Puri and Sh.B.S.Raghav was authorized on behalf of the defendant company to receive the said cheque which is reflected in the cheque register Ex.PW3/3.
(xii) On the basis of the said documents the plaintiff has tried to establish that the defendant was the person concerned with the said cargo and it received the payment of the drawback for the export 20/27 of the same.
(xiii) The DW3 in his cross-examination has denied the knowledge of any payment towards drawback received by the defendant company from the custom department or the entries recorded to that effect in the said documents Ex.PW3/2 and Ex.PW3/3. The DW3 further denied knowing any person by the name of Sh.B.S.Raghav as the authorized representative of the defendant company or said Sh.Raghav receiving the drawback cheque from the custom department on 10.3.2003. He has further denied that the defendant company has received the said amount from the custom department. The DW3 has further denied the suggestion that the document Ex.PW1/37 related to the defendant company with the transaction where under the consignment i.e., sofa sets, chair, inner frame of wood for bed and sample mattresses as per invoice no.OTIE/619/2002 dated 8.7.2002 were shipped by the defendant to M/s Bona Textile GMBH Germany. He has further denied the suggestion that the defendant shipped the above mentioned consignment through the plaintiff as shipping line.
(xiv) PW1 in his cross-examination with regard to the said documents has replied that Ex.PW1/37 was signed by the defendant at point A and that his knowledge is based on the record available with him. PW1 has further replied that the document dated 8.7.2002 21/27 no.OTIE/619/2002 was submitted in original to the custom department and as such original of the same was with the custom department and the copy of the same has been filed on the record. PW2 did not depose anything with regard to the said documents. PW3 in his cross-examination has accepted that he had not brought original shipping bill and the invoice no.OTIE/619/2002 dated 8.7.2002 because the same were not traceable. He has further replied that shipping bill no.819 dated 2.7.2002 is an export related bill and shows only the name of the consignee and the importer and that there was no mention of name of the agent in the shipping bill. He has further replied that the cheque was not taken by Mr.Raghav in his presence and that he cannot identify the signatures of Sh.I.M.Puri nor he knew in whose presence the cheque was taken by Mr.B.S.Raghav and that the cheque no.568718 was paid to the exporter by the Government as a drawback and not as incentive and that bill of entry generated from computer pertaining to shipping bill no. 819 dated 2.7.2002 which is mark-A relates to import while the shipping bill is related to export.
(xv) From the said deposition and documents it is established on record that shipping bill no.819 dated 2.7.2002 and the invoice no.OTIE/619/2002 dated 8.7.2002 were never produced in the court in original and even if I take Ex.PW1/37 as the true copy of the 22/27 said invoice allegedly raised by the defendant, there is no mention of the plaintiff as the carrier in said document nor the said document mentioned that the cargo which was allegedly re-exported was booked through the plaintiff. In the said document it is mentioned that re- export of the items mentioned in the invoice were ordered by Additional Commissioner Customs (Import) vide order in original no.43/2002 dated 1.7.2002 but the said order was not got produced by the plaintiff. The documents Ex.PW3/2, Ex.PW3/3 and Ex.PW3/4, although denied by the defendant, but for the sake of argument if taken into consideration the same depicted that one Mr.B.S.Raghav has received the amount of drawback from the Customs Department through the said cheque but the said documents nowhere established that the plaintiff was the carrier of the goods regarding which the said drawback payment was received. It has been vehemently argued on behalf of the plaintiff that the signatures of the Director of the defendant on Ex.PW3/4 are the same as on vakalatnama of the counsel. Even if it is so, it does not establish that the said director entered into an agreement with the plaintiff to carry the cargo on behalf of the defendant company.
(xvi) Further the plaintiff has relied upon the debit notes Ex.PW1/8, Ex.PW1/10 and Ex.PW1/15 and the legal notices Ex.PW1/12, Ex.PW1/16B etc., sent to the defendant and it has been 23/27 submitted that the same were never denied and replied by the defendant. In this regard the DW1 has categorically stated in para 6, 7 and 8 of his affidavit of examination-in-chief Ex.DW1/A that a fax message was received by the defendant company from the plaintiff company and the defendant had informed the plaintiff not to have booked any consignment through it and that a debit note was received by the defendant company from the plaintiff and the defendant immediately informed the plaintiff there was no contract between the two companies and hence, the defendant was not liable to pay anything on account of the debit note as it was a one sided document having no signatures of the defendant company and that the legal notice dated 19.6.2003 was not received by the defendant company. In his cross-examination the DW1 has answered that in para 6 of the affidavit he intended to refer the fax message with respect to the debit note, although there was no reference of debit note in para 6. He further denied the suggestion that defendant never informed the plaintiff regarding non booking of any consignment through the plaintiff.
(xvii) The said debit notes admittedly were not signed by the defendant and at the same time the plaintiff has also not proved the corresponding entry of the said debit note in its statement of account or the relevant income-tax returns. Thus, the debit notes 24/27 being secondary in nature are nothing but self styled documents of the plaintiff company especially, in the absence of any contract between the parties established on record which may result to the issue of said debit notes. Similarly, repeated issue of legal notices, even if received by a party does not make the party receiving the notice liable to discharge the alleged liability mentioned in the notices. The silence amounts to speech only when some prima facie relationship between the parties is established so as to hold the silent party admitting the claim against him. But in the present case as the plaintiff could not establish a prima facie contract between the parties, sending of debit notes and legal notices and non reply of the same does not amount to admission of the liability on behalf of the defendant. (xviii) Even if the documents Ex.PW1/4, Ex.PW1/37, Ex.PW1/40, Ex.PW3/2, Ex.PW3/3, Ex.PW3/4 and Mark-A coupled with the debit notes and legal notices are read together, by way of circumstantial evidence, still the link in the chain is missing to the effect that it was the defendant or his agent who booked the alleged cargo to be carried through sea with the plaintiff company. (xix) Admittedly, the plaintiff was not dealing in an ordinary grocery shop where one can understand about the oral giving or taking of the chattels and receiving the payment of the same. The plaintiff was dealing in a business which is not only governed by the 25/27 statutory laws but was hyper technical in its usage and customs. Even it is assumed that the bill of lading Ex.PW1/4 was not required to be signed by the defendant as a consignor, then in that case it became a secondary evidence based upon some other transaction i.e., a contract, either oral or written, whereby the bill of lading can be made evident. But in the present case the plaintiff has miserably failed to establish any such contract between the parties or a course of transactions from which the contract can be deduced between the parties.
(xx) The matter can be looked upon from another point of view also. In fact, "the furniture for living room" was never shipped as alleged much less by the defendant. It is the own case of the plaintiff that when the cargo was allegedly opened in Germany for auction sale, it was found containing bulky refuse material and it has been alleged by the plaintiff that a fraud was played upon it. The ingredients of the fraud as alleged by the plaintiff could have been completed, if it would have established that it was the defendant who booked the said cargo so as to cause wrongful loss to the plaintiff. But assessing objectively, whatever was recovered from the cargo was carried by the plaintiff and not the goods as mentioned in the alleged bill of lading Ex.PW1/4. In these circumstances, even if it is to be taken that the defendant was some how or the other was related with 26/27 the goods i.e., "the furniture for living room" as mentioned in the document Ex.PW1/37, there is no evidence on record that the said furniture in fact was ever shipped for the alleged said destination. Hence, the issue no.1 is decided in favour of the defendant and against the plaintiff.
16. ISSUES NO.2, 3 and 4 Although, in view of my finding on the issue no.1 above, there is no need for deciding the issues no.2, 3 and 4 on merits. Even otherwise all the remaining documents proved on record by the plaintiff are between it and its agent at Germany and the defendant has contented that it was not a party to any of the said document. The decree of the Hamburg Higher Court Ex.PW1/13A and its translated copy Ex.PW1/13B was mainly relied by the plaintiff to prove the alleged loss suffered by him. Admittedly, the defendant was neither a party before the Hamburg Higher Court nor he was heard or represented by anyone before the said court and as such, no liability can be fastened on the defendant even if it is to be taken as true that the agent of the plaintiff suffered the decree of the said court and the said agent was given the due amount by the plaintiff which was allegedly suffered by the agent under the said decree of the said court. Hence, issues no.2, 3 and 4 are decided against the plaintiff and in favour of the defendant. 27/27
17. ISSUE NO.5 In the result the plaintiff is not entitled to any relief as claimed and accordingly, the suit is dismissed. The parties to bear their own costs. The file be consigned to the record room.
ANNOUNCED IN THE OPEN COURT TODAY I.E. ON 16.2.2008.
(RAKESH TEWARI) ADDL. DISTRICT JUDGE:
DELHI.