Delhi District Court
M/S Sunrise Freight Forwarders Pvt. Ltd vs Ms. Hardeep Arora on 25 April, 2023
IN THE COURT OF MS. SHRIYA AGRAWAL
JSCC, ASCJ, GJ, SOUTH EAST DISTRICT,
SAKET COURTS, NEW DELHI
CS SCJ 1580/2019
CNR No.: DLSE03-002268-2019
M/S SUNRISE FREIGHT FORWARDERS PVT. LTD.
SURYA BHAWAN, A-1023, ROAD NO. 6,
MAHIPALPUR,
NEW DELHI-110037. ... PLAINTIFF
Versus
MS. HARDEEP ARORA
PROPRIETOR, M/S. CACTUS,
B-14, KALKAJI,
NEW DELHI-110019
ALSO AT
E-4, SECTOR-6,
NOIDA-201301,
UTTAR PRADESH (INDIA). ... DEFENDANT
SUIT FOR RECOVERY FOR A SUM OF Rs.2,36,512/-
WITH INTEREST PENDENTE LITE AND FUTURE
INTEREST
Date of Institution of the case : 19.09.2019
Date of reserving judgment : 27.03.2023
Date of pronouncement of judgment : 25.04.2023
SHRIYA Digitally signed by
SHRIYA AGRAWAL
AGRAWAL Date: 2023.04.28
18:34:18 +05'30'
CS SCJ 1580/2019 M/S SUNRISE FREIGHT FORWARDERS PVT. LTD. VS. HARDEEP ARORA PAGE NO. 1 OF 20
JUDGMENT
1. The present suit has been instituted by the Plaintiff against the Defendant for the recovery, praying for the following reliefs:
(i) Pass a decree for a sum of Rs.
2,36,512/- (Rupees Two Lakhs, Thirty Six Thousand, Five Hundred and Twelve) only in favour of the plaintiff and against the defendant
(ii) Pendente lite and future interest at the rate of 18% per annum be awarded in favor of the plaintiff and against the defendant on the aforesaid amount of Rs. 2,36,512/- from the date of institution of the suit till its realization CASE OF THE PLAINTIFF AS PER PLAINT
2. The Plaintiff is a Customs House Agent (for short 'CHA') and a custom clearing and freight forwarding agent, engaged in the business of cargo agency for trans-shipment and custom clearance etc. for its consignment (s) in India to/from various foreign countries on behalf of its clients/exporters/importers. It is averred that in the month of March 2017, the Defendant had availed services of the Plaintiff for trans-shipment and custom clearance etc. of her export consignment at the custom station at New Delhi. During the course of dealings with the Defendant, the Plaintiff had issued the following two invoices/bills upon her, giving details about the services availed by the Defendant, the rate and value thereof, besides other charges etc. :
S.No. Date of Invoice Number Amount
Invoice (in Rs.)
1. 03.03.2017 NDL/AE/S437/1617 Rs. 7,638/-
2. 03.03.2017 NDL/AE/A236/1617 Rs. 1,57,732/-
Total Rs. 1,65,370/-
CS SCJ 1580/2019 M/S SUNRISE FREIGHT FORWARDERS PVT. LTD. VS. HARDEEP ARORA PAGE NO. 2 OF 20
SHRIYA Digitally signed by
SHRIYA AGRAWAL
AGRAWAL Date: 2023.04.28
18:34:47 +05'30'
3. The aforesaid invoices/bills issued by the Plaintiff were duly accepted and acknowledged by the Defendant and in acknowledgement of her liability towards the Plaintiff, in the year 2016-17, the Defendant had deposited a sum of Rs. 3,155/- as TDS in the account of the Plaintiff. After adjusting/appropriating the aforesaid TDS deposited by the Defendant, as on 31.03.2017, the Defendant is stated to be still liable to pay the balance principal amount of Rs. 1,62,2015/- to the Plaintiff. It is averred that the Defendant had agreed and undertaken to pay the balance outstanding within a short span of time, but failed to honor the same. As per the agreed terms, in the event the the invoice/bill was not paid on presentation, it would lead the Plaintiff to be entitled to interest @ 18% per annum, in terms of "Spl. Note No.2" printed at the foot of the invoices/bills issued by the Plaintiff upon the Defendant. The interest is accordingly claimed on the principal amount of Rs. 1,62,215/- with effect from 01.04.2017 till the date of actual payment. The Plaintiff accordingly has claimed recovery of Rs. 2,36,512/- (inclusive of Rs. 1,62,215/- as principal and interest of Rs. 68,797/- along with legal cost of Rs. 5,500/-).
WRITTEN STATEMENT
4. Per Contra, the Defendant has questioned the jurisdiction of this Court to entertain the present suit on the ground that the Plaintiff has consciously attempted to create a ruse of jurisdiction on the basis of the location of the residential address of the Defendant at Kalkaji, despite being aware of the fact that the place of business/ operation of the Defendant Firm is situated at Digitally signed by Noida, UP. SHRIYA SHRIYA AGRAWAL AGRAWAL Date: 2023.04.28 18:35:06 +05'30' CS SCJ 1580/2019 M/S SUNRISE FREIGHT FORWARDERS PVT. LTD. VS. HARDEEP ARORA PAGE NO. 3 OF 20
5. The Defendant has referred to certain emails exchanged inter-se the parties in defence. It is stated that vide E-mail dated 09.02.2017, the foreign buyer of the Defendant had introduced the Plaintiff to the Defendant for the purposes of shipping the consignment to the buyer at Los Angeles and vide E-mail dated 10.2.2017 the Defendant had sent the documents in relation to the consignment which was to be shipped to its buyer in USA, such as the invoices, packing list, FOB (short for 'Free on Board') documents. On 13.02.2017, the Plaintiff had written an email to the Defendant inquiring whether the shipment is a 'PREPAID' shipment or 'TO PAY' shipment. The terms were confirmed by the Defendant in the reply mail that the shipment is FOB and the freight from New Delhi to Los Angeles was to be paid by the buyer. By E-mail dated 15.02.2017 it was further confirmed that the payment would be made directly by the buyer to the Plaintiff from USA by a wire transfer.
6. Vide email dated 15.02.2017 the buyer of the Defendant had requested the Plaintiff to provide the cost of the freight for Airline with six days' transit time. The Plaintiff vide its E-mail dated 16.02.2017 issued a quotation for the freight payment and the buyer had on the same day confirmed the amount. Through E-mail dated 21.02.2017 the Plaintiff had written to the buyer to make payment of Rs. 1,57,732/- for executing the shipment. A request for payment was made on 2.3.2017 by the Plaintiff to the buyer. The Defendant had also requested the buyer to make payment amounting to USD 2430 in addition to the payment of the invoices of the Defendant. On 10.03.2017 the buyer had sought a release of shipment sent by the forwarder and the CS SCJ 1580/2019 M/S SUNRISE FREIGHT FORWARDERS PVT. LTD. VS. HARDEEP ARORA PAGE NO. 4 OF 20 Digitally signed by SHRIYA SHRIYA AGRAWAL AGRAWAL Date: 2023.04.28 18:35:27 +05'30' release letter was sent by the Plaintiff. The shipment was duly taken over by the buyer.
7. It is stated that admittedly the goods were sent on FOB basis and as such the Defendant was not liable to make any payment to the Plaintiff, as the arrangement qua the freight charges was entirely inter-se the Plaintiff and the buyer of the Defendant. As per the Defendant, on 25.09.2017 the Plaintiff had again written to the buyer via email requesting him to release payment towards the freight charges. The Defendant only claims to have extended support to the Plaintiff to secure recovery from the buyer for the freight charges. The Defendant relying on the string of e-mail correspondence has refuted the claims of liability against her, asserting that the same rested with the foreign buyer, who alone ought to be held liable for the due freight charges.
ISSUES FRAMED
8. Vide Order dated 06.05.2022 , the following issues were framed in the suit :
(i) Whether this court does not have territorial jurisdiction to entertain and try the present suit? OPD
(ii) Whether the plaintiff has suppressed material facts, inter-alia, with respect to terms of payment (the shipment being prepaid or on 'to pay' basis), emails and other material facts as alleged in preliminary objections in para no. II, III of the written statement and has played fraud upon the court? OPD
(iii) Whether the plaintiff is entitled for decree of recovery of Rs. 2,36,512/- against the defendant? OPP
(iv) Whether the plaintiff is entitled to claim the interest from the defendant, if so at what rate and for what period of time? OPP CS SCJ 1580/2019 M/S SUNRISE FREIGHT FORWARDERS PVT. LTD. VS. HARDEEP ARORA PAGE NO. 5 OF 20 Digitally signed by SHRIYA SHRIYA AGRAWAL AGRAWAL Date: 2023.04.28 18:35:44 +05'30'
(v) Relief.
PLAINTIFF EVIDENCE
9. The Plaintiff deposed on the strength of his affidavit Ex. PW1/A, relying on documents, inter-alia, board resolution/ extract of minutes of meeting of the Board of Directors held on 01.08.2019 (Ex.PW1/1), certified true copy of the tax invoice dated 03.03.2017 of Rs.7,638/- (Ex.PW1/2), certified true copy of the tax invoice dated 3.3.2017 of Rs. 1,57,732/- (Ex.PW1/3), ledger account/ statement of account (Ex.PW1/4), office copy of legal notice dated 19.6.2019 (Ex PW1/5), office copy of Legal notice dated 19.06.2019 (Ex.PW1/5), two original postal receipts are Ex.PW1/6 and Ex.PW1/7) and original Certificate dated 12.9.2019 under Section 65-B (4) (c) of Indian Evidence Act (Ex.PW1/14).
10. During his cross examination by the Ld. Counsel for the Defendant, the witness was asked certain questions concerning his authorization to depose. He in response to a specific question denied that Ex.PW1/4 had not been prepared as per the accounting standards prescribed for the Company to follow for maintenance of books of accounts and also that Ex.PW1/2 and Ex.PW1/3 were fabricated documents. He also acknowledged that he is not the author of Ex PW1/4. He stated that he did not know if the address of Kalkaji is the residential address or the office address of the Defendant, though adding that on the basis of the KYC documents, the said address was considered to be one of the official addresses of the Defendant. He stated further that Mr. Anjani Kumar was a senior manager with the Plaintiff CS SCJ 1580/2019 M/S SUNRISE FREIGHT FORWARDERS PVT. LTD. VS. HARDEEP ARORA PAGE NO. 6 OF 20 Digitally signed by SHRIYA SHRIYA AGRAWAL AGRAWAL Date: 2023.04.28 18:36:03 +05'30' and it was he who was the concerned person dealing with the affairs at the relevant time, along with other members of the team. He also admitted that the E-mail ID i.e. [email protected] was the account being used by Mr. Anjani Kumar in his official capacity and that Mr. Henri Levi was the foreign buyer of the shipment dispatched abroad.
11. In his further cross examination by the Ld. Counsel for the Plaintiff, the witness, when asked to confirm if the shipment was on FOB basis, stated that as per the Airway Bill it was on prepaid basis. He thereafter denied the suggestion that the Plaintiff had purposely sent the shipment on prepaid basis instead of FOB basis. He denied the suggestion that the Plaintiff had issued a release order for the goods without receiving the payment so that the buyer in its destination could receive the goods without making payment of the same. He added by stating that M/s Cactus vide E-mail dated March 6th 2017 had assured to collect payment from the buyer. When asked if the Plaintiff had also been directly following up with the buyer for release of payment, the witness stated that out of frustration, when payments were not being made by the Defendant, e-mails were sent jointly to the buyer and the Defendant for release of payment.
DEFENDANT EVIDENCE
12. The husband of the Defendant stepped into the witness box deposing on the strength of his affidavit Ex.DW1/A. In his cross examination by the Ld. Counsel for Plaintiff, the witness stated that they were previously residing at Kalkaji and had shifted base now to Noida, UP. He acknowledged that no document had been CS SCJ 1580/2019 M/S SUNRISE FREIGHT FORWARDERS PVT. LTD. VS. HARDEEP ARORA PAGE NO. 7 OF 20 Digitally signed by SHRIYA SHRIYA AGRAWAL AGRAWAL Date: 2023.04.28 18:36:30 +05'30' filed by the Defendant as could confirm that he is the General Manager of M/s Cactus, adding that he is aware of the contents of the Written Statement on record. He stated further that he is using the E-mail ID viz. [email protected] and also [email protected], clarifying that both he and the Defendant are using the two E-mail IDs. He confirmed that the foreign buyer was Mr. Henry Levy. He stated that once in a while when he himself is not around, his wife takes care of the dealings of M/s Cactus. He denied the suggestion that he is not authorized by his wife to depose in the present case. The witness responded in the affirmative when confronted with Ex DW1/X1 and asked to confirm if the same was the Airway Bill prepared in the instant case. He also acknowledged that the Airway Bill had been received by them. He denied the suggestion that the shipment was sent on pre-paid basis, though admitting that the Airway Bill mentions that it was a shipment on pre-paid basis, claiming that they had raised objections to the said clause being of 'prepaid', drawing attention of the Plaintiff to invoice mentioning FOB terms. The witness was not sure if vide E-mail dated 10.03.2017 sent by the buyer to the Defendant, the buyer had sought for the release of the shipment sent by the Plaintiff against the Airway Bill endorsed by the Bank. He stated that it must be so. He admitted that on the basis of the documents presented by the Defendant's Bank, the shipment was released on 12.03.2017 and accordingly the foreign buyer had made the payment of the invoice of the Defendant. He stated that probably for the year 2016-2017, the Defendant had deposited 2% TDS i.e. a sum of Rs.3155/-in respect of the invoice dated 03.03.2017 of Rs.1,57,732/-raised by the Plaintiff upon the Defendant.
CS SCJ 1580/2019 M/S SUNRISE FREIGHT FORWARDERS PVT. LTD. VS. HARDEEP ARORA PAGE NO. 8 OF 20 Digitally signed by SHRIYA SHRIYA AGRAWAL AGRAWAL Date: 2023.04.28 18:36:49 +05'30' APPRAISAL AND OBSERVATIONS
13. Final arguments were heard threadbare. The record has been carefully perused.
14. The present suit has been instituted by the Plaintiff against the Defendant for recovery of Rs. 2,36,512/- along-with interest @ 18 % per annum. The case of the Plaintiff is that the said dues are outstanding against the freight forwarding services provided by the Company to the Defendant with respect to the shipment of the latter [against subject invoices bearing no. NDL/AE/S437/1617 dated 03.03.2017 (Ex. PW1/2) and NDL/AE/A236/1617 dated 03.03.2017 (Ex. PW1/3)] which was executed for delivery to the eventual buyer, Henri Levy, in Los Angeles. The claim of the Plaintiff is based on the Ledger Account Statement (Ex. PW1/4) for the services rendered to the Defendant as its CHA/ Custom Clearing and Freight Forwarding Agent for the shipments.
15. The principal amount of Rs. 1,65,370/- is prayed for on the basis of the subject invoices. Upon deduction of the TDS already deposited to the tune of Rs. 3,155/- for the year 2016-17 in the account of the Plaintiff, the liability is mentioned as reduced to Rs. 1,62,215/- as due as claimed on 31.03.2017. The Plaintiff has also prayed for levy of interest @ 18 % p.a. in view of special note no. 2 printed at the foot of the subject invoices on the due amount w.e.f. 01.04.2017 till the date of actual payment. The Plaintiff accordingly has prayed for recovery of the total liability to the tune of Rs. 2,36,512/- along-with interest at the above-
Digitally signed bySHRIYA SHRIYA AGRAWAL AGRAWAL Date: 2023.04.28 18:37:11 +05'30' CS SCJ 1580/2019 M/S SUNRISE FREIGHT FORWARDERS PVT. LTD. VS. HARDEEP ARORA PAGE NO. 9 OF 20 mentioned rate, pendente-lite and future, till realization of the due amount.
16. The Defendant, proprietor of M/s Cactus, on the other hand in her Written Statement has questioned the territorial jurisdiction of this Court to entertain the suit asserting that the place of business of her firm is located at Noida, UP, while the jurisdiction of this Court has been made out by the Plaintiff erroneously so, on the basis of the residential address of the Defendant situated in Kalkaji, New Delhi. It is also highlighted that even the invoices bear the address of Noida, UP. The Defendant has refuted the claim of recovery essentially on the ground that shipment, qua which the invoices have been raised, was as per the understanding amongst the parties to the suit and the buyer of the consignment located overseas at Los Angles viz. Mr. Henry Levy, throughout meant to be FOB, with the liability for the dues resting with the buyer and not the exporter i.e. the Defendant.
17. It is agitated that the claims in the present suit are wrongfully being pressed against the exporter contrary to the mutual understanding and the terms of payment, which find a clear reflection in the correspondence by way of emails exchanged amongst the parties. The Defendant has heavily relied upon the said emails, which as per its case, reveal that it was the buyer who was to pay for the freight charges and that no cause of action can arise against the Defendant for any such recovery, simply with the party liable now refusing to honor the terms, subject to which the shipment was executed by the Plaintiff. It is CS SCJ 1580/2019 M/S SUNRISE FREIGHT FORWARDERS PVT. LTD. VS. HARDEEP ARORA PAGE NO. 10 OF 20 Digitally signed by SHRIYA SHRIYA AGRAWAL AGRAWAL Date: 2023.04.28 18:37:34 +05'30' also claimed that the Defendant was at best merely facilitating recovery of the dues for the Plaintiff and that no liability could be fastened upon the Defendant, as the eventual beneficiary of the shipment was the buyer and it was he who as per agreed terms was liable for the outstanding amount, if any.
18. The Plaintiff in support its case for recovery has tendered in evidence the subject invoices Ex. PW1/2 and Ex. PW1/3 along-with the ledger account statement, inter-alia, other documents. At the stage of admission and denial of documents, prior to settlement of issues in the matter, the Defendant had admitted the original undated letter submitted by M/s Cactus thereby authorizing the Plaintiff as its Customer Broker (CB) (Ex. P1), original KYC form dated 13.02.2017 submitted by the Defendant to the Plaintiff (Ex. P2), true copy of certificate dated 22.09.2013 of Importer-Exporter Court (IEC) in the name of M/s Cactus (Ex. P3), true copy of the passport in the name of Defendant (Ex. P4) and true copy of the PAN Card of the Defendant (Ex. P5). The Plaintiff on the other hand has admitted the set of emails relied upon by the Defendant (comprising of 25 pages) labelled accordingly as Ex D1(colly). The sole plea other than the varying interpretation of the string of emails, of the Plaintiff, is that there were other emails which were consciously not brought on record by the Defendant. It is a matter of record that no such emails were disclosed by the Plaintiff either.
19. The preliminary objection taken to the claim of the Plaintiff herein by the Defendant is with respect to want of territorial jurisdiction of this Court to entertain the suit asserting CS SCJ 1580/2019 M/S SUNRISE FREIGHT FORWARDERS PVT. LTD. VS. HARDEEP ARORA PAGE NO. 11 OF 20 Digitally signed by SHRIYA SHRIYA AGRAWAL AGRAWAL Date: 2023.04.28 18:37:54 +05'30' that the suit has been filed on the basis of the residential address of the Defendant, proprietor of M/s Cactus, as opposed to the place of business of the proprietorship firm, being at Noida, UP, which is beyond the territorial limits of the jurisdiction of this Court. The Plaintiff, on the other hand has refuted the said objection on the ground that it is the Defendant herself who has been proceeded against for recovery, by way of the present suit and the address at Kalkaji was disclosed by the Defendant in the KYC documents filed viz. Ex. P2. Having regard to the contesting submissions on the issue and the record herein, since the suit has been instituted by the Plaintiff against the Defendant, who is a proprietor of M/s Cactus firm, the two being one and the same in terms of legal status, with no distinct identity of the firm, the aforesaid objection of the Defendant with respect to the territorial jurisdiction, is found to be misplaced.
20. The Plaintiff essentially has premised its case in the plaint on the assertion that the shipment/ consignment intended for the eventual buyer overseas, was agreed upon as per the terms negotiated to be on 'prepaid basis', which term was also a part of the Airway bill (Ex. DW1/X1).
21. It is settled law as has been held in Rangammal v Kuppuswami [ (2011) 12 SCC 220] that the case of the Plaintiff has to stand on its own legs in view of the onus cast under Section 103 of the Indian Evidence Act, 1872. It is trite law as observed in Anil Rishi v Gurbaksh Singh [(2006) 5 SCC 558] that regardless of the weakness in defence or no defence, the initial onus always rests with the Plaintiff to prove its case in the CS SCJ 1580/2019 M/S SUNRISE FREIGHT FORWARDERS PVT. LTD. VS. HARDEEP ARORA PAGE NO. 12 OF 20 Digitally signed by SHRIYA SHRIYA AGRAWAL AGRAWAL Date: 2023.04.28 18:38:10 +05'30' affirmative. The Hon'ble Supreme Court has further held in Gian Chand and Bros. v Rattan Lal [(2013) 2 SCC 606] that the Plaintiff cannot rely on the deficiencies in the defence taken by the Defendant and would not be entitled to relief, unless the aforesaid primary onus is duly discharged, even in a case where there is no defence. In a suit for recovery, it is not only imperative for the Plaintiff to establish the fact that there were dues outstanding, but also to prove its cause of action for recovery of the same, specifically from the Defendant.
22. In order to ascertain entitlement or otherwise of the Plaintiff against the Defendant in the present suit, it is essential to decipher the terms negotiated inter-se the parties as also with the third party i.e. the foreign buyer in view of the specific Issue No. 2 framed vide Order dated 06.05.2022 which reads as under:
'Whether the Plaintiff has suppressed material facts, inter-alia, with respect to terms of payment (the shipment being prepaid or on 'to pay' basis), emails and other material facts as alleged in preliminary objections in para no. II, III of the Written Statement and had played fraud upon the Court? OPD'
23. There is no dispute over the fact that the Defendant had engaged the Plaintiff for execution of the shipment for which the buyer of the Defendant (Mr. Henri Levy) had introduced the CHA to the Defendant vide E-mail dated 09.02.2017. In the set of emails filed by the Defendant admitted by the Plaintiff [Ex. D-1 (colly)], it is pertinent to note that concerning the subject shipment, the Plaintiff by its E-mail dated 13.02.2017 (sent at 05:10 AM) had raised a query as to whether the same was to be considered 'prepaid' or 'to pay'. In the reply dated 13.02.2017 CS SCJ 1580/2019 M/S SUNRISE FREIGHT FORWARDERS PVT. LTD. VS. HARDEEP ARORA PAGE NO. 13 OF 20 SHRIYA Digitally by SHRIYA signed AGRAWA AGRAWAL Date: 2023.04.28 L 18:38:33 +05'30' (sent at 06:54 PM) sent by the Defendant to the Plaintiff it was mentioned as under:
"Shipment is fob Delhi silhouette will pay freight from Delhi to Los Angles"
24. Thereafter in another E-mail dated 15.02.2017 sent at 12:05 PM from the buyer to the Plaintiff (copy also dispatched to the Defendant), it was communicated by the buyer that the payment would be made by wire, when the consignment would be shipped by the Plaintiff. The same was again reiterated as a confirmatory of the previous response by the buyer to the Plaintiff (copy of e-mail dispatched to the Defendant) that the payment would be made by wire to the Plaintiff's account, as per the response E-mail dated 15.02.2017 (sent at 03:36 PM).
25. Further, it is noteworthy that in the E-mail dated 16.02.2017 (sent at 03:03 PM) by the Plaintiff to the Defendant and the buyer, the quotation was duly shared for the shipment. However, vide E-mail dated 21.02.2018, 05:25 PM, the Plaintiff had written to the buyer the following message:
"Subject: 'pending payment to Rs. 1,57,732/- RE Agrement (sic) between the sunrise and Cactus' Dear Henri, We have executed one of your shipment through Cactus and the agreed term was that you will make the wire payment to us for Air freight & the local charges will be borne by Cactus. We humbly request you to kindly request to make the payment which we had already made the payment to Airlines on your behalf.Digitally signed by
SHRIYA SHRIYA AGRAWAL AGRAWAL Date: 2023.04.28 18:38:53 +05'30' CS SCJ 1580/2019 M/S SUNRISE FREIGHT FORWARDERS PVT. LTD. VS. HARDEEP ARORA PAGE NO. 14 OF 20 Regarding this Airfreight you have sent us a mail dated 15.02.2017 that you will wire us the payment."
26. The buyer however vide E-mail dated 06.06.2017 (sent at 16:50 hrs.) to the Plaintiff had refuted the claim, pointing out that the agreement of the Plaintiff was with the Defendant and therefore the payment should be sought from the Defendant. It is further noteworthy that in the E-mail dated 01.03.2017 sent by the Defendant to the Plaintiff, it was pointed out by the Defendant that the Air Freight charges were wrongly put on the Airway Bill, despite the Shipment being an FOB Shipment. Subsequently, the Defendant, vide E-mail dated 02.03.2017 (sent at 10:46 PM) and dated 06.03.2017 (sent at 04:47 PM) to the buyer, had sought for the payment of the freight charges to be wired to the Defendant since the shipment had been made by the Plaintiff on 'prepaid basis'.
27. As part of the admitted emails Ex. D-1 (Colly), it is further essential to note that in the correspondence dated 23.03.2017, the Defendant had sent the E-mail to the Plaintiff at 05:14 PM, specifically objecting to the invoice/ airway bill having been made prepaid as opposed to it being an FOB bill, which is mentioned to have been conveyed to the Plaintiff right at the beginning, with an undertaking to pay once the payment was received from the buyer i.e. Henri Levy. The Plaintiff has responded to the said email at 05:29 PM stating as under:
"Dear Rajiv Ji, I just shared with Henri "MAWB was prepaid as the rates quoted by us for prepaid only.Digitally signed by
SHRIYA SHRIYA AGRAWAL AGRAWAL Date: 2023.04.28 18:39:09 +05'30' CS SCJ 1580/2019 M/S SUNRISE FREIGHT FORWARDERS PVT. LTD. VS. HARDEEP ARORA PAGE NO. 15 OF 20 Henri informed us it is prepaid, which we understood that it will be paid by exporter. Hence caused some confusion".
So far as your documents are concerned, it is filed as FOB only, so I suppose it is not going to impact your Drawback amount.
From you & Henri, it was confirmed that Sunrise will get payment immediately after the shipment is executed. We expect you will justice with what was agreed.
Seeks your favour in that."
28. In the further reply to the said email, the Defendant has stated in the response sent at 05:42 PM that on the mention of the terms of prepaid, contrary to the understanding by the buyer, it was the fault of the Plaintiff and that the payment would be made once received in the account. A similar objection has been raised by the Plaintiff through the E-mail sent to the buyer on 25.09.2018 (at 03:56 PM), with copy to the Defendant whereby the Plaintiff itself has sought for the payment due from the buyer referring to the previous exchange dated 13.02.2017 and the fact that the Defendant had made a mention to the Plaintiff that it is the buyer who is responsible as per the correspondence inter-se the Defendant and the buyer, further adding an endorsement for the Defendant to support the Plaintiff in getting the due payment.
29. During the cross examination of the Plaintiff by the Ld. Counsel for the Defendant, the witness for Plaintiff confirmed that the E-mail ID [email protected] was the account being used by Mr. Anjani Kumar in his official capacity, who was acknowledged by the witness to be the Senior Manager of the Plaintiff. When asked during the cross-examination recorded on 18.11.2022 as to whether the shipment was on FOB CS SCJ 1580/2019 M/S SUNRISE FREIGHT FORWARDERS PVT. LTD. VS. HARDEEP ARORA PAGE NO. 16 OF 20 Digitally signed by SHRIYA SHRIYA AGRAWAL AGRAWAL Date: 2023.04.28 18:39:27 +05'30' basis, the witness responded that as per the Airway Bill, it was on a prepaid basis, denying that the same was sent on purpose on prepaid basis as opposed to FOB basis. The witness is infact noticed to have baldly denied the suggestion that the release order for the goods was issued without receiving the payment, so that the buyer in the destination could receive the goods without making payment for the same. The witness is further observed to have responded that M/s Cactus/ Defendant vide E-mail dated 06.03.2017 assured to collect the payment of the Plaintiff from the buyer. He, upon being further asked as to whether the Plaintiff was following up directly with the buyer for release of payment, stated that out of frustration, when the payment were not being made by the Defendant, the Plaintiff sent e-mails jointly to the buyer and the Defendant for release of the payment. By this acknowledgment, the witness for Plaintiff has acceded to the claim that efforts were underway to secure payment from the buyer as well.
30. The careful and thorough perusal of the afore-said exchanges admittedly done through the mode of email inter-se the parties and the buyer and the evidence led in the matter by both sides, reveals that not only did the foreign buyer, who is the ultimate beneficiary of the shipment, confirm categorically to the Plaintiff upon a query being raised as to the terms of understanding with respect to the payment for the freight charges, that the shipment was on an FOB basis, as per his E-mail dated 13.02.2017 (sent on 06:54 PM) (Ex. DW1/X2), even the Plaintiff acceded to the said terms and understanding, while sending a demand mail for the pending liability conspicuously only to the CS SCJ 1580/2019 M/S SUNRISE FREIGHT FORWARDERS PVT. LTD. VS. HARDEEP ARORA PAGE NO. 17 OF 20 Digitally signed by SHRIYA SHRIYA AGRAWAL AGRAWAL Date: 2023.04.28 18:39:52 +05'30' foreign buyer on 21.02.2018 at 05:25 PM, with no corresponding copy marked to the Defendant for recovery. The perusal of the latter mail further reveals that as per the terms, discernible as agreed, it was the buyer who was required to make the payment by wire for the freight. It appears that despite the said commercial terms being clear to the parties, the subject Airway Bill was prepared with a 'prepaid endorsement' contrary to the mutual understanding.
31. The Plaintiff while admitting the E-mails [Ex. D-1 (Colly)] has also admitted the fact that by way of E-mail dated 23.03.2017 (sent at 05:14 PM), the Defendant had lodged a protest with respect to the manner in which the Airway Bill had been prepared. The reply mail of the same date by the Plaintiff sent at 05:29 PM vaguely refers to some input shared by the foreign buyer, with respect to the shipment being prepared, admittedly resulting in some confusion. The said E-mail is an acknowledgement of the fact that the express terms of the Airway Bill with respect to the payment were legitimately disputed, with there coming forth an admission of some 'confusion'. It is further apparent from the perusal of the E-mails dated 02.03.2017 (sent at 10:46 PM) and dated 06.03.2017 (sent at 04:47 PM) that the Defendant was only facilitating recovery of what was due from the foreign buyer to the Plaintiff, with no liability acknowledged at its end. Furthermore, the E-mail dated 25.09.2018 (sent at 03:56 PM) from the Plaintiff to the foreign buyer corroborates the plea of the Defendant that the onus to pay rested with the foreign buyer and not the Defendant. Digitally signed by SHRIYA SHRIYA AGRAWAL AGRAWAL Date: 2023.04.28 18:40:10 +05'30' CS SCJ 1580/2019 M/S SUNRISE FREIGHT FORWARDERS PVT. LTD. VS. HARDEEP ARORA PAGE NO. 18 OF 20 ISSUE-WISE FINDINGS
32. Accordingly, for the above discussed reasons, following are the issue-wise findings in the lis:
1. Whether this court does not have territorial jurisdiction to entertain and try the present suit?
OPD Findings: This issue is decided against the Defendant in favour of the Plaintiff for reasons herein-above discussed.
2. Whether the plaintiff has suppressed material facts, inter-alia, with respect to terms of payment ( the shipment being prepaid or on 'to pay' basis), emails and other material facts as alleged in preliminary objections in para no. II, III of the written statement and has played fraud upon the court? OPD Findings: This issue is decided in favour of the Defendant against the Plaintiff as the Airway Bill is found to have been prepared on terms for payment as being on 'prepaid basis' as opposed to the actual understanding/ agreement of the same to be 'Free on Board'.
3. Whether the plaintiff is entitled for decree of recovery of Rs. 2,36,512/- against the defendant?
OPP Digitally signed by
SHRIYA SHRIYA AGRAWAL
AGRAWAL Date: 2023.04.28
18:40:32 +05'30'
CS SCJ 1580/2019 M/S SUNRISE FREIGHT FORWARDERS PVT. LTD. VS. HARDEEP ARORA PAGE NO. 19 OF 20 Finding: This issue is decided in favour of the Defendant against the Plaintiff for the reasons above discussed.
4. Whether the plaintiff is entitled to claim the interest from the defendant, if so at what rate and for what period of time? OPP Finding: This issue is decided in favour of the Defendant against the Plaintiff for the reasons above discussed.
RELIEF
33. Accordingly, in the facts and circumstances of the case, in view of the above-discussed reasons at length, the suit stands dismissed as devoid of merits.
34. Decree sheet be prepared. File be consigned to Record Room as per Rules.
SHRIYA Digitally signed by SHRIYA AGRAWAL AGRAWAL Date: 2023.04.28 18:40:51 +05'30' (Pronounced in the open court) (Shriya Agrawal) JSCC cum ASCJ cum GJ South East District/Saket Courts 25.04.2023 CS SCJ 1580/2019 M/S SUNRISE FREIGHT FORWARDERS PVT. LTD. VS. HARDEEP ARORA PAGE NO. 20 OF 20