Delhi District Court
Cj Darcl Logistics Ltd vs Jmd Global Forwarders Inc Private ... on 8 August, 2022
IN THE COURT OF SH GURVINDER PAL SINGH,
DISTRICT JUDGE (COMMERCIAL COURT)-02,
PATIALA HOUSE COURT, NEW DELHI
CS (Comm.) No. 340/2021
CJ DARCL Logistics Ltd.
(Formerly known as DARCL Logistics Ltd.)
Having its Corporate Office at:
Plot no. 55P, Sector-44, Institutional Area,
Gurugram, Haryana.
....Plaintiff
Versus
JMD Global Forwarders INC Private Limited
D-117, Bathla CGHS,
Indraprastha Extn, Patparganj,
New Delhi-110092.
E-mail- [email protected]
Mobile: 9810041593 & 9311041593
....Defendant
Date of Institution : 31.08.2021
Arguments concluded on : 08.07.2022
Decided on :08.08.2022
Appearances : Sh. Karan Jain, Ld. Counsel for Plaintiff.
JUDGMENT
1. Plaintiff had filed this suit for recovery of Rs. 3,67,558/- (Rupees three lakhs, sixty seven thousands, five hundred and fifty eight only) with interest and cost against the defendant company. In terms of plaint Sh. Apoorva Kumar, Company Secretary/Authorized Representative of the plaintiff company is well conversant with the facts of the case and has been duly authorized to institute the suit on behalf of the plaintiff company. Following are the relevant material facts in case of plaintiff. The plaintiff company is engaged in the business of CS (Comm.) No. 340/2021 CJ DARCL Logistics Ltd. vs. JMD Global Forwarders Inc Pvt. Ltd. Page 1 of 7 transport. The defendant had approached the plaintiff for transportation of waste paper from Nhava Sheva Port to Sahibabad (UP) and post discussion on the rates, quotation for transportation charges at Rs. 4284/- per metric tonne (PMT) and other terms and conditions was submitted by the plaintiff to the defendant vide e-mail dated 26.07.2017. It was also one of the terms of the quotation that detention charges at Rs. 2,000/- per day at loading/unloading point per day after 24 hours of placement would be charged. The quotation alongwith its terms and conditions was accepted by the defendant vide e-mail dated 27.07.2017. Subsequently during further discussion with the defendant it was agreed between the parties that detention charges shall not be payable and the freight rates be increased by Rs. 300/- PMT to Rs. 4584/- PMT. Five Consignments bearing no. DLV31G00070 to DLV31G00074 all dated 29.09.2017 were delivered in safe and sound condition at the destination in Sahibabad, U.P against acknowledgment by the consignee. The vehicle placement/delivered report was provided to the defendant vide e-mail dated 05.08.2017 and through subsequent correspondence over e-mails the consignment notes were also duly provided to the defendant. Plaintiff accordingly raised an invoice dated 01.09.2017 bearing no. DI3127004409 for a sum of Rs. 3,33,303/- for the transportation of the consignments as per the agreed terms on the defendant. Along with the invoice, the original consignment notes duly acknowledged by the consignee were also submitted to the defendant and it was requested that payment be released at the earliest. The invoice was sent to the defendant vide e-mail dated 01.09.2017 also. The plaintiff kept a constant follow up with the defendant for the release of CS (Comm.) No. 340/2021 CJ DARCL Logistics Ltd. vs. JMD Global Forwarders Inc Pvt. Ltd. Page 2 of 7 outstanding payment; however, the defendant kept on avoiding making the payment on one pretext or another. Plaintiff addressed numerous e-mails and made telephonic calls to the defendant but the efforts of the plaintiff yielded no result. Plaintiff thus, was constrained to issue a legal notice of demand dated 23.05.2018 to the defendant demanding the outstanding amount from the defendant along with interest @ 18% per annum; however, failed to evoke any response from the defendant. The afore stated sum of Rs. 3,33,303/- calculated at the agreed freight rate of Rs. 4,584/- PMT is legally recoverable by the plaintiff and the defendant is liable to pay the same as per the subsequently revised agreed terms. However to avoid any dispute regarding the freight rate, the plaintiff restricted its claim to the unpaid amount of freight at the rate of Rs. 4,284/- PMT which as per calculation comes to Rs. 3,11,489/-. As per plaintiff, plaintiff is entitled to a recovery of Rs. 3,11,490/- (after rounding off) and the defendant is liable to pay the same. Agreement between the parties envisages payment of interest @ 18% per annum after 15 days of invoice. Thus, defendant is liable to pay Rs. 56,068/- by way of pre suit interest at the agreed rate of 18% per annum calculated from 15.09.2017 till 15.09.2018. The daily rate of interest which accrues after that date will be 0.049% approximately.
2. Summons were issued to defendant vide order dated 17.09.2021, 06.12.2021. Defendant was served by e-mail and whatsapp on 17.12.2021 and physically on 20.12.2021. Defendant did not appear thereafter. No written statement was filed by defendant. Defendant was proceeded ex-parte on 08.04.2022.
CS (Comm.) No. 340/2021 CJ DARCL Logistics Ltd. vs. JMD Global Forwarders Inc Pvt. Ltd. Page 3 of 73. In the plaintiff's evidence, Sh. Apoorva Kumar/AR of the plaintiff bank was examined as PW1 who filed his affidavit Ex. PW1/A. His evidence by way of affidavit was tendered before the Court and he relied upon the following documents :-
S.No Documents Exhibit
1 Certificate of Incorporation. Ex. PW1/1
2. The GPA dated 28.03.2018. Ex. PW1/2
3. Board Resolution dated Ex. PW1/3
23.03.2018.
4. Ledger account. Ex. PW1/4
5. Invoice dated 01.09.2017. Ex. PW1/5
6. Consignment notes bearing Ex. PW1/6
PSN no. 5671671 to to Ex.
5671675. PW1/10
7. Copy of E-mails from Ex.
26.07.2017 to 30.08.2017. PW1/11 to
Ex.
PW1/31
8. Legal notice dated Ex.
23.05.2017 and postal PW1/32 to
receipts. Ex.
PW1/35
9. Postal tracking reports. Ex.
PW1/36 to
Ex.
PW1/38
10. Certificate under Section Ex.
65B of Indian Evidence Act. PW1/39
11. Order dated 04.11.2020 Ex. 1/40.
passed in CS (COMM.)
14/18.
12. Non-starter report dated Ex.PW1/41
20.02.2021 fo NDDLSA for
Pre- Institution Mediation.
CS (Comm.) No. 340/2021 CJ DARCL Logistics Ltd. vs. JMD Global Forwarders Inc Pvt. Ltd. Page 4 of 7
4. I have heard the learned counsel for the plaintiff and carefully gone through the record.
5. In his unrebutted testimony from the documents PW-1 has clearly proved the Certificate of Incorporation as Ex. PW1/1; The GPA dated 28.03.2018 as Ex. PW1/2; Board Resolution dated 23.03.2018 as Ex. PW1/3; Ledger account as Ex. PW1/4; Invoice dated 01.09.2017 as Ex. PW1/5; Consignment notes bearing PSN nos. 5671671 to 5671675 as Ex. PW1/6 to Ex. PW1/10; Copy of e-mails from 26.07.2017 to 30.08.2017 as Ex. PW1/11 to Ex. PW1/31; Legal notice dated 23.05.2017 and postal receipts as Ex. PW1/32 to Ex. PW1/35; Postal tracking reports as Ex. PW1/36 to Ex. PW1/38; Certificate under Section 65B of Indian Evidence Act as Ex. PW1/39; Order dated 04.11.2020 passed in CS (COMM.) 14/18 as Ex. PW1/40; Non-starter report dated 20.02.2021 of NDDLSA for Pre- Institution Mediation as Ex. PW1/41.
6. Keeping in view the unrebutted testimony of PW-1 and the documents proved on record, in my opinion plaintiff company has successfully established that defendant company had failed to pay dues despite opportunities. In my opinion, plaintiff has proved its case in respect of the due amount i.e. Rs. Rs. 3,67,558/-.
7. Plaintiff has claimed pendentelite and future interest @ 18% per annum.
CS (Comm.) No. 340/2021 CJ DARCL Logistics Ltd. vs. JMD Global Forwarders Inc Pvt. Ltd. Page 5 of 78. Order VII Rule 2A of Code of Civil Procedure (hereinafter referred as CPC) in respect of a commercial dispute of a specified value was brought in by way of amendment in respect of the requirements of pleadings where interest has been claimed by the plaintiff but the perusal of the plaint and affidavit Ex. PW1/A reveals that no case has been appropriately set up by the plaintiff in accordance with Order VII Rule 2A of CPC for pendentelite and future interest at such an exhorbitant rate i.e., 18% per annum. No document has been filed nor proved by plaintiff that money is lent by banks on interest @ 18% per annum.
9. Under Section 34 of CPC it is provided that where the liability in relation to the sum so adjudged had arisen out of commercial transaction, the rate of such further interest may exceed 6% per annum but shall not exceed the contractual rate of interest or where there in no contractual rate, the rate at which moneys are lent or advanced by nationalized banks in relation to the commercial transactions.
10. Keeping in view the above discussion, in my opinion, plaintiff has not been able to justify the claim of pendentelite and future interest @ 18% per annum claimed in the plaint and no pleadings have been set up to justify the interest at such an exorbitant rate of interest. No document has been filed nor proved by plaintiff that money is lent by banks on interest @ 18% per annum. It has been established that it has been commercial transaction. In my opinion, keeping in view the prevalent rate of interest in nationalized banks in such CS (Comm.) No. 340/2021 CJ DARCL Logistics Ltd. vs. JMD Global Forwarders Inc Pvt. Ltd. Page 6 of 7 transactions, interest of justice will be served if plaintiff is allowed pendente-lite and future interest @9% per annum.
11. Plaintiff has also claimed the cost of the suit. Keeping in view Sections 35 and 35A of CPC, it has been established that defendant failed to pay the amount despite service of summons and even failed to file written statement after appearance before the Court. Therefore, defendant itself is responsible for the cost of the litigation to the extent of court fee and lawyers fee etc. as per rules. In my view plaintiff is accordingly entitled for the cost of litigation against the defendant.
Relief.
12. In view of the above discussions, suit for recovery is decreed in favour of the plaintiff and against the defendant, for an amount of Rs. 3,67,558/- (Rupees three lakhs, sixty seven thousands, five hundred and fifty eight only) along with interest @ 9% per annum from the date of filing of the suit till the date of decree and from the date of decree till the realization of the decreetal amount. Cost is also awarded in favour of the plaintiff and against the defendant to the extent of court fee and advocate's fee as per rules.
Decree sheet be prepared accordingly.
File be consigned to the record room.
Digitally signed by
GURVINDER GURVINDER
SINGH
PAL
PAL SINGH Date: 2022.08.08
14:16:10 +0530
ANNOUNCED IN (Gurvinder Pal Singh)
OPEN COURT District Judge (Commercial Court)-02
On 8th August, 2022. Patiala House Courts, New Delhi (vkp) CS (Comm.) No. 340/2021 CJ DARCL Logistics Ltd. vs. JMD Global Forwarders Inc Pvt. Ltd. Page 7 of 7