Delhi District Court
P.M. Relocations Pvt. Ltd vs Orayan Logistics Pvt. Ltd on 17 January, 2022
IN THE COURT OF SHRI NARESH KUMAR LAKA
ADDITIONAL DISTRICT JUDGE - 03, SOUTH EAST,
SAKET COURTS, NEW DELHI
CS No.11525/16
(old no. 2368/12)
In the matter of:
P.M. Relocations Pvt. Ltd.
Having its registered office at:
B-64, Lajpat Nagar-II,
New Delhi-110024
Through its Director
Mr. Rajeev Bhargava
............. Plaintiff
VERSUS
1. Orayan Logistics Pvt. Ltd.
Having its office at:
A-81, Ground Floor,
Street No. 6, Road No. 4, Mahipalpur Extension
New Delhi-110037
2. Afro Delta Transport Pvt. Ltd.
Having its office at:
63-A, Bharat Nagar,
New Friends Colony, New Delhi-110065
3. Leading Cargo Movers
3rd Floor, D-84/2, Phase-I,
Okhla Industrial Area, New Delhi-110020
4. Maersk Line India Pvt. Ltd.
6th Floor, tower- 9A, DLF Cyber City,
Phase-III, Gurgaon, Haryana.
CS No11525/16 Page No. 1 of 29
P.M. Relocation vs. Orayan Logistics Pvt. Ltd. & Ors.
........ Defendants
Date of Institution : 07.12.2022
Arguments concluded on : 23.12.2021
Date of decision : 17.01.2022
Result : Decreed
Suit for Permanent and Mandatory Injunction
along with Damages
JUDGMENT
The plaintiff claimed that he is engaged in the business of packing and shifting services to its client in India and abroad and he booked a consignment with the defendant no.3 for forwarding the said consignment/goods to Germany and after delivery of the entire goods to the defendant no.3 on 08.05.2012, an invoice dated 09.05.2012 for an amount of Rs. 1,07,106 was issued and the said payment was made vide a cheque no. 722121 after deducting the TDS amount. It is also claimed that the defendant thereafter sent the goods after issuing a bill of lading dated 11.05.2012 which bears the stamp/name of the defendant no.1 and 2. The plaintiff further disclosed that the goods reached to its destination on 22.06.2012 but the same were not delivered to its client, namely, Sh. Himanshu Sharma and on inquiry, it was revealed that the agent of defendant no. 1 and 2 did not release the said consignment. Thereupon the plaintiff informed the said fact to defendant no.3 who assured that the problem will be sorted out but issue was not resolved and consequently, the CS No11525/16 Page No. 2 of 29 P.M. Relocation vs. Orayan Logistics Pvt. Ltd. & Ors. plaintiff suffered huge losses for demurer charges and other amounts, for which the present suit has been filed. The plaintiff also stated that when the suit was filed initially before Hon'ble High Court of Delhi, an interim order was passed for release of goods by depositing the amount to the defendant no.4 and as such the defendant no.4 was also impleaded subsequently in the amended suit. Finally, the plaintiff claimed the relief of damages and other amounts to the extent of Rs. 28,01,055 along with interest.
Defence in brief
2. The defendants contested the present suit and filed their separate written statements. In the written statement filed by the defendant no.1 & 2, it is claimed that there was no privity of contract between the plaintiff and the defendant no.1 and 2. It is further stated that the consignment was withheld up as the payment was not received by the defendant no.1 and 2 from the defendant no.3 and the defendant no.3 was at fault and it is only liable to pay damages, if any. It is also stated that there is no cause of action against the defendant no.1 and 2 and they were unnecessarily impleaded in this suit.
3. In the written statement filed on behalf of the defendant no.3, it is claimed that the defendant no.3 has no role in causing any loss to the plaintiff since the transaction was conducted by the defendant no.1 and 2 only and because they withheld the consignment despite making payment CS No11525/16 Page No. 3 of 29 P.M. Relocation vs. Orayan Logistics Pvt. Ltd. & Ors. of the due amount, they are only responsible for committing lapses on their part. It is further stated that the defendant no1 and 2 are being run by same Directors and they are one and same in law and fact. It is also disclosed that the bill of lading specifically find mentioned that the payments were already made which were shown as "prepaid" consignment. Therefore, it is pleaded that the defendant no.1 and 2 has no right to withhold the said consignment even if it is presumed that there was any amount due from the defendant no.3 to the defendant no.1 and 2.
4. The defendant no.4 also took a stand that he was unnecessarily impleaded in the present suit though there was no privity of contract with the plaintiff nor any cause of action.
Replication/issues and trial
5. The plaintiff filed replications to the written statements of the defendants wherein the averments of the plaint were reiterated and the allegations of the defendants were controverted. From the pleadings of the parties, following issues were framed:
1. Whether the plaintiff is entitled to damages in the sum of Rs. 28,01,055? OPP
2. Whether the plaintiff is entitled to interest, if so what rate and for which period? OPP
3. Whether the suit is not maintainable against defendants no.4? OPP
4. Whether the suit is barred by limitation qua defendant no. 4? OPD-4 CS No11525/16 Page No. 4 of 29 P.M. Relocation vs. Orayan Logistics Pvt. Ltd. & Ors.
5. Whether there is no privity of contract between the plaintiffs and defendants no.1 and 2? OPP
6. Whether the defendants no. 1 and 2 have legally withheld the consignment of the plaintiff? OPD 1 and 2
6. I have heard arguments from Sh. Mayank Wadhwa, Ld. Counsel for the plaintiff; Sh. Asim Naeem, ld. Counsel for the defendant no.1 & 2, Sh. Avtar Singh, Ld. Counsel for the defendant no. 3 and Sh. O.P. Gaggar, Ld. Counsel for the Defendant no.4. Record perused.
REASONS FOR DECISION Preliminary arguments
7. At the outset, Learned counsel for defendant no.1 and 2 vehemently argued that no action is required to be taken against defendant no.1 and 2 in view of the submissions of the counsel for the plaintiff which was made at the initial stage of the present suit and recorded in the order- sheet dated 07.09.2012 to the effect 'that the plaintiff has undertaken that he would write to the police that they have no complaint against defendant no.1 and 2 and their complaint is confined to the defendant no.3 alone' . From the perusal of the order dated 07.09.2012, it is seen that there was no submission of the counsel for the plaintiff that he has been withdrawing or abandoning the reliefs which were prayed against defendant no.1 and 2 of the present suit and what has been undertaken was with respect to taking of no action on the complaint which was made to police against defendant CS No11525/16 Page No. 5 of 29 P.M. Relocation vs. Orayan Logistics Pvt. Ltd. & Ors. no.1 and 2.
8. It is a settled preposition of law that an aggrieved person may have more than one remedies available under law e.g. civil, criminal or tortuous action to seek redressal and it is the choice of such person to avail the remedy, whether all or any of them. as per his choice. But when he chooses to avail only one remedy, the waiver of availing other remedy cannot be a ground to deny the relief which has been availed. There was also no submission from the side of plaintiff or defendant no.1 and 2 for deletion of prayers and names of the defendant no.1 and 2 from the present suit at any stage of the case rather conversely the present suit has been hotly contested by the plaintiff against the defendant no.1 and 2 with specific prayers. Therefore, this court holds that the aforesaid submission/undertaking of the plaintiff will not dis-entitle it for seeking the reliefs against defendant no.1 and 2 as prayed in the present suit, provided it proves its case. The aforesaid contention is thus rejected being found merit-less.
Relationship between defendants no.1 to 2
9. In order to ascertain liability of a particular defendant, it is essential to determine their exact legal status and relationship. A stand has been taken that the defendant no.1 and 2 are two separate companies having separate corporal entity but it is seen that the a joint written statement has been filed by the said two defendants and even the names of CS No11525/16 Page No. 6 of 29 P.M. Relocation vs. Orayan Logistics Pvt. Ltd. & Ors. these two companies were appended in the bill of lading (which is the most crucial contractual document) which clearly shows that there was a connivance or connection between the said two companies as far as the present transaction is concerned. Supposedly if the said two companies were doing their business separately or independent of each other, then the bill of lading should not have been issued and signed by defendant no.1 and no.2 together.
10. During cross-examination, the DW-1 (examined on behalf of the defendant no.3) specifically narrated that some of the Directors of the said two companies were working for both the said companies and there was no separation of business. The defendant no. 1 and 2 did not prefer to examine any witness and thus this court holds that the defendant no.1 and 2 withheld the best evidence which could have brought light to the affairs of defendant no.1 and 2 and their internal relation and actual control. As such, this court has no hesitation to hold that the defendant no.1 and 2 are one and same entity for the purpose of transaction in question.
Relationship between defendants no.1 to 2 and defendant no.3
11. A dispute has been raised on the point of status of defendants no.1 and 2 on the one side and defendant no.3, on the other side, on the question as to who was/is the principal or agent of the other or in other words whether they are working independent of each other. In the preceding paragraph, it has already been held that the defendant no.1 and 2 CS No11525/16 Page No. 7 of 29 P.M. Relocation vs. Orayan Logistics Pvt. Ltd. & Ors. are one and the same entity. In the WS filed on behalf of defendant no.1 and 2, it is admitted in para no.2 (para-wise reply) that the the defendant no.3 has approached defendant no.2 as a handling agent to the disputed shipment. It is further admitted in para no.2 that the defendant no.3 is a local shipping agent and that defendant no.3 (para no.3) booked the shipment through the defendant no.2.
12. In the WS filed on behalf of the defendant no.3, although no specific stand has been taken with regard to relationship between the defendant no.1 and 2 and the defendant no.3 but there is an assertion that the defendant no.3 acted as a 'middle man'.
13. The said admissions of the defendant no.1 and 2 as well as defendant no.3 are sufficient to prove and hold that the defendant no.3 was procuring bookings of consignments for their transportation through defendant no.1 and 2. From the bill of lading in question, it is also specifically evident that the booking of the plaintiff was done on the bill of lading which was issued on behalf of defendant no.1 and 2 and not on bill of lading of the defendant no.3. In that view of the matter, this court holds that the defendant no.3 acted as an agent of the defendant no.1 and 2, who in turn, acted as principal of the said agent. The said booking was also not in the form of a shpping contract with all terms and condition between the plaintiff and the defendant no.3 only, therefore, the defendant no.3 cannot be said to a principal of defendant no.1 and 2.
CS No11525/16 Page No. 8 of 29P.M. Relocation vs. Orayan Logistics Pvt. Ltd. & Ors.
14. As per provisions of the Indian Contract Act, 1872, there is no mandatory requirement to have a written contract for creation of a contract of principal and agent and rather it can be express or implied which can be inferred from the conduct or circumstances of the case. There are ample evidence on record, like demand of amount from the defendant no.3 by the defendant no.1 and 2 and the stand of the defendant no.1 and 2 in their written statement that they used to provide services to the defendant no.3, etc which make it clear that the said relationship between defendant no.1 and 2 as principal and defendant no.2 as their agent has been proved on record.
Lien/charge
15. The para No.5 of the written statement filed on behalf of defendant no.1 and 2 also shows an admission about the previous transaction in the form that "Defendant no.1 and 2 gave services to the defendant no.3 against which, case under Section 138 of the NI Act were also filed". The word "services" provided by the defendant no.1 and 2 to defendant no.3 clearly shows admission on their part about the transactions having taken place between the defendant no.1 and 2 and the defendant no.3 relating to sending of various consignments which include the consignment of the present suit in the absence of any specific denial. The Bill of lading also finds mentioned the name of the plaintiff.
16. From the evidence led on record on behalf of defendant no.3, CS No11525/16 Page No. 9 of 29 P.M. Relocation vs. Orayan Logistics Pvt. Ltd. & Ors. it came on record that there were around 15 transactions in the past between defendant no.1 and 2 (on the one side) and defendant no.3 (on the other side) and the DW-1 also disclosed that out of the said transactions, the consignments were withheld only in 5-6 transactions. The said witness further disclosed in his cross-examination that the said transactions used to be made on credit basis for a period of 30-45 days. The DW1 also categorically described the names of the Directors or staff of both the companies i.e. defendant no.1 and 2 and duration of more than 10 years and the manner in which the transactions took place especially by giving advance blank signed cheques. The aforesaid evidence has not been controverted by leading any evidence by defendant no.1 and 2. These facts clearly established that there was a practice of doing business in the manner that the defendant no.3 used to take bookings on behalf of defendant no.1 and 2 on credit basis.
17. The main plea of the defendant no.1 and 2 is on the point that the defendant no.3 did not pay the due amount to them and that is why the consignment was withheld and as per Section 221 and 230 of the Indian Contract Act the defendant no.1 and 2 are entitled to retain the goods, whereas the defendant no.3 claimed that a payment of Rs.1 lakh was made to the defendant no.1 and 2 on 30.06.2012 and, therefore, the defendant no.1 and 2 were not justified to withhold the consignment and secondly the said consignment was on the basis of "prepaid bill of lading" and thus it cannot be withheld.
CS No11525/16 Page No. 10 of 29P.M. Relocation vs. Orayan Logistics Pvt. Ltd. & Ors.
18. In the preceding paragraph on the point of relationship between the parties, it has already been held that the defendant no.1 and 2 are principals and the defendant no.3 is their agent and as per Section 231 of the Indian Contract Act, the plaintiff shall have all his rights against the principle as well as agent whether the plaintiff was aware of such principal or not. The said Section is reproduced for a better understanding:
"S.231. Right of parties to a contract made by agent not disclosed.--If an agent makes a contract with a person who neither knows, nor has reason to suspect, that he is an agent, his principal may require the performance of the contract; but the other contracting party has, as against the principal, the same rights as he would have had as against the agent if the agent had been principal. --If an agent makes a contract with a person who neither knows, nor has reason to suspect, that he is an agent, his principal may require the performance of the contract; but the other contracting party has, as against the principal, the same rights as he would have had as against the agent if the agent had been principal."
19. In the considered opinion of this court, the Section 221 does not apply as in the instant case it has already been held that the defendant no.1 and 2 were the principle and not agent. Secondly the consignment is the property of the third party (i.e. plaintiff or his client Himanshu Sharma) CS No11525/16 Page No. 11 of 29 P.M. Relocation vs. Orayan Logistics Pvt. Ltd. & Ors. and not the property of the principal, which is the requirement of Section
221.
20. In view of the said provisions and the facts, it can be said that once payment has been made to the agent (i.e. defendant no.3) by the plaintiff (third party), the said payment is to be treated to have been made to the principal as well as per aforesaid Section 231 and the principal cannot take a plea that since payment has not been made to it by its agent (defendant no.3), therefore, he has a right to retain the goods by having a lien/charge. In this regard, the following Section 226 of the Indian Contract Act, 1872 and its illustration (b) are very relevant and they are being reproduced as under:
"S.226. Enforcement and consequences of agent's contracts.--Contracts entered into through an agent, and obligations arising from acts done by an agent, may be enforced in the same manner, and will have the same legal consequences as if the contracts had been entered into the acts done by the principal in person. --Contracts entered into through an agent, and obligations arising from acts done by an agent, may be enforced in the same manner, and will have the same legal consequences as if the contracts had been entered into the acts done by the principal in person.
Illustrations:
CS No11525/16 Page No. 12 of 29P.M. Relocation vs. Orayan Logistics Pvt. Ltd. & Ors.
(b) A, being B's agent, with authority to receive money on his behalf, receives from C a sum of money due to B. C is discharged of his obligation to pay the sum in question to B."
21. In the instant case, payments were already made by the plaintiff and even the defendant no.1 and 2 consciously written on the Bill of lading the word "prepaid" towards all kinds of charges which means in plain language that the said consignment was to be transmitted without any hassle as regards payment of charges. But the defendant no.1 and 2 negligently ignored the said word 'prepaid' and rather tried to seek recovery of the previous alleged due amount by using unfair practice which also amounts to be black mailing or extortion. If the defendant no.1 and 2 had any amount to be recovered from the defendant no.3, it could have been done by resorting to the remedies as provided under law in a legal way and not by creating pressure by withholding the consignment especially when transactions used to be held between the parties on credit basis or alternatively when it was a prepaid consignment.
22. The learned counsel for defendant no.3 also argued that the payment of Rs.1 lakh was also made to the defendant no.1 and 2, therefore, there was no occasion to withhold the said consignment. In this regard, the counsel for defendant no.1 and 2 claimed that the said payment was not made towards the consignment in question but it was related to the CS No11525/16 Page No. 13 of 29 P.M. Relocation vs. Orayan Logistics Pvt. Ltd. & Ors. previous outstanding amount. In the considered opinion of this court, it hardly makes any difference whether the said payment was made towards previous outstanding amount or the consignment in question because the transactions between the defendant no.1 & 2 and defendant no.3 were held to be based on credit facility and no evidence has been led by the defendant no.1 and 2 to prove that all payments in the past were made consignment- wise and not on credit basis. Further as per Section 231, when the defendants no.1 and 2 and the defendant no.3 were held to be the principal and agent respectively, then question of lien between themselves does not arise.
23. It is also noted that even after making payment of Rs. 1 lakh (which was the sum very near to the booking amount of the consignment in question), by the defendant no.3 on 30.06.2012 to the defendant no.1 and 2, the defendant no.1 and 2 had maintained complete silence despite various e-mails sent by the plaintiff and other agents. This approach of the defendant no.1 and 2 shows a gross negligence on their part.
24. The counsel for defendant no.1 and 2 also argued that a complaint was filed against defendant no.3 and copy of the same has been placed on record. From the record, it is clear that the said complaint has not been proved on record by examination of any witnesses by defendant no.1 and 2. Moreover, there is no specific allegation of commission of any fraud or fabrication of the bill of lading in question which was issued on behalf CS No11525/16 Page No. 14 of 29 P.M. Relocation vs. Orayan Logistics Pvt. Ltd. & Ors. of defendant no.1 and 2 in the written statement and in the absence of any such specific allegations, the mere filing of copy of complaint cannot be considered. Moreover, as per law, such complaint cannot be taken as a gospel truth unless the allegations/charges made in the said complaint are proved as per law which is not pleaded in this case. As such the said complaint cannot be considered at all.
Issue No. 5: Whether there is no privity of contract between the plaintiffs and defendants no.1 and 2? OPP
25. In the instant case, the plaintiff has impleaded as many as four defendants and defendant no.1 and 2 vehemently claimed that there is no privity of contract between the plaintiff and defendant no.1 and 2 and in this regard, Ld. Counsel for the defendant no.1 and 2 had drawn attention of this court to para no.2 and 3 of the plaint, which specifically find mentioned that the plaintiff entered into an agreement with defendant no.3 for moving a consignment to Germany and the plaintiff does not have any direct contract with defendant no.1 and 2 and the transaction took place between the plaintiff and defendant no.3. As such the counsel for the defendant no.1 and 2 argued that in the absence of an 01.04.2012 to 31.03.2013 regular business has been going on between them y privity of contract, no liability can be fastened upon the defendant no.1 and 2 for the losses, if any, suffered by the plaintiff and the remedy of the plaintiff lies against the defendant no.3 only.
CS No11525/16 Page No. 15 of 29P.M. Relocation vs. Orayan Logistics Pvt. Ltd. & Ors.
26. While deciding the present suit, this court is not required to see averments of the plaint alone but it has to examine overall pleadings as well as evidence produced on record by all the parties. It is evident that initially the plaintiff approached the defendant no.3 for sending one consignment to Germany but if the defendant no.3 has forwarded the said contract to defendant no.1 and 2 then obviously the entire transaction and the role as well as legal status of each party is required to be ascertained. There may be a situation when a contract is entered into between an agent and a third person (client) without the knowledge of the principal of the said agent or there may be a situation that a contract is entered into between a principal and a third person (client) and such contr 01.04.2012 to 31.03.2013 regular business has been going on between them act is sub- contracted to an agent by the principal without the knowledge of the third person (client) and in such eventuality also the liability of principal or agent can arise despite having no direct privity of contract. The said situations have been provided in specific provisions of the Indian Contract Act, 1872.
27. The fundamental contractual document of the transaction of the plaintiff is the bill of lading. No doubt, the plaintiff orally entered into an agreement with the defendant no.3 for sending its consignment to abroad but when the said transaction was conducted by way of a written document i.e. bill of lading by the defendant no.1 and 2, it cannot be said CS No11525/16 Page No. 16 of 29 P.M. Relocation vs. Orayan Logistics Pvt. Ltd. & Ors. that the defendant no.1 and 2 had no role in the transaction or that they were not aware of anything especially when the said document find mentioned the name of the defendant no.1 and 2 on the said bill of lading. It is also seen from the WS of the defendant no.1 and 2 that the said defendants specifically admitted that the said bill of lading was issued by the defendant no.1 though it bears the official rubber stamp of the defendant no.2.
28. A bald plea was taken that the defendant no.2 had used the stationary of defendant no.1. There is no specific claim of the defendant no.1 and 2 that the bill of lading was stolen or misused by the defendant no.3 for entering into the transaction in question. There is also no plea that the said bill of lading is a forged and fabricated document. There is also nothing on record to suggest that the defendant no. 1 and 2 had ever filed any complaint against the defendant no.3 for purportedly using a document in the name of defendant no.1 and 2. From the evidence, it also came on record that there were email communications between the defendant no.3 and defendant no.1 & 2 which also clearly show that the defendant no.1 and 2 were aware of the entire transaction in question and even they have taken a stand in WS that the consignment of the plaintiff was not released at the destination for want of outstanding amount of the defendant no.3.
29. From the aforesaid facts, circumstances and evidence, it is amply clear that the defendant no.1 and 2 were directly involved in the CS No11525/16 Page No. 17 of 29 P.M. Relocation vs. Orayan Logistics Pvt. Ltd. & Ors. entire transaction and that is why they had also staked their claim for payment of the due amount from the defendant no.3 of the transaction in question including previous due amount. Moreover, it is a settled preposition of law that more credence should be given to the documentary evidence than the oral versions of the party. A person can tell a lie but a document cannot. The most important document in this case is the bill of lading which forms a complete contract between the plaintiff, defendant no.1 and 2 and other parties mentioned therein. Therefore, the contention that there was no privity of contract between the plaintiff and the defendant no.1 and 2 is not substantiated and thus rejected.
30. Accordingly, this issue is decided in favour of the plaintiff and against the defendant no.1 and 2.
Issue No. 6: Whether the defendants no. 1 and 2 have legally withheld the consignment of the plaintiff? OPD 1 and 2
31. The defendant no.1 and 2 had claimed that there was no privity of contract between them and the plaintiff but in the issue no.5 it has already been decided that the privity of contract between the said parties have been proved on record. Now the question arises as to what extent the defendant no.1 and 2 are liable. The defendant no.1 and 2 claimed that the contract was between the plaintiff and defendant no.3 directly and there was no direct interaction or transaction between the plaintiff and defendant CS No11525/16 Page No. 18 of 29 P.M. Relocation vs. Orayan Logistics Pvt. Ltd. & Ors. no.1 and 2. In the instant case, the bill of lading is most crucial document and it has been issued in the name of defendant no.1 i.e. Orayan Logistic under the signature of the defendant no.2 (i.e. Afro Delta) and it is a settled preposition of law that a written document should be given precedence than the oral submissions/averments of the parties.
32. Ld. Counsel for the defendant no.1 and 2 argued that in the said bill of lading the word "prepaid" written on its bottom does not mean that the amount was already paid and in fact no amount was given to the defendant no.1 and 2 by the defendant no.3 or by the plaintiff and as such, there was nothing wrong in the ation of the defendant no.1 and 2 regarding withholding of shipment. In this regard, the Ld. Counsel for the defendant no.1 and 2 has referred to certain rules.
33. In the considered opinion of this court the word 'prepaid' as written on the left side bottom of the bill of lading in plain language indicate that the requisite charges were already paid by the plaintiff and that is why the said words find mentioned in the said bill of lading. The said bill of lading was issued by the defendant no.1 and 2 and when such word were mentioned therein, they cannot be allowed to assert any contradictory version which is hit by Section 91 and 92 of the Indian Evidence Act, 1872. In such eventuality, even onus to prove the contrary stands lies upon the party who asserts contrary to the content of the written content but the CS No11525/16 Page No. 19 of 29 P.M. Relocation vs. Orayan Logistics Pvt. Ltd. & Ors. defendant no.1 and 2 did not prefer to lead any evidence and therefore, the said contention is rejected.
34. Moreover, it was not only the inscription 'prepaid' which was indicated on the said bill of lading but evidence has been produced on record by the plaintiff and defendant no.3 which clearly proved that the said payment was made by the plaintiff to the defendant no.3 who acted as agent of the defendant no.1 and 2 and that is why, said word 'prepaid' was happened to be written on the said bill of lading and if there is any dispute on the point of payment of due amount between the defendant no.1 and 2 and the defendant no.2, this is, in no way, related to plaintiff. Accordingly this court holds that the defendant no.1 and 2 has no right to withheld the consignment of the plaintiff. This issue is accordingly decided in favour of the plaintiff and against the defendant no.1 and 2.
Issue no. 3: Whether the suit is not maintainable against defendants no.4? OPP
35. In the instant case, the defendant no. 4 was impleaded subsequently only because of the reason that the plaintiff has made certain payment to the defendant no.4 as per the initial order passed on 07.09.2012 and 05.12.2012. From the perusal of record as well as stands of the main parties i.e. plaintiff and defendant no.1 to 3, this court is of the considered opinion that there was no privity of contract between the plaintiff and CS No11525/16 Page No. 20 of 29 P.M. Relocation vs. Orayan Logistics Pvt. Ltd. & Ors. defendant no. 4 nor any negligence has been proved on the part of the defendant no.4. Accordingly, this court hold that there was no cause of action against the defendant no.4 and therefore this issue is decided against the plaintiff and in favour of the defendant no.4.
Issue No.4: Whether the suit is barred by limitation qua defendant no. 4? OPD-4
36. Since the issue no. 3 has already been decided against the plaintiff and in favour of the defendant no.4, this issue does not require to be considered at all. Accordingly, this issue decided against the plaintiff and in favour of the defendant no.4.
Issue No. 1 Whether the plaintiff is entitled to damages in the sum of Rs. 28,01,055? OPP
37. The plaintiff has claimed damages in the sum of Rs. 28,01,055. Before deciding the quantum of damages, it is required to be decided whether the plaintiff is entitled to any damages or not and if yes, against which of the defendants.
38. While deciding the issue no. 5 and 6, it has already been held that the defendant no.1 and 2 had no right to withhold the consignment of the plaintiff. Therefore, primarily they are liable to make good of the losses suffered by the plaintiff. However, in the instant case, the plaintiff CS No11525/16 Page No. 21 of 29 P.M. Relocation vs. Orayan Logistics Pvt. Ltd. & Ors. has also disclosed the specific role played by the defendant no.3 for booking of consignment and payment of the freight and other charges to the defendant no.3 as well as not ensuring release of its consignment in time.
39. The defendant no.3 also admitted on record the booking of consignment and receiving of payment from the plaintiff. It is, however, claimed that the defendant no.3 was trapped by the defendant no.1 and 2 and the said consignment of the plaintiff was also sent due to said reason. From the said stands, it is clear that the defendant no.3 did not deny its role in booking the consignment in question and the privity of contract between the plaintiff and defendant no.3 at the outset or at the initial stage when the consignment was booked though subsequently it was forwarded to defendant no.1 and 2 when the bill of lading was issued by the latter. As such, the said evidence clearly established the role of the defendant no.3 as a commission agent. The defendant no.1 and 2 specifically claimed that the defendant no.3 did not pay the due amount of their services for booking the said consignment and taking it to its destination, therefore, the defendant no.3 is alone liable to pay the damages.
40. In the written statement, the defendant no.3 claimed that the entire due amount of the transaction in question was already paid to the defendant no.1 and 2 and in this regard, the counsel for the defendant no.3 specifically relied on the payment of Rs. 1 lacs made on 30.06.2012. On CS No11525/16 Page No. 22 of 29 P.M. Relocation vs. Orayan Logistics Pvt. Ltd. & Ors. the other hand, defendant no.1 and 2 claimed that the defendant no.3 did not pay the due amount of the transaction in question and the said payment was towards previous outstanding amount.
41. Legally speaking, the defendant no. 1 and 2 have no right to withhold the consignment but the actual losses which have been suffered in this case by the plaintiff had been caused on account of existence of payment dispute between the defendant no.1 & 2 and the defendant no.3, therefore, it can be said that factually on account of pendency of outstanding amount from the defendant no.3, the defendant no.1 and 2 adopted a method to ensure recovery of his amount by withholding the consignment in question. Therefore, it can be said that the defendant no.1 & 2 were prompted or provoked to take such action on account of non- payment of the amount by the defendant no.3, therefore, the defendant no.3 cannot be left scot-free.
42. In the aforesaid circumstances, this court hold that the defendant no.3 was negligent in not making the payment of the due amount of the defendant no.1 and 2 especially till the time he made the payment of Rs.1 lakh on 30.06.2012. Consequently, it is held that there were negligence on the part of the defendant no.1 & 2 on the one side majorly and the defendant no.3 on other side till the time payment of Rs.1 lakh was made. Therefore in the light of aforesaid findings, this court holds that the CS No11525/16 Page No. 23 of 29 P.M. Relocation vs. Orayan Logistics Pvt. Ltd. & Ors. defendant no.3 is liable to make good of the losses till 30.06.2012 and for the remaining period the defendant no.1 and 2 are liable.
43. The amount of losses can be bifurcated qua the defendant no.1 and 2 and defendant no.3 as per time period. The consignment reached Germany on 22.06.2012 and it was released to the plaintiff on 21.09.2012 and thus it can be said that it was wrongfully retained for 3 months. Out of which, the detention can be attributed on the part of defendant no.3 till he made the payment on 30.06.2012 and for remaining period, the defendant no.1 and 2 are liable. The period of detention for defendant no.2 is 8 days whereas it was 2 months 22 days on the part of the defendant no.1 and 2 which constitutes around 92% of the total time. Therefore, this court holds that out of the total amount which will be awarded in the suit, the defendant no.1 and 2 will be liable to pay 90% and the defendant no.3 for 10% of the total amount. While determining the aforesaid rate and the other factors or compensation, the slight fractions shall not be considered and the aforesaid ratio has been fixed by this court by keeping in mind the overall role of the defendants no.3 also.
Quantum of damages:
44. The plaintiff has claimed damages to the tune of Rs.28,00,155/- from all the defendants and the said claim is being decided item-wise as under:
CS No11525/16 Page No. 24 of 29P.M. Relocation vs. Orayan Logistics Pvt. Ltd. & Ors.
(i) Rs.5,53,500/- on account of detention and demurrage charges The aforesaid payments were made by the plaintiff to the defendant no.4 and the invoices (Ex.PW-1/10-colly) were issued by the defendant no.4 only which were not denied by it. The said payments were also made in pursuance to initial orders of the court to ensure release of consignment.
Therefore, the plaintiff is held entitled to recover the said charges.
(ii) Rs.6,58,000/- towards alternative accommodation The Ld. Counsel for the defendants raised objection on the mode of proof of the bills (EX.PW-1/11) which have been filed on record by the plaintiff towards accommodation expenses of Shri Himanshu Sharma. It is also argued that the plaintiff neither examined Shri Himanshu Sharma, the client of the plaintiff nor any other witness to prove the said bills. On the other hand, the Ld. Counsel for the plaintiff argued that the said bills were the electronic record and a certificate/affidavit has already been placed on record which authenticates the aforesaid bills, therefore, said bills stand proved as per law.
The said bills were exhibited as Ex. PW1/11 (Colly) but an objection was raised on the mode of proof. From the perusal of the bills Ex. PW-1/11 (Colly), it is seen that there are total five invoices, out of which first two issued in the name of Active Moving and Shipping are in original form and the remaining invoices are in the form of electronic record. This court does not find any illegality for proving the electronic record (which are the CS No11525/16 Page No. 25 of 29 P.M. Relocation vs. Orayan Logistics Pvt. Ltd. & Ors. corresponding entries of original invoices) by accompanying a certificate under Section 65B of the Indian Evidence Act, 1872 and thus they stand proved. Further, if there was any doubt, the onus was upon the defendants to disprove them but no such evidence has been led by them. The Ld. Counsel for the defendant no.3 also argued that Mr. Himanshu Sharma, has not been examined by the plaintiff. In this regard, it is noted that the plaintiff has specifically claimed that the payment of the said bills were made by the plaintiff, therefore, examination of Mr. Rajeev Bhargav, its authorized official is acceptable in law.
The Ld. Counsel for the defendant no.3 further argued that there are discrepancies in the dates of the stay, check in and check out of the hotel bills. This court does not find any substance in the said submission as it is not necessary that the date of invoice should match with the date of check- out always. Accordingly in view of aforesaid observations, the plaintiff is held entitled to following payment on account of hotel expenses:
Date of invoice 18.09.2012 EUR 4935
Date of invoice 24.08.2012 EUR 3525
Date of invoice 22.09.2012 EUR 0940
Total EUR 9400
This value of the one EUR as per the prevailing rate of the relevant time as claimed in the plaint was Rs.70. Therefore, the said EUR 9400 is treated as Rs.6,58,000.
(iii) Rs.12,00,000/- towards loss of reputation and goodwill CS No11525/16 Page No. 26 of 29 P.M. Relocation vs. Orayan Logistics Pvt. Ltd. & Ors.
The plaintiff claimed that he is into the business of providing packing and shifting services in India as well as abroad and on account of loss of reputation he had suffered business losses. In this regard he also filed a self prepared statement of account (Ex.PW-1/13) which shows an average business loss in 2012-2013 as Rs.4,35,257. The said figure is supported by filing entries of ledge account for the contemporary period. The counsel for the defendants opposed the aforesaid claim though no contradiction has been pointed out. The defendant no.3 relied on following judgment with regard to award of damages-
1) DMRC Vs. Sh. Satish Gujral, decided on 20.07.15, CS (OS) No.120/2006
2) NDMC Vs. Ravinder Singh & Ors. decided on 23.10.18, RFA No.586/2006 In view of the ledger account entries and the fact that the plaintiff is a company dealing with such transactions at large scale which were shown to become less at the relevant time, this court holds that on account of withholding of consignment of his client, it has suffered substantive loss of its reputation as well as business. The aforesaid judgments are distinguishable on the factual aspects. Accordingly this court deems it fit to grant a reasonable amount of Rs.8,00,000 (Eight Lakhs) on that account.
(iv) Rs.3,00,000/- towards harassment and mental agony It is a settled position of law that there is no yardstick to measure the mental tension and agony but keeping in mind the nature of household CS No11525/16 Page No. 27 of 29 P.M. Relocation vs. Orayan Logistics Pvt. Ltd. & Ors. goods of a private person, inconvenience and harassment caused for such a long period to the said client as well as plaintiff and the fact that the defendants no.1 and 2 as well as defendant no.3 did not resolve the issue at their end at the earliest possible time, this court holds that the plaintiff is entitled for compensation of Rs.2,00,000 (Two lacks) on this account.
45. In the light of aforesaid evidence and assessment of compensation, this issue is decided in favour of the plaintiff and against the defendant no.1 to 3.
Issue no.2: Whether the plaintiff is entitled to interest, if so at what rate and for which period? OPP
46. In the light of aforesaid findings and the fact that the transaction were commercial in nature, this court grants a reasonable and prevailing interest @ 12% p.a. on the total amount which has been granted in the preceding issue from the date of filing of the suit till the date of realization. This issue is decided accordingly.
Conclusion/Relief
47. In the light of aforesaid findings, the suit of the plaintiff is decreed for recovery of 22,11,500 (Rupees Twenty Two Lacs Eleven CS No11525/16 Page No. 28 of 29 P.M. Relocation vs. Orayan Logistics Pvt. Ltd. & Ors. Thousand and Five Hundred) in favour of plaintiff and against the defendants no.1 and 2 for payment of 90% of the said amount and against defendant no.3 for payment of 10% of the said amount along with interest @12% per annum on both the said group of defendants from the date of filing of the suit till the date of realization. The defendants no.1 and 2 shall be jointly and severally liable to pay the said amount. Cost of suit is also awarded to plaintiff which will be recoverable from the defendant no.1 and 2 only. Decree sheet be drawn accordingly. Copy of the judgment be sent on the What's App number of the counsel for the parties. File be consigned to record room.
Announced & dictated in the open court on 17.01.2022 (Naresh Kumar Laka) Additional District & Session Judge-03 South East District, Saket Courts, New Delhi.
CS No11525/16 Page No. 29 of 29P.M. Relocation vs. Orayan Logistics Pvt. Ltd. & Ors.