Delhi District Court
Branch Office At vs Reeliable Courier & Cargo Pvt. Ltd on 21 April, 2023
IN THE COURT OF Ms. NIRJA BHATIA
DISTRICT JUDGE (COMM-06),
SOUTH-EAST DISTRICT, SAKET COURT, NEW DELHI
CS DJ/1252/2018
Deep Blue Xpress Pvt. Ltd.
Through its Authorised Representative
Mr. K.V. Khanna,
G-4, Rama Palace Sector-20B
Faridabad, Haryana.
Branch Office At:
250, Sant Nagar,
East of Kailash,
New Delhi-110065
..... Plaintiff
Vs.
Reeliable Courier & Cargo Pvt. Ltd.
16- Dakshin Marg, DLF-II
Opposite Sahara Mall,
Gurugram - 122002.
..... Defendant
Date of Institution: 23.08.2018
Arguments concluded on : 12.04.2023
Date of Judgment: 21.04.2023
(1). By this judgment, I shall decide the present suit filed by
M/S Deep Blue Xpress Pvt. Ltd. ( hereinafter referred as
plaintiff) seeking relief of recovery of Rs. 4,81,173/- ( Rupees
CS DJ 1252/2018
Deep Blue Express Vs. Reeliable Courier and Cargo
Page no. 1 of 12
Four Lacs Eighty One Thousand One Hundred and Seventy
Three Only) on M/S Reeliable Courier & Cargo Pvt. Ltd.
( hereinafter referred as defendant).
The crux of facts stated in brief is noted below:
Case of the plaintiff.
(2) (a) The plaintiff company is a private limited company
engaged in delivering national and international / consignment /
couriers / parcels. The plaintiff had dealings of delivering
consignments / couriers / parcels at distance with defendant
which is stated to be a private limited company and engaged in
the same business.
(b) Plaintiff states that from the period of 2016-2018 various
business transactions took place and the plaintiff company took
the international consignments / couriers / parcels from different
places and delivered them at the correct address stated from its
Delhi Office well in time and no complaint regarding deficiency
of service etc was ever received. The plaintiff issued the bills of
the service rendered as it maintained ledger account of defendant.
At the relevant time, the ledger balance showed an amount of Rs.
4,81,173/- as the debit balance against the defendant.
Consequently demand was raised and legal notice was sent on
02.07.2018, the reply to the notice was received on 27.07.2018
and as the payments had not been made, the plaintiff filed the
present suit.
CS DJ 1252/2018
Deep Blue Express Vs. Reeliable Courier and Cargo
Page no. 2 of 12
Case of the defendant
(3) Written Statement is filed wherein the defendant
challenged the maintainability of the present suit and or
subsistence of cause of action. The dealings having been carried
out with plaintiff were denied. The bills / documents relied upon
were alleged as false and forged documents. Defendant
challenged the maintainability on the jurisdictional and court fees
aspects as well. While replying on merits, it was not disputed that
defendant company had business dealings with plaintiff,
however, it is claimed that all the previous balance / liabilities
were settled. It was denied that any amount as Rs. Rs. 4, 81,173/-
is due and payable. The receipt of legal notices was admitted and
it was stated to have been suitably replied. The existence of any
cause of action and or its continuation was denied.
(4) Plaintiff then filed the replication and reaffirmed the
contents of plaintiff while disputing the submissions made in the
Written Statement.
(5) The suit was instituted on 23.08.2018 before the court of
Ld. ADJ and was filed U/O 37, however, observing that the suit
does not reflect being under order to recover a liquidated
demand in money arising out of a written contract or is not
supported with any cheque details was ordered to be treated as
an ordinary suit for recovery. The defendant was served on
29.01.2019, however, the Written Statement was filed on
11.03.2019. whereafter an application seeking condonation of
CS DJ 1252/2018
Deep Blue Express Vs. Reeliable Courier and Cargo
Page no. 3 of 12
delay U/O 8 Rule 1 CPC was moved and was allowed vide order
dated 10.07.2019.
(6) Issues came to be framed on 10.08.2019 as under:
1.Whether there is a privity of contract between the parties? OPP / OPD
2. Whether the plaintiff has locus-standi to file the present suit? OPP
3. Whether the plaintiff has cause of action to file the present suit? OPP
4. Whether the plaintiff is entitled for the suit amount or any other amount? OPP
5. Whether plaintiff is entitled for interest, if so at what rate, for which period and on what amount? OPP
6. Relief if any?
Evidence of PW-1 (7) The matter then was kept for evidence. The examination-in- chief by affidavit was filed on 07.07.2022 by the AR of the plaintiff whereafter the opportunities were given for cross- examination, however as the opportunity was not availed. It was closed. PE was also closed on 01.08.2022 and the matter was listed for DE. An application U/O 18 Rule 17 r/w section 151 CPC for recall of order dated 01.08.2022 was moved which was allowed subject to cost of Rs. 25,000/-. It be observed that at the stage of arguments on the above application on 31.01.2023, it was specifically stated by the Ld. Counsel for the plaintiff that defendant had not complied with the directions of payment of cost of Rs. 6,000/- against which the delay in filing Written Statement CS DJ 1252/2018 Deep Blue Express Vs. Reeliable Courier and Cargo Page no. 4 of 12 was condoned and it was allowed to be taken on record. He averred that defendant was subjected to cost of Rs. 2,000/- at this stage of extending opportunity for cross-examination of PW-1 which also remained unpaid. Despite repeated directions, the compliance of the orders regarding payment of cost was not made. The application u/s 151 CPC was then filed on 09.02.2023 for waiver of cost, however, in view of the observations, having till then being made regarding the conduct of defendant being shown on record as non-compliant, the provisions of Section 35 CPC were taken recourse to, and the defense was struck off.
(8) The matter was listed for final arguments. Ld. Counsel for the plaintiff as well as Ld. Counsel for defendant made their respective submissions. Ld. Counsel for plaintiff reiterated the averments stated. However, the Ld. Counsel appearing on behalf of defendant vehemently stressed on the jurisdictional aspect and stated that all the payments have been made. I now propose to deal with the issues in the background of the record.
Issue no. 1 & 2 (9) The plaintiff was put to burden to prove the privity of contract between the parties ( the part of burden was to be on defendant as well). At the instance, it be observed that defendant did not lead any evidence and no part of defence could be read for the want of compliance for the order of cost, hence the part of burden put upon defendant to establish lack of any privity of contract was not received.
CS DJ 1252/2018Deep Blue Express Vs. Reeliable Courier and Cargo Page no. 5 of 12 (10) The plaintiff hence remained under the burden to prove the existence of privity of contract, having locus standi to file a present suit, cause of action behind the claim and its entitlement of principal as well as interest in order to discharge the above burden. The examination in chief of V.K. Khanna AR of the plaintiff was tendered. The witness on oath stated that it is a private limited company and defendant which is also a private limited registered company, are dealing in the business of picking up consignments / couriers / parcels and carrying out their deliveries to destinations. He specifically stated that both companies had enjoyed a relationship of business dealings for past many years. Besides, the dealings between the parties are stated to have been going on smoothly as various bills were generated for the work done by way of delivery of consignments which were picked up on the instructions and delivered. The transactions were booked in the accounts and were rectified by all the clients by accepting the deliveries which fact is within the knowledge of the defendant company. Plaintiff then exhibited PW1/4, the ledger maintained for the year 2016 to 2018 and PW1/5 the invoices issued. At a cost of repetition, it is observed that despite opportunity no cross-examination of plaintiff witness was conducted. For want of any such cross-examination, the enteries in the ledger as well as the authenticity of the invoices were not subjected to any rebuttal, challenge or dispute. The fact that the plaintiff has in preponderance thus established a business dealing, suggest both parties having a previty of contract in existence in CS DJ 1252/2018 Deep Blue Express Vs. Reeliable Courier and Cargo Page no. 6 of 12 furtherance of which the plaintiff carried out the expectations of fulfillment of obligations envisaged through the deliveries of the consignment at the places instructed by the defendant. It is pertinent to observe that plaintiff specifically stated that despite having carried out the deliveries including international consignments / couriers / parcels not even a single complaint regarding the deficiency of service has ever been received. It is not disputed that on effecting such deliveries the bill for services were rendered. It is again at the cost of repetition observed that bills Ex.PW1/5 have been put to no dispute. Rather during the arguments the defendant while admitting a course of business transactions inter say parties claimed that all the bills were satisfied and were duly paid. The dispute raised orally, during arguments is only to the extent that no business transactions were carried out for the period stated in the plaint that is w.e.f. 2016 to 2018 in which background, the fact that the transactions inter say parties and the competence of plaintiff to carry out such transactions and existence of an agreement at one point of time ( may be an oral one ) is not disputed, it is observed that the plaintiff has answered the issue of locus standi for which it was under the burden.
(11) Issue no. 3 ( Cause of action ) & Issue no. 4 ( Entitlement) The plaintiff specifically stated that at the closing of ledger CS DJ 1252/2018 Deep Blue Express Vs. Reeliable Courier and Cargo Page no. 7 of 12 pertaining to the account of defendant an amount of Rs. 4,81,173/- was found due and payable for having carried out the business dealings w.e.f. 2016-2018 inter say, in an attempt to discharge the burden of the issue of stating cause of action which was specifically put. Again at the cost of repetition it be observed that the statement to that effect is made on oath by AR of the plaintiff in para 7 and para 8 which is reproduced as below:-
7. I say that the plaintiff company used to maintain the ledger a/c of the Defendant and other Companies, whose work/ consignments are to be delivered. The accounts maintained by the plaintiff shows a debit balance of Rs.
4,81,173/- ( Fourt lacs Eight One thousand One Hundred and Seventy Three). The copy of ledger maintained by the plaintiff company is annexed herewith Exhibit PW1/4 (colly) is Ledger Maintained By the Plaintiff Company for the Defendant Company for the year 2016-
18. Exhibit PW1/5 (colly) are the invoices issued.
8. I say that the consignments / couriers / parcels were changed with the agreed rates. During the course of the transactions, within the year, several other consignments were also booked and received payments.
(12) There is no cross-examination despite opportunitiy to the above statement moreover there is a specific tendering of documents i.e. the Ledger Ex.PW1/4 as well as the invoices Ex.PW1/5 (colly). Having recourse to the provisions of Order 11 Rule 6 as in Commercial Courts, Commercial Divisions and Commercial Appellate Division of High Courts (amended) Act, 2018 wherein the provision is now specifically made regarding the CS DJ 1252/2018 Deep Blue Express Vs. Reeliable Courier and Cargo Page no. 8 of 12 electronic evidence, the provisions is reproduced for reference below:-
Objections to interrogatories by answer:- Any objection to answering any interrogatory on the ground that it is scandalous or irrelevant or not exhibited bona fide for the purpose of the suit, or that the matters inquired into are not sufficiently material at that stage, or on the ground of privilege or any other ground, may be taken in the affidavit in answer.
(13) The fact that plaintiff has tendered the aforementioned print outs of the computerized record of the ledger maintained in the course of business transactions and the invoices (colly), the authenticity of which is even otherwise not subjected to any disputed, and as despite the service of the legal notice Ex.PW1/6 the defendant despite having filed the reply to legal notice has not efforted to establish any of the contents of the reply. Hence, the subsistence of cause of action is established in preponderance.
(14) While discussing the entitlement of plaintiff to claim the averment of defendant qua the present court having no jurisdiction is also required to be dealt with the plaintiff. It be observed as stated in para 6 of the plaint regarding the jurisdictional aspect and stated that the orders were booked in Delhi and the invoices were also issued from Delhi. The said statement was affirmed on oath in examination in chief Ex.PW1/A again it needs to be observed that there is no cross-examination to dispute the assertion above. The other pleas raised regarding absence of the purchase order and or no CS DJ 1252/2018 Deep Blue Express Vs. Reeliable Courier and Cargo Page no. 9 of 12 endorsements having been made on the invoices are subject matter of defense. While during the final arguments oral pleas were raised, there is no substance to suggest the above and to convert the pleas into proof and in view of the law laid down in Anil Rishi vs Gurbaksh Singh, Appeal (civil) 2413 of 2006, DOD : 02/05/2006 Pleading is not evidence far less proof. Issues are raised on the basis of the pleadings. The defendant-appellant having not admitted or acknowledged the fiduciary relationship between the parties, indisputably , the relationship between the parties itself would be an issued. The suit will fail if both the parties do not adduce any evidence. In view of Section 102 of the Evidence Act. Thus, ordinarily, the burden of proof would be on the party who asserts the affirmative of this issue and it rests, after evidence is gone into, upon the party against whom, at the time the question arises, judgment would be given, if no further evidence were to be adduced by either side.
(15) In view of the above the oral statement are merely submissions devoid of any substance and / or iota of proof and are hence to be disregarded.
(16) Another assertion that the plaintiff has not complied the provisions of Section 12 A also needs to be rejected in view of the law laid down in Patil Automation Pvt. Ltd. Vs. Rakheja Engineers Pvt. Ltd., Civil appeal no. Of 2022 arising out of SLP (C) No. 14697 of 2022, DOD 17.08.2022. wherein the observations are made making the mandate of provision above prospectively w.e.f. 20.03.2022 :-
84. Having regard to all these circumstances, we would dispose of the matters in the following CS DJ 1252/2018 Deep Blue Express Vs. Reeliable Courier and Cargo Page no. 10 of 12 manner. We declare that Section 12A of the Act is mandatory and hold that any suit instituted violating the mandate of Section 12A must be visited with rejection of the plaint under Order VII Rule 11. This power can be exercised even suo moto by the court as explained earlier in the judgment. We, however, make this declaration effective from 20.08.2022 so that concerned stakeholders become sufficiently informed.
Issue no. 5 ( Interest) (17) The plaintiff has claimed interest @ 18%, however, each of the invoice Ex.PW1/5 (colly) show different rate of interest. Moreover, the plaintiff has not led any evidence specifically to claim interest higher than the current rate of interest. In view of the provisions of Section 3 Interest Act 1978, plaintiff has not made over any material before this court to show its entitlement to claim interest @ 2 % per month and on its own has suggested no reason or basis for claiming interest @ 18% on the outstanding. The requirements as stated under the provisions of Section 74 Contract Act are not satiated as no evidence to provide any context qua the proposed rate of interest is stated and accordingly having regard to provisions of Section 3 of Interest Act, 1978, the prevailing rate of interest applicable to Commercial transactions interest @ 12% is being allowed from the date of due till the date of realization.
(18) In view of the above no substance is made out in the defense. The plaintiff hence in preponderance of probabilities has proved the entitlement to the principal as well as interest. The suit of the plaintiff hence is decreed for an amount of Rs. 4,81,173/- alongwith interest @ 12% pendente lite till the date of CS DJ 1252/2018 Deep Blue Express Vs. Reeliable Courier and Cargo Page no. 11 of 12 realization alongwith cost on account of court fees and the expense on amount of litigation is awarded @ 25,000/-.
(19) Decree sheet be accordingly drawn. File be consigned to record room after completion of the necessary formalities.
Announced in the open court on 21.04.2023 (Nirja Bhatia) District Judge (Commercial Court-06) South-East, Saket Courts, Delhi 21.04.2023 CS DJ 1252/2018 Deep Blue Express Vs. Reeliable Courier and Cargo Page no. 12 of 12