Delhi District Court
The Gujarat CoOperative Milk ... vs M/S Jawahar Mal & Sons on 19 November, 2016
IN THE COURT OF MS. SAVITA RAO
ADJ (WEST)01, TIS HAZARI COURTS, DELHI
Suit No. 180/16 (9172/16)
IN THE MATTER OF :
The Gujarat Cooperative Milk Marketing,
Federation Ltd., a Cooperative Society,
Registered under the Gujarat State
CoOperative, Societies Act,1961,
having its Registered office at
Amul Dairy Road,
Anand388001 (Gujarat) ........Plaintiff
Versus
1.M/s Jawahar Mal & Sons, Cold Storage & Industries, Kirti Nagar Industrial Area, New Delhi110015 Owners of Jawahar Mal Cold Storage, through its partners M/S. Pawan Ahuja & Sanjay Ahuja
2. Sh. Sanjay Ahuja, Partner, M/s Jawahar Mal & Sons, Cold Storage & Industries, Kirti Nagar Industrial Area, New Delhi110015.
Gujarat Cop. Milk Mktg. Fed. vs. Jawahar Mal & Sons Page No. 1/43
3. Sh. Pawan Ahuja, partner, M/s Jawahar Mal & Sons, Cold Storage & Industries, Kirti Nagar Industrial Area, New Delhi110015.
.......Defendants
Date of Institution : 21.08.1997
Date of Arguments : 16.08.2016, 23.08.2016,
29.08.2016,01.09.2016,27,
09.2016,21.10.2016, 08.11.2016,
& 15.11.2016
Date of Judgment delivered on : 19.11.2016
Judgment
1. This is the suit for declaration and mandatory injunction filed by plaintiff which is registered body engaged in activity of marketing Milk and Milk products. Defendant no. 1 is a partnership firm engaged in business of running of cold storage. Defendants no. 2 and 3 are its partners.
2. As pleaded, plaintiff used to store its products at the cold storage of M/S Fruit & Vegetables. In the month of March 1997, there was a temporary shortage of storage space for which plaintiff contacted the defendants to avail of their cold storage facilities for a temporary Gujarat Cop. Milk Mktg. Fed. vs. Jawahar Mal & Sons Page No. 2/43 period of three months.
3. After negotiations between the parties, it was orally agreed that the plaintiff would take up space for storing minimum 400 MTs of Butter at the cold storage belonging to defendants at the rate of Rs. 3.50 per net MT per month from the date of occupancy. If, on any given day in a month quantity exceeds 400 MTs, the plaintiff would pay to the defendants on the basis of the maximum quantity stored with the defendants on any day for that particular month.
4. Plaintiff began its occupancy of the defendant's cold storage w.e.f. 11.03.1997 which period was to expire on 10.06.1997. It was also agreed orally that the defendants would be strictly complying and honouring all delivery instructions issued by the plaintiff from time to time to release the goods from the cold storage and plaintiff would pay unloading and loading expenses at the rate of Rs. 1.20 per case of butter.
5. The arrangement of working went smoothly till May 1997, when suddenly the defendants produced bills of storage to the plaintiff for the months of March, April and May 1997. Though the plaintiff had started storing its goods w.e.f. 11.03.1997 and as per commitment, Gujarat Cop. Milk Mktg. Fed. vs. Jawahar Mal & Sons Page No. 3/43 payment was due with effect from date of storage of goods, whereas the bills raised by defendants were w.e.f. 01.03.1997. Not only this, defendants claimed rentals on full chamber basis, claiming that they stored the plaintiff's goods in the chambers of the cold storage of defendants allegedly measuring 400 MTs, 560 MTs and 200 Mts, aggregating 1160 Mts, thereby totally ignoring the agreed terms between the parties, plaintiff tried to settle the matter with defendants and also paid a sum of Rs. 5 lacs on adhoc basis to the defendants.
6. Meantime, three months period of contract having expired on 10.05.1997, plaintiff was to vacate the cold storage of defendants. Letter in this respect dated 09.05.1997 expressing said intention was communicated to the defendants. However, defendants refused to let the plaintiff, remove its goods and informed that till such time full payment was made as per their claim, the entire stock of goods will not be released.
7. Plaintiff again issued a letter dated 14.06.1997 which was replied by defendants vide letter dated 12.06.1997 but was received by plaintiff only on 24.06.1997, wherein plaintiff was informed that the Gujarat Cop. Milk Mktg. Fed. vs. Jawahar Mal & Sons Page No. 4/43 agreement to store the plaintiff's goods was for a minimum period of 24 months and w.e.f. 01.03.1997. It was also falsely claimed that irrespective of quantity of butter stored, defendants would claim rentals on utilization on 'full chamber basis' for entire period of two years for three chambers having storage capacity of 1160 Mts per month.
8. It was further submitted that as per organizational policy of plaintiff for hiring any storage space on permanent basis, it enters into detailed agreement with the owners/landlords providing all terms and conditions. In case of temporary short period of storage, the plaintiff pays on monthly basis on the basis of maximum stock on a given day in that particular month.
9. On 12.07.1997, plaintiff communicated the details and particulars of all amounts legally due to the defendants from the plaintiff and also remitted the balance amount of Rs. 3,87,076.60/ and also gave a notice to the defendants expressing their intention to vacate the premises of defendants on or by 12.08.1997.
10. It was further submitted that there is nothing due to the defendants from the plaintiff on account of storage charges for the period Gujarat Cop. Milk Mktg. Fed. vs. Jawahar Mal & Sons Page No. 5/43 w.e.f. 11.03.1997 to 10.07.1997 but as a measure of good faith, it is willing to pay all charges due to defendants till 11.08.1997 i.e. the date when the plaintiff had given the final notice to the defendants for removal of its goods. Despite efforts made by the plaintiff to sort out the matter, defendants continues to defy the delivery instructions which invited several complaints from wholesale dealers of plaintiff.
11. On 08.08.1997, plaintiff got issued a legal notice upon defendants and communicated its intention for vacation of cold storage on 11.08.1997. However, defendants refused to release the goods of the plaintiff, hence, plaintiff was constrained to file the instant suit seeking decree of mandatory injunction for issuance of direction to defendants to give immediate possession of the goods belonging to the plaintiff and for declaration that the act of the defendants in not giving the possession of the said goods of the plaintiff is unlawful, unfair and illegal.
12. In written statement filed on behalf of defendants it was submitted that plaintiff entered into contract with the defendants on the basis of letter dated 31.03.1997 whereby plaintiff had agreed to hire three cold storage chambers of capacity 400 Mts, 560 Mts and 200 Mts Gujarat Cop. Milk Mktg. Fed. vs. Jawahar Mal & Sons Page No. 6/43 respectively for a period of two years from the defendants. The monthly charges for the three chambers for the first year were agreed at Rs. 4,06,000/ and for the subsequent year were fixed at Rs. 4,64,000/, besides, labour charges at Rs. 1.20/ per case . As per agreement, none of the parties was entitled to terminate the agreement before the stipulated period of two years with the option to plaintiff for extension of the period after 28.02.1999 on mutual escalation. It was also agreed that defendant no. 1 shall have lien on the goods to the extent of unpaid storage and labour charges.
13. In pursuance to said agreement, defendants made available to the plaintiff, three cold storage chambers of the agreed volume from 01.03.1997. Plaintiff was to pay storage charges to the defendants for sum of Rs. 4,06,000/ lacs per month w.e.f. 01.03.1997 and Rs. 4.67,000/ lacs per month w.e.f. 01.03.1998 till 28.02.1999 for three chambers of 1160 Mts. The contract was not nondeterminable prior to 28.06.1999 and the defendant had lien over the goods for sum of Rs. 99, 40,000/ with regard to storage charges, besides, the sum of Rs. 8345160/ towards labour charges.
Gujarat Cop. Milk Mktg. Fed. vs. Jawahar Mal & Sons Page No. 7/43
14. In replication plaintiff denied issuance of any letter/agreement dated 31.03.1997 which was stated to be fabricated. The liability to pay sum of Rs. 4.06 lacs per month w.e.f. 01.03.1997 was disputed as well as the period of agreement for two years.
15. From the pleading of the parties following issues were framed vide order dated 07.07.1999:
1. What was the period for which the goods were stored by the defendants for the plaintiff?
2. Whether the goods were stored on the basis of per chamber basis or on the maximum quantity of goods stored in a month or at the monthly charges and at what rate?
3. Whether the goods were stored in a proper manner by the defendants ?
4. Whether the goods of the plaintiff were justifiably detained by the defendants ?
5. Whether any further amount is payable by the plaintiff to the defendants on account of storage of the goods and if so, how much ? 6 Whether the contract was not determinable before Gujarat Cop. Milk Mktg. Fed. vs. Jawahar Mal & Sons Page No. 8/43 28.02.1999?
7. Whether the plaintiff is entitled to claim interest ?
8. Relief
16. To prove its case, plaintiff has examined four witnesses. PW1 Sh. Deepak Satija tendered his affidavit as Ex. P.1 and relied upon following documents:
1. Ex. PW1/1 is dispatch letter dated 16.06.1997. ( during cross examination following documents were exhibited:
1. Letter head of company is Ex. PW.1/D1.
2. The agreement dated 18.05.1999 is Ex. PW.1/D2.
3. Letter dated 07.08.1997 is Ex. PW.1/D.3.) PW2 Sh. Sanjay Panigrahi tendered his affidavit as Ex.PW2/X and relied upon following documents :
1. Ex. PW2/1 is authorization letter dated 12.08.1997.
2. Mark A is letter dated 26/27.08.1997.
During cross examination following documents were exhibited:
1. Letter of approval dated 27.03.1997 is Ex. PW2/D1.
2. Letter dated 10.03.1997 is Ex. PW2/D2.
Gujarat Cop. Milk Mktg. Fed. vs. Jawahar Mal & Sons Page No. 9/43
PW3 Sh. Vipul Mittal, Engineers Estate, IP Extension, New Delhi tendered his affidavit as Ex. PW3/1 and relied upon following documents :
1. Ex. P1 is reply dated 12.06.1997.
2. Ex. PW3/5 is details of delivery instructions issued by the plaintiff and stock delivered by the defendant.
3. Letters dated 09.06.1997 06.06.1997, 14.06.1997, 27.07.1997, 28.07.1997, 30.07.1997, 21/24.07.1007 are Ex. PW3/1 Ex. PW3/2, Ex. PW3/3, Ex. PW3/4 and Ex. PW3/6 to Ex. PW3/8.
4. Ex. PW3/9 is copy of notice.
5. Ex. PW3/10 is report received from Notray Public.
PW 4 Sh. Raveen Chaudhary tendered his affidavit as Ex. PW4/A and relied upon following document:
1. Ex. PW4/1 is letter dated 14.08.2012.
2. Ex. PW4/2 is relevant extract for the period i.e. from 01.02.1997 to 23.08.1997 from the dispatch register.
17. On the other side defendants examined one witness namely Sh. Pawan Ahuja, as DW1 who tendered his affidavit as Ex. DW1/A Gujarat Cop. Milk Mktg. Fed. vs. Jawahar Mal & Sons Page No. 10/43 and relied upon following documents:
1. Ex. DW1/1 is copy of agreement.
2 Ex. DW1/2, Ex. DW1/12, Ex. DW1/8, Ex. DW1/29,Ex. DW1/32. are original envelopes and postal receipts are Ex. DW1/15 & Ex. DW1/ 17, Ex. DW1/19, Ex. DW1/21,Ex. DW1/22,Ex. DW1/24, Ex. DW1/25,Ex. DW1/36 .
3. Ex. DW1/3 to Ex. DW1/7 are bills issued to the plaintiff.
4. Copies of letters dated 11.06.1997, 12.06.1997, 13.06.1997, 30.06.1997. 04.07.1997 are Ex. DW1/9 to Ex. DW1/11, Ex. DW1/16, Ex. DW1/20. Copies of letters dated 05.07.1997, 11.07.1997, 12.07.1997, 20.07.1997, 01.07.1997 are Ex. DW1/23, Ex. DW1/26 and Ex. DW1/27,Ex. DW1/28, Ex. DW1/35, Ex. DW1/37 . Two copies of letters dated 26.07.1997 are Ex. DW1/33 & Ex. DW1/34. Copies of letters dated 01.09.1997,07.10.1997,01.04.1998 are Ex. DW1/44, Ex. DW1/46 and Ex. DW1/48.
5. Letters dated 15.06.1997, 25.06.1997 and 19.07.1997 are Ex. DW1/13 , Ex. DW1/14 and Ex. DW1/31.
6. Ex. DW1/18 is receipt of fax.
Gujarat Cop. Milk Mktg. Fed. vs. Jawahar Mal & Sons Page No. 11/43
7. Ex. DW1/30 is reply dated 21.07.1997.
8. Copies of bills are Ex. DW1/38 to Ex. DW1/40, Ex. DW1/45, Ex. DW1/47 & Ex. DW1/49.
9. Original packet of the plaintiff product is Ex. DW1/50.
10. Cold storage receipts are Ex. DW1/51 to Ex. DW1/56.
11. Goods issued slip of the plaintiff's C&F Agent is Ex. DW1/57.
12. Delivery challan is Ex. DW1/58.
13. Goods receipt is Ex. DW1/59.
14. Challans are Ex. DW1/60 to Ex. DW1/62.
18. Having heard counsel for both the parties and perusal of record following are issue wise findings:
19. Issues no. 2 : In terms of plea of plaintiff, in the month of March, 1997 there was temporary shortage of storage space in Delhi, in respect of plaintiff's products i.e. Amul Butter, on account of excess butter supply. Plaintiff's requirement of storage was for a short period as the goods by their very nature were perishable and had limited shelf life. Plaintiff had arrangement to store its products with a unit of National Dairy Development Board but they expressed their inability to store the Gujarat Cop. Milk Mktg. Fed. vs. Jawahar Mal & Sons Page No. 12/43 excess stock due to lack of cold storage space at that point of time.
20. Defendants were contacted by plaintiff for storage of goods, as even in past, defendant had stored plaintiff's goods in their cold storage on a regular basis for a number of years. Defendant no. 2 was contacted by plaintiff and their requirement to store the excess stock was expressed subject to the willingness and availability of space for a period of three months with the defendants. Defendants no. 2 agreed to store the goods for a period of three months. It was also orally agreed between the parties that plaintiff would take up space for storing minimum 400 MTS of butter at the cold storage belonging to the defendants at the rate of Rs. 350/ per net Mt per month w.e.f. the date of occupancy. It was also orally agreed that should the quantity on any given day in the month exceeded 400Mts, plaintiff would pay to the defendants on the basis of maximum quantity stored with the defendants on any day for the entire month.
21. No written agreement was executed as the arrangement was for a short period and was consistent with the similar arrangement between the parties in the past when goods were being stored with the Gujarat Cop. Milk Mktg. Fed. vs. Jawahar Mal & Sons Page No. 13/43 defendants on regular basis. Besides that, unloading and loading expenses at the rate of Rs. 1.20 per case were payable by plaintiff to defendants.
22. Based upon the said arrangement, plaintiff began its occupancy of the defendants's cold storage w.e.f. 11.03.1997. Three months period was to expire on 10.06.1997 and the said arrangement between the parties went on smoothly till May, 1997. The payment would have been due w.e.f. the date of storage of goods i.e. 11.03.1997 but the bills were raised w.e.f. 01.03.1997 and were also contrary to the oral agreement between the parties, since as per oral agreement between the parties the bills were required to be raised on the basis of maximum stock of goods stored in a month.
23. Defendants claimed that they stored plaintiff's goods in the chambers of the cold storage of the defendants having storage capacity of 400Mts, 560 Mts and 200 Mts aggregating to 1160 Mts. After the expiry of three months period of contract on 10.06.1997 plaintiff intended to vacate the cold storage, however, defendants refused to let the plaintiff remove its goods from its cold storage.
24. Defendants did not dispute the storage agreement between the Gujarat Cop. Milk Mktg. Fed. vs. Jawahar Mal & Sons Page No. 14/43 parties but stated the same to be based upon communication between the parties which were recited in letter dated 31.03.1997 issued by plaintiff upon the defendants.
25. According to terms of said letter dated 31.03.1997, the agreement was in existence w.e.f. 01.03.1997 for hiring of three cold storage chambers of capacity 400 Mts, 560 Mts and 200 Mts respectively for a period of two years with specific mention that in case plaintiff desired to extend the period beyond 28.02.1999 same was to be with mutual exclamation but under no circumstances, plaintiff could be compelled to vacate the space in cold storage prior to 28.02.1999. In case plaintiff desired to vacate cold storage prior to that, it was to pay storage charges for three chambers up to committed period i.e. 28.02.1999. Monthly storage charges were also payable for three chambers of 1160 Mts at the rate of Rs. 4,06,000/ per month for first year beginning from 01.03.1997 to 28.02.1998 and then @ 4,64,000/ per month for the second year.
26. Plaintiff denied issuance of any such letter dated 31.03.1997 Ex. DW1/1 and PW2 denied his signatures upon that letter which was Gujarat Cop. Milk Mktg. Fed. vs. Jawahar Mal & Sons Page No. 15/43 stated to be forged letter. It was submitted by Ld. Counsel for defendants that:
(a) Plaintiff has not provided any details as to when the alleged oral agreement took place. PW2 though had replied in his crossexamination that he approached the defendants for taking the storage space in the month of February, 1997 and then stated it may be first week of March, 1997 but he did not know whether the plaintiff had got vacated the cold storage for handing over the same for them and also did not know whether defendants took fifteen days time to fumigate the chambers or that whether the chambers were ready for accommodating their goods on 01.03.1999.
(b) The parties are not ordinary biological persons but are legal entities and thus for such legal entities, their could not be any oral agreement for the goods of the plaintiff which were kept to the tune of crores of rupees. Secondly, the goods kept by the plaintiff were of perishable nature which needed expert handling and the plaintiff had experienced in past, regarding expert top class machinery available with defendants for the said purpose.
Gujarat Cop. Milk Mktg. Fed. vs. Jawahar Mal & Sons Page No. 16/43
(c) Defendants would not have entered into any agreement for a limited period of three months since sizable storage capacity was to be utilized by the plaintiff and defendants can not allow such short intervals for their storage space as otherwise the other clients who book the storage space for longer period would get adjusted with other storage owners. Sequence of events which the defendants clearly mentioned about the execution of written agreement dated 01.03.1997 in its various letters addressed to the plaintiff which were conveniently and deliberately not replied by the plaintiff, clinches the entire issue against the plaintiff that there was no oral agreement but written agreement dated 31.03.1997 for a period of two years.
(d) Agreement dated 31.03.1997 is DW1/1 having postal receipt with the franking machine of plaintiff company logo and postal receipt dated 03.04.1997 which itself suggests that the agreement dated 31.03.1997 was sent by the plaintiff and duly received by the defendants, since there is no evidence led by the plaintiff to counter that any other document was sent under that postal receipt.
27. Counsel for defendants placed reliance upon "Roop Kumar Gujarat Cop. Milk Mktg. Fed. vs. Jawahar Mal & Sons Page No. 17/43 vs. Mohan Thedani AIR 2003 Supreme Court 2418", Section 91 and 92 apply only when the document on the face of it contains or appears to contain all the terms of the contract. Section 91 is concerned solely with the mode of proof of a document which limitation improved by Section 92 relates only to the parties to the document. If after, the document has been produced to prove its terms under Section 91, provisions of Section 92 come into operation for the purpose of excluding evidence of any oral agreement or statement for the purpose of contradicting, varying, adding or subtracting from its terms. Sections 91 and 92 come into operation for the purpose of excluding evidence of any oral agreement or statement for the purpose of contradicting, varying, adding or subtracting from its terms, Sections 91 and 92 in effect supplement each other. Section 91 would be inoperative without the aid of Section 92, and similarly Section 92 would be inoperative without the aid of Section 91. The two sections are, however, differ in some material particulars. Section 91 applies to all documents, they purport to dispose of rights or not, whereas Section 92 applies to documents which can be described as dispositive. Section 91 applies to documents which are both bilateral and Gujarat Cop. Milk Mktg. Fed. vs. Jawahar Mal & Sons Page No. 18/43 unilateral, unlike Section 92 the application of which is confined only to bilateral documents. Both these provisions are based on " best evidence rule." In Bacon's Maxim Regulation 23, Lord Bacon said " The law will not couple and mingle matters of specialty, which is of the higher account, with matter of averment which is of inferior account in law." It would be inconvenient that matters in writing made by advice and on consideration, and which finally import the certain truth of the agreement of parties should be controlled by averment of the parties to be proved by uncertain testimony of slippery memory."
28. PW3 had specifically denied having sent any written letter dated 31.03.1997 and also denied his signature or even writing and sending of the letter dated 31.03.1997. Alongwith denial of letter dated 31.03.1997 Ex. DW1/1, having been written and sent by plaintiff to the defendants, relevant extracts of the dispatch register for the month of March, 1997 Ex. PW4/2 were filed on record where no such dispatch number was mentioned. PW3 asserted that as per dispatch register maintained by the plaintiff at relevant point, no letter dated 31.03.1997 bearing said dispatch number had been sent to defendants. Gujarat Cop. Milk Mktg. Fed. vs. Jawahar Mal & Sons Page No. 19/43
29. Original of Ex. DW1/1 was not produced on record by the defendants whereas the document was termed as forged by the plaintiff's witnesses. It was submitted on behalf of the defendants that plaintiff was in habit of sending only the photocopies of the documents to the defendants. Ex. DW1/1 i.e. letter dated 31.03.1997, as stated by DW1 was also the photocopy of the letter delivered to them through post. When he went to the office of plaintiff they obtained his signatures on original copy. He had received said letter on 05.04.1997 but had never written any letter to the plaintiff to deliver the original letter to them, as stated by him in crossexamination. According to him they had made various oral requests reiterating that most of the letters sent by the plaintiff to them were photocopies or plain envelope or envelopes containing plain papers and ante dated letters.
30. DW1 was directed to find out those documents on the court record and then he admitted that in letters dated 11.06.1997 and 13.06.1997, there was no mention of photocopies of any documents having been sent by the plaintiff. During the various correspondence between the parties defendants never raised objection regarding Gujarat Cop. Milk Mktg. Fed. vs. Jawahar Mal & Sons Page No. 20/43 photocopies of letters or blank documents having been sent to them till 15.06.1997 vide Ex. DW1/13, by which time the dispute between the parties had already arisen. Witness though denied that the signature of Sh. Sanjay Kumar Panigrahi on letter dated 31.03.1997 were forged and volunteered to state that Sh. Sanjay Kumar Panigarhi had changed the signature later on. He denied postal receipt in respect of this letter forged by them and also the allegation regarding plaintiff company sending photocopies, blank documents and ante dated letters having been made by him only to justify the existence of forged letter dated 31.03.1997.
31. Defendants to prove the receipt of letter did not call for the witness concerned from the postal authorities, did not call dispatch records of the plaintiff company, did not seek to establish documents having been signed by Sh. Sanjay Panigrahi. Percontra, plaintiff filed extracts of the dispatch register for the relevant period according to which no letter dated 31.03.1997 bearing the said dispatch number had been sent to the defendants. It was submitted that defendants fraudulently got to know the last entry of the dispatch register maintained by the plaintiff and had tried to use the same for malafide purposes.
Gujarat Cop. Milk Mktg. Fed. vs. Jawahar Mal & Sons Page No. 21/43
32. Signatures of Sh. Sanjay Panigrahi on Ex. DW1/1 were also denied by him and also did not match with his other signatures. It was sought to be clarified by DW1 that Sh. Sanjay Panigarhi had changed his signatures later on. Counsel for defendants submitted that no handwriting expert was examined by plaintiff to prove that exhibit DW1/1 did not bear signatures of Sh. Sanjay Panigarhi. Defendants had asserted regarding existence of letter dated 31.03.1997 Ex. DW1/1 under the signatures of Sh. Sanjay Panigrahi. Onus was also upon defendants to prove the existence of the same but defendants themselves did not seek for examination of handwriting expert to substantiate their assertion regarding the Ex. DW1/1 having been signed by Sh. Sanjay Panigarhi.
33. To controvert the plea of issuance of letter dated 31.03.1997, plaintiff also relied upon letter dated 10.03.1997 and approval dated 27.03.1997. Letter dated 10.03.1997 was the letter of Delhi Depot addressed to AGM whereby proposal was put for hiring of additional temporary cold storage space. Approval dated 27.03.1997 was accordingly received by plaintiff vide Ex. PW2/D1. Heavy reliance was placed upon the said letter to substantiate the plea regarding the hiring of Gujarat Cop. Milk Mktg. Fed. vs. Jawahar Mal & Sons Page No. 22/43 cold storage space of defendants for temporary period of three months w.e. f. 11.03.1997 to 10.06.1997 with the capacity of 400 Mts. Ex. PW 2/D2 is the internal document of plaintiff whereas nothing is on record that subsequent to approval Ex. PW2/D1, same was ever conveyed to the defendants rather it was also the plea of the plaintiff that the agreement between the parties was oral.
34. In view of the denial of plaintiff regarding issuance of letter dated 31.03.1997 and their plea regarding the agreement being oral, contrary to the plea of the defendants regarding the agreement between the parties having arrived at in terms of letter dated 31.03.1997, whereas none of the parties have succeeded in establishing their respective pleas so far, therefore, controversy can be set at rest with consideration of other angles of the case.
35. Counsel for defendant has placed reliance upon "
Ramchandra Rambux vs. Champabai & Ors. 1965 AIR 354,1964 SCR (6) 814" which squarely applies to the above stated. It was held that "in order to judge the credibility of the witness, the court is not confined only to the way in which the witnesses have deposed or to the demeanour Gujarat Cop. Milk Mktg. Fed. vs. Jawahar Mal & Sons Page No. 23/43 of the witnesses, but it is open to it to look into the surrounding circumstances as well as the probabilities, so that it may be able to from a correct idea of the trustworthiness of the witnesses. The issues should not be determined by considering the evidence adduced in the court separately from the surrounding circumstances brought out in the evidence, or which appear from the nature and the contents of the document itself.
36. Defendants have pleaded the hiring of cold storage on chamber basis while making following submission that:
(a) Even if the story of oral agreement of taking storage space of 400 Mts is taken to be correct, plaintiff had agreed to pay for the highest quality of material placed for a day to be rate for storing the goods for the entire month at the defendant's premises whereas in the month of March itself, stored goods reached to 1102 Mts i.e. around three times of the agreed quantity. In the month of April, quantum of stored goods reached to the volume of 1143.892 Mts, which was again three times of the allegedly agreed quantity.
(b) No prudent entity would book only for 400 Mts and place the Gujarat Cop. Milk Mktg. Fed. vs. Jawahar Mal & Sons Page No. 24/43 goods, three times of that capacity and pay for the entire month, payment on the maximum load, put up for a single day. Even otherwise if the defendants would have agreed to store only 400 Mts they would not have been in a position to spare 760 Mts, for the plaintiff within a short span of a day or two, so as to accommodate the huge quantity of 1100 Mts being brought over by the plaintiff, since it is admitted that storage chambers are required to be fumigated, prepared, made neat and clean, pest and rodent free and chilled before being utilized exclusively by the plaintiff.
(c) In absence of any written agreement to keep the huge quantity, any deviation to the tune of three times of the quantity would have brought catastrophe at the defendant's cold storage. Even by prudent pondering it is clear that in case the party books to keep only 400 Mts of butter, it can not be allowed to extend three times of the said agreed storage space as such quantity of butter is not an easy thing to handle and cannot be expected from any entity to keep its storage space vacant for an unknown quantity, over and above 400 MTS of butter and further for an unknown period as the same would have become a state of uncertainty with regard to quantity and period for cold storage space. Plaintiff had Gujarat Cop. Milk Mktg. Fed. vs. Jawahar Mal & Sons Page No. 25/43 been keeping silence despite the fact that the defendants had vociferously mentioned about the terms and conditions of the written agreement dated 31.03.1997 with specific events that the same is operative with effect from 01.03.1997. These averments were categorically mentioned in the letters written to plaintiff right from 12.06.1997 Ex. DW1/10 but despite the receipt of the same, of which the receipt cannot be denied by the plaintiff as the plaintiff itself relied upon this document in its list of witnesses and thereafter there had been number of letters from the defendants outlining the terms and conditions of the written agreement dated 31.03.1997. Plaintiff while giving legal notice also neither denied the existence of such agreement nor controverted any such stand of the defendants in the legal notice which clearly shows that till 08.08.1997 plaintiff's had no idea as to how to wriggle out of the written agreement dated 31.03.1997 but only at the time of filing of plaint, false plea of oral agreement was taken in the plaint.
36. It may be noted that the defendants in the correspondence exchanged between the parties mentioned about hiring of cold storage space for two years and on "chamber basis" but did not refer to the letter Gujarat Cop. Milk Mktg. Fed. vs. Jawahar Mal & Sons Page No. 26/43 dated 31.03.1997 in any of such letters. For the first time reference to letter dated 31.03.1997, was given in letter dated 25.06.1997, Ex. DW 1/35. For the first time reference of letter dated 31.03.1997 was given in letter dated 25.06.1997 Ex. DW1/14 and then in letters dated 30.07.1997 Ex. DW1/35 and 06.08.1997 Ex. DW1/41. Plaintiff denied existence and receipt of above said letters and stated that the defendants had forged and fabricated the said letters after the dispute had already arisen between the parties.
37. Letter dated 31.03.1997 having already been received by defendants on 05.04.1997 as claimed by them, there was no reason for them not to refer this letter in the previous letters written by them to the plaintiffs till 25.06.1997 which substantiates the plea of the plaintiff regarding the letter dated 31.03.1997 being not genuine and manufacturing of the same as an afterthought, after the dispute had already arisen between the parties.
38. Plaintiffs have claimed the hiring of storage space for 400 Mts quantity of their products and in case, on any given date, quantity exceeded 400 Mts, plaintiff was to pay to the defendants on the basis of Gujarat Cop. Milk Mktg. Fed. vs. Jawahar Mal & Sons Page No. 27/43 maximum quantity stored with the defendants on any day of that particular month.
39. PW1 admitted that in the cold storage where butter is stored no other item such as fish, meat or chicken is stored and even vegetables and fruits which give out smell can not be stored in the same cold storage. He also admitted that butter is kept in separate chamber and no other article is stored in the place where butter is stored.
40. Similarly, PW2 admitted that every chamber of the cold storage is to be fumigated and proper cooling according to the product is maintained so that the product may not get deteriorated. PW3 also admitted that every chamber of the cold storage is first cleaned thereafter fumigated and temperature is maintained according to the product of plaintiff. He admitted that butter, onion and potatoes etc. require different temperature for storage, hence, they can not be stored together. Having admitted as above by the plaintiff's witnesses it is clear on record that plaintiff's required their products to be kept in separate chambers to avoid any deterioration.
41. Defendants had the availability of three chambers of 400Mts, Gujarat Cop. Milk Mktg. Fed. vs. Jawahar Mal & Sons Page No. 28/43 560 Mts and 200 Mts. It is understandable that if the quantity of products of plaintiff's to be put in cold storage of defendants did not exceed 400 Mts, only one chamber having capacity of 400 Mts could be utilized. In case of quantity exceeding 400 Mts but less than 600 Mts additional chamber having capacity of 200 Mts could be utilized but the quantity again exceeding 600 Mts which admittedly was more than 1100 Mts in March 1997, the requirement was also for the user of another chamber having capacity of 560 Mts.
42. Payment on the basis of maximum quantity stored for a particular day had to be paid for the entire month, as claimed by plaintiff. Since the chambers were to be fumigated and temperature to be maintained was according to the specifications of a client, it is difficult to conclude that defendants were always to keep ready, three of the chambers anticipating any quantity throughout the month even if excess quantity was to be stored only for a day.
43. Contention of defendants in these circumstances, is appreciable that it was highly improbable that the rate for storage was to be paid as per highest quantity of material placed when in the month of Gujarat Cop. Milk Mktg. Fed. vs. Jawahar Mal & Sons Page No. 29/43 March itself, stored goods reached to 1102 Mt i.e. around three times of the agreed quantity and similarly in the month of April stored goods reached to the volume of 1143.89 Mt. It would have definitely not been possible for defendants to spare out place to store 760 Mts within a short span of a day or two, so as to accommodate quantity of more than 1100 Mts.
44. Besides that, the previous agreement between the parties pertaining to year 1990 Ex. DW1/P1 was for hiring of four chambers with capacity of 560 Mts. 300 Mts, 160 Mts and one chocolate chamber with storage capacity of 30 Mt. In terms of said agreement, defendants had agreed not to store any other products which could adversely affect the products of the plaintiff and the hygiene of the chambers offered to them. Precaution was also required to be taken to ensure that the smell or odour of other goods did not percolate into the products of plaintiff.
45. As admitted by plaintiff's witnesses, similar precautions were required to be taken for the storage of product of plaintiff even this time and to avoid the smell or odour and even for keeping the optimum temperature so as to avoid deterioration of the products of the plaintiff, Gujarat Cop. Milk Mktg. Fed. vs. Jawahar Mal & Sons Page No. 30/43 same were required to be kept in separate chambers which further suggests the agreement between the parties based upon the "chamber basis " and not as per the quantity as claimed by plaintiff. Plaintiff having utilized the storage capacity of three chambers of the defendants, was required and having considered its liability to pay based upon the "chamber basis" the liability works out for payment for three chambers having storage capacity of 1160 Mts similar to the monthly payment @ 4,06,000/ as claimed by defendants. This issue no. 2 accordingly stands decided in favour of defendant and against plaintiff.
46. Issues no. 1,4,5, 6 & 7 : Plaintiff claimed the agreement based on oral agreement for storing of goods in the cold storage of the defendants for a period of three months commencing from 11.03.1997. It was orally agreed that plaintiff would take up space for storing butter at the cold storage of the defendants from the date of occupancy.
47. Percontra claim of the defendants was regarding hiring of the storage for a period of two years with the specific averment that the plaintiff could not have terminated the license prior to the period of two years and in case of termination, plaintiff would have to pay Gujarat Cop. Milk Mktg. Fed. vs. Jawahar Mal & Sons Page No. 31/43 storage charges for entire period of two yeas. Defendants in support of the said submission again relied upon Ex. DW1/1. According to which the period of agreement was w.e.f. 01.03.1997 to 28.02. 1999 extendable beyond 28.02.1999 with mutual escalation in storage charges and if plaintiff desired of vacating the cold storage before 28.02.1999, it was to pay storage charges up to committed period i.e. 28.02.1999. DW1 though admitted in his crossexamination that in all other agreements executed with the plaintiff there was a clause pertaining to termination of contract before expiry of the contract period.
48. Besides the fact that the defendants have not been able to prove the genuinity of Ex. DW1/1, above noted is the clause which adds to the suscipicion already looming large over the document Ex. DW1/1 being not genuine. Previous admitted agreement between the parties DW1/P1 was for a period of 5 years i.e. w.e.f. 01.01.1990 to 31.12.1994, yet there was a clause for termination of agreement, prior to expiry of the agreement period. Either side by giving 60 days notice in writing could terminate the contract. It is difficult to believe that for an Gujarat Cop. Milk Mktg. Fed. vs. Jawahar Mal & Sons Page No. 32/43 agreement allegedly for a period of two years, there was no termination clause and plaintiff took entire responsibility upon it for payment for the entire period of two years in case of pre termination of agreement against its own interest.
49. Vide letter dated 09.05.1997 plaintiff informed regarding its intention to vacate the cold storage of defendants by 10.06.1997 followed by many other letters dated 09.06.1997, 14.06.1997, 23.06.1997 & 27.06.1997 and thereafter vide letter dated 12.07.1997 defendants were again reminded and were given further notice of 30 days with communication of intention of plaintiff to vacate the premises of defendants on or by 12.08.1997.
50. Defendants denied receipt of many letters of plaintiff but acknowledged receipt of letter dated 09.06.1997 in its letter dated 12.06.1997 though disputed the intention of plaintiff to vacate the cold storage of defendants by submitting that plaintiff could not have withdrawn from the contract, prior to the expiry period of the same which was two years w.e.f. 01.03.1997 to 28.02.1999.
51. Similar nature of dispute was raised in further Gujarat Cop. Milk Mktg. Fed. vs. Jawahar Mal & Sons Page No. 33/43 correspondence between the parties by defendants with reference of letter dated 31.03.1997 for the first time in the letter dated 25.06.1997. As already noted, existence of letter dated 31.03.1997 and issuance of the same upon the defendants has not been proved by defendants whereas it was admitted by both the parties that instant agreement was also based upon the previous relationship and similar to previous agreements between the parties. Previous agreement pertaining to year 1990 to 1994 Ex. DW1/P1 contained the clause of termination of contract by giving 60 days notice by either of the parties.
52. In absence of any concluded written agreement with regard to the present transaction between the parties, contents of Ex. DW1/P1 if imported and relied upon for the present transaction between the parties, the agreement between the parties could be terminated, at the most, by giving 60 days notice if not 30 days notice as was permitted vide letter dated 09.05.1997 issued by plaintiff upon defendant. Vide letter dated 12.07.1997 defendants were again permitted another period of 30 days with communication of intention of plaintiff to vacate the premises by Gujarat Cop. Milk Mktg. Fed. vs. Jawahar Mal & Sons Page No. 34/43 12.08.1997.
53. Even if it is taken on record that defendants had not received the earlier notice but as already noted, they acknowledged receipt of letter dated 09.06.1997 whereby also the plaintiff had shown its intention to vacate the premises belonging to defendants thereby more than 60 days of time period was permitted to the defendants, atleast after 09.06.1997 for vacation of the cold storage by 12.08.1997.
54. Defendants did not comply with any of such notices and continued to detain products of plaintiff in their cold storage. As argued on behalf of the defendants, (a)They were having lien over the goods of the plaintiff towards unpaid storage and labour charges and
(b).Arrangement between the parties was in the nature of contract of bailment wherein plaintiff acted as a bailer and defendants as bailee.
55. It was further submitted that Vide order dated 11.09.1997, Court directed for deposit of security by the plaintiff and sum of Rs. 80 lacs alongwith bank guarantee of Rs. 24 lacs, considering that the order to release goods should not be unjust towards the justifiable and legal claim Gujarat Cop. Milk Mktg. Fed. vs. Jawahar Mal & Sons Page No. 35/43 of the defendants.
56. Percontra, it was submitted on behalf of plaintiff that in the present suit defendant's services of providing cold storage for storage of butter did not involve exercise or skill, therefore, defendants are not entitled to claim any lien over the goods of the plaintiff. If the defendants had any grievance with the plaintiff removing their goods they could not detain the goods of the plaintiff lying in their cold storage and at the best they could have sued the plaintiff or filed a counter claim for recovery of their alleged dues. Reliance was placed upon "M/s Kallumal Tapesveri vs. Rashtria Chemical and fertilizers AIR 1190 AIR 1190 ALL 214"
where the goods were stored by the plaintiff as a buffer's stockist and it was held that extent of bailee's lien is in respect of services involving the exercise of labour or skill rendered by him in respect of goods bailed. Services which are to be rendered must be limited to the labour or skill which has been spent by the bailee over the goods bailed. Lien is nothing to do with any other service rendered by the bailee in respect of the contract of bailment.
57. Defendants have claimed lien over the goods of the plaintiff Gujarat Cop. Milk Mktg. Fed. vs. Jawahar Mal & Sons Page No. 36/43 towards the unpaid storage and labour charges. Irrespective of the fact that whether the defendant's services of providing cold storage, whether involved exercise of skill or labour, it may be noted that vide previous agreement between the parties, parties had agreed that defendants shall have lien/charge in respect of any unpaid storage/service charges. In terms of said agreement Ex. DW1/P1, the defendants shall not to have any lien or charge for such property entrusted to them except for the lien in respect of only unpaid storage/service charges.
58. This court again has to rely upon the above said previous agreement between the parties to conclude regarding the terms of agreement pertaining to instant transaction for want of any written agreement. Following the same, defendants were, therefore, within their right to have lien over the goods of the defendants but only to the extent of unpaid storage and labour charges but had no justification to detain all the goods of the plaintiff that too of perishable nature. In this scenario, plaintiff having already terminated the agreement with clear instructions and sufficient time and notice having been given to the defendants i.e. by 12. 08.1997, Gujarat Cop. Milk Mktg. Fed. vs. Jawahar Mal & Sons Page No. 37/43 plaintiff can not be held responsible for payment of storage charges of its goods for any day beyond 12.08. 1997.
59. It was submitted by Ld. Counsel for defendants that goods of the plaintiff were never detained by defendants. Rather the plaintiff had no sufficient means to remove all the goods from the cold storage of the defendants. As further submitted, plaintiff had tried to manufacture its case by doctoring and procuring the letters from the suppliers but in none of the letters addressed to the plaintiff there is any acknowledgment of receipt of the same on behalf of the plaintiff. In this manner, the goods of the plaintiff were never detained by the defendants, what to say about justifiably detained by the defendants.
60. In terms of record, the defendants had repeatedly been given notices for vacation of the cold storage by the plaintiff which was not permitted by defendants citing its lien over the goods against unpaid storage charges. The goods belonging to plaintiff lying in the cold storage of the defendants, as admitted by defendants themselves were to the tune of crores of rupees. Defendants had lien on the plaintiff's stock only to the extent of unpaid storage and labour charges, therefore, had no Gujarat Cop. Milk Mktg. Fed. vs. Jawahar Mal & Sons Page No. 38/43 justification, not to permit the plaintiff to remove its entire stock of goods.
61. Counsel for defendants had placed reliance upon "AIR 1987 Calcutta 46, Surya Investment Company vs State Trading Corporation of India Ltd", wherein it was observed that "although the question whether the plaintiff/ bailee was entitled to charges for keeping the goods over the period he exercises his right of lien, depended on the terms of the contract. He would undoubtedly be entitled to recover from the owner/defendant, expenses incurred for preserving the goods from deterioration because the owner would derive benefit therefrom if ultimately the goods were delivered to it.
62. In the instant matter, Local Commissioner was appointed to ensure the delivery of remaining stock of plaintiff lying in the cold storage of the defendants. He contacted both the parties on 27.09.1997 and instructed for delivery operation to start on 28.09.1997. The delivery of entire material could be possible by 01.10.1997, since, despite the instructions of the Local Commissioner that the goods should be ready for loading on the platform, either the defendants had not taken out any stock or lessor number of cases were brought to the platform by the defendants. Gujarat Cop. Milk Mktg. Fed. vs. Jawahar Mal & Sons Page No. 39/43
63. It is not the case that the defendants had filed a case, seeking removal of the goods by the plaintiff and till the time plaintiff was able to vacate defendants claimed the storage charges. Rather the situation is just the opposite as it is the plaintiff who had approached the court seeking directions against the defendants for removal of its goods. Defendants have also not filed any counter claim. Had the plaintiff been not able to remove its goods despite the notice, the claim of defendant could have been justified till the time plaintiff was able to remove its goods, which is not the case here. Rather in the letters written by defendants to the plaintiff in particularly letters dated 12.06.1997, 13.06.1997, 04.07.1997, 21.07.1997, defendants had very categorically informed the plaintiff that they could collect their goods from the cold storage of defendants only upon payment of actual dues/occupation charges upto 28.02.1999, whereas any storage charges were not payable by the plaintiff beyond the notice period. Accordingly it is held that the act of the defendants in not giving the possession of the goods of plaintiff lying in the cold storage except to the extent of their lien over the goods of the plaintiff qua unpaid Gujarat Cop. Milk Mktg. Fed. vs. Jawahar Mal & Sons Page No. 40/43 storage and labour charges, was unlawful and unfair.
64. As there is nothing on record in form of any written agreement regarding the hiring of the cold storage w.e.f. 01.03.1997 or from 10.03.1997. The testimony of the witnesses have to be looked into whereby plaintiff's witnesses admitted that before hiring, sufficient time to make arrangement for fumigating,cleaning, making the chambers rodent free and maintaining the temperature fit for storage of the product of plaintiff, was required. Defendant's assertion of their chambers being ready for storage of plaintiff goods w.e.f. 01.03.1997 remained unrebutted on record, hence, plaintiff is held liable to pay storage charges to the defendants w.e.f. 01.03.1997 to 12.08.1997 for three chambers with storage capacity of 400 Mts, 560 Mts and 200 Mts, besides unpaid labour charges against the unrebutted claim of defendants for Rs. 1,06,920/ at the undisputed rate of Rs. 1.20 per case. Amount already paid by plaintiff shall be adjusted in the said amount due in favour of defendants.
65. Plaintiff had sought mandatory injunction seeking direction for defendant to give the immediate possession of the goods belonging to Gujarat Cop. Milk Mktg. Fed. vs. Jawahar Mal & Sons Page No. 41/43 the plaintiff lying at the cold storage of the defendants. During the pendancy of the proceedings plaintiff was permitted to remove its goods subject to deposit of furnishing of bank guarantee for sum of Rs. 24 lacs and security for sum of Rs. 80 lacs. Plaintiff got delivery of its goods under the supervision of Local Commissioner, therefore, the case of the plaintiff qua the relief of mandatory injunction already stands satisfied. Plaintiff has not made any liquidated claim against the defendants nor is held entitled for any such claim, hence, there is no question of payment of any interest to the plaintiff.
Issues no. 1,4,5,6 & 7 are accordingly decided as discussed above.
65. Issue no. 3: Plaintiff put the blame upon the defendants regarding their goods being not stored in proper manner. Representative of the plaintiff could not carry out proper physical verification of the goods. Plaintiff also claimed about improper stacking of its goods in the cold storage of defendants on the cold storage of the defendants vide Ex. PW3/2 i.e. letter dated 06.06.1997. The said allegation was refuted by the defendants. None of the parties have Gujarat Cop. Milk Mktg. Fed. vs. Jawahar Mal & Sons Page No. 42/43 made any claim against each other on the above said ground. The decision of this issue is also not relevant for the appropriate disposal of the case, hence, this issue is hereby struck off.
66. Relief: It is declared that act of the defendants in not giving the possession of the goods of plaintiff lying in the cold storage except to the extent of their lien over the goods of the plaintiff qua unpaid storage and labour charges, was unlawful and unfair. Defendants is held entitled for the storage charges w.e.f. 01.03.1997 to 11.08.1997 worked out at Rs. 4,06,000/ per month and labour charges of Rs. 1,06,920/. After adjustment from the amount already received from the plaintiff and encashment of dues of defendants from the security deposit and bank guarantee amount, plaintiff shall be discharged of any liability against defendants.
Decree Sheet be prepared accordingly. File be consigned to record room.
(SAVITA RAO) Addl. District Judge, West01, Tis Hazari Courts, Delhi Announced In the open Court on 19.11.2016.
Gujarat Cop. Milk Mktg. Fed. vs. Jawahar Mal & Sons Page No. 43/43