Delhi District Court
Atlas Logistics Private Limited vs Uas Pharmaceuticals (India) Private ... on 16 November, 2019
IN THE COURT OF JSCCASCJGJ, SOUTHEAST DISTRICT, SAKET
COURTS, DELHI
Presided By : Sh. Jay Thareja, DJS
Civil Suit No: 50951/16
Atlas Logistics Private Limited
a company incorporated under the Companies Act, 1956,
having its Regional Office At
Plot No. 78, 2nd Floor, Bijwasan Road,
Kapashera, Near Parkland Grand Hotel,
New Delhi110037;
Through its Accounts Officer. ... Plaintiff
Versus
UAS Pharmaceuticals (India) Private Limited,
a company incorporated under the Companies Act, 1956,
having its registered office at
S170, Greater Kailash,
New Delhi110048;
Through its Managing Director
Email ID: [email protected]
II Address:
327, 3rd Floor, Raheja Mall,
Sector47, Sohna Road,
Gurgaon122001; Haryana ... Defendant
SUIT FOR RECOVERY OF RS.2,96,056/ ALONG
WITH COSTS, PENDENTELITE AND FUTURE
INTEREST AT THE RATE OF 18% PER ANNUM
DATE OF INSTITUTION : 02.01.2014
DATE OF FINAL ARGUMENTS : 02.11.2019
DATE OF DECISION : 16.11.2019
JUDGMENT
1. The plaintiff has filed this suit against the defendant, seeking CS No.50951/16 Atlas Logistics Pvt. Ltd. v UAS Pharmaceuticals India Pvt. Ltd.
Page No.1 of 14recovery of (a) Rs.2,96,056/, (b) pendentelite and future interest, at the rate of 18% per annum and (c) costs of this suit.
2. In order to justify the recovery of aforesaid money from the defendant, the plaintiff has interalia pleaded in the plaint of this suit that the plaintiff is a company incorporated as per the Companies Act, 1956; that the plaintiff has filed this suit through Ms. Neha Rustagi, Manager (Accounts), who is duly authorized to file this suit on behalf of the plaintiff by virtue of board resolution dated 24.10.2011; that the plaintiff is engaged in the business of providing integrated logistics solutions to its customers, as a freight forwarder; that the defendant is a company that had availed the services of the plaintiff, during October 2009 to January 2011; that in respect of the services rendered to the defendant, the plaintiff had raised various invoices upon the defendant, during 23.10.2009 to 31.01.2011, which were payable on presentation; that upon presentation, the defendant had made full payment qua some of the said invoices, but left the others unpaid, wholly or in part; that while leaving some of the said invoices unpaid, in part, the defendant had made unjustifiable deductions, despite agreeing through Mr. A. P. Srivastava, GM (Marketing and Sales), vide email dated 04.12.2009 that the plaintiff would be entitled to charge incidental expenses of Rs.3000/, qua each shipment, starting from 03.12.2009 1; that in respect of the transactions done with the defendant, the plaintiff was maintaining a statement of account; that as per the said statement of account, a 1 The statement of account filed by the plaintiif alongwith the plaint of this suit, reflects that only two invoices, were allegedly left unpaid, in part by the defendant. Interestingly, one of them viz. invoice no.ICSDEL0009/1011 has not been filed by the plaintiff and the other viz. invoice no.ICSDEL0010/1011, does not reflect unpaid incidental expenses of Rs.3000/.
CS No.50951/16Atlas Logistics Pvt. Ltd. v UAS Pharmaceuticals India Pvt. Ltd.
Page No.2 of 14principal sum of Rs.2,06,311/ was found to be payable by the defendant to the plaintiff, as on 30.06.2011; that in order to recover the said amount alongwith interest at the rate of 18% per annum, the plaintiff had attempted to serve a legal notice dated 30.08.2012 upon the defendant, but it was returned back undelivered with the postal remarks, "No Such Frem in S170 G.K I" and that in such circumstances, the plaintiff is entitled to recover from the defendant, (a) the principal amount of Rs.2,06,311/, (b) prelitigation interest, calculated at the rate of 18% per annum, in respect of each unpaid and partly paid invoice, amounting to Rs.89,745/ and (c) pendentelite and future interest at the rate of 18% per annum.
3. Upon service of summons for settlement of issues of this suit, the defendant has contested this suit by filing its written statement. In order to contest this suit, the defendant has interalia pleaded in its written statement that the claim made by the plaintiff, by way of this suit, is barred by the law of limitation; that there was no written contract between the parties regarding providing of service by the plaintiff; that the plaintiff had done some jobs for clearance of import shipment of the defendant; that the plaintiff had not rendered the services reflected in the invoices, filed alongwith the plaint of this suit; that the deductions made by the defendant in the invoices of the plaintiff, were accepted by the plaintiff; that the defendant has no knowledge about the email dated 04.12.2009, purportedly written by Mr. A. P. Srivastava; that the statement of account filed by the plaintiff is a fabricated document; that the defendant had not received the legal notice dated 30.08.2012 and that the defendant is not liable to pay any money to the plaintiff.
CS No.50951/16Atlas Logistics Pvt. Ltd. v UAS Pharmaceuticals India Pvt. Ltd.
Page No.3 of 144. In the replication qua the written statement of the defendant, the plaintiff has traversed the contents of the said written statement, made the necessary denials and reiterated the contents of the plaint. Also, the plaintiff has pleaded that this suit has been filed within prescribed period of limitation because the defendant had made last payment to the plaintiff, on 30.06.2011 and this suit has been filed, on 02.01.2014, which is within three years from 30.06.2011.
5. On the basis of the aforesaid pleadings of the parties, the following issues were framed by a Ld. Predecessor Judge, on 30.01.2016: "1. Whether the plaintiff is entitled to recover the claimed principal sum of Rs.2,06,311/ or any other amount as principal sum from the defendant? OPP
2. Whether the plaintiff is entitled to recover the interest of Rs.89,745/ claimed in the plaint or any other amount as interest up to the filing of this suit? OPP
3. Whether the deductions of the incidental charges made by the defendant from the plaintiff's bills had been accepted by the plaintiff? OPD
4. Relief."
6. During the trial of this suit, one witness viz. PW2 (sic) Sh. Manoj Kumar has been examined in support of the case of the plaintiff CS No.50951/16 Atlas Logistics Pvt. Ltd. v UAS Pharmaceuticals India Pvt. Ltd.
Page No.4 of 14and one witness viz. DW1 Sh. Ashok Kumar Mittal has been examined in support of the case of the defendant.
7. During examination in chief, PW2 (sic) Sh. Manoj Kumar has deposed in line with the plaint of this suit and tendered in evidence board resolution dated 24.10.2011, Ex.PW2/1, statement of account, Ex.PW2/2, invoices, Ex.P1(colly)(27 pages), legal notice dated 30.08.2012, Ex.PW2/3, postal receipt dated 30.08.2012, Ex.PW2/4 and envelope, Ex.PW2/5. During cross examination, PW2 (sic) Sh. Manoj Kumar has interalia deposed that the board resolution dated 24.10.2011, Ex.PW2/1 does not pertain to him; that there is no document on record authorizing him to depose/testify on behalf of the plaintiff; that the statement of account, Ex.PW2/2 does not bear any stamp of the plaintiff or any signature, on behalf of the plaintiff; that the invoices, Ex.P1(colly) are photocopies; that he is a system administrator in the plaintiff, who rectifies software and hardware problems in the system; that he has no concern with the accounting, in the plaintiff; that he does not look after the accounts of the plaintiff; that the contract between the plaintiff and the defendant was finalized through email communications, which are not on record, but in his possession; that he cannot identify the invoices which were paid by the defendant and which remained unpaid by the defendant and that since joining the plaintiff in May 2007, he had only been looking after its systems.
8. During examination in chief, DW1 Sh. Ashok Kumar Mittal has deposed in line with the written statement of the defendant and not CS No.50951/16 Atlas Logistics Pvt. Ltd. v UAS Pharmaceuticals India Pvt. Ltd.
Page No.5 of 14tendered in evidence any document.1 During cross examination, DW1 Sh. Ashok Kumar Mittal has interalia deposed that he has been working with the defendant since the past 6 years, as Manager Admin.; that he was not involved in the transactions between the plaintiff and the defendant; that paragraphs 1 to 10 of the written statement of the defendant, drafted as per his instructions, are based on information received by him, from the accounts department of the defendant; that in December 2009, Sh. A. P. Srivastava was working as General Manager (Marketing and Sales) with the defendant; that after examining the email account of Sh. A. P. Srivastava, he has found that the emails dated 03.12.2009 and 04.12.2009, Mark DW1/P1(colly), which were shown to him for the first time, on 03.07.2019, are fabricated emails; that he cannot state the name of the person who had approved the deductions mentioned in paragraph 6 of his affidavit, Ex.DW1/A; that he cannot state the date on which the plaintiff had accepted the said deductions, the mode by which, the plaintiff had accepted the said deductions and the name of the exact official of the plaintiff who had accepted the said deductions on behalf of the plaintiff; that after examining the system of the defendant and consulting Sh. Ashwani Gupta, from the accounts department of the defendant, he has found that the email dated 07.10.2010, Mark DW1/P2, which was shown to him for the first time, on 01.08.2019, is a fabricated email; that he has no knowledge if Sh. Nitesh Kumar Mishra was working with the defendant, on 07.10.2010; that he had examined the email account of Sh. A. P. Srivastava before filing of 1 It is interesting to note that despite questioning the authority of PW2 (sic) Sh. Manoj Kumar to depose/testify on behalf of the plaintiff, without having any board resolution, in his favour, the defendant had itself not filed/tendered in evidence, any board resolution authorizing DW1 Sh. Ashok Kumar Mittal to depose/testify on behalf of the defendant.
CS No.50951/16Atlas Logistics Pvt. Ltd. v UAS Pharmaceuticals India Pvt. Ltd.
Page No.6 of 14written statement in this suit; that some of the invoices, part of Ex.P 1(colly) have incidental charges mentioned in them; that he has no knowledge if Sh. Kamlesh Singh was the Manager, Accounts of the defendant in 2012; that the email dated 30.04.2012, Ex.DW1/P3, shown to him for the first time, on 17.09.2019, is genuine; that the statement of account, Ex.DW1/P4, shown to him for the first time, on 17.09.2019, is genuine; that the cheque offered vide email dated 30.04.2012, Ex.DW1/P3 was not accepted by the plaintiff; that the defendant used to give instructions to the plaintiff by sending over documents of the consignment which required clearance and logistics solutions; that he cannot disclose the deductions made in the invoices, Ex.P1(colly); that he cannot say if the address mentioned in the envelope, Ex.PW2/5 was the registered office of the defendant in AugustSeptember 2012 and that he does not know, when the registered of the defendant was shifted from G.K.1.
9. Upon conclusion of the trial of this suit, I had heard Sh. Amit Dayal, Ld. Advocate for the plaintiff and Ms. Meenakshi Joshi, Ld. Advocate for the defendant, on 02.11.2019. The issue wise findings, in this suit are as follows:
ISSUE NO.1
10. In respect of this issue, the Ld. Advocate for the plaintiff had submitted (a) that the plaintiff has filed this suit within the time period prescribed under Article 113 of the Schedule to the Limitation Act, 1963, by following the law laid down in Bharath Skins Corporation v Taneja CS No.50951/16 Atlas Logistics Pvt. Ltd. v UAS Pharmaceuticals India Pvt. Ltd.
Page No.7 of 14Skins Company Private Limited, (2012) 186 DLT 290 and Servotech Electricals Pvt. Ltd. v Ashoka Enterprises (India) & Ors., 2018 SCC OnLine Del 11353 and (b) that since, the defendant had voluntarily not filed its own statement of account qua the transactions done with the plaintiff alongwith its written statement, since there are remarkable inconsistencies in the written statement of the defendant and the testimony of DW1 Sh. Ashok Kumar Mittal and since, the duly maintained statement of account, Ex.PW2/2 of the plaintiff, supported by invoices, Ex.P1(colly), raised by the plaintiff upon the defendant, reflects that as on 30.06.2011, the defendant was liable to pay the principal sum of Rs.2,06,311/ to the plaintiff, this Court should conclude that the plaintiff is entitled to recover the principal sum of Rs.2,06,311/, from the defendant. Per contra, the Ld. Advocate for the defendant had submitted
(a) that since, the transactions reflected by the disputed invoices, Ex.P 1(colly) pertain to the period, 17.05.2010 to 31.01.2011 and since, the defendant had not made any payment to the plaintiff, on 02.02.2011, 07.02.2011 and 30.06.2011, as alleged in the disputed statement of account, Ex.PW2/2, this suit, filed on 02.01.2014, is barred by the law of limitation and (b) that since, the disputed statement of account, Ex.PW2/2 as well as the disputed invoices, Ex.P1(colly) have not been duly proved by the plaintiff, through a principal officer/accounts officer of the plaintiff, who could have testified qua their authenticity and since, the case of the plaintiff regarding unjustified deduction of incidental charges by the defendant, is not even supported by the invoices, Ex.P1(colly), this Court should conclude that the plaintiff is not entitled to recover any money from the defendant.
CS No.50951/16Atlas Logistics Pvt. Ltd. v UAS Pharmaceuticals India Pvt. Ltd.
Page No.8 of 1411. After considering the aforesaid submissions made by the Ld. Advocates for the parties and perusing the record of the Court file, I find that in order to effectively decide this issue, this Court is required to be examine the following aspects:
(a) Whether this suit is barred by law of limitation?
(b) Whether any liability can be fastened upon the defendant, on the basis of the statement of account, Ex.PW2/2 and the invoices, Ex.P 1(colly)?
(c) Whether any liability can be fastened upon the defendant, on the basis of the admitted email dated 30.04.2012, Ex.DW1/P3 and the admitted statement of account, Ex.DW1/P41?
12. In respect of the first aspect identified in the aforesaid paragraph, I find that in view of the law laid down in Bharath Skins Corporation v Taneja Skins Company Private Limited, (2012) 186 DLT 290, followed in Servotech Electricals Pvt. Ltd. v Ashoka Enterprises (India) & Ors., 2018 SCC OnLine Del 11353, this suit has to be accepted to have been filed within the time period prescribed under Article 113 of the Schedule to the Limitation Act, 1963 because the last debit entry of the admitted statement of account, Ex.DW1/P4 reflects that the defendant had made last payment of Rs.40,000/ to the plaintiff, on 27.06.2011 and this suit has been filed, on 02.01.2014 i.e. within 3 years from 27.06.2011.
1 In view of the law laid down in Subhash Chander v Shri Bhagwan Yadav, 2010 VI AD Delhi 96, the said documents were admitted in evidence, during cross examination of DW1 Sh. Ashok Kumar Mittal.
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Page No.9 of 1413. In respect of the second aspect identified in paragraph 11 of this judgment, I find that no liability can be fastened upon the defendant, on the basis of the statement of account, Ex.PW2/2 (a) because the statement of account, Ex.PW2/2 has not been authenticated as per Section 54 of the Companies Act, 1956 or Section 21 of the Companies Act, 2013, (b) because the statement of account, Ex.PW2/2 does not appear to have been prepared as per the double entry system of accounting, mandated in Section 209 of the Companies Act, 1956 or Section 128 of the Companies Act, 20131, (c) because the statement of account, Ex.PW2/2 has not been duly tendered in evidence, by a principal officer of the plaintiff or duly authorized accounts department personnel of the plaintiff, who could have testified in respect of its authenticity or could have answered any questions of the defendant qua its entries2, (d) because the second and third entries from the top of the statement of account, Ex.PW2/2, do not have any corresponding credit entries, reflecting payment of Rs.11,165/ each by the defendant qua invoice no.ICSDEL0009/1011 and invoice no.ICSDEL0010/1011 3 and (e) because Section 34 of the Evidence Act, 1872 clearly mandates that a statement of account alone, cannot be sufficient evidence to charge any 1 The admitted statement of account, Ex.DW1/P4, is an example of a statement of account maintained as per the double entry system of accounting. 2 In this regard, it is noteworthy that the defendant had objected to the tendering of statement of account, Ex.PW2/2 by PW2 (sic) Sh. Manoj Kumar and put the plaintiff to notice, qua the said incompetency of PW2 (sic) Sh. Manoj Kumar (re: Bipin Shantilal v State of Gujarat, (2002) 10 SCC 529). Also, it is noteworthy that during his cross examination, PW2 (sic) Sh. Manoj Kumar had brushed his hands off from the statement of account, Ex.PW2/2 and candidly admitted that he being a systems personnel, had no association with the accounting being done at the plaintiff. 3 In my view, the said discrepancy, which has remained unexplained by the plaintiff, makes the statement of account, Ex.PW2/2, an unreliable piece of evidence.
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Page No.10 of 14person with liability.
14. Further, I find that no liability can be fastened upon the defendant, on the basis of invoices, Ex.P1(colly), (a) because the invoices, Ex.P1(colly) are not supported with any corroborating documents viz. consignment documents like bill of lading, letter of credit etc., which the defendant would have certainly supplied to the plaintiff, every time when the plaintiff would have got the goods of the defendant, cleared through customs/government authorities, (b) because despite being photocopies, as per the admission made by PW2 (sic) Sh. Manoj Kumar, the plaintiff has not authenticated the invoices, Ex.P1(colly), in accordance with Section 54 of the Companies Act, 1956 or Section 21 of the Companies Act, 2013 and (c) because the invoices, Ex.P1(colly) have not been duly tendered in evidence, by a principal officer of the plaintiff or duly authorized accounts department personnel of the plaintiff, who could have testified in respect of their authenticity or could have answered any questions of the defendant qua their contents. 1
15. In respect of the third aspect identified in paragraph 11 of this judgment, I find that on the basis of admitted email dated 30.04.2012, Ex.DW1/P3 and the admitted statement of account, Ex.DW1/P4, a liability of Rs.50,413/ can be imposed upon the defendant because in the said documents, the defendant has admitted its liability to pay sum of Rs.50,413/ to the plaintiff.
1 In this regard, it is noteworthy that the defendant had objected to the tendering of invoices, Ex.P1(colly) by PW2 (sic) Sh. Manoj Kumar and put the plaintiff to notice, qua the said incompetency of PW2 (sic) Sh. Manoj Kumar (re: Bipin Shantilal v State of Gujarat, (2002) 10 SCC 529).
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Page No.11 of 1416. As a net result of the aforesaid findings qua the three aspects identified in paragraph 11 of this judgment, this issue is decided partly in favour of the plaintiff and against the defendant. It is held that the plaintiff is entitled to recover from the defendant, a principal sum of Rs.50,413/.
ISSUE NO.2
17. In view of the finding given qua issue no.1 and in view of the failure of the plaintiff to prove the existence of any agreement 1 between the parties or any custom, trade practice or usage, as per which, the defendant can be held to be liable prelitigation interest at the rate of 18% per annum, this issue is decided partly in favour of the plaintiff and against the defendant. It is held that the plaintiff shall be entitled to recover from the defendant, prelitigation interest at the rate of 9% per annum, on the sum of Rs.50,413/, for the period, 30.06.2011 to 30.04.2012, amounting to Rs.3781/.
ISSUE NO.3
18. The finding qua this issue can be given without any elaborate reference to the competing evidence led by the parties. During his cross examination, DW1 Sh. Ashok Kumar Mittal has deposed that he cannot state the name of the person who had approved the deductions mentioned in paragraph 6 of his affidavit, Ex.DW1/A; that he cannot state 1 In this regard, it is noteworthy that the invoices, Ex.P1(Colly) have already been discredited while deciding issue no.1.
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Page No.12 of 14the date on which the plaintiff had accepted the said deductions, the mode by which, the plaintiff had accepted the said deductions and the name of the exact official of the plaintiff who had accepted the said deductions on behalf of the plaintiff. In view of the said testimony of DW1 Sh. Ashok Kumar Mittal, this issue is decided in favour of the plaintiff and against the defendant. It is held that the deductions, if any, made by the defendant in the invoices of the plaintiff, were never accepted by the plaintiff.
RELIEF
19. In view of the aforesaid findings qua the issues framed in this suit, on 30.01.2016, this suit is decreed in favour of the plaintiff and against the defendant, for a sum of Rs.54,194/ (Fifty Four Thousand One Hundred Ninety Four Rupees only) alongwith proportionate costs, pendentelite interest at the rate of 9% per annum and future interest at the rate of 6% per annum.
20. Before parting with this judgment, it is clarified (a) that the plaintiff has been granted prelitigation interest only till 30.04.2012 because the defendant had offered to pay the principal sum of Rs.50,413/ to the plaintiff vide email dated 30.04.2012, Ex.DW1/P3, (b) that the plaintiff has been granted pendentelite and future interest because after filing of this suit, the defendant, who is guilty of deliberately withholding from this Court, the admitted email dated 30.04.2012, Ex.DW1/P3 and the admitted statement of account, Ex.DW1/P4, could have paid Rs.50,413/ to the plaintiff, without CS No.50951/16 Atlas Logistics Pvt. Ltd. v UAS Pharmaceuticals India Pvt. Ltd.
Page No.13 of 14prejudice to its defence and (c) that keeping in view the commercial nature of the transactions between the parties, the interest granted by banks in case of term deposits and Section 34 of CPC, 1908, the plaintiff has been granted prelitigation interest and pendentelite interest at the rate of 9% per annum and future interest at the rate of 6% per annum.
21. After preparation of the decree sheet by the Reader, the file shall be consigned to the record room. Digitally signed JAY by JAY THAREJA THAREJA Date: 2019.11.16 17:16:03 +0530 Announced in the Open Court (Jay Thareja) On 16.11.2019 JSCC/ASCJ/GJ SOUTHEAST DISTRICT Saket Courts/Delhi CS No.50951/16 Atlas Logistics Pvt. Ltd. v UAS Pharmaceuticals India Pvt. Ltd.
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