Delhi District Court
M/S Goyal Brothers Prakashan vs M/S Delhi Kanpur Golden Kaka Transport ... on 21 April, 2012
IN THE COURT OF MS. SHILPI JAIN:
CIVIL JUDGE-7 (CENTRAL) : DELHI
Civil Suit No. : 1210/11/05
Unique Case ID No : 0241C0478622005
In the matter of:
M/s Goyal Brothers Prakashan,
11/1903, Chuna Mandi, Pahar Ganj,
New Delhi-55 .............. Plaintiff
Versus
1. M/s Delhi Kanpur Golden Kaka Transport Co. (Regd.),
6516, Qutab Road, New Delhi-110055.
2. M/s Goel Book Depot, Arya Nagar, Gorakhpur ............. Defendant
Date of institution of the Suit : 03.06.2008
Date on which order was reserved : 21.04.2012
Date of decision : 21.04.2012
SUIT FOR RECOVERY OF RS. 81477/-
JUDGMENT :-
1. By this judgment this court shall decide the present suit for recovery of Rs. 81477/-.
2. The brief facts of the present case are that plaintiff is a partnership firm registered under the Indian Partnership Act regarding which form B has been issued by registered firm NCT of Delhi on 26.02.1999. The plaint has been signed, verified and instituted by Sh. Roshanlal Goel, who is one of the partners of the plaintiff firm. The plaintiff firm carries on business of printing books as publisher and suppliers thereof. The Goyal Brothers Prakashan Vs. Delhi Kanpur Golden Kaka Transport Co. 1/10 defendant No.1 are the common carriers of goods, who carry on the business of transportation of goods of their customers form one place to another for high and reward. The defendant No. 2 are the dealers in printing books who placed order for the supply of printed books with the plaintiff.
3. The order for the of supply of goods was placed by defendant No. 2 at Delhi and the payment of amount due was to be made at Delhi. It is further averred that a consignment containing 14 bundles of printed books was entrusted to the defendant No. 1 at Noida for carriage and save delivery at Gorakhpur. under their CN No. 370476 dated 17.03.2004. The plaintiff is a consignor and owner of the goods. That the consignment in the suit when entrusted to the defendant No. 1 at Noida was perfectly in sound condition and it was booked to self. The goods receipt/ lorry receipt issued by defendant No. 1 clearly mentioned the quantity, material and its weight. The relevant documents including the consignee copy of the aforesaid lorry receipt were negotiated through bank with instructions to deliver the same to the defendant No. 2 against the payment of the sum of Rs. 80,277/- after adjusting commission etc. as per invoice No. 8984 dated 17.03.2004 duly signed by plaintiff which is Ex.P1/4 and the voucher dated 04.08.2004 issued by Punjab National Bank which is Ex. PW-1/5. The defendant No. 2 failed to retire the aforesaid documents from the bank against the payments. As such, same were returned to the plaintiff by the bank. The plaintiff requested the defendant No. 1 to deliver the consignment aforesaid at Gorakhpur, as the defendant No. 2 failed to retire the documents from the bank against payment. The defendant No. 1 avoided to give any response to the request of the plaintiff. The plaintiff served notice dated 11.08.2004 upon the defendant No. 1 and requested the defendant No. 2 to arrange to deliver the consignment to the plaintiff at Delhi duly rebooked. The original CN No. 370476 and duplicate invoice were enclosed there with. The defendant No. 1 received the said notice on 12.08.2004 against the acknowledgment. The defendant No. 1 Goyal Brothers Prakashan Vs. Delhi Kanpur Golden Kaka Transport Co. 2/10 admitted /confirmed that the consignment in suit will be rebooked and delivered to the plaintiff at Delhi but the defendant No. 1 failed to do so till date. As demanded by defendant No. 1 a sum of Rs. 100--- was also paid by the plaintiff to the defendant No. 1 towards rebooking charges vide receipt No. 1096 dated 12.08.2004. The defendant No. 1 has failed to deliver the consignment in suit to the plaintiff at Delhi duly rebook despite their repeated demand. The inquiries made by the plaintiff reveals that the suit consignment had already been delivered illegally to the defendant No. 2 by the defendant No. 1 without collection of original CN No. 370476. As such, the defendant No. 1 has committed a breach of trust and is liable to the plaintiff on account of misappropriation and illegal conversion of goods. It is further averred that as the defendant No. 2 in consultation with the defendant no. 1 has taken delivery of consignment in suit illegally without verifying the original lorry receipt No. 370426, the defendant No. 2 is also liable along with defendant No. 1 to pay the value of the goods to the plaintiff. It is further averred that amount due to plaintiff from the defendant amount of Rs. 81477/-. The legal notice dated 29.11.2004 was served upon the defendant No. 1, but of no avail. Hence the present suit is filed and it is prayed that the decree for the sum of Rs. 81477/- be passed in favour of the plaintiff against the defendants jointly and severally along with interest @ 12% from the date of institution of the suit till realization of decreetal amount and cost of the suit.
4. In Written Statement filed on behalf of the defendant No. 1 he has vehemently denied the contentions of the plaintiff and submitted that suit is not maintainable and liable to be dismissed as it has not been properly signed, filed and verified by juristic person. It has also submitted by defendant No. 1 that the suit is liable to be dismissed as defendant No. 1 is transporter/ carrier and the goods were transported from Noida to Gorakhpur and delivered to authorised person. It is further submitted that the suit is liable to be dismissed as the goods transported from Noida to the Gorakhpur was not the value of 80246.82/- as mentioned by the Goyal Brothers Prakashan Vs. Delhi Kanpur Golden Kaka Transport Co. 3/10 plaintiff in the suit. Further averred that there is no written contract between the plaintiff and the defendant No. 1 regarding the rate of interest and the rate of interest claimed is exorbitant. It is further averred that plaintiff has compromised the matter with defendant No. 2 and is receiving the payment in installments from defendant No. 2. It is denied that the consignment has been delivered illegally to the defendant No. 2 without collection of the original CN No. 370476. It is submitted that the goods were supplied to the authorised person on the direction of the plaintiff. It is prayed that suit be dismissed with exemptionay cost.
5. Defendant No. 2 has filed the separate Written Statement and denied the contentions of the plaintiff. Among the preliminary objections it has been contented that the plaintiff is not entitled to any relief as claimed in the plaint due to lack of jurisdiction in this Hon'ble Court and there was no agreement to agree to the jurisdiction of this Hon'ble Court and therefore, plaint should be returned to be filed in the competent court in Gorakhpur (U.P.). It is further contended that verification in the plaint is wrong because contents of the plaint are not verified properly and hence the suit can be rejected. It is further contended that the interest claimed is exorbitant and there was no agreement to claim such rate of interest by the plaintiff. It is further averred that the goods supplied were not in sound condition as assured by the plaintiff.
6. However, it is admitted by the defendant No. 2 that the representative of the plaintiff's company visited Gorakhpur and the order was placed for supply of books by the defendant No. 2 in Gorakhpur and supply of books was given by the plaintiff at Gorakhpur and even payment was received by the agent of the plaintiff in Gorakhpur.
7. On the basis of the pleadings of the parties the following issues are framed on 20.03.2006:-
1. Whether the present court lacks territorial jurisdiction to try Goyal Brothers Prakashan Vs. Delhi Kanpur Golden Kaka Transport Co. 4/10 and entertain the present suit? OPD.
2. Whether the suit has been signed, verified and instituted by duly authorised person? OPP.
3. Whether the plaintiff is entitled to recover suit amount as sought in the plaint? OPP.
4. Whether the plaintiff is entitled to interest? If so, at what rate and for which period? OPP.
5. Relief.
8. At the stage of plaintiff evidence defendant No. 2 was proceeded ex- parte vide order dated 18.01.2008. However, the plaintiff lead evidence and defendant No. 1 cross examined PW-1. The defendant No. 1 failed to lead his evidence and address final arguments thereafter.
9. I have heard the arguments of plaintiff and perused the record carefully. Issue wise findings of this court are as below:-
10. ISSUE NO. 1"Whether the present court lacks territorial jurisdiction to try and entertain the present suit? OPD."
11. The onus of proving this issue was on defendant. However, defendant has failed to discharge his onus and has merely taken an oral objections in his Written Statement that present court lacks territorial jurisdiction. However, PW-2 has deposed in para 15 of his evidence that order for the supply of goods was placed by defendant No. 2 at Delhi and the payment of amount due was to be made at Delhi. As per the printed clause on the top of the lorry receipt which is Ex. PW-1/3 issued by the defendant No. 1 "All dispute are subject to Delhi jurisdiction only". Although, goods were delivered at Nodia but goods receipt No. 370476 dated 17.03.2004 Ex. PW-1/3 clearly shows that "all dispute are subjected to Delhi jurisdiction". As this document was issued by defendant No. 1 to the plaintiff, Goyal Brothers Prakashan Vs. Delhi Kanpur Golden Kaka Transport Co. 5/10 objections of defendant regarding jurisdiction is weightless and not tenable. Moreover, the plaintiff is a firm working in Delhi and having registered office in Delhi and defendant No. 1 also have its office in Delhi. The consignment note issued by the defendant No. 1 reveals that defendant No. 1 has bound himself regarding jurisdiction of Delhi Court and it is not open for them to choose the different jurisdiction or raise objections regarding the jurisdiction of Delhi Court. In view of the aforesaid discussion the issue No. 1 is decided in favour of the plaintiff and against the defendant.
12. ISSUE NO. 2"Whether the suit has been signed, verified and instituted by duly authorised person? OPP."
13. The onus of proving this issue was on the plaintiff. On behalf of the plaintiff. PW-2, Sh. Roshanlal Goel, who is partner of plaintiff firm has got himself examined and stated in his evidence that "I am one of the partner of M/s Goel Brothers Prakashan and I am competent to swear the affidavit. The suit titled above has been drafted by the counsel under the instructions of the plaintiff firm. I identify my signatures on the plaint and Vakalatnama". The deposition of PW-2 categorically shows that plaint was signed, verified and instituted by partner of the firm. Hence, objections of defendant have no weight therefore this court is of the view that suit has been signed, verified and instituted by a duly authorised person. Accordingly this issue is decided in favour of the plaintiff and against the defendant.
14. ISSUE NO. 3.
"Whether the plaintiff is entitled to recover suit amount as sought in the plaint? OPP."
15. The onus of proving this issue was on the plaintiff. On behalf of plaintiff Goyal Brothers Prakashan Vs. Delhi Kanpur Golden Kaka Transport Co. 6/10 two witnesses i.e. Sh. N.R. Mahadevan, attorney holder of plaintiff and Sh. Roshanlal partner of plaintiff firm has got themselves examined as PW-1 and PW-2. Evidentiary affidavit filed by these witnesses is Ex. PW-1 and Ex. PW-2/A respectively. The witnesses has corroborated averments made in the plaint and has exhibited the following documents:-
1. Statement of accounts of dated 16.01.2008 Ex. PW-1/10.
2. Special power of attorney in favour of Sh. N.R. Madhwan Ex. PW-1/3 A.
3. Copy of form B regarding registration of firm as Ex. PW-1/1.
4. Copy of form A regarding registration which is Ex. PW-1/2.
5. Copy of consignment note/ goods receipt/ GR No. 370476 Ex. PW-1/3.
6. Copy of invoice No. 8984 Ex. PW-1/4.
7. Bank memo dated 04.08.2004 which is Ex. PW-1/8.
8. Copy of letter dated 11.08.2004 returned by the Goyal Brother Prakashan to defendant No. 1 regarding rebooking of goods Delhi which is Ex. PW-1/6.
9. Original receipt No. 1796 dated 12.08.2004 as Ex. PW-1/7.
10. Copy of legal notice dated 25.03.2005 along with postal receipt No. 666 which is Ex. PW-1/8.
11. Copy of statement of ledger dated 01.04.2003 to 31.03.2004 Ex.
PW-1/10.
16. It is the case of the plaintiff that the plaintiff is a registered partnership firm and defendant No. 1 are the common carriers of goods who carry on the business of transportation of goods of their customers from one place to another for hire and reward. The defendant No. 2 are the dealers in the books who placed order for the supply of the printed books with the plaintiff. The consignment containing 14 bundles of printed books was entrusted to the defendant No. 1 at Noida for carriage and safe delivery at Gorakhpur. The said consignment was accepted for carriage and it was booked by the defendant No. 1 under their CN No. 370476 dated 17.03.2004 issued by defendant No. 1 which is Ex. PW-1/3. The Goyal Brothers Prakashan Vs. Delhi Kanpur Golden Kaka Transport Co. 7/10 consignment in suit when entrusted to defendant No. 1 at Noida was perfectly in sound condition and it was booked to self. The goods receipt/ lorry receipt is issued by defendant No. 1 so the same is binding upon the defendant No. 1. and it clearly mentions the quantity, material and its weight. The relevant documents including the consignee copy of lorry receipt were negotiated through bank with the instructions to deliver the same to the defendant No. 2 against the payment of the sum of Rs. 80277/- after adjusting commission etc. as per invoices No. 8984 which is Ex. PW-1/4 and the voucher dated 04.08.2004 issued by Punjab National Bank which is Ex. PW-1/5. The defendant No. 2 failed to retire the aforesaid documents from the bank against the payment. As such, same were returned to the plaintiff by the bank. The plaintiff requested the defendant No. 1 to deliver the consignment at Gorakhpur. The defendant No. 1 avoided to give any response to the request of the plaintiff. Thereafter, the plaintiff served notice dated 11.08.2004 upon the defendant No. 1 with respect to aforesaid goods requesting the defendant No. 1 to arrange to deliver the consignment in the suit to the plaintiff at Delhi duly rebooked. The defendant No. 1 admitted/ confirmed that the consignment in suit will be rebooked and delivered to plaintiff at Delhi and a sum of Rs. 100/- was also paid by the plaintiff to the defendant No. 1 towards rebooking charges vide receipt No. 1796 dated 12.08.2004 which is Ex. PW-1/7 but defendant No. 1 failed to deliver the goods.
17. PW-2 also stated that the inquiries made by the plaintiff revealed that the suit consignment has already been delivery illegally to the defendant No. 2 by the defendant No. 1 without collection of the original CN No. 370476 and as such, defendant No. 1 committed breach of trust and is liable to the plaintiff on account of misappropriation and illegal conversion of the good and as defendant No. 2 in collusion with the defendant No. 1 has taken delivery of the consignment without furnishing the original lorry receipt, the defendant No. 2 is also liable along with defendant No. 1 to pay the value of goods to the plaintiff. The plaintiff has claimed Rs.
Goyal Brothers Prakashan Vs. Delhi Kanpur Golden Kaka Transport Co. 8/10 81477/- from both the defendants jointly and severally according to his statement of accounts.
18. As per goods receipt Ex. PW-1/3 consignor is M/s Goyal Brother Prakashan and consignee is SELF therefore, defendant No. 1 was supposed to deliver the bundle/ goods to plaintiff or to its authorised agent after receiving consignee copy in Delhi as goods were rebooked as shown vide Ex. PW-1/6 and Ex. PW-1/7. But defendant No. 1 failed to deliver the goods to the authorised person at its destination and it is reveled to the plaintiff that suit consignment had already been delivered illegally to the defendant No. 2 by the defendant No. 1 without collection of original CN No. 370476. As the gods originally belongs to plaintiff, he is entitle to value of goods. Therefore this issue is decided in favour of the plaintiff and against the defendant No. 1 and 2.
19. ISSUE NO. 4.
"Whether the plaintiff is entitled to interest? If so, at what rate and for which period? OPP."
20. The onus of proving this issue was on the plaintiff. Plaintiff has claimed interest as per invoice No. 8984 dated 17.03.2004 which is Ex. PW-1/4 wherein it is mentioned in clause 2 of terms and conditions that interest @ 18% per annum will be charged if payment is not made within due date. Copy of invoice was supplied at the time of booking of goods to defendant No. 1 and he had booked the goods on that therefore invoice was admitted by defendant no. 1 at the time of booking. Therefore, plaintiff is entitled to interest and this issue is decided in favour of the plaintiff and against the defendant.
21. ISSUE NO. 5"Relief"
Goyal Brothers Prakashan Vs. Delhi Kanpur Golden Kaka Transport Co. 9/10
22. In view of the findings recorded above the present suit is decreed in favour of the plaintiff. The plaintiff is entitled to recovery of Rs. 81477/- along with pendente lite and future interest @ 10% per annum from the date of filing of suit till realization of decreetal amount. Both the defendants are jointly and severally liable to pay the decreetal amount to the plaintiff. Cost are awarded in favour of the plaintiff.
23. Decree sheet be prepared accordingly. File be consigned to the record room.
ANNOUNCED IN THE OPEN COURT ON 21st APRIL 2012 (SHILPI JAIN) CJ-07 (CENTRAL):DELHI Goyal Brothers Prakashan Vs. Delhi Kanpur Golden Kaka Transport Co. 10/10