Delhi District Court
Federal Express Corporation (Fed Ex.) vs Cottage Industries Exposition Ltd on 4 December, 2014
In the Court of Dr. Rakesh Kumar : Additional District Judge
(South District) Saket Court Complex, New Delhi.
CS No. 86/2014
Unique I.D. No. 02406C0060482013
In the matter of :
Federal Express Corporation (Fed Ex.),
a Body Corporate constituted under
the law prevailing in Delaware, USA
having its office at :
Universal Trade Tower,
7th Floor, Sector49, Sohna Gurgaon Road,
Gurgaon, Haryana.
Through its Authorized Representative:
Mr. Vikram Mehta
........Plaintiff
V E R S U S
Cottage Industries Exposition Ltd.
Through its, Authorized Signatory
Mr. Vinod Bhandari
212A, Shahpur Jat
New Delhi110049.
Also at
Mr. Vinod Bhandari
DCM Building,
16, Barakhamba Road,
New Delhi 110001. .......Defendant
ORDER
1. This order shall decide an application under Order XXXVII Rule 3 (5) read with Section 151 of the Code of Civil CS No. 86/14 Page no. 1 / 6 Procedure, 1908 (in short 'the CPC') made on behalf of the defendant seeking leave to defend the suit.
2. The brief facts for the disposal of the present application are that the defendant has made this application alongwith affidavit stating wherein that the ingredients of Order XXXVII CPC are not applicable in this matter as there is no outstanding or debt payable by the defendant to the plaintiff; that the plaintiff wrongfully shipped the goods of the defendant to Dubai instead of Sharjah which was the original destination, due to which the defendant had suffered financial loss; that the plaintiff is liable to pay to the defendant for the loss suffered due to wrong shipment; that the present suit is liable to be dismissed for want of jurisdiction as the contract between the parties explicitly provides that in case of any dispute/s the same would be referred to the Court of Mumbai only; that there are numerous substantial issues which calls for the adjudication only after recording of evidence and the crossexamination of the parties, failing which the defendant will suffer irreparable loss and gross denial of justice; that the defendant is entitled to unconditional leave to defend the suit.
3. The plaintiff opposed the present application by filing reply contending wherein that the grounds resorted to by the defendant in the application have been concocted by the CS No. 86/14 Page no. 2 / 6 defendant solely for the purpose of evading its liabilities towards the plaintiff; that the defendant had booked the shipment with the plaintiff to Sharjah, UAE and as agreed between the parties the consignment of the defendant was shipped first to Dubai from where it was to be forwarded to Sharjah which is the usual route followed for delivery of consignment to Sharjah; that it was the duty of the defendant to provide all necessary documents which are required for the purpose of custom clearance and other authorities for successful expedite the delivery of the consignment; that the defendant is also duty bound to pay all the taxes, duties, penalties, if any; that the defendant was unable to provide requisite documents for clearance and despite numerous reminders by the plaintiff seeking the said documents, the defendant failed to do so; that due to callous approach of the defendant, a penalty of 4000AED was levied on the defendant by the Dubai Customs Authority on account of delay caused by the defendant; that the loss suffered by the defendant, if any, was due to its own negligence; that the plaintiff never refused to deliver the consignment from Dubai to Sharjah once it was cleared from customs at Dubai, which is the duty of the defendant to get the same cleared; that it is not open to the parties by agreement to confer by their jurisdiction on a Court which does not possess under the Code; that no cause of action ever arose within the territorial jurisdiction of the courts of Mumbai; that defendant is not entitled for any CS No. 86/14 Page no. 3 / 6 prayer from this Court.
4. Other allegations of the application are denied and disputed by the plaintiffs and prayed for dismissal of the application.
5. I have heard counsel for the parties and perused the material available on record.
6. Having drawn my attention to Invoice no. 27 learned counsel for the defendant submitted that the goods were to be delivered at Sharjah but delivered at Dubai and the defendant incurred Rs.39 Lacs as duty whereas Sharjah was Duty Free Zone. Learned counsel for the defendant has also drawn my attention on page no. 59 and 61 of the documents attached with the application for Leave to defend and submitted that the clearing agent was Federal Express and Indian customs also shows the consignee at Sharjah. Learned counsel for the defendant has also drawn my attention on page no. 61 of the documents attached with the application for Leave to defend and submitted that this is a cheque for payment of Custom Duty. Learned counsel for the defendant has also drawn my attention on page no. 67 of the documents attached with the application for Leave to defend and submitted that he required to deliver the goods at Sharjah. It is further submitted that the plaintiff's suit is not properly instituted CS No. 86/14 Page no. 4 / 6 through proper attorney and as per Power of Attorney no power to institute the suit was conferred on them. It is further submitted that as per clause 'q' of the agreement, the jurisdiction lies in Mumbai Courts.
7. Per contra, having drawn my attention on page no. 67, learned counsel for the plaintiff submits that email shows that the defendant had to clear Custom duty. It is further submitted that there is nothing on record to show that the agreement was signed in Mumbai.
8. I have given my thoughtful consideration to the submissions made on behalf of the parties.
9. By way of present application, the defendant has alleged that the goods were to be delivered at Sharjah which is a Duty Free Zone but the plaintiff delivered the goods to Dubai for which the defendant had to incur extra expenses of about Rs. 39 Lacs for Custom duty. It is not disputed on behalf of the plaintiff that the goods were to be delivered at Sharjah.
10. Another allegation raised by the defendant in the application for leave to defend is that there is a jurisdiction clause 'q' in the Agreement between the parties, according to which jurisdiction lies in the Mumbai Courts only and the Agreement was also signed by the parties at Mumbai so this CS No. 86/14 Page no. 5 / 6 court has got no territorial jurisdiction to entertain this suit.
11. The contentions of the plaintiff are that the goods were to be delivered at Sharjah through Dubai and at Dubai all the Custom Duties were to be cleared by the defendant himself. Another contention of the plaintiff is that the Agreement was signed at Delhi and not at Mumbai.
12. In these circumstances, therefore, I am of the opinion that the allegations and contentions raised on behalf of the parties can be proved only by leading evidence and the defendant has disclosed certain facts which entitles him to the grant of Leave to defend.
13. For the reasons abovestated, the application under Order XXXVII Rule 3 (5) CPC is allowed.
Announced in the Open Court on 04.12.2014 (Dr. Rakesh Kumar) Additional District Judge South District: Saket: New Delhi CS No. 86/14 Page no. 6 / 6