Delhi District Court
Cardio Fitness India Pvt. Ltd vs Hellmann Worldwide Logistics (I) Pvt. ... on 10 October, 2022
IN THE COURT OF DR. HARDEEP KAUR,
ADDITIONAL DISTRICT JUDGE-04, SOUTH DISTRICT,
SAKET COURTS, NEW DELHI.
OLD CS No.49/12
New CS DJ No. 243/20
CNR No. :DLST01-000025-2012
Cardio Fitness India Pvt. Ltd.
B-23, Okhla Industries Area,
Phase-II, New Delhi-110020.
.........Plaintiff
Versus
Hellmann Worldwide Logistics (I) Pvt. Ltd.
DLF Cyber City Building No. 9,
14th Floor, Tower-A, Phase-III,
Gurugram, Haryana-122002.
......Defendants
Date of institution of the suit :23.03.2012
Judgment pronounced on :10.10.2022
SUIT FOR RECOVERY OF RS.10,02,583.00/-.
JUDGMENT
1. The brief facts of the case as stated in the plaint are that the plaintiff namely Cardio Fitness India Pvt. Ltd. is a company incorporated and registered under the Companies Act, 1956 having its registered office at B-23, Okhla Industrial Area, Phase-2, New Delhi- 110020. The plaintiff is engaged in the business of marketing, CS DJ 243/20 Cardio Fitness India Pvt. Ltd. Vs. Hellmann Worldwide Logistics (I) Pvt. Ltd. Page no. 1 of 35 distribution and sale of fitness equipment. Cardio Fitness India Pvt. Ltd. represents Life Fitness, USA in India and is also representing 14 of the top global fitness and spa brands in India and Indian Sub Continent.
2. The defendant no. 1 herein Hellmann Worldwide Logistics India Pvt. Ltd. through its Chief Operating Officer Mr. Rakesh Suri, the defendant no.2 herein have been executing shipments for the plaintiff from their suppliers in various countries since March 2010 in the capacity of being their 'Forwarding Agent'.
3. The plaintiff had ordered for a consignment from one of its suppliers, Life Fitness, based in United States of America and had further on 19.08.2010 nominated the defendant no.1 for pickup and shipment of the said consignment to New Delhi, India. The plaintiff had specifically instructed the officials of defendant no.1 that they had to pick up the said consignment from the premises of Life Fitness, USA on or before 25.08.2010 since no shipping of consignment was allowed by Life Fitness on 26.08.2010 and 27.08.2010 on account of end of the fiscal month of Life Fitness, USA.
4. The plaintiff had vide e-mail dated 19.08.2010 informed one Mr. Shane E. Ravel, the Regional Sales Manager-North India of Defendant no.1 Company that their suppliers, Life Fitness, USA were ready with the said consignment / Cargo for loading and transit and requested him to make urgent arrangements to place their containers at CS DJ 243/20 Cardio Fitness India Pvt. Ltd. Vs. Hellmann Worldwide Logistics (I) Pvt. Ltd. Page no. 2 of 35 the premises of Life Fitness, USA for loading of the consignment / cargo.
5. Vide e-mail dated 20.08.2010, the plaintiff intimated one Mr. R.K. Srivastava, the Manager-Ocean Imports, Mr. Shane E. Ravel and other concerned officials of defendant no.1 that the said consignment could not be picked up on 26.08.2010 and 27.08.2010 from the premises of Life Fitness USA due to the reasons mentioned herein above and requested the concerned officials of defendant no.1 company to positively arrange the containers for loading of the said consignment. It was categorically informed to the officials of defendant no.1 that the said orders / consignment was urgently required by the plaintiff.
6. In reply to the said e-mail dated 20.08.2010, Mr. Shane E. Ravel vide his e-mail dated 21.08.2010 assured the plaintiff that the concerned origin office of defendant no.1 is arranging for the loading of the consignment / cargo from the plaintiffs suppliers / shipper's premises.
7. Thereafter, to the utter shock and surprise of the plaintiff, the concerned officials of defendant no.1 did not bother to intimate the plaintiff about the progress of the work entrusted to the defendants. Thereafter, vide e-mail dated 23.08.2010, the plaintiff yet again enquired about the status of the pickup of the cargo / consignment. Thereafter, Mr. R.K. Srivastava, concerned officer of the defendant CS DJ 243/20 Cardio Fitness India Pvt. Ltd. Vs. Hellmann Worldwide Logistics (I) Pvt. Ltd. Page no. 3 of 35 no.1 company, vide e-mail dated 25.08.2010 confirmed to the plaintiff that the defendant no.1 have booked containers for loading the consignment from the supplier's premises (Life Fitness) on the same date and also promised that the confirmed vessel schedule would be forwarded to the plaintiff by 26.08.2010.
8. To shock and surprise of the plaintiff, it was revealed in due course that despite repeated reminders and requests made to the officials of defendant no.1 and assurances given by them, the said consignment / cargo was not loaded on the due date i.e. 25.08.2010 and thus was not put in transit for New Delhi.
9. It was time and again informed to the defendants that the delay in delivery of the said consignment / cargo would cause loss of business and loss of profit to the plaintiff and also that the plaintiff would have to face agitated customers for not meeting the committed deadlines of delivery, thereby causing loss of goodwill and repute. The defendant no.1 company issued a booking confirmation receipt to the plaintiff for the above-mentioned cargo bearing shipment no. ORDSE25282 wherein the estimated time of departure dated (ETD Date) from New York (NYC) was mentioned as 31.08.2010.
10. Furthermore, on contacting the concerned officials of the defendant no. 1 company, the plaintiff was informed and assured that the said consignment / cargo would be loaded in containers and that the shipment would be set to sail on the vessel leaving on 03.09.2010, CS DJ 243/20 Cardio Fitness India Pvt. Ltd. Vs. Hellmann Worldwide Logistics (I) Pvt. Ltd. Page no. 4 of 35 but to the disappointment and distress of the plaintiff, the consignment was not put in transit by the defendant no. 1 even on 03.09.2010.
11. Thereafter, vide e-mail dated 30.08.2010, the defendant no. 1 informed the plaintiff that the 3 containers bearing no. TGHU- 5042290, CAIU-8285410 and CMAU-4137613 containing the consignment had finally arrived at the New York sea port on 05.09.2010, and would be loaded on the 10th Vessel Sailing from NYC, but to the disquietude, anguish and agony the said containers were yet again not loaded on the 10th Vessel due to some unknown reasons and gross mismanagement on the part of defendant no.1 company and it deliberately did not inform the plaintiff about the fact that the said containers were not loaded on the 10th Vessel.
12. Further on tracking the containers through the website of CMA, CGM, it was brought to the knowledge of the plaintiff that the sailing details of the said containers were as follows :
(a). 1M40 Container TGHU 5042290 VSL. Rotterdam Express voy. 682-Etd 15.09.2010 and ETA 16.10.2010 in ICD TKD (New Delhi).
(b). 2X40 Container CAIU 825410 and CMAU 4137613 CMA CGM Puget ETD 24.09.2010 and ETA 01.11.2010 in ICD TKD (New Delhi).
13. The defendants deliberately and with malafide intentions did not disclose the correct sailing information of the said containers to CS DJ 243/20 Cardio Fitness India Pvt. Ltd. Vs. Hellmann Worldwide Logistics (I) Pvt. Ltd. Page no. 5 of 35 the plaintiff and the undue delay and unprofessional attitude on part of the defendants has caused mental agony and distress to the plaintiff. The plaintiff bonafidely believing in the false assurances given by the defendants, made commitments to their customers, and thus, were condemned by the customers thereby suffering loss of business, profits and goodwill.
14. The plaintiff thereafter sent the shipping instructions to the defendants for the issuance of the house bill of lading (HBL) on 08.10.2010. In the above context the plaintiff and the shippers (Life Fitness) made numerous requests and reminders for the original HBL for presentation of the documents in the bank. Thereafter, vide e-mail dated 16.10.2010, one Ms. Catherine Cheng from Life Fitness USA, informed the plaintiff that defendants had not released the original Ocean Bill of lading and shipping certificates as per L/C (Letter Credit) requirement, and that they had made valiant efforts to co- ordinate with Hellmann USA for issuance of the same. The said e-mail dated 16.10.2010 was forwarded to Mr. R.K. Srivastava and one Mr. Madhavan officials of the defendant no. 1 company by the plaintiff and it was categorically mentioned therein that the shipper needed the said documents urgently. Despite the plaintiff's numerous reminders and follow ups, the HBL was not issued and sent by the defendants, thereby causing further delay. Finally on the 18.11.2011, only after the arrival of the containers in New Delhi, the shippers, Life Fitness USA, after suffering at the hands of the defendants company received the original HBL.
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15. Thereafter, the plaintiff approached defendant no.1/ Hellmann Worldwide Logistics, New Delhi for the issuance of the delivery orders for the said containers. It is further stated that adding to the distress and anguish of the plaintiff and despite the fact that the freight bills for the said containers were not generated, it was informed to the plaintiff that the delivery orders would only be released after the payments of freight bills was made. The defendant no. 1 company was under legal as well contractual obligation to tender the delivery order for the aforementioned consignment which was withheld by the defendant no. 1 company under one pretext or the other, thereby causing undue delay in the delivery of the said consignment and causing further loss of business and goodwill.
16. Furthermore, the defendants had given assurance that the delivery order would be released once the bills are cleared and if any demurrage and ground rent charges are levied during the interim period on the above-mentioned consignment the same would be borne by defendant no. 1 company.
17. The plaintiff cleared all existing bills of the defendant no.1 company on 08.02.2011 and thereafter the delivery order was released by the defendant no.1 company. However, on account of the delay in release of the delivery order and late receipt of the delivery order from defendant no.1 company the shipping line and the Container Corporation of India levied a heavy demurrage and ground rent charges of Rs.6,52,583/-.
CS DJ 243/20 Cardio Fitness India Pvt. Ltd. Vs. Hellmann Worldwide Logistics (I) Pvt. Ltd. Page no. 7 of 35
18. Even the persistent reminders of the plaintiff requesting defendant no.1 company to pay the demurrages and ground rent charges fell to deaf ears and the plaintiff in order to safeguard its interest was forced to make payment on account of demurrage and ground rent charges to the CMA CGM Agencies India Pvt. Ltd. vide receipt no. CMA CGM Inv Nos. 001917975/001 dated 10.01.2011 amounting to Rs. 9,75,510/- and ground rent charges was paid to Container Corporation of India vide receipt no. 1101041136 & 110105962 amounting to Rs.2,77,073/- on account of delay in release of the delivery order and late receipt of the delivery order from defendant no. 1 company. Thus, the plaintiff has made payment of monies which was legally and contractually bound to be paid by defendant no.1 company, accordingly the same has to be reimbursed by defendant no.1 company.
19. Written statement was filed on behalf of defendant company wherein the defendant disputed and denied the contents of plaint. It is stated in the Written Statement that suit filed by the plaintiff deserve to be dismissed solely on the ground of having not been instituted in accordance with law. The plaint has not been signed and verified and the suit has not been instituted by a competent person. The present suit being a suit for recovery of damages due alleged delay in cargo movement is not maintainable in law against the defendant No.1. The defendant No.1 is freight forwarding agent and works as an agent of various carriers/shipping line. In this case also, the defendant No.1 and its counter part in USA acted as an agent of shipping lines being CS DJ 243/20 Cardio Fitness India Pvt. Ltd. Vs. Hellmann Worldwide Logistics (I) Pvt. Ltd. Page no. 8 of 35 Pelorus Ocean Line Limited and CMA CGM. The contract of carriage in the present case came into existence in USA between the shipper of the plaintiff and the said carrier in the form of relevant bill of ladings and not between the plaintiff and the defendant No.1. Therefore, the claim of damages, if any, is maintainable only against the carrier and not against the defendant No.1 who acted as a freight forwarding agent. Even as per the law governing international carriage of goods by sea, the claim of damages for the alleged loss or delay in delivery is maintainable only against the carrier. The plaintiff has no locus standi to file the present suit. The contract of carriage came into existence in USA between the shipper and the carrier as aforesaid and the plaintiff was a consignee and as such incapable of maintaining any claim arising under the said contract of carriage. Plaintiff has not approached this Court with clean hands. On this ground, suit filed by the plaintiff deserve to be dismissed with heavy cost.
20. It is further stated that the defendant No.1 was not informed that the cargo had to be necessarily picked on 25.08.2012 the defendant was merely advised to pick the shipment on or before 25.08.2010 as per advise of the shipper who had informed the plaintiff that no shipping was allowed on 26.08.2010 or 27.08.2010 due to financial closing at the end of shipper (Life Fitness). However, the defendant No.1 did its best to pick the cargo on or before 25.08.2010 but the same could not be done solely due to the reasons attributable to plaintiff and shipper and not because of any negligence and/or inaction on part of the defendant No.1.
CS DJ 243/20 Cardio Fitness India Pvt. Ltd. Vs. Hellmann Worldwide Logistics (I) Pvt. Ltd. Page no. 9 of 35
21. Before the cargo could be picked, definite instructions with regard to type and number of containers and also as to the orders to be shipped were required from the plaintiff/shipper because only thereafter the defendant No.1 or its counter part in USA could contact the shipping line for the containers, take their quotes with regard to their rates etc and got the same approved from the plaintiff and then only the final order for containers could be placed and only thereafter the cargo could be stuffed on availability of the containers. However, the plaintiff had its shipper (Life Fitness) kept on changing the requirements of containers till last moment and failed to give definite and specific institution with regard to type and number of containers and also as to the orders to be shipped and kept on changing the same. Initially, the defendant was asked to book two ( 2 x 40' HC) containers for stuffing of cargo but later on the said requirement was changed to two containers (40' HC) and one container (20'), which was further changed to two containers (40' HQ) and one container (40' GP). It is only in the evening of 23.08.2011, the plaintiff gave the definite instructions to arrange the containers as per requirement of the shipper and thereafter the shipper gave the definite requirement of the containers on 24.08.2012. Therefore, the time left was too short to stuff to pick the cargo on 25.08.2010 and besides that the shipper did not agree for the stuffing on 25.08.2011.
22. Even after 27.08.2010, the shipper did not permit stuffing of the Cargo as the concerned person (Ms. Shana) in the office of shipper proceeded on leave. Therefore, non stuffing of the cargo on or before CS DJ 243/20 Cardio Fitness India Pvt. Ltd. Vs. Hellmann Worldwide Logistics (I) Pvt. Ltd. Page no. 10 of 35 25.08.2010 cannot be attributed to the defendant No.1. Next possible sailing for ICD Delhi was the 10th vessel sailing from NYC and therefore the said sailing was planned. The plaintiff was duly informed about the developments and was part of decisions taken for movement of cargo. For the scheduled 10 vessel sailing, all the three containers were "gated in" at NYC port on 03.09.2010 and were scheduled to sail on 10.09.2010. Clearly the containers were gate in well within time for the scheduled sailing on 10.09.2010. After the containers were gated, in the shipping line assumed custody of the same and the defendant could not have exercised any control on the forward journey of the said containers. Due to reasons beyond the control of defendant and for that matter any freight forwarding agent, the sailing of the vessel scheduled on 10.09.2010 was postponed to 13.09.2010 and the shipping line spilt the booking and boarded on the vessel only one container and rolled the other two containers for sailing scheduled on 25.09.2010. The defendant No.1 or its counter part in USA really was not having any control over the said postponement and rolling of the containers and the same was not due to any reason attributable to them. The defendant duly informed the said facts to plaintiff at the earliest possible. Therefore, the allegations that the containers did not sail on 10.09.2011 due to gross mismanagement on part of defendant No.1 and that the correct sailing information of the containers was withheld from the plaintiff deliberately and with malafide intention are totally unfounded, baseless and uncalled for. The assertions that any mental agony or distress was caused to the plaintiff and that it suffered loss of business/goodwill are also false and baseless. There were total CS DJ 243/20 Cardio Fitness India Pvt. Ltd. Vs. Hellmann Worldwide Logistics (I) Pvt. Ltd. Page no. 11 of 35 three containers in transit under two MBL's and 4 HBL's. It is, however, denied that the documents were not released in time to the shipper of the plaintiff and that original HBL was received by the shipper on 18.11.2010 after arrival of the containers in New Delhi. It is not clear at all as to which particular HBL has been referred to in the para under reply, and the defendant keep its right reserve to give specific answer to any specific allegation if made in future. However, it is stated that all the HBL's were released to the shipper of the plaintiff well within time and before the arrival of the containers at ICD TKD, Delhi. The plaintiff is trying to make unnecessary hue and cry about documentation completely losing site of the fact that the issues, if any, with the documentation were sorted out well within time and the same are completely irrelevant and did not have any bearing on the delivery of the containers. The delivery of the containers was not withheld even for single day because of any problem in documentation.
23. It is pertinent to mention here that defendant no.2 i.e. Rakesh Suri was deleted from array of parties vide order dated 13.08.2012.
24. In the Replication, the plaintiff has denied the contents of the Written Statement. Plaintiff has reiterated & reaffirmed the contents of the plaint.
25. From the pleadings of the parties, the following issues were CS DJ 243/20 Cardio Fitness India Pvt. Ltd. Vs. Hellmann Worldwide Logistics (I) Pvt. Ltd. Page no. 12 of 35 framed on 20.05.2014 by the Ld. Predecessor of this Court. ISSUES:
1. Whether the suit is liable to be dismissed as not been signed and verified by competent person? OPD
2. Whether the suit is liable to be dismissed as there is no privity of contract between plaintiff and defendant? OPD
3. Whether the suit is barred due to non existence of territorial jurisdiction as the contract had come into existence in USA? OPD
4. Whether the suit is liable to be dismissed as without any cause of action and whatever bill has been happened due to plaintiff and not the defendant No.1 by not giving clear instructions? OPD
5. Whether the plaintiff is entitled for recovery of suit amount alongwith pendente lite and future interest @ 18% per annum? OPP
6. Relief.
26. Plaintiff examined Sh. S.P. Singh as PW1. PW1 tendered his evidence by way of affidavit Ex.PW1/A and reiterated and reaffirmed the contents of the plaint in his affidavit. He has relied upon following documents:
1. Ex. PW1/1 is the computerized copy of e-mail dated 10.08.2010.
2. Ex. PW1/2 is the computerized copy of e-mail dated 19.08.2010.
3. Ex. PW1/3 is the computerized copy of the e-mail dated 20.08.2010.
4. Ex.PW1/4 is the computerized copy of e-mail dated 21.08.2010.
5. Ex. PW1/5 is the computerized copy of e-mail CS DJ 243/20 Cardio Fitness India Pvt. Ltd. Vs. Hellmann Worldwide Logistics (I) Pvt. Ltd. Page no. 13 of 35 dated 23.08.2010.
6. Ex. PW1/6 is the computerized copy of e-mail dated 25.08.2010.
7. Mark PW1/7 is the copy of booking confirmation having shipment No. ORDSE25282.
8. Ex. PW1/8 is the computerized copy of e-mail dated 16.10.2010.
9. Ex. PW1/9 is the computerized copy of e-mail dated 18.10.2010. 10.Ex. PW1/10 is the original freight/demurrage charge.
11. Ex. PW1/11 is the original freight/demurrage charge.
12. Ex. PW1/12 is the original freight/demurrage charge.
13. Ex. PW1/13 is the computerized copy of detention charges of import container corporation of India Ltd.
14. Ex. PW1/14 is the computerized copy of detention charges of import container corporation of India Ltd.
27. In support of its defense, defendant company has examined Sh. R.K. Srivastava as DW1, who tendered his evidence by way of affidavit Ex.DW1/A and reiterated and reaffirmed the contents of the Written Statement in his Evidence by way of Affidavit. He has relied upon following documents:
1. Already Ex. PW1/D1 is the e-mail dated 26.08.2010.
2. Already Ex. PW1/D2 is the e-mail dated 23.08.2010.
3. Already Ex. PW1/D3 is the e-mail dated 16.09.2010.
4. Already Ex. PW1/D4 (Colly) are the e-mails.
5. Already Ex. PW1/D5 is the copy of delivery order.
6. Already Ex. PW1/D6 is the copy of another CS DJ 243/20 Cardio Fitness India Pvt. Ltd. Vs. Hellmann Worldwide Logistics (I) Pvt. Ltd. Page no. 14 of 35 delivery order.
7. Already Ex. PW1/D7 (Colly) are the e-mails.
28. Defendant company has examined another witness Sh. Sunil Kumar Sharma as DW2, who tendered his evidence by way of affidavit Ex.DW2/A. He reiterated and reaffirmed the contents of the Written Statement in his Evidence by way of Affidavit. He has relied upon following documents:
1. Ex. DW2/1 is the copy of Power of Attorney dated 23.01.2017.
2. Mark 'A' is the copy of Resolution dated 24.11.2006.
3. Ex. DW2/3 is the office copy of reply dated 02.11.2011 to the legal notice.
4. Ex. DW2/4 is the postal receipt.
5. Ex. DW2/5 is the courier receipt.
6. Ex. DW2/6 is the AD Card.
29. No other witness was examined by defendant and DE was closed vide order dated 22.08.2017.
30. This Court has heard arguments advanced by Ld. Counsels for the parties. Written submissions filed on record by both the parties. Perused the record carefully.
31. Plaintiff has relied upon the judgments titled as "Chrisomar Corporation Vs.MJR Steels Private Limited and Anr., (2018) 16 SCC 117" and "M. V. Elisabeth and Ors. Vs. Harwan Investment and Trading Pvt. Ltd., 1993 Supp (2) SCC 433".
CS DJ 243/20 Cardio Fitness India Pvt. Ltd. Vs. Hellmann Worldwide Logistics (I) Pvt. Ltd. Page no. 15 of 35 Issue wise findings are as under:
ISSUE No.1:
a). Burden to prove this issue was on defendant company. DW1 Sh.
R. K. Srivastva, Manager of the defendant company examined himself as DW1 and tendered his evidence by way of affidavit Ex.DW1/A. Defendant company has taken preliminary objection in its written statement that the suit is liable to be dismissed as not signed and verified by competent person.
b). This Court has relied upon judgment of Hon'ble Apex Court titled as "United Bank of India Vs. Naresh Kumar & Ors. AIR 1997 SC 3" wherein it is held that:
"9. One of the arguments urged on behalf of the appellant is that the written statement was not signed by a duly authorised person and therefore the same could not have been looked into. This argument is a wholly frivoulous argument because the legal position in this regard is well settled after the decision of the Supreme Court in the case of United Bank of India vs. Naresh Kumar & Ors, AIR 1997 SC 3 and which is that suits which are filed by companies should not be dismissed on technical grounds, once those suits are contested to the hilt, i.e. right till the end. The ratio of the judgment in the case of United Bank of India (supra) will also squarely apply even where a company is a defendant i.e. to the facts of the present case as the defences contained in the written statement of a company cannot be ignored on a mere technical pleas of lack of authority in the person inasmuch as all the suits have been contested to the hilt, evidence led by both the parties, witnesses of both the parties have been extensively cross-examined and thereafter the matter CS DJ 243/20 Cardio Fitness India Pvt. Ltd. Vs. Hellmann Worldwide Logistics (I) Pvt. Ltd. Page no. 16 of 35 was argued in detail resulting in passing of the final judgments in these suits. I may for the sake of completeness state that there is an original power of attorney available in the file and so also noted by the trial Court, which allows the contesting of the suits by one Mr. H. N. Mathur and the written statement bears the signature of said Mr. H. N. Mathur.
10. One other argument urged on behalf of the appellant was that the witness who deposed on behalf of the defendant no.1/respondent no.1- company was not authorised by any board resolution to give evidence. This argument is misconceived inasmuch as evidence of a person is governed by the Evidence Act, 1872, and any person who is aware of the facts of the case and whose evidence would be a relevant evidence in terms of the Evidence Act, 1872, is competent to depose. A witness can depose as per facts in his knowledge or as per records. There is no provision in the companies act, 1956 or in the Evidence Act, 1872 which requires that a witness who appears on behalf of the company can only depose if there is a resolution of the Board of Directors of the company permitting him to depose on behalf of the company. This argument of the appellant is therefore rejected."
c). In the aforesaid judgment the main question which arose was that 'whether the suit for recovery filed by the appellant bank was properly instituted' and the issue which was framed was as under:
1. Whether the plaint is duly signed and verified by a duly authorized person? OPP.
"In cases like the present where suits are instituted or defended on behalf of a public corporation, public in- terest should not be permitted to be defeated on a mere technicality. Procedural defects which do not go to the root of the matter should not be permitted to defeat a just cause. There is sufficient power in the Courts, un- CS DJ 243/20 Cardio Fitness India Pvt. Ltd. Vs. Hellmann Worldwide Logistics (I) Pvt. Ltd. Page no. 17 of 35 der the Code of Civil Procedure, to ensure that injus- tice is not done to any party who has a just case. As far as possible a substantive right should not be allowed to be defeated on account of a procedural irregularity which is curable.
It cannot be disputed that a company like the appellant can sue and be sued in its own name. Under Order 6 Rule 14 of the Code of Civil Procedure a pleading is required to be signed by the party and its pleader, if any. As a company is a juristic entity it is obvious that some person has to sign the pleadings on behalf of the company. Order 29 Rule 1 of the Code of Civil Procedure, therefore, provides that in a suit by/ or against a corporation the Secretary or any Director or other Principal officer of the corporation who is able to depose to the facts of the case might sign and verify on behalf of the company. Reading Order 6 Rule 14 together with Order 29 Rule 1 of the Code of Civil Procedure it would appear that even in the absence of any formal letter of authority or power of attorney having been eXecuted a person referred to in Rule 1 of Order 29 can, by virtue of the office which he holds, sign and verify the pleadings on behalf of the corporation. In addition thereto and de hors Order 29 Rule 1 of the Code of Civil Procedure, as a company is a juristic entity, it can duly authorise any person to sign the plaint or the written statement on its behalf and this would be regarded as sufficient compliance with the provisions of Order 6 Rule 14 of the Code of Civil Procedure. A person may be eXpressly authorised to sign the pleadings on behalf of the company, for eXample by the Board of Directors passing a resolution to that effect or by a power of attorney being eXecuted in favour of any individual. In absence thereof and in cases where pleadings have been signed by one of it's officers a Corporation can ratify the said action of it's officer in signing the pleadings. Such ratification can be eXpress or implied. The Court can, on the basis of the evidence on record, and after taking all the CS DJ 243/20 Cardio Fitness India Pvt. Ltd. Vs. Hellmann Worldwide Logistics (I) Pvt. Ltd. Page no. 18 of 35 circumstances of the case, specially with regard to the conduct of the trial, come to the conclusion that the corporation had ratified the act of signing of the pleading by it's officer.
The suit did not suffer from any jurisdictional infirmity and the only defect which was alleged on behalf of the respondents was one which was curable".
d). In the present case Sh. Subhash Dhawan, Senior Manager, Administration of plaintiff company filed his affidavit along with the plaint affirming that he is Authorized Representative of the plaintiff company duly authorized by the Board of Resolution dated 06.02.2012 and further deposed that he is well-conversant with the facts and circumstances of the present case. Moreover, defendant company has contested the case till the end. In view of the law laid down by Hon'ble Apex Court in the abovesaid judgment, suit of plaintiff company should not be dismissed merely on technical grounds. Therefore, this issue is decided against the defendant company and in favour of plaintiff company.
ISSUE No.2:
a). Burden to prove this issue was on defendant company.
Defendant company has taken preliminary objection in its written statement that the defendant No.1 is freight forwarding agent and works as an agent of various carriers/shipping line. In this case also, the defendant No.1 and its counter part in USA acted as an agent of shipping lines being Pelorus Ocean Line Limited and CMA CGM. The contract of carriage in the present case came into existence in USA between the shipper of the plaintiff and the said carrier in the CS DJ 243/20 Cardio Fitness India Pvt. Ltd. Vs. Hellmann Worldwide Logistics (I) Pvt. Ltd. Page no. 19 of 35 form of relevant bill of ladings and not between the plaintiff and the defendant No.1. Therefore, the claim of damages, if any, is maintainable only against the carrier and not against the defendant No.1 who acted as a freight forwarding agent. Even as per the law governing international carriage of goods by sea, the claim of damages for the alleged loss or delay in delivery is maintainable only against the carrier.
b). Record shows that plaintiff company and defendant company had entered into an agreement whereby the defendant agreed to pick up the consignment from the suppliers of plaintiff who are situated in USA and deliver the same to the plaintiff at their Delhi address. There were exchange of e-mails between the parties which provided instructions for the defendant company regarding picking up of consignments. It is relevant to reproduce here Section 10 of the Indian Contract Act which defines:
What agreements are contracts:All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void.
Nothing herein contained shall affect any law in force in [India], and not hereby expressly repealed, by which any contract is required to be made in writing or in the presence of witnesses, or any law relating to the registration of documents.
c). Section 10 of Contract Act 1872 mandates for certain precondition to be met by both the parties in order for a contract to be valid. E-mails exchanged between parties Ex.PW1/2, Ex.PW1/3 and Ex.PW1/4 clearly shows that pre-requisities of contract were duly met by both the parties. Hon'ble Apex Court in case titled as "Trimex CS DJ 243/20 Cardio Fitness India Pvt. Ltd. Vs. Hellmann Worldwide Logistics (I) Pvt. Ltd. Page no. 20 of 35 International FZE Ltd. Dubai Vs. Vedanta Aluminum Ltd. India 2010(2) AWC 1170" held that "It is clear that in the absence of signed agreement between the parties, it would be possible to infer from various documents duly approved and signed by the parties in form of exchange of e-mails, letter, telex, telegrams and other means telecommunication". In view of the above discussion it can be inferred that there was a valid contract between the parties. Hence, this issue is decided against the defendant company and in favour of plaintiff.
ISSUE No.3:
Burden to prove this issue was on defendant. It is stated in para 25 of the plaint that plaintiff has issued instructions to the defendant company from Delhi to collect the cargo. Moreover, the cargo had to be received at Delhi. Further the cause of action has totally arisen entirely at New Delhi and registered office of plaintiff is also situated at New Delhi. Therefore, this Court has jurisdiction to entertain and adjudicate the present suit. Moreover, defendant in its written statement in reply to contents of para 25 of plaint has not denied that this Court has no territorial jurisdiction to try and adjudicate the present suit. Hence, defendant company has admitted the fact that this Court has territorial jurisdiction to try and adjudicate the present suit.
Therefore, this issue is decided against the defendant company and in favour of plaintiff.
ISSUES No. 4 & 5:
CS DJ 243/20 Cardio Fitness India Pvt. Ltd. Vs. Hellmann Worldwide Logistics (I) Pvt. Ltd. Page no. 21 of 35
a). Issues no.4 & 5 are interlinked, hence, taken together. Burden to prove issue no.4 was on the defendant and issue no.5 was on the plaintiff. Logistics Manager of plaintiff company, Sh. S. P. Singh has examined himself as PW1 on behalf of plaintiff. He deposed in his evidence by way of affidavit Ex.PW1/A that plaintiff had ordered for consignment from one of its suppliers, Life fitness, based in USA and had further nominated the defendant company for pick up and shipment of the said consignment to New Delhi. Vide e-mail dated 10.08.2010 Ex.PW1/1 plaintiff company informed one Mr. Shane Ravel of the defendant company to arrange for pickup of the shipment from the Life Fitness, USA. And plaintiff company had nominated the defendant company with clear instructions to pick up the said consignment from the premises of Life Fitness, USA before 25.08.2010 since no shipping of consignment was allowed by Life Fitness on 26.08.2010 and 27.08.2010 on account of end of fiscal month of Life Fitness, USA. He further deposed that vide e-mail dated 19.08.2010 Ex.PW1/2, plaintiff company informed Mr. Shane E. Ravel of the defendant company that their suppliers, Life Fitness, USA were ready with the said consignment/ cargo for loading and transit, and requested him to make urgent arrangements to place their containers at the premises of Life Fitness, USA for loading of the consignment/ cargo.
b). He further deposed that vide another e-mail dated 20.08.2010 Ex.PW1/3, plaintiff company intimated Mr. R. K. Srivastava, Manager-Oceans Imports, Mr. Shane E. Ravel and other concerned officials of the defendant company that the said consignment could CS DJ 243/20 Cardio Fitness India Pvt. Ltd. Vs. Hellmann Worldwide Logistics (I) Pvt. Ltd. Page no. 22 of 35 not be picked up on 26.08.2010 and 27.08.2010 from the premises of Life Fitness, USA due to the reasons intimated to them earlier vide e- mail dated 19.08.2010 and requested the concerned officials of the defendant company to positively arrange the containers for loading of the said consignment. It was categorically informed to the officials of the defendant company that the said consignment/ cargo was urgently required by the plaintiff company. In reply to the said e-mail dated 20.08.2010, Mr. Shane E. Ravel vide his e-mail dated 21.08.2010 Ex.PW1/4 assured plaintiff company that the concerned origin office of the defendant company is arranging for loading of the consignment/ cargo from the plaintiff's suppliers' premises. Thereafter, to the utter shock and surprise of the plaintiff company, the concerned officials of the defendant company did not bother to intimate the plaintiff company or its officials about the progress of the work entrusted to the defendant company. Thereafter, vide e-mail dated 23.08.2010 Ex.PW1/5, plaintiff company again enquired about the status of the pickup of the cargo/ consignment and requested the officials of the defendant company to place the containers for loading of the shipment as per the requirements of the plaintiff's suppliers' in their premises.
c). He further deposed that thereafter, Mr. R. K. Srivastava, concerned officer of the defendant company, vide e-mail dated 25.08.2010 Ex.PW1/6, confirmed that the defendant company has booked containers for loading of the consignment from the suppliers' premises (Life Fitness) on the same date and further promised and assured that the final and confirmed vessel schedule would be forwarded to the plaintiff company by 26.08.2010. To the CS DJ 243/20 Cardio Fitness India Pvt. Ltd. Vs. Hellmann Worldwide Logistics (I) Pvt. Ltd. Page no. 23 of 35 disappointment of the plaintiff company, it was revealed in due course that despite repeated reminders and requests made to the officials of defendant company and assurances given by them, the said consignment/ cargo was not loaded on the due date i.e. 25.08.2010 and thus was not put in transit for Delhi on time and as per the requirements of the plaintiff company.
d). He further deposed that defendant company was time and again informed that any delay in delivery of the said consignment/ cargo would cause loss of business and profit to the plaintiff company and the plaintiff company would have to fact agitated customers for not meeting the committed deadlines of delivery, thereby causing loss of goodwill and repute. Defendant company issued a booking conformation receipt to the plaintiff company for the abovementioned consignment/ cargo bearing shipment No. ORDSE25282 Ex.PW1/7, wherein the estimated time of departure date (ETD Date) from New York (NYC) was mentioned as 31.08.2010.
e). During his cross-examination PW1 deposed that he is working with plaintiff company since 29.11.2010. It was necessary to finalize the purchase orders to be shipped before booking of the containers. The purchase orders to be shipped were to be finalized by the plaintiff and defendant company had no role to play in finalizing the purchase order to be shipped. On 10.08.2010, plaintiff company finalize the purchase order to be shipped but he cannot tell the purchase order numbers which were finalized on 10.08.2010 as at that time, he was not involved in the transaction. After seeing the record i.e. e-mail dated 26.08.2010 Ex.PW1/D1 filed by the defendant, he deposed that CS DJ 243/20 Cardio Fitness India Pvt. Ltd. Vs. Hellmann Worldwide Logistics (I) Pvt. Ltd. Page no. 24 of 35 purchase order number is LF_146_10 & LF_1010C_10 (1X40); LF_128_10, LF_129_10, LF_138_10, LF_140_10, LF_141_10 (2 X40 hq).
f). He further admitted that the type and numbers of containers which were to be put by the defendant were to be intimated to the defendant company by the plaintiff. The plaintiff company on 10.08.2010 for the first time instructed the defendant company to book the containers i.e. three containers, 1 X 40, Ft. Hq. and 2 X 40 Hq. He further admitted that on 10.08.2010, plaintiff had intimated the defendant the purchase order numbers LF_128 & LF_129 were to be shipped. He further admitted that later on plaintiff added more purchase orders to be shipped. The information with regard to additional purchase orders to be shipped was given to the defendant on 19.08.2010 & 20.08.2010. However, he could not tell the number of purchase orders which were added later on. But no further purchase order was added after 20.08.2010. He admitted that at the first instance defendant was given instructions to book two containers only 2 X 40 hc. and instruction to book 2 X 40 hc. was given to the defendant on 20.08.2010. Thereafter, plaintiff company changed its requirement and asked the defendant company to book three containers 2 X 40 hc and 1 X 20. He further deposed that thereafter, also the plaintiff changed its requirement and asked the defendant to book 2 X 40 hc and 1 X 40 hc changed into 1 X 20 gp. He further admitted the e-mails dated 23.08.2010 Ex.PW1/D2 and e-mail dated 26.08.2010 Ex.PW1/D1 written by the defendant to plaintiff. He further admitted that plaintiff's shipper refused for stuffing of the CS DJ 243/20 Cardio Fitness India Pvt. Ltd. Vs. Hellmann Worldwide Logistics (I) Pvt. Ltd. Page no. 25 of 35 containers on 25.08.2010 due to fiscal year ending. Upon seeing the Court record PW1 deposed that he cannot tell the exact date given by the shipper for stuffing of the container, however the shipper asked for the stuffing to be done in the next week. He further admitted that defendant had planned for sailing of the containers on 03.09.2010, since the stuffing on 25.08.2010 was missed, the said planned sailing was not possible. The containers were required to be brought at the port of loading at least four-five days prior to the expected date of sailing of the ship. The stuffing of containers was to be done at the shippers premises at Franklin Park, USA. Thereafter, the stuffed containers were to be taken from that place to port of loading which was New York, USA. At the port of loading, containers were to be loaded on shipping vessels and from there, the containers were to be brought to the port of discharge which was Nhava Sheva, Mumbai and from the said port the containers were to be brought (by rail) to ICD, Tuglakabad, Delhi and at this place the delivery of containers was to be taken by the plaintiff company. ICD, Tuglakabad, Delhi is dry port. For these containers, the said place was FPOD (Final Place of Destination).
g). The stuffing at the shipper premises took place on 02.09.2010. He further deposed that he does not know when the stuffed containers reached the port of loading i.e. New York, USA. After 03.09.2010, the next ship for the port of discharge i.e. Nhava Sheva, Mumbai was scheduled to sail on 10.09.2010. The containers did not sail on 10.09.2010. One container sailed on 15.09.2010 and another two containers sailed out on 24.09.2010. He admitted that after delivery of CS DJ 243/20 Cardio Fitness India Pvt. Ltd. Vs. Hellmann Worldwide Logistics (I) Pvt. Ltd. Page no. 26 of 35 containers at the port of loading i.e. New York, USA by the defendant, all further decisions with regard to sailing, splitting, trans-shipment, etc. were to be taken only by the shipping line and the defendant had no say in the said decision.
h). He voluntarily deposed that in case, there is any change of schedule of sailing of cargo, the defendant (Freight Forward) has a duty to inform the plaintiff (Importer) so that plaintiff may take necessary steps for change of ship line of the cargo of the importer. He further admitted that vide e-mail Ex.PW1/D3 dated 16.09.2010, the defendant informed to the plaintiff regarding splitting of containers and relevant details of sailing. He further deposed that he does not know whether the vessels which was scheduled to sail on 10.09.2010 did not sail on that day but it sailed on 13.09.2010. One container reached to port of discharge, Mumbai on 16.10.2010 and another two containers reached on 01.11.2010.
i). He further deposed that he is not aware of the exact dates of arrival of these containers at ICD, New Delhi. He admitted that e- mails filed by plaintiff at pages 14, 15, 16 & 17 were exchanged between the plaintiff and defendant and the same are exhibited as Ex.PW1/D4 (colly). PW1 further deposed that he is not aware about the exact date when the plaintiff company took the delivery of containers from ICD, Tuglakabad, New Delhi but the delivery of all the containers was taken by the plaintiff company in January, 2011. He further admitted that the delivery order of one container was collected by the plaintiff company from the defendant company on 23.11.2010. It is also correct that the delivery order for rest of the two CS DJ 243/20 Cardio Fitness India Pvt. Ltd. Vs. Hellmann Worldwide Logistics (I) Pvt. Ltd. Page no. 27 of 35 containers was collected by the plaintiff company from the defendant company on 28.12.2010. The second delivery order was personally received by PW1 under his signatures and the document now exhibited as Ex.PW1/D5 is the copy of said delivery order. Document Ex.PW1/D6 is the copy of another delivery order received by the plaintiff company on 23.11.2010. However, he cannot tell the name of the person, who received the said delivery (Ex.PW1/D6). The delivery orders were necessary for taking delivery of the containers from ICD, Tugalakabad, New Delhi. The e-mail correspondences filed by the defendant on pages no.18 to 22 were exchanged between the parties and the said e-mails are now exhibited as Ex.PW1/D7(colly) running into five pages.
j). He further deposed that in the whole transaction in total, two Masters Bills of Lading (MBL) and in total, two House Bills of Lading (HBL) were involved. He deposed that he is not aware about the number of the HBL which has been referred to in Para 17 of his affidavit in evidence, as not delivered. According to the plaintiff company, only one HBL was not delivered and all other documents had been delivered but late. The remaining HBL was delivered by the defendant to the shipper on 07.11.2010. He admitted that all HBLs in original and all other required shipping documents were delivered to the shipper in USA prior to 26.10.2010. He further admitted that right from movement of the containers from the shipper's place till ICD, Tugalakabad, Delhi, the containers were not delayed even for a single day due to lack of any original document including HBLs.
k). He further admitted that the shipping line scheduled sailing of CS DJ 243/20 Cardio Fitness India Pvt. Ltd. Vs. Hellmann Worldwide Logistics (I) Pvt. Ltd. Page no. 28 of 35 the ships to a particular destination on weekly basis and if a ship to a particular destination is scheduled to sail on first day of a month, the next ship to the said destination is scheduled to sail on eighth day of that month. He further admitted that the plaintiff company did not require the defendant company to bring the containers on or before a particular date. No such date was intimated to the defendant company.
l). On the other hand, DW1 Sh. R. K. Srivastava deposed in his evidence Ex.DW1/A that defendant company never committed any negligence or deficiency in service by handling the shipments of plaintiff company. None of the shipment of plaintiff was delivered late or attracted detention/ demurrage charges due to reasons attributable to the defendant company. He further deposed that plaintiff company had not specified any specific date for delivery of cargo in India and defendant company was also not informed that the cargo had to be necessarily picked on 25.08.2010 from the shippers' factory and the defendant company was merely advised to pick the shipment on or before 25.08.2010 as per advice of the shipper who had informed the plaintiff that no shipping was allowed on 26.08.2010 or 27.08.2010 due to financial closing at the end of the shipper (Life Fitness, USA). He further deposed that before the cargo could be picked definite instructions with regard to type and number of containers and also as to the orders to be shipped were required from the plaintiff/ shipper because only thereafter, defendant company or its counter-part in USA could contact the shipping line for the containers, take their quotes with regard to their rates etc., and got the same approved from the plaintiff and then only the final order for containers could be placed CS DJ 243/20 Cardio Fitness India Pvt. Ltd. Vs. Hellmann Worldwide Logistics (I) Pvt. Ltd. Page no. 29 of 35 and only thereafter the cargo could be stuffed on availability of the containers. The plaintiff and its shipper (Life Fitness, USA) kept on changing the requirements of containers till last movement and failed to give definite and specific instructions with regard to type and number of containers and also as to the orders to be shipped and kept on changing the same. He further deposed that defendant company was asked to pick the shipment for PO's LF_128 and LF_129 however, on or about 19.08.2010 defendant company was advised to add PO's number LF_138, LF_101C, LF_140 & LF_141. On or about 24.08.2010 the PO number LF_146 was also added in the consignment to be picked. In so far as, type and numbers of containers which were to be booked is concerned, initially the defendant no.1 was instructed to book two (2 X 40 HC) containers for stuffing of cargo but later on the said requirement was changed to two containers (40' HC) and one container (20'), which was further changed to two containers (40' HQ) and one container (40' GP). It is only in the evening of 23.08.2010 the plaintiff gave the definite instructions to arrange the containers as per requirement of the shipper and thereafter the shipper gave the definite requirement of the containers on 24.08.2010. The e-mails exchanged between him and Mr. Jose of the plaintiff company on 23.08.2010 in this regard have already been exhibited as Ex.PW1/D2. Therefore the time left was too short to book the containers and place the same at shipper's site for stuffing, however despite that the defendant made all possible efforts to place the containers at the shipper's place on 25.08.2010, however the shipper did not agree for the stuffing on 25.08.2010 citing financial CS DJ 243/20 Cardio Fitness India Pvt. Ltd. Vs. Hellmann Worldwide Logistics (I) Pvt. Ltd. Page no. 30 of 35 closure and heavy load. The shipper even after 27.08.2010, did not permit stuffing of the Cargo and postponed the same for the next week as the concerned person (Ms. Shana) in the office of shipper proceeded on leave. Therefore, non stuffing of the cargo on or before 25.08.2010 cannot be attributed to the defendant No.1.
m). He further deposed that on 26.08.2010 he sent a detailed e-mail to Mr. Jose in the plaintiff company whereby DW1 informed him that on 25.08.2010 cargo could not be picked as the shipper did not agree for the stuffing on 25.08.2010 and the shipper had postponed the stuffing to the next week after return of the concerned person (Shana Addision) of the shipper from vacation and Mr. Jose also intimated through this mail that under these circumstances it was not possible to sail the cargo on planned vessel that was scheduled to sail on 03.09.2010 from the concerned port and the next possible vessel was scheduled to sail on 10.09.2010. He further deposed that he did not receive any reply or response to this e-mail dated 26.08.2010 from Mr. Jose expressing any objection or dissatisfaction. He further deposed that next possible sailing for ICD, Delhi was 10.09.2010 and for the said sailing all the three containers were "gated" in at New York Port on 03.09.2010 and were scheduled to sail on 10.09.2010. After the containers were gated in the shipping line assumed custody of the same and the defendant company could not have exercised any control on the forward journey of the said container. He further deposed that sailing of vessel scheduled on 10.09.2010 was postponed on 13.09.2010 by the shipping line and also the shipping line split the booking and boarded on the vessel that sailed on 13.09.2010, only one CS DJ 243/20 Cardio Fitness India Pvt. Ltd. Vs. Hellmann Worldwide Logistics (I) Pvt. Ltd. Page no. 31 of 35 container and rolled the other two containers for sailing scheduled on 25.09.2010. He further deposed that on 16.09.2010 he wrote an e-mail Ex.Pw1/D3 to Mr. Jose and informed him about the said split of the booking and also provided them the requisite details of sailing and he had not received any reply of this e-mail from Mr. Jose expressing any objection and dissatisfaction. He further deposed that all the required documents including original HBLs which was supposed to be given to the shipper by the defendant's counter-part in USA were duly delivered to the shipper without any delay and much prior to the arrival of containers at ICD, Tuglakabad, Delhi. He further deposed that defendant company did not commit any delay in delivering the delivery orders to the plaintiff company and did not withheld delivery of the same on any pretext. One delivery order was collected by the plaintiff on 23.11.2010 and another delivery order was collected on 28.12.2010. The copies of the said delivery orders are exhibited as Ex.PW1/D5 & Ex.PW1/D6, in fact the plaintiff company acted negligently and did not come forward to take the delivery orders despite various reminders of the defendant company for taking delivery of the same. E-mail sent to plaintiff company asking for collection of delivery orders has been exhibited as Ex.PW1/D7. After receipt of the delivery order it was for the plaintiff to take delivery of the containers/ cargo from the shipping line. Even after collecting the delivery orders, plaintiff took considerable time in taking the delivery of consignments and as such demeurrage and ground rent etc. were levied on such consignment not because of defendant company but solely due to negligence committed by staff of plaintiff.
CS DJ 243/20 Cardio Fitness India Pvt. Ltd. Vs. Hellmann Worldwide Logistics (I) Pvt. Ltd. Page no. 32 of 35
n). In his cross-examination DW1 admitted that vide e-mail dated 19.08.2010 Ex.PW1/2, plaintiff company placed shipments' order to the defendant company. DW1 admitted that plaintiff was informed regarding the non-sailing of the consignment on 03.09.2010 vide written communication Ex.PW1/D1. During cross-examination DW1 denied the suggestion that there is no communication on record to show that plaintiff was not informed regarding non-sailing of consignment on 03.09.2010. DW1 deposed that defendant company has communicated through e-mail dated 16.09.2010 vide Ex.PW1/D3 regarding information for non-sailing of consignment on 03.09.2010.
o). In view of testimonies of PW1, DW1 as well as on the basis of documents on record, it is clear that plaintiff company and its shipper (Life Fitness, USA) kept on changing the requirements of containers till evening of 23.08.2010 and failed to give definite and specific instructions with regard to type and number of containers and also as to the orders to be shipped. Even PO number LF146 was also added in the consignment later on. Thereafter, shipper gave the definite requirement of containers on 24.08.2010. E-mail Ex.PW1/D1 shows that shipper did not agree for stuffing even after 27.08.2010 and postponed the same for next week as concerned person Ms. Shana in the office of shipper was proceeded on leave. Vide e-mail Ex.PW1/D1 defendant company informed the same to plaintiff that it was not possible to sail the cargo on planned vessels that was scheduled to sail on 03.09.2010 from the concerned port and the next possible vessel was scheduled to sail on 10.09.2010. No reply or response of e-mail Ex.PW1/D1 was sent by plaintiff company regarding its objection to CS DJ 243/20 Cardio Fitness India Pvt. Ltd. Vs. Hellmann Worldwide Logistics (I) Pvt. Ltd. Page no. 33 of 35 the defendant company. Vide e-mail dated 16.09.2010 Ex.PW1/D3 defendant company informed the plaintiff company regarding splitting of booking and also provided requisite details of sailing to the plaintiff company as sailing of vessels scheduled on 10.09.2010 was postponed to 13.09.2010. Further, PW1 during his cross-examination admitted that all HBLs in original and all other required shipping documents were delivered to the shipper in USA prior to 26.10.2010. He further admitted that right from movement of the containers from the shipper's place till ICD, Tugalakabad, Delhi, the containers were not delayed even for a single day due to lack of any original document including HBLs. PW1 further admitted in his cross-examination that the delivery order of one container was collected by the plaintiff company from the defendant company on 23.11.2010. He further admitted that the delivery order for rest of the two containers was collected by the plaintiff company from the defendant company on 28.12.2010. This shows that there is no delay on the part of the defendant company to pick the consignment on time i.e. 25.08.2010 and to deliver House Bill of Leading as well as Delivery Orders to the plaintiff company. Further, no evidence has been led on behalf of plaintiff company to show loss of business or to show loss of goodwill because of act/ conduct of officials of defendant company. Therefore, defendant company has not committed any breach, default and negligence in handling the shipment. Hence, issue no. 4 is decided in favour of defendant and issue no.5 is decided against the plaintiff company.
CS DJ 243/20 Cardio Fitness India Pvt. Ltd. Vs. Hellmann Worldwide Logistics (I) Pvt. Ltd. Page no. 34 of 35 RELIEF In view of the fact that issue no.4 & 5 are decided against the plaintiff. Therefore, plaintiff is not entitled for any relief as claimed in the plaint. Hence, present suit of plaintiff is dismissed.
No order as to cost.
Decree sheet be prepared accordingly.
File be consigned to the Record Room.
Typed to the dictation directly, Digitally signed
corrected and pronounced in the
DR by DR HARDEEP
KAUR
open Court on 10.10.2022. HARDEEP Date:
KAUR 2022.10.12
11:32:11 +0530
(Dr. Hardeep Kaur)
Additional District Judge-04
South District, Saket Courts, New Delhi.
CS DJ 243/20 Cardio Fitness India Pvt. Ltd. Vs. Hellmann Worldwide Logistics (I) Pvt. Ltd. Page no. 35 of 35