Delhi District Court
M/S. Airtravel Enterprises India Ltd vs M/S. Air Sonic Express on 22 January, 2016
CS No. 34/13 1 22.01.2016
IN THE COURT OF MS KIRAN GUPTA
SENIOR CIVIL JUDGECUMRENT CONTROLLER
NEW DELHI DISTRICT, PATIALA HOUSE COURTS
NEW DELHI
CS No.34/13
Unique ID 02403C0042452013
M/s. Airtravel Enterprises India Ltd.
Registered Office at:
Ist, New Corporation Building
Palayam Trivandrum 695033
Branch office at
L197, Street No. 7, Mahipalpur Extn.,
New Delhi 110037
through its AR Sh. Ishwar Lal ......... Plaintiff
VERSUS
M/s. Air Sonic Express
At FS12, 1st Floor, Block S13
Balaji Tower, Sanjay Palace,
Agra 282005
(Through its Proprietor
Sh. Nitin Jain and Praveen Parihar)
.......... Defendant
Date of Institution : 20.04.2013
Date of arguments : 11.01.2016
Date of Judgment : 22.01.2016
M/s. Airtravel Enterprises India Ltd. Vs M/s.Air Sonic Express Page no. 1 of 17
CS No. 34/13 2 22.01.2016
JUDGMENT
1. Present suit is for recovery of Rs. 2,84,698/.
2. The case of plaintiff is that it is a registered company and engaged in the business of courier services/agency work in various parts of territory of the world as well as domestic places in India through their agency capacity. Present suit has been filed through its authorized representative Mr. Ishwar Lal. It is stated that defendant which is an unregistered company is also engaged in the same business and runs business for supply of goods in different parts of the territory of the world. It approached plaintiff company through its Proprietor namely Nitin Jain & Praveen Parihar and requested for providing courier service work in India as well as outside India. Plaintiff company accepted the proposal of defendant and provided courier service/work for the defendant company till 22.03.2011, a number of times.
2.1 It is stated that plaintiff company paid all the courtier service charges including other charges to the concerned department for better providing courier services / work for the defendant company. It issued the invoices to M/s. Airtravel Enterprises India Ltd. Vs M/s.Air Sonic Express Page no. 2 of 17 CS No. 34/13 3 22.01.2016 defendant from time to time and maintained ledger account in this regard. Defendant used to pay the bill of courier service charges after receiving the bills, which was sent after completion of the courier service. It is alleged that during the period till 22.03.2011, defendant company did not pay some of the bills of courier services / works to the plaintiff company and a sum of Rs. 2,84,698/ is due against the defendant. It is stated that proprietor of defendant company executed two cheques bearing no. 440467 and 440447 for the amount of Rs. 50,000/ and 30,000/ dt. 26.01.2011 and 20.11.2010 respectively, however the said cheques were dishonoured with remarks insufficient funds.
2.2 It is alleged that defendant company has breached the contract with it and now is not taking courier service work from it from 22.03.2011. Now there is no work transaction between plaintiff and defendant since 22.03.2011. It is alleged that despite repeated requests and demands, defendant has failed to clear the outstanding dues. Thereafter, legal notice dt. 16.01.2013 was sent to the defendant , however it has failed to clear the dues , hence the present suit. It is prayed that a decree for a sum of Rs. 2,84,698/ be passed in favour of plaintiff and against defendant alongwith interest @ 24% per annum on the said amount from 22.03.2011 till the date of realization M/s. Airtravel Enterprises India Ltd. Vs M/s.Air Sonic Express Page no. 3 of 17 CS No. 34/13 4 22.01.2016 alongwith Rs. 50,000/ as litigation cost.
3. Defendant has filed the written statement, denying all the averments made in the plaint. It is stated that plaintiff and defendant was not having any direct transaction . In fact one of the employee of plaintiff Mr. Sunil Sanger used to come to the shop of defendant and collect the consignment and thereafter he used to come to collect the payment. The plaintiff was having no concern , by which courier company its consignment was being dispatched. There was no direct transaction between the plaintiff and defendant hence no invoice / receipt / account statement was ever supplied to it.
3.1 It is further stated that plaintiff company had the knowledge that it employee Mr. Sunil Sanger used to collect money from various consignees like defendant but did not deposit the amount taken with it. A criminal case of fraud and complaint U/s. 138 NI Act has also been filed by the plaintiff against its employee Sunil Sanger. It is further stated that the plaintiff has placed on record the consignment receipts which does not belong to defendant, nor the addresses are known to defendant. It is stated that defendant has already made the entire payment to plaintiff company in advance. Present suit is M/s. Airtravel Enterprises India Ltd. Vs M/s.Air Sonic Express Page no. 4 of 17 CS No. 34/13 5 22.01.2016 without any cause of action and is liable to dismissed.
4. In the replication filed on behalf of plaintiff, it while denying the averments made in the written statement has reiterated the facts as stated in the plaint. It is stated that there was oral contract between the parties and plaintiff has placed only true and correct and genuine consignment invoices on record. It is denied that Sunil Sanger had any relation with the transaction between plaintiff and defendant. It is further stated that defendant had made part payment to the plaintiff through cheques as well as cash also on earlier occasions and there is outstanding amount of Rs. 2,84,698/ which is still due against the defendant.
5. On the basis of pleadings, following issues were settled vide order dt. 22.05.2014:
1. Whether the plaintiff is entitled to recovery of Rs.
2,84,698/ from the defendant as prayed for? If so, interest at what rate and for what period? OPP 2 Relief.
M/s. Airtravel Enterprises India Ltd. Vs M/s.Air Sonic Express Page no. 5 of 17 CS No. 34/13 6 22.01.2016
6. Plaintiff, in order to prove its case, has examined Sh. Ishwar Lal, its Manager Sales /AR as PW 1, who has tendered his evidence by way of affidavit Ex. PW1/A and has relied upon following documents:
1. Ex. PW 1/1 is the ledger account. Though during the examination in chief, PW 1 has stated that PW 1 to 18 is the ledger account, however there is only one page 18 A which is the ledger account Ex. PW 1/1.
2. Ex. PW 1/2 to Ex. PW 1/2U (colly) from page 19 to 390 are invoices and some supporting documents.
3. Ex. PW 1/3 to Ex. PW 1/4 A are the two cheques issued by the defendant and their return memos.
4. Ex. PW 1/5 is the legal notice.
5. Ex. PW 1/5A are the postal receipts.
6. Ex. PW 1/6 is the resolution of Board of Directors.
6.1 PW 2 is Mr. Venu Nair, Incharge of Accounts Section of Plaintiff and he has tendered his evidence by way of M/s. Airtravel Enterprises India Ltd. Vs M/s.Air Sonic Express Page no. 6 of 17 CS No. 34/13 7 22.01.2016 affidavit Ex. PW 2/A .
7. Defendant has examined Sh. Nitin Jain, its proprietor as DW 1 who he has tendered his evidence by way of affidavit Ex. DW 1/A.
8. I have heard Ld. counsels for both the parties and perused the complete record file. Only one issue has been settled in the present matter, "Whether the plaintiff is entitled to recovery of Rs. 2,84,698/ from the defendant as prayed for? If so, interest at what rate and for what period". OPP
9. The onus to prove this issue is on the plaintiff. The case of plaintiff is that it had entered into oral agreement with the defendant for providing courier services / works and consequently defendant placed orders with it and plaintiff duly provided the courier services and raised invoices to the defendant. The defendant made payment in respect of some invoices by way of cheque and cash, however defaulted in payment of further amount and there is a liability of Rs.
M/s. Airtravel Enterprises India Ltd. Vs M/s.Air Sonic Express Page no. 7 of 17 CS No. 34/13 8 22.01.2016 2,84,698/ against the defendant for the services provided till 22.03.2011.
10. On the contrary, the case of defendant is that there was no transaction between the plaintiff and defendant. Employee of plaintiff Sh. Sunil Sanger used to deal with it and it has made the entire payment to said Sh. Sunil Sanger and now there is no liability or any dues pending against it.
11. Since the primary onus to prove the issue is on the plaintiff, it would be pertinent to discuss the testimony of PW 1 first. The plea of defendant is that there was never any direct transaction between the plaintiff and defendant at any point of time. Plaintiff in order to prove that it had provided courier service for and on behalf of defendant, has placed on record certain invoices/ bills which are Ex. PW 1/2 to PW 1/2U. The said bills have been denied by the defendant.
12 Now coming to the testimony of PW 1. PW 1 in his affidavit Ex. PW 1/A has reiterated the facts as stated in the plaint. He during his cross examination admitted that their company never executed any agreement with any firm and always worked in good faith. He stated that the plaintiff M/s. Airtravel Enterprises India Ltd. Vs M/s.Air Sonic Express Page no. 8 of 17 CS No. 34/13 9 22.01.2016 company used to get invoice receipt and account statement signed by defendant firm and at the same time volunteered that all the bills were taken by their employee Pankaj Kumar. He admitted that none of the document is signed / received by defendant firm. He further admitted that receipt no. 19, 20, 21 and 22 are not signed by defendant. He further admitted that page no. 23, 24 and 25 are neither singed by defendant nor received by plaintiff company. He further admitted that page no. 26 and 28 are not signed by defendant and page no. 26 is only signed by their employee Pankaj. He further admitted that on page no. 28, the name of consignee Jagdish Prasad is mentioned , however , no airway bill is attached in this regard. He further admitted that page no. 29 to 36 are not signed by defendant or on its behalf. He further admitted that manifest of defendant is on record at page no. 11 , but the same is not signed or attested by defendant. He further admitted that the said document only contains the details of UK destination. He further admitted that connected page no. 37 to 40 relate to Spain and London (UK). He further admitted that on page no. 42 and 43, there is no signatures on the shipper portion i.e of defendant and the same is only signed by their employee. He admitted that ATE (page no. 42 to 47) contained the details of Spain only but the documents attached is of USA as well as Spain.
M/s. Airtravel Enterprises India Ltd. Vs M/s.Air Sonic Express Page no. 9 of 17 CS No. 34/13 10 22.01.2016
13. PW 1 further stated that there was no credit limit for Air Sonic and they do not have any policy to stop the services of any courier company, whose credit amount is increasing to any extent. He admitted that the booking manifest do not contain the details of all the dispatched consignments. He further admitted that there is no air bill with regard to the dispatch of consignment mentioned on page no. 183 to 186, 212 to 215 and 217 to 219, 230 and 231, 233 to 235, 249, 250, 263 to 266, 278 , 280 to 283, 285 to 288, 302, 303, 305 to 310, 312 to 320, 322 to 331, 334 to 345, 347 to 364, 366 to 374, 376 to 381, 383, 384, 386, 388 and
389.
14. PW 1 further admitted that there is no document on record to prove that the above consignments were delivered by or on instructions of defendant. He admitted that no document is on record to prove that Air Sonic has ever booked the consignments. He stated that consignments were sent to them by courier. They had an employee namely Sunil Sanger. Sunil Sanger introduced them with the defendant. He further stated that entire work was done by Pankaj. He denied the suggestion that Sunil Sanger used to come to the shop of defendant and collect the consignment and payment. He denied the M/s. Airtravel Enterprises India Ltd. Vs M/s.Air Sonic Express Page no. 10 of 17 CS No. 34/13 11 22.01.2016 suggestion that plaintiff company has no concern with the courier company. He admitted that defendant used to make the payment by cash as well as cheque. He admitted that there is no invoice receipt / accounts statement duly signed by the defendant. He admitted that Sunil Sanger is not their employee now and now they have to recover about Rs. 12 lacs from the clients of Sunil Sanger and they have also filed one complaint against him. He admitted that company has received the complaint that Sunil Sanger used to send his personal consignment on behalf of his clients.
15. From the testimony of PW 1 it is evident that no agreement was executed between plaintiff and defendant and none of the invoices and account statement was signed by the defendant company. PW 1 during his cross examination was confronted with certain receipts and documents from page no. 19 to 43 and 183 to 389, filed by the plaintiff itself. The witness after looking at the said documents admitted that these documents do not bear the signatures of defendant and further no air bill with regard to the dispatch of the consignments mentioned on page no. 183 to 186, 212 to 215 and 217 to 219, 230 and 231, 233 to 235, 249, 250, 263 to 266, 278 , 280 to 283, 285 to 288, 302, 303, 305 to 310, 312 to 320, 322 to 331, 334 to 345, 347 M/s. Airtravel Enterprises India Ltd. Vs M/s.Air Sonic Express Page no. 11 of 17 CS No. 34/13 12 22.01.2016 to 364, 366 to 374, 376 to 381, 383, 384, 386, 388 and 389 is placed on record.
16. PW 1 has deposed in the present matter being the Manager Sales on behalf of plaintiff. He during his cross examination stated that he is working with the plaintiff since last five years as Manager Sales. However, none of the invoices bears his signature. He during his cross examination admitted that he had not signed any receipt / invoice filed by the plaintiff on record. Thus the invoices Ex. PW 1/2 to Ex. PW 1/2U do not even bear the signatures of PW 1.
17. PW 1 during his cross examination stated that their employee Pankaj Kumar used to take all the bills, however said employee Pankaj Kumar has not been examined by the plaintiff company. There is no plea by the plaintiff that said employee is not working with it at present or his whereabouts are not traceable. PW 1 during his testimony has admitted that no booking manifest / air bill was ever sent by the defendant. PW 1 admitted that only the manifest at page no. 11 is the manifest of defendant but at the same time admitted that the same is not signed or attested by the defendant. He further admitted that the said document contains the details of UK destination only.
M/s. Airtravel Enterprises India Ltd. Vs M/s.Air Sonic Express Page no. 12 of 17 CS No. 34/13 13 22.01.2016 He further admitted that page no. 37 to 40 which care the connected pages relates to consignment to Spain and London (UK). He further admitted that there is no signature of defendant on page no. 42 and 43. He has admitted that there is no document to prove that the consignments were delivered by and on the instructions of the defendant. He admitted that there is no such document on record to prove that Air Sonic has ever booked any of these consignments. Thus PW 1 has failed to prove any of the bills Ex. PW 1/2 to Ex. PW 1/2U which are merely the printouts taken by the plaintiff and neither bear the signatures of PW 1 nor any of the representative of defendant.
18. Even otherwise, all the bills /invoices Ex. PW 1 /2 to Ex. PW 1/2U are not addressed to the defendant Air Sonic but to some other persons. PW 1 has failed to prove that these couriers were received or sent to various persons for and on behalf of defendant. These bills do not prove that the courier services were provided by the plaintiff for and on instruction of the defendant company. Leave aside the signatures of defendant company on the said bills, there is no document to show that these bills were ever sent or received by the defendant company. Thus no reliance can be placed on these invoices / bills Ex. PW 1/2 to Ex. PW 1/2U.
M/s. Airtravel Enterprises India Ltd. Vs M/s.Air Sonic Express Page no. 13 of 17 CS No. 34/13 14 22.01.2016
19. The other document which has been placed on record by the plaintiff is the Ledger Account Ex. PW 1/1. The said ledger account is for the period from 01.04.2010 to 31.03.2012. PW 2 in his affidavit Ex. PW 2/A has stated that he had taken out the computer output containing the information in the form of ledger account and invoices. He during his cross examination admitted that there is no certificate of section 65 B of Indian Evidence Act filed on behalf of plaintiff.
20. It has been argued by Ld counsel for defendant that the ledger account is a forged and fabricated document and prepared by the plaintiff in its own computer without any basis and from the entries itself, it is evident that only fake payments in the form of cash are shown, for which no account is to be maintained or document is required to be proved. The argument of Ld. counsel for defendant sounds plausible. The statement of account is merely a printout of one page, where certain entries showing receipt of money in cash and by way of cheque against particular invoice is shown. Plaintiff has also placed on record two cheques Ex. PW 1/3 to Ex. PW 1/4A alongwith the memos of the bank. In the ledge account, the cheque no. 440447 dt. 20.11.2010 and cheque no. 440467 dt.
M/s. Airtravel Enterprises India Ltd. Vs M/s.Air Sonic Express Page no. 14 of 17 CS No. 34/13 15 22.01.2016 26.01.2011 is stated to have been received against invoice no. 201000265 and 201000339. The said invoices have neither been placed on record nor proved by the plaintiff. Defendant in its written statement has stated that the money in respect to the dishonoured cheques have been paid to the plaintiff either by cheque or cash as required. No evidence has been led by plaintiff to prove the entries of the ledger account. No document/ voucher / invoice has been proved to show that the payment was received in cash pursuant to the said specific voucher/ invoice. PW 2 who is the incharge accounts section, has only deposed that the said ledger account has been prepared by him and it is the true printout, however the said ledger account is not supported with any other documentary evidence in the form of vouchers / cash receipts to show the basis of said ledger account. In the absence of any cogent evidence to prove the ledger account, no reliance can be placed on the said ledger account which is merely a print out of one page without any supporting document.
21. Now coming to the defence of the defendant. There is no dispute to the fact that Mr. Sunil Sanger was the employee of plaintiff company. PW 1 during his cross examination admitted that they had an employee namely Sunil Sanger who had M/s. Airtravel Enterprises India Ltd. Vs M/s.Air Sonic Express Page no. 15 of 17 CS No. 34/13 16 22.01.2016 introduced them with the defendant. PW 1 further admitted that they had to recover around Rs. 12 Lacs from clients of Sunil Sanger and they have filed complaint against him. PW 1 further admitted that company had received the complaint that Sunil Sanger used to send his personal consignments on behalf of his clients. PW 1 during his cross examination further admitted that defendant used to make the payment by cash as well as cheque and defendant used to deposit the cash in the personal account of Sh. Sunil Sanger. Thus it is evident that it is the employee of the plaintiff Mr. Sunil Sanger who introduced plaintiff with the defendant and used to deal with defendant on behalf of plaintiff. PW 1 himself has admitted that their employee used to send his consignment by the name of other persons and also used to collect payment from the clients in his personal account.
22. In the present conspectus of facts, plaintiff has failed to discharge the onus laid upon him. Plaintiff has failed to prove the invoices Ex. PW 1/2 to Ex. PW 1/2U and ledger account Ex. PW 1/1 that the same pertains to the transactions between plaintiff and defendant. Plaintiff has further failed to prove that the consignments were sent by it for and on instructions of defendant or that some amount is due against the defendant and that defendant is liable to pay the suit amount to it. On the M/s. Airtravel Enterprises India Ltd. Vs M/s.Air Sonic Express Page no. 16 of 17 CS No. 34/13 17 22.01.2016 contrary, plaintiff has admitted that its employee Sh. Sunil Sanger was dealing with defendant and used to take payments in his personal account also. The issue is accordingly decided against the plaintiff and in favour of the defendant.
Relief
23. The suit is dismissed. No order as to costs. Decree sheet be prepared accordingly.
File be consigned to record room.
Announced in the open ( KIRAN GUPTA ) court on 22.01.2016 SCJCUMRC:PHC:NEW DELHI
M/s. Airtravel Enterprises India Ltd. Vs M/s.Air Sonic Express Page no. 17 of 17