Delhi District Court
Iind Address vs M/S. R.K. International Pvt. Ltd on 27 May, 2013
IN THE COURT OF MS. NEELAM SINGH, ADJ-02, SOUTH,
SAKET COURT COMPLEX, NEW DELHI
CS No. 63/11
Unique Case ID No. 02403C0138612009
M/s. Geodis Overseas Pvt. Ltd.
DLF Building No. 8,
5th Floor, Tower-A,
DLF Cyber City, DLF Phase-II,
Sector-25, Gurgaon,
Haryana-122002.
IInd Address:
Khasra No. 585/2,
Palam Vihar Road,
Bijwasan, New Delhi. ...Plaintiff
VERSUS
M/s. R.K. International Pvt. Ltd.
A-4, Okhla Industrial Area, Phase-I,
New Delhi-110020. ...Defendant
Suit presented on : 25.05.2009
Argument heard on : 27.05.2013
Judgment on : 27.05.2013
JUDGMENT
1. Vide this judgment, I shall dispose off the suit filed on behalf of plaintiff for recovery of Rs. 5,07,534/-.
2. It is submitted that plaintiff is a private limited company duly incorporated under the provisions of Indian Companies Act, 1956 and is having its registered office at Gurgaon and branches in CS No. 63/11 Page No. 1/ 30 various parts of India including New Delhi. The suit is filed through Ms. Beena Kumari, Company Secretary and Manager, legal of the plaintiff company. Plaintiff company is engaged in the business of international freight forwarding.
3. It is submitted that defendant is also a company incorporated under the provisions of Indian Companies Act, 1956 and is engaged in the business of electronic items. During the course of its business, the defendant approached the plaintiff company for availing their service of freight forwarding of electronic items from London to New Delhi.
4. It is further submitted that as per request of defendant, plaintiff company sent its letter dated 24.11.2006 quoting the rates of freight charges from London to New Delhi. The said letter also contain the terms and conditions in which the service were to be provided by the plaintiff to defendant.
5. It is further submitted that aforesaid freight proposal and the terms and conditions were duly accepted by the defendant. It is further submitted that at the request of defendant, plaintiff company has also allowed/ sanctioned credit period of 20 (twenty) days in favour of the defendant on 04.08.2005.
6. It is further submitted that plaintiff as per the above said terms CS No. 63/11 Page No. 2/ 30 and conditions arranged the dispatch, forwarding and delivery of consignment from London to New Delhi. It is submitted that consignment containing electronic goods dispatched by M/s. Martin Audio Ltd., Century Point, Hallfax Road, Cressex Business Park, High Wycombe, Buckinghamshire, England, total comprising 152 packs was airshiped to New Delhi through Jet Airways vide AW Bill dated 29.11.2006 and the same was delivered to the defendant at their New Delhi address on 12.12.2006 after arranging its clearance etc.
7. It is further submitted that it was duly brought to the notice of the defendant that the process of forwarding the consignment involves different agencies and the plaintiff was not to be held liable for any delay in delivery which was not directly attributable to the plaintiff.
8. It is further submitted that as in the standard business practice a booking is not a guarantee of the goods flying as per the booking unless the party concerned opted for "must fly rates". It is further submitted that in the present case defendant never opted for must fly rates and therefore the consignment was booked with the carriers for airshipment at routine terms and not on the special terms with "must fly rates".
9. It is submitted that the consignment booked on 29.11.2006 from CS No. 63/11 Page No. 3/ 30 London and arrived at New Delhi between 01.12.2006 to 04.12.2006 whereafter without any delay the custom clearance was arranged and the whole of the consignment was delivered to the defendant on 12.12.2006.
10.It is submitted that thereafter plaintiff raised invoice totaling Rs. 7,22,491.56 and defendant was liable to make the payment against bill submitted by the plaintiff within 20 (twenty) days of submission of bill but the defendant failed to release the necessary payments. It is further submitted that defendant paid a amount of Rs. 2,00,000/- after repeated requests and thereafter a sum of Rs. 1,79,562.94 was also paid by the plaintiff thereby leaving a balance of Rs. 3,42,928.62.
11.It is further submitted that time and again request was made by the plaintiff but defendant failed to make the payment to the plaintiff and thereafter plaintiff was constrained to serve upon the defendant a legal notice of payment dated 24.01.2008 calling upon the defendant to pay the outstanding amount of Rs. 3,42,928/- to the plaintiff. It is further submitted that despite notice defendant failed to make payment and therefore he is also liable to make payment of interest on the above said amount which turns out to Rs. 5,07,534/- and hence the present suit.
CS No. 63/11 Page No. 4/ 30WRITTEN STATEMENT
12.WS has been filed on behalf of defendant by submitting that plaintiff company is the wrong doer in the present case and because of the deficient act of plaintiff defendant suffered losses in monetary terms and injury in terms of reputation. It is further submitted that plaintiff company has concealed the material facts that the consignment is to be sent in consolidation as per the manifest which plaintiff fails to do.
13.It is submitted that plaintiff company has purposely discloses the fact of an airway bill dated 29.11.2006 issued by Geodis UK Ltd. wherein the consolidation of the consignment was to be adhered as per the manifest. It is further submitted that plaintiff company has further concealed the fact that oral agreement has been arrived at between the parties and further submits that the present suit filed on behalf of plaintiff is an abuse of process of law.
14.It is submitted that defendant company had booked orders for delivery of Martin Audio Ltd. products from its clients based in Bangalore and Mumbai and timely delivery of the order placed by the clients of the defendant company was essence of contract. Accordingly, the defendant company sought a freight proposal from the plaintiff company for shipment via air from London to Delhi and the reputation of the plaintiff company were apprised that the timely delivery of the shipment is the essence of the CS No. 63/11 Page No. 5/ 30 contract.
15.The plaintiff company thereafter submitted its freight proposal dated 24.11.2006 to the defendant company. Defendant company booked the shipment via air for its consignment consisting of 152 packages of professional sound equipment gross weighing 6,291 Kgs and M/s. Geodis UK Ltd. issued an airway bill No. 58990186736 dated 29.11.2006 and the same unequivocally states that consignment was to be sent "consolidation as per attached manifest", but the plaintiff company hopelessly failed to ship the consignment in one single consignment.
16.It is submitted that there is a twin fold breach of contract on the part of the plaintiff company. Firstly, the plaintiff failed to ship the consignment consisting of 152 packages in one single shipment and secondly the plaintiff company hopelessly failed to deliver the consignment to the defendant company in a timely manner as promised.
17.It is submitted that consignment of 152 packages was split into parts and shipped by the plaintiff company in 4 (four) different flights on different dates i.e. On 01.12.2006, 02.12.2006, 03.12.2006 and 04.12.2006. It is submitted that the last consignment of 38 packages from London reached Delhi on 04.12.2006 and the plaintiff company could only deliver the 152 CS No. 63/11 Page No. 6/ 30 packages to the defendant company only on 12.12.2006.
18.It is further submitted that plaintiff company is illegally claiming an amount of Rs. 1,65,000/- from the defendant company towards the charges paid to the Airport Authority of India (AAI). It is submitted that had the plaintiff shipped the consignment in one flight neither there would have been any charge of Rs. 1,65,000/- as demanded by AAI nor any delay in the delivery of the goods by the defendant company.
19.It is further submitted that due to delay in delivery of material defendant had to offer special discount to its client who had threatened to cancel their orders and accordingly defendant had suffered losses the tune of Rs. 5,00,000/- due to the delay in the delivery of the goods. It is further submitted that as per oral settlement between the plaintiff and defendant in order to settle the account, defendant issued debit note to the plaintiff company for an amount of Rs. 1,54,924/- and further submits that plaintiff is not entitled for any recovery and accordingly suit be dismissed with exemplary cost.
REPLICATION
20.Replication has been filed on behalf of plaintiff reiterating the facts of his case and denied the allegations leveled by defendant in the WS against plaintiff. It is submitted that it is solely on the CS No. 63/11 Page No. 7/ 30 Airport Authority and Airway Authority to split the consignment and this fact cannot be attributable towards plaintiff. It is denied that any delay has been caused in the shipment rather it is submitted that since shipment was received in Delhi the same was promptly handed over to the defendant.
21.On 07.10.2010, from the pleadings of the parties following issues have been framed by Ld. Predecessor of this court:
i. Whether the plaintiff is entitled to a decree for recovery of money? If so, how much?
ii. Relief.
22.Plaintiff has led his evidence by way of affidavit, reiterating the facts of the case and examined 2 (two) witnesses i.e. Shri Samdarshi Lamba, Deputy Manager Legal and Company Secretary (PW-1) and Shri Deepak Malhotra (PW-2).
23.PW-1 (Shri Samdarshi Lamba) was examined by way of affidavit which is Exhibit PW-1/A. The relevant extract of his cross-examination is reproduced as under:
"I am working in the plaintiff company since 05.03.2010. I have not brought any appointment letter. I joined this company on 05.03.2010 but before that Ms. Beena Kumari had left the CS No. 63/11 Page No. 8/ 30 company. It is correct that I do not know what happened in respect of this case before my joining. It is correct that the resolution dated 05.03.2010 does not bears the name of any of the director of the plaintiff company but it has been duly singed by one of the director. I only met Shri Soh Cher Chye, Deputy Managing Director of the company. It is correct that I have not seen him writing or signing any document before 05.03.2010. I was appointed as Deputy Manager (legal) & Company Secretary. It is correct that no name of any director is mentioned in Exhibit PW-1/2. It is correct that the board resolution Exhibit PW-1/2 is not signed by any of the director. Vol. It is signed by Ms. Beena Kumari, the then company secretary of plaintiff company in light of provisions of companies act. It is correct that minutes of meeting has not been filed. Vol. the CS No. 63/11 Page No. 9/ 30 extracts of minutes of meeting have already been placed on record. It is correct that 152 package of consignment was to be booked with the carrier to come in one lot from UK. It is correct that the quotation submitted by the plaintiff company on 24.11.2006 it is nowhere mentioned that if the payment is delayed 24% interest shall be charged. Vol. on document Exhibit PW-1/7 at the bottom it is mentioned that standard trading conditions of carriers shall apply. It is incorrect that no document filed by the plaintiff states that interest @ 24% p.a. shall be charged on delayed payment. Vol. it is mentioned on the invoices. The legal notice was given before my joining. The defendant had sent the reply of legal notice. It is correct that the defendant had explained their position. I cannot tell the exact date of receiving the reply of legal notice dated 04.02.2008. I am not aware whether any CS No. 63/11 Page No. 10/ 30 settlement took place between plaintiff and defendant. I am also not aware whether any debit note dated 03.03.2007 was issued by the defendant. I am not aware whether the debit note was cleared by the defendant by making payment in 2007. It is wrong to suggest that no amount much less as alleged in the present suit is due from the defendant to the plaintiff company. It is wrong to suggest that the consignment was delayed due to the fault of the plaintiff. It is wrong to suggest that the defendant suffered losses due to any reason attributable to the plaintiff company or that they ever raised any counter claim. It is wrong to suggest that the plaintiff company has filed a false case despite the matter being settled. It is correct that I have no personal knowledge of the case. Vol. I derive the knowledge on the basis of the records of the plaintiff company. As on CS No. 63/11 Page No. 11/ 30 date there are three directors namely Mr. Rene Bach Larsen, Mr. Steven Michel Pike and Mr. Mathew Vincent Rinard Biron. When I joined there were four directors. It is incorrect to suggest that I am deposing falsely at the instance of the plaintiff company. "
24.PW-2 (Shri Deepak Malhotra) was cross-examined by counsel for defendant. Relevant extract of his cross-examination is reproduced as under:
"I am not a summoned witness. I am working with plaintiff company since May 30, 2011. I have no personal knowledge about this case. It is correct that the course done by me is a basic cargo course. It is wrong to suggest that I am not a qualified person as per IATA. I have not placed my appointment letter from the plaintiff company but I have authority letter with me and the same is placed on record. It is wrong to suggest that authority letter is not properly issued as per rules and accordingly I am not competent to depose in this CS No. 63/11 Page No. 12/ 30 matter. It is correct that date is not mentioned in the IATA rules however I have downloaded the same from internet and same are applicable as on date. It is correct that the rules placed on record by me are not certified by any authority. It is wrong to suggest that I am deposing falsely at the behest of plaintiff company."
Thereafter PE was closed.
25.Defendant led his evidence by way of affidavit Exhibit DW-1/A and examined only 1 (one) witness namely Shri Arun Saxena. Relevant extract of his cross-examination is reproduced is as under:
"...I have been working with the defendant company now for last more than four years. It is correct that I was never involved in the suit transaction. It is wrong to suggest that I am not conversant with the facts of the present case..."
"...It is correct that I have signed this affidavit Exhibit DW-1/1 after going through and understanding the contents thereof. The affidavit CS No. 63/11 Page No. 13/ 30 has been prepared in my presence. I have not brought the minutes book contain resolution dated 08.12.2012 in my favour. It is wrong to suggest that I am not authorised to depose in the present case. I have gone through the relevant provisions of Power of Attorney Act. I do not have knowledge and I cannot explain as to why person filing suit on behalf of the plaintiff had no authorization in conformity with provision of Power of Attorney Act as mentioned in para no. 2 of my affidavit. I do not know if the present suit has been filed on behalf of the plaintiff on the basis of authority conferred by board resolution and not on the basis of any power of attorney. I cannot explain the meaning or implication of my allegations in para no. 3 & 4 of my affidavit. It is wrong to suggest that I have signed the affidavit without fully understanding the contents thereof. It is correct that the transaction between the CS No. 63/11 Page No. 14/ 30 parties in the present case is based on freight proposal dated 24.11.2006 (Exhibit PW-1/7) given by the plaintiff to the defendant. It is correct that consignment in question was entrusted to the plaintiff company by the defendant only after the freight proposal Exhibit PW-1/7 was accepted by the defendant. It is correct that apart from Exhibit PW-1/7 there is no other agreement between the parties in respect to the suit transaction. It is wrong to suggest that no oral agreement was made between the parties with regard to suit transaction. Vol. There were oral discussions. It is correct that defendant is regularly dealing in the import of the goods. It is correct that when the goods are to be imported through air transport IATA condition of carriage are applicable to the cargo which also include service incidental thereto, to be performed by or on behalf of the carrier. I have gone through the CS No. 63/11 Page No. 15/ 30 IATA condition but I cannot produce the same. I cannot say if the IATA condition shown to me in the court today are correct without studying the same. It is incorrect to suggest that at the time of booking of consignment the defendant had not opted for must fly rate and had opted only normal rates for transportation of consignment. I cannot show from the record if the defendant had opted for must fly rate for transportation of the consignment in question. It is wrong to suggest that the air shipment in question was booked on routine terms and not on special terms as applicable in the case of booking with must fly rates. It is wrong to suggest that as per the standard business practice of the international freight forwarding agency, the liability/ responsibility of the forwarding agency is limited to booking space with the carrier and a follow up with the carrier that the cargo reaches the CS No. 63/11 Page No. 16/ 30 destination within a reasonable time. It is wrong to suggest that in the standard business practice if must fly rate are not opted for, there is no guarantee of the goods fly as per booking. It is correct that in the contract made between the parties it has not been specifically mentioned that time is the essence of the contract.
Vol. It was an oral understanding between the parties. It is correct that the plaintiff while booking the consignment in question with the carrier had instructed the carrier that consignment in question was to be transported in one lot. It is wrong to suggest that the forwarding agency after booking of the consignment and handing over the consignment to the carrier has no control over the consignment till the time which reaches the destination and the delivery thereof is given to the representative of the forwarding agency by the carrier. Vol. It is CS No. 63/11 Page No. 17/ 30 responsibility of the carrier. It is wrong to suggest that the splitting of consignment in question was an act done by the carrier on his own and that the plaintiff was not responsible for the same in any manner..."
"...It is wrong to suggest that plaintiff never made any such representation or commitment as alleged in para 9 of my affidavit..."
"...It is wrong to suggest that our allegation in the affidavit regarding the alleged deficiency in service on the part of the plaintiff or the alleged acceptance on the part of the plaintiff to bear or absorb the demurrage charges or regarding the plaintiff turned dishonest are false, fabricated and concocted. It is wrong to suggest that there was no inordinate delay in the delivery of consignment or that the plaintiff was not liable to bear or absorb any charges at their end. It is wrong to suggest that the factual matrix given by the CS No. 63/11 Page No. 18/ 30 plaintiff is complete and correct. It is wrong to suggest that my statement in para 6 of my affidavit is irrelevant in the context of the present case. It is correct that the plaintiff was not a party to the contracts made by us with out clients. I cannot say if no document has been placed on record showing that the time was essence of contract between the defendant and its clients. It is wrong to suggest that the plaintiff company duly booked the consigned with carrier for air transportation with proper dispatch instructions or that plaintiff has no role in splitting of consignment in question. It is incorrect to suggest that the plaintiff discharged all its contractual obligation properly and there was no delay on its part in arranging clearance and delivery of consignment. It is wrong to suggest that there is not breach of contract on the part of the plaintiff and the allegations made in para 9 of my affidavit CS No. 63/11 Page No. 19/ 30 are false and baseless. It is wrong to suggest that the amount of Rs. 1,65,000/- claimed by the plaintiff by way of reimbursement of demurrage charges is as per standard business practice and contract between the parties. It is wrong to suggest that the delay in air transportation, clearance and delivery of consignment has not been caused due to any reasons attributable to the plaintiff or that the plaintiff is not liable to bear demurrage charges etc. in this behalf. It is correct that the defendant has not filed any counter claim in the present case with regard to the losses mentioned in para no. 10 & 11 of my affidavit. It is wrong to suggest that Bill Exhibit DW-1/H is not a genuine bill or the same is procured one or that defendant has not made any payment against the same. It is wrong to suggest that there was no mutual settlement arrived between the parties to the effect that the defendant CS No. 63/11 Page No. 20/ 30 was required to pay only Rs. 2,00,000/- and Rs. 1,79,562.94 p. as alleged in my affidavit Exhibit DW-1/1. It is wrong to suggest that the defendant has not suffered any loss for any reason attributable to the plaintiff. It is wrong to suggest that the bills raised by the plaintiff company are correct and as per contract made between the parties. I cannot say if any payment was made by the defendant to the plaintiff after the defendant sent reply dated 04.02.2008 Exhibit PW-1/19 to the plaintiff. Vol. It is matter of record. It is wrong to suggest that the allegations contained in reply Exhibit PW-1/19 were false, baseless or motivated in order to deny the legitimate dues of the plaintiff. It is wrong to suggest that the suit of the plaintiff is correct. It is wrong to suggest that I am deposing falsely."
Thereafter DE was closed.
26.Arguments heard. Considered. Record perused carefully. My CS No. 63/11 Page No. 21/ 30 issuewise finding is as under:
ISSUE NO. 1Whether the plaintiff is entitled to a decree for recovery of money? If so, how much?
27.The case of the plaintiff is that at the request of the defendant, plaintiff company send to the defendant its freight proposal vide letter dated 24.11.2006 quoting therein the rates of freight charges from London to Delhi. Letter dated 24.11.2006 is Exhibit PW-1/7. Further, the plaintiff company at the request of defendant sanctioned credit period of 20 days in favour of defendant on 04.08.2005 and the application for sanctioning of credit limit of 20 days is Exhibit PW-1/8.
28.It is argued that plaintiff company has arranged the dispatch forwarding and delivery of consignment containing goods of the defendant from London to Delhi and the same was delivered to the defendant at New Delhi address on 12.12.2006. A copy of airway bill is Exhibit PW-1/9 and custom clearance dated 12.12.2006 is Exhibit PW-1/10. Copy of delivery of goods/ acknowledgment is Exhibit PW-1/11.
29.It is argued by counsel for plaintiff that although there was delay in the delivery but the same cannot be attributed to the plaintiff as at the time of entering into the contract with the defendant it was CS No. 63/11 Page No. 22/ 30 duly and clearly brought to the notice of the defendant that the process of forwarding consignment involves different agencies and plaintiff is not to be held liable for any delay in delivery if it is not directly attributable to the plaintiff.
30.It is further argued that as per standard business practice that the normal rates were quoted for international freight forwarding and accordingly the forwarding agency is not responsible for loading freight in the carriers and the responsibility of the forwarding agent is limited only for booking of the space with the carrier in good faith and it is for the carrier to ensure that the cargo reaches to the destination within reasonable time.
31.It is further argued by counsel for plaintiff that in the standard business practice if booking is done generally and not on the must fly rates than booking is not a guarantee that the cargo would take the goods for specific dates only. It is argued that in the case in hand, the consignment was booked with the carrier for airshipment on routine terms only and not on the special terms with must fly rates. It is argued that plaintiff had booked the consignment on 29.11.2006 from London and the same arrived at New Delhi between 01.12.2006 to 04.12.2006 and without any further delay plaintiff arranged for custom clearance and the entire consignment was delivered to the defendant on 12.12.2006.
CS No. 63/11 Page No. 23/ 3032.It is argued that in arranging these things plaintiff had paid an amount of Rs. 1,65,000/- to Airport Authorities towards charges for the goods and an amount of Rs. 21,769/- towards freight and other charges along with a charge of Rs. 5,35,722/-. Certified copy of these invoices are Exhibit PW-1/12, Exhibit PW-1/13 & Exhibit PW-1/14 respectively. It is argued by counsel for plaintiff that although credit limit of 20 days was sanctioned to the defendant but even after expiry of 20 days defendant not paid any heed to clear the charges of the plaintiff and after repeated requests and demand the defendant released a sum of Rs. 2,00,000/- vide cheque and thereafter another sum of Rs. 1,79,562/- in favour of the plaintiff.
33.It is argued that thereafter defendant did not pay any heed and a balance of Rs. 3,42,928/- is still to be paid by the defendant. Ld. Counsel for plaintiff had taken me to the document Exhibit PW-1/7 dated 24.11.2006 and submits that defendant opted for ordinary transport and not on "must fly rates" and further submits that at the time of sending Exhibit PW-1/7 it was made clear that plaintiff shall not be responsible for any delay caused or for any other consequences for variation in conditions of cargo etc.
34.Ld. counsel for plaintiff has taken me to the copy of rules and regulations of IATA conditions of carriers for cargo downloaded from the internet and is exhibited as Exhibit PW-2/3. Counsel has CS No. 63/11 Page No. 24/ 30 taken me to rule 6.3.3 and submits that carrier reserves the right without notice, to cancel, terminate, divert, postpone, delay or advance any flight etc. etc. and further submits that delay in the consignment cannot be attributed to the plaintiff and accordingly plaintiff is entitled for recovery of an amount of Rs. 3,42,928/- along with interest.
35.However, on the other hand it is argued by counsel for defendant that plaintiff failed to send the goods of the defendant in consolidation and the same was booked in consolidation form. Ld. Counsel for defendant submits that as per agreement with the plaintiff the entire lot is to be shipped together and accordingly same was booked in consolidated form. Ld. Counsel for defendant has shown me document Exhibit DW-1/B wherein it is mentioned in the column of nature and quantity of goods -
"consolidation as per attached manifest" and argued that in the case in hand the entire shipment was booked in consolidation however the same was delivered on 4 (four) lots from 01.12.2006 to 04.12.2006 and was delivered to the defendant after custom clearance only on 12.12.2006.
36.It is further argued by counsel for defendant that if the shipment is to be booked in consolidation than the entire shipment is to be delivered in one lot only and there would have been no requirement to bear the airport charges of Rs. 1,65,000/- and these CS No. 63/11 Page No. 25/ 30 charges of Rs. 1,65,000/- are paid only because of negligence of the plaintiff in not booking the shipment in one lot.
37.It is further argued by counsel for defendant that goods were not delivered to the defendant on time as mentioned by the plaintiff that goods to be delivered approximately within 3 (three) days from the date of shipment. It is argued that the consignment was booked on 29.11.2006 but was delivered to the defendant on 12.12.2006 and because of this delay defendant is to offer heavy discount to its customers as on account of non delivery on time they were about to cancel the entire order and thus because of the inactivity and fault on the part of plaintiff, defendant has suffered huge losses of approximately Rs. 5,00,000/-.
38.It is further argued by counsel for defendant that even thereafter the present matter was resolved by the representatives of defendant company as well as plaintiff company and after resolving this issue, a debit note dated 03.03.2007 amount of Rs. 1,54,924/- was paid to the plaintiff and further argues that at this stage plaintiff is restrained from claiming further amount from the defendant.
39.Heard. Considered. Record perused carefully. I have gone through the documents filed on behalf of both the parties. I have gone through the document Exhibit PW-1/7 (the IATA CS No. 63/11 Page No. 26/ 30 conditions), document Exhibit DW-1/B. There is no dispute that a consignment was booked for shipment of the goods of the defendant through plaintiff and the same was shipped from 29.11.2006 and was delivered to the defendant on 12.12.2006. The main issue involves in this case is that the shipment got delayed and the goods reached from Lodon to Delhi in 4 (four) parts i.e. on 01.12.2006, 02.12.2006, 03.12.2006 & 04.12.2006, a custom clearance was arranged by the plaintiff and finally defendant received the goods on 12.12.2006. As per the case of the plaintiff this delay cannot be attributed to the plaintiff as defendant has not booked the consignment for "must fly rates".
40.On the other hand, it is argued by counsel for defendant that once the consignment was booked in consolidation form then it is on the part of the plaintiff who should bear for airport charges for delivery in goods in part. Apart from Exhibit PW-1/7 there is no other formal agreement or contract between the parties. Although it is argued by counsel for defendant that time was essence of the contract but no document has been placed on record by the defendant.
41.I have gone through Exhibit PW-1/7 as well as Exhibit DW-1/B wherein on the right side it is specifically written:
"It is agreed that the goods described herein are accepted in apparent good order and conditi-- CS No. 63/11 Page No. 27/ 30 (except as noted) for carriage SUBJECT TO THE CONDITIONS OF CONTRACT ON TH--
REVERSE HEREOF. ALL GOODS MAY BE CARRIED BY ANY OTHER MEANS INCLUDIN-- ROAD OR ANY OTHER CARRIER UNLESS SPECIFIC CONTRARY INSTRUCTIONS AR-- GIVEN HEREON BY THE SHIPPER, AND SHIPPER AGREES THAT THE SHIPMENT MAY B-- CARRIED VIA INTERMEDIATE STOPPING PLACES WHICH THE CARRIER DEEM--
APPROPRIATE THE SHIPPER'S ATTENTION IS DRAWN TO THE NOTICE CONCERNIN--
CARRIER'S LIMITATION OF LIABILITY. Shipper may increase such limitation of liability t-- declaring a higher value for carriage and paying a supplemental charge if required."
42.I have gone through IATA conditions the same are relied upon by this court because even the same find mentioned in Exhibit PW-1/7 which is duly admitted by defendant himself.
43.As per clause 6.3.1 and clause 6.3.3 in article 6 which is reproduced as under:
6.3.1 "...No time is fixed for commencement of completion CS No. 63/11 Page No. 28/ 30 of carriage or delivery of cargo. Unless specifically agreed otherwise and so indicated in the air waybill or shipment record..."
...Carrier is not responsible for errors or omissions either in timetables or other representations of schedules..."
6.3.3 "Carrier reserves the right without notice, to cancel, terminate, divert, postpone, delay or advance any flight, or the further carriage of any cargo, or to proceed with any flight without all or any part of the cargo, if it considers that it would be advisable to do so because of any fact beyond its control or not reasonably to be foreseen, anticipated, or predicted at the time the cargo was accepted; or if it considers that any other circumstances so require."
44.It is admitted case by both the parties that defendant has not opted for "must fly rates". It is also admitted point that plaintiff has booked the entire consignment on 29.11.2006. After going through these documents, I am of this considered opinion that although there is a delay in the shipment and defendant has received goods on 12.12.2006 but in the absence of any specific written contract between the parties, I am unable to appreciate that time was essence of the contract.
CS No. 63/11 Page No. 29/ 3045.Further arguments of counsel for defendant that after delivery of goods, matter was amicably resolved by both the parties and debit note was issued accordingly by the defendant but no evidence has been led by defendant to this effect. Admittedly defendant has not filed any claim for damages as well as any counter claim in this case.
46.Accordingly, I am of this opinion that delay in shipment cannot be attributed to the plaintiff and plaintiff is entitled for airport charges of Rs. 1,65,000/- as well as other charges as claimed by the plaintiff amounting to Rs. 3,42,928/- along with interest @ 8% p.a. from the date of institution of the suit till its realisation. Decree sheet be drawn up accordingly.
47.File be consigned to Record Room after necessary compliance. Announced in the open Court.
(NEELAM SINGH) ADJ-02, SOUTH, SAKET, NEW DELHI 27.05.2013/MC CS No. 63/11 Page No. 30/ 30 M/s. Geodis Overseas Pvt. Ltd. vs. M/s. R.K. International Pvt. Ltd.
CS No. 63/11
27.05.2013
Present : Counsel for the plaintiff
Counsel for defendant
Vide my separate judgment, suit of the plaintiff is decreed in favour of plaintiff and against the defendant. No order as to cost. Decree sheet be drawn up accordingly. File be consigned to record room after necessary compliance.
(NEELAM SINGH) ADJ-02, SOUTH, SAKET, NEW DELHI 27.05.2013/ MC CS No. 63/11 Page No. 31/ 30