Delhi District Court
Federal Express Corporation (Fedex) vs M/S V.C. Overseas Pvt. Ltd. *Hyb* on 15 December, 2016
IN THE COURT OF SHRI RAJ KUMAR: ADDL. DISTRICT
JUDGE09: TIS HAZARI COURTS : DELHI
Suit No. 15134/16 (Old Suit No.280/14)
Federal Express Corporation (FedEx),
a Body Corporate constituted under the
law prevailing in Delaware, USA having
office at Universal Trade Tower, 7th Floor,
Sector 49, Sohna Gurgaon Road,
Gurgaon, Haryana. ........... Plaintiff.
VERSUS
M/s V.C. Overseas Pvt. Ltd. *HYB*
having its office at
4/20, East Patel Nagar,
new Delhi110008.
Through its Proprietor
Mr. Punnet Chhabra. ......... Defendant.
Date of institution of the suit : 12.07.2011
Date on which order was reserved : 30.11.2016
Date of decision : 15.12.2016
SUIT FOR RECOVERY OF Rs. 15,31,462.80/ ALONGWITH
INTEREST @ 24% PER ANNUM
JUDGMENT
1.1 The facts in brief, necessary for the disposal of the present suit filed by the plaintiff as disclosed in the plaint, are that the plaintiff namely Federal Express Corporation is a Body Corporate constituted Suit No. 615134/16 (Old Suit No. 280/14) Page No. 1/30 under the law prevailing in Delaware, USA having branch office at Chemtex House, Chemtex Business Center, Hiranandani Garden Main Street, Powai, Mumbai and a local office at Universal Trade Tower, 7 th Floor, Sector49, Sohna Gurgaon, Roads, Gurgaon.
1.2 It has been further stated that the plaintiff is engaged in the business of airfreight and shipment of Cargo to the various destinations outside India. It has been further stated that Sh. Vikram Mehta, Authorized Signatory of the plaintiff is duly authorized to sign, verify and file the present suit on behalf of the plaintiff by virtue of the Special Power of Attorney dated 13.05.2009 executed in his favour. 1.3 It has been further stated that the defendant is a Private Limited Company. It has been further stated that earlier, the defendant was carrying on the business under the name and style of M/s V.C. Exports having its office at 4/20, East Patel Nagar, New Delhi, but, subsequently, the name of the defendant was changed to M/s V.C. Overseas Pvt. Ltd. *HYB* having its office at 30/27, East Patel Nagar, New Delhi.
1.4 It has been further stated that the defendant deals in the export and import of the materials of different kind and has the certificate of Importer - Exporter Code ("IEC") which was issued to the defendant by the Ministry of Commerce having IEC number as 0507054482. It has been further stated that the defendant, through its Managing Director Mr. Puneet Chhabra approached the plaintiff for air shipment of materials to be exported to destinations outside India by the plaintiff company under the instructions and on behalf of the defendant.
1.5 It has been further stated that the defendant also executed a Suit No. 615134/16 (Old Suit No. 280/14) Page No. 2/30 FedEx Service Contract (hereinafter called as the "Contract") in favour of the plaintiff on 15.03.2004. It has been further stated that the terms and conditions of the abovesaid contract were duly understood and accepted by the defendant. It has been further stated that as per the practice and procedure, a Customer No. 289790128 was also allotted to the defendant for the said assignment.
1.6 It has been further stated that in pursuance to the execution of the said FSC by the defendant, the plaintiff agreed to provide the shipment services to defendant for its various destinations outside India. It has been further stated that in accordance with the Clause (a) and (b) of the contract, the defendant had agreed to be bound by all the terms mentioned in the aforesaid contract. It has been further stated that the defendant had also agreed that each FedEx International Air Waybill shall be a separate and independent contract in between the plaintiff and the defendant.
1.7 It has been further stated that as per the Clause (c) and (r) of the contract, the rates were to be as per the tariff chart attached with the contract and in accordance with the Clause (j) of the FSC, the defendant was liable to pay the invoice amount in full within the 15 days of the date of the invoice failing which the defendant was liable to pay the interest @ 2% per annum on the invoice amount from the due date.
1.8 It has been further stated that based on the representations of the defendant, the plaintiff started delivering the shipments to the destinations given by the defendant. It has been further stated by the plaintiff that under the contract, the plaintiff delivered the shipments of the defendant, which have been mentioned in detail in para no. 10 of the Suit No. 615134/16 (Old Suit No. 280/14) Page No. 3/30 plaint.
1.9 It has been further stated that the plaintiff on completing the assignment as aforesaid raised various invoices upon the defendant for the total amount of Rs. 14,69,831/ in conformity with the terms and conditions of the aforesaid contract. The details of the invoices have been given by the plaintiff in para no. 11 of the plaint as invoice no. 964811148 dated 03.03.2011 for an amount of Rs. 1,37,0004/, invoice no. 964805849 dated 18.11.2009 for an amount of Rs. 54,773/, invoice no. 556028717 dated 15.02.2011 for an amount of Rs. 483/, invoice no. 556028668 dated 14.02.2011 for an amount of Rs. 450/, invoice no. 556027825 dated 02.02.2011 for an amount of Rs. 818/, invoice no. 556027588 dated 31.01.2011 for an amount of Rs. 92/, invoice no.556026600 dated 25.01.2011 for an amount of Rs. 75/, invoice no. 556026543 dated 24.01.2011 for an amount of Rs. 75/, invoice no. 556026027 dated 14.01.2011 for an amount of Rs. 279/, invoice no. 556025946 dated 13.01.2011 for an amount of Rs. 212/, invoice no. 556025657 dated 12.01.2011 for an amount of Rs. 142/, invoice no. 556025588 dated 11.01.2011 for an amount of Rs. 178/, invoice no. 556025571 dated 10.01.2011 for an amount of Rs. 481/, invoice no. 556024462 dated 28.12.2010 for an amount of Rs. 41/, invoice no. 556024121 dated 27.12.2010 for an amount of Rs. 385/, invoice no. 556024076 dated 24.12.2010 for an amount of Rs. 172/, invoice no. 556023729 dated 21.12.2010 for an amount of Rs. 443/, invoice no.556023673 dated 20.12.2010 for an amount of Rs. 377/, invoice no.556023619 dated 17.12.2010 for an amount of Rs. 410/, invoice no.556023159 dated 14.12.2010 for an amount of Rs. 468/, invoice Suit No. 615134/16 (Old Suit No. 280/14) Page No. 4/30 no.556023095 dated 13.12.2010 for an amount of Rs. 706/ and the invoice no.556022596 dated 07.12.2010 for an amount of Rs. 899/, thus, totaling to Rs. 14,69,831/.
1.10 The plaintiff has alleged that even after the due receipt of the invoices and even after the expiry of the due dates of the payment, the defendant failed to make the payment. It has been further stated that the plaintiff, ultimately, sent a legal demand notice dated 31.03.2011 calling upon the defendant to pay the amount of Rs. 14,69,831/, but, despite the service of the said notice, the defendant failed to make the payment. 1.11 It has been further stated that in accordance with the terms and conditions of the contract dated 15.03.2004, the defendant is liable to pay the amount of Rs. 14,69,831/ towards the principal amount and the amount of Rs. 61,631.80/ on account of the interest calculated @ 2% per month from the due dates of the invoices, thus, totaling to Rs. 15,31,462.80/ and hence, the present suit.
1.12 On the basis of the abovesaid allegations as contained in the plaint, the plaintiff has prayed for a decree for the amount of Rs. 15,31,462.80/ alongwith the pendentelite and future interest @ 24% per annum from the date of the filing of the suit till the date of the realization of the decreetal amount alongwith the costs of the suit. 2.1 Written statement has been filed on record by the defendant stating therein that Sh. Puneet Chhabra, Director of the defendant company by virtue of the Board Resolution dated 10.12.2011 is authorized to file the written statement on behalf of the defendant. In the preliminary objections of the written statement, the defendant has taken the stand that the present suit is without any cause of action and the same Suit No. 615134/16 (Old Suit No. 280/14) Page No. 5/30 has been filed only with a view to extort illegal money from the defendant. It has been further stated that the plaintiff is guilty of suppressing the material facts and that the plaintiff has no locusstandi to file the present suit.
2.2 It has been further stated that the plaintiff is stated to be a body corporate constituted under the law prevailing in Delaware, USA, but, no document being the certificate of Incorporation, or the certificate of registration or the certificate of commencement qua the said entity has been placed on record and as such, the present suit is not maintainable. It has been further stated that the present suit is in violation of Section 592 to Section 602 of the Companies Act, 1956.
2.3 It has been further stated that the plaintiff has annexed certain invoices which the plaintiff issued in the name of M/s FedEx Express Services (India) Pvt. Ltd., but, the said company is not a party in the present suit and as such, the suit of the plaintiff is not maintainable. It has been further stated that FedEx Service Contract dated 15.03.2004 is neither stamped nor registered as per the relevant provisions of the law and as such, the said document is liable to be impounded. 2.4 It has been further stated that there is no privity of contract in between the plaintiff and the present defendant. It has been further stated that the abovesaid contract dated 15.03.2004 has been executed in between Federal Express Corporation and M/s V.C. Exports, which is a proprietorship concern. It has been further stated that the defendant M/s V.C. Overseas Pvt. Ltd. is a company incorporated under the Companies Act, 1956 vide Incorporation Certificate dated 07.08.2007 and is a separate legal entity altogether, separate from M/s V.C. Exports.
Suit No. 615134/16 (Old Suit No. 280/14) Page No. 6/302.5 It has been further stated that M/s V.C. Exports continues to exist and operate and as such, the present suit is not maintainable. It has been further stated that this Court does not have any territorial jurisdiction to entertain and try the present suit because in the aforesaid contract, there is clause q, which provides that all the disputes shall be subject to the jurisdiction of Mumbai Courts only. It has been further stated that the material was supplied to M/s Shere Accessories Ltd., but, M/s Shere Accessories has not been added as a party in the present suit by the plaintiff and as such, the suit of the plaintiff is bad for nonjoinder of M/s Shere Accessories Ltd.
2.6 It has been further stated that the plaintiff, in fact, had raised the invoices on M/s Shere Accessories Ltd. since the beginning and all the payments were received by the plaintiff company from the said M/s Shere Accessories Ltd. It has been further stated that subsequently, the said company went into liquidation and M/s FedEx Europe is reflected in the List of Creditors for the payments and it seems that the payment, which is demanded by the plaintiff from the defendant is included in the said claim.
2.7 It has been further stated that the plaintiff has no right whatsoever to raise a second and duplicate demand from the defendant. It has been further stated that in fact, the invoices raised by the plaintiff have not been refused at all by M/s Shere Accessories Ltd. It has been further stated that the suit has not been signed, verified and instituted by a duly authorized person on behalf of the plaintiff. It has been further stated that there is no Board Resolution by which any such authority has been conferred by the plaintiff company upon Sh. Vikram Mehta.
Suit No. 615134/16 (Old Suit No. 280/14) Page No. 7/302.8 It has been further stated that the plaintiff has annexed one invoice for a sum of Rs. 13,70,004/, which itself shows the malafide intention of the plaintiff.
2.9 On merits as well, the abovesaid preliminary objections have been reiterated again by the defendant. However, on merits, the defendant has admitted that it deals in export and import of the materials of different kind and has the certificate of Importer Exporter Code (IEC) issued by the Ministry of Commerce having IEC number as 0507054482. The defendant has denied the execution of any FedEx Service Contract with the plaintiff. The defendant has denied any liability on its part to pay the amount as claimed for by the plaintiff in the present suit to the plaintiff. The defendant has denied the receipt of the legal notice dated 31.03.2011. Rest of the contents of the plaint have been denied and it has been prayed that the suit of the plaintiff be dismissed with compensatory costs.
3.1 Replication has been filed on record by the plaintiff reiterating and reaffirming the stand as taken by the plaintiff in the plaint and denying the contents of the written statement filed by the defendant. 3.2 In the replication, the plaintiff has reiterated that in the plaint itself, the plaintiff has disclosed that it has a branch office at Mumbai and one of its local office is in Gurgaon. The plaintiff has reiterated that FexEx Service Contract dated 15.03.2004 was executed in between the plaintiff and the defendant at Delhi. It has been further stated that the Reserve Bank of India vide its letter dated 05.09.2005 has been pleased to grant permission to the plaintiff under Regulations 5 of the Notification no. FEMA 22/2000 RB dated 03.05.2000 to open additional Suit No. 615134/16 (Old Suit No. 280/14) Page No. 8/30 offices at Gurgaon and other places.
3.3 It has been further stated that for the purposes of making the payment, M/s V.C. Exports was allotted a FedEx International Account bearing no. 289790128. It has been further stated that the defendant had expressed its desire to avail the domestic express delivery services from the service participants of the plaintiff and Prakash Air Freight Pvt. Ltd. (now known as Federal Express (India) Pvt. Ltd.). It has been further stated that at this juncture, the defendant was given an option either to create a New FexEx India Domestic Account Number or to continue using the existing FedEx International Account Number. 3.4 It has been further stated that the defendant opted to continue to use the FedEx International Account bearing no. 28979012
8. It has been further stated that thereafter, the defendant was contractually bound to make the payments to the plaintiff against the invoices for both international as well as domestic services. It has been further stated that vide email dated 13.04.2009, one Mr. Hardeep Bhatia, an official of the defendant company had requested the plaintiff to change the company's name from M/s V.C. Exports to M/s V.C. Overseas Pvt. Ltd. against the FedEx Account no. 289790128. 3.5 It has been further stated that the defendant is carrying on its business/ works for gain at Delhi, the payments were to be made by the defendant to the plaintiff at Delhi and the entire cause of action had arisen at Delhi and therefore, the Delhi Courts have the jurisdiction to entertain and try the present suit. It has been denied by the plaintiff that it has raised invoices on M/s Shere Accessories Pvt. Ltd. for the transportation of the shipment given by the defendant company.
Suit No. 615134/16 (Old Suit No. 280/14) Page No. 9/303.6 It has been further stated that the alleged list of creditors show M/s FedEx Europe to be one of the creditor of M/s Shere Accessories Ltd. and not the plaintiff. It has been further stated that Mr. Taarek Hinedi is the Managing Director, India Operations of the company and authorized to appoint Mr. Vikram Mehta vide Special Power of Attorney dated 13.05.2009 as the company's true and lawful attorney. It has been further stated that Mr. Taarek Hinedi was duly appointed as Managing Director vide Power of Attorney dated 20.04.2009 by Mr. Robert W. Elliott, Authorized Representative of the plaintiff company.
4. From the pleadings of the parties, the following issues were framed by my Ld. Predecessor vide orders dated 02.07.2012 :
1) Whether this court has no territorial jurisdiction to entertain the present suit?OPD.
2) Whether the suit of the plaintiff is bad for nonjoinder of necessary party i.e. M/s Shere Accessories Ltd.?OPD.
3) Whether the plaintiff has no cause of action against the defendant as prayed?OPD.
4) Whether plaintiff made the shipment according to the agreement and entitled to recovery of principal amount Rs. 14,69,831/ with 2% interest p.m. total Rs.
15,31,462.80/?OPP
5) Whether the plaintiff is entitled to the pendentelite and future interest, if any, from which date and upto which date?OPP Suit No. 615134/16 (Old Suit No. 280/14) Page No. 10/30
6) Whether the suit has not been filed and instituted properly?OPD
7) Relief.
EVIDENCE :
5.1 The plaintiff has examined its Authorized Representative Sh. Vikram Mehta as PW1 and in his evidence by way of affidavit Ex. PW1/A on record, he has reiterated and reaffirmed the stand as taken by the plaintiff in the plaint. He has filed on record the photocopy of the Special Power of Attorney dated 13.05.2009 as Ex. PW1/1, copy of the FedEx Service Contract dated 15.03.2004 as Ex. PW1/2, various invoices collectively exhibited as Ex. PW1/3, customer details as Ex. PW1/4, copy of the legal notice dated 31.05.2011 as Ex. PW1/5, postal receipt thereof as Ex. PW1/6, courier receipt thereof as Ex. PW1/7, copy of the email sent by Sh. Hardeep Bhatia, employee of the plaintiff as Ex. PW1/8, copies of various airways bills as Ex. PW1/9, certificate U/s 65B of the Indian Evidence Act as Ex. PW1/10, photocopy of the Power of Attorney dated 20.04.2009 in favour of Mr. Taarek Hinedi executed by Mr. Robert W. Elliott as Mark A, photocopy of the certificate of Incorporation as Mark B, photocopy of the certificate of shipment of place of business in India as Mark C, photocopy of the letter dated 05.09.2005 issued by the Reserve Bank of India as Mark D, copy of the Letter Agreement for FexEx India Domestic Express Delivery Services executed by V.C. Overseas Pvt. Ltd. as Mark F, photocopy of the letter dated 10.08.2010 with regard to the change of the name of the company, whereby, the Suit No. 615134/16 (Old Suit No. 280/14) Page No. 11/30 name of Prakash Air Freight Pvt. Ltd. has been changed to FedEx Express Services (India) Pvt. Ltd. as Mark G, photocopy of the Fresh Certificate of Incorporation Consequent upon Change of Name issued by the Government of India - Ministry of Corporate Affairs as Mark H, photocopy of the Certificate of Incorporation of Federal Express (India) Pvt. Ltd. as Mark I, photocopy of PAN of FedEx Express Services (India) Pvt. Ltd. as Mark J.
5.2 In the crossexamination, PW1 has denied the suggestion that the Special Power of Attorney dated 13.05.2009 Ex. PW1/1 was not a proper Power of Attorney as Mr. Taarek Hinedi was not authorized to execute the Special Power of Attorney dated 13.05.2009 Ex. PW1/1 on record. PW1 has further stated that Sh. Taarek Hinedi was authorized by Mr. Robert W. Elliott vide document dated 20.04.2009 and the same has been marked as Mark A. PW1 has further stated that M/s Prakash Air Freight was purchased by the plaintiff in the year 2007 and M/s Prakash Air Freight does not exist any more. PW1 has further stated that the amount of Rs. 13,70,004/ as mentioned by the plaintiff in para no. 11 of the plaint pertains to one invoice, whereby, four shipments of the defendant were delivered to M/s Shere Accessories. 5.3 PW1 has admitted it to be correct that there were four different orders pertaining to the amount of Rs. 13,70,000/ placed by the defendant and there were four different Air Ways bills, but, the said four Air Ways Bills have been mentioned in one invoice Ex. PW1/9 on record by the plaintiff. PW1 has admitted it to be correct that all the four Air Ways Bills contains a clause to the effect that the payment was to be received from the recipient i.e. M/s Shere Accessories Pvt. Ltd. By way Suit No. 615134/16 (Old Suit No. 280/14) Page No. 12/30 of volunteer, PW1 has stated that the reason on account of which, the invoice could not be raised upon M/s Shere Accessories has been mentioned by the plaintiff on the invoices raised by the plaintiff upon the defendant and the reason is that the consignee/ recipient was in liquidation.
5.4 PW1 has further stated that he does not know as to whether the plaintiff has received the payments from M/s Shere Accessories Pvt. Ltd. pertaining to all other earlier shipments prior to institution of the present suit. PW1 has denied the suggestion that the plaintiff was in the knowledge that M/s Shere Accessories Pvt. Ltd. was in liquidation and despite the same, the plaintiff provided the shipments services to the defendant and handed over the goods to M/s Shere Accessories Pvt. Ltd. PW1 has further stated that he does not remember as to whether M/s FedEx Europe has filed a claim against M/s Shere Accessories Pvt. Ltd., which is in liquidation. PW1 has further stated that he cannot admit or deny the suggestion as to whether M/s FedEx Europe is a part and parcel of the plaintiff company.
5.5 PW1 has denied the suggestion that Sh. Taarek Hinedi is not the Director of the plaintiff company. PW1 has further stated that he cannot produce the accounts pertaining to the payments received by the plaintiff from M/s Shere Accessories.
5.6 During the crossexamination of PW1, 49 pages of emails of the plaintiff company were exhibited as Ex. PW1/D1. PW1 has further stated that the refusal on the part of M/s Shere Accessories Pvt. Ltd. has been mentioned on the invoices of the plaintiff, which are already there on record. PW1 has further stated that the plaintiff Suit No. 615134/16 (Old Suit No. 280/14) Page No. 13/30 company dealt with the defendant company from 2004 to 2011. PW1 has admitted it to be correct that the address of the defendant company has not been depicted on Ex. PW1/7.
6.1 The defendant has examined its Director Sh. Puneet Chhabra as DW1 and in his evidence by way of affidavit Ex. DW1/A on record, he has reiterated and reaffirmed the stand as taken by the defendant in the written statement. This witness has filed on record the Board Resolution dated 10.12.2011 as Ex. DW1/1, copy of the Certificate of Incorporation as Mark A, Income Tax Return of Sh. Puneet Chhabra as Ex. DW1/3, Income Tax Return of the defendant no. 1 as Ex. DW1/4, copy of the liquidation document of M/s Shere Accessories Pvt. Ltd. as Mark B(colly)(39 pages), certificate U/s 65B of the Indian Evidence Act as Ex. DW1/6.
6.2 In the crossexamination, DW1 has stated that in September 2007 (approximately), the defendant company was incorporated. DW1 has further stated that he is the Director in the said company. DW1 has further stated that before being the Director in the defendant company, he was doing the export business as a proprietor of V.C. Exports Inc. DW1 has admitted it to be correct that he has dealt with the plaintiff company as a proprietor of V.C. Exports Inc. prior to 2007. DW1 has further stated that he does not remember when he started dealing with the plaintiff company. DW1 has further stated that he does not remember whether any contract/ agreement was entered in between the plaintiff company and V.C. Exports Inc. DW1 has further stated that he does not have any personal knowledge as to what he has stated in paras no. 3 and 4 of his affidavit Ex. DW1/A. Suit No. 615134/16 (Old Suit No. 280/14) Page No. 14/30 6.3 DW1 has further stated that the para no. 5 of his affidavit Ex. DW1/A is on the basis of his understanding earlier paras no. 3 and 4 of his affidavit. DW1 has admitted it to be correct that the document Ex. PW1/2 i.e. FedEx Service Contract dated 15.03.2004 bears his signatures at point A. DW1 has further stated that he dealt with the plaintiff company as a proprietor of V.C. Exports Inc. till approximately 2008. DW1 has admitted it to be correct that the said firm V.C. Exports Inc. is still in existence and at present also, he is the proprietor of the said firm. DW1 has admitted it to be correct that the Letter of Agreement dated 02.07.2010 Mark F was entered into between the defendant company and Prakash Air Freight Pvt. Ltd.
6.4 DW1 has further stated that Mr. Kamal Merchandiser of the defendant company has signed the said letter of agreement Mark F. DW1 has further stated that the account department of the defendant company and V.C. Exports Inc. is the same. DW1 has further stated that he does not know whether the name of Prakash Air Freight Pvt. Ltd. was later on changed to FedEx Express (India) Pvt. Ltd. DW1 has further stated that he knows Mr. Hardeep Bhatia and he was working as Manager in the firm i.e. V.C. Exports Inc. DW1 has further stated that the email ID i.e. account no. [email protected] was used by his firm i.e. V.C. Exports Inc. DW1 has further stated that Sh. Hardeep Bhatia was managing the said e mail ID on behalf of his firm i.e. V.C. Exports Inc. DW1 has admitted it to be correct that the email dated 13.04.2009 Ex. PW1/8 was sent by Mr. Hardeep Bhatia from the abovesaid email ID account. 6.5 DW1 has admitted it to be correct that the plaintiff company allotted the account number to V.C. Exports Inc. at the time of signing of Suit No. 615134/16 (Old Suit No. 280/14) Page No. 15/30 the contract/ agreement dated 15.03.2004 Ex. PW1/2. DW1 has further stated that he does not remember the said account number. DW1 has further stated that he does not remember the account number allotted to the defendant company by M/s Prakash Air Freight Pvt. Ltd. dated 10.07.2010 Mark F. DW1 has admitted it to be correct that the account number of both the agreements was the same.
6.6 DW1 has admitted it to be correct, in the next cross examination done on 26.10.2016, that he has signed the contract/ agreement with the plaintiff company as a proprietor of V.C. Exports Inc. DW1 has admitted it to be correct that the account no. 289790128 mentioned in the letter agreement dated 02.07.2010 Mark F is the same as mentioned in Ex. PW1/2. DW1 has further stated that from the year 200708, both the defendant company and V.C. Exports Inc. were dealing with M/s Shere Accessories Ltd. DW1 has admitted it to be correct that all the shipments were duly delivered by the plaintiff company to the respective recipients as mentioned in the plaint.
6.7 DW1 has admitted it to be correct that he has received all the invoices raised by the plaintiff company. DW1 has further stated that the defendant company was not liable to pay with respect to the invoices raised by the plaintiff company. By way of volunteer, DW1 has stated that because, these invoices were freight collect and not freight prepaid. DW1 has further stated that the defendant company had written email to the plaintiff company stating that the defendant company is not liable to make the payments towards the invoices. By way of volunteer, DW1 has stated that the same was due to the reason that M/s Shere Accessories Ltd. was a direct client of Federal Express (plaintiff).
Suit No. 615134/16 (Old Suit No. 280/14) Page No. 16/306.8 DW1 has admitted it to be correct that the table mentioned in the affidavit Ex. PW1/A (para no. 14) bears the names of different companies in the column headed by the recipients. By way of volunteer, DW1 has stated that he has offered to the plaintiff company in respect of the payments of the local clients. DW1 has admitted it to be correct that except M/s Shere Accessories Ltd., the name of the companies shown in the column recipients in Ex. PW1/A are local clients i.e. within India. DW1 was confronted with the portion A to A of the invoice Ex. PW1/3 and DW1 has stated that he does not remember as to whether any query was raised by him within seven days from the receipt of the invoice Ex. PW1/3 on record. DW1 has admitted it to be correct that in case, the shipper refuses to pay to the plaintiff company, then, the defendant company is liable to pay the amount to the plaintiff.
7. The detailed testimonies of these witnesses shall be discussed in the later part of this judgment.
8. I have carefully gone through the entire material available on record and heard the rival submissions of Ld. counsels for both the parties.
9. My issuewise finding on the abovesaid issues is as under:
Issues No. 1 to 6 :
10. All these issues are taken up together as the same are connected interse and overlap each other. Issues no. 1, 2, 3 and 6 pertain to the objections of the defendant as contained in the written statement of Suit No. 615134/16 (Old Suit No. 280/14) Page No. 17/30 the defendant and as such, the onus to prove the abovesaid four issues has been placed upon the defendant. Whereas, issues no. 4 and 5 pertain to the prayer clause of the present suit and as such, the onus to prove the abovesaid issues has been placed upon the plaintiff.
11. The factual controversy, which is within a narrow compass in the present suit, has already been narrated hereinabove. The material aspects of the testimony of PW1 and that of DW1 as well have also been narrated hereinabove.
12. During the course of the final arguments, Ld. Counsel for the plaintiff has argued that the entire case of the plaintiff is based on the Agreement Ex. PW1/2 dated 15.03.2004, which was executed in between the plaintiff and the defendant. It has been further argued that earlier, the name of the defendant was V.C. Exports, but, the name of the defendant was, later on, changed to V.C. Overseas Pvt. Ltd. and that too, at the request of Mr. Hardeep Bhatia of the defendant. It has been further argued that from the crossexamination of DW1, it is apparently clear that the entire claim of the plaintiff has been admitted by the defendant. It has been further argued by the plaintiff that the entire cause of action has arisen at Delhi and as such, this Court has the jurisdiction to entertain and try the present suit.
13. It has been further argued by the plaintiff that from the clauses of the agreement Ex. PW1/2, it is apparently clear that in case of refusal by the consignee, the plaintiff has the right to claim the dues from the defendant. It has been further argued that in accordance with the clauses, which have been mentioned on the invoices Ex. PW1/3, no query was raised by the defendant. It has been further argued that various Suit No. 615134/16 (Old Suit No. 280/14) Page No. 18/30 Airways Bills have been placed on record by the plaintiff in the form of Ex. PW1/9 and the same have been categorically admitted by none other, but, by DW1. It has been further argued that the plaintiff has been able to prove its case.
14. Whereas, on the other hand, during the course of arguments, Ld. Counsel for the defendant has vehemently argued that the Special Power of Attorney dated 13.05.2009 is not on the letterhead of the plaintiff company. It has been further argued that Mr. Taarek Hinedi, in whose favour the Special Power of Attorney, has been executed, has failed to appear before the Court. It has been further argued that the Power of Attorney dated 20.04.2009 is neither on the letterhead of the plaintiff company nor bears the seal of the company. It has been further argued that the agreement has to be read as a whole. It has been further argued that Ex. PW1/2 in clause no. 'q' thereof specifically states that the Mumbai Courts have the jurisdiction to entertain and try the present suit.
15. It has been further argued by the defendant that the plaintiff was having the knowledge that M/s Shere Accessories was in liquidation, but, despite the same, shipments were delivered to M/s Shere Accessories. It has been further argued that moreover, the liquidation does not mean that there is a refusal on the part of M/s Shere Accessories to pay the dues of the plaintiff. It has been further argued that M/s FedEx Europe, which is a part and parcel of the plaintiff company, has filed a claim against M/s Shere Accessories in UK and M/s FedEx Europe has been shown in the List of Creditors of M/s Shere Accessories Pvt. Ltd. It has been further argued that the amount of Rs. 13,70,004/ has been mentioned only in one invoice, which is against the four shipments and Suit No. 615134/16 (Old Suit No. 280/14) Page No. 19/30 the same is sufficient in itself to show the malafide intention of the plaintiff. Ld. Counsel for the defendant has relied upon the cross examination of PW1 and has argued that the plaintiff has failed to prove its case.
16. The first submission of the Ld. Counsel for the defendant is that this Court does not have any territorial jurisdiction to entertain and try the present suit because Clause no. 'q' of Ex. PW1/2 i.e. of the FSC contract dated 15.03.2004 specifically states that the Mumbai Courts have the jurisdiction to try and entertain any dispute arising out of the said contract.
17. It has to be seen that in para no. 18 of the plaint, the plaintiff has specifically stated that the M/s FedEx Service Contract (FSC) dated 15.03.2004 Ex. PW1/3 on record was signed at Delhi. It has been specifically mentioned that the defendant is carrying on its business at Delhi and the material was given by the plaintiff at its Delhi office. It has been further stated that the payments were to be made by the defendant to the plaintiff and as such, the entire cause of action has arisen at Delhi.
18. In counter para no. 18 of the written statement and in fact, in the entire written statement, the defendant has denied any privity of contract in between the plaintiff and the defendant. The defendant has taken the stand that it is not a party to the abovesaid document. The defendant has stated, in counter para no. 18 of the written statement, that in view of the exclusion clause, as contained in the abovesaid agreement, Delhi Courts do not have any jurisdiction to try and entertain the present suit.
19. It has to be seen that in counter para no. 18 of the written Suit No. 615134/16 (Old Suit No. 280/14) Page No. 20/30 statement, the defendant has not denied that the abovesaid agreement/ contract dated 15.03.2004 Ex. PW1/2 on record was executed at Delhi in between the plaintiff and the defendant. The defendant has not denied that it is carrying on business at Delhi, the payments were to be done to the plaintiff at Delhi and the shipments were handed over by the defendant to the plaintiff at Delhi.
20. It has to be seen that the entire crossexamination of DW1 is diametrically opposite to the stand of the defendant as contained in his written statement, so far as, the privity of contract in between the plaintiff and the defendant is concerned. In the crossexamination, DW1 i.e. the defendant specifically admits that Ex. PW1/2 i.e. the contract dated 15.03.2004 bears his signatures. DW1 has further admitted that the abovesaid contract was executed in between the plaintiff and V.C. Exports Inc. DW1 has further categorically admitted that he has been dealing with the plaintiff company as a proprietor of V.C. Exports Inc. DW1 further admits that the account of the defendant and that of V.C. Exports Inc. is the same.
21. DW1 admits the email Ex. PW1/8 dated 13.04.2009, which was sent by Mr. Hardeep Bhatia, who was the Manager of V.C. Exports Inc. The said email Ex. PW1/8 categorically states that the name of the company M/s V.C. Overseas Pvt. Ltd. has been changed from V.C. Exports Inc. against the FedEx Account no. 289790128. The plaintiff, by way of the said email has been requested to do needful at the earliest. I have no hesitation to hold that the plaintiff has been able to prove, by way of cogent and reliable evidence, that the entire cause of action has arisen at Delhi and the abovesaid exclusion Clause No. 'q' of the Contract Suit No. 615134/16 (Old Suit No. 280/14) Page No. 21/30 Ex. PW1/2 is of no help to the case of the defendant. Accordingly, issue no. 1 is decided against the defendant and in favour of the plaintiff.
22. If the written statement filed by the defendant is carefully gone through, it becomes apparently clear that the entire stand of the defendant is evasive. The defendant, in the written statement, has tried to take the stand that there is no privity of contract in between the plaintiff and the defendant, but, in the crossexamination, DW1 categorically admits the execution of the contract dated 15.03.2004 Ex. PW1/2 on record. Not only this, even in his crossexamination done on 20.08.2016 and on 29.10.2016, DW1 has taken opposite stands. The first cross examination done on 20.08.2016 is evasive so far as the execution of Ex. PW1/2 is concerned and so far as the change of the name of the defendant is concerned. But, subsequently, in the next crossexamination done on 29.10.2016, the defendant has admitted the entire case of the plaintiff. DW1 admits the email Ex. PW1/8 on record, which states that the name of the defendant has been changed to V.C. Overseas Pvt. Ltd from V.C. Exports Inc. The said email specifically states and asks the plaintiff to do the needful.
23. DW1 admits that Mr. Hardeep Bhatia was the Manager of V.C. Exports Inc. DW1 admits the entire dealings in between the plaintiff and the defendant. DW1 admits that all the shipments were duly delivered by the plaintiff company to the respective recipients as mentioned in the plaint. DW1 admits it to be correct that he had received all the invoices raised by the plaintiff company.
24. As such, I have no hesitation to hold that Ex. PW1/3(colly), which are the invoices placed on record by the plaintiff have not only Suit No. 615134/16 (Old Suit No. 280/14) Page No. 22/30 been proved by PW1, but, the same are categorically proved by the unequivocal admission of DW1 as contained in his crossexamination. Similarly, to my mind, the plaintiff has been able to prove various Airways bills, which have been collectively placed on record in the form of Ex. PW1/9. Needless to mention that the amount of the invoices Ex. PW1/3 has not been paid by the defendant to the plaintiff.
25. The main crux of the controversy is in respect of the invoices for the amount of Rs. 13,70,004/, which is a part and parcel of Ex. PW1/3 and admittedly, as per the crossexamination of PW1, the said invoice is in respect of four shipments. The said invoice pertains to the goods, which were delivered to M/s Shere Accessories Pvt. Ltd. Admittedly, M/s Shere Accessories Pvt. Ltd. is in liquidation.
26. Ld. Counsel for the defendant has vehemently argued that the plaintiff was having the knowledge that M/s Shere Accessories Pvt. Ltd. was in liquidation and despite the same, the plaintiff delivered the goods to M/s Shere Accessories Pvt. Ltd. It has been further argued that there is no clearcut refusal on the part of M/s Shere Accessories Pvt. Ltd. It has been further argued that M/s FedEx Europe, which is a part and parcel of the plaintiff, has been shown in the List of Creditors of M/s Shere Accessories Pvt. Ltd.
27. As per the own admission of DW1 and as per the admitted contract Ex. PW1/2, the shipments were delivered by the plaintiff to the respective recipients including M/s Shere Accessories Pvt. Ltd. as per the orders of the defendant company. The amount of the invoices Ex. PW1/3 on record has not been paid by the defendant to the plaintiff. Admittedly, M/s Shere Accessories Pvt. Ltd. is in liquidation. No amount has been Suit No. 615134/16 (Old Suit No. 280/14) Page No. 23/30 paid by M/s Shere Accessories Pvt. Ltd. to the plaintiff. DW1, admits in the crossexamination that in case of refusal by the consignee, the defendant is liable to pay the amount to the plaintiff. As such, I have no hesitation to hold that the plaintiff has been able to prove that the defendant is liable to pay the amount as claimed by the plaintiff in the present suit to the plaintiff.
28. First of all, to my mind, nothing has been placed on record by the defendant to show that the plaintiff was in the knowledge that M/s Shere Accessories Pvt. Ltd. was in liquidation and despite the same, the shipments were delivered to M/s Shere Accessories Pvt. Ltd. Secondly, I am of the opinion that even if the plaintiff was having the knowledge of the insolvency of M/s Shere Accessories Pvt. Ltd., then also, the claim of the plaintiff is not barred because the shipments were delivered by the plaintiff to M/s Shere Accessories Pvt. Ltd. as per the orders of the defendant company. This is not the case of the defendant that the defendant was not having any knowledge of the insolvency of M/s Shere Accessories.
29. During the entire crossexamination of PW1, not even a single suggestion has been given to PW1 to the effect that the amount of the plaintiff, which is the subject matter of the present suit, is included in the claim allegedly filed by M/s FedEx Europe against M/s Shere Accessories Pvt. Ltd. In the written statement, the defendant has merely shown its probability on this aspect of the matter because the defendant states that it seems that the suit amount is included in the amount claimed by M/s FedEx Europe. But, I am of the opinion that no cogent evidence has been brought on record by the defendant to show that the amount Suit No. 615134/16 (Old Suit No. 280/14) Page No. 24/30 involved in the present suit is included in the claim of M/s FedEx Europe.
30. Furthermore, to my mind, it has also not been proved by the defendant that M/s FedEx Europe has lodged a claim against M/s Shere Accessories Pvt. Ltd. In the considered opinion of this Court, nothing has been placed on record by the defendant to show that the present suit is bad for nonjoinder of necessary party i.e. M/s Shere Accessories Pvt. Ltd. or that the plaintiff does not have any cause of action against the defendant. Accordingly, issues no. 2 and 3 are decided against the defendant and in favour of the plaintiff.
31. Ld. Counsel for the defendant has also argued that certain invoices pertain to M/s FedEx Express (India) Pvt. Ltd. and as such, the plaintiff cannot claim the amount of the invoices raised by M/s FedEx Express (India) Pvt. Ltd.
32. In this regard, it has to be seen that DW1, in his cross examination, has admitted it to be correct that the Letter of Agreement dated 02.07.2010 Mark F was entered into in between the defendant company and Prakash Air Freight Pvt. Ltd. DW1 admits that Mr. Kamal Merchandiser of the defendant company has signed the said letter of agreement Mark F on record. DW1 further states that he does not know whether the name of Prakash Air Freight Pvt. Ltd. was later on changed to FedEx Express Services (India) Pvt. Ltd. DW1 admits, in the cross examination, that the account number allotted to the defendant by M/s Prakash Air Freight Pvt. Ltd. and account number allotted to the defendant by the plaintiff is the same. DW1 further admits that the account number i.e. 289790128 mentioned in the letter agreement dated 02.07.2010 Mark F is the same as has been mentioned in Ex. PW1/2.
Suit No. 615134/16 (Old Suit No. 280/14) Page No. 25/3033. As such, I have no hesitation to hold that the submissions of the Ld. Counsel for the defendant, so far as the Prakash Air Freight Pvt. Ltd. or so far as the FedEx Express (India) Pvt. Ltd. are concerned, are of no help to the case of the defendant.
34. In the light of the abovesaid discussion, to my mind, the crossexamination of DW1 is sufficient in itself to demolish the entire stand of the defendant as contained in the written statement. To my mind, in the crossexamination, DW1 has categorically admitted the entire claim of the plaintiff.
35. Accordingly, issue no. 4 is also decided in favour of the plaintiff to the effect that the plaintiff is entitled for the principal amount of Rs. 14,69,831/. So far as the interest is concerned, the plaintiff has claimed the interest @ 2% per month, which seems to me to be on a higher side. Keeping in view the present economic scenario and banking rates of interest, I hereby award the interest to the plaintiff on the principal amount of Rs. 14,69,831/ @ 9% per annum from the date of the filing of the present suit till the date of the realization of the decreetal amount. Issues no. 4 and 5 stand decided accordingly in favour of the plaintiff.
36. Now, coming to issue no. 6, Ex. PW1/2, which is the contract dated 15.03.2004 in between the plaintiff company and the defendant stand categorically admitted by DW1. The aforesaid contract Ex. PW1/2 specifically states that the plaintiff is a USA company having its branch office at Chemtex House, Chemtex Business Center, Hiranandani Garden Main Street, Powai, Mumbai.
37. It is true that Sh. Taarek Hinedi, who has executed the Suit No. 615134/16 (Old Suit No. 280/14) Page No. 26/30 Power of Attorney dated 13.05.2009 in favour of PW1, has not been examined by the plaintiff, but, it has to be seen that admittedly, the plaintiff is a company.
38. The Hon'ble Supreme Court of India in the authority titled as United Bank of India Vs. Naresh Kumar & Ors cited as 1996(6) SCC 660, in Para no. 10 thereof, has stated as under: "It cannot be disputed that a company like the appellant can sue and can 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. Reader Order 6 Rule 16 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 dehors 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 Suit No. 615134/16 (Old Suit No. 280/14) Page No. 27/30 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 its officers a corporation can ratify the said action of its 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 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 its officer."
39. In the light of the ratio of the abovesaid authority, I am of the opinion that the present suit has been signed, verified and instituted by a duly authorized person on behalf of the plaintiff company. Needless to mention that the plaintiff has paced on record the Special Power of Attorney in his favour Ex. PW1/1 and the Power of Attorney in favour of Sh. Taarek Hinedi as Mark A. Issue no. 6, thus, stand decided accordingly in favour of the plaintiff and against the defendant.
Relief :
40. In the light of my findings on the foregoing issues, I hereby decree the suit of the plaintiff for the principal amount of Rs. 14,69,831/ Suit No. 615134/16 (Old Suit No. 280/14) Page No. 28/30 alongwith the pendentelite and future interest @ 9% per annum on the said amount from the date of the filing of the present suit till the date of the realization of the decreetal amount. Costs of the suit are also awarded in favour of the plaintiff.
Decree sheet be prepared accordingly by the Reader. File be consigned to Record Room after due compliance.
Announced in the open court (RAJ KUMAR) on this 15th day of December, 2016. ADJ09 (Central) Tis Hazari Courts, Delhi.
Suit No. 615134/16 (Old Suit No. 280/14) Page No. 29/30
CS no.615134/16(280/14)
15.12.2016
Present : None.
Vide my separate judgment of even date, announced in the open court today, the suit of the plaintiff has been decreed. Costs of the suit have also been awarded in favour of the plaintiff.
Decree sheet be prepared accordingly by the Reader.
File be consigned to Record Room after due compliance.
(Raj Kumar) ADJ-09, Central Delhi/15.12.2016 Suit No. 615134/16 (Old Suit No. 280/14) Page No. 30/30