Delhi District Court
M/S Catterpillar Electric Pvt Ltd vs Dtdc Courier Service on 11 November, 2016
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IN THE COURT OF SH. CHANDER MOHAN,
CIVIL JUDGE04(W), TIS HAZARI COURTS DELHI.
CS SCJ No.12267/2016
M/s Catterpillar Electric Pvt Ltd.,
Having its office at:
3/3, Ramesh Nagar,
New Delhi 110015
Through Director
Sh Rajesh Trivedi ..... Plaintiff
Versus
1.DTDC Courier Service 3, DTDC House, Victoria Road, Bangalore - 47.
2. DTDC, B101, Phase 1, Indl. Area, Narayana, New Delhi . ..... Defendant SUIT FOR RECOVERY OF RS.2,21,024. 61p (RUPEES TWO LAC TWENTY ONE THOUSAND TWENTY FOUR RUPEES AND SIXTY ONE PAISE ONLY) Date of Institution : 16.02.2010 Date of reserving judgment : 09.11.2016 Date of Decision : 11.11.2016 CS SCJ No.12267/2016 Catterpillar Electric Pvt Ltd Vs. DTDC Courier
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JUDGMENT
1. Plaintiff, a private limited company has filed the present suit through Sh Rajesh Trivedi one of its director , for recovery of Rs.2,21,024.61p against the defendant courier company (DTDC Courier Services) for non delivery of consignment No.256971593 dated 03.07.2007.
2. It is case of the plaintiff that the plaintiff booked the goods with the defendant to be delivered from Delhi to Jharsuguda, Orissa to M/s Bushan Power & Steels Ltd, Jharsuguda and the defendant gave consignment No.256971593 dated 03.07.07 and the plaintiff completed all the required formalities like invoice, bills, excise invoice, airwaybill etc. As per normal delivery time for this sector should not be more than 710 days under extreme conditions. After 32 days on 04.08.07, plaintiff's customer telephoned to the plaintiff that and said material has not been delivered to him. Plaintiff contacted defendant no.2 immediately and visited him to find out the cause for failure of delivery from the defendants and surprisingly it total failure of services as the defendant took no initiative to inform about the status of consignment to plaintiff for 32 days. Thereafter, the defendant send an email on CS SCJ No.12267/2016 Catterpillar Electric Pvt Ltd Vs. DTDC Courier
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07.08.07 and informed the plaintiff that the said consignment has been seized by the Sales Tax Department, Kolkata, West Bengal alongwith other consignments.
3. Thereafter, plaintiff continuously visited the office of defendant no.2 from time to time and requested to get released the said material as the material was seized by the defendants fault, but the defendants did not pay any heed. However, the fact is that the material of the plaintiff was having complete papers and requirements. But the defendants clubbed the material of plaintiff with other consignments and the other consignments were not having complete papers and requirements hence entire consignment was seized by the concerned authorities. Thereafter, defendant no.2 informed the plaintiff that even if the plaintiff pay the penalty of Rs.62,765/ on the captured consignment, the material will not be released from the consignment separately. The cost of material of plaintiff was Rs.1,84,904/ + E.D. of Rs.29683 + cost Rs.6437/ as per invoice no.SS/137/0708 and the warranty of the material was of 12/18 months. Thereafter, the counsel of the plaintiff sent a legal notice dated 20.08.08 which was sent by registry post on 24.10.08 but it did not yield any result. On account of failure of delivery of this material to the customer of the plaintiff M/s Bhusan Power & Steels Ltd., the plaintiff CS SCJ No.12267/2016 Catterpillar Electric Pvt Ltd Vs. DTDC Courier
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lost an order of around of Rs.60,00,000/ from the same customer.
CASE OF THE DEFENDANT
4. Defendant courier company admitted that a consignment No.256971593 dated 03.07.07 was booked by the plaintiff for its delivery to Jharsuguda, Orissa to M/s Bushan Power & Steels Ltd, Jharsuguda . However, it is plea of the defendant that the same was seized by the sales tax department with other consignment for want of requisite documents and for levying tax/penalty and this information was duly conveyed to the plaintiff. Defendant denied that material of plaintiff was supported with complete papers and requirement. It is submitted by the defendant that the requisite document and the value of the consignment was not declared by the plaintiff at the time of booking of the consignment therefore the consignment was seized. It is further submitted by defendant that a sealed consignment without declaring the value contents and without supporting invoice and other requisite document was booked by the plaintiff. Finally, defendant has taken the plea that even otherwise, in case of any loss or damage, the liability of defendant is limited to Rs.100/ only.
CS SCJ No.12267/2016 Catterpillar Electric Pvt Ltd Vs. DTDC Courier
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5. Following issues were framed by my Ld.
Predecessor on 01.03.2012 :
ISSUES
1. Whether the suit is without cause of action ? OPD
2. Whether the plaintiff is entitled for the recovery of suit amount as prayed ? OPP.
3. Whether the plaintiff is entitled for interest on the suit amount? If so at what rate and for which period. OPP.
4. Relief .
EVIDENCE OF THE PLAINTIFF
6. Sh Rajesh Trivedi, director of the plaintiff company himself stepped into the witness box and reiterated the averments mentioned in the plaint. He placed on record the Resolution dated 17.12.2009 Ex PW1/1, authorizing him to institute the present suit, the invoice /bill of the goods that were to be delivered Ex PW1/2, letter dated 17.12.2007 informing the defendant regarding non delivery of consignment, legal notice of demand Ex PW1/5 and postal receipts Ex PW1/6.
EVIDENCE OF THE DEFENDANT
7. On the other hand defendant produced Ms Nidhi Mehta, CS SCJ No.12267/2016 Catterpillar Electric Pvt Ltd Vs. DTDC Courier
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Senior Legal Executive of M/s DTDC as DW1 who also reiterated the averments mentioned in the written statement . She exhibited Resolution Ex DW1/1 authorizing her to depose in the present case. No other document was tendered by her. Further, no other witness was examined by defendant despite availing opportunity and this court was constrained to close the right of the defendant to lead any further evidence by order dated 08.11.2016 and the matter was posted for arguments.
8. I have heard the submissions made by the counsel for the plaintiff, perused the record and evidence which has come on record. None has appeared on behalf of defendant to argue the present case and it appears that defendant is not interest in addressing any arguments. My issue wise findings is as under .
ISSUE No.1 Whether the suit is without cause of action ?
OPD Defendant has completely failed to show how any cause of action has not arisen in the favour of the plaintiff to institute the present suit. The discussion in the following paragraphs will clearly show the cause of action in favour of the plaintiff and is skipped here to avoid repetition. The discussion in following issue may also be read as part of the present issue. Accordingly, this issue is decided against the CS SCJ No.12267/2016 Catterpillar Electric Pvt Ltd Vs. DTDC Courier
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defendant and in favour of the plaintiff .
ISSUE No.2 Whether the plaintiff is entitled for the recovery of suit amount as prayed ? OPP.
Defendant has clearly admitted that the plaintiff booked the goods with the defendant to be delivered from Delhi to Jharsuguda, Orissa to M/s Bushan Power & Steels Ltd, Jharsuguda and the defendant gave consignment No.256971593 dated 03.07.07. Defendant has taken the defence that the same was seized by sales tax department with other consignment as a sealed consignment without declaring the value of the contents and without supporting invoice and other requisite documents was booked by the plaintiff. Once the defendant admitted that the above consignment goods were handed over to him but the same remained undelivered and was confiscated by the sales tax department the onus shifted upon the defendant to prove the same as plaintiff has discharged the initial onus by the admission defendant of receiving the consigned goods. Even otherwise, this is a fact which was within the especial knowledge of the defendant and as per section 106 the burden of proving the same was upon him. Defendant , did not lead any evidence whatsoever to prove his above defence of seizure of the goods by the sales tax department for not having requisite documents. Defendant has CS SCJ No.12267/2016 Catterpillar Electric Pvt Ltd Vs. DTDC Courier
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not placed on record any such document or summoned any witness from the sales tax department to prove the above confiscation. Infact, DW1 has categorically stated in her cross examination that she cannot produce any seizure order. Hence, the defence raised by the defendant remains only a hoax. Even otherwise in her cross examination DW1 Nidhi Gupta, Senior Legal Executive of the defendant company has stated that they did not sent any material without invoice or without declaration. This statement of DW1 belies the stand of the defendant that the goods were seized due to plaintiff own wrong for not supporting the consignment with any document and the plaintiff not paying the tax/penalty on the same . Hence, this plea is without any merit.
Defendant has taken another plea that its liability in the event of any loss or damage is limited to Rs.100/ only . However again, defendant has not led any evidence to prove this contention or placed on record copy of any contract where such clause is mentioned and accepted by the plaintiff. Hence, this court is of the opinion that there is no requirement to examine this limited liability defence of the defendant on merits. Further, Ex PW1/1 is tax invoice/bill regarding the consigned goods and the amount mentioned in it i.e. Rs.2,21,024/ which matches with the claim of the plaintiff in CS SCJ No.12267/2016 Catterpillar Electric Pvt Ltd Vs. DTDC Courier
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the present case. Besides some suggestions that it being false and fabricated document, defendant has not lead any cogent evidence to prove it forged and fabricated and therefore this court has no reason to disbelieve the same. Accordingly the present issue is decided in favour of the plaintiff and against the defendant and it is held that plaintiff is entitled to recovery to Rs.2,21,024/ .
ISSUE No.3. Whether the plaintiff is entitled for interest on the suit amount? If so, at what rate and for which period. OPP.
Plaintiff has claimed an interest @24% per annum since the institution of the present case till the realization. However, it has not produced any evidence to justify the above claim. Accordingly, this court is of the opinion that ends of justice would be met if plaintiff is awarded interest @ 9% per annum on the decreed amount. Accordingly, defendant is also ordered to pay an interest @ 9% per annum on the principal sum of Rs.2,21,024/ beginning from the institution of present suit till actual realization.
RELIEF:
In view of the discussion on the above issues, the present suit stands decreed in favour of the plaintiff and CS SCJ No.12267/2016 Catterpillar Electric Pvt Ltd Vs. DTDC Courier
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against the defendants jointly and severely and defendants are ordered to pay a sum of Rs.2,21,024/ alongwith simple interest @9% beginning from filing of the present suit till its actual realization. Further, plaintiff shall also be entitled to lumpsum cost of Rs.25,000/ considering the fact that present case is pending for the last six years.
Decree sheet be prepared accordingly. The judgment contains total ten pages and each page bears the signatures of the undersigned.
File be consigned to record room.
Pronounced in open court.
Today, this 11th November, 2016.
(Chander Mohan) Civil Judge04 (West), THC, Delhi.
CS SCJ No.12267/2016 Catterpillar Electric Pvt Ltd Vs. DTDC Courier
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CS SCJ No.12267/2016 Catterpillar Electric Pvt Ltd Vs. DTDC Courier