Delhi District Court
M/S Eximcorp India Pvt Ltd vs Cosco Shipping Lines India Pvt Ltd on 18 March, 2025
IN THE COURT OF MS. PRABH DEEP KAUR, DISTRICT JUDGE -
05 SOUTH EAST, SAKET COURTS: NEW DELHI
RCA No. 06/2022
CNR No. DLSE01-001520-2022
In the matter of :-
M/s EXIMCORP INDIA PVT. LTD.
Registered office at 25, RN,
Mookherjee Road, Mission Court, 4th Floor,
Suite C, Kolkata -700001
And
Branch Office at: 88/14-17,
Mundka Industrial Area, Rohtak Road,
Road No. 9, New Delhi-110041
Through its authorized representative
Mr. Aashish Kumar
....Appellant/plaintiff
Versus
M/S COSCO SHIPPING LINES (INDIA) PVT. LTD.
227, 2nd Floor, Okhla, Industrial Estate, Phase-III,
New Delhi-110020
....Respondent/Defendant
Date of institution of the appeal : 23.02.2022
Date of arguments : 24.02.2025
Date of decision : 18.03.2025
RCA No. 06/2022 Page No. 1/18 Dated 18.03.2025
Digitally signed
by PRABHDEEP
PRABHDEEP KAUR
KAUR Date: 2025.03.20
14:04:08 +0530
JUDGMENT
1. The present appeal under Section 96 of CPC r/w Order 41 Rule 1 CPC filed by the appellant/ plaintiff assails the judgment and decree dated 23.10.2021 in CS No. 990/19 passed by Ms. Sheetal Chaudhary Pradhan, Ld. ACJ-cum-CCJ-cum-ARC, South East District, Delhi whereby the suit of the plaintiff was dismissed. For the sake of convenience, the parties will be referred by their original status.
2. The crux of the matter is that plaintiff, being in the import business, has availed the services of M/s Cosco Shipping Lines Co. Ltd. and defendant is agent in India of the said shipping line. 2.1 Defendant has issued Bill of Lading dated 08.03.2019 Ex. PW-1/3(colly) for shipment of goods of 05x40' HC container said to contain 64 Bundles with 18432 pieces of the plaintiff having Port of Lading as Navegantes in Brazil, Port of Discharge as Mundra and ICD (Inland Container Depot) Tughlakabad, India as place of delivery, type of movement FCL/FCL-CY-CY.
2.2 Thereafter, the defendant has issued the Invoice dated 02.05.2019 Ex. PW-1/4 and has sent the same to the plaintiff through e-mail and defendant has charged the plaintiff, as under:
Charge Name Size type Rate Ex. Rate Base Qty. Collect Tol. Amt.
Amt. Amt. (INR) Inland Haulage 40 HC 1,06,054. 1.00 0.00 5 5,30,270.00 at Discharge 00 5,30,270.00 Equipment 40 HC 2000.00 1.00 0.00 5 10000.00 10000.00 Management Fee Container 40 HC 2000.00 1.00 0.00 5 10000.00 10000.00 Cleaning Charges RCA No. 06/2022 Page No. 2/18 Dated 18.03.2025 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date: 2025.03.20 14:04:18 +0530 Mandatory User 40 HC 145.00 1.00 0.00 5 725.00 725.00 Charges Container 40 HC 10,000.00 1.00 0.00 5 50,000.00 50,000.00 Imbalance Surcharges 2.3 Vide email dated 02.05.2019 at 4.04 PM, which is part of email
Ex. PW-1/6 (colly), the plaintiff requested the defendant to remove the Container imbalance Surcharge, Equipment Management Fee and Mandatory user charges which are not applicable, with request to forward amended invoice for its payment.
2.4 Subsequently, vide Email dated 02.05.2019, defendant refused to waive the said charges stating that those charges were their principal charges and also intimated that "Import Inland Haulage Charges (IC) revised w.e.f. 15th May 2019 subject to Port THC and Detention Charges has been revised w.e.f. 15th May 2019 for Export and Import. 2.5 Thereafter, vide e-mail dated 03.05.2019, the defendant intimated the plaintiff that all charges are correct as per their local tariff and attached the tariff for reference of the plaintiff. 2.6 Vide email dated 03.05.2019 at 03:45 PM, plaintiff requested the defendant that the charges are required to be fixed and stated on the BL, any other charges shall have no legal enforceability under clause 2 of the printed BL.
2.7 However, plaintiff paid the charges under the protest in order to get the goods released in time to avoid further charge and thereafter, plaintiff filed the suit.
3. Defendant entered appearance and contested the suit on the ground that: (i) the Civil Court did not have territorial jurisdiction and (ii) RCA No. 06/2022 Page No. 3/18 Dated 18.03.2025 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date: 2025.03.20 14:04:23 +0530 Plaintiff cannot claim relief as he did not seek information about the charges from the defendant and is therefore, bound by concept of caveat emptor and (iii) the IHC charges were levied in the invoice dated 02.05.2019 as per the prevailing charges at the time of arrival of the freight.
4. After completion of pleading, the following issues were framed:
(i) Whether the plaintiff is entitled to the decree for the sum of Rs. 2,12,495/-
alongwith pendent lite and future interest @ 18% p.a.? OPP
(ii) Whether the suit has been filed without territorial jurisdiction? OPD
(iii) Whether the plaintiff is entitled to the cost of proceedings? OPP
(iv) Relief.
5. After recording evidence of both parties, Ld. Trial Court vide its judgement dated 23.10.2021 agreed that the court had territorial jurisdiction over the matter, however, dismissed the suit of the plaintiff for recovery of Rs. 2,12,495/ - with pendente lite and future interest.
6. GROUNDS OF APPEAL.
A. Because the Ld. Trial Court's judgement dated 23.10.2021 dismissing the suit for recovery filed by the Appellant is both contrary to the law and facts of the case.
B. Because the Ld. Trial Court erred in appreciating that the Inland Haulage Charges at the rate of Rs. 1,06,054/- for each container from Mundra to ICD Tughlakabad, is and not payable. The Ld. Trial Court has not appreciated that this inflated amount has never been agreed with Shipper in the tripartite agreement. The indicative IHC was Rs. 87,700.00 each container inclusive of all charges and thus excess charge RCA No. 06/2022 Page No. 4/18 Dated 18.03.2025 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date: 2025.03.20 14:04:27 +0530 of Rs. 18,354.00 on 5 containers totally amounting to Rs. 91,700.00 is not payable.
C. Because the rate charged has never been the rate agreed with the Shippers at the time the contract of carriage was concluded by the Respondent on or about 03.03.2019.
D. Because the Ld. Trial Court did not appreciate that the Equipment Management Fee at the rate of INR 2000.00 per container as charged by Respondent is illegal and outside the agreement manifest on the Bill of Lading and its terms.
E. Because it is submitted that the Trial Court did not appreciate or deal with the issue of mandatory user charges at the rate of INR 145.00 per container are illegal and outside the agreement manifest on the Bill of Lading and its terms. The same is true for Container Imbalance Surcharge. The tripartite contract concluded by the Respondent is on CY to CY (Container Yard to Container Yard) basis. There is no nexus of the charges with the services contracted and is entirely outside the contractual rights and obligations under the terms of Bill of Lading issued by the Respondent.
F. After the conclusion of the contract and delivery of goods, it is not the concern of the Appellant as to what the Respondent would do with the empty container which is returned to the Respondent after discharge of the cargo. It is further highlighted that there should not be any link or liability of the Appellant towards the Respondent for not having any business of carriage with the empty containers. G. Because the Ld. Trial Court completely failed to appreciate that in the Written Statement filed by the Respondent as well as the evidence RCA No. 06/2022 Page No. 5/18 Dated 18.03.2025 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date: 2025.03.20 14:04:32 +0530 adduced, it was never contended that the additional and extra charges were part of the original contract being the Bill of Lading and as such new clauses and charges could not be so incorporated. H. Because the Trial Court has failed to consider that as per clause 2 of the terms and conditions of Bill of Lading containing Carrier's Tariff, it is provided, inter alia, that in case of any inconsistency between Bill of Lading and the applicable Tariff, the Bill of Lading shall prevail. I. Because the Trial Court did not appreciate that Appellant being interested of getting their cargo released without any delay, was forced to make online payment on 09.05.2019 of the invoice No. IMPDEL 190500542 dated 02.05.2019 for Rs. 7,14,485/ - under duress, but under protest and without prejudice to their rights and contentions. As such, the inference of consent and acceptance from the actions of the Appellant is manifestly erroneous interpretation of the facts and the applicable law. J. The Bill of Lading is a tripartite contract between Shippers, Carrier and consignee. The carrier cannot make changes in the same without concurrence and consent of all the parties of the Bill of lading. The tripartite contract lays down the obligation of each party of the contract. Thus, any charges payable at destination, if any that consignee has to pay, is to be stated on the BL. The BL reads "FREIGHT PREPAID". Freight is defined on the reverse of BL to include charges. It is also printed on the BL that the BL is final on freight. This absolves the consignee of any and all liability with respect to the further payment of such fee, which is not agreed to in the BL. Container imbalance or maintenance or any other charges under the terms of BL are part of freight which is "PREPAID" and therefore the Carrier cannot demand RCA No. 06/2022 Page No. 6/18 Dated 18.03.2025 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date: 2025.03.20 14:04:36 +0530 any other sum as its destination charges or any other charge under any other head.
K. Because the Ld. Trial Court failed to appreciate that the only defence of the Respondent to the suit of the Appellant being allowed was that the Court does not have territorial jurisdiction and that suit is hit by principle of caveat emptor. However, the Ld. Trial Court has traversed beyond pleadings and dismissed the suit of the Appellant for recovery on the ground that in terms of Section 74 the Court did not see duress, coercion or misrepresentation and the impugned invoice being challenged by Appellant was delivered to plaintiff on time and clearly mentions the heads of charges.
L. The terms of tripartite agreement were never an issue in dispute, which was evident from the fact that there was no objection to the same and no evidence was lead to the contrary by the Respondent. In absence of the same there was no occasion for the Ld. Trial Court to have gone beyond the same. It is also further settled law that if there be admissible two constructions of a document, one of which will give effect to all the clauses therein while the other will render one or more of them nugatory it is the former that ought to be adopted on the principle expressed in the maxim 'ut res magis valeat quampereat! Clause 2 of the original Bill of Lading is an integral and essential part of the contract, which has been rendered nugatory by the decree of the court. N. Because in the impugned judgement, the Trial Court mentions that the plaintiffs failed to explain the manner in which defendant company had over charged them whereas in the plaint presented by the Appellant herein, a complete breakup of charges has been clearly explained and the RCA No. 06/2022 Page No. 7/18 Dated 18.03.2025 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date: 2025.03.20 14:04:40 +0530 price which was overcharged has also been explained. The plaintiff in the plaint have also explained what should have been the price charged by the defendants.
7. On the other hand, Ld. Counsel for respondent /defendants has filed reply to the appeal u/S 96 r/w Order 41 Rule 1 CPC. 7.1 It has been argued that defendant herein is the sole agents of the principal carrier i.e. COSCO Shipping Lines, China. The agent cannot be held liable for the principal and basis this legal aspect the appeal of the appellant out to be dismissed against the defendant. 7.2 Further, it has been argued that no ground to file this suit in the Court of Delhi as the invoice issued to the appellant dated 02.05.2019 contains clause no. 5 which states that jurisdiction dispute if any shall be subject to the jurisdiction of Mumbai Courts only. Thus, the appellant is exclusively barred by jurisdiction to file this case within the jurisdiction of India except Mumbai.
7.3 It has been further stated that the suit as well as the appeal is bad for non-joinder of parties. It is a tripartite agreement between the shipper, carrier and consignee. Hence, the non-impleadment of the shipper whom the appellant claims and thrust their arguments has not been impleaded. Hence, the suit is bad for non-joinder parties and has to be dismissed on that score.
7.4 The Defendant herein is a highly acclaimed shipping company having wide reputation in the carriage of cargo by sea worldwide. In order to maintain a high level of transparency the Defendant keeps its tariff published on the website and encourages the Customers to first go RCA No. 06/2022 Page No. 8/18 Dated 18.03.2025 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date: 2025.03.20 14:04:47 +0530 through the charges prior to booking their cargo with them. Once the Customer has booked the Cargo, they cannot renege from performing their part of the contract entered into between us and the Customer. The Cargo is carried by us basis a belief that the customer has seen the local charges applicable and thereby agreed to our services. There is therefore, no scope of alteration of any charges upon us having performed our part of the obligations under the contract. The Appellant has been charged as per the tariff structure that was published and available on our website during the relevant time. The Appellant cannot subsequent to the discharge of cargo at the PFOD arbitrarily claim reduction in charges. 7.5 It has been further argued that the bill of lading is nothing but as stated below: The bill of lading is the symbol of property, and by so taking the bill of lading the seller keeps to himself the right of dealing with property shipped and also the right of demanding possession from the captain, and this is consistent even with a special term that the goods are shipped on account of and at the risk of the buyer". As stated in the case of Carno Sahu Co. Pvt. Ltd v/s State of Maharashtra AIR 1966 SC 1153. Also, in the case of Shipping Corporation of India v/s Bharat Earth Movers Ltd 2008 2 SCC 79, the Hon'ble Apex Court stated that "A contention has been raised before us for the first time that the value of the goods had been declared in the bill of lading. It is based on the premise that bill of lading refers to the invoice. We cannot accept the said contention. Invoice is not a part of the bill of lading". 7.6 It is submitted that the Respondent has not charged any arbitrary, illegal or un-contractual, exorbitant demands of payments from the Appellant. The Respondent has only charged what it usually charges RCA No. 06/2022 Page No. 9/18 Dated 18.03.2025 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date:
2025.03.20 14:04:52 +0530 from other customers and also the Appellant has not shown on record any evidence from which it can be shown that the Respondent has charged any arbitrary charges. On the contrary, the Respondent has brought on record some bills issued to its other customers on the same date i.e. 15.05.2019 which shows that nothing arbitrary has been charged, but the fair price has been charged from the Appellant against the services rendered by the Respondent. There is no invoice which shows that the Respondent has charged any Inland Haulage Charges at Rs. 87,700/- per container. Hence, the contention made by the Appellant is frivolous and arbitrary. All the charges which are charged are according to the one which has to be implemented from 15.05.2019.
7.7 The relevant portion of the Judgement dated 23.10.2021 passed by Ld. Civil Judge has been read over by Ld. Counsel for defendant and it has been argued that this clearly shows that the plaintiff duly consented to the local tariff to be paid prior to the shipment of goods. The Agent cannot be liable for the acts of the Principal. The Agent has issued the invoice for and on behalf of the Principal Carrier. The charges are paid for the Contract entered into between the Defendant and Shipper on the one side and the Carrier on the other. There is no contract between the Defendant and the Agent basis which the Agent could be held liable. The plaintiff has mischievously and malafide arraigned the Agent in a false case without anything attributable to them. The Charges levied to the Appellant are the charges of the Principal Carrier and the Agents has no right to waive and/or alter these charges. Accordingly, the appeal is liable to be dismissed.
RCA No. 06/2022 Page No. 10/18 Dated 18.03.2025 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date:
2025.03.20 14:04:56 +0530
8. Arguments heard. Record perused.
9. In the present case, the facts are admitted between parties and the dispute is only with respect to the breakage of the invoice raised by the defendant. There is no dispute as to contract between parties. As per plaintiff, defendant had raised the charges arbitrarily while defendant had disputed the same.
10. Let examine the dispute between parties under the heads of charges over which parties are in disagreement i.e. 10(i) IHC charges:
The plaintiff has not disputed that IHC charges were not payable by plaintiff and it has only disputed the rate at which IHC charges were levied because as per plaintiff the indicative IHC charge was Rs. 87,700/- each containers inclusive all plus delivery order charges. As per defendant IHC charges have been correctly levied. 10(i)(a) Now in the WS defendant had taken the plea that charges levied in invoice dated 02.05.2019 were as per prevailing charges at the time of arrival of the freight. However, in the testimony of DW-1 /AR of defendant, DW-1 deposed as follows:
"8. It is pertinent to mention that the Import Inland Haulage charges(IHC) was revised w.e.f 15th May 2019 subject to Port THC and Detention Charges has been revised w.e.f 15th May 2019 for Export and Import. The charges that were levied on the Plaintiff was in accordance with the changes that were brought to the notice of the Defendant by the Government. Even though the consignment had reached the port in Maharashtra on before 15" May 2019, but it was only delivered after the 16 May 2019. Henceforth the charges are very much to be applied to the Plaintiff.
9. In furtherance to the above said, similar chargers were levied and applied to other consignments during that period of time and no objections or queries were raised from them as they were well aware of the charges and the changes applied to them. The copy of the Tax invoices issued Sudarshan Mercantile P. Ltd., Ons Freight RCA No. 06/2022 Page No. 11/18 Dated 18.03.2025 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date:
2025.03.20 14:05:01 +0530 Solutions Pvt Ltd. and Cesta Shipping Private Limited is sued on the 02.05.2019 is exhibited as Ext.DW1/1 Colly."
Thus, as per defendant, defendant had levied IHC at the rate applicable w.e.f. 15.05.2019 because the consignment was delivered on 16.05.2019.
10(i)(b) However, during cross examination, DW-1 deposed that :
"...It is correct that import inland haulage charges were revised with effect from 15 May 2019. It is also correct that the concerned consigments reached at destination before 15 May 2019.....
.....Q. Is it correct that inland haulage charges IHC and other local charges were levied on the plaintiff in accordance with revised tariff with effect from 15 May 2019?
Ans. It is incorrect that IHC and other local charges was levied on the plaintiff as per revised tariff which was to be coming to effect from 15 May 2019. since, the shipment in the present case reached at destination before 15 May 2019 therefore prevailing charges applicable at that time were charged accordingly......
Thus, defendant had taken contradictory stand at different stages of trial and has impliedly admitted that IHC charges levied in the invoice dated 02.05.2019 were in accordance with the rate applicable w.e.f. 15.05.2019 and not as per prevailing charges applicable at the time of arrival of the cargo.
10(i)(c) Further, the invoice Ex. PW-1/4 mentions that the shipment arrived at ICD Tughlakabad on 01.05.2019 and admittedly, invoice has been raised thereafter. Therefore, from the perusal of invoice and contentions of parties, it is clear that plaintiff was to pay IHC charges applicable on the date of arrival of the cargo and not as per the rate applicable on the date of delivery of cargo because had the intention of parties was to pay charges as per date of delivery why the invoice was raised with specific mention of date of arrival without mentioning the RCA No. 06/2022 Page No. 12/18 Dated 18.03.2025 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date:
2025.03.20 14:05:05 +0530 estimate date of delivery of shipment.
10(i)(d) Moreover, defendant has nowhere taken the contention that plaintiff was to pay IHC charges applicable on the date of delivery of the shipment rather during cross examination defendant admitted that IHC charges applicable before 15.05.2019 were levied. However, defendant had not produced any chart or any other documents to prove what was the rate of IHC charges applicable at that time when invoice in question was raised, rather defendant itself has produced invoices of other companies i.e. Ex. DW-1/1(colly) wherein different IHC charges were levied and thus, the onus is upon the defendant to prove the calculation on basis of which IHC charges in the invoice in question were determined. Further, perusal of invoices Ex. DW-1/1(colly) shows that IHC charges levied in those invoices are much lower then the IHC charges levied in invoice in question. Accordingly, the contentions of plaintiff stands proved that defendant had charged the IHC charges at an arbitrary rate.
10(ii) Other charges i.e. equipment management fees, container cleaning charges, mandatory user charges and container imbalance surcharge:
10(ii)(a) As per plaintiff, the defendant cannot levy these charges as the bill of lading clearly mentions that "freight prepaid" and the contract was on CY to CY basis and all these charges are entirely outside the contractual rights under the terms of BL issued by defendant.
On the other hand, as per defendant these charges were levied as per the tariff applicable at that time and plaintiff has not asked for the charges that defendant company would charge and therefore, he is bound RCA No. 06/2022 Page No. 13/18 Dated 18.03.2025 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date:
2025.03.20 14:05:16 +0530 to principle of "Caveat Emptor".
Admittedly, the shipping line is providing the services and facilitating the smooth delivery of shipment and it cannot be presumed that they will be providing the services free of cost. Therefore, the contention of plaintiff that he was not liable to pay local charges to the defendant is not reasonable.
10(ii)(b) However, at the same time defendant admitted that plaintiff was not informed about the charges prior to issuance of the invoice dated 02.05.2019, therefore, the onus is upon the defendant to prove the existence and applicability of the tariff. Defendant has claimed that the charges were as per the tariff so it is responsibility of defendant to prove it because though plaintiff is bound to pay the charges but admittedly, he was not aware of the quantum of the charges. Once plaintiff raised the objection, onus is upon the defendant to prove the quantum of charges irrespective of the fact that plaintiff has liability to pay the charges. However, during cross examination DW-1 admitted that :
"......We have standard tariff for the above mentioned charges which we provide to our each and every customer at their demand at the time or before the booking of any shipment. In this case, since plaintiff neither asked for our local charges nor we were informed about this booking since we are sitting at destination we only came to know about the shipment on arrival of our vessel at gatway port. We issued the invoice only after container arrived at ICD or its final destination...... ....Q. Is it correct that you have not placed on record any tariff showing IHC and other local charges applicable at that time?
Ans. It is correct.
It is wrong to suggest that intentionally I have not placed on record any documents showing the applicable tariff charges...."
Thus, admittedly defendant has failed to file copy of tariff charges applicable at the relevant time.
RCA No. 06/2022 Page No. 14/18 Dated 18.03.2025 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date: 2025.03.20 14:05:29 +0530 10(ii)(c) Further, perusal of invoice Ex. DW-1/1(Colly) filed by the
defendant shows that these charges have been levied at different rates in each invoice and therefore, Court cannot decide on its own, the rate of the charges payable by plaintiff despite the fact that plaintiff is liable to pay these charges to the defendant. Accordingly, Court is bound to lean its judgement in favour of plaintiff.
11. Further, Perusal of impugned judgment shows that Ld. Trial Court has discussed the issue of validity of contract between parties, however, parties have nowhere disputed that they entered into contract and only issue is with respect to the breakage of charges mentioned in the invoice. The plaintiff had already explained that he paid the invoice amount in order to avoid the delay in delivery which could have incurred hefty charges upon the plaintiff and plaintiff has also produced the evidence to prove that he had duly intimated his protest to the defendant and therefore, Ld. Trial Court has erred in stating that : 12.9 In the present factual gamut, it is explicit that plaintiff utilized the services of the defendant company and thereafter chose to prosecute the defendant. The categorical answers of DW1 during his cross examination lend credence to the case of defendant.
12.10 It is observed that all the necessary pre-requisities of a valid contract like free consent, competent parties, lawful object and consideration, not being expressly declared void have been duly adhered to in this case. Besides the essentials of contract, the tax invoice was also found reasonable......"
The claim of defendant failed due to lack of evidence proving that the tariff was applicable at the relevant time, not because plaintiff failed to prove that there was no valid contract between parties, rather the existence of contract between parties was never in issue and Ld. Trial RCA No. 06/2022 Page No. 15/18 Dated 18.03.2025 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date: 2025.03.20 14:05:37 +0530 Court has committed gross error on this aspect and has passed judgement against the legal principles.
12(a) Clearly, defendant has charged IHC charges and other charges at the excess rate and plaintiff is entitled for the amount of Rs. 1,62,495/- towards the following heads:
Extra amount recovered unauthorisedly and illeglaly in the name Rs. 91,770.00 of Inland Haulage At Discharge.
Amount recovered unauthorisedly and illegally in the name of Rs. 10,000.00 Equipment Management Fee Amount recovered unauthorisedly and illegally in the name of Rs. 10,000.00 Container cleaning Charges Amount recovered unauthorisedly and illegally in the name of Rs. 725.00 Mandatory user charges Amount recovered unauthorisedly and illegally in the name of Rs. 50,000.00 Container Imbalance Surcharge Total : Rs. 1,62,495.00 12(b) Plaintiff has also sought pendent lite and future interest at the rate of 18% per annum. The plaintiff has been deprived of his rightful amount and therefore, he is entitled for reasonable interest to compensate for the loss of his hard earned money. Considering the nature of transactions between parties and facts and circumstances of the case, plaintiff is held entitled for the interest at the rate of 7% per annum from filing of the suit till its realization.
13. As far as the issue of territorial jurisdiction is concerned, plaintiff has not objected to the same. However, defendant has raised the objection of territorial jurisdiction during arguments.
As far as the issue of territorial jurisdiction is concerned, RCA No. 06/2022 Page No. 16/18 Dated 18.03.2025 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date:
2025.03.20 14:06:11 +0530 admittedly the invoice in question Ex. PW-1/4 mentions clause no. 3 as "Jurisdiction- dispute if any shall be subject to jurisdiction Mumbai only. It is settled principle that it is open for the party to chose anyone of the Court having simultaneous jurisdiction over the matter but they cannot decide the jurisdiction of one Court if that Court has no jurisdiction to entertain and try the suit. In the present suit, defendant has failed to explain how the Court of Mumbai has jurisdiction to entertain and try the present suit. As per invoice Ex. PW-1/4, the place of supply is Delhi, the plaintiff and defendant both are within jurisdiction of this Court and even the place of delivery is ICD Tughlakabad i.e. within jurisdiction of this Court. Therefore, Ld. Trial Court has correctly observed :
13. It is observed that since the defendant was having a subordinate office at Okhla Industrial Estate and the defendant was served upon the aforesaid address which is in the jurisdiction of the present court, the suit is filed by the plaintiff within the territorial jurisdiction of the court. The issue is, accordingly, decided in favour of plaintiff and against the defendants.
14. Further, during the appeal defendant has raised the objection of non-joinder of parties as well as the issue that defendant being agent of the principal i.e. COSCO Shipping Lines, China is not liable for the principal. As far as these arguments are concerned, admittedly, defendant has not taken these defences during pleadings nor during entire trial before Ld. Trial Court, therefore, these objections are being dismissed being beyond purview of the appeal.
15. In view of above discussion, the impugned order and judgment dated 23.10.2021 is hereby set aside and the suit of the plaintiff is decreed in favour of plaintiff against the defendant for sum of Rs.
RCA No. 06/2022 Page No. 17/18 Dated 18.03.2025 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date: 2025.03.20 14:06:33 +0530 1,62,495/- alongwith interest at the rate of 7% per annum from the filing of suit till its realization. Cost of the suit is also awarded in favour of plaintiff. Decreesheet be prepared accordingly. Appeal stands disposed off.
Copy of this order be sent to the Ld. Trial Court alongwith trial record.
File of the appeal is consigned to record room after due Digitally signed by compliance. PRABHDEEP PRABHDEEP KAUR KAUR Date: 2025.03.20 14:06:41 +0530 Typed to the dictation directly (Prabh Deep Kaur) Corrected and announced Ld. District Judge-05 in the open court on this day South East/Saket Courts 18.03.2025 New Delhi RCA No. 06/2022 Page No. 18/18 Dated 18.03.2025