Bangalore District Court
M/S Ufs Express India Pvt. Ltd vs M/S Community Square Pvt. Ltd on 30 November, 2022
1 Com.O.S.No.640/2022
In the Court of LXXXIV Addl. City Civil and Sessions
Judge (CCH-85 Commercial Court) Bengaluru
Dated this the 30th day of November 2022
Present : Smt.H.R.Radha, B.A.L., L.L.M.
LXXXIV Addl. City Civil and Sessions Judge,
(CCH-85 - Commercial Court)
Bengaluru
Com.O.S.No.640/2022
Plaintiff M/s UFS Express India Pvt. Ltd., (A company
registered under the Companies Act, 1956)
rep. by Alan R Monteiro, Managing Director,
No.2707/B, C & E Block, 14th Main, 4th Cross,
Sahakarnagar, Bangalore - 560 092
(By Sri.C.Parameshwarappa, Advocate)
Vs
Defendant M/s Community Square Pvt. Ltd., rep. by
Ramnath Arumugam, Director, No.293, 5 th
Cross, 13th Main, Gokul Extension, Mathikere,
Bengaluru - 560 054
(By Smt.Medha Hegde, Advocate)
Date of Institution 22.04.2022
Nature of suit For recovery of money for the
services rendered
2 Com.O.S.No.640/2022
Date on which the First Case
Management Hearing took 11.10.2022
place
Date of commencement of
31.10.2022
recording of evidence
Date on which judgment 30.11.2022
pronounced
Time taken for disposal Years Months Days
1) Total duration 00 07 06
2) From the date of First
Case Management Hearing 00 01 19
LXXXIV Addl. City Civil and Sessions Judge,
(CCH-85 Commercial Court), Bengaluru
JUDGMENT
This is a suit for recovery of Rs.7,18,040/- from the defendant for the services rendered together with interest at 18% p.a. from 02.05.2021 being the date of invoice till realization.
2. The plaintiff's case in brief is that they are an international/domestic freight forwarding company represented 3 Com.O.S.No.640/2022 by the Managing Director as per the Board Resolution dated 20.10.2021. The defendant engaged their services for shipment of Alphonso mangoes from Bengaluru to London by accepting the quotation. After shifting the merchandise, they raised three invoices bearing No.UFS-009 dated 21.04.2021 for Rs.6,53,542/-, UFS-010 dated 23.04.2021 for Rs.4,50,750/- and UFS-011 dated 02.05.2021 for Rs.6,08,510/-, but the defendant paid Rs.11,04,292/- on 27.04.2021 towards first two invoices and refused to pay the third invoice dated 02.05.2021 in spite of several reminders. The transaction being commercial in nature, the defendant is liable to pay Rs.7,18,040/- including interest at 18% p.a.
3. The defendant, a registered trading company dealing with export and import of perishable food products and represented by the director has filed the written statement contending that the plaintiff, a freight forwarder partnering with KWE Pvt. Ltd. was introduced by them to M/s Tuskerberry Argo, a purchaser of mango consignment; and they were only the facilitators without any role in the terms and conditions discussed between the plaintiff and M/s Tuskerberry Argo. The plaintiff who was 4 Com.O.S.No.640/2022 responsible for the export of mangoes from Bengaluru to London, delivered damaged mangoes and therefore, M/s Tuskerberry Argo refused to make payment. While the purchaser lost more than Rs.7,00,000/- on this particular shipment, they lost Rs.4,00,000/- due to negligent, careless and sloppy services of the plaintiff. The plaintiff incurred losses due to their own negligent and incompetent service. Though M/s Tuskerberry Argo and KWE Pvt. Ltd. are necessary and proper parties, the plaintiff has filed the suit to make unlawful gain at their cost. They are not liable to pay any amount but, the plaintiff is liable to pay Rs.10,00,000/- for their loss; and they are not aware of the invoices generated by the plaintiff.
4. Based on the pleadings, this court has framed the following ISSUES
1. Whether the defendant proves that the plaintiff delivered the damaged mangoes consigned under Invoice No.UFS-011 dated 02.05.2021 to the purchaser, M/s Tuskerberry Argo?
5 Com.O.S.No.640/2022
2. Whether the defendant proves that the suit is bad for non joinder of the purchaser, M/s Tuskerberry Argo and the plaintiff's delivery partner KWE Pvt. Ltd.?
3. Whether the plaintiff is entitled for Rs.1,09,530/- towards interest at 18% p.a. on the invoiced amount of Rs.6,08,510/- from 02.05.2021 upto the date of suit?
4. Whether the plaintiff is entitled for Rs.7,18,040/- from the defendant with further interest at 18% p.a.?
5. What order or decree?
5. The plaintiff's Managing Director is examined as Pw1; he has filed affidavit in lieu of examination in chief and got marked Ex.P1 to P5.
6. The defendant's Director has filed affidavit in lieu examination in chief and examined himself as Dw1. While the defendants got marked Ex.D1 and D2 by confronting the same 6 Com.O.S.No.640/2022 to Pw1 during cross examination, Ex.D3 to D5 are got marked through Dw1.
7. The learned counsel for the plaintiff has filed written arguments.
8. Heard arguments of the learned counsel for the defendant.
9. My findings on the above issues are Issue No.1: In the negative Issue No.2: In the negative Issue No.3: In the affirmative Issue No.4: Partly in the affirmative Issue No.5:As per the final order for the following REASONS
10. There is no dispute that the plaintiff is an international and domestic freight forwarder who shipped Alphonso mangoes as required by the defendant from Bengaluru to London under the following three invoices:
(i) UFS-009 dated 21.04.2021 for
Rs.6,53,542/-;
7 Com.O.S.No.640/2022
(ii) UFS-010 dated 23.04.2021 for
Rs.4,50,750/-; and
(iii) UFS-011 dated 02.05.2021 for
Rs.6,08,510/-.
11. Issue No.1: The plaintiff's claim is that, despite shipping the merchandise from Bengaluru to London as required by the defendant, invoice No.UFS-011 dated 02.05.2021 for Rs.6,08,510/- has remained unpaid and the defendant is refusing to pay the same. But the defendant's contention is that they were only the facilitators who paid the plaintiff on receiving payment from the purchaser for the services availed. The third consignment under invoice No.UFS-011 dated 02.05.2021 reached M/s Tuskerberry Argo in a completely damaged condition as such, the purchaser did not pay for the shipment and they are not liable to pay any amount to the plaintiff.
12. Drawing the attention to the emails at Ex.P4, Ex.D1, D2, D4 and Whatsapp conversation at Ex.D3, the learned counsel for the defendant argues that the entire consignment under the third invoice dated 02.05.2021 was delivered in a completely 8 Com.O.S.No.640/2022 damaged condition on 30.04.2021 due to defective packaging and Pw1 owns responsibility for the same in the email at Ex.D2 and the defendant who is only a facilitator, is therefore not liable to pay any amount to the plaintiff.
13. The learned counsel for the plaintiff on the other hand contends in the written argument that having availed the plaintiff's services for transporting Alphonso mangoes from Bengaluru to London, the defendant is liable to pay the amount due under the invoice dated 02.05.2021; all kinds of objections are being raised only after the plaintiff insisted for payment of the amount due under the said invoice and without there being acceptable evidence as to the goods being damaged on account of alleged lapse on the plaintiff's part.
14. Pw1 has been cross examined exhaustively by the defendant with regard to not stating anything about providing freight service to the defendant, not pleading the pickup date from Bengaluru and the date of its delivery in London. He is also cross examined with regard to the plaint being silent about the condition of the mangoes when delivered in London. But Pw1 9 Com.O.S.No.640/2022 has clarified that no documents are produced for having delivered the mangoes in good condition because the delivery is done by the airlines and the required information is on their website. This piece of evidence has remained unchallenged.
15. It is not the defendant's case that the goods consigned did not reach London or the plaintiff did not pay airline handling charges in respect of the consignment sent under Ex.P3 dated 02.05.2021. Nor is it the case of the defendant that the plaintiff did not raise the invoice at Ex.P3 or issue a copy to them demanding payment. In view of the same and having regard to the defendant's specific defence is only with regard to the goods not reaching the destination in good condition and Dw1 admitting that invoice will be raised on the date of shipment itself, I am of the opinion that non production of invoice for airline handling charges and invoice dated 02.05.2021 with the defendant's signature, is of no consequence.
16. Ex.P2 is the plaintiff's quotation dated 05.04.2021 for shipping the consignment from Bengaluru to London detailing the destination charges and forwarding charges. It is pertinent 10 Com.O.S.No.640/2022 to note that the defendant has not suggested anything to Pw1 denying issuance of this quotation. As per Ex.P2 destination charges include airline handling fee, customs clearance, delivery, pallet handling etc and forwarding charges include the freight charges, terminal handling fee, airway bill, loading and unloading etc. Ex.P2 stipulates that the payments could not be withheld for any loss or damage to the goods.
17. Dw1's cross examination reveals that Mr.Ravi Andrews was a part of the defendant. Mr.Stephen was the authorized person of M/s Tuskerberry Argo. The defendant was the facilitator between the buyer, M/s Tuskerberry Argo and vendors, i.e. the farmers. The defendant finalized the warehouse in Maalur where the goods were packed by the warehouse staff and the plaintiff, a freight service provider was engaged only for shipping the goods and they absolutely had no role in packing the same.
18. Dw1 admits that the first shipment was delivered by the plaintiff on 21.04.2021 and except Ex.P3 dated 02.05.2021, the defendant has cleared all other invoices of the plaintiff. 11 Com.O.S.No.640/2022 M/s Tuskerberry Argo received the goods at their warehouse in London on 30.04.2021. Ex.D3(a) according to Dw1 relates to the second shipment from Bengaluru Airport on 29.04.2021 and speaks about delivery of the goods to the airport on the same day.
19. Page No.12 and 13 of Ex.D3 relied upon by the defendant to contend that the goods were delivered in a damaged condition contain photos of the consignment shared on 01.05.2021. Even at the cost of repetition, the invoice will be raised on the date of shipment itself as stated by Dw1. According to him the goods under invoice dated 02.05.2021 must have reached London in a day or two i.e., 03.05.2021 or 04.05.2021.
20. From the message of M/s Tuskerberry at page No.6 of Ex.D3 it is seen that the boxes were damaged because of the gum tape used for wrapping and it relates to consignment delivered in London on 01.05.2021 and not under the Invoice Ex.P3 dated 02.05.2021. As discussed earlier, packing the goods was not the responsibility of the plaintiff but it was done 12 Com.O.S.No.640/2022 by the warehouse staff in Maalur. Therefore, the plaintiff cannot be held responsible for the damage if any caused on account of defective packing by the warehouse staff.
21. Further, the defendant has not produced any certificate by the London warehouse authorities or the Customs Department of London to the effect that the goods consigned under Ex.P3 were damaged. Nor is there any positive, convincing and acceptable evidence that M/s Tuskerberry Argo discarded the consignment in London West market garbage bin as claimed in their email Ex.D1 dated 15.05.2021. Likewise, no documents or certificates or photographs or appreciation letter is furnished by the defendant in proof of the contention that the remaining damaged goods were distributed by M/s Tuskerberry Argo to local orphanages and community service centers.
22. Page No.4 of Ex.D4 coupled with the evidence of Dw1 would demonstrate that despite requesting for destruction certificate, details of destruction cost and evidence of salvage M/s Tuskerberry Argo failed to furnish the same to the defendant. The defendant has not chosen to examine anyone 13 Com.O.S.No.640/2022 from M/s Tuskerberry Argo to establish that the goods sent under Ex.P3 on 02.05.2021 reached London in a damaged condition. Because the photographs at page No.12 and 13 of Ex.D3 relate to the goods that reached on 01.05.2021 and the one at page No.15 relates to the consignment which reached London on 15.05.2021 and not the one relating to Ex.P3. Under these circumstances, Ex.D2 dated 01.05.2021 cannot be construed as the plaintiff's admission as to delivering the goods under the invoice dated 02.05.2021 in a damaged condition. Therefore, the issue for consideration is answered in the negative.
23. Issue No.2: The defendant specifically contends that they are only the facilitators and do not have anything to do with the terms and conditions negotiated by the plaintiff with the purchaser M/s Tuskerberry Argo and payment would be made only on receiving the amount from the purchaser. They also contend that the plaintiff partnered with M/s KWE Pvt. Ltd., for delivering the mangoes to M/s Tuskerberry Argo and therefore, the suit is bad for non joinder of these two. 14 Com.O.S.No.640/2022
24. Dw1 admits that they were to ship the consignment from the vendors in Bengaluru to the purchaser in London and the plaintiff, a freight forwarder was engaged for the same. Ex.D4, email conversation between M/s Tuskerberry Argo and the defendant would reveal that the defendant who was M/s Tuskerberry's service provider engaged the plaintiff's services. There was no direct contact between M/s Tuskerberry Argo and the plaintiff, as sought to be canvased.
25. In fact the defendant's email at page No.3 of Ex.D4 wherein they claim to have lost the future business with their partner due to alleged laxity on the part of the plaintiff and Dw1's admission that it was the defendant who cleared the earlier invoices of the plaintiff would make it clear that the plaintiff has got nothing to do with M/s Tuskerberry Argo, as clarified by Pw1 during cross examination. Nor is there any convincing evidence adduced to establish that plaintiff's payments depended on the defendant receiving payment from the purchaser.
15 Com.O.S.No.640/2022
26. Further, when the defendant has failed to prove that the plaintiff delivered goods consigned under invoice, Ex.P3 dated 02.05.2021, as alleged M/s KWE Pvt. Ltd., who partnered with the plaintiff for shipping the consignment cannot be said to be a necessary and proper party. More so, when the plaintiff is not claiming any amount from its partner KWE Pvt. Ltd. or attributes any negligence on the part of the said partner. Therefore, the issue for consideration is answered in the negative holding that M/s Tuskerberry Argo and KWE Pvt. Ltd. are not necessary parties to the suit.
27. Issue No.3: The plaintiff has claimed interest at 18% p.a. from the date of invoice Ex.P3 till the date of realization. The invoice shows that the plaintiff had reserved right to charge interest at 24% p.a. on all amounts not paid within 7 days of the date of invoice. As provided under Sec.34 of the Code of Civil Procedure, the transaction being commercial in nature and since Ex.P3 provides for interest on delayed payment, I am of the opinion that the plaintiff is entitled for interest of Rs.1,09,530/- on the principal amount of Rs.6,08,510/- at the 16 Com.O.S.No.640/2022 rate of 18% p.a. as claimed in the suit. Accordingly the issue for consideration is answered in the affirmative.
28. Issue No.4: The evidence on record makes it clear that the defendant availed the services of the plaintiff for shipping Alphonso mangoes from the farmers in India to their partner M/s Tuskerberry Argo in London. When the plaintiff admittedly shipped the consignment to London through airlines and raised invoice Ex.P3, the defendant, having failed to prove the contention that goods were delivered in a damaged condition, ought to pay to the plaintiff the amount due under Ex.P3. Therefore, the issue for consideration is answered accordingly in favour of the plaintiff holding that they are entitled to Rs.7,18,040/- with interest at 10% p.a. from the date of suit till the date of realization and cost of the proceedings and the defendant is liable to pay the same.
29. Issue No.5: In the result, I pass the following ORDER Suit of the plaintiff is decreed with cost.
17 Com.O.S.No.640/2022
The plaintiff is entitled to Rs.7,18,040/- from the defendant together with interest at 10% p.a. from the date of suit till the date of realization.
Draw decree accordingly.
Issue copy of the judgment to the parties through email as provided U/o XX Rule 1 of CPC if email ID is furnished.
(Dictated to the Stenographer, transcribed and typed by her, corrected and then pronounced by me in the open court on this the 30th day of November 2022) (H.R.Radha) LXXXIV Addl. City Civil and Sessions Judge, (CCH-85 Commercial Court), Bengaluru ANNEXURE List of witnesses examined for the plaintiff:
Pw1 Alan R. Monteiro List of documents marked for the plaintiff:
Ex.P1 Authorization dated 20.10.2021
Ex.P2 Quotation dated 05.04.2021
18 Com.O.S.No.640/2022
Ex.P3 Invoice dated 02.05.2021
Ex.P4 Email correspondence
Ex.P5 Certificate U/s 65B of the Evidence Act
List of witnesses examined for the defendant:
Rw1 Ramnath Arumugam List of documents marked for the defendant:
Ex.D1 & D2 Email correspondence
Ex.D3 Screenshot of Whatsapp communication
Ex.D3(a) Relevant entry in Ex.D3
Ex.D4 Email correspondence
Ex.D5 Certificate U/s 65B of the Evidence Act
Ex.D5(a) Relevant entry in Ex.D5
Ex.D6 Certified true copy of Board Resolution
(H.R.Radha)
LXXXIV Addl. City Civil and Sessions Judge, (CCH-85 Commercial Court), Bengaluru