Calcutta High Court
Medi Carrier Pvt. Ltd vs Amira Pure Foods Pvt. Ltd on 20 November, 2018
Author: Moushumi Bhattacharya
Bench: Moushumi Bhattacharya
IN THE HIGH COURT AT CALCUTTA
ORDINARY ORIGINAL CIVIL JURISDICTION
ORIGINAL SIDE
Present:
The Hon'ble JUSTICE MOUSHUMI BHATTACHARYA
CS No. 32 of 2017
Medi Carrier Pvt. Ltd.
Vs.
Amira Pure Foods Pvt. Ltd.
For the Plaintiff : Mr. Reetabrato Mitra, Adv.
Heard on : 08.05.2018, 17.09.2018,
01.10.2018.
.
Delivered on : 20.11.2018.
Moushumi Bhattacharya, J.
1. This is a suit for a decree of Rs. 51,48,706/- for unpaid price of goods transported by the defendant for the plaintiff.
2. The case made out in the plaint is as follows: The plaintiff is a common carrier of diverse types of goods. The defendant is a producer and exporter of food products including rice and wheat. Between December 2015 and June 2016, pursuant to discussions between the plaintiff and the defendant, the plaintiff agreed to transport different types of food products by road from the defendant's company/works in Delhi and Gurgaon to various destinations within the country. The defendant promised to pay the freight charges for transportation of goods to the plaintiff upon submission of Bills/Invoices by the latter. Based on such assurance of the defendant, the plaintiffs between 21st December, 2015 and 5th June, 2016, transported diverse types and quantities of food products by road as a common carrier from the defendant's works to different destinations within the country under 140 Consignment Notes/Lorry Challans. The defendant accepted such transportation without raising any objection at any material point of time. Upon effecting delivery of the goods to the different consignees between 29th December, 2015 and 2nd July, 2016, the plaintiff raised 140 Bills/Invoices towards freight charges for such transportation of goods for a total sum of Rs. 56,91,516/-.
3. The plaint contains a schedule of particulars of the Bills/Invoices raised between 29th December, 2015 and 2nd July, 2016. The defendant received and acknowledged each of the said Bills/Invoices without raising any objection. The defendant also made part payments of a total sum of Rs. 10,10,600/- to the plaintiff by way of five cheques between 19th May, 2016 and 26th September, 2016. The defendant deducted a sum of Rs. 900/- from the total freight charges as billed by the plaintiff and issued a debit note/debit advice to the plaintiff for the said sum of Rs. 900/-. The plaintiff therefore gave credit of Rs. 10,10,600/- + Rs. 900/- totalling to Rs. 10,11,500/-. The plaintiff states that after giving credit for the part payment of Rs. 10,11,500/-, there is still due an owing from the defendant to the plaintiff the balance sum of Rs. 46,80,016/-, which the defendant has failed and neglected to pay. The plaintiff made several demands on the defendants in writing through electronic mail for payment of the outstanding amount. Upon reconciliation of amounts, the defendant by three electronic mails dated 13th September, 2016, 15th September, 2016 and 22nd December, 2016, unconditionally admitted that a sum of Rs. 45,40,483/- is due and payable by the defendant to the plaintiff and a sum of Rs. 1,39,533/- is payable by way of TDS and reduction from freight charges totalling to Rs. 46,80,016/-. In spite of the aforesaid admission of indebtedness made by the defendant, the defendant has failed and neglected to make payment of Rs. 46,80,016/- or any portion thereof till the date of institution of the instant suit. By a notice of demand dated 5th October, 2016 addressed by the plaintiff's advocate to the defendant, the plaintiff demanded the sum of Rs. 46,80,016/- together with interest calculated at the rate of 12% per annum from the date of the respective bills until payment thereof by the defendant. In spite of the receipt of such receipt by electronic mail dated 22nd November, 2016, the defendant failed and neglected to make payment of the said sum.
4. In view of the aforesaid, the plaintiff has claimed a sum of Rs. 51,48,706/- taking into account the part payment received from the defendant and the interest on the outstanding bill amounts calculated at the rate of 12% per annum from the date of the respective bills till 31st January, 2017. The plaint in the instant suit was affirmed on 14th February, 2017.
5. By an order dated 10th April, 2017 passed by Hon'ble Justice Soumen Sen, the defendant was given an opportunity to file its affidavit-in- opposition. An application was made by the plaintiff thereafter for substituted service on the defendant by way of publication. An order by the Master dated 29th June, 2017 mentions that an earlier attempt was made to serve the defendant by Bailiff as well as by Registered Speed Post with A/D but the service remained incomplete since the defendant could not be found at the address mentioned in the plaint. Publication was then directed to be made in The Times of India and a local newspaper circulated in New Delhi. An order dated 6th November, 2017 passed by Hon'ble Justice Sahidullah Munshi, recorded that despite substituted service, no one appeared for the defendant and the matter was transferred to the list of undefended suits.
6. The Witness of the plaintiff was thereafter examined and arguments concluded as recorded by an order dated 8th May, 2018.
7. Before going into the merits of the matter, it should be seen whether the suit is maintainable. The material disclosed in the plaint shows that the suit is maintainable in law and the plaintiff's claim for unpaid price for goods delivered is not barred by limitation. The cause of action for the suit arose partly within and partly outside the jurisdiction of this court and the plaintiff obtained leave under Clause 12 of the Letters Patent. This court is therefore vested with the jurisdiction to try the instant suit.
8. In order to prove its case, the plaintiff produced various documents which were marked as exhibits during the course of evidence. These documents are as follows: -
a. A Copy of a Letter of Authority dated 28th October 2017 issued by the plaintiff in favour of Rohit Kumar Pugalia.
b. Copies of E-mails dated 22.1.2016, 3.2.2016, 4.3.2016, 29.3.2016, 28.3.2016 and 21.4.2016 from the defendant to the plaintiff placing the order for transportation.
c. Copies of Consignment Notes dated between 21st December 2015 and 5th June 2016 issued by the plaintiff to the defendant.
d. Receipted copy of 141 Bills for freight charges dated between 29th December 2015 and 2nd July 2016 from the plaintiff to the defendant for a total sum of Rs. 56,91,516/-.
e. Copies of E-mails from the defendant to the plaintiff dated 13th September 2016, 10th September 2016, 15th September 2016 and 22nd December 2016.
f. A Copy of the Notice of Demand dated 5th October 2016 from the plaintiff is advocate to the defendant.
9. In support of its case, counsel for the plaintiff examined one Rohit Kumar Pugalia who is the Company Secretary of the plaintiff as well as its principal officer. The plaintiff's witness claimed to be aware of the instant proceedings and produced a letter of authority for representing the plaintiff. During the course of his deposition, the plaintiff's witness stated that the plaintiff transported goods on the orders of the defendant as a common carrier and that orders were given verbally by the defendant as well as through emails. The witness was shown the purchase orders given by the defendant to the plaintiff which were received by the plaintiff in the course of business. These documents were marked as Exhibit B. The plaintiff caused deliveries to be made to the respective consignees at various locations pursuant to these purchase orders. Consignment notes were issued to the defendant for transportation of their goods which were submitted by the plaintiff to the defendant along with the bills raised by the plaintiff. Witness deposed that the defendant received and acknowledged delivery of these consignments by putting signatures on the consignment notes. Witness also encircled in red ink on the first of such consignment notes showing that these documents were received by the defendant and were marked as Exhibit C collectively. Witness further deposed that after the plaintiff caused deliveries to be made and the consignment notes for such were received by the defendant, the plaintiff raised bills on the defendant along with consignment notes. These bills were prepared by the authorised employees of the plaintiff for submission to the defendant and were received by the defendant by way of putting its acknowledgement on the bills. The originals of the bills are in the records of the defendant as deposed by the plaintiff's witness and were marked as Exhibit D. Mr Pugalia then deposed that the total outstanding remaining on account of the goods transported by the plaintiff was Rs. 56 lakhs approximately for which bills were raised by the plaintiff on the defendant and that the plaintiff received part payment of Rs. 10 lakhs out of this amount. Witness deposed that currently the outstanding is therefore approximately Rs. 46 lakhs. The witness further deposed that the defendant has confirmed through e-mails that Rs. 46 lakhs is due to the plaintiff in relation to which a bunch of electronic mails was shown to the witness which were sent and/or marked to the plaintiff. The witness confirmed the correctness of these emails which were marked as Exhibit E collectively. The witness also deposed that the plaintiff has demanded the outstanding amount from the defendant and that the demand notice was written by the Advocate-on-record of the plaintiff who was instructed by the witness as a representative of the plaintiff. The demand notice was marked as Exhibit F. The witness then deposed that the plaint has been verified by him and the signature of the witness appears on the plaint. The witness also submitted that the plaintiff has claimed an interest at 12% per annum as the market accepted rate and hence the plaintiff's claim is for a decree for Rs. 51, 48,706/-along with costs and other relief.
10. I have seen the documents relied upon by the plaintiff's witness. The bills raised by the plaintiff on the defendant have all been received and acknowledged and signed by the defendant and the name of the defendant appears on all the bills. The bills were issued by the authorised signatory of the plaintiff and at page 262 of the Judges Brief of documents, there is a separate endorsement showing that on as on 4th March 2016, all the bills were received by the defendant. The defendant's seal and signature appears on this document. Pages 260, 266, 268 and 270 are repeats of these kinds of acknowledgements. Before that, I must mention that the consignment notes issued by the plaintiff on the defendant show that goods were transported from Gurgaon/Alipur (Delhi) to various places in India including Bhopal, Pune, Indore, Ahmedabad, Mumbai, Bangalore, Kolkata, etc. The lottery numbers by which the goods were transported, the description of the goods transported have been mentioned in the consignment notes which have been signed by the consignor/plaintiff. The defendant has been mentioned as the consignee in these consignment notes and the plaintiff has signed each of these consignment notes as the consignor.
11. The emails from the defendant to the plaintiff dated 13 September 2016, September 2016, 15 September 2016 and 22 December 2016 reflect that the defendant has unequivocally admitted that payments are outstanding in favour of the plaintiff. In the email dated 13 September 2016, the representative of the defendant, one Surendra Sharma, has stated that the defendant will try to release the payment at the earliest as this. This email has been addressed to one Manish Basniwal on behalf of the plaintiff. In the email dated 22 December 2016, one Himanshu Miglani, senior executive-Supply chain of the defendant, has written to various persons of the plaintiff that the outstanding due of the plaintiff's Rs.45,40,483 as per Reco done by Amira Accounts. The defendant has also confirmed that it shall start to pay the amount pending in favour of the plaintiff. The demand notice sent by the Advocate-on-record of the plaintiff to the defendant on 5th October 2016 clearly stated that Rs. 46,80,016/- together with interest calculated at the rate of 12% per annum was due from the defendant. The demand notice was sent to the defendant by Speed Post with acknowledgement due. It is evident that the defendant has failed and neglected to make payment of the outstanding amount to the plaintiff. There is no evidence to show that the letter of demand was not received by the defendant. In the absence of any response from the defendant, it can be assumed that the defendant avoided making payment of the legitimate dues of the plaintiff. The documents relied upon and shown to this court show that the plaintiff has transported goods pursuant to instructions given by the defendant as sent through the emails (Exhibit B) collectively. The consignment note issued by the plaintiff to the defendant shows that goods were transported from Delhi to various places. These consignment notes mention the defendant as the consignee and have been received by the defendants (Exhibit C). The email sent by the defendant to the plaintiff from September to December 2016 confirmed that the plaintiff delivered and/or transported the goods as instructed by the defendant through the orders placed for transportation. The said emails do not mention any complaints against the plaintiff or any dissatisfaction with the work done by the plaintiff. On the other hand, the defendant has unequivocally admitted that a sum of Rs. 45,40,483/- is due and owing to the plaintiff.
12. In light of the above documents and the arguments of Mr. Reetabrato Mitra, learned counsel appearing for the plaintiff, there cannot be any doubt that the defendant has failed and neglected to pay the plaintiff the price of goods duly delivered and that the defendant has no defence to the plaintiff's claim. The claim for interest at 12% per annum is also reasonable as it is the present market rate. The said rate had also been mentioned in the letter of demand sent to the defendant on 5 October 2016. In view of the aforesaid, this court is of the view that the plaintiff is entitled to interest at 12% per annum from the date of the respective bills until the date of actual payment which in the present case should be the date of disposal of the suit. The plaintiff is therefore entitled to the principal amount of Rs. 56,91,516/- on account of the 141 Bills/Invoices raised by the paid plaintiff between 29 December 2015 to 2 July 2016, less Rs. 10,11,500 received from the defendant between 19 May 2016 and 26 September 2016 inclusive of the amount covered by the debit notes as stated above. The balance principal amount due from the defendant under the invoices raised would then be Rs. 46, 80,016. The defendant would be liable to pay interest at 12% per annum from the date of the respective bills until the date of institution of the present suit which is 14th February 2017.
13. The defendant is directed to make payment of the entire sum as mentioned in paragraph 15 within a period of three months from the date of communication of the decree failing which the defendant shall be liable to pay further interest at 12% per annum on the entire decretal amount till realisation thereof.
14. The suit is decreed in terms of prayer (a).
15. The Department is directed to draw up and complete the decree as expeditiously as possible.
16. Urgent photostat certified copy of this judgement, if applied for, be delivered to the learned counsel for the plaintiff and the defendant, upon compliance of all usual formalities.
(MOUSHUMI BHATTACHARYA, J.)