Delhi District Court
Naresh Kumar Agarwal vs Container Corporation Of India on 27 October, 2018
IN THE COURT OF ANIL ANTIL, ADDITIONAL DISTRICT JUDGE
SOUTH EAST DISTRICT, SAKET COURTS, ND
Civil Suit No. 8150/16
Naresh Kumar Agarwal V/s Container Corporation of India
Naresh Kumar Agarwal
(Sole Priproetor of M/s Kanhaiya Imports)
S/o Late Sh. Om Prakash Agarwal
7393, 1st Floor, Guru Govind Singh Gali,
Gandhi Nagar, New Delhi110031 ....Plaintiff.
Versus
Container Corporation of India Ltd.
Regd. Office:
Concor Bhawan, C3, Mathura Road,
Opp. Apollo Hospital, New Delhi 110076
Also at:
Northern Region,
Inland Container Depot, Tuglakabad,
New Delhi 110044 .....Defendant
Date of institution of the suit : 27.09.2012
Date reserved for judgment : 06.10.2018
Date of pronouncement of judgment : 27.10.2018
Suit : Dismissed
JUDGMENT
1. The present suit for recovery of Rs.8,08,533/ along with pendente lite CS No. 8150/16 Naresh Kumar Agarwal Vs. Container Corporation of India Ltd. Page no. 1 of 19 and future interest @ 18% per annum has been filed by the plaintiff against the defendant.
2. Plaintiff's version as per averments in the plaint : 2.1 Succinctly, the plaintiff is engaged in the business of imports and trading of goods and cargo in the name and style of M/s Kanhaiya Imports being its sole proprietor.
2.2 That defendant is a public sector undertaking recognized as Navratna company under the supervision of M/O Railways, Govt of India. The defendant amongst other functions also hold regular auctions of the confiscated goods and cargo at its various offices and locations in India. 2.3 That one such eauction was conducted defendant's Northern Region, Inland Container Depot, Tughlakabad, New Delhi - the plaintiff's highest online auction bid was accepted by the defendant for the lot no.36 vide eauction ID 150 dated 09.05.2011, for the goods Cassia (Dal Chini). 2.4 That in this regard as demanded by the defendant, plaintiff the firstly deposited the earnest money of Rs.1,00,000/ on 09.05.2011 and then Rs.5,46,700/ on or about 24.05.2011 as 30 % of bid amount in terms of the auction.
2.4 That initially a 'balance payment intimation' letter dated 23.07.2011 was issued on behalf of the defendant calling upon the plaintiff to deposit balance payment on or before 26.07.2011 and take the delivery of auctioned lot on or before 02.08.2011.
2.5 That when the plaintiff approached the defendant in pursuance to this letter on or about 26.07.2011, he was told about a new condition, that the CS No. 8150/16 Naresh Kumar Agarwal Vs. Container Corporation of India Ltd. Page no. 2 of 19 auctioned lot was needed to be lab tested for checking / ascertaining its suitability & fitness for consumption, the same being food item, needed to be complied before effecting the delivery of the auctioned lot. 2.6 That in order to fulfill this condition the defendant asked the plaintiff to deposit 'lab testing charges' pertaining to the subject lot auction. It is stated that this condition did not exist when the notification of this auction came out and received by the deponent but later on at the time of taking delivery of subject lot, this was introduced i.e. at the eleventh hour by the defendant.
2.7 That the plaintiff was tersely told that as a policy matter until clearance is obtained from the defendant's testing agencies / laboratories and accordingly plaintiff under compulsion deposited lab testing charges amount to Rs. 6,625/ on 27.07.2011.
2.8 That plaintiff had further entered into contract for the sale of the goods with M/S K.D.Sons, Delhi. The auctioned lot was of perishable nature and delivery was not made by the defendant despite repeated reminders. Constrained thereby plaintiff issued legal notice to the defendant calling upon them to refund the aforesaid amount. But all the efforts were in vain. Defendant neither replied the notice nor refunded the amount. 2.9 That as per policy and precedent the delivery of auction goods is to be made within one month, but herein the defendant had taken more than 15months to finally give consent for taking delivery. It is stated that due to negligent conduct and fault of defendant the plaintiff had suffered huge losses;the intended purchaser had also cancelled the order of purchase given to the plaintiff. The defendant with malafide intentions has withheld the CS No. 8150/16 Naresh Kumar Agarwal Vs. Container Corporation of India Ltd. Page no. 3 of 19 delivery of the auction goods.
2.10 That the plaintiff had deposited Rs. 1 lakh as earnest money on 09.05.2011, 30% of bid amount, i.e. Rs. 5,46,700 on 24.05.2011 and Rs. 6,625/ as lab testing charges (Total sum of Rs. 6,53,325/), as demanded by the defendant.
2.11 Hence, the present suit filed for recovery of Rs. 8,08,533/.
3. WRITTEN STATEMENT/ DEFENCE OF THE DEFENDANT 3.1 In reply to the present suit, the defendant had appeared and filed his written statement on 15.12.2012.
3.2 In the WS, defendant has denied the claim of the plaintiff on merits; preliminarily objections are taken that suit is not maintainable in view of the express and clear arbitration clause in the TenderCumonline auction sale contract; the suit is bad for nonjoinder of necessary parties as defendant is merely custodian of the goods in terms of Sec48 of the Customs Act 1962. The suit fails to disclose any cause of action against the defendant. 3.3 On merits it is submitted that the terms of the contract between the parties clearly stipulate that the delivery of commodities to the purchaser shall be subject to the required clearance from the regulatory agencies and will be affected only after obtaining the requisite clearance. 3.4 That the alleged delay in delivery of the subject goods can in no way be attributed to the defendant as the defendant has in its capacity as custodians of the subject goods made all possible efforts to expedite the delivery of the subject goods in favour of the plaintiff. 3.5 The plaintiff have malafidely in order to avoid the performance CS No. 8150/16 Naresh Kumar Agarwal Vs. Container Corporation of India Ltd. Page no. 4 of 19 of the contract, have alleged such false and frivolous reasons for termination of the contract.
3.6 That the defendant bonafidely held the subject goods in their safe custody since the date of sale to the plaintiff and have incurred huge expenses in keeping the subject goods safe and in hygienic conditions, it being a perishable commodity. As per the terms of the contract the defendant is well within his rights to forfeit the amount deposited by the plaintiff if the plaintiff refuse to take delivery of the subjects goods. 3.7 It is denied that the requirement of lab testing the subject goods was introduced at the last minute when the plaintiff approached the defendant to take delivery of the subject goods. It is stated that the requisite regulatory compliances before delivery of the goods is a perennial practice of defendant and the plaintiff ought to have known the existence/performance of the regulatory inspections before the delivery of the subject goods. 3.8 It is submitted that the decrease in demand for the subject goods cannot be attributed to the defendant. The termination/refusal of goods by the plaintiff is without sufficient reason. It is further denied that the subject goods had become rotten on the date when the delivery was sought to have been given to the plaintiff. It is denied that the delivery of the subject goods was to be made within one month from the date of auction. 3.9 It is stated that the defendant was diligently and bonafidely pursuing the matter with the regulatory agencies to expedite the period of approval for the subject goods and no delay can be attributed to the defendant. Thus is submitted that the suit filed by the plaintiff lacks in substance. The plaintiff has deliberately concealed material facts from the CS No. 8150/16 Naresh Kumar Agarwal Vs. Container Corporation of India Ltd. Page no. 5 of 19 court. The suit ought to be dismissed with heavy cost.
4. REPLICATION 4.1 Plaintiff filed replication denying all the submissions made in the WS; the material averments of the plaint were reiterated.
5. ISSUES Before proceedings further, I must state that in the present case issues were framed on 13.05.2016 which read as under:
(i) Whether the plaintiff is entitled for the claimed sum of Rs. 8,08,533/? If so at what rate of interest? OPP
(ii) Whether the suit is bad for misjoinder & nonjoinder of necessary parties? OPD
(iii) Whether the suit is not maintainable in view of contractual provisions as mentioned in preliminary objection no. 5 of the written statement? OPD
(iv) Relief.
6. EVIDENCE Plaintiff's Evidence 6.1 In order to prove his case, plaintiff examined himself as PW1 and tendered his evidence by way of affidavit which is Ex. PW1/A, wherein he has reiterated the averments made in the plaint. During his deposition, he also relied upon the documents, i.e. copy of certificate of Importer Exported Code (IEC) is Ex. PW1/1 (OSR), copy of plaintiff's bank's statement account is Ex. PW1/2 (OSR), balance payment intimation letter dated 23.07.2011 of the defendant is Ex. PW1/3, endorsed copy of plaintiff's letter dated 26.07.2011 is Ex. PW1/4, acknowledged copy of plaintiff's reminders dated CS No. 8150/16 Naresh Kumar Agarwal Vs. Container Corporation of India Ltd. Page no. 6 of 19 10.05.2012, 06.06.2012 and 02.07.2012 are Ex. PW1/5 to Ex. PW1/7 respectively, copy of the legal notice dated 09.07.2012 is Ex. PW1/8 and stamp of the defendant in acknowledgment of receipt is MarkedA, order cancellation letter dated 11.07.2012 is Ex. PW1/9 and letter dated 22.08.2012 of defendant is Ex. PW1/10. Plaintiff closed his evidence. Thereafter, matter was fixed for DE.
Defendant's Evidence 6.2 In order to prove its case, defendant examined Deputy General Manager (working as Terminal Manager) for defendant as DW1 Sh. Sumant Kumar Behera, tendered his evidence by way of affidavit which is Ex. DW1/A. During his deposition, he relied upon the documents exhibited as Ex. DW1/1 to Ex. DW1/8 (Ex. DW1/1 and Ex. DW1/2 objected to the mode of proof by the plaintiff and Ex. DW1/1 also on the ground that the same is produced for the first time before the Court).
This is the entire evidence adduced in this matter.
7 ARGUMENTS 7.1 I have heard the submissions advanced by the plaintiff. I have also perused the entire case record meticulously. I am of the considered opinion that the suit of the plaintiff be dismissed for the reasons stated herein. ISSUEWISE FINDINGS
8. Issue : (ii) Whether the suit is bad for misjoinder & nonjoinder of necessary parties?OPD 8.1 Onus of this issue was upon the defendant. To discharge the onus it was deposed by DW1 that the defendant is merely a "custodian" of CS No. 8150/16 Naresh Kumar Agarwal Vs. Container Corporation of India Ltd. Page no. 7 of 19 the goods as provided under Section 48 of the Customs Act, 1962. It is stated that the uncleared goods at the port can only be sold/delivered with the prior permission as well as directions of the Custom authorities and therefore, the instant suit is not maintainable against the defendant herein. Further that the custom authority is a necessary party to the suit ; plaintiff has not impleaded them, the suit therefore is liable to be dismissed for nonjoinder of necessary part. I have my doubts with that.
8.2 The extract of Section 48 of the Customs Act, 1962 is reproduced herein:
"Section 48. Procedure in case of goods not cleared, warehoused, or transshipped within thirty days after unloading - If any goods brought into India from a place within thirty days from the date of the unloading thereof at a customs station or within such further time as the proper officer may allow or if the title to any imported goods is relinquished, such goods may, after notice to the importer and with the permission of the proper officer be sold by the person having the custody thereof:
Provided that
(a) animals, perishable goods and hazardous goods, may, with the permission of the proper officer, be sold at any time;
(b) arms and ammunition may be sold at such time and place and in such manner as the Central Government may direct."
8.3 I think the provision is abundant clear in itself. It empowers the person having the custody of the goods uncleared, warehoused, or transshipped to sell after notice and prior permission. Admittedly the custody of the goods herein was with the defendant. The bid was also floated CS No. 8150/16 Naresh Kumar Agarwal Vs. Container Corporation of India Ltd. Page no. 8 of 19 for and on behalf of the defendant, i.e CONCOR. The offer of the plaintiff was also accepted by the defendant, and certainly not by and/or on behalf of the custom. The contract was concluded and executed between plaintiff and defendant. Merely because defendant was required to take prior permission from Customs department would not make them a necessary party to the present dispute. Except granting permission, custom authority had no role to play. Besides that there was no privity of contract between the plaintiff and the custom authority.
8.4 In light of the above noted facts I am of the view that custom authority is not a necessary party to the present dispute. The issue accordingly stands decided against the defendant and in favour of plaintiff.
Issue No. iii) Whether the suit is not maintainable in view of contractual provisions as mentioned in preliminary objection no. 5 of the written statement?OPD 9.1 The issue has since then become infructuous in light of the provisions of Section 8 of the Arbitration & Conciliation Act, an application under Section 8 Arbitration & Conciliation Act, was moved by the defendant which was disposed of as dismissed for noncompliance of SubSection 2 of Section 8 Arbitration and Conciliation Act. The appeal against the said order was also disposed of as dismissed with observations that the plea regarding ETender of the document was not raised before the trial court at the time the application under Sec8 was argued, and the appellant/the defendant can not now be permitted to raise new contentions and make out a new case, while hearing petition under Art.227.
CS No. 8150/16 Naresh Kumar Agarwal Vs. Container Corporation of India Ltd. Page no. 9 of 19 Suffice to say clause 12 specifically states that:
12.0 DISPUTES
i) In case of any dispute, the same shall be referred to a single arbitrator, to be appointed by the Container Corporation of India and the Arbitration proceeding would be governed by "Arbitration & Conciliation Act, 1996".
ii) The fees and expenses towards arbitration proceeding shall be shared, equally, by the parties to the dispute and shall be paid in advance to the auctioneer. The jurisdiction for appealing against the award in a court, or any other proceeding under the Arbitration Act, shall be that of Courts in Delhi/New Delhi only.
9.2 In light of these facts, the issue whether there existed arbitration clause between the parties is merely of academic discussion. Indisputably the objection under Sec8 of A& C Act can only be raised before filing of 'first substance of the dispute'. If the objection is not taken before filing of defence, it is deemed to have being waived off. The defendant in such a case is said to have acquiesced himself to the jurisdiction of the court. Interestingly in the present case the Application under Sec8 of A&C Act was moved by the defendant which was disposed of on merits. Further the controversy was put to rest by the Hon'ble H.C when the challenge to said order was also dismissed. I don't think that in the backdrop of the facts the issue herein ought to have been framed at all. The issue thus stands decided as infructuous.
Issue No. (i) Whether the plaintiff is entitled for the claimed sum of Rs. 8,08,533/? If so at what rate of interest?OPP CS No. 8150/16 Naresh Kumar Agarwal Vs. Container Corporation of India Ltd. Page no. 10 of 19 10.1 Onus of issue no. (i) is upon the plaintiff 10.2 The sum and substance of the claim of the plaintiff is premised on this plea that the quality check clearance was incorporated and intimated to the plaintiff at the last moment after the defendant, vide letter dated 23.07.2011Ex. PW1/3, had asked the plaintiff to make the remaining payment and take delivery accordingly. Pw1 has also deposed in line to the averments and same are not repeated here for the sake of brevity. 10.3 On the other hand, the case of the defendant is that the plaintiff was well aware about the clause in the tender document which stipulates delivery that shall be subject to clearance by competent authority; and that no time frame was fixed for the delivery; and that as soon as the clearance from the Quarantine Department was taken, they had immediately informed the plaintiff with a request to take the delivery of the goods. Plaintiff failed to take the delivery of the goods whereby substantial loss was caused to the defendant. That the plaintiff has concealed the material facts from the court with intent to create false cause of action. And I too am unshakably convinced with the submissions of the defendant.
10.4 It is explicit that clause 10(iii) of the said contract /e tender document states that the delivery of goods shall be subject to requisite clearance.
"10.0 Delivery
iii) Delivery of commodities requiring clearance from other regulatory agencies like CFL, P&Q, ADC, Chemical examiner, police deptt. And other agencies etc. will be effected only after obtaining the requisite CS No. 8150/16 Naresh Kumar Agarwal Vs. Container Corporation of India Ltd. Page no. 11 of 19 clearances."
10.5 It is evident from the above said clause that delivery of the goods shall be done only after obtaining the necessary clearances from all the respective regulatory agencies/Government Agencies, depending upon the nature of the subject goods. Requisite clearance was a condition precedent and mandatory before the plaintiff could have been handed over the delivery. 10.6 Pw1 deposed to say that till the time of auction, there was no confusion for getting edible goods tested and that no prior intimation of subjecting the lot of Cassia (Dal Chini), the goods in question herein, for quality check was intimated to the plaintiff. But relevant to note is the fact that PW1 admits in his crossexamination that the auction for this case was conducted online by the defendant and that he had seen the value items, list of items on the bidding process.
10.7 With the intent to show that no contract between the parties was ever executed, plaintiff had put a specific question to Dw1 in cross examination that 'ConcorTender cum Online Auction' Ex. DW1/2 was not signed by the parties. But fact remains that the case of the plaintiff is off shot of the same etender document which he conspicuously is denying, and that too in a piece meal. The three essential elements in a contract of sale made at auctions i.e.1) an offer; 2) an acceptance; and 3) consideration are very much in the present case.
10.8 Though on the first blush it appears that DW1 in cross examination has admitted that the requirement of NOC about the fitness came subsequent to the Auction and that plaintiff was told about the condition regarding the NOC/ clearance/lab test report only on 26.07.2011.
CS No. 8150/16 Naresh Kumar Agarwal Vs. Container Corporation of India Ltd. Page no. 12 of 19 But careful reading of the crossexamination as a whole transpires that the said question was specifically in relation to a letter dated 26.07.2011. The answer has to be read in context of the said letter which undoubtedly was the first letter after auction vide which defendant had intimated the plaintiff about the NOC. It however can not be construed to mean that there is specific admission on the part of defendant about the fact that plaintiff was not aware about the requirement of clearance from the competent department at the time he submitted his Bid. Which is also apparent vide the subsequent voluntary statement of the witness to say that the terms of NOC/clearance were part of the tender document.
10.9 Besides that the case of the plaintiff exfacie is contradictory to the terms and conditions contained in the etender bid document. At this juncture, a useful reference be made to provisions of Section 91 and 92 Indian Evidence Act which debars oral testimony to contradict/vary the terms of the written document:
Section 91 contemplates that when something is to be done to be reduced into writing as per law and such terms are reduced into writing, no evidence shall be given in proof of such document except by the document itself. Similarly, Section 92 excludes any oral agreement or statement for the purpose of contradicting varying, adding to, or subtracting from a contract required by law to be reduced in the form of a document.
The terms in the contract are explicit in itself. Plaintiff cannot now be permitted to take the oral pleas that no precondition was stipulated in the document or that he was not aware any such condition/clause. 10.10 Plaintiff cannot be permitted to blow hot and cold. On one hand CS No. 8150/16 Naresh Kumar Agarwal Vs. Container Corporation of India Ltd. Page no. 13 of 19 Plaintiff has denied tender auction document, but at the same time, evident it is from the documents filed on behalf of plaintiff that the entire suit is premised on the said eauction bid document. On each and every document relied upon by the plaintiff, online auction bid for the lot no.36 vide eauction ID 150 dated 09.05.2011 is specifically mentioned. The said tender document has been relied upon by the plaintiff to stake his claim whilst at the same time the terms which brings out the true facts of the dispute are surprisingly denied by the plaintiff. The case of the plaintiff is premised on false pleas having no ring of truth in it. The terms and conditions of the bid document are abundantly clear and there is no ambiguity in the terms of the document. 10.11 Further it is important to note that there is no clause in the agreement/bid documents qua the timeline, requiring the defendant to deliver the goods in a specified time. Time was not the essence of the contract. And important to note that Dw1 has produced and proved on record the test report/clearance from the Food & Safety Authority of India, of the Quarantine Department, Ex. Dw1/6 to demonstrate that the goods were consumable at the time plaintiff was intimated about the clearance and was asked to take the delivery vide letter dated 21.07.2012 Ex.Dw1/7. The above noted facts also remained uncontroverted during crossexamination of Dw1. 10.12 The contention to say that the subject lot was an edible item and therefore it had the tendency of getting rotten is also without substance as said above the defendant had clearly taken the quality check report in the letter/inspection /quality check report from Food & Safety department that the lot was consumable. Further to say that goods were rotten is also based upon the hearsay evidence and on a general perception that the edible goods CS No. 8150/16 Naresh Kumar Agarwal Vs. Container Corporation of India Ltd. Page no. 14 of 19 get rotten after such a long time. The submissions have no force. 10.13 Coming to next question regarding refund of the amount paid by the plaintiff. Clause 5 of the said contract i reproduced herein in respect of earnest money deposit:
"5.0 Earnest Money Deposit After display of results on the website, the successful bidders will be required to pay the Earnest Money Deposit as follows:
30% of the bid value in case of OK/accepted Lots. 20% of the bid Value in case of STA/Subject to Approval Lots. The amount of Caution Money Deposit paid by the bidder can be adjusted against the EMD payable.
The Earnest Money Deposit (EMD) should be deposited within Five working days after the display of results on the website at the offices wherein of Matexnet Pvt. Ltd. in the form of crossed Demand Draft or Pay Order any Scheduled/Nationalized Bank drawn in favour of "Container Corporation of India Ltd." payable at New Delhi..........................Failure to submit the Earnest Money Deposit within the time specified would result in forfeiture of the initial caution money deposit, without any further notice."
10.14 As is imperative the case of the plaintiff falls under the second category whereby plaintiff was required to pay 20% of the Bid value as delivery of the goods was subject to approval.
10.15 It is further important to read the provisions laid down under clause 8(ix) of the said Contract, which is reproduced herein as follows:
"If the purchaser fails to make payment and/or take delivery of the material, Container Corporation of India Ltd., shall have the right to re CS No. 8150/16 Naresh Kumar Agarwal Vs. Container Corporation of India Ltd. Page no. 15 of 19 auction the undelivered material immediately in the next auction without any intimation to the successful bidder/tenderer and the Earnest money deposited by the bidder/tenderer shall be forfeited."
10.16 It would also be useful here to refer to Clause 10(ix) of the said Contract, the same is being reproduced herein:
"ix) Container Corporation of India Ltd. will not be in any way responsible for failure to deliver the goods as per delivery schedule due to causes beyond their control such as strikes, lockouts, shortened hours, act of God or other causes or contingency whatsoever. The bidder shall not be entitled to cancel the contract & the period of delivery shall automatically be extended accordingly."
10.17 From a plain reading of the aforesaid provisions it is evident that the bidder was not entitled to cancel the contract. The terms are explicit in this regard. It is also clear that on the failure to take the delivery by the auction purchase the deposit already made by auction purchaser towards earnest money and security money shall be forfeited.
10.18 Indisputably, the plaintiff was declared as auction purchaser and, in fact, he had deposited 20% approximately of the bid amount, i.e. Rs. 6,46,700/ as earnest money + 6,625/ lab testing charges in terms of clause 5 of the document. It is further an admitted position that the plaintiff did not take the delivery of the auctioned lot/goods.
10.19 Hence, in terms of the above quoted clauses, the money deposited by the plaintiff is liable to be forfeited. As stated above, the plaintiff's plea is that it was due to the last minute incorporation of the CS No. 8150/16 Naresh Kumar Agarwal Vs. Container Corporation of India Ltd. Page no. 16 of 19 clearance clause, and that due to delay on the part of the defendant the goods which were edible had become rotten and hence he did not take the delivery is without any substance. The argument is devoid of merits. The terms of the contract herein are positive and absolute in terms not subject to any condition either express or either implied, except as per terms of clauses 5 and 10(ix) of the agreement, the plaintiff had absolute no right to rescind the contract.
I must state that when the party by his own contract creates the duty he is bound to make it good, if he may, notwithstanding any accident or any other circumstance by inevitable necessity because he might have provided against it by his contract.
10.20 It would also be fruitful to refer to the decision of the Hon'ble Supreme Court of India in Satish Batra vs. Sudhir Rawal (2013) 1 SCC 345, wherein the Hon'ble Court in the similar circumtances has held that:
15. Law is, therefore, clear that to justify the forfeiture of advance money being part of 'earnest money' the terms of the contract should be clear and explicit. Earnest money is paid or given at the time when the contract is entered into and, as a pledge for its due performance by the depositor to be forfeited in case of nonperformance, by the depositor. There can be converse situation also that if the seller fails to perform the contract the purchaser can also get the double the amount, if it is so stipulated. It is also the law that part payment of purchase price cannot be forfeited unless it is a guarantee for the due performance of the contract. In other words, if the payment is made only towards part payment of consideration and not intended as earnest money then the forfeiture clause will not apply.
CS No. 8150/16 Naresh Kumar Agarwal Vs. Container Corporation of India Ltd. Page no. 17 of 19
16. When we examine the clauses in the instant case, it is amply clear that the clause extracted hereinabove was included in the contract at the moment at which the contract was entered into. It represents the guarantee that the contract would be fulfilled. In other words, 'earnest' is given to bind the contract, which is a part of the purchase price when the transaction is carried out and it will be forfeited when the transaction falls through by reason of the default or failure of the purchaser. There is no other clause militates against the clauses extracted in the agreement dated 29.11.2011.
17. We are, therefore, of the view that the seller was justified in forfeiting the amount of Rs.7,00,000/ as per the relevant clause, since the earnest money was primarily a security for the due performance of the agreement and, consequently, the seller is entitled to forfeit the entire deposit. The High Court has, therefore, committed an error in reversing the judgment of the trial court.
10.21 Thus, reading the above noted clauses, i.e. 5, 8(ix) and 10(ix) in backdrop of the proposition of law discussed above, it is crystal clear that the defendant was legally entitled to forfeit the money deposited by the plaintiff since the purchaser (the Plaintiff herein) refused to make full payment and take delivery of the subject goods in spite of various opportunities given by the defendant. Therefore, the plaintiff is liable for breach of contract, and thus, the entire money deposited by the Plaintiff is legally entitled to be forfeited by the defendant.
11. RELIEF
11.1 In view thereof, considering the findings on the issues discussed CS No. 8150/16 Naresh Kumar Agarwal Vs. Container Corporation of India Ltd. Page no. 18 of 19 above, I am of the considered opinion that plaintiff has failed to establish his case and the suit accordingly stands disposed of as dismissed.
Decree be drawn accordingly. Cost be awarded in favour of defendant.
File be consigned to record room.
Announced in the open Court (Anil Antil) Today on 27.10.2018 ADJ05, South East, District(SE) Saket Court, New Delhi
CS No. 8150/16 Naresh Kumar Agarwal Vs. Container Corporation of India Ltd. Page no. 19 of 19