Delhi District Court
M/S Aliance Logistics Pvt. Ltd vs M/S Hussain Handicrafts on 19 August, 2013
IN THE COURT OF SH. V.K.JHA: CIVIL JUDGE-10(Central): TIS HAZARI
COURTS: DELHI
SUIT NO.399/13
M/s Aliance Logistics Pvt. Ltd.
1016-1018, Vishal Tower, District Center,
Janakpuri, New Delhi-110058
through its Director and Constituted attorney Mr. Raman Garkhel
.........Plaintiff
Versus
1. M/s Hussain Handicrafts,
14, Heavy Industries Area,
Near Third Circle, Dairy Road,
Jodhpur, Rajasthan,
Through its proprietor/incharge.
2. Mr. Basheer Ahmed
Proprietor/incharge of
M/s Hussain Handicrafts,
14, Heavy Industries Area,
Near Third Circle, Dairy Road,
Jodhpur, Rajasthan
...............Defendant
Date of Institution :20.10.2005
Date on which judgment was reserved: 26.07.2013
Date of Pronouncing judgment: 19.08.13
SUIT UNDER ORDER 37 RULE 1 & 2 OF CODE OF CIVIL PROCEDURE FOR
RECOVERY OF RS. 2,83,786/-
JUDGMENT:-
1. Vide this judgment I shall dispose of the suit under Order 37 of Code of Civil Procedure preferred by the Plaintiff.
2. The facts of the case of the Plaintiff are that the plaintiff is a company incorporated under the companies Act, 1956 having its registered office at 1016-1018, Vishal Tower, District Center, Janakpuri, New Delhi-110058 Mr. Raman Garkhel is the director and duly constituted attorney of the plaintiff company. He has been authorised by the resolution dt. 28-4-2005 and the power of attorney dt. l 2-5-2005 to sign, institute and pursue the present case. The defendant no. I concern is engaged in export of goods including wooden furniture. The defendant no. 2 is the proprietor/incharge of the defendant no. 1 concern and dealt with the plaintiff company on behalf of the defendant no.1 concern along with his son Rais Ahmad. The plaintiff company is a freight forwarding company and was approached by the defendants and the son of defendant no. 2 for export of their shipments from ICD Jodhpur to Grangemouth, U.K. to their consignee M/S Gateworld Scotland Ltd., U.K. and had approached the plaintiff company with the reference of their consignee. The defendant no. 2 and his son spoke to the plaintiff on phone and told to the plaintiff that they were having regular business dealings with the MIS Gateworld Scotland Ltd. and were intending to place orders with the plaintiff company. The consignee also spoke to plaintiff on phone regarding the shipments and sought quotations for the same which were submitted by the plaintiff company. Subsequent to the receipt of quotation from the plaintiff company, the defendants had placed an order at the agreed rate of ocean freight of USD 2675 each i.e. Rs. 1,21,017 (Rupees One Lac Twenty One Thousand Seventeen only) each for two full container loads containing packages of wooden items of Art Indian Furniture on 'said to contain' basis. The plaintiff company had accordingly booked the shipments with the carrier line Maersk Sealand and issued two debit notes to the defendant no. 1 concern towards payment of ocean freight, terminal Handling charges and bill of lading charges vide debit note no. DEL/751/E/04/04 dt. 13-4-2004 for Rs. 1,34,497 /- and debit note no. DEL/752/E/04/04 dt. 13-4-2004 for Rs. 1,34,497/-. The defendant no. 2 and his son contacted the plaintiff company on phone and told to the plaintiff that the defendants were intending to place more orders on the plaintiff company and would give huge future business to the plaintiff. The defendants represented to the plaintiff that the plaintiff would get their payments without any delay and had requested plaintiff company to issue prepaid bills of lading to them and told plaintiff that the payment of freight would be made to plaintiff by the consignee immediately after the receipt of the bill of lading by them from the plaintiff company. That the consignee of the defendants gave similar promises of more orders and immediate payment to the plaintiff and requested the plaintiff to get prepaid Bills of lading issued to the defendants from the carrier line. On such promise and inducement made by defendants as well as their consignee, the plaintiff company according booked the shipments with the carrier line Maersk Sealand with the terms of freight prepaid vide Bill of Lading Nos. 109821017 and 109821018 dt. 15-4-2004 and plaintiff company made the payment of freight to the carrier line on behalf of the defendants in respect of their said orders. As per instructions given by the defendant no. 2, plaintiff issued two debit notes in favour of the consignee towards payment of ocean freight vide debit note nos. 11 A/04 and l 2A/04 dt. 15-4-2004 for USD 2725 each issued in the name of the consignee for payment of ocean freight and handling fee. Subsequently, as per the instructions given by the defendants, the plaintiff issued two revised debit notes towards terminal handling charges and BIL charges vide Debit note nos.
Al/EXP/000003/2004-2005 and AL/EXP/000004/2004-2005 dt. 20-4-2004 for Rs. 13,480/- each in respect of the said jobs. In order to show the bonafide, on their part, the defendants made the payment of Rs.26,960/- by way of demand draft against the said debit notes for terminal handling charges and B/L charges. Subsequently, the defendants requested plaintiff to supply bills of lading to them. The Plaintiff Company requested the defendants to make the payment of ocean freight before supply of the B/Ls in view of the fact that the plaintiff company had deposited the charges of ocean freight on behalf of the defendants with the carrier line. The defendants assured Plaintiff Company that the plaintiff would get the payment from the consignee immediately after the supply of B/Ls to them as promised by them as well as their consignee earlier also. The defendants, further assured the plaintiff company that being the shipper, they were and would always be responsible for the payment of the plaintiff company. The defendants sent their representative Mr. Dinesh to the plaintiff company's office a number of times who also assured plaintiff that the payment of Plaintiff Company would be made on time. On such promises and inducement made by defendants, the plaintiff company handed over the original B/Ls to Mr. Dinesh, representative of the defendants. Thereafter the plaintiff approached the defendants as well as their consignee for payment. The defendants informed the plaintiff that their consignee would make the payment shortly and kept assuring plaintiff regarding the payment. In the second week of May 2004, when plaintiff demanded payment of freight from the defendants, they informed Plaintiff Company that they had cancelled the order with the buyer i.e. M/S Gateworld Scotland Ltd. and had changed the buyer. The case of the plaintiff is that it was on the request and assurance of the defendants that the plaintiff had made the payment of freight on their behalf to the carrier line and without making the payment of Plaintiff Company, the defendants had got the name of buyer changed from the carrier line without knowledge of the plaintiff company. The Plaintiff Company requested the defendants for making payment of freight because the payment of freight was made to the carrier line by plaintiff on their behalf and on their request. Moreover, the terms of Bill of lading being prepaid, the defendants, being the shipper were liable to make the payment of freight to the plaintiff company. The defendants, however, asked the plaintiff company to contact Mr. Nazir Kashmere for payment. That plaintiff immediately contacted Mr. Nazir Kashmere for their payment. He however, categorically refused to make the payment of plaintiff stating that since the defendants had cancelled the order, payment of plaintiff was to be made by the defendants. The plaintiff company raised debit notes nos. AL/EXP/625/2004 and AL//EXP/626/2004 dt. 18-5-2004 for Rs. 1, 19,038/- each to the defendants towards payment of ocean freight. Subsequently, plaintiff approached the defendants for their payment but they have not made the payment to plaintiff and have continuously evaded the issue of payment to plaintiff after getting the payment of freight made to the carrier by the plaintiff. When the due payment was not made, the plaintiff company issued a legal notices dt 19-7-2004 to the defendants and the son of the defendant no. 2 by Registered post as well as UPC, demanding their payment. But the defendants did not make the payment. In these facts anc circumstances the plaintiff preferred the present suit under the provisions of Order 37 of CPC for the recovery of Rs. 2,83,786/- along with pendentlite and future interest @ 18% p.a. from the filing of the suit till the date of the payment.
3. The summons of the suit was issued and the application for leave to defend of the defendants was allowed vide order dated 27.11.2007 and the defendants were directed to file the written statement within 30 days from the date of the order. Perusal of the order sheet dated 13.05.2008 reveals that the written statement filed by the defendants were not taken on record as the same was not filed within the time which was directed by the court and vide order dated 05.08.2008 the defence of the defendants were strucked off. Thereafter an application under section 151 of CPC on behalf of the defendants were moved for recalling the order dated 05.08.2008 which was dismissed vide order dated 05.06.2010. From the order dated 11.12.2012 it appears that certain appeal was filed (by defendants?) which was dismissed as withdrawn.
4. I have heard the arguments and perused the record.
5. The present suit was under the provisions of Order 37 of CPC and though the leave to defend the suit was granted to the defendants, but as the defendants did not file the written statement within the stipulated time the defence of the defendants were strucked off vide order dated 05.08.2008. The effect of the striking of the defence of the defendants would be that the plaintiff was entitled to the decree forthwith when the defence of the defendants were strucked off, because of the reason that the suit is not a regular suit for recovery but it is the suit for recovery under the provisions of Order 37 of CPC. The Hon'ble Bombay High Court in Forward Financial v. Primus Chemicals Ltd. 2009(2) BCR 495, in para 1 of the judgment observed:
"1. Unconditional leave was granted to the Defendants in the Summons for Judgment taken out in this suit on 28 th August, 2000. The Defendants were directed to file their written statement within 12 weeks of that date. Parties were directed to file their affidavits of documents within 8 weeks thereafter and complete the discovery and inspection within 8 weeks thereafter. Suit was transferred to the list of Commercial Causes. The Defendants were to file their written statement by 27th December, 2000. The Defendants failed to file their written statement. The further directions were not complied. The suit could not appear on the list of Commercial Causes. The order on the Summons for Judgment remained at that. Due to such non-compliance, decree under Order 37 Sub Rule 3(6)(b) was required to be passed. Since the directions given at the hearing of the Summons for Judgment were not complied and the Plaintiff became entitled to judgment forthwith."
6. In view of the discussion herein above the suit of the Plaintiff is decreed with costs for the sum of Rs. 2,83,786/- along with pendentlite interest @ 18% p.a from the date of the institution till the date of the decree and thereafter interest at @ of 9% from the date of the decree till the actual realization. Decree-sheet be prepared accordingly file be consigned to the record room.
Announced in the open
Court on 19.08.2013 (V.K.Jha)
CJ-10(Central)/THC/Delhi
19.08.13