Delhi District Court
M/S Sai Cargo Logistics vs M/S Prime Hortiagro Project Limited on 7 September, 2019
IN THE COURT OF SH. SATVIR SINGH LAMBA
ACJ-CUM-CCJ-CUM-ARC (NORTH), ROHINI COURTS, DELHI.
CS No.27/17
New CS No.105/17
In the matter of :
M/s Sai Cargo Logistics,
RGT. Off. Shop no. 5, CW-48,
Sanjay Gandhi, Transport Nagar,
Delhi-110042 (Through its Proprietor)
.........Plaintiff
VERSUS
1. M/s Prime Hortiagro Project Limited,
At 32-A, Tribhuvan Complex, Friends
Colony, (W) Mathura Road, New Delhi
2. Sh. Anuj solanki (Prop./Partner),
M/s Prime Hortiagro Project Limited,
At 32-A, Tribhuvan Complex, Friends
Colony, (W) Mathura Road, New Delhi
........... Defendant
Date of Institution : 27.01.2017
Date Reserve for orders : 04.09.2019
Date of Decision : 07.09.2019
JUDGMENT
1. Present suit has been filed on behalf of the plaintiff for recovery of sum of Rs.56,000/- along with pendentelite and future interest @ 18% per annum.
CS No.105/17 Page 1 of 14
BRIEF FACTS
2. The plaintiff is a proprietorship concern and is engaged in the business of transport contractors. Defendant no. 2 is claimed as a proprietor of defendant no. 1 company. I tis alleged that in October 2015, defendants approached the plaintiff for transportation of goods and items from Delhi to District Pulwama Kashmir. It is further al- leged that defendant has confirmed his order via email dated 26.10.2015. It is further alleged that the defendant had paid a sum of Rs.10,000/- to the plaintiff as an advance. It is further alleged that the consignment of the defendants was duly received by them on 07.11.2015 at District Pulwama, J & K. Plaintiff has also raised the bill/invoice dated 26.10.2015 for balance payment of Rs.56,000/-, which was duly received by the defendant no.2 on 17.11.2015. It is alleged that plaintiff has approached the defendants several time for his dues but all in vain. Hence, plaintiff has served a legal notice dated 13.06.16 upon the defendants. Despite service of legal notice defendant had not paid the outstanding amount. Hence, the plaintiff has filed the present suit for the recovery of Rs.56,000/-. CS No.105/17 Page 2 of 14
WRITTEN STATEMENT
3. Defendants were served with the summons of the court. In their written statement, the defendants have contended that suit is false & frivolous and is without any cause of action. It is contended that the defendant no.1 is a project consulting company and defendant no.2 is a Manager of of the defendant no.1 company. It is contended that the defendant no.1 is a limited company and defendant no.2 is not the owner of the defendant no.1 company. It is further contended that the defendant company had to transport 1X40' hi cube container to project site at Industrial Growth Centre, Lassipora, Pulwama District, Jammu and Kashmir from ICD Tuglakabad, Delhi and return empty container to ICD Dadri (UP). It is further contended that the defendant company was specifically informed to use a low bed trailer for transportation of 40' hi cube container as there is a height restriction in Jammu & Kashmir on the way of its destination in Jawahar Tunnel. It is further contended that the plaintiff has assured the defendants that the consignment will be CS No.105/17 Page 3 of 14 sent through low bed trailer and will reach at its destination within 4-5 days. On the assurance of the plaintiff, the defendants had booked the consignment on the rates of low bed trailer, as the rates of high bed trailer is Rs.95,000/- and rates of low bed trailer 1,50,000/-. It is further contended that the despite assurance, the consignment had not reached at its destination in 4-5 days, whereas it takes 11 days to reach at Pulwama in Jammu & Kashmir and also took 10 days time from Pulwama to ICD Dadri. It is further contended that later on defendants came to know that the plaintiff has sent the consignment through high bed trailer, due to which truck was stuck on its way at Jawahar Tunnel. It is further contended that the transport takes around 12 extra days, hence, the plaintiff has to pay a cost of Rs.9611.91 per day i.e. 1,15,342.92/- for 12 extra days. It is contended that due to abovesaid delay, defendants have bear loss of one year of cold store operations as the apple season was lost. Hence, plaintiff is not entitle for any amount. It is contended that the plaintiff has filed the present suit only to harass the defendants. All the other averments were denied in toto.
CS No.105/17 Page 4 of 14
ISSUES
4. After completion of pleadings, following issues were framed on 01.09.2018:
(i) Whether the plaintiff is entitled to recovery of Rs.
56,000/-, as prayed for? OPP.
(ii) Whether the plaintiff is entitled to interest on the suit amount? If so, then at what rate and for what period? OPP.
(iii) Relief.
TRIAL
5. In support of his case, plaintiff has examined himself as PW1 and led his evidence by way of affidavit Ex. PW1/A. The witness in his affidavit has deposed in detail about the facts of the case which are more or less the same as have been given in the plaint. He has also proved on record the following documents :
a) Ex. PW1/1 is the consignment note dated 26.10.2015 issued by Sai Cargo Logistics. CS No.105/17 Page 5 of 14
b) Ex. PW1/3 is a confirmation note dated 01.12.2015 fro Sai Cargo Logistics that they are exempted from the deduction of TDS from the transport bill payment.
c) Ex. PW1/4 is a legal demand notice dated 13/06/2016 issued by the plaintiff.
d) Ex. PW1/5 is a postal receipt of the demand no-
tice Ex. PW1/4.
e) A consignment note dated 26.10.2015 as Mark 'B'.
f) The track record of the demand notice Ex. PW1/4 as Mark 'C'.
6. PW1 i.e. the plaintiff was duly cross-examined by the Ld. Counsel for the defendant and during cross-examination document Mark 'A' which is an e-mail dated 26.10.2015 through which the de- fendant confirmed to the plaintiff transportation of their material was CS No.105/17 Page 6 of 14 exhibited as Ex. PW1/D1.
7. On the other hand, the defendant no. 2 examined himself as AR of defendant no.1 as DW1 and deposed by way of affidavit Ex. DW1/A. The witness in his affidavit has deposed on the same lines which was their defence in the written statement and has emphasis upon the following documents :-
a) Board of resolution dated 07.04.2017 as Ex.
DW1/2.
b) Quotation for price comparison dated 15.10.2015 as Ex. DW1/2.
c) Copy of e-mail dated 16.11.2015 as Mark 'X'.
8. DW1 i.e. the defendant no. 2 was duly cross-examined by the Ld. Counsel for the plaintiff and during the cross-examination copy of the tax invoice of defendant no. 1 dated 14.08.2015 was exhibited as Ex. DW1/P1 and bill no. 080, dated 26.10.2015 was exhibited as DW1/P2 & are proved accordingly.
CS No.105/17 Page 7 of 14
FINDINGS
9. Issue no. 1 & 2 are inter-connected, hence common discussion is sufficient for the same. The burden to prove these issues was on the plaintiff.
ISSUE NO. 1 & 2
Both these issues are interconnected. Hence, common discus- sion shall suffice. The plaintiff has deposed that he duly transported the consignment as per the contract. He relied on a bill no. 080 dated 26.10.2015 Ex. DW1/P2 amounting to Rs. 1,56,000/-. The same bill also reflects an advance amount of Rs. 1 lakh which has al- ready been received by the plaintiff and therefore, through this case, the plaintiff is seeking recovery of the balance amount of Rs. 56,000/- only.
The onus to prove his entitlement to the amount of Rs. 56,000/- was on the plaintiff. Careful analysis of the evidence re- veals that the bill dated 26.10.2015 Ex. DW1/P2, is admitted by the defendant and thus, it stands proved on record that the balance CS No.105/17 Page 8 of 14 amount of Rs. 56,000/- remains due in favour of the plaintiff. How- ever, the defendant has raised certain objections to show as to why the plaintiff is not entitled to the admitted balance amount of Rs. 56,000/-. The onus to prove such objections lied upon the defen- dant.
Ld. Counsel appearing on behalf of the defendant has argued that the time was the essence of contract and since the contract was delayed by 12 days, therefore, the defendant is not entitled to the balance amount. He has further argued that the consignment was to be transported by low bed trailer but the same was transported by high bed trailer. As discussed above, the onus was upon the defen- dant to prove that time was the essence of the contract and that he had objected to the mode of performance of contract by the plaintiff.
I have meticulously gone through the record of the case. Pe- rusal of the documents and evidence on record reveals that defen- dant did not objected either to the delay of 12 days or to the mode by which the goods were to be transported by the plaintiff. It was ar- gued that goods were to be transported by low bed trailers but the CS No.105/17 Page 9 of 14 same were sent by high bed trailers. However, the defendant never raised any objection regarding the delay in delivery of consignment or sending the goods through high bed trailers for about an year. Such objection was raised for the first time in the written statement when the present suit was filed by the plaintiff for recovery of Rs. 56,000/-. There is no communication during or after the performance of his obligation by the defendant to support his plea that time was the essence of contract. Had time been the essence, the defendant had the option to avoid the contract, but it is clear from the record that the defendant had accepted the performance of contract by the plaintiff. Section 55 of the Indian Contract Act, 1872 is quite clear. The relevant portion is reproduced as under :-
"...if, in case of a contract voidable on account of the promisor's failure to perform his promise at the time agreed, the promisee accepts performance of such promise at any time other than that agreed, the promisee cannot claim compensation for any loss occasioned by the non-performance of the CS No.105/17 Page 10 of 14 promise at the time agreed, unless, at the time of such acceptance he givens notice to the promisor of his intention to do so."
There is nothing on record to suggest that defendant had opted out of the contract or had accepted the performance of contract sub- ject to his reserving the right to claim damages and by giving notice to the plaintiff as per Section 55 of the Indian Contract Act. Plaintiff's part of the contract was complete when the consignment was trans- ported as per the contract. The contention of Ld. Counsel for the de- fendant, therefore, cannot be accepted being devoid of any sub- stance.
Perusal of the documents proved on record and evidence led by both the parties further reveal that it is only after about an year, i.e. in the year 2017 upon the filing of the present suit that defendant has raised the objection vis-a-vis the time and the mode of perfor- mance adopted by the plaintiff. It is important to note here that the defendant did not object to the delayed performance or to the use of different type of vehicle for transportation by the plaintiff to perform CS No.105/17 Page 11 of 14 his part of the contract. To my mind, this plea appears to be an after- thought and is a moonshine defence to avoid the payment of remain- ing amount to the plaintiff and, therefore, contention of Ld. Defence Counsel cannot be accepted.
Ld. Counsel for the defendant has, however, argued that the defendant suffered special damages on account of the delay caused by the plaintiff in discharging his part of the contract. This plea would have been relevant had the defendant claimed special damages against the plaintiff. However, no special damages have been claimed in the present suit by the defendant. Moreover, in view of the above finding that the defendant had not raised any objection to either the mode of transport or to the effect that time was the essence of the contract, this argument is otherwise of no avail.
The defendant has next argued that there is a difference be- tween the freight of low bed trailer and hight bed trailer. Whereas the freight of low bed trailer is around Rs.1.50 lakhs, on the other hand the freight of high bed trailer is around Rs. 95,000/- and since the plaintiff has used high bed trailers instead of low bed trailers for com- CS No.105/17 Page 12 of 14 pleting his part of the contract, therefore, the defendant is not liable to pay the remaining amount of Rs. 56,000/-. However, the defen- dant has not brought any evidence, oral or documentary, to prove the difference in freight charges. He has produced one quotation Ex. DW1/2 but that is of a different transportation company and in the opinion of this Court, this is a little significance in the present matter. Moreover, as discussed above the defendant has not objected to the performance of contract by high bed trailer. Thus, this argument of the defendant is devoid of any substance and cannot be accepted.
In the present suit, plaintiff has claimed pendente lite and fu- ture interest @ 18% per annum, which appears to be on a higher side. Hence, I deem it expedient to award interest @ 9% per annum, which must meet the ends of justice.
In view of the above discussion, the issue nos.1 & 2 are, there- fore, decided accordingly in favour of the plaintiff and against the de- fendant.
CS No.105/17 Page 13 of 14
RELIEF
10. In view of my findings on issue nos. 1 & 2, the suit of the plain- tiff is decreed for a sum of Rs. 56,000/- alongwith pendente lite and future interest @ 9% per annum from the date of filing of the suit till the recovery of the decreetal amount.
Parties to bears their own costs.
Decree sheet be prepared accordingly. Decree sheet be pre- pared only after payment of deficient court fees, if any.
File be consigned to record room after due compliance.
Digitally signed SATVIR Announced in the Open Court by SATVIR SINGH LAMBA SINGH Date: on 07.09.19 2019.09.11 LAMBA 10:17:05 +0530 (SATVIR SINGH LAMBA) ACJ/CCJ/ARC (NORTH), ROHINI COURT, DELHI CS No.105/17 Page 14 of 14