Delhi District Court
S.D. Thakur Sole Prop. Of vs M/S Sundeep Polymers Pvt. Ltd on 9 December, 2013
IN THE COURT OF MS. SNIGDHA SARVARIA, CIVIL JUDGE,
CENTRAL05 TIS HAZARI COURTS , DELHI
Suit No. 323/2012
IN THE MATTER OF:
S.D. Thakur Sole Prop. of
M/s Green Freight Carrier
having office at WZ08,
Bhagwan Dass Nagar extension,
Rohtak Road, New Delhi110026 .....Plaintiff
VERSUS
M/s Sundeep Polymers Pvt. Ltd.
through its manging Director
regd. office at 52, Mamta 'A'
New Prabhadevi Road, Mumbai 4000025
....defendant
Date of Institution: 02.06.2006
Date of Reserving for Judgment: 09.12.13
Date of Judgment : 09.12.13
SUIT FOR RECOVERY OF RS. 1,05,000/
JUDGMENT:
1. Vide this Judgment, I shall decide a suit for recovery of Rs. 1,05,000/ filed by the plaintiff.
2. The brief facts of the case as per the plaintiff is engaged in the business of transportation from one place to another having own Suit No. 323/2012 Page No. 1 of 10 transport by the name of M/s Green Freight carriers. It is further submitted that defendant had booked two consignments against GR/No./ Consignment note 725354 dt. 07102004 and the plaintiff raised bill No. 2189 dt. 07/10/04 of an amount of Rs. 78,248/ and the said goods was dispatched from Delhi to Mumbai. The defendant has failed to make the payment against the said bill despite repeated demand and request, last the plaintiff sent a legal notice through his counsel on 16112005. But despite the same defendant did not make the payment. Hence the present suit is filed by the plaintiff.
3. On the other hand the defendant has filed his written statement and contended that the present suit is bad for misjoinder and non joinder of the necessary parties. Also, the present court has no jurisdiction to entertain and try the present suit. The defendant has its regd. office and business in Mumbai and had appointed the said Tulsi Impex Pvt. Ltd. having office in Mumbai and no cause of action has taken place within the jurisdiction of this court. Further, there is no privity of contract between the plaintiff and the defendant. It is further submitted that the defendant appointed one Tulsi Impex Pvt. Ltd. Mumbai as its agent for the purpose of clearing and transporting imported goods from customers and the defendant has not given any authority of any sort whatsoever to Suit No. 323/2012 Page No. 2 of 10 the said Tulsi Impex Pvt. Ltd. to appoint any subagent on behalf of the defendant. It is further submitted that said Tulsi Impex Ltd. is necessary party to the present proceedings which has not been made a party in the present suit. It is further submitted that the consignment notes do not bear any acknowledgments or the rubber stamp on behalf of the defendant and as such it cannot be said that the plaintiff had delivered the goods to the defendant as claimed. The bill No. 2189 dt. 07102004 is a forged and fabricated documents. Further the defendant denied all the allegations of the plaintiff which are made in his plaint and prayed that the suit of the plaintiff be dismissed.
4. The plaintiff has filed replication to the written statement filed by the defendant. In his replication the plaintiff has reaffirmed the contents made in the plaint and denied all the allegation made by the defendant in his written statement and further submitted that the suit of the plaintiff be decreed.
5. Vide order dt. 14102009 following issues were framed which are as under:
i)Whether suit is bad for nonjoinder and misjoinder of necessary parties? OPD
ii) Whether this court has no territorial jurisdiction to try the present suit? OPD Suit No. 323/2012 Page No. 3 of 10
iii) Whether there is no privety of contract between the plaintiff and defendant? OPD
iv) Whether the plaintiff is entitled to a sum of Rs. 1,05,000/ from the defendants? OPP
v) Whether the plaintiff is entitled to future interest @ 24 % p.a. on the above said amount? OPP
vi) Relief
6. To prove his case plaintiff has examined himself as PW1. PW1 has filed his evidence by way of affidavit Ex. PW1/A. In his affidavit the PW1 has reiterated the facts mentioned in the plaint and relied upon the following documents:
i) The Copy of consignment note No. 7253 & 7254 dt. 07102004 is Ex. PW1/1 & PW1/2.
ii) Copy of Bill No. 2189 dt. 07/10/2004 is Ex. PW1/3.
iii) Legal notice dt. 16112005 is Ex. PW1/4.
iv) Postal receipt No. 2259 & 2260 are Ex. PW1/5 & 6.
v) UPC receipt dt. 16112005 Ex. PW1/7.
vi) Regd. letter sent to the defendant which were received back are Ex. PW1/9 & 10.
The PW1 was also crossexamined by the Ld. counsel for the defendant.
7. On the other hand despite several opportunities given to the Suit No. 323/2012 Page No. 4 of 10 defendant, defendant did not lead DE, hence the opportunity of the defendant to lead DE, stands closed vide order dt. 20052013.
8. I have heard the counsel for both the parties and have gone through the record carefully.
9. My issue wise finding is as under:
10. Issue No. 1 Whether suit is bad for nonjoinder and misjoinder of necessary parties? OPD Issue No. 3 Whether there is no privety of contract between the plaintiff and defendant? OPD Issue No. 4 Whether the plaintiff is entitled to a sum of Rs. 1,05,000/ from the defendants? OPP Issue nos. 1, 3 and 4 being interrelated are being taken up and decided together.
The contention of the defendant is that there is no privity of contract between the parties as the defendant had appointed Tulsi Impex Pvt. Ltd. as its agent for custom clearance and transporting imported goods. Tulsi Impex Pvt. Ltd. Was not granted any authority to appoint any subagent. Thus, Tulsi Impex Pvt. Ltd. Is a necessary party and suit, if any, lies against Tulsi Impex Pvt. Ltd. And not the defendant.
11.PW1 Sh. S. D. Thakur has stated in his crossexamination that booking orders were received on telephone. The goods are Suit No. 323/2012 Page No. 5 of 10 normally cleared by the agent of the party of the defendant. It is correct that Tulsi Impex (P) Ltd was the agent of the defendant for the purpose of clearing the goods and dispatch to Mumbai. He admitted Tulsi Impex (P) Ltd having booked the consignment for and on behalf of the defendant. He also admitted that it was the duty of Tulsi Impex (P) Ltd to get the goods cleared from customs and dispatch for delivery to the defendant.
12. At this juncture it would be relevant to reproduce Sections 190, 193 & 194 of the Indian Contract Act, which are as under:
190. When agent cannot delegate An agent cannot lawful employ another to perform acts which he has expressly or impliedly undertaken to perform personally, unless by the ordinary custom of trade a sub agent may, or, from the nature or agency, a subagent must, be employed.
193. Agent's responsibility for subagent appointed without authority Where an agent, without having authority to do so, has appointed a person to act as a subagent stands towards such person in the relation of a principal to an agent, and is responsible for his act both to the principal and to third person; the principal is not represented, by or responsible for the acts of the person so employed, nor is that person responsible to the principal.
Suit No. 323/2012 Page No. 6 of 10
194. Relation between principal and person duly appointed by agent to act in business of agency When an agent, holding an express or implied authority to name another person to act for the principal in the business of the agency, has named another person accordingly, such person is not a subagent, but an agent of the principal for such part of the business of the agency as is entrusted to him.
13.As per the provisions under Sections 190, 193 & 194 of the Contract Act, an agent cannot delegate his duties which he himself has undertaken to perform and if he delegates such a duty then he himself is responsible towards the delegatee. However, if certain acts cannot be performed by the agent or the agent has implied authority to get certain acts done through some other person then the said other person is a agent of the principal.
14.In the instant case, it is the case of the plaintiff that the defendant had transported certain goods from the plaintiff. Admittedly, Tulsi Impex (P) Ltd was the agent of the defendant for the purpose of clearing the goods and dispatch to Mumbai. No evidence has been led by the defendant and not even a suggestion has been put by the defendant to the plaintiff/PW1 that it was the duty of Tulsi Impex (P) Ltd to transport the goods itself. Also, it has not been proved by the defendant that Tulsi Impex (P) Ltd is doing the business of transportation. Thus, clearly, the present case is covered by the provisions of S. 194 Contract Act.
15. Although, the plaintiff has not proved the bills Mark A & B by Suit No. 323/2012 Page No. 7 of 10 producing the original but the receiving of the consignment, for which bills Mark A and B were raised, has been admitted by the defendant. The bill amount is disputed by the defendant but it has not been proved by the defendant as to what was the amount for which the consignment was booked for transportation. Clearly, the plaintiff is entitled to the bill amount of Rs. 78,248/ and interest thereon of Rs. 23,442/. As regards the court fees, the same forms part of the costs of the suit and cannot be included in the suit amount thus plaintiff is not entitled to Rs. 3,310/. Hence, the plaintiff is entitled to recovery of Rs. 1,01,690/ from the defendant.
There is privity of cntract between the parties in view of S. 194 of the Contract Act and as discussed above, Tulsi Impex (P) Ltd was a proper party and not a necessary party in the facts of the present case.
16.It is well settled that a necessary party is one without whom no order can be made effectively; a proper party is one in whose absence an effective order can be made but whose Presence is necessary for a complete and final decision on the question involved in the proceeding. It is equqlly well established that two tests are to be satisfied for Determining the question who is a necessary party. Tests are:(1) there must be a Right to some relief against such party in respect of the controversies involved in Suit No. 323/2012 Page No. 8 of 10 The proceedings (2) no effective decree can be passed in the absence of such party.
17.The law as regards nonjoinder of parties is no more res integra. If the decree cannot be effective without the absent parties, then the suit is liable to be dismissed. Meaning thereby that if a necessary party is not joined as a party, the suit is liable to be dismissed. But same is not the situation as regards the proper party and thus the suit is not liable to be dismissed for nonjoinder of proper party.
Accordingly, these issues are decided in favour of the plaintiff and against the defendant as above.
18. Issue No. 2 Whether this court has no territorial jurisdiction to try the present suit? OPD In para no. 8 of the plaint it is mentioned that the consignment was booked at Delhi, account payments are made at Delhi and parties reside and work at Delhi. The defendant contends that this court has no territorial jurisdiction as registered office of defendant is in Mumbai. The burden to prove this issue was on the defendant but the defendant has neither led any evidence in this regard nor otherwise proved this issue. Accordingly, this issue is decided in favour of the plaintiff and against the defendant.
19.Issue No. 5 Whether the plaintiff is entitled to future interest @ 24 % p.a. on the above said amount? OPP Suit No. 323/2012 Page No. 9 of 10 The plaintiff has also claimed the pendentelite and future interest on the decreetal amount @ 24 % p.a. which in my opinion is very exorbitant and unreasonable. According to me, considering the current market rate the plaintiff is entitled to pendentelite and future interest @ 9 % p.a. on the decreetal amount from filling of the suit till the actual realization on the decreetal amount. This issue is decided accordingly.
20. Relief:
In view of the foregoing discussion, a decree for the recovery of Rs. 1,01,690/ along with pendentelite and future interest at the rate of 9 % p.a. from filling of the suit till the actual realization of the decreetal amount, is passed in favour of the plaintiff and against the defendant. Cost of the suit is also awarded to the plaintiff. Decree sheet be prepared accordingly. File be consigned to Record Room after due compliance.
Announced & signed in the ( Snigdha Sarvaria) open court on 09122013. Civil Judge/Central05 Delhi Suit No. 323/2012 Page No. 10 of 10