Delhi District Court
M/S Dtdc Express Ltd vs M/S Bright Group Of Publications on 16 December, 2021
IN THE COURT OF SH. KARTIK TAPARIA: CIVIL JUDGE 02
(CENTRAL), TIS HAZARI COURTS, DELHI.
CS No. 96682/16
In the matter of :
M/s DTDC Express Ltd.
(Formerly known as DTDC Courier & Cargo Ltd.)
Having its Regional office at :
6/16, Telephone Exchange Road,
Opposite Life Center Academy,
Village Samalkha,
New Delhi110037. .... Plaintiff
VERSUS
1. M/s Bright Group of Publications,
Office at 4746, 2nd Floor,
Ansari Rod, Daryaganj,
Delhi.
2. Mr. Parmeet Singh,
Director,
M/s Bright Group of Publications,
Office at 4746, 2nd Floor,
Ansari Rod, Daryaganj,
Delhi. ....defendants
Date of Institution: 16.05.2015.
Date of reserving the judgment: 27.11.2021.
Date of Judgment: 16.12.2021.
Final Judgment : Suit decreed.
JUDGEMENT
(Suit for Recovery of Rs. 38,346.04 ps.) 1 of 18
1. The brief facts of the present case are that the plaintiff is a limited company duly incorporated under the provisions of the Indian Companies Act, 1956 having its office at the address mentioned above, and is engaged in the business of courier and cargo by transshipment of documents, consignments and others from one place to another throughout India and abroad and known for its superiority in working and goodwill.
1.1 It is further submitted that the present suit is being signed, verified, instituted and filed by Ms. Nidhi Mehta, Senior Law Officer of the plaintiff company, who has been duly authorized by the Board of Directors of the company vide Board Resolution passed in their meeting held on 12.06.2014 and fully competent and authorized to sign, verify and institute the present suit and to continue the proceedings on behalf of the plaintiff company against the defendants and to continue the proceedings till the disposal of the case.
1.2 That defendant No. 1 is a company and defendant No. 2 is Director of the company and thus responsible for day to day affairs of defendant No.1. The defendants are, one of the customers of the Plaintiff's company availed the services for transshipment of the packet and other documents from one place to other at National/International level. Accordingly, an agreement was executed between the plaintiff company and the defendants on 01.08.2013.
2 of 18 1.3 That the defendants are customer of the plaintiff's company availed the services of the plaintiff company and its network for the transshipment of consignment and malafidely withheld an amount of Rs.38,346.04 ps. towards the services availed by the defendants from the plaintiff.
1.4 That the plaintiff made several reminders to the officials of defendant No. 1 on phone for the outstanding amount due towards the defendants, but of no avail.
1.5 It is further submitted that finding no other options, the plaintiff company through its counsel got issued a legal notice dated 16.03.2015 through Speed Post dated 17.03.2015 thereby calling upon the defendants to make the payment of Rs.38,346.04 ps. along with interest @ 24% p.a. within 15 days from the receipt of the legal notice. The legal notice sent through speed post has been presumed to be duly served upon the defendants as the same was refused to take, but despite the services of the legal notice, the defendants never bothered to pay the legitimate amount of the plaintiff company and to discharge his duly admitted liability.
1.6 It is further submitted that an amount of Rs.38,346.04 ps. Was due till 30.01.2015 which is clearly reflected in the ledger maintained by the plaintiff company. Hence, the present suit for recovery for a sum of Rs. 38,346.04 ps. along with interest @ 24% p.a. and cost.
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2. Summons of the suit for settlement of issues were issued and served upon the defendants. In the written statement, the defendants have taken the preliminary objections that the plaintiff has concealed the material facts and has not come to the court with clean hand. That there is no cause of action in favour of the plaintiff and against the defendants as the matter was already amicably settled between the plaintiff and the defendants whereby the plaintiff agreed to pay a sum of Rs. 90,809/ to the defendants towards the net loss of the defendants, and instituted the present suit with malafide intention to extort the money from the defendants.
2.1 That the plaintiff approached the defendants for its services of booking and transshipment of courier and cargo and accordingly a credit application contract were duly executed in this regard. That defendants have booked various packets containing original copy of the GRs and original bills through the plaintiff for time bound delivery to their respective destinations, so that the consignee could get the time bound delivery of the consignments from the concerned transporters. However, the plaintiff has failed to deliver the consignment till date and thereby caused a net loss of Rs. 90,809/. It is submitted that the plaintiff admitted this amount due against it and hence the plaintiff orally undertaken to pay a sum of Rs. 90,809/ to the defendants.
2.2 It is further submitted that when the defendants started demanding their above amount from the plaintiff, the plaintiff turned 4 of 18 dishonest and hence, chose to file the present suit with malafide intention and hence, the present is nothing but a device of extortion by misusing the process of law. However, the defendants have already taken the legal step to recover the amount of Rs.90,809/ by way of serving the legal notice in this regard and if the direction contained in the said legal notice is not complied with by the plaintiff, the defendants would be constrained to file the civil suit for recovery against the plaintiff herein.
2.3 That the defendants have sent the following packets containing original bills with amounts and original GRs through the plaintiff for their delivery to their respective destinations : Sr. No. Destination Invoice No. Amount (in Consignment with date Rs.) No.
1. Sanskaar D15561 7,461/ *X09318697* Book dated (Ahmedabad) 06.12.2014
2. V.S. D15571 15,112/ *X09318705* Bhavikatti dated (Gulbarga) 06.12.2014
3. Amogha D15572 15,026/ *X09318706* Siddhshwar dated 06.12.2014
4. S.S. Patil D15573 5,395/ *X09318699* Book Sellers, dated Gulbarga 06.12.2014
5. Sri Vinayak D15574 6,335/ *X09318703* Agencies, dated Hubli 06.12.2014 (Karnataka) 5 of 18
6. Vikas Book D15576 11,446/ *X09318698* Depot dated (Amritsar) 06.12.2014
7. C.D. Mehra & D15578 8,876/ *X09318700* Sons dated (Amritsar) 06.12.2014
8. Kasturi Lal & D15577 10,849/ *X09318701* Sons dated (Amritsar) 06.12.2014
9. Vijay Book D15579 5,217/ *X09318704* Centre dated (Hubli) 06.12.2014
10. Saradhi D15580 5,092/ *X09318702* Books, dated Kottayam 06.12.2014 (Kerala) Total: 90,809/ 2.4 All the aforesaid booked packets/consignments have not been delivered at their respective destinations by the plaintiff despite their assurance for time bound delivery. Hence, the suit of the plaintiff may be dismissed in view of the submissions made above, in the interest of justice.
3. In replication, the plaintiff has denied all the allegations made in the written statement and reiterated those made in the plaint.
4. From the pleadings of the parties, the following issues were framed by my Ld. Predecessor vide order dated 28.09.2015 : 6 of 18
1. Whether the plaintiff is entitled for recovery of decreetal amount, as prayed ? OPP
2. Whether the plaintiff is entitled for any interest, if yes, at what rate of interest and for what period ? OPP
3. Whether the defendants have received the consignments/ booked packets from the plaintiff in time ? OPP
4. Whether there is no cause of action in favour of the plaintiff and the suit of the plaintiff is liable to be rejected U/o 7 Rule 11 CPC ? OPD
5. Relief.
5. In support of its case, the plaintiff company examined Ms.Nidhi Mehta, Sr. Executive (Legal) of M/s DTDC Courier and Cargo, as PW1 who tendered her evidence by way of affidavit Ex.PW1/A. She relied upon the following documents :
1. Ex. PW1/A is the copy of the Incorporation Certificate (OSR)
2. Ex.PW1/B is the copy of the Board Resolution dated 12.06.2014 (OSR).
3. Ex.PW1/C is the agreement between the parties dated 01.08.2013.
4. Ex.PW1/D is the copy of the ledger account.
5. Ex.PW1/E is the Legal Notice dated 17.03.2015.
6. Ex.PW1/F is the postal receipt.
7 of 18 PW1 was crossexamined at length by Ld. Counsel for the defendants.
Thereafter, Ld. Counsel for the plaintiff vide his statement dated 16.05.2017 closed the plaintiff's evidence.
6. On the other hand, the defendant No. 2 Sh. Parmeet Singh examined himself as DW1 by tendering his evidence by way of affidavit Ex.DW1/A. He relied upon the following documents :
1. Invoice No. D15569 dated 06.12.2014 is Mark A as Certificate U/s 65B of Evidence Act has not been filed along with the computer generated invoice.
2. Invoice No. D15571 dated 06.12.2014 is Mark B as Certificate U/s 65B of Evidence Act has not been filed along with the computer generated invoice.
3. Invoice No. D15572 dated 06.12.2014 is Mark C as Certificate U/s 65B of Evidence Act has not been filed along with the computer generated invoice.
4. Invoice No. D15573 dated 06.12.2014 is Mark D as Certificate U/s 65B of Evidence Act has not been filed along with the computer generated invoice.
5. Invoice No. D15574 dated 06.12.2014 is Mark E as Certificate U/s 65B of Evidence Act has not been filed along with the computer generated invoice.
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6. Invoice No. D15576 dated 06.12.2014 is Mark F as Certificate U/s 65B of Evidence Act has not been filed along with the computer generated invoice.
7. Invoice No. D15578 dated 06.12.2014 is Mark G as Certificate U/s 65B of Evidence Act has not been filed along with the computer generated invoice.
8. Invoice No. D15577 dated 06.12.2014 is Mark H as Certificate U/s 65B of Evidence Act has not been filed along with the computer generated invoice.
9. Invoice No. D15579 dated 06.12.2014 is Mark I as Certificate U/s 65B of Evidence Act has not been filed along with the computer generated invoice.
10. Invoice No. D15580 dated 06.12.2014 is Mark J as Certificate U/s 65B of Evidence Act has not been filed along with the computer generated invoice.
11. Courier receipt No. X09318697 dated 13.12.2014 as Ex.DW1/1.
12. Courier receipt No. X09318705 dated 13.12.2014 as Ex.DW1/2.
13. Courier receipt No. X09318706 dated 13.12.2014 as Ex.DW1/3.
14. Courier receipt No. X09318699 dated 13.12.2014 as Ex.DW1/4.
15. Courier receipt No. X09318703 dated 13.12.2014 as Ex.DW1/5.
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16. Courier receipt No. X09318698 dated 13.12.2014 as Ex.DW1/6.
17. Courier receipt No. X09318700 dated 13.12.2014 as Ex.DW1/7.
18. Courier receipt No. X09318701 dated 13.12.2014 as Ex.DW1/8.
19. Courier receipt No. X09318704 dated 13.12.2014 as Ex.DW1/9.
20. Courier receipt No. X09318702 dated 13.12.2014 as Ex.DW1/10 DW1 was crossexamined at length by Ld. Counsel for the plaintiff.
Thereafter, Ld. Counsel for the defendants closed defendants' evidence vide his statement dated 18.12.2019.
7. I have heard the arguments advanced by Ld. Counsel for the plaintiff bank and carefully perused the record. My issuewise findings are as under :
8. Issue No. 4.
Whether there is no cause of action in favour of plaintiff and the suit of the plaintiff is liable to be rejected U/o 7 Rule 11 CPC? OPD 10 of 18 It is a settled principle of law that for the purposes of deciding an application under Order 7 Rule 11 CPC, only the plaint and accompanying documents have to be looked into and averments made by the defendants either in Written Statement or the documents filed by the defendants. The defendants is trying to get the plaint rejected on the basis of his defence rather on the discernible lack of cause of action which can be gauged merely by a reading of the plaint and documents annexed therein. Accordingly, the defendants have failed to show as to how the present suit is liable to be rejected on the ground of lack of cause of action. In view of the same, the present issue is decided in favour of the plaintiff and against the defendants.
9. Issue No. 3.
Whether the defendants have received the consignments/booked packets from the plaintiff in time? OPP The present issue as it is apparent from the record was wrongly framed correctly, and the same was amended vide order dated 27.11.2021. The burden of proving this issue was on the defendants. In fact, this was the entire defence of the defendants that they are not liable to pay any sum of money to the plaintiff as the plaintiff never delivered the consignment of the defendants to the clients of the defendants, due to which they suffered heavy losses. Now, to discharge the burden of proving this issue, the defendants placed on record the carbon copy of the courier receipts as Ex. DW 1/1 to Ex. DW1/10. Some invoices relating to 11 of 18 which the receipts were issued were also placed on record, but being unsupported by the certificate under Section 65 B, Indian Evidence Act, the same were marked. Since the invoices were not proved as per the mandate of Section 65 B of The Indian Evidence Act, the said cannot be read into evidence. Even the courier receipts (Ex. DW 1/1 to Ex. DW1/10) do not come to the aid of the defendants in the present case, as the same only show that some consignment was booked with DTDC, (plaintiff herein), which was to be delivered to the clients of the defendants, however the same do not prove that the goods were never delivered. The defendants have not placed on record the tracking reports which can show that the goods were not delivered. Further, the defendants have not placed on record any email or written correspondence taken place with the plaintiff in this regard. The defendants have also not placed on record any intimation/correspondence taken place between the defendants and their abovesaid clients to whom the consignments were not delivered due to the default of the plaintiff. The defendants have also not called as witness any of such defaulted recipients of the consignments to show that the same were not delivered to them. Further, the defendants have averred in their written statement that they have issued a legal demand notice to the plaintiff in respect of the recovery of the loss incurred by the defendants due to the negligence of the plaintiff, however the office copy of the same has not been place on record to corroborate the fact that the plaintiff in any manner failed to perform its part of promise.
In view of the abovesaid discussion, the court is of the 12 of 18 opinion that the defendants have miserably failed to prove their case in respect of the present issue. All the averments made by the defendants are in air, supported neither by any documentary evidence nor by any oral testimony. Accordingly, the court has no hesitation in concluding that the defendants have failed to discharge the onus cast upon them. Accordingly, the present issue is decided in favour of the plaintiff and against the defendants.
10. Issue No. 1.
Whether the plaintiff is entitled for the recovery of decretal amount, as prayed? OPP AND Issue No. 2.
Whether the plaintiff is entitled for any interest, if yes, at what rate of interest and for what period? OPP Both these issues being related to each other, are decided together. Burden of proving both these issues was on the plaintiff. It is averred in the plaint that the plaintiff and defendants entered into agreement in regard to the service for transshipment of the packet and other documents. Plaintiff has placed on record the original sales contract form (hereby exhibited as PW1/C) by way of which the parties entered into the agreement. Plaintiff further has based his case on the ledger account which shows that an amount of Rs. 38346.04 is yet to be paid by 13 of 18 the defendants to the plaintiff. To prove the same, the plaintiff has placed on record the computergenerated Ledger sheet (hereby exhibited as PW1/D) and also proved the same by way of certificate under section 65B of the Indian Evidence Act (hereby exhibited as PW1/G). The ledger sheet clearly shows that defendants has an amount of Rs. 38346.04 to be paid to the plaintiff. Lastly, the plaintiff relies upon the legal notice dated 17.03.2015 whereby the defendants was called upon to pay the due amount, however the defendants failed to pay the same.
Now, during the cross examination of the AR of the plaintiff firm, Ld. Counsel for the defendants tried to impugn the agreement itself by questioning the validity of the same. However, the same is grossly beyond the pleadings, as the defendants have not only in the Written statement but also during the cross of defence witness has admitted that the parties entered into a contract by way of which the present transactions were done. Accordingly, the agreement and contractual liabilities of the parties under the same stand proved. Similarly, the ledger sheet i.e. Ex. PW1/D is duly proved by way of the 65B certificate i.e. Ex. PW1/G. PW1 has withstood the test of the cross examination as his testimony in this regard was not shaken. Accordingly, the liability as per the ledger sheet is also duly proved. Finally, the DW1 during his cross examination also admitted that the legal notice was sent by the plaintiff firm to the defendants.
In her final arguments, Ld. Counsel for the defendants 14 of 18 submitted that the present case is wrongly filed against M/s Bright Group of publication, and that the same should have been filed against Bright Group of Publication Pvt. Ltd.
Perusal of the written statement clearly shows that this defence was never taken by the defendants in the written statement. The agreement between the parties was never challenged in the written statement. In fact, in the written statement, there are several admissions made by the defendants that there was contractual relation between the parties, and that under the agreement, the plaintiff was liable to make payment to the defendants for nonperformance of promise. Now, when the written statement clearly admits that the parties to the suit had contractual relation, and when the demand legal notice sent by the plaintiff also is admitted by the defendants, defendants cannot be allowed to shift its stance and raise a completely new defence by challenging its own averments.
Further, during his cross examination, DW1, Mr. Paramjeet Singh, clearly admitted that he had executed sales contract with the plaintiff firm, and he also denied the suggestion that the alleged settlement (mentioned in the written statement) never took place between the parties. Accordingly, it is clear that the parties had a contractual relationship, and due to the admissions made by the defendants in their written statement and cross examination of DW1, defendants are barred to state otherwise.
15 of 18 In view of the same, the plaintiff was able to shift the onus of proving the present issue upon the defendants.
The defendants have based their case on the premise that the plaintiff is actually liable to pay Rs.90,809/ to the plaintiff for non performance of the promise under the contract. It is averred by the defendants that the plaintiff promised to perform time bound delivery of consignments to the clients of the defendants but failed to do so, in consequence of which the defendants suffered a loss of Rs. 90,809/ which the plaintiff agreed to pay to the defendants. Now, it has already been discussed while deciding issue No. 2 that the defendants have miserably failed to prove that the plaintiff has failed to perform its promise and did not deliver transshipments. The same need not be discussed again for the sake of brevity. In light of the same, it can be safely concluded that the only defence raised by the defendants has gone for a toss. Even without discussing the said defence, it is clear as a day that the said averment has no role to play in disproving the present suit. In this suit, the plaintiff has laid his claim on the ledger balance standing in his favor, but the defendants instead of challenging the truthfulness of the same have actually admitted the claim in written statement where they stated that the plaintiff is not entitled to recover the transshipment charges as it did not deliver the consignment of the defendants.
It is also worthy to note that Mark A to J, being the invoices filed by the defendants regarding the transactions taken place between 16 of 18 the defendants and it's clients clearly show that Mark A was dispatched through 'Karnavati Tpt.', that Mark B to E and I were dispatched through 'VRL Logistics', that Mark F to H were dispatched through 'Mehra Goods Corp.', that Mark J was dispatched through 'Kerala Roadways'. Whereas DW1 in his cross examination has stated that the consignments were not delivered through different transporters/logistics courier companies. This, in addition to the discussion above held, also puts a major dent in the defence taken by the defendants.
Now, the defendants have never stated nor proved that they made the remaining payment but have only stated that they are not liable to make any payment due to the non performance of the contract by the plaintiff, which also in the light of the finding of Issue No. 2 has not been proved by the defendants. Accordingly, the defendants have not raised any cogent ground to defend the present suit, and have not been able to prove their case and disprove the case of the plaintiff.
In light of the above said discussion, the court has reached to the conclusion that the defendants failed to discharge the burden shifted upon them to disprove the case of the plaintiff. Accordingly, issue No. 1 is also decided in favour of the plaintiff and against the defendants.
Also, the defendants is liable to pay interest to the plaintiff on the principal amount at 8% per annum from the date of filing i.e. 31.08.2015 to the date of the decree i.e. 16.12.2021 excluding the period 17 of 18 between 15.03.2020 to 30.09.2021 on account of Covid19 pandemic. Deficient court fees be paid.
11. Relief.
In the light of the aforesaid discussion and considering the findings given on aforesaid issues, it is held that the plaintiff is entitled for the relief of recovery of Rs. 38,346.04 ps. along with pendentelite and future interest on the same at 8% per annum from the date of filing i.e. 31.08.2015 to the date of the decree i.e. 16.12.2021 excluding the period between 15.03.2020 to 30.09.2021 on account of Covid19 pandemic. Deficient court fees be paid.
Costs of the suit is also awarded in favour of the plaintiff.
Decreesheet be prepared accordingly.
File be consigned to record room as per rules.
Digitally
signed by
KARTIK
KARTIK TAPARIA
TAPARIA Date:2021.12.16
18:12:04
Announced in the open ( Kartik Taparia
+0530)
court today on 16.12.2021. Civil Judge 02 (Central), Tis Hazari Courts, Delhi.
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