Delhi District Court
Civil Suit No: 57074/16 vs M/S Veekay Surgicals Pvt. Ltd on 7 December, 2019
IN THE COURT OF DR. PANKAJ SHARMA, ADDITIONAL SENIOR CIVIL
JUDGE, NEW DELHI DISTRICT, PATIALA HOUSE COURT, NEW DELHI
Civil Suit no: 57074/16
M/s VRL Logistics Ltd.
Having its Corporate Office at:
Giriraj Annexe Circuit House Road,
Hubli-580029 (Karnataka) ............Plaintiff
Versus
M/s Veekay Surgicals Pvt. Ltd.
Having its registered office at:
708, Indraprakash Building,
21, Barakhamba Road,
New Delhi ........Defendant
Date of Institution : 03.06.2013
Date on which judgment was reserved : 30.11.2019
Date of pronouncing judgment : 07.12.2019
SUIT FOR RECOVERY OF RS.1,52,161/- ALONGWITH PENDENTE-LITE
AND INTEREST
JUDGMENT
1. This is a suit for recovery of Rs.1,52,161/- alongwith pendentelite and interest against the defendant.
2. In brief, case of the plaintiff is that it is a private limited company registered and incorporated under the Companies Act, 1956 and is having its corporate office at Giriraj Annexe Circuit House Road, Hubli-580029. Sh. Prakash Kanguri is the AR of the plaintiff company who is authorized to sign, verify and filed the present suit. It is averred that defendant is a limited company registered under the Companies Act, 1956 and is having its registered office at 708, Indraprakash Building, 21, Barakhamab Road, New Delhi-110001. It is averred that the plaintiff company driven by a team of highly motivated and experienced professionals was providing its customers cost CS No.57074/16 M/s VRL Logistics Vs. M/s Veekay Surgicals Pvt. Ltd.. Page no.1 of 8 effective cargo services. It is further averred that vide Agreement No.VRL/DELHI/138/2009-10/GM dated 01.05.2010, the plaintiff and the defendant company agreed to the terms and conditions for transportation of defendant company's goods. It is averred that the plaintiff company transported the consignment of the defendant on 02.04.2011 and accordingly two Bills being Bill No.164515 dated 31.05.2011 for Rs.66,339.50/- and Bill No.164158 dated 30.06.2011 for Rs.36,061/- amounting to a total of Rs.1,02,400/- towards the freight charges towards the services rendered by the plaintiff to the defendant were submitted by the plaintiff with the defendant. However, despite repeated requests and reminders by the plaintiff, the defendant has failed, defaulted, neglected to make the payment of aforesaid Rs.1,02,400/-.
3. It is averred that after the goods were transported, the defendant vide their two letters dated 16.07.2011 intimated to the plaintiff about the damage of the goods while in transit and that the purchaser of the goods i.e. M/s Kerela Medical Services Corporation Ltd. had refused to take the damaged goods. It is averred that the plaintiff vide its letter dated 20.08.2011 replied to the letter of defendant dated 16.07.2011 and issued the damage certificates dated 20.08.2011, so that the defendant can claim its loss from the insurer with whom the goods were insured. It is averred that on the contrary the defendant again sent two letters dated 26.09.2011 intimating the plaintiff about the damaged goods and that on account of which the plaintiff has to arrange the payments of the damaged goods. It is averred that as per the clause no.19 of terms and conditions of the aforesaid agreement as agreed between the parties in respect of transportation of goods of the defendant by the plaintiff, the payment of bills for the services rendered by the plaintiff and availed by the defendant were to be released within 15 days from the date of submissions of the bills and in case of delay in payment of the bills, a financial charge of 2% CS No.57074/16 M/s VRL Logistics Vs. M/s Veekay Surgicals Pvt. Ltd.. Page no.2 of 8 will be levied for every delayed month.
4. Having left with no other option, the plaintiff served a legal notice dated 15.12.2011 calling upon the defendant to pay the aforesaid Rs.1,02,400/- within 15 days from the date of the said notice but all in vain. Plaintiff relying on Clause 19 of the agreement levied financial charge of 2% p.m. 15 days after from the date of the bill. Plaintiff calculated the said charge on bill dated 31.05.2011 and which comes out to Rs.98,577/- and for the bill dated 31.06.2011 as Rs.53,584/-. Hence, the present suit for recovery of the said amount along with interest.
5. Summons of the suit were served upon the defendant and defendant filed WS along with counter claim. On 02.01.2014, following issues were framed:-
i). Whether the plaintiff is entitled for the recovery of suit, as prayed for, if so, at what rate of interest and for which period? OPP.
ii). Whether the suit of the plaintiff is bad for mis-joinder/non-joinder of necessary parties? OPD.
iii). Whether the defendant is entitled for recovery in counter claim, as prayed for, if so, at what rate of interest and for what period? OPD.
iv). Relief.
6. In PE, plaintiff was examined and he was cross-examined and discharged on 16.10.2018. In DE, defendant has filed affidavit of DW1 and he was examined and discharged on 11.07.2019 and thereafter, defendant did not appear and matter was fixed for ex-parte final arguments.
7. In order to substantiate his case, the plaintiff has only examined one witness Sh. S. K. Krishnamoorthy as PW1. He has tendered his affidavit in his CS No.57074/16 M/s VRL Logistics Vs. M/s Veekay Surgicals Pvt. Ltd.. Page no.3 of 8 evidence and the same is Ex.PW1/A. In his affidavit, he has rely upon documents i.e. Ex.PW1/1 (OSR) and Mark A to Mark K (wrongly mentioned in affidavit as Ex.PW1/2 to Ex.PW1/12).
8. In his cross examination, PW1 has deposed that he had sent his quotations to the defendant and in response to the same he entered into an agreement with him for transportation of goods. The goods were transported from UP Border (Sahibabad) to Kerala. He filed the agreement in the court. He denied the suggestion that documents filed by him is not an agreement. He admitted that the copy of document i.e. mark A is his quotation. He stated that he received the goods from defendant probably on 18.03.2011 at Sahibabad (UP Border) and it was delivered to the recipient in Kerala after fifteen days. He stated that there was no agreement about transit time. He denied the suggestion that the goods were not delivered on time. He has further denied the suggestion that the goods were damaged in transit, however, he has admitted that oil was spilled upon the goods from other consignment. He has further admitted that he issued damage certificate to the defendant. He has volunteered that the defendant could claim damage from the insurance company. He stated that at the time of delivery the consignee intimated us about damage of goods and later on the defendant also wrote to us in this regard and thereafter plaintiff issued the damage certificate. He has admitted that total 41 boxes were damaged out of the two consignments. The damaged items were returned to him by the consignee and he returned the same to the defendant. He has denied the suggestion that he did not return the damaged boxes to the defendant. He has further denied the suggestion that due to unexpected delay in delivery of goods late delivery charge was imposed upon the defendant by the consignee. He issued damage certificate in August after receiving such request from the defendant. He denied the suggestion that he did not issue damage certificate despite several request from the defendant.
CS No.57074/16M/s VRL Logistics Vs. M/s Veekay Surgicals Pvt. Ltd.. Page no.4 of 8 He has further denied the suggestion that the defendant never intimated him about rejection of his insurance claim owing to delay in issue of damage certificate from his end. He denied the suggestion that plaintiff was not sincere in its service and liability. He has further denied the suggestion that the goods were dispatched at carrier's risk.
Thereafter, PE was closed and the matter was listed for DE.
9. In order to prove its defence, defendant has examined only one witness i.e. Sh. Laltoon Jha as DW1. DW1 has tendered his affidavit in his evidence and the same is Ex.DW1/1.
10. In his cross-examination, DW1 has deposed that he is the Executive of the defendant company and he look after the transportation department of the company since 2011. He stated that he does not know since when they are dealing or getting services of the plaintiff. He stated that the goods were delivered to M/s Kerala Medical Service Corporation Ltd. but they have denied to take the goods as these goods were damaged in transit. He stated that he has been working in the defendant company since 2005. The agreement dated 01.05.2010 Ex.PW1/2 was signed by Sh. B. L. Sharma and he knows him as he is his colleague in the defendant company but he does not know about the agreement. DW1 stated that he does not have any idea about the agreement for transportation of the goods of the defendant company with the plaintiff but he look after transport department of the defendant company. He denied having claimed anything from the insurance company as he has not received any letter regarding the damage of the goods. He got to know about the damaged goods only after seven-eight months from the date of transportation of the said goods but does not remember the exact dates or month. In transportation related agreements as a nomenclature, there is always a insurance clause in the agreement and they claimed the same from the CS No.57074/16 M/s VRL Logistics Vs. M/s Veekay Surgicals Pvt. Ltd.. Page no.5 of 8 insurance company which is a common practice with the defendant company as well. He stated that defendants have not received any letter from United India Insurance Co. Ltd. regarding the claim. He stated that there is damage amount of around Rs. 1 Lakh and again said, he does not remember though he claimed Rs.2,05,084/- in the counter claim. All the goods which were transported were damaged. He stated that the defendant company have not received back any of the damaged goods. He stated that he has not physical seen the damaged goods.
Thereafter, DE was closed and matter proceeded for final arguments.
11. Arguments on behalf of plaintiff are heard and the case file is carefully perused.
12. My issue wise findings are as follows:-
i). Whether the plaintiff is entitled for the recovery of suit, as prayed for, if so, at what rate of interest and for which period? OPP.
The onus to prove this issue is on the plaintiff. The claim of the plaintiff is premised on Bill No.164515 dated 31.05.2011 and Bill No.164158 dated 30.06.2011. In the said bills, plaintiff has claimed amount of Rs.66,339.50 and Rs.36,061/- respectively from the defendant. To substantiate the liability, plaintiff has filed the copy of these bills which is Mark-B and Mark-C respectively. The plaintiff has not produced the documents in original before the court to prove Mark-B and Mark-C. These documents were required to be proved along with other documents as proof of the liability shown to be existing against the defendant. Only one witness, namely, S.K. Krishnamoorthy appeared as PW1 and tendered his affidavit relying upon documents from Mark-A to Mark-K. Although, objection regarding mode of proof was not taken on behalf of defendant while these documents were tendered in evidence by PW1, still these documents were required to be proved by the plaintiff. The liability has to be proved through documents and no assumption can be drawn CS No.57074/16 M/s VRL Logistics Vs. M/s Veekay Surgicals Pvt. Ltd.. Page no.6 of 8 on the basis of copies of the documents. Mere, marking a document as Mark- A and Mark-B has no relation with its proof. Admission of a document in evidence is not to be confused with proof of a document. Regard being had to "M/s Sudhir Engineering Co. Vs. Nitco Roadways Ltd." 1995 II AD Delhi 189. The plaintiff is a logistic company which is supposed to have the documents pertaining to the transactions with the defendant. In the absence of any proof of the documents filed by plaintiff, its claim cannot be sustained. Plaintiff has failed to discharge the onus to prove this issue. Accordingly, this issue is decided in favour of the defendant and against the plaintiff.
ii). Whether the suit of the plaintiff is bad for mis-joinder/non-joinder of necessary parties? OPD.
The onus to prove this issue is on the defendant. On behalf of the defendant DW1 appeared and tendered his evidence. No evidence has been brought forth by the DW1 to prove that the plaint filed by plaintiff suffers from non-joinder/mis-joinder of necessary parties. Accordingly, this issue is decided in favour of the plaintiff and against the defendant.
iii). Whether the defendant is entitled for recovery in counter claim, as prayed for, if so, at what rate of interest and for what period? OPD.
The onus to prove this issue is on the defendant. The defendant has claimed that plaintiff company has damaged the surgical goods of defendant through its inexperience in handling the same as 18 boxes out of 66 boxes in consignment no.12006544 dated 21.03.2011 from U.P. Border to Kozhi Kode, Kerala. It is also averred that the goods delivered late and late delivery charge was imposed on the defendant. The intimation of the damaged goods was given on 02.04.2011 to the plaintiff by M/s Kerala Medical but plaintiff replied more than four and a half months and issued a damaged certificate on 20.08.2011 and due to delay in issuance damaged certificate the claim of the defendant was rejected. The defendant could not prove Ex.DW1/6 as no witness was examined to prove the same. This document ought to have been CS No.57074/16 M/s VRL Logistics Vs. M/s Veekay Surgicals Pvt. Ltd.. Page no.7 of 8 proved for the recovery of the counter claim amount. Accordingly, this issue is decided in favour of the plaintiff and against the defendant. Relief.
In view of my above issue wise findings, the suit of the plaintiff is hereby dismissed. Counter claim also dismissed.
No order as to costs.
Decree sheet be drawn accordingly.
File be consigned to record room, after due compliance.
ANNOUNCED IN THE OPEN COURT
ON 07.12.2019 (DR. PANKAJ SHARMA)
ADDITIONAL SENIOR CIVIL JUDGE
PATIALA HOUSE COURT, NEW DELHI
CS No.57074/16
M/s VRL Logistics Vs. M/s Veekay Surgicals Pvt. Ltd.. Page no.8 of 8
CS No.57074/16
M/s VRL Logistics Vs. M/s Veekay Surgicals Pvt. Ltd.
07.12.2019
Present: None.
Vide my separate judgment of the even date pronounced in the open court, the suit of the plaintiff is dismissed. Counter claim also dismissed.
No order as to costs.
Decree sheet be drawn accordingly.
File be consigned to record room after due compliance.
(DR. PANKAJ SHARMA) ADDITIONAL SENIOR CIVIL JUDGE PATIALA HOUSE COURT, NEW DELHI CS No.57074/16 M/s VRL Logistics Vs. M/s Veekay Surgicals Pvt. Ltd.. Page no.9 of 8