Delhi District Court
Dharam Chand Gupta vs Sanjay Gupta on 20 May, 2023
IN THE COURT OF MS. SUKHVINDER KAUR,
DISTRICT JUDGE, COMMERCIAL COURT02,
SHAHDARA, KARKARDOOMA COURTS, DELHI
CS(COMM) NO. 213/2021
Dharam Chand Gupta
Proprietor, Shakti Minerals & Chemicals
1/2222, Ram Nagar, Mandoli Road,
Shri Durga Mandir Marg, Shahdara
Delhi110032. .....Plaintiff
Versus
1.Sanjay Gupta, Proprietor Singhal Transport Services Mandoli Road, Shahdara, Delhi110093.
2. Aamin, Proprietor, Mewat Golden Transport Company Sitara Hotel, ByPass Road, Samola, Alwar301001 Rajasthan.
3. Faruque Ahmed Noor Mohd. Khan Proprietor Delhi South Roadways Plot No.753, Sector5, NH4, Sreenagar, Belagavi Karnataka590017.
....Defendants
Date of Institution : 06.04.2021
Date of conclusion of final arguments : 19.04.2023
Conclusion : Decreed
Appearance : Mr. Vinay Lohia
Ld. Counsel for the plaintiff.
Page 1 of 9
ExParte Judgment
1. The plaintiff has filed the present commercial suit for recovery of Rs.4,27,125/ along with pendente lite and future interest @ 18% per annum against the defendants.
2. Succinctly, the case of the plaintiff is that the plaintiff is the proprietor of Shakti Minerals & Chemicals and is the manufacturer of various kinds of chemicals and has been approaching the defendant no.1 at its office at Delhi for taking the services of defendant no.1 for transportation of the various kinds of chemicals to its customers as per their requirement and majority of the transportation of the plaintiff is being done by the defendant no.1.
3. It is further the case of the plaintiff that it received order for supply of Marble Powder Calcite Power (10.000M. Ton) and Calcium Carbonate (20.000 M. Ton) total weighing 30.000 M Ton from M/s. Berger paints India Ltd. Plot No.316 and 317, Kundaim Industrial Estate, Kundaim, Ponda, North Goa403115 and hence the plaintiff approached the defendant no.1 for transportation of the said consignment to Goa and the freight for the consignment was agreed between the plaintiff and defendant no.1 @ Rs.3,500/ per metric Ton thus totaling Rs.1,05,000/ and the plaintiff further paid a sum of Rs.70,000/ towards advance and agreed to pay the balance freight amount of Rs.35,000/ immediately on receipt of the said consignment to M/s. Berger Paints India Ltd.
4. The plaintiff also raised invoice no.ALW/0044 dated 01.06.2020 for Calcium Carbonate 20.000 M. Ton amounting to Rs.3,12,700/ and invoice No.ALW/0045 dated 01.06.2020 for Marble Powder Calcite Powder 10.000 Page 2 of 9 M Ton amounting to Rs.1,03,425/. The defendant no.1 transferred the advance amount to the defendant no.2 and sublet the said contract for consignment of the goods to the defendant no.2 who in turn further took the services of defendant no.3 and the said goods were sent to the consignee i.e., M/s. Berger Paints India Ltd., North Goa through Truck No. RJ 14 GJ 6469.
5. It is further the case of the plaintiff that as per the normal transit route, the goods were supposed to reach the consignee i.e., M/s. Berger Paints India Ltd. within four to five days, however, as per information received by the plaintiff from its buyer i.e., M/s. Berger Paints India Ltd., the goods in question were not delivered at the destination till 06.06.2020 and hence the plaintiff contacted the defendant no.1, who informed that due to heavy rain on the way, there was a little bit delay in reaching the goods at destination. The plaintiff also came to know from the consignee that the goods had reached the destination on 08.06.2020 but due to some technical problem in the truck, the truck in question could not enter the godown of the consignee and it was only after arrangement of Crane etc. the entry of the truck was possible in the godown of the consignee. However, on inspection of the goods by representative of the consignee, it was informed to the plaintiff that the goods were wet due to lack of proper covering on the and way and as such the entire consignment was rejected by the consignee vide rejection letter dated 17.06.2020.
6. The defendant no.3 sent a legal notice dated 23.06.2020 to the plaintiff thereby containing illegal and arbitrary demands. The plaintiff was also informed that the defendant no.3 instead of returning the goods to the plaintiff, illegally and arbitrarily took the entire consignment to Belagavi, Page 3 of 9 Karnataka thereby committing criminal breach of trust. The matter was also brought to the knowledge of defendants no.1 but as all the defendants were working in collusion with each other, thereby causing loss to the plaintiff but the defendant No.1 and defendant nos. 2 and 3 failed and neglected to adhere to the just and bonafide demands of the plaintiff.
7. It is further the case of the plaintiff that on 24.06.2020 the plaintiff sent a legal notice to the defendant No.1 by speed post/email/whatsapp and even by hand. Though, defendant no.1 admitted its guilt and also sent legal notice of demand to the defendant nos.2 and 3, copy of which was also forwarded to the plaintiff, however, the defendant no.1 failed and neglected to adhere to the just and bonafide demands of the plaintiff regarding payment of the amount of Rs.4,27,125/. Thus, the plaintiff is entitled to recover a sum of Rs.4,27,125/ along with pendente lite and future interest @ 18% per annum from the defendants till the date of filing of the present case. Hence, the present case.
8. After filing of the present suit, summons of the suit were directed to be issued to the defendants. Defendant nos.2 and 3 were duly served with summon on 28.09.2021 and 30.09.2021 respectively. The defendant no.1 was also served with summon on 05.10.2021. However, nobody appeared for defendants after service nor any written statement was filed on their behalf. Hence, defendants were proceeded exparte vide order dated 19.02.2022.
9. In order to prove its case, the plaintiff has filed evidence by affidavit of plaintiff who has also been examined as PW1.
Page 4 of 910. PW1 tendered his evidence by way of affidavit which is PW1/A. PW1 in his evidence by way of affidavit Ex.PW1/A has reiterated the contents of the plaint and relied upon the following documents
1. Invoice No.ALW/0044 dated 01.06.2020 Ex.PW1/1;
2. Invoice No.ALW/0045 dated 01.06.2020 Ex.PW1/2;
3. GR No.005 of truck registration no.RJ 14 GJ 6469 dated 01.06.2022 Ex.PW1/3;
4. GR No.006 of Truck registration no. RJ 14 GJ 6469 dated 01.06.2022 Ex.PW1/4;
5. E-Way Bills No.781129477044 and 791129478053 both dated 01.06.2020 Ex.PW1/5 & Ex.PW1/6;
6. Rejection letters/Non-confirming reports No.05/272 and 06/273 both dated 17.06.2020 Ex.PW1/7 & Ex.PW1/8;
7. E-way bills No.711131770576 and 731131771335 both dated 18.06.2020 Ex.PW1/9 & Ex.PW1/10;
8. Legal notice dated 23.06.2020 Ex.PW1/11;
9. Legal notice dated 24.06.2020 Ex.PW1/12;
10. Non-Starter report issued by DLSA Ex.PW1/13.
11. I have gone through the testimony of PW1 and gone through the documents proved on record. I have also perused the record and considered the written arguments filed by Ld. Counsel for plaintiff.
12. As per the case of plaintiff he had entered into agreement with defendant no.1 for transportation of the consignment to M/s. Berger Paints India Pvt. Ltd. at North Goa and the rates were also settled with defendant Page 5 of 9 no.1. Thus, there is no privity of contract between plaintiff and defendant no.2 and defendant no.3. As per testimony of PW1, without the consent of the plaintiff, defendant no.1 transferred the advance amount to defendant no.2 and sublet the said contract for consignment of goods to defendant no.2, who in turn further hired the truck owned by defendant no.3 and the said goods were sent to consignee by defendant no.3. Thus, it is apparent that defendant no.2 was the agent of defendant no.1 and defendant no.3 was a sub agent.
13. The liability of defendant nos. 2 and 3 if any, is towards the defendant no.1, who is the principal and not towards the plaintiff, who is a third party/stranger in so far as the mutual agreement between defendant no.1 and defendant no.2 and defendant no.2 and defendant no.3 is concerned. Thus, defendant nos. 2 and 3 have no liability towards the plaintiff.
14. Ld. Counsel for plaintiff has argued that defendant no.3 in the notice Ex.PW1/11 has admitted that the consignment was taken by him to the consignee Berger Paints India Pvt. Ltd. He has further admitted that when the consignee refused to get the goods unloaded, the goods were transported by him to Belagavi, i.e., at his native place. He argued that as the goods belonging to the plaintiff are admittedly lying with defendant no.3, defendant no.3 is liable. He also placed reliance on the judgment of Hon'ble Supreme Court in Dilawari Exporters Vs. Alitalia Cargo & Ors., (2010) 5 SCC 754.
15. I am not convinced with the arguments advanced by Ld. Counsel for plaintiff as the defendant No.3 has no contractual liability towards the plaintiff since there is no privity of contract between them. The plaintiff can Page 6 of 9 take the other available remedies for release of the goods. Further, the judgment relied upon by Ld. Counsel for plaintiff is not applicable to the facts of the instant case since the same pertains to carriage of the goods by air under Carriage by Air Act, 1972.
16. In respect of the liability of defendant no.1, from the invoice Ex.PW1/1 and Ex.PW1/2 it is established that the goods were meant to be consigned to M/s. Berger Paints India Ltd. Goa. From invoices Ex.PW1/3 and Ex.PW1/4 and Eway bills Ex.PW1/5 and Ex.PW1/6, it is established that the goods were transported in truck no.RJ 14 GJ 6469 from Alwar to Ponda, Goa.
17. Further from the nonconforming report Ex.PW1/7 and Ex.PW1/8 it is evident that the bags were found in a wet condition and rejected by the consignee. From the Eway bill Ex.PW1/9 it is established that the goods were sent back to the plaintiff by the consignee. From the notice Ex.PW1/11 issued by defendant no.3 to the plaintiff, consignee Berger Paints India Pvt. Ltd. and defendant no.1, it is established that instead of transporting the goods back to the plaintiff, defendant no.3 had taken the goods to Belagavi i.e., his own native place.
18. Though the plaintiff has also placed reliance on the notice Ex.PW1/12 purportedly issued to defendant no.1, however, the same cannot be read in evidence as no postal receipt has been filed to prove the postal of the same to defendant no.1. However, from Ex.PW1/3 and Ex.PW1/4 it is established that the goods were booked by the plaintiff for transportation to the consignee M/s. Berger Paints India Pvt. Ltd. through Singhal Transport Page 7 of 9 Service i.e., defendant no.1.
19. From the notice Ex.PW1/11 it is established that the goods were not returned back to the plaintiff after the same were discarded by the consignee M/s. Berger Paints India Pvt. Ltd. From invoices Ex.PW1/1 and Ex.PW1/2 it is established that the value of goods agreed to be transported through defendant no.1 was Rs.4,16,125/. Hence, the plaintiff is entitled for the refund of the value of goods.
20. This Court has the territorial jurisdiction over the present case since defendant no.1 is running his business at Mandoli Road, Shahdara, Delhi which falls within the jurisdiction of this Court. This Court also has the pecuniary jurisdiction over the matter since the suit amount claimed by the plaintiff is more than the specified value of Rs.3 lacs of the Commercial Courts. The suit is commercial in nature and is covered within purview of Section 2 (1) (c) of Commercial Courts Act and from DLSA report Ex.PW1/13 is also revealed that plaintiff has taken steps for PreInstitution Mediation and Conciliation as required under Order 12 A of Commercial Courts Act.
21. Furthermore, the present suit has been filed within the period of limitation since as per Ex.PW1/3 and Ex.PW1/4 the goods in question were booked on 01.06.2020 which, as per the unrebutted testimony of PW1 were to be consigned to the consignee by 06.06.2020 and the present suit has been filed on 06.04.2021 i.e., within limitation period of three years of acknowledgment of the liability.
Page 8 of 922. In view of the unrebutted testimonies of witnesses, statement of account and the other documents proved on record, the suit of the plaintiff is decreed for a sum of Rs.4,16,125/ along with interest @ 12% per annum along with cost to the extent of court fee against defendant no.1 from the date of filing of the present suit i.e., 06.04.2021 till its realization.
Decree sheet be prepared accordingly.
File be consigned to record room after due compliance. Announced in the open Court On 20th day of May, 2023.
(Sukhvinder Kaur) District Judge, Commercial Court02 Shahdara, Karkardooma Courts 20.05.2023 Page 9 of 9