Delhi District Court
Om Logistics Limited vs Shirdi Industries Limited on 27 February, 2024
In the Court of Shri Ashutosh Kumar, District Judge (Commercial
Court)-01, Tis Hazari Courts, West District, Delhi
CS (COMM.) No. 612/2021
CNR No.DLWT01-009229-2021
OM LOGISTICS LIMITED
HAVING ITS REGISTERED OFFICE AT - 130, TRANSPORT
CENTER, RING ROAD, NEAR PUNJABI BAGH FLYOVER, NEW
DELHI - 110035
.... Plaintiff
Versus
SHIRDI INDUSTRIES LIMITED
A WING, 2ND FLOOR, MHATRE PEN BLDG., SENAPATI BAPAT
MARG, DADAR WEST, MUMBAI 400028 IN ALSO AT - PLOT
NO. 1, SECTOR 9, IIE, SIDCUL, PANTNAGAR, DIST. U.S. NAGAR,
(UK) 263153
.... Defendant
Date of Institution : 01-12-2021
Date of hearing of arguments : 16-02-2024
Date of decision : 27-02-2024
Plaintiff's counsel- Sh Arun Aggarwal
Defendant's counsel - Sh Ashok Thagal
JUDGMENT
1. This is a suit for recovery of Rs. 19,68,961.28 alongwith pendentelite and future interest from the defendant towards the outstanding amount due qua the transport services provided by the plaintiff and the same is filed by the plaintiff through Shri Vinay Kumar, who is Legal Manager (Legal & Liaison) in plaintiff company & is well conversant with the facts of the case and duly CS (COMM.) No. 612/2021 Om Logistics Limited Vs Shirdi Industries Ltd Page No.1 of 17 authorized vide resolution dated 02.01.2019 executed in his favour by the plaintiff.
2. As per the case of the plaintiff, officials from the defendant company telephonically approached an official of plaintiff's company at the registered office (i.e. 130, Transport Center, Ring Road, Near Punjabi Bagh Flyover, New Delhi 110035 as mentioned in the memo of parties) in the year 2018 for transportation of their consignments throughout India by the plaintiff, to which plaintiff quoted their rates as well as the terms and conditions, which the defendant clearly understood and accepted the offered rates as well as the other terms and conditions of the plaintiff. It is further averred that after the defendant accepted the offer of the plaintiff, the plaintiff started the business dealings with the defendant; in 2018, the officials from the defendant company also visited the plaintiff company at the registered office in order to be ensured about the infrastructure of the plaintiff company and they met the Senior Management persons as well before striking the deal. Accordingly, written contract dated 01.07.2019 was entered into between the parties at Delhi. It is further claimed by the plaintiff that it had provided the best of their services to the defendant and carried out the consignments of the defendant at the destinations as desired by them to their satisfaction. Plaintiff raised various bills upon the defendant towards the freight charges for the transportation CS (COMM.) No. 612/2021 Om Logistics Limited Vs Shirdi Industries Ltd Page No.2 of 17 carried out by the Plaintiff for the Defendant and delivered the same to the defendant along with the proof of deliveries of the consignments of the Defendant and the bills which remained pending for payment by the defendant, have been mentioned by the plaintiff in a separate bill wise ledger of the defendant. It is further averred that the first unpaid bill was dated 25-07-2019 and last unpaid bill was dated 04-01-2020. It is further claimed by the plaintiff that defendant requested the plaintiff to open billing codes to avail plaintiff's services on credit basis and during the course of dealings, defendant had booked various consignments on the billing codes through the plaintiff to be transported to various places in India, which were transported by the plaintiff in safe and sound condition at the required destinations. Plaintiff further stated that initially defendant were liable to pay the freight charges of Rs. 37,32,972/- along with interest @18% per annum as per the (oral) settlement agreement dated 22.02.2020 and defendant acknowledged their liability and towards the payment of the freight charges in part, defendant also issued cheque bearing no. "000480" dated 31.08.2020 amounting to Rs. 30,00,000/- drawn on Kotak Mahindra Bank, Manisha Apartments, Mumbai, Maharashtra 400025, in favour of plaintiff. It is further averred by the plaintiff that in furtherance of the said settlement agreement, the defendant made part payment of Rs.22,18,386.40. The plaintiff requested the defendant to pay the CS (COMM.) No. 612/2021 Om Logistics Limited Vs Shirdi Industries Ltd Page No.3 of 17 balance amount of Rs. 15,14,585.60 but the same was not paid and therefore, plaintiff was forced to send a legal notice dated 18.08.2021 to the defendant by courier on 19.08.2021 and by e- mail on 19.08.2021 through their advocate, which was duly served upon the defendant on 20.08.2021, but despite receipt of the said notice, defendant did not make the payment. Plaintiff has also claimed that plaintiff was maintaining bill wise ledger account as per which defendant is liable to pay Rs. 15,14,585.60 towards the outstanding freight charges alongwith interest of Rs. 4,54,375.68. Plaintiff had also approached pre-litigation mediation, which was a non-starter.
3. Summons for settlement of issues was sent to the defendant and appearance was duly made on its behalf and a written statement was filed. In its written statement, defendant in his preliminary objections inter-alia claimed that the suit of the plaintiff is liable to be rejected being barred by territorial jurisdiction in terms of section 6 of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015. It is stated by the defendant that the contract was signed on 01-07- 2019 in the registered office of the defendant at M/s. Shirdi Industries Limited, Plot No. 1, Sector 9 IIE, Pant Nagar Industrial Area, Rudrapur, Uttarakhand and various goods were allegedly transported at the behest of the defendant to various places not falling within the jurisdiction of this Court and also that the tax CS (COMM.) No. 612/2021 Om Logistics Limited Vs Shirdi Industries Ltd Page No.4 of 17 invoices were raised by the plaintiff from its registered office at Plot No. 24-C, Sector 2 Industrial Estate, SIDCUL, Udham Singh Nagar, Uttarakhand. Defendant has further claimed that the General Terms and Conditions of the Purchase Order uploaded in the website of the defendant http;www.asisindia.com under head Tender and Notices with regard to purchase order terms and conditions, para 31 reads as "place of jurisdiction for any dispute shall be place of delivery of supply". It is stated that the invoices in dispute were not raised within the jurisdiction of this court and therefore the suit is liable to be rejected.
4. Defendant has further taken the objection that the present suit of the plaintiff is barred by Law of Limitation as the suit was instituted on 30-11-2021 i.e. after three years from the date of accrual of alleged cause of action which expired as per the procedure prescribed in the Limitation Act, 1963. Defendant has also objected that the suit is not properly valued for the purposes of court fees and the plaintiff has concealed material facts from the Court.
5. On merits, defendant has denied its liability to pay an amount of Rs. 19,68,961.28 alongwith pendentelite and future interest @ 18% per annum till realization. The defendant also denied the service of legal notice dated 18-08-2021 and also stated that if the receipt of the same is admitted for arguments sake then mere service of legal notice would not constitute an admission of CS (COMM.) No. 612/2021 Om Logistics Limited Vs Shirdi Industries Ltd Page No.5 of 17 liability by the defendant and defendant was not obliged to reply to the legal notice as the concocted outstanding amount never existed in the books of accounts of defendant.
6. Plaintiff filed replication to the written statement denying the preliminary objections and reiterating the contents of the plaint. Plaintiff has vehemently denied that the contract was signed on 01-07-2019 in the registered office of the defendant at M/s. Shirdi Industries Limited, Plot No. 1, Sector 9 IIE, Pant Nagar Industrial Area, Rudrapur, Uttarakhand or that the tax invoices were raised by the plaintiff from its registered office at Plot No. 24-C, Sector 2 Industrial Estate, SIDCUL, Udham Singh Nagar, Uttarakhand.
7. Plaintiff examined two witnesses on its behalf i.e. PW-1 Sh Vinay Kumar, Authorized Representative and Legal Manager (legal & Liason) and PW-2 Sh Pawan Kumar Bisht, Accounts Officer, who were examined-in-chief, cross-examined and discharged. On the other hand, defendant examined one witness namely Sh Ramesh Sharma, Manager (Accounts), who was examined, cross- examined and discharged.
8. PW-1 has deposed on the lines of plaint in his affidavit of evidence Ex. PW-1/A and relied on documents Ex. PW-1/1 to Ex. PW-1/11. In his affidavit of evidence, he stated that he being Legal Manager (Legal & Liaison) of the plaintiff company is well conversant with the facts of the present case and is duly authorized vide resolution dated 02.01.2019.
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9. In his affidavit of evidence, PW-1 has claimed that plaintiff used to raise bills upon the defendant towards the freight charges for the transportation carried out by the plaintiff and has exhibited the bills/acknowledgment of bills/proof of delivery/GR as Ex. PW- 1/4(Colly) and plaintiff was also maintaining a separate pending bill wise ledger of the defendant for the bills which remained pending for payment as Ex. PW-1/5. PW-1 has deposed that a running account was being maintained by the plaintiff and has relied upon statement of account/sundary debtors of the defendant as maintained by the plaintiff as Ex. PW-1/6(Colly) vide which plaintiff has received the last payment of Rs. 51,000/- from the defendant on 08-04-2021 and therefore the present suit is within limitation. PW-1 proved the documents viz. legal notice as Ex. PW-1/8, courier receipts as Ex. PW-1/9(Colly), Email dated 19.08.2021 as Ex. PW-1/10 and tracking reports as Ex.PW- 1/11(Colly).
10. In his cross-examination, PW-1 has stated that defendant company is situated in Kirti Nagar, Delhi. On being shown Ex.PW1/4, he admitted it to be correct that the services of the plaintiff company were given to the defendant in Pant Nagar, Uttrakhand and various other parts of India and further admitted that no service to the defendant company was given in Delhi. PW-1 denied that clause 31 of the agreement dated 01.07.2019 provided that the place of jurisdiction for any dispute shall be place of delivery of CS (COMM.) No. 612/2021 Om Logistics Limited Vs Shirdi Industries Ltd Page No.7 of 17 supply. (Court Observation: There is no such clause 31 in agreement dated 01-07-2019 Ex. PW-1/3 executed between the parties). He admitted that a cheque bearing No. 000480 amounting to Rs.30,00,000/- dated 31.08.2020 was issued by the defendant company as security deposit to the plaintiff company payable at Delhi. He denied that the present suit has been filed after a lapse of three years from the last invoices of 2018. He voluntarily stated that the first unpaid bill was dated 17.09.2019 and the last unpaid bill was dated 01.01.2020. He denied that the defendant company was not liable to pay the payment of Rs.15,14,585.60.
11. PW-2 Sh Pawan Singh Bisht in his affidavit of evidence Ex. PW-
2/A has stated that he was working as Accounts Officer in the plaintiff company and has been authorized to depose vide authority letter Ex. PW-2/1 executed in his favour by plaintiff company. PW-2 also proved certificate under section 65 B of Indian Evidence Act as Ex. PW-2/2 in support of documents Ex. PW-1/4, Ex. PW-1/5 and Ex. PW-1/6 exhibited during the examination of PW-1.
12. Defendant examined DW-1 Sh Ramesh Sharma (Authorized Representative and Manager, Accounts of the defendant) as its sole witness who tendered his evidence by way of affidavit Ex.DW-1/A and has broadly deposed on lines of written statement. In his affidavit of evidence he has stated that he is CS (COMM.) No. 612/2021 Om Logistics Limited Vs Shirdi Industries Ltd Page No.8 of 17 authorized person to appear before this court vide Ex. DW-1/1, board resolution executed in his favour. DW-1 also relied on agreement dated 01-07-2019 (already Ex. PW-1/3) as Ex. DW-1/2 and has deposed about the General Terms and Conditions of the Purchase Order uploaded in the website of the defendant http;www.asisindia.com under head Tender and Notices with regard to purchase order terms and conditions as Mark A.
13. In cross-examination DW-1 stated that he is working at defendant's office situated at Plot No. 94/7, Block No. 2, WHS, Kirti Nagar, Delhi and looks after reconciliation of accounts and other commercial activities on its behalf. He admitted that defendant company maintains books of accounts. He further admitted that Ex.PW1/3 (colly) does not mention that the same was executed at Plot No. 24-C, Sector-2, Industrial Estage, SIDCUL, Udham Singh Nagar, Uttarakhand-262153. He could not admit or deny if the transportation services by the plaintiff on its behalf started after the execution of this agreement Ex.PW1/3 (colly). He also admitted that though they maintain statement of accounts with respect to the transactions with the plaintiff but the same have not been filed by the defendant on the court record. He denied the suggestion that the same have not been filed as it would have shown the suit amount as payable by the defendant to the plaintiff.
14. During his cross-examination DW-1 was confronted with letter CS (COMM.) No. 612/2021 Om Logistics Limited Vs Shirdi Industries Ltd Page No.9 of 17 dated 14.02.2020, to which DW-1 admitted that vide the said covering letter, defendant had given cheque Ex.PW1/7 to the plaintiff. The covering letter dated 14-02-2020 was exhibited as Ex.DW1/P-1. DW-1 also admitted that defendant had to pay an amount towards freight charges to the plaintiff from 17.09.2019 onwards. DW-1 admitted that addresses of the defendant shown on Ex. PW1/8 are correct addresses of the defendant. DW-1 further admitted that defendant had received legal notice of demand Ex.PW1/8 and also that no reply thereto was placed on record. DW-1 denied defendant's liability to pay the suit amount.
15. From the pleadings of the parties, following issues were framed on 15-07-2022:
1. Whether the plaintiff is entitled to recovery of Rs. 19,68,961.28 alongwith interest from the defendant as alleged? OPP
2. Whether this court has no territorial jurisdiction to try the matter? OPD
3. Whether this suit is bad for non joining of necessary party? OPD
4. Whether the suit is not property valued? OPD
5. Whether plaintiff has concealed material facts from the Court? OPD
6. Relief.
16. I have heard final arguments on behalf of both the parties, perused the written submissions filed on behalf of the plaintiff and perused the record.
17. My issue-wise findings are as under:
ISSUE NO. 1CS (COMM.) No. 612/2021 Om Logistics Limited Vs Shirdi Industries Ltd Page No.10 of 17 "Whether the plaintiff is entitled to recovery of Rs. 19,68,961.28 alongwith interest from the defendant as alleged? OPP"
18. The onus to prove this issue was on the plaintiff. PW-1 and PW-2 have deposed on the lines of the case of the plaintiff. PW-1 has proved the authority letter of the plaintiff in his favour vide Ex. PW-1/2. He has also proved the certificate of incorporation of the plaintiff vide Ex. PW-1/1. PW-1 has proved various bills/acknowledgment of bills/proof of delivery/GR vide Ex. PW- 1/4(Colly) qua the bills of freight charges raised upon the defendant, the bill wise ledger of the defendant for the bills which remained unpaid vide Ex. PW-1/5, the fact that a running account of the defendant was maintained by the plaintiff and has relied on statement of account / sundary debtors of the plaintiff mentioning the name of the defendant vide Ex. PW-1/6(Colly). Since the defendant has not specifically given denial suggestion to PW-1 qua the said facts and documents, therefore they are deemed to be admitted. Further, DW-1 has admitted in his cross-examination that defendant is to pay an amount towards freight charges to the plaintiff from 17-09-2019 onwards. PW-1 has further proved legal notice of demand dated 18-08-2021 Ex. PW-1/8 sent to the defendant by way of courier on 19-08-2021 vide courier receipts Ex. PW-1/9 (Colly) and by Email on 19.08.2021 vide Ex. PW- 1/10 and tracking report vide Ex.PW-1/11(Colly). DW-1 in his cross-examination has admitted that the said legal notice was CS (COMM.) No. 612/2021 Om Logistics Limited Vs Shirdi Industries Ltd Page No.11 of 17 received by the defendant. Since inspite of receipt of legal notice of demand, the defendant admittedly did not give any reply thereto, therefore adverse presumption has to be drawn against the defendant.
19. PW-2 has proved the authority letter in his favour vide Ex. PW-
2/1. He has also proved certificate under section 65 B of Indian Evidence Act vide Ex. PW-2/2 in support of documents Ex. PW- 1/4 (Colly), Ex. PW-1/5 and Ex. PW-1/6 (Colly).
20. Defendant except for taking bald plea in its written statement and denying its liability to pay the outstanding amount, did not take any plea on merits. Furthermore, DW-1 has admitted in his cross- examination that the defendant company used to maintain statement of account with respect to the transactions of the plaintiff but the same has not been filed by the defendant on court record. Due to non-filing of the said essential record, which was under the domain and possession of defendant, therefore an adverse presumption has to be drawn against the defendant in this regard that defendant has not deliberately filed the same as the same would have shown its liability towards the plaintiff. Thus from the aforesaid discussion, it stands established that defendant is liable to pay the outstanding amount claimed by the plaintiff to the tune of Rs.15,14,585.60. Plaintiff has also claimed interest @ 18% per annum on the outstanding amount w.e.f. 17-09-2019 alongwith pendentelite and future interest at the same rate.
CS (COMM.) No. 612/2021 Om Logistics Limited Vs Shirdi Industries Ltd Page No.12 of 17 However, this rate of interest appears to be in the form of penalty and also on the higher side. Accordingly, keeping in view the prevailing market rate of interest of nationalized banks on commercial transactions, interest @ 9% P.A. would be reasonable and is allowed on the outstanding amount. Accordingly, issue no. 1 is decided in favour of the plaintiff and against the defendant.
ISSUE NO. 2"Whether this court has no territorial jurisdiction to try the matter? OPD"
21. The onus to prove this issue was on the defendant. The clause 31 of the document Mark A qua the General Terms and Conditions of the Purchase Order uploaded in the website of the defendant http;www.asisindia.com under head Tender and Notices with regard to purchase order terms and conditions mentioning "place of jurisdiction for any dispute shall be place of delivery of supply", was not duly proved by the defendant and also was not part of the agreement dated 1-07-2019 Ex. PW-1/3 executed between the parties. Hence, the same does not stand proved. The defendant has claimed that agreement dated 01-07-2019 Ex. PW- 1/3 was executed at its office at M/s. Shirdi Industries Limited, Plot No. 1, Sector 9 IIE, Pant Nagar Industrial Area, Rudrapur, Uttarakhand and the plaintiff has transported the goods of the defendant outside the territorial jurisdiction of this court and hence this court has no territorial jurisdiction to try the present CS (COMM.) No. 612/2021 Om Logistics Limited Vs Shirdi Industries Ltd Page No.13 of 17 suit. However, there is no specific denial of the defendant to the averment made by the plaintiff in its plaint that the official of the defendant company telephonically approached an official of plaintiff's company at its registered office (i.e. 130, Transport Center, Ring Road, Near Punjabi Bagh Flyover, New Delhi 110035 as mentioned in the memo of parties) in the year 2018 for transportation of their consignments throughout India by the plaintiff. Further, the defendant has admitted in its written statement that in 2018, the officials from the defendant company also visited the plaintiff company at its registered office in order to be ensured about the infrastructure of the plaintiff company and also met the Senior Management persons as well before striking the deal, at the registered office of the plaintiff which is within the territorial jurisdiction of this court. The agreement dated 01-07- 2019 Ex. PW-1/3 executed between the parties mentions the registered office address of the plaintiff as 130, Transport Center, Ring Road, Near Punjabi Bagh Flyover, New Delhi 110035, which is within the territorial jurisdiction of this court. Furthermore, the document Ex. PW-1/4 (Colly) which are the bills/acknowledgment of bills/proof of delivery/GR raised upon defendant towards the freight charges for the transportation carried out by the plaintiff mentions "subject to Delhi Jurisdiction only". No denial suggestion has been given on this aspect by the defendant and therefore the said fact is also deemed to be CS (COMM.) No. 612/2021 Om Logistics Limited Vs Shirdi Industries Ltd Page No.14 of 17 admitted. From the same and as per section 20 (c) of CPC, since the part of cause of action arose within the territorial jurisdiction of this court therefore this court has territorial jurisdiction to try the present matter. Also, DW-1 in his cross-examination has admitted that he is working in the office of the defendant at Plot No. 94/7, Block No. 2, WHS, Kirti Nagar, Delhi and looks after reconciliation of accounts and other commercial activities on behalf of the defendant. Thus, from the same and in view of the fact that one of the offices of defendant was situated in the territorial jurisdiction of this court from where also some of the business activities of defendant being run, therefore as per Section 20 (a) CPC, the territorial jurisdiction of this court is made out.
22. In support of its contention that cause of action in favour of plaintiff had arisen within the territorial jurisdiction of this court, Ld Counsel for the plaintiff has relied upon a judgment reported in M/s Auto Movers Vs Luminous Power Technologies Pvt Ltd in CM (M) 604/2020 CM Appl. 30745/2020.
23. Therefore in view of the above discussion, judgment relied upon by the Ld Counsel for the plaintiff in support of its contention and section 20 (a) and (c) of CPC, I do not find any force in the contention of the Ld Counsel for the defendant that this court has no territorial jurisdiction and hold that the present suit falls within the territorial jurisdiction of this court. Accordingly, this issue fails and the same is decided against the defendant and in favour CS (COMM.) No. 612/2021 Om Logistics Limited Vs Shirdi Industries Ltd Page No.15 of 17 of the plaintiff.
ISSUE NO 3 "3. Whether this suit is bad for non joining of necessary party? OPD"
24. The onus to prove this issue was also on the defendant. However, except for baldly claiming in its written statement that the suit is bad for non-joining of necessary party, the defendant has not lead any evidence to substantiate his plea and thus this issue is also decided against the defendant and in favour of the plaintiff.ISSUE NO. 4
"Whether the suit is not property valued? OPD"
25. The onus to prove this issue was on the defendant. However, the defendant has not led any evidence on this aspect. Accordingly, this issue fails and the same is decided against the defendant and in favour of the plaintiff.
ISSUE NO. 5Whether plaintiff has concealed material facts from the Court?OPD
26. The onus to prove this issue was also on the defendant. However, no material has been placed on record by the defendant in support of this issue and thus this issue is also decided against the defendant and in favour of the plaintiff.
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27. In view of my findings to the aforesaid issues, the suit is decreed for an amount of Rs. 15,14,585.60 alongwith interest @ 9 % w.e.f. 04-01-2020 till filing of the suit along with pendentelite and future interest at the same rate, with costs of the suit.
Decree sheet be prepared accordingly.
File be consigned to the record room.
(Announced in the open (Ashutosh Kumar)
Court) District Judge (Commercial Court)-1
West, Tis Hazari Courts, Delhi
27-02-2024
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