Delhi District Court
M/S Reliable Travels & Cargo Pvt. Ltd. vs M/S Oriental Overseas & Anr. on 1 August, 2012
M/s Reliable Travels & Cargo Pvt. Ltd. vs M/s Oriental Overseas & Anr.
IN THE COURT OF SHRI INDER JEET SINGH, ADDL. DISTRICT JUDGE03,
ROOM NO. 308, SOUTH DISTRICT, SAKET COURTS, NEW DELHI
In the matter of
CS No. 346/2011
M/s Reliable Travels & Cargo Pvt. Ltd.
Though its authorized representative,
Shri Anuj Pal,
Having its office at:
108109, A.J. Chambers
953956, Pyarelal Road, Karol Bagh,
New Delhi - 110005
Branch office at:
A 9/86, Road No. 2,Mahipalpur Extension,
New Delhi - 110037.
...Plaintiff
Versus
1. M/s Oriental Overseas
2. Sh. Mukesh Kumar Modi,
Partner, M/s Oriental Overseas
Both at: 198/37, 2nd Floor, Ramesh Market,
East of Kailash, New Delhi - 110065.
.....Defendants
Plaint Presented on : 15.11.2011
Date of Institution : 16.11.2011
Decision Reserved on : 27.07.2012
Date of Order : 01.08.2012
CS No. 346/11 Page 1 of 10
M/s Reliable Travels & Cargo Pvt. Ltd. vs M/s Oriental Overseas & Anr.
Order
( on defendant's application dated 13.01.2012 under order XXXVII Rule 3(5) CPC)
Plaintiff's Case:
1. Plaintiff M/s Reliable Travels & Cargo Pvt. Ltd is a company
incorporated. The defendant No.1 M/s Oriental Overseas is a partnership
firm and defendant No.2 Sh. Mukesh Kumar Modi is its partner.
1.2 The plaintiff is in the business of providing cargo services and help to
its customers in delivery of their cargo/goods to foreign destinations. The
defendant's have been regularly availing the services of plaintiff for long
and plaintiff has been dispatching their goods to various destinations as
per their specifications. The defendant lastly availed the services of plaintiff
for delivery of cargo goods on 25.11.2009, the plaintiff raised invoice No.
AIR 1147 dated 25.11.2009 for amount of Rs. 16,651/. The plaintiff lastly
received amount of Rs. 75,000/ on 16.3.2010 by cheque No. 565729
towards partial discharge of outstanding amount.
1.3 The plaintiff maintains running account of the defendant and as on
31.3.2010 there was outstanding liability of Rs. 4,57,897/, the defendant
No.1 also sent account confirmation statement along with certificate/letter
that there is an outstanding amount of Rs. 4,47,235/ payable by the
defendant. Since April 2010 the plaintiff has been claiming the amount but
defendant failed to pay the same on repeated request, lastly demand notice
dated 9.9.2011 has also been sent but no result, that is why the present suit
for recovery of amount of Rs. 5,23,235/ (i.e Rs. 4,47,235/ principal amount
CS No. 346/11 Page 2 of 10
M/s Reliable Travels & Cargo Pvt. Ltd. vs M/s Oriental Overseas & Anr.
+ interest of Rs.76,000/ from 1.4.2010 calculated at the rate of 12% p.a).
2.1 Whereas, the defendant filed their appearance and then an
application under Order XXXVII Rule 3 (5) CPC seeking leave to contest the
suit. The defendants opposed the suit that not only there are triable issues
but also the suit does not fall under summary procedure of Order XXXVII
CPC.
2.2 The provisions of Order XXXVII CPC applies when there is bill of
exchange, hundi or promissory note or written contract and when original
documents are filed, the present suit does not fulfill this requirement nor
original documents have been filed. As a matter of fact the said letter was
written by the defendants to the plaintiff on specific request that plaintiff is
in need of a letter to show in their income tax record and on specific
request of their Chartered Accountant, the defendant sent an account
confirmation statement along with certificate that as per accounts
maintained by the defendants, there is an outstanding of Rs.4,47,235/.
Whereas no such liability exists. Further the defendants have to recover
amount from the plaintiff, for which emails were written to the plaintiff
and amount recoverable is Rs. 1,30,679/. The plaintiff's were given
cheques but its payment was got stopped because of the reason the
defendants had to get drawback/incentives and plaintiff's agent Sh. Ajay
also came to the office of defendants to settle its account.
The plaintiff was handling shipment, it was obliged to keep the
defendants to inform about the sample shipments being inspected and/or
drawn are being checked or cut but defendants were never informed,
CS No. 346/11 Page 3 of 10
M/s Reliable Travels & Cargo Pvt. Ltd. vs M/s Oriental Overseas & Anr.
consequently the Custom Departments have not cleared the files of
defendants. The defendants have not only suffered harassment but also
they were running from pillar to post to get the export incentives/drawback
but because of plaintiff's noncooperation and professional misconduct.
The defendants are entitled to receive Rs. 2,37,705/ on account of
drawback/interest loss due to negligence of plaintiff and defendants are
still entitled to Rs. 1,30,679/ by way of discounts, besides Rs. 1,00,000/
which the defendant was compelled to spend in respect of missing bills,
four more EP copies and sample bunch which defendant got cleared in
20102011 after lots of troubles and expenses. Under these circumstances,
the defendants deserve opportunities to defend the suit.
2.3 During the course of arguments, similar contentions have been
advanced on behalf of defendants, also by filing written submissions
reiterated the contentions referred in leave to defend application, which
have been reflected in paragraph 2.2 above. In addition, the defendant filed
a counter claim of Rs. 4,47,976/ since the defendant was deprived of
record/EP copies in respect of certain amounts for which it was entitled to
received drawback/incentives and defendant had to put extra efforts and
expenditure for EP copies and sample bunch and got the files cleared after
lot of troubles and inconvenience and expenses, for which plaintiff is liable
to compensate as Rs. 1,00,000/. Besides there are also discounts of Rs.
1,30,679/ and there are email record reflecting correspondence in May
2010, May 2009 and June 2008 which reflect that there was detail
correspondence and these incentives/discounts/drawbacks were to be
received by the defendants pursuant to arrangement between the parties
CS No. 346/11 Page 4 of 10
M/s Reliable Travels & Cargo Pvt. Ltd. vs M/s Oriental Overseas & Anr.
as well as export procedure.
3.1 Whereas the plaintiff, by way of reply to application, opposed the
application, while reiterating the facts already reflected in paragraph 1
above.
3.2 The plaintiff also denies, the allegations of application that letter was
issued on the request of plaintiff or of plaintiff's Chartered Accountant or
account confirmation was carried on the request of plaintiff. In fact there
are admissions by the defendants and in the light of such admissions and
confirmation letter dated 1.4.2010, the defendants' have no defence to the
suit and as appears the defences raised are an afterthought, malafide and
it can be reasonably concluded to be moonshine, bogus and irrelevant.
The defendants are not entitled for any leave to defend the suit.
The defendants are also not entitled to receive any amount of Rs.
2,37,704/ on account of drawback/interest loss nor there was any
negligence on the part of plaintiff nor defendants are entitled for Rs.
1,36,679/ by way of discount from the plaintiff nor the defendants suffered
any loss of Rs. 1 lac. Therefore, their application is liable to be dismissed.
3.3 During the course of oral submissions, similar contentions have
been advanced while referring documentary record, email record as well as
confirmation of account dated 01.04.2010 that not only outstanding
liability is established against defendant but also admitted by the
defendants. The defendants filed counter claim but it was returned by
order dated 21.1.2012. Since there is no triable issue nor any defence to
permit the defendants to contest the suit, the application is liable to be
CS No. 346/11 Page 5 of 10
M/s Reliable Travels & Cargo Pvt. Ltd. vs M/s Oriental Overseas & Anr.
dismissed. The plaintiff fortifies its contentions, while relying upon the
case law:
P1. Daya Chand Uttam Chand Prakash Jain & Ors vs Smt. Santosh
Devi Sharma ILR (1997) 1 Del 592, held a suit filed on the basis of written
acknowledgment of preexisting debt is a contract, thus it is covered under
the summary procedure of Order XXXVII CPC.
P2. M.D. Overseas Ltd. vs Uma Shankar Kamal Narain & Ors 127
(2006) DLT 482 held in order to seek permission to defend the suit, the
defendant must by affidavit or otherwise, disclose such facts which may be
deemed sufficient to entitle him to defend the suit not otherwise.
P3. Lohmann Rausher GMBH vs Medisphere Marketing Pvt. Ltd.
117 (2004) DLT 95 while considering application to grant or refuse to leave
to defend the suit , the Court has to consider whether the defence raised is
a moonshine or not; whether defence raised requires the evidence to be
produced to substantiate the defence. The defendant had admitted the
liability and held there was no triable issue (plaintiff supplements that in
the present case, there are also admissions by the defendant).
P4. Maharashtra Apex Corp. Ltd. vs SVC Superchem Ltd. 117 DLT
668 that the defence raised is farce and frivolous, the defendant is not
entitled for grant of leave to defend the suit for want of triable issue shown
by the defendant.
P5. Vipin Gupta vs Prem Singh 134 (2006) DLT 402(DB) the defence
like lost of two cheques and plea that suit was filed on the basis of lost
cheques but considering the undertaking given on nonjudicial stamp
papers, the defence alleged by the defendants were considered as sham
CS No. 346/11 Page 6 of 10
M/s Reliable Travels & Cargo Pvt. Ltd. vs M/s Oriental Overseas & Anr.
and has no force.
P6. LG Technical & Economical Services P. Ltd vs Aman Travel P.
Ltd. 131 (2006) DLT 624 held that in application for leave to defend the suit,
the defendant must clearly set out the defence and other material
available, mere shot in dark will not do.
P.7 GE Capital Services India vs G. Neuromed Diagnostic Centre
Pvt. Ltd. 2007 (98) DRJ 74 held that the defence raised by the defendant are
moonshine , frivolous, the defendant is not entitled to leave to defend the
suit and leave to defendant was refused.
P.8 Reliance Industries Ltd. vs Imperial Pigments (P) Ltd. 104
(2003) DLT 651 held when acknowledgment of debt by the defendant is
presented before the Court, there remains no penumbra for speculation
and plaintiff is entitled to leave to sign judgment. (It is reiterated that by
way of letter/acknowledgment coupled with statement of account affirms
the case of plaintiff visavis they are admissions by the defendant).
4.1 (Findings) The rival contentions are assessed in the light of statutory
provisions of law particularly Order XXXVII Rule 3 (5) CPC visavis, the
pleadings and documents of both the side. By assessing them together, on
the one hand, the defendant had issued letter of confirmation on
01.04.2010 along with confirmation of account (for period 01.04.2009 to
31.03.2010) that there was closing debit balance of Rs. 4,47,235/ payable
by the defendant to the plaintiff, as per ledger account. The plaintiff's plaint
also reflects contents of such letter and confirmation of account, which has
also been mentioned in paragraph 1.2 above of this order. On the other side
CS No. 346/11 Page 7 of 10
M/s Reliable Travels & Cargo Pvt. Ltd. vs M/s Oriental Overseas & Anr.
there is also correspondence by Email by the parties from 2008 onward
but in the correspondence of May2010, there is discussion and claim of
discount of Rs. 1,30,679/ in Email dated 06.05.2010, however, it is
subsequent to letter of confirmation of 01.04.2010, consequently, there is
also correspondence by Email by the plaintiff to the defendant talking
about EP copy as well as DBK (drawback amount) clearance. The discount
being claimed by the defendant is Rs.1,30,679/,however, the other amount
claimed are on account of troubles or inconvenience suffered by the
defendant qua drawbacks and defendant estimates damages of Rs.
1,00,000/. However, the defendant's claim are being denied by the plaintiff.
The defendant contentions that the suit is not governed by Order XXXVII
CPC, however, in view of the law laid down in Daya Chand Uttam Chand
Prakash Jain & Ors (Supra) that written acknowledgment of existing debt is
a contract and in view thereof, the acknowledgment letter along with
account confirmation statement, is governed be summary procedure of
order XXXVII CPC. Now the other issues are taken.
4.2 To say, there are admissions by the defendant with regard to
debit closing balance of Rs. 4,47,235/ and during arguments, the
defendant was inquired as to whether there is documentary record that
plaintiff or its Charted Accountant had asked the defendant to give account
confirmation statement along with certificate, it is explained that it was
verbal instructions. But simultaneously there is also correspondence, after
confirmation of account that there is dispute of discounts of Rs. 1,30,679/.
The defendant also claims other amount either on account of drawbacks or
damages in respect of inconvenience faced. But this issue was raised in
CS No. 346/11 Page 8 of 10
M/s Reliable Travels & Cargo Pvt. Ltd. vs M/s Oriental Overseas & Anr.
email dated 06.05.2010, subsequent to confirmation of account dated
01.04.2010.
4.3 By reconciling the rival contentions and comparative study of
documentary record, on the one side there is admission of outstanding
amount of Rs. 4,47,235/ on 31.03.2010 by the defendant and on the other
side there appears to be a dispute with regard to pending discounts of Rs.
1,30,679/ being amount claimed by the defendant. To the extent of Rs.
1,30,679/, there appears to be a triable issue, however, for rest of the
admitted amount, there is no dispute. The plaintiff filed suit for Rs.
5,23,235/ i.e the amount of Rs. 4,47,235/ accrued with interest at the time
of filing of the suit. Thus, the plaintiff is held entitle for decree of Rs.
3,92,556/ (i.e. Rs. 5,23,235/ - Rs. 1,30,679/). Accordingly, the application
for leave to defend is partly allowed as there is triable issue to the extent of
Rs.1,30,679/. There is no agreed rate of interest, however, the plaintiff had
claimed 24% interest in the demand notice but 12% interest in the suit,
however, considering commercial transaction, interest at the rate 10% will
meet both ends of justice.
4.4 In view of the above, plaintiff's suit for Rs. 3,92,556/ coupled
with interest @ 10% p.a. from the date of suit upto the date of decree along
with proportionate costs is decreed in favour of plaintiff and against the
defendant. The decree sheet be drawn accordingly.
4.5 The defendant had filed counter claim along with leave to
defend application but by order dated 21.01.2012 it was made clear that
counter claim is governed by Rule 6A of Order VIII CPC, it could be filed
with the written statement and defendant was directed that it may do
CS No. 346/11 Page 9 of 10
M/s Reliable Travels & Cargo Pvt. Ltd. vs M/s Oriental Overseas & Anr.
needful since it depends on the fate of disposal of leave to defend
application. Since leave to defend application has been allowed partly,
therefore,the defendant may file written statement and may also do
needful with regard to the counter claim, without prejudice to their rights
under the law.
5. List on 13.09.2012 for filing written statement, in terms of present
order, by the defendants and defendants may forward the counter claim to
the plaintiff (since they were contemplating to redraft the counter claim as
recorded in the proceedings dated 21.01.2012).
Announced in the open Court (INDER JEET SINGH)
th
on 10 Shravana, Saka 1934 Additional District Judge 03,
South District, Saket Courts,
New Delhi / 01.08.2012
CS No. 346/11 Page 10 of 10
M/s Reliable Travels & Cargo Pvt. Ltd. vs M/s Oriental Overseas & Anr.
CS No.
........
Appearance:
(INDER JEET SINGH) Addl. District Judge03, South District, Saket/............CS No. 346/11 Page 11 of 10