IN THE COURT OF SH. SAURABH KULSHRESHTHA: CCJ:ARC(EAST):KARKARDOOMA COURTS: DELHI Civil Suit no: 245/07 ID No:02402CO030942005 M/s. [ENTITY] A division of M/s. Continental Carriers Pvt. Ltd. RZ-293, A Block, Mahipal Pur, N.H. 28, New Delhi - 110 037 Through its C.M.D./Principal Officer Sh. [ENTITY]. Plaintiff Versus 1. M/s. [ENTITY] SDF B-15, NEPZ, Noida 2. [ENTITY], Director M/s. [ENTITY] SDF B-15, NEPZ, Noida Defendants Suit for recovery of Rs.77,220/- with interest. Date of institution of the Suit : 06.08.1999 Date on which judgment was reserved : 21.04.2011 Date of decision : 30.04.2011 Decision : Suit Decreed JUDGMENT:
1. This is a suit for recovery of an amount of Rs.77,220/-. The plaintiff is a company engaged in international freight forwarding and is an approved IATA Air Cargo Agent. The defendant no.1 is a limited company engaged in the business of import and export. The CS no: 245/07 Page No: 1/17 defendant no.2 was one of the Directors of the defendant no. 1 company, however the name of the defendant no. 2 was deleted from the array of parties vide order dated 19.05.2005.
2. The version of the plaintiff is that in the first week of March, 1998, the defendants faxed Air Frieght instructions to the plaintiff for air lifting their consignment of Fax machines to USA. The said instructions contains various terms and conditions for handling the shipment including the undertaking to pay all the the freight charges and other incidental charges due to the plaintiff.
3. It is further the case of the plaintiff that the plaintiff as per the instructions of the defendant got the shipment, airlifted under Airway bill no.020-2511-7256 dated 20th March, 1998 and paid the freight amount of Rs.63,327/- to the concerned Airlines on behalf of the defendant besides other expenses. Apart from this an amount of Rs. 1286.25 was due to the plaintiff against invoice no.62448 dated 06.06.1998 on account of shipment sent to Korea under House Airway Bill no. 77490 dated 06.06.1998.
[CASE NUMBER]
4. It is further the case of the plaintiff that towards discharge of this contractual liability the defendant issued a cheque bearing no. 197973 dated 05.07.1998 drawn on Canara Bank, Noida for an amount of Rs.60,472/-. However the said cheque was dishonored on presentation. The grievance of the plaintiff is that the defendant has not made the payment of the outstanding amount of Rs. 64,613.25/-. The plaintiff has further contended that the defendant is also liable to pay interest @ 21% p.a. Plaintiff has claimed a total amount of Rs. 77,220/- including pre suit interest along with pendente lite and future interest.
5. The suit was filed initially under [SECTION] [ACT]. The defendant no.1 moved an application for grant of leave to defend. However, vide order dated 12.08.2005 the suit was treated as an ordinary suit for recovery. The defendant no.1 thereafter filed its written statement. The name of the defendant no. 2 was deleted from the array of parties vide order dated 19.05.2005.
6. The defendant no.1 pleaded that the details of accounts and bills as alleged in the plaint are incorrect and the amount was duly settled and paid to the plaintiff in cash at the time of the deal between CS no: 245/07 Page No: 3/17 the parties and now the plaintiff has filed the present suit on the basis of alleged documents and cheques which were never issued by defendant no.1 or on its behalf against the alleged transaction. It was further pleaded that the cheque in question might have been issued by some other person in his individual capacity for his some personal transaction and dealing and not on behalf of the defendant no.1 and the defendant no.1 has no concern with the alleged cheque. It was further pleaded that the cheque amount is different from the bill amount. The defendant no.1 further pleaded that the suit of the plaintiff is time barred. The defendant no. 1 prayed for dismissal of the suit.
7. Plaintiffs filed replication and denied the averments of the written statement of the defendant no. 1 and simultaneously reiterated and reaffirmed the contents of the plaint.
8. Vide order dated 13.09.2005 following issues were framed in this case:
1. Whether the plaintiff is entitled for the relief of suit amount as prayed for? OPP
2. Whether the defendant had made the payment to the amount as mentioned in para no.7 to the WS of reply on merit? OPD
3. Relief CS no: 245/07 Page No: 4/17
9. The plaintiff examined Sh. [ENTITY], Legal Officer of the plaintiff company as PW-1. PW-1 deposed on the lines of the plaint. A certified copy of the resolution dated 15.12.2009 in favour of PW1 is exhibited as Ex. PW1/1. A copy of the certificate of incorporation of the plaintiff company is Ex. PW 1/2. The plaint was signed and verified by Sh. [ENTITY], Managing Director of the plaintiff company and the resolution in this respect is Ex. PW1/3. Instructions received by way of fax from the defendant for air lifting the consignment is Ex. PW1/4. The carbon copy Airway Bill dated 20.03.1998 is Ex. PW1/5. Original office copy of bill/invoice dated 20.03.1998 is Ex. PW1/6. The instruction form sent by the defendant in connection with House Airway Bill dated 06.06.1998 on account of shipment sent to Korea is Ex. PW1/7. The carbon copy of the Airway Bill dated 06.06.1998 is Ex. PW1/8 and the invoice is Ex. PW1/9. The Cheque dated 05.07.1998 issued by M/s Indo Widecom International Limited which is stated to be a sister concern of the defendant is Ex. PW1/10. The debit advice of the banker of the plaintiff in connection with the dishonour of the cheque is marked as mark-A. Copy of Legal notice dated 11.07.1998 is Ex. PW1/11 and copy of the notice dated 13.07.1998 is Ex. PW1/12. The statement of account maintained by the plaintiff is Ex. PW1/13. No CS no: 245/07 Page No: 5/17 evidence was led by the defendants.
10. I have heard the Ld. Counsel for the parties and have given due consideration to the rival contentions and carefully perused the record. My issue-wise findings are as follows:
Issued No. 2 :
11. The onus to prove this issue is upon the defendant no.1. The question to be answered is as to whether the defendant has made the payment of the amount specified in para no. 7 of the reply on merits of the written statement.
12. Plaintiff has filed the present suit for recovery in respect of one consignment, airlifted by the plaintiff on the instructions of the defendant under Airway bill dated 20.03.1998. The plaintiff paid an amount 63,327/- to the concerned Airlines in this respect. Instructions received by way of fax from the defendant for air lifting the consignment is Ex. PW1/4. The carbon copy Airway Bill dated 20.03.1998 is Ex. PW1/5. Original office copy of bill/invoice dated 20.03.1998 is Ex. PW1/6. Apart from this the defendant was also liable to pay an amount of Rs. 1286.25 to the plaintiff on account of the shipment of the CS no: 245/07 Page No: 6/17 defendant sent to Korea. The instruction form sent by the defendant in connection with House Airway Bill dated 06.06.1998 on account of shipment sent to Korea is Ex. PW1/7. The carbon copy of the Airway Bill dated 06.06.1998 is Ex. PW1/8 and the invoice is Ex. PW1/9. PW 1 has categorically deposed in this respect.
13. The plaintiff has therefore contended that the defendant is liable to pay a total sum of Rs. 64, 613.25/- to the plaintiff. The defendant filed Written statement. In the written statement it has been stated in para " 3" of the preliminary objections as well as in the para " 5" and para " 7" of the reply on merits that the amount was duly settled and paid to the plaintiff in cash at the time of the deal between the parties and the transaction was not on credit basis.
14. On this basis the present issue was framed and the onus to prove the same was upon the defendant.
15. The defendant however, did not adduce any evidence. PW-1 was cross examined by the counsel for the defendant. However, during the course of evidence PW-1 was cross examined by the counsel CS no: 245/07 Page No: 7/17 for the defendant. The counsel for the defendant embarked upon an enquiry in respect of the documents filed by the plaintiff. PW-1 stated in his cross-examination that no signature of the defendant is required on the documents filed by the plaintiff. He denied the suggestion that the plaintiff company has generated or prepared the documents PW1/4, Ex.PW1/6 and Ex. PW1/7 in its own office and it was never sent by the defendant company. He denied the suggestion that there was no transaction between the plaintiff and the defendant company. He stated that Ex. PW1/10 i.e. the cheque was issued by Indo Widecom International Ltd.
16. It appears that the counsel for the defendant forgot that the defendant had never disputed the underlying transactions in the written statement. It was never the defence of the defendant that there was no transaction between the parties. The defence taken in the written statement was that all the amount has been paid and it was because of this reason that the present issue was framed. Despite this fact the defendant kept on giving suggestions to PW 1 in cross examination that no transaction took place between the parties and that the documents are manipulated.
[CASE NUMBER]
17. Further more the counsel for the Defendant did not give any suggestion to PW-1 that the said amount was paid by the defendant to the plaintiff. Counsel for the defendant could not elicit anything in the cross examination of PW 1 to establish that the said amount had been paid by the defendant to the plaintiff.
18. The averments in the written statement that the bill amount had been paid in cash to the defendant are merely bald averments unsupported by any evidence whatsoever. Even, otherwise no date of payment has been has been specified. It has not been specified as to who had paid the amount on behalf of the defendant and to whom the payment was made on behalf of the plaintiff. There is no averment in this respect. It has not been specified as to how and from what funds the payment was made. No statement of account or any receipt of payment has been filed.
19. Further Law is no more res integra that if there is variance between pleadings and evidence, the evidence beyond the pleadings should not be taken into consideration and should be ignored. Reference [CASE NUMBER] may be made to the judgment of the Hon' ble High Court of Delhi titled as [PRECEDENT] wherein it was held that no amount of evidence can be looked into a plea not taken in the written statement.
20. Moreover the defendant has consciously chosen not to lead evidence. Thus there is not even an iota of evidence on record to show that the defendant had made the payment to the plaintiff as averred by the defendant.
21. Hence, I hold that the defendant has failed to prove that the said amount was paid to the plaintiff. The onus to prove this issue was upon the defendant which it has failed to discharge.
This issue is therefore, decided in favour of the plaintiff and against the defendant.
Issue no. 1:
22. The question to be answered is as to whether the plaitniff is entitled for recovery of the suit amount.
[CASE NUMBER]
23. Plaintiff has filed the present suit for recovery in respect of one consignment, airlifted by the plaintiff on the instructions of the defendant under Airway bill dated 20.03.1998. The plaintiff paid an amount 63,327/- to the concerned Airlines in this respect. Instructions received by way of fax from the defendant for air lifting the consignment is Ex. PW1/4. The carbon copy Airway Bill dated 20.03.1998 is Ex. PW1/5. Original office copy of bill/invoice dated 20.03.1998 is Ex. PW1/6. Apart from this the defendant was also liable to pay an amount of Rs. 1286.25 to the plaintiff on account of the shipment of the defendant sent to Korea. The instruction form sent by the defendant in connection with House Airway Bill dated 06.06.1998 on account of shipment sent to Korea is Ex. PW1/7. The carbon copy of the Airway Bill dated 06.06.1998 is Ex. PW1/8 and the invoice is Ex. PW1/9. PW 1 has categorically deposed in this respect.
24. The plaintiff has contended that one cheque Ex. PW1/10 for an amount of Rs. 60,472/- was also issued towards discharge of this liability on behalf of the defendant. However no liability can be fastened on the defendant no.1 on account of the cheque Ex. PW1/10. The version of the plaintiff is that the said cheque was issued by the M/s Indo CS no: 245/07 Page No: 11/17 Widecom International Ltd on behalf of the defendant no.1 towards discharge of the liability incurred by the defendant no. 1. It was further contended that Indo Widecom International Ltd is a sister concern of the defendant company however, no documentary evidence was adduced by the plaintiff to show that the Indo Widecom International Ltd is the sister concern of the defendant company. There is no document to show that the said cheque in question was handed over to the plaintiff towards discharge of liability of the defendant. Even, otherwise the said cheque has been issued by the M/s Indo Widecom International Ltd and only M/s Indo Widecom International Ltd can be held to be liable on account of the said cheque. The said cheque therefore, does not fasten any liability on the defendant no.1.
25. However, the documents Ex. PW1/4 to Ex. PW1/9 clearly show that the defendant was liable to pay an amount of Rs. 64,613.25/- to the plaintiff on account of the transactions between the plaintiff and the defendant company. I do not find anything in the cross-examination of PW1 which shows that the said documents are false or fabricated. In fact, the defence which was taken by the defendant in the written statement was not that there was no transaction between the parties and CS no: 245/07 Page No: 12/17 not that the documents are forged and fabricated but the defence of the defendant was that the amount was duly settled and paid to the plaintiff in cash at the time of the deal between the parties and no amount remains to be paid.
26. The defendant could not prove his defence that this amount was paid in cash. Issue no. 2 has also been decided in favour of the plaintiff and against the defendant. The result is that the defendant has not made the payment of the amount due against the aforesaid two transactions. No evidence has been lead by the defendant.
27. Further it is well settled that the standard of proof in civil cases and criminal cases is different. In civil proceedings, a mere pre- ponderance of probability is sufficient, and the defendant is not neces- sarily entitled to the benefit of every reasonable doubt. The plaintiff in a civil suit has to merely establish his case on the touchstone of preponder- ance of probabilities. As per [SECTION] of the [ACT], a fact is said to be proved when the Court either believes it to exist or considers its ex- istence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. The belief CS no: 245/07 Page No: 13/17 regarding the existence of a fact may thus be founded on a balance of probabilities. The court has to weigh the conflicting probabilities and de- cide whether the preponderance is in favour of the fact asserted by the plaintiff. Thus if the evidence of the plaintiff outweighs that of the de- fendant and persuades the court to believe the same to be more probable and true than that of the defendant then it can be held that the plaintiff has proved his case by preponderance of probability. Reference may be made to the judgments titled as [PRECEDENT], re- ported as [PRECEDENT] and [PRECEDENT].
28. The Hon'ble Supreme Court in the judgment titled as "[PRECEDENT] held:
" However, as held in [PRECEDENT], there is an essential distinction between burden of proof and onus of proof : burden of proof lies upon a person who has to prove the fact and which never shifts. Onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence. In [CASE NUMBER] our opinion, in a suit for possession based on title once the plaintiff has been able to create a high degree of probability so as to shift the onus on the defendant it is for the defendant to discharge his onus and in the ab- sence thereof the burden of proof lying on the plaintiff shall be held to have been discharged so as to amount to proof of the plaintiff's title. .Being a civil case, the plaintiff cannot be expected to prove his title beyond any reasonable doubt; a high degree of probability lending assurance of the availability of title with him would be enough to shift the onus on the defendant and if the defendant does not succeed in shifting back the onus the plaintiff's burden of proof can safely be deemed to have been discharged "
29. I therefore, hold that the the plaintiff has proved his case by preponderance of probabilities that the defendant is liable to pay the amount of Rs. 64,613.25/- to the plaintiff on account of the aforesaid transactions.
30. The question which now remains to be answered is in respect of payment of interest. The invoice Ex. PW1/6 and Ex. PW1/9 shows that interest is to be charged @ 21% per annum. The defendant CS no: 245/07 Page No: 15/17 has admitted the transaction between the parties and has stated that he had made the payment to the plaintiff. Obviously he could not have made any payment without the issuance of invoice. The invoices issued by the plaintiff are on record and are Ex. PW 1/6 and Ex. PW 1/9. It is to be deemed that the defendant was well aware of the terms and conditions of the invoices. The invoices show that interest is payable @ 21% per annum. Plaintiff is therefore, entitled to pre suit interest @ 21% per annum on the principal amount from the date of invoices till the date of filing of the suit. The interest if calculated on the respective amounts of the invoices from the date of invoices comes out to be much more however the plaintiff has claimed an amount of Rs. 77,220/- only including the principal as well as interest. Thus the plaintiff is entitled to an amount of Rs. 77,220/- which includes principal as well as pre suit interest.
31. Further the transactions are for the period from March 1998 to June 1998. The suit has been filed on 03.08.1999. This is a suit for recover and the limitation period is three years. Accordingly, the suit is within the limitation.
[CASE NUMBER] RELIEF:
32. The plaintiff is therefore, entitled for a decree for an amount of Rs. 77,220/- which shall form the principal/ decretal sum adjudged. The ends of justice would be met in case the plaintiff is awarded pendent lite and future interest @12% per annum on the principal/ decretal sum adjudged.
33. The suit of the plaintiff is therefore decreed in favour of the plaintiff and against the defendant no. 1 company for an amount of Rs. 77,220/- along with pendent lite and future interest @ 12% per annum from the date of institution of the suit till the date of realization. Costs of the suit are also awarded in favour of the plaintiff and against the defendant no. 1 company.
34. Decree sheet be prepared accordingly. Thereafter, file be consigned to record room.
Announced in the open (SAURABH KULSHRESHTHA) Court on 30.04.2011 CCJ/ARC(East) (Judgment contains 17 pages.) KARKARDOOMA COURTS, DELHI CS no: 245/07 Page No: 17/17