- 1 - 32.sj.322.11 ss.2307.11 skt IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO. 322 OF 2011 IN SUMMARY SUIT NO. 2307 OF 2011 Aegis Logistics Limited ..Plaintiff -Versus- Traxpo Enterprises Private Limited ..Defendant .......... Mr. Mustafa Doctor i/b Dastur Dadhich & Kalambi for the Plaintiff. Mr.Vivek Kantawala a/w. Ms. Bhairavi Warvadekar i/b Vivek Kantawala for the Defendant. .......... CORAM : S.J. VAZIFDAR, J. DATE : 21ST DECEMBER 2011. P.C. 1 The suit is filed to recover the amounts due and payable by the defendant to the plaintiff in respect of storage charges. The plaintiff stored the defendant’s goods and raised invoices from time to time which stipulate interest at 18% per annum. The invoices were received by the defendant. The defendant raised no objection to the same. 2 The defendant having failed and neglected to make payment in respect of the invoices, the plaintiff addressed a notice demanding the same. There was no reply to the plaintiff’s notices demanding the - 2 - 32.sj.322.11 ss.2307.11 payment. That the plaintiff rendered the service of storing the defendant’s goods is therefore admitted. That the defendant is bound and liable to pay the amount raised in the invoices, absent anything else, is also admitted. 3 It is further contended by Mr.Kantawala that the parties are governed by the terms and conditions contained in an agreement dated 5th June 2007, which is annexed at Exhibit ‘A’ to the affidavit-in-rejoinder. This agreement also pertained to similar services. Clause 2 thereof however, expressly stated that the agreement was to remain in force for a period of one year commencing from 1st June 2007 or usage of 50,000 KL which ever was earlier. The agreement therefore admittedly came to an end by efflux of time latest by 31st May 2008. Thereafter, the parties were governed by the terms and conditions contained in the invoices pursuant to which the plaintiff rendered the storage services. 4 It was next contended that under clause 5(s) of the said agreement dated 5th June 2007, the goods stored would be the defendants’ property but that the plaintiff would have a lien on the same to the extent of its unpaid dues. Reliance is placed upon an account settled between the parties for the period 1st April 2009 to 13th October 2011. In fact, the amount was settled to up the period 17th March 2010 which is the last entry therein. The amount of Rs.11,31,221/- stated to be payable by the - 3 - 32.sj.322.11 ss.2307.11 defendant, was in fact, paid by a cheque dated 22nd April 2010 which was forwarded to the plaintiff on 15th May 2011. The contention is that despite the defendant having made payment, the plaintiff failed and neglected to deliver the goods stored to the defendant. 5 This contention is a mere afterthought. There is not a single letter or any other writing on record whereby the defendant demanded the goods and the plaintiff refused to deliver the same. In fact, the evidence on record belies this contention. For instance, by a letter dated 8th December 2010, the plaintiff expressly called upon the defendant to take delivery of the goods and stated that if the defendant failed to do so, further storage charges would be levied. 6 The reference to the credit notes was not pressed. It was admitted that the credit notes had been accounted for/ reflected in the said account which was stated between the parties. The said account, in any event, does not refer to the suit invoices which are in respect of the charges levied for a period subsequent to the said accounts. 7 Lastly, it was contended that the plaintiff ought to refer the disputes to the arbitration in view of the arbitration clause contained in the said agreement, dated 5th June 2007. - 4 - 32.sj.322.11 ss.2307.11 8 This is also not a defence to the claim. In the affidavit-in-reply, although the defendant has stated that the agreement contains an arbitration clause and that the plaintiff ought to have invoked the same instead of the filing this suit, the defendant has taken no steps whatsoever under the Arbitration and Conciliation Act, 1996. The defendant has not even filed its appearance under protest. Even in the affidavit-in-reply, it is not stated that it appears under protest. In any event, the said agreement dated 5th June 2007 having come to an end by efflux of time and in view of the fact that the suit invoices were raised subsequently, the claim in the suit is not covered by the arbitration clause contained in the said agreement. 9 There is therefore no defence to the claim in the suit. 10 The suit is therefore decreed as prayed. However, interest shall be at 12% per annum from the date of the filing of the suit. Costs to be quantified as per Rules. Refund of court fees, if any, as per Rules. -