Supreme Telecommunications Ltd. vs East West Movers Pvt. Ltd.
2006 Latest Caselaw 1776 Del

JUDGMENT

T.S. Thakur, J.

1. This Regular First Appeal calls in question the correctness of a judgment and decree passed by the Additional District Judge, Delhi in a suit for recovery of money whereby the Court below has held the plaintiff-respondent entitled to a sum of Rs. 11,86,636/- with interest pendente lite and till realization @ 15% per annum.

2. The plaintiff-respondent is a company engaged in the business of carriage of goods. According to the case set out by it in the plaint, the defendant-appellant herein, had entrusted to the plaintiff goods for carriage to different destinations on what is described as 'to be billed basis'. That work the plaintiff claims to have done to the satisfaction of the defendant. Bills for payment of the transportation charges were, accordingly, raised from time to time and reminders sent to the defendant for payment of the outstanding amounts. The plaintiffs claims to have received a sum of Rs. 2 lakh on 26th February, 2003 by means of a cheque towards part payment of the said liability leaving a balance of Rs. l0,78,760/- payable by the defendant. The plaintiff's further case is that according to the market custom and trade usage, the non-payment of the outstanding amount entitles it to claim interest @ 15% per annum. Calculated at the said rate, a sum of Rs. 1,07,876/- was claimed by the plaintiff over and above the principal amount due to it. A decree for a total amount of Rs. 11,86,636/- was in that back drop prayed for by the plaintiff against the defendant with costs and interest @ 15% from the date of filing of the suit till realization.

3. The written statement filed on behalf of the defendant denied the averments made in the plaint and alleged that it had no business dealings with the plaintiff through its Delhi office nor were any goods entrusted to the plaintiff on the basis alleged by it. The defendant also alleged that if and when it had availed of the services of the plaintiff in the past, it was duly and fully paid for the same and that there was nothing outstanding on that account. It was further alleged that the defendant had in the month of February 2003 advanced a sum of Rs. 2 lakhs to the plaintiff for the purpose of shifting its office from Vasant Kunj to a Safdarjung Enclave address. The defendant did not, however, undertake the work and failed to refund the amount received by it. The plaintiff was, therefore, entrusted with a consignment comprising four drums of six quard cable worth Rs. 6 lakhs for transportation from the godown of the Northern Railway to be delivered at the work site at Kherawala in Haryana. The plaintiff, it was alleged, had offered to transport the said consignment to enable the defendant to recover a part of the amount advanced to it by the plaintiff. The consignment was, accordingly, lifted for transportation to the work site aforesaid but instead of delivering the same, the plaintiff committed breach of trust and mis-appropriated the goods belonging to the Government. The defendant reserved its right to institute appropriate legal action against the plaintiff in that regard. The defendant denied that there was any stipulation regrading payment of interest on the outstanding amount between the parties.

4. On the above pleadings, the trial Court framed the following three issues:

1. Whether the plaintiff is a private limited company duly registered with the Registrar of Companies? OPP

2. Whether the plaint is signed and verified and filed by the competent person? OPP

3. Relief.

5. In support of its version, the plaintiff examined Shri Ajay Goel, the Managing Director of the Company. The defendant in rebuttal examined Shri Kaushik Sarkar, DW-1, Supervisor (site engineer) of the Company. By the judgment and decree impugned in this appeal, the Trial Court found issue No. 1 in favor of the plaintiff and held that the plaintiff was a private limited company duly registered with the Registrar of Companies. Similarly it found issue No. 2 also in favor of the plaintiff on the basis of the resolution of the Board of Directors of the Company, extracts whereof were marked as PW1/B.

6. While deciding issue No. 3, the trial court found the deposition of the plaintiff's witness to be credible. The documents relied upon by the plaintiff including the communications sent to the defendant in regard to the non-payment of the outstanding amounts were also held proved. The rebuttal evidence led by the defendant, was however, discarded by the trial court holding that the defendant had not produced the evidence that was in its possession giving rise to an adverse inference against it. The Court below, accordingly, accepted the claim made by the plaintiff in toto and held it entitled not only to the principal amount of Rs. 10,78,760/- but also interest @ 15% per annum for the pre-suit period amounting to Rs. 1,07,876/-. Interest pendente lite and future was also awarded at the same rate.

7. Learned counsel for the appellant company, did not question before us the correctness of the findings recorded by the trial Court in regard to issues Nos. 1 and 2. In regard to issue No. 3, however, he made a two-fold submission in support of the appeal. Firstly, it was contended that the evidence on record did not substantiate the claim made by the plaintiff. The finding recorded by the trial Court as regards the liability of the defendant was, according to the learned Counsel, against the weight of evidence on record. Secondly, it was contended that there was no written or oral contract between the parties nor any market usage or custom regarding payment of interest on the outstanding amount leave alone interest @ 15% per annum awarded by the Court below.

8. The plaintiff-respondent herein examined Shri Ajay Goel, its Managing Director in support of its claim. According to the affidavit filed by this witness which was treated as his examination-in-chief, the plaintiff company had transported goods to different destination in terms of goods receipts collectively marked Ex.PW1/C. The witness also proved the bills for payment of freight and other charges issued to the defendant from time-to-time in respect of these consignment collectively marked as Ex.PW1/D. The witness then proved the statement of ledger account maintained by the plaintiff company in the ordinary course of its business and marked Ex.PW1/E. He also proved the letters/reminders issued to the defendant from time to time demanding payment of the outstanding amount collectively marked EX.PW1/F.

9. In cross-examination, this witness stated that there was no written agreement between the parties. The goods receipts regarding consignments in question, however, contained the terms and conditions subject to which the carriage work had to be done. The witness also denied the suggestion that the bills raised by the plaintiff were forged, false and fabricated or that the defendant had not availed of the services of the plaintiff for carriage of goods. He denied the suggestion that Rs. 2 lakhs was paid as an advance for shifting the office of the defendant. He stated that the bank was charging interest @ 18% to 20% and that 15% interest claimed by the plaintiff was not exhorbitant. He further stated that Ex.PW1/D-1 was a copy of the consignment note No. 013522 dated 14th November, 2003 in which Clause No. 12 was added after the agreement between the parties was duly signed by them.

10. There is nothing in the cross-examination of the witness to discredit his sworn testimony which is supported by the documents produced by the plaintiff especially the ledger account maintained in the ordinary course of business and the goods receipts issued from time-to-time and marked Ex.PW1/C. There is also no reason for the Court to disbelieve the plaintiffs version that the goods covered by the said receipts were transported and delivered at the destination and bills in regard to transportation charges raised against the defendant.

11. The defendant's version that no goods were ever transported by the plaintiff and that all payments which had fallen due for any work done by the defendant had been made, does not find any support from the evidence led by it. We say so because in his cross-examination DW-1 Kaushik Sarkar, did not produce the original consignment notes, bills and letters which the plaintiff had by notice called upon him to produce. The witness further stated that he had not brought the accounts which the defendants maintained in regard to the dealings with the plaintiff, although such accounts were duly maintained and audited. Interestingly, the witness has stopped short of denying the statement of account produced by the plaintiff and marked Ex.PW1/F. The witness has stated:

I have not brought today in the Court the accounts which the defendant maintained with regard to the plaintiff. It is correct that the defendant maintains the account duly audited. I cannot say whether the statement of account as mentioned in Ex.PW1/E is correct or not. The Accountant of the defendant Company may be aware about the correctness of Ex.PW1/E. The said Accountant is still working with the defendant Company.

12. The witness claimed very litter knowledge about the case at hand. He admitted that the plaintiff had business dealings with the defendant through its Delhi office. He also admitted that the defendant had entrusted goods to the plaintiff from time to time and delivered the same at different places. He admitted the correctness of the goods receipts collectively marked Ex.PW/1C. The witness further stated as under:

I cannot admit or deny the suggestion without seeing my accounts that a sum of Rs. 10,78,760/- was due from the defendant to the plaintiff.

13. He also expressed his inability to offer any comment whether there was any agreement between the parties with regard to the rate of interest payable on the outstanding. He was unable to comment whether the plaintiff had withheld the delivery of consignment No. 013522 dated 14th November, 2003 due to non-payment of the outstanding dues and whether the defendam can take the delivery of the said consignment after payment of the dues of the plaintiff.

14. The statement of the defendant's witness does not leave any room for any doubt regarding the existence of the defendant's liability to pay the outstanding amount. The witness has in terms admitted all the relevant facts including the correctness of the goods receipts and the fact that the defendant had been utilizing their service of the plaintiff for transportation of goods. The fact that the defendant had maintained an account in regard to those dealings which has not been produced by the witness must, therefore, clearly give rise to an inference adverse to the defendant that if the accounts were produced, the same would have gone against the defendant.

15. We may in this regard refer to Gopal Krishnaji Ketkar v. Mohamed Haji Lalif and Ors. , where the Apex Court declared that if a party, in possession of evidence which could throw light on a controversy, withholds the same, the Court must draw an adverse inference against him even if the onus of proof did not lie on him. The Court observed:

Even if the burden of proof does not lie on a party the Court may draw an adverse inference if he withholds important documents in his possession which can throw light on the facts at issue. It is not, in our opinion, a sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the best evidence which is in their possession which could throw light upon the issues in controversy and to rely upon the abstract doctrine of onus of proof.

16. It is also useful to refer to the observations by the Privy Council in Murugesam Pillai v. Gnana Sambandha Pandara Sannadhi A.I.R. 1917 P.C. 6 in this regard. The Court observed:

A practice has grown up in Indian procedure of those in possession of important documents or information lying by, trusting to the abstract doctrine of the onus of proof, and failing, accordingly, to furnish to the Courts the best material for its decision. With regard to the third parties, this may be right enough they have no responsibility for the conduct of the suit; but with regard to the parties to the suit it is, in Their Lordships' opinion, an inversion of sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the written evidence in their possession which throw light upon the proposition.

17. To the same effect are the decisions of this Court in Messrs Bamidhar Ganga Pershad Agencv v. Chanan Lal and Anr. I.L.R. (1975)1 Delhi 445 and Hart Kumar v. Sat Narain Mehra .

18. In the totality of these circumstances, therefore, the Trial Court was, in our opinion, perfectly justified in holding that the defendant owed a sum of Rs. 10,78,760/- towards the unpaid transportation charges for the transportation of the goods covered by the goods receipts marked Ex.PW 1/C. The said finding is accordingly affirmed.

19. The only other aspect that remains to be examined is whether there was any agreement for the payment of interest or any trade usage to that effect. There is, however, no evidence to the effect that there was any agreement between the parties for payment of interest on the outstanding amount and, if so, the rate at which such interest was payable. There is also no evidence regarding the existence of any trade/market usage regarding payment of any such interest. The affidavit filed by Shri Ajay Gopel has also not referred to any such trade/market usage. Payment of interest can be justified only in case it is either statutory or contractual or is supported by any market usage. None of these three have been demonstrated in the present case. To that extent, the decree passed by the trial Court does not appear to us to be sustainable.

20. It was, argued on behalf of the defendant-appellant that the plaintiff-respondent had wrongfully withheld the consignment entrusted to it in terms of consignment note No. 013522 dated 14.11.2003. This, according to the defendant-appellant, tantamounts to misappropriation/breach of trust on the part of the plaintiff-respondent and calls for appropriate proceedings against him. It also disentitles the respondent to claim any interest on the value of the consignment withheld which according to the learned Counsel was more than Rs. 6 lakh. It was submitted that the plaintiff-respondent could be directed to deliver the consignment at its destination to avoid any civil or criminal consequences flowing from the detention of the goods.

21. On behalf of the plaintiff-respondent, it was, on the other hand, argued that the consignment in question was withheld in the light of a specific stipulation contained in the consignment note permitting the plaintiff to withhold the delivery of the consignment till such time the arrears of freight charges were paid. There was, therefore, nothing illegal about withholding goods under consignment note No. 013522 dated 14th November, 2003 marked Ex.PW-1/D-1.

22. The terms and conditions stipulated for carriage of the above consignment appear on the reverse of the consignment note. Clause 12 upon which the plaintiff-respondent places reliance for withholding of the goods reads as under:

It is agreed that EAST WEST MOVERS PVT. LTD., have special lien over the consignment and we can withhold the delivery of the consignments till the payment of our entire dues with regard to the previous consignments and present consignments Along with due interest.

23. According to the defendant-appellant, the above stipulation was a unilateral addition made by the plaintiff-respondent. Reliance in support of that submission is placed by the respondent upon the admission contained in PW-1 Ajay Goel's statement in which he has stated:

It is correct that Clause No. 12 was added after the agreement between the parties was duly signed by them.

24. The original document has not been placed on record. PW-1/D-1 is only a xerox copy of the consignment note. Reverse of the consignment note is no doubt initialed but the identity of the persons doing so cannot be deciphered from the initials. Superaded to that is the fact that according to the plaintiff-respondent, Clause 12 was added after the agreement had been executed. There is no separate agreement between the parties. If the witness refers to the consignment note as an agreement and the initials at the bottom of the terms and conditions appearing on the reverse of the said note, as tantamounting to execution thereof any addition made, after the said conditions were initialled, would be clearly unilateral and inconsequential. The detention of the consignment in such a situation cannot be justified by reference to any such unilateral addition. It is not the case of the plaintiff-respondent that independent of the stipulation contained in Clause 12 (supra), the carrier has any other lien over the goods entrusted to it. Such being the position, there is no room for withholding of the consignment to compel payment of the outstanding dues. The plaintiff-respondent would, therefore, do well to forthwith deliver the consignment to the consignor at the destination failing which it may find it difficult to avoid its liability both civil and criminal.

25. In the result, we allow this appeal but only in part and to the extent that the plaintiff respondent shall be entitled to recover a sum of Rs. 10,78,760/- only towards outstanding transportation charges from the defendant-appellant herein with proportionate costs. The plaintiff shall be further entitled to interest pendente lite and till realisation @ 9% per annum as against 15% awarded by the Trial Court. The decree passed by the Trial Court shall to the above extent stand modified.