Delhi High Court
Classic Furniture Manufacturing ... vs Dhl Lemiur Logistics Pvt. Ltd. & ... on 6 August, 2010
Author: Shiv Narayan Dhingra
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Reserve: July 29, 2010
Date of Order : August 06, 2010
+ Crl.M.C.No. 2403/2010
% 06.08.2010
Classic Furniture Manufacturing Co.
Pvt. Ltd. ... Petitioner
Through: Mr. Sakal Bhushan, Advocate
Versus
DHL Lemuir Logistics Pvt. Ltd. & Ors. ... Respondents
JUSTICE SHIV NARAYAN DHINGRA
1. Whether reporters of local papers may be allowed to see the judgment?
2. To be referred to the reporter or not?
3. Whether judgment should be reported in Digest?
JUDGMENT
By present petition, the petitioner has assailed an order dated
16th April, 2010 passed by learned MM dismissing complaint of the petitioner
holding that the petitioner has failed to show the commission of offence.
2. Brief facts relevant for the purpose of deciding this petition are
that the petitioner filed a criminal complaint against the respondents alleging
commission of offence under Section 420/407/120-B IPC. The petitioner, a
manufacturer of wooden furniture had entered into a contract with Koti-Idea
OY, Finland based company for supply of furniture. Koti-Idea OY appointed
DHL Global Forwarding (Finland) as its Original Consolidator, Cargo and
Purchase Order Manager for India. The intimation about this was sent to the
petitioner and vide letter dated 22nd May, 2008 and the relevant portion of the
letter is as under:
"Effective (05/22/08) you are required to contact the
applicable DHL Global Forwarding office to book all cargo.
DHL Global Forwarding office will assist you to ensure
proper cargo bookings, cargo routing and cargo delivery.
You will also be required to submit all necessary and
required commercial documents (commercial invoices,
packing lists, etc.) for each shipment to the applicable DHL
Global Forwarding office.
All bookings must be made in writing. DHL Global
Forwarding office will assist you to ensure proper cargo
bookings, cargo routing and cargo delivery. All cargo must
be booked 14 days before the ETD (Estimated Time of
Departure).
Based upon cargo bookings, proper routing, confirmation of
cargo delivery and the receipt of complete commercial
documents, DHL Global Forwarding will issue a DHL Global
Forwarding/Danmar House Bill of Lading to you as a
negotiable document for payment to your company by
KOTI-IDEA OY. Once you have returned the B/L to DHL
Global Forwarding office, please ask them to issue a TELEX
RELEASE of the B/L."
3. The petitioner company in order to fulfill its contract with the
Koti-Idea for supply of furniture, booked furniture items at Integrated
Container Depot, Tughlakabad (ICD TKD) New Delhi worth US$ 2,03,064.45.
The contract between the petitioner and Koti-Idea OY was "FOB Mumbai", the
freight from New Delhi to Mumbai was to be paid by the complainant
company/petitioner and freight charges from Mumbai to Finland were to be
borne by Koti-Idea OY. The respondent who was having cargo ships was
also acting as a carrier of these items from Mumbai to Finland and carried
these goods from Mumbai to Finland. However, when the goods reached at
Finland, Koti Idea OY by that time had become insolvent (bankrupt) and was
not in a position to take the goods thus, the goods remained parked at Finland
Port and the respondent had to incur demurrage charges/parking charges as
well. The respondent had also to recover cargo shipment charges. The
petitioner asked respondent to return the goods sending a notice. The stand
taken by the respondent was that it had a lien over the goods for recovery of
its transportation charges and other charges for being parked at the port etc.
and it refused to transport the goods back to India from Finland and handover
the same to the petitioner unless the freight charges were paid by the
petitioner. Hence, the petitioner filed this criminal complaint.
4. The learned MM referred to Sections 50 & 52 of „Sale of Goods
Act 1930‟ and came to the conclusion if the buyer of goods becomes
insolvent, the unpaid seller who parted with the possession of the goods, has
a right of stopping them in transit and under Section 52, the unpaid seller may
after exercising his right of stoppage in transit, take actual possession of the
goods giving notice to the carrier. Under Section 52(2), when notice of
stoppage of transit is given to the carrier, the carrier is duty bound to re-
deliver the goods to the seller provided all expenses of re-delivery are borne
by the seller. Section 52 of Sale of Goods Act provides that the carrier has a
right to exercise its lien over the goods for recovery of freight charges and the
learned MM, therefore came to the conclusion that the refusal of the carrier to
return the goods, unless the freight charges were not paid, was as per law
and no offence was made out against the carrier/respondent.
5. It is argued by the Counsel for the petitioner that the carrier in
this case was not a simple carrier, it was an agent of Principal viz. Koti-Idea.
The goods were handed over to the agent of the Principal and the agent was
bound to return the goods once the Principal had become bankrupt.
6. The letter dated 22nd May, 2008 makes it clear that the
respondent was not an agent of the Principal simplicitor but respondent was
the cargo booking, cargo routing and cargo delivery agency appointed by the
Koti-Idea OY. It is not disputed that the respondent was mainly a cargo
company dealing in cargo booking and cargo delivery business. The letter
itself shows that the principal function of the respondent was cargo booking,
cargo routing and cargo delivery. The respondent therefore was acting as a
carrier and unless the freight charges/cargo charges and shipment charges of
the respondent were paid, the respondent in terms of Section 52(3) of Sale of
Goods Act, had a lien over the goods booked. The respondent was within its
rights to refuse to return the goods without receiving its cargo charges/
shipping charges.
7. I find no force in this petition. The petition is not maintainable
and is hereby dismissed.
August 06, 2010 SHIV NARAYAN DHINGRA, J.
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