M/S Nicto Roadways Ltd. vs M/S Priya Intercontinental & Ors.
2011 Latest Caselaw 4350 Del

*           HIGH COURT OF DELHI : NEW DELHI

+                        CS(OS) No.908/2002

%                                    Judgment decided on: 06.09.2011

M/S NICTO ROADWAYS LTD.                     ......Plaintiff
               Through: Mr K.R. Gupta, Adv. with Mr Nitin
                        Gupta, Adv.

                         Versus

M/S PRIYA INTERCONTINENTAL & ORS.                         .....Defendants
                Through: Nemo.

Coram:
HON'BLE MR. JUSTICE MANMOHAN SINGH

1. Whether the Reporters of local papers may
   be allowed to see the judgment?

2. To be referred to Reporter or not?                     Yes

3. Whether the judgment should be reported                Yes
   in the Digest?


MANMOHAN SINGH, J.

1. The present suit has been filed by the plaintiff for recovery

of Rs.40,04,966/- against the defendants along with pendente lite and

future interest until realization.

2. It is stated by the plaintiff company that it is a public road

transport common carrier that also owns the unit known as Nitco Air

Express which works as cargo booking agents with various Airlines

for transshipment of consignments to Indian as well as foreign

destinations.

3. Defendant No.1 is a partnership firm and defendant Nos. 2

to 5 are its partners. It is stated by the plaintiff that the defendants have

been availing the services the plaintiff's said unit at Delhi. Further, it is

said that between 22.05.1999 and 17.08.2000 the defendants availed

the services of the plaintiff's said unit on credit vide 18 bills for

Rs.27,93,162/- (the details of the bills is given in para 2 of the plaint)

and after various requests from the plaintiff to the defendants to clear

the said amount the defendants issued 15 cheques of the Central Bank

of India. However, when the plaintiff presented these cheques for

payment at the bank, they were dishonoured. The details of which is

given in para 3 of the plaint.

4. The plaintiff issued notice to the defendants asking them to

make the payment in lieu of the cheques, but, since the defendants

failed to make payment, the plaintiff instituted proceedings under

Section 138 of the Negotiable Instruments Act 1881, in the competent

criminal court at Jammu.

5. It is averred in the plaint that apart from the principle

amount, the defendants are also liable to pay interest on the

outstanding amount of bills from the respective dates @ 18% per

annum and as customs of trade and principles of justice and equity, a

sum of Rs.12,11,804/- is due from the defendants on account of the

said interest upto the date if institution of the present suit. Thus, as per

the plaintiff, the defendants are liable to a total amount of Rs.

40,04,966/-, i.e., Rs.27,93,162/- being the principle amount and

Rs.12,11,804/- being the interest and further the pendent lite and future

interest until the realization of the of the outstanding amount.

6. The case in hand is being contested only by defendant

No.2. By order dated 15.02.2006 defendants 3 to 5 were proceeded

ex-parte. It is stated in the said order that the defendant No.3 has gone

bankrupt and defendant Nos. 4 & 5 though served through publication,

failed to appear before the court hence, they were proceeded ex-parte.

Defendant No.1 being the partnership firm is deemed to be served in

view of the summons issued to its partners.

7. In the written statement filed on behalf of defendant No.2 it

is stated that the defendant No.1 was an unregistered partnership firm

and defendant No.2 was a sleeping partner in the said firm upto

31.03.1996 and has never entered into any contracts or represented

himself as a partner of the said firm either to the plaintiff or to any

other party. Further, it is stated that the defendant No.3 who was the

managing partner of the defendant No.1 firm had duly confirmed the

resignation of defendant No.2 by his letter dated 30.07.1997and the

Banker of the defendant No.1 firm i.e. Punjab & Sind National Bank

also issued a certificate dated 22.07.1997 confirming the resignation of

defendant No.2 and discharging her from any liability.

8. It is also stated by the defendant No.2 that it is clear from

the bare perusal of the plaint that all the transaction between the

plaintiff and defendant No.1 firm took place the year 1999 and 2000

and the defendant No.2 had already resigned from the defendant No.1

firm in the year 1996.

9. After the pleading were complete the following issues were

framed:

"1. Whether the plaint has been signed and verified by a duly authorized person, and whether the suit has been instituted by a duly authorized person? OPP

2. Whether the suit is barred by Order II Rule 2 CPC? OPD-2

3. Whether defendant no.2 ceased to be a partner of the defendant No.1 with effect from 31.03.96 as pleaded by defendant no.2? OPP

4. Whether plaintiff rendered services as Cargo Booking Agent for defendant no.1, if yes, on what terms? OPP

5. Whether the plaintiff is entitled to the sum claimed in the suit? OPP

6. Whether the plaintiff is entitled to any interest? If yes, for what period and what rate.

Relief."

10. Thereafter, plaintiff filed the affidavit of PW-1 Mr. Vinay

Kochar by way of examination-in-chief 02.07.2008. But, before the

cross-examination of PW-1 Vinay Kochar could be fully concluded,

the plaintiff and the defendant No.2 arrived at a settlement on

15.02.2010 whereby defendant No.2 gave a pay order of Rs.100,000/-

to the plaintiff who in turn agreed to delete the defendant No.2 from

the array of parties. The plaintiff filed the amended memo of parties

on 14.03.2011 wherein the defendant No.2 is shown as deleted.

11. No other defendant contested the suit, thus, the evidence

adduced by the plaintiff by way of affidavit of PW-1 Mr. Vinay

Kochar filed on behalf of the plaintiff has been considered as the ex-

parte evidence against the defendants 1 and 3 to 5 who were

proceeded ex-parte.

12. As regards issue No.1, the submission of the plaintiff is

that in his statement PW-1 Mr. Vinay Kochar has stated that the

plaintiff company has executed a power of attorney in his favour. He

produced the original before the court and submitted a copy of the

same which is marked as Ex. P-1 and is duly attested by a notary

public. The said power of attorney clearly shows that PW-1 Mr. Vinay

Kochar has been authorized by the plaintiff company to institute, sign

and verify the plaint. Thus, this issue has been proved accordingly

and is decided in favour of the plaintiff.

13. As regards issues Nos. 2 and 3, it is stated by the plaintiff

that onus of proving these issues was upon the defendant No.2, but

now the defendant No.2 is no more a party to this suit, these issues

have become infructuous.

14. As regards issue Nos. 4 and 5, it is stated that defendant

No.1 had been availing the services of the plaintiff's Nitco Air Express

unit and during the years 1999 and 2000 it availed those services on

credit vide 18 bills which are proved as Exhibit Nos. P-2, P-6, P-7, P-

10, P-13, P-16, P-20, P-23, P-24, P-26, P-30, P-31, P-35, P-39, P-43,

P-47, P-48, and P-51. Further, he has proved the certified copies of the

15 dishonoured cheques that have been obtained from the criminal

court at Jammu and exhibited as Ex. P-57 (colly) in respect of the

cheques mentioned in serial No.1 and 2 and the remaining cheques as

Ex. P-63, P-64, P-73, P-76, P-82, P-87, P-92, P-97, P-98, P-91, P-106,

P-116, and P-75, respectively. The certified copies of the return

memos of the bank intimating dishonour of cheques, legal notices,

postal registration receipts, A.D. cards, courier receipts, complaints

filed in the criminal court have also been exhibited. Further, copies of

the relative airway bills and the house airway bills and the letters of the

plaintiff addressed to the defendant No.1 under the cover of which the

original bills, airway bills and house airway bills were sent to facilitate

the delivery of consignments ant the respective destinations has also

been proved and bear their respective exhibit numbers.

15. Mr. Vinay Kochar has also proved the copy of the

plaintiff's letter dated 06.02.2001 addressed to defendant No.1 marked

as Ex. P-54 wherein demand for payment was made. Further, the

notice sent to defendant No.1, under the Evidence Act, 1872 to

produce the original documents, through registered post under

certificate of posting is exhibited as Ex. P-125, the postal receipt as

Ex. P-126 and the certificate of posting as Ex. P-127. It is stated on

behalf of the plaintiff that the testimony of said witness is trustworthy

and cannot be discredited. In view of above, it is clear that the

plaintiff has discharged its burden on issues 4 and 5. Thus, the same

are decided in favour of the plaintiff and against the defendants.

16. Regarding issue No.6 it is stated by the plaintiff that the

plaintiff has claimed interest @ 18% per annum on the outstanding

amount of Rs.27,93,162/- from the respective dates of the bills and

have quantified the interest amount upto the date of filing of this suit in

a sum of Rs.12,11,804/-. It is also stated that there is a condition

printed at the bottom of each bill that "interest @ 24% per annum is

chargeable on bill not paid on presentation." And under section 80 of

the Negotiable Instruments Act, 1881, interest on the amount of

dishonoured cheque is chargeable @ 18% per annum and Mr. Vinay

Kochar has also stated that interest @ 18% per annum is payable

according to usage and customs of the trade. Thus, I am of the view

that the plaintiff is entitled for the interest as claimed. Even otherwise,

the plaintiff's evidence on this issue has gone unchallenged. The issue

No.6 also decided in favour of the plaintiff and against the defendant.

17. As far as issue No.7 is concerned, it is stated by the

plaintiff that it has proved its case and that it is entitled for a money

decree for a sum of Rs.39,04,966/-(Rs.40,04,966/- less 1,00,000/-

received from the defendant No.2) on account of principal

(Rs.27,93,162/-) and interest (Rs.12,11,804/-) upto the date of filing of

the suit. Further it is stated that the plaintiff is also entitled to interest

pendente lite and future on the principle amount of Rs.27,03,162/- until

realization at such rate that this court considers appropriate.

18. In the result, the plaintiff is entitled to decree in its favour.

The defendants shall pay to the plaintiff the principal amount of

Rs.39,04,966/- along with pendent lite and future interest @ 9% p.a.

on the principal amount of Rs.27,03,162/- from the date of institution

of suit till realization of the decretal amount. The plaintiff is also

entitled for cost. Decree sheet be drawn accordingly.

MANMOHAN SINGH, J.

SEPTEMBER 06, 2011