M/S Vardhman Custom Clearing & ... vs M/S Majgenta Fashions & Ors.
2012 Latest Caselaw 6371 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

+                     CS(OS) 2361/2010

                                    Date of Decision: 31st October, 2012


IN THE MATTER OF:
M/S VARDHMAN CUSTOM CLEARING & FORWARDING AGENTS
                                                 ..... Plaintiffs
                  Through: Mr. Amulya Dhingra, Advocate

                  versus

M/S MAJGENTA FASHIONS & ORS.                              ..... Defendants
                   Through: None

CORAM
HON'BLE MS.JUSTICE HIMA KOHLI


HIMA KOHLI, J. (Oral)

1. The present summary suit has been instituted by the

plaintiff against the defendants for recovery of a sum of `25,95,207/-,

alongwith pendentelite interest claimed @ 18% per annum.

2. Learned counsel for the plaintiff submits that the plaintiff is

a proprietorship firm and a duly approved forwarding and clearing

agent. The plaintiff is also working as an international freight

forwarder and consolidator and a copy of the license issued by the

office of Collector of Customs in favour of the plaintiff has been filed

along with the list of documents.

3. The defendant No.1 is described as an export firm that is

engaged in the business of exporting readymade garments and leather

garments. Defendant No.2 is stated to be the marketing agent and the

defendant No.3 is described as the partner of the defendant No.1. It is

averred in the plaint that the defendants No.2 and 3 had approached

the plaintiff for availing its services for shipping their readymade

garments abroad and they had appointed the plaintiff as their custom

clearing and forwarding agent in accordance with the terms and

conditions laid down in the airway bills as also on the invoices that

were subsequently raised by the plaintiff, upon rendering such services

to the defendants.

4. Counsel for the plaintiff states that the procedure adopted

by the parties for conducting their business was that the plaintiff used

to raise invoices for its service charges, which were served upon the

defendants alongwith other relevant documents. The said invoices

were debited and all the payments received were credited in a

separate running account maintained by the plaintiff in its ledger in the

name of the defendant No.1. The relevant extract of the ledger of the

plaintiff in respect of the defendant No.1's account is enclosed with the

list of documents at pages 164 to 172. As per the last page of the

ledger account, as on 14.06.2010, the defendant No.1 had owed a

sum of `24,14,146.33 paise to the plaintiff. Apart from the ledger

account, the plaintiff has also filed copies of seventy nine invoices that

were raised by it on the defendant No.1 for the period w.e.f.

13.01.2010 to 05.06.2010, totalling to a sum of `79,54,146.33 paise.

It is submitted that after adjusting an amount of `55,40,000/- paid by

the defendant No.1 to the plaintiff for the period between 10.02.2010

and 05.06.2010, as detailed in para 11 of the plaint, the defendant

No.1/firm was liable to pay a balance sum of `24,14,146/- to the

plaintiff.

5. Despite the aforesaid outstanding amount, which was

conveyed by the plaintiff to the defendant No.1, followed by repeated

reminders and personal visits made to the office of the defendant

No.1, the defendants did not clear the arrears. It is submitted that as

per the understanding arrived at between the parties, the plaintiff was

required to pay all direct, indirect and other incidental expenses on

behalf of the defendants for the shipments made abroad and

therefore, it is claimed that the outstanding amount had mounted, and

instead of making the payment, the defendants continued to dilly

dally. Finally, the plaintiff was compelled to issue a legal notice dated

04.08.2010(enclosed at pages 183-187 of the list of documents),

followed by a reminder dated 09.09.2010 issued to the defendants.

The defendants had replied to the aforesaid legal notice dated

04.08.2010, by asking the plaintiff to supply the shipment documents

and stating inter alia that the payment would be made by them to the

plaintiff within 30 to 45 days from the date of receipt of bills and the

shipment documents and not before that.

6. Learned counsel for the plaintiff states that the aforesaid

reply submitted by the defendants to the legal notice sent by the

plaintiff is misconceived for the reason that there was no such

understanding arrived at between the parties, and in any case, the

defendants are well aware of the fact that the shipment documents are

routinely forwarded to the consignee of the shipment and therefore,

the said documents are not in the possession of the plaintiff. It is

additionally stated that the invoices that were raised by the plaintiff on

the defendants had clearly stipulated that the same were required to

be paid on presentation, failing which they would attract interest @

18% per annum.

7. It is further explained by the counsel for the plaintiff that

the present suit has been instituted by the plaintiff on the basis of the

invoices that were raised on the defendants which amounts to a

"written contract", as contemplated under Rule 2(d) of Order XXXVII

CPC and therefore, the same is maintainable as a summary suit. In

support of the aforesaid submission, learned counsel for the plaintiff

relies on the decisions in the cases of Messrs. Punjab Pen House vs.

Samrat Bycycle Ltd. reported as AIR 1992 Delhi 1, Beacon

Electronics vs. Sylvania and Laxman Ltd. reported as 1998(3) Apex

Decisions (Delhi) 141 and KLG Systel Ltd. vs. Fujitsu ICIM Ltd.

reported as 2001 AIR(Del) 357,.

8. In view of the aforesaid submissions, counsel for the

plaintiff states that the plaintiff is entitled to grant of a decree against

the defendants, for a sum of `24,95,207/-, which includes the principal

amount of `24,14,146/- alongwith interest that has been calculated @

18% per annum for the period from 10.06.2010, till the date of

institution of the present suit alongwith future interest payable, till

realization of the decretal amount.

9. The Court has perused the averments made in the plaint

and the documents that have been filed by the plaintiff. In view of the

fact that the leave to defend application filed by the defendants has

been dismissed for non-prosecution by a separate order passed today,

the pleas taken by the plaintiff in the present suit remain unrebutted

and have to be accepted as true and correct. Based on the said

averments, and the submissions made by learned counsel for the

plaintiff, the Court is satisfied that the plaintiff is entitled to grant of a

decree against the defendant No.1. However, the rate of interest that

has been claimed by the plaintiff is found to be unreasonably high and

is therefore reduced. Accordingly, the suit is decreed in favour of the

plaintiff and against the defendant No.1 for a sum of `24,14,146/-

alongwith simple interest payable @ 9% per annum from 10.06.2010,

till realization, with costs and counsel's fee quantified at `20,000/-.

                                                         (HIMA KOHLI)
OCTOBER 31, 2012                                             JUDGE
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