M/S. Angelique International ... vs M/S. Transasia Forwarders ...
2013 Latest Caselaw 1248 Del

*                  THE HIGH COURT OF DELHI AT NEW DELHI

+                          CS (OS) 1986/2003

                                         Date of Decision: 13.03.2013

M/S. ANGELIQUE INTERNATIONAL LIMITED
                                   ......PLAINTIFF

                           Through:   Mr.Rakesh K.Sharma, Adv. with
                                      Ms.Kusum Sanehi, Ms.Richa
                                      Kaur, Ms.Swati Yadav, Advs.

                                Versus

M/S. TRANSASIA FORWARDERS (INDIA) PVT. LTD. & ANR.
                                   ......DEFENDANT
                  Through: None.

CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA

M.L. MEHTA, J.

1. This suit for recovery is filed by the plaintiff against the

defendants seeking recovery of suit amount of Rs. 25,85,135.75/-. The

facts in brief are that the plaintiff had sent seventeen containers of

medicines and equipments from India to Mangolia for its customer i.e.

Ministry of Health of Mangolia. The defendant No. 1 is a Delhi based

Indian associate of defendant No.2 which is based in Germany. The

defendant No. 1 had issued freight invoices in respect of the said

containers on taking complete payment of freight of USD 26557 /- for

transportation. The containers were to go by sea at Chinese port

Xingang and thereafter, from the port by land by one IFFC, a

Mangolian agent of defendant No. 1. The containers reached this port

Xingang sometime in March-April, 2000. On account of some dispute

between the defendants and the IFFC, the containers were held by

IFFC and were not released despite repeated requests made by the

plaintiff to the defendants as also to the IFFC. This was despite the

fact that the defendant No. 1 had confirmed by various

communications that the entire freight charges were paid by the

plaintiff. Since the plaintiff was suffering because of loss of reputation

as also harassment, it, ultimately got paid the USD 26557/- to the IFFC

by M/s. Soimex International Ltd., which debited this amount to

plaintiff account with interest @ 18% p.a. The plaintiff has claimed

this amount of USD 26557/- @ Rs. 50 per USD, which is equivalent to

Rs. 13,27,850/- and a sum of Rs. 6,57,285.75 on account of interest

thereon. In addition, the plaintiff has claimed a sum of Rs. 5 lakhs as

damages on account of loss of reputation and harassment at the hands

of the defendants. Thus, plaintiff has claimed a sum of Rs.

25,85,135/- along with interest @ 18% p.a. from the defendants jointly

and severally.

2. The defendants did not choose to contest the suit and were

proceeded ex parte. The plaintiff has examined its Secretary and

Authorized Representative Mr.Pankaj Goyal as its only witness. He

has filed his affidavit of evidence. He has been authorized by a

resolution of the company vide Ex.PW1/3 to depose on its behalf. He

has reiterated the averments as set out in the plaint. He has also

produced on record the correspondence that ensued between the

plaintiff and the defendants and M/s. Soimex International Ltd. From

the documents, it is seen that freight invoices were raised by the

defendant No. 1 at the time of booking of goods by the plaintiff with

the defendant No. 1. These are duly proved as Ex.PW1/13, 14, 15, 16,

18 and 19. The PW1 stated that two invoices, which were given

exhibits as Ex.PW1/17 and 20 in the affidavit of evidence, could not be

traced and thus, the claim in respect of those was withdrawn. He stated

that as per the invoices which are proved as above, the plaintiff claims

USD 18,746.15/- instead of USD 26557/- as averred in the plaint,

which is equivalent to Rs. 9,37,300/- and interest thereon comes to Rs.

4,63,963/-. In this way, the witness stated the plaintiff to be entitled to

recover Rs. 19,01,283/- including Rs. 5 lakhs for damages from the

defendants.

3. The witness further stated that since no concrete results came out

despite repeatedly contacting the defendants, it had written letters

dated 8.6.2000, 12.6.2000 and 28.6.2000 to the defendants (Ex.PW1/4

to Ex.PW1/6 respectively). The defendant No. 1, vide its letter dated

1.6.2000 also confirmed the plaintiff having already paid the complete

freight charges. This defendant again vide letter dated 28.06.2000

(Ex.PW1/8) confirmed receipt of full payment of freight. M/s. Soimex

International Ltd. informed the plaintiff vide letter of 19.06.2002

(Ex.PW1/10) of having paid USD 26557 /- on behalf of the plaintiff

and debited the same in the Account of the plaintiff. This was again

confirmed by the defendant No. 1 vide its letter dated 11.12.2000

(Ex.PW1/9). Vide this letter, the defendant No. 1 also assured the

plaintiff to settle the matter within two days. PW1 also stated that the

defendant No. 1 did not refund the amount despite repeated assurances

and also legal notice dated 13.12.2002 (Ex.PW1/21).

4. From the unassailed statement of PW1 and the documents

proved by him, it stands proved that the plaintiff had already paid the

freight charges amounting to USD 26557 to the defendant No. 1 vide

the invoices, as noted above. It was on account of some dispute

between the defendants and their Mangolian agent IFFC that the goods

were held up by IFFC, and were not released until the plaintiff

arranged to make payment of USD 26557 to IFFC through its agent

M/s. Soimex International Ltd. From this, it would appear that it is not

that the plaintiff was made to pay this amount of USD 26557 again,

but, had suffered due to harassment and in reputation. It was for no

fault of the plaintiff that the goods were not delivered to its purchaser

in time and got considerably delayed. The defendant No. 1, despite

repeated assurances, did not settle the dispute with IFFC and also did

not refund the amount to the plaintiff. This was also despite that a

legal notice dated 13.12.2002 was got issued by the plaintiff.

5. From the above discussion, it stands proved that the plaintiff is

entitled to recover the refund of USD 18,746, the equivalent of which

is Rs. 9,37,300/- and also interest @ 18% p.a. thereon, which comes to

Rs. 4,63,963/-. In this way, the plaintiff is entitled to recover as a

refund from the defendant a sum of Rs. 14,01,263/-. Having noted that

the plaintiff suffered harassment and loss of reputation, the damages

quantified at Rs. 5 lakhs by the plaintiff appears to be just and

reasonable. Consequently, the plaintiff is found to be entitled to

recover a sum of Rs. 19,01,263/- from the defendants jointly and

severally. Hence a decree of recovery of this amount is passed in

favour of the plaintiff and against the defendants. The defendants are

ordered to pay the above amount within a month from the date of this

order, failing which, the plaintiff would also be entitled to recover the

same with interest @ 12% p.a. till date of realization. The decree

sheet be drawn accordingly.

6. Suit stands disposed of.

M.L. MEHTA, J.

MARCH 13, 2013 akb