{"id":84202,"date":"2000-02-22T00:00:00","date_gmt":"2000-02-21T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/vij-sales-corporation-vs-lufthansa-german-airlines-on-22-february-2000"},"modified":"2019-02-14T06:21:38","modified_gmt":"2019-02-14T00:51:38","slug":"vij-sales-corporation-vs-lufthansa-german-airlines-on-22-february-2000","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/vij-sales-corporation-vs-lufthansa-german-airlines-on-22-february-2000","title":{"rendered":"Vij Sales Corporation vs Lufthansa, German Airlines on 22 February, 2000"},"content":{"rendered":"
Delhi High Court<\/div>\n
Vij Sales Corporation vs Lufthansa, German Airlines on 22 February, 2000<\/div>\n
Equivalent citations: 2000 IIIAD Delhi 146, AIR 2000 Delhi 220, 87 (2000) DLT 195, 2000 (54) DRJ 46<\/div>\n
Author: K Gupta<\/div>\n
Bench: K Gupta<\/div>\n<\/p>\n
<\/pre>\n
ORDER<\/p>\n
K.S. Gupta, J.<\/p>\n
1. Plaintiff filed this suit, inter alia, alleging that it is a  partnership concern carrying on business of export of ready-made garments. Subhash Chander  Vij, being one of its partners is competent to institute the  suit and sign and verify the plaint on behalf of the firm. Plaintiff through its agent  M\/s. Continental Carriers, New Delhi, on 31st July 1976 delivered  a consignment  of ready-made garments of the value of Rs. 1,48,200\/-  to  the defendant  for carriage to London and Airway Bill No. 220-5673  9174  dated 31st July, 1976 was accordingly issued by the defendant. On 3rd August 1976
\nthe  plaintiff  handed over documents as noted in Para 4 of the  plaint  to State Bank of India, Foreign Exchange Department, New Delhi for  collection of the amount through its counterpart State Bank of India, London, UK  from M\/s.  R.K. Fashion Ltd., to whom the said consignment was to be  delivered. On  6th August 1976 the State Bank of India, Foreign  Exchange  Department, New  Delhi  Branch sent the documents to State Bank of  India,  South  Hall Branch,  Middle  sex, UK for handing them over to M\/s.  R.K.  Fashion  Ltd. against payment. State Bank of India, UK Branch sent a number of  reminders
\nto said M\/s. R.K. Fashion Ltd. to retire the documents but it failed to  do so. On account of the lapse of said M\/s. R.K. Fashion Ltd. in not  retiring the  documents and taking delivery of the consignment the plaintiff had  to pay Rs. 48,838.45 towards demurrage to the defendant.\n<\/p>\n
2.   It  is further pleaded that the plaintiff in place of said  M\/s.  R.K. Fashion  Ltd.  nominated M\/s. Kay Imports & Exports as consignee  and  this change  was communicated to the defendant by M\/s.Continental Carriers  Ltd. through  the letter dated 22nd April, 1977. Defendant was asked to  deliver the  consignment  to said M\/s. Kay Imports & Exports. By the  letter  dated 20th May, 1977 the defendant informed M\/s. Continental Carriers that it has received a telex information through London office that the consignment has been  delivered  to M\/s. Express Enterprises with information to  M\/s.  Kay Imports  & Exports. However, the enquiries made by the plaintiff from  M\/s. Kay  Imports & Exports revealed that M\/s. Express Enterprises was  not  the agent  of M\/s. Kay Imports & Exports nor did it take delivery of  the  consignment  on behalf of M\/s. Kay Imports & Exports. It is alleged that  M\/s. Express  Enterprises by the letter dated 28th May 1977 informed  said  M\/s. Kay  Imports & Exports that the consignment was presently held in a  bonded warehouse on the instructions of M\/s. R.K. Fashion Ltd. and should M\/s. Kay Imports & Exports wish to release the consignment a release note from  M\/s. R.K.  Fashion Ltd. was needed. M\/s. Continental Carriers inquired from  the defendant  through the letter dated 30th June, 1977 whether said  M\/s.  Express Enterprises had taken delivery of the consignment either on behalf of M\/s.  Kay Imports & Exports or M\/s. R.K. Fashion Ltd. By the  letter  dated 8th August, 1977 defendant informed M\/s. Continental Carriers that consignment  was  released  to consignee’s agent – M\/s.  Express  Enterprises  for delivery  to a bonded warehouse. In reply to this letter  M\/s.  Continental Carriers by the letter dated 22nd August, 1977 informed the defendant  that M\/s.  Kay Imports & Exports never gave instructions to anybody for  storing the  consignment  in question in a bonded warehouse. It was also  noted  in that letter that M\/s. Kay Imports & Exports approached the London office of the defendant for taking delivery of the consignment but they were informed that  the same had already been handed over on 5th May, 1977 to  M\/s.  R.K. Fashion  Ltd.  through its agent – M\/s.Express Enterprises. By  the  letter dated  7th September, 1977 said M\/s. Kay Imports & Exports  repudiated  its liability  to pay the amount of Rs. 1,48,200\/- being the value of the  consignment  on the grounds of its not having taken delivery and M\/s.  Express Enterprises being not its agent. The defendant had unauthorisedly delivered the  consignment  on 5th May, 1977 to M\/s. R.K. Fashion  Ltd.  through  its
\nagent M\/s. Express Enterprises. On account of that wrongful delivery of the consignment the plaintiff has suffered loss of an amount of Rs.  1,48,200\/- being the value of consignment plus Rs. 39,569.40 by way of interest at the rate  of 18% p.a. from May, 1977 to 9th November, 1978, the date of  filing of suit. Despite service of legal notices dated 5th November, 1977 and  2nd August,  1978  the  defendant  has  failed  to  pay  the  said  amount   of Rs.1,87,769.40. It was prayed that a decree for Rs. 1,87,769.40 with  costs and interest pendente lite and future at the rate of 18% p.a. may be passed in favour of the plaintiff and against defendant.\n<\/p>\n
3.   Defendant  contested  the  suit by filing written  statement.  In  the amended  written statement by way of preliminary objections it  is  alleged that  the suit is barred by limitation by Rule 29 of the First Schedule  as also by Rule 30 of Second Schedule to Carriage by Air Act, 1972; the plaint does  not disclose any cause of action, this court has no  jurisdiction  to try the suit and the suit is bad for non-joinder of necessary parties.\n<\/p>\n
4.   On  merits, it is denied that the plaintiff is a  partnership  concern and  Subhash  Chander Vij is competent to institute the suit and  sign  and verify the plaint. It is admitted that the plaintiff through M\/s. Continental  Carriers  booked  a consignment for London said  to  contain  handloom cotton  shirts  and the declared value thereof was Rs. 1,48,200\/-  and  the defendant  issued  Airway Bill No. 220-5673 9174 on 31st  July,  1976.  The consignee  shown  in the Airway bill was State Bank of  India,  South  Hall branch,  Middlesex, UK and not M\/s. R.K. Fashion Ltd. as alleged.  Consignment  reached  London on 4th August, 1976. On arrival  of  consignment  the documents  were passed on to M\/s. Express Enterprises,  nominated  clearing agent  of  M\/s. R.K. Fashion Ltd. for the purpose of clearance  of  customs formalities  etc.  and the consignment was actually cleared by  Customs  on 25th  August, 1976 and it was removed to a bonded warehouse. IT is  alleged that the defendant did not receive the bank’s delivery order and therefore, the  consignor incurred heavy demurrage. It is admitted that the  defendant received a sum of Rs. 48,838.45 as storage charges. it is alleged that M\/s.\n<\/p>\n
Continental Carriers through the letter dated 18th October, 1976 Instructed the  defendant to delete the name of said bank as consignee and to  deliver the  consignment  directly  to M\/s. R.K. Fashion Ltd.  Defendant  sent  the appropriate  telex message to its London Office. Since the consignment  was prepaid  M\/s. R.K. Fashion Ltd neither paid the demurrage charges nor  took delivery thereof. By another letter dated 22nd April, 1977 M\/s. Continental Carriers  advised the defendant to deliver the consignment in  question  to M\/s.  Kay Imports & Exports. Receipt of the subsequent letters  dated  30th June,  1977 and 22nd August, 1977 from M\/s. Continental Carriers is  admitted. However, it is stated that the enquiry sought for in those letters was wholly irrelevant. It is denied that M\/s. Kay Imports & Exports were  ready and  willing to accept the delivery of consignment as alleged.  Consignment was available for delivery to M\/s. Kay Imports & Exports It is denied that because  of  the negligence of defendant the consignment was  delivered  to M\/s.Express  Enterprises  on behalf of M\/s. R.K. Fashion  Ltd.  Receipt  of plaintiff’s  both the notices is admitted. However, it is denied  that  the
\ndefendant is liable to pay Rs.1,48,200\/- being the value of the consignment or interest thereon at the rate of 18% p.a. as claimed.\n<\/p>\n
5.   In  the replication the plaintiff has controverted the averments  made in  the  amended written statement besides reaffirming those  made  in  the plaint.\n<\/p>\n
6.   On the pleading of the parties the following issues were framed:-\n<\/p>\n
     1.   Whether the suit is within time?\n<\/p><\/blockquote>\n
     2.   Whether  the  plaintiff has no cause of action  against  the
\n          defendant?\n<\/p><\/blockquote>\n
     3.   Whether this court has no jurisdiction to try the suit?\n<\/p><\/blockquote>\n
     4.   Whether the plaintiff is a registered partnership firm  and;\n<\/p><\/blockquote>\n
          the suing partner is its registered partner?\n<\/p><\/blockquote>\n
     5.   Whether the suit is bad for non-joinder of parties?\n<\/p><\/blockquote>\n
     6.   Whether the consignment was handed over by the defendant  to  M\/s.  Express  Enterprises against the instructions  of  the      plaintiff. \n \n\n     7.   To what amount is the plaintiff entitled? \n \n\n     8.   Whether the plaintiff is entitled to any interest, if so, at what rate and for what period? \n \n\n     9.   Relief.  \n \n\n     ISSUES 6 & 5: \n \n\n7.   Relevant  rules as contained in First Schedule to the Carriage by  Air Act  1972 may be noticed first. Rule 5(1) says that every carrier of  goods has  the right to require the consignor to make out and hand over to him  a \ndocument called an \"air consignment note\"; every consignor has the right to require  the  carrier to accept this document. Rules 6(1) and  (2)  provide that  the air consignment note shall be made out by the consignor in  three \noriginal  parts and be handed over with the goods. The first part shall  be marked \"for the carrier\" and shall be signed by consignor. The second  part shall  be marked \"for the consignee\"; it shall be signed by  the  consignor \n<\/pre>\n
and  by the carrier and shall accompany the goods. The third part shall  be signed  by the carrier and handed by him to the consignor after  the  goods have  been accepted. Sub-rule (5) of said Rule 6 further provides that  if, at the request of the consignor, the carrier makes out the air  consignment note,  he  shall be deemed, subject to the proof to the contrary,  to  have done  so  on behalf of the consignor. Rule 12(1) says that subject  to  his liability to carry out all his obligations under the contract of  carriage, the consignor has the right to dispose of the goods by withdrawing them  at
\nthe  aerodrome  of  departure or destination, or by stopping  them  in  the course of the journey on any landing or by calling for them to be delivered at  the  place of destination or in the course of the journey to  a  person other than the consignee named in the air consignment note, or by requiring them to be returned to the aerodrome of departure. He must not exercise the right  of  disposition in such a way as to prejudice the carrier  or  other consignors  and  he must repay any expenses occasioned by the  exercise  of this right. Sub-rule (4) of said Rule 12 provides that the right  conferred on the consignor ceases at the moment when that of the consignee begins  in accordance with Rule 13. Nevertheless, if the consignee declines to  accept the consignment note or the goods of if he cannot be communicated with, the consignor  resumes  his right of disposition. Rule 16(1)  States  that  the consignor  must furnish such information and attach to the air  consignment
\nnote  such documents as are necessary to meet the formalities  of  customs. octroi  or police before the goods can be delivered to the consignee.  Rule 18(1) provides that a carrier is lable for damages sustained in the  event of  the destruction or loss of, or of damage to, any registered luggage  or any  goods,  if the occurrence which caused the damage  so  sustained  took place  during the carriage by air. Sub-rule (2) further says that the  carriage by air within the meaning of sub-rule (1) comprises the period during which  the luggage or goods are in charge of carrier, whether in  an  aero-drome  or  on board an aircraft, or, in the case of a  landing  outside  an aerodrome,  in any place whatsoever. Rule 22(2) provides that in  the  car-riage  of registered luggage and of goods, the liability of the carrier  is limited  to  a sum of 250 francs per kilogramme, unless the  consignor  has made,  at the time when the package was handed over to the carrier, a  special declaration of the value at delivery and has paid a supplementary  sum if  the case so requires. In that case the carrier will be liable to pay  a sum  not  exceeding the declared sum, unless he proves that,  that  sum  is greater  than  the actual value to the consignor at  delivery.  Rule  25(1) which is material is reproduced below :-\n<\/p><\/blockquote>\n
       “The carrier shall not be entitled to avail himself of the proviions  of this Schedule which exclude or limit his liability,  if      the damage is caused by his wilful misconduct or by such  default on  his  part  as is in the opinion of the  court  equivalent  to wilful misconduct.” <\/p>\n
8.   Adverting  to the pleadings and evidence, it is admitted case  of  the parties that the plaintiff firm through its agent M\/s. Continental Carriers delivered  a consignment of ready-made garments on 31st July, 1976  to  the defendant at New Delhi for carriage to London and Airway bill No.  220-5673 9174  EX.D-1 dated 31st July 1976 was issued by the defendant. In  Ex.  D-1 State  Bank of India, South Hall, Middlesex, UK is shown as  the  consignee while  M\/s.  R.K. Fashion Ltd. as notify party. It is also not  in  dispute that  after M\/s. R.K. Fashion Ltd. failed to take delivery of the  consignment on getting the documents released by making payment to the  consignee, by the letter Ex.D-4 dated 18th October 1976 sent by M\/s.Continental Carriers  on  instructions from the plaintiff, the defendant was  instructed  to delete  the consignee bank’s name and deliver the consignment  directly  to M\/s.  R.K.  Fashion Ltd. It is further not in dispute that  by  the  letter Ex.P-1  dated 22nd April, 1977 which was received by the defendant on  26th April  1977, the defendant was instructed by plaintiff’s agent M\/s.  Continental carriers to deliver the consignment in question to M\/s. Kay  Imports & Exports and to debit the storage charges to its account and separate bill sent for this purpose. Case of the plaintiff is that despite receipt of the said  letter Ex. P-1 the defendant handed over the consignment in  question to  M\/s. Express Enterprises, agent of said M\/s. R.K. Fashions Ltd. on  5th May, 1977 and it is, therefore, liable to compensate the plaintiff for  the
\nvalue  of consignment together with interest. On the point of  delivery  of consignment to M\/s.Express Enterprises on the aforesaid date the  averments particularly made in Paras 12 and 14 of the plaint, corresponding paras  of the  amended written statement and also the letters Ex. P-2, Ex. PW1\/4  and Ex. PW1\/2 are relevant. Para No. 11 of the plaint notices that the  defendant  by  letter dated 8th August, 1977 informed M\/s.  Continental  carriers that  the consignment had been released to M\/s. Express  Enterprises  being the  consignee’s agent. In Para No. 12 it is pleaded that in reply to  said letter dated 8th August 1977 M\/s. Continental carriers by the letter  dated 22nd August, 1977 wrote to the defendant that M\/s. Express Enterprises  was neither  the  agent of M\/s. Kay Imports & Exports nor the  later  gave  any instructions to anybody for clearance of the consignment on its behalf.  It is further pleaded that in the said letter it was also mentioned that  M\/s. Kay  Imports  & Exports approached the London office of the  defendant  for taking delivery of consignment but they were informed that the  consignment had  already been handed over on 5th May 1977 to M\/s. Express  Enterprises. In Para No. 14 it is alleged that M\/s. Kay Imports & Exports had been ready and willing at the relevant time to accept the delivery of consignment  but the defendant was not in position to give delivery thereof to them for  the reason  that the consignment had already been unauthorisedly  delivered  on th  May  1977 to M\/s. R.K. Fashion Ltd. through their agent  M\/s.  Express Enterprises. In corresponding paras of the amended written statement it has not  been  specifically  denied by the defendant that  the  consignment  in question  was not handed over on 5th May, 1977 to M\/s. Express  Enterprises as alleged. Ex. P-2 dated 20th May, 1977 is the letter sent by the  defendant  to said M\/s. Continental Carriers and in Para No. 2 of this letter  it is stated that as per the telex information from their office in London the consignment  in  question was delivered to M\/s.  Express  Enterprises  with information M\/s.Kay Imports & Exports. The defendant cannot wriggle out  of
\nwhat is stated in said para 2 in Ex.P-2. Ex.PW1\/4 dated 7th  September,1977 is the letter sent by M\/s.Kay Imports & Exports to the plaintiff  repudiating  the  liability to pay the amount of Rs.1,48,200\/- being the  value  of consignment  in question on the grounds that neither the delivery  of  consignment was made to them nor M\/s.Express Enterprises was their agent.  Ex. PW1\/2 dated 28th May 1977 is the letter sent by M\/s. Express Enterprises to said  M\/s.  Kay Imports & Exports and it, inter alia, notices that  if  the later  do  not  have a clearing agent they are prepared to  act  for  them.\n<\/p>\n
Aforesaid  letters and the pleadings prove beyond doubt that  M\/s.  Express Enterprises was not the agent of M\/s. Kay Imports & Exports and the  delivery  of the consignment in question was made by the defendant to  M\/s.  Express  Enterprises on 5th May, 1977 against the instructions  contained  in said letter Ex.P-1.\n<\/p>\n
9.   Scheme of the Rules aforementioned clearly indicates that to meet  the formalities  of customs etc. the goods need not be handed over to an  agent of  the  consignee and if the consignee declines to accept  the  goods  the consignor  resumes his right of disposition of goods but he must  repay  to the  carrier any expenses occasioned by the exercise of that right .  Needless to repeat that by the said letter Ex. P-1 M\/s. Continental carriers as agent of the plaintiff had asked the defendant to debit the storage charges in their account after aforesaid M\/s. R.K. Fashion Ltd. had failed to  take
\nthe delivery of the consignment in question. Admittedly, Rs.48,838.45  were also  received by the defendant from plaintiff towards storage  charges  of the  said consignment. Obviously, loss of the value of the  consignment  in question  to the plaintiff was caused as a result of wilful  misconduct  on the  part  of the defendant in handing over the same  to  said  M\/s.Express Enterprises within the meaning of aforesaid Rule 25(1) for which  defendant is  liable to compensate the plaintiff. Suit is not bad for non-joinder  of any other party. Both the issues are answered accordingly.\n<\/p>\n
     ISSUE NO.1<\/p>\n
10.  This  issue was treated as a preliminary issue and by the order  dated 23rd September 1981 it was decided in favour of the plaintiff holding  that the  suit  was within limitatio Civil Appeal No.3912\/83 taken out  by  the defendant  against  this order was dismissed by the Supreme  Court  by  the order dated 28th February, 1996 holding that it will be open to the defendant  if the suit is decreed in favour of the plaintiff to raise  all  questions including the question of limitation before the Court of appeal. This issue thus stands settled as regards this court.\n<\/p>\n
     ISSUE NO.2.\n<\/p>\n
11.  In  view of finding on said issue No. 6, no separate finding  need  be recorded on this issue.\n<\/p>\n
     ISSUE NO.3.\n<\/p>\n
12.  Since the consignment in question was booked with the defendant at New Delhi,  a part of cause of action within the meaning of Section  20(c)  CPC
\nhad  accrued  within the territorial jurisdiction of this court.  Issue  is
\nanswered in negative.\n<\/p>\n
     ISSUE NO.4.\n<\/p>\n
13.  Ex.Pw1\/1 is the certified copy of Form “A” pertaining to the plaintiff firm and name of Subhash Chander Vij who signed and verified the plaint and instituted  the suit, appears at serial No. 2 therein as a partner  thereof Issue is, therefore, decided in the affirmative.\n<\/p>\n
  ISSUES NO.7 & 8<\/span><\/p>\n
14.  It is in the deposition of Subhash Chander Vij, PW-1 that the value of consignment  which  was handed over to the defendant  against  Airway  Bill Ex.D-1  was Rs.1,48,200\/-. The bank rate of interest at that time  was  18% p.a.  whereas market rate of interest was 21% p.a. There is  market  custom also to pay interest on credit sales and the defendant is thus entitled  to interest on the said amount. In cross examination it was not even  remotely suggested to him that the value of consignment was not Rs.1,48,200\/-. It is a matter of common knowledge that the bank rate of interest goes on  changing  as  per  instructions of the RBI. The plaintiff did  not  examine  any official from any of the scheduled banks to depose about the rate of interest  which was prevailing durin the years 1977 to 1996. Statement of  PW-1 came  to  be recorded on three dates within first six months in  1997.  Rs. 39,569.40 have been claimed by way of interest at the rate of 18% p.a. from May 1977 upto he date of filing of suit i.e. 9th November, 1978. There  is no doubt that the plaintiff is entitled to claim interest on the  aforesaid amount  of Rs.1,48,200\/- as the firm was deprived of the use of this  money
\nbecause of the wrongful misconduct on the part of defendant in handing over the consignment in question to an unauthorised person. I feel that interest of  justice will be secured if the plaintiff is allowed interest @ 9%  p.a. upto  the  date  of filing of the suit as also pendente  lite  and  future. Calculated  at that rate the amount of interest upto the date of filing  of suit  will be Rs.19,784.70 which the plaintiff is entitled to  recover  together with the said amount of Rs.1,48,200\/-.\n<\/p>\n
15.  Issues are answered accordingly.\n<\/p>\n
     RELIEF<\/p>\n
16.  In  view  of finding on the said issues, the suit is decreed  for  Rs. 1,67,984.70 with proportionate costs and interest pendente lite and  future at the rate of 9% p.a. on Rs. 1,48,200\/- against the defendant.<\/p>\n","protected":false},"excerpt":{"rendered":"
Delhi High Court Vij Sales Corporation vs Lufthansa, German Airlines on 22 February, 2000 Equivalent citations: 2000 IIIAD Delhi 146, AIR 2000 Delhi 220, 87 (2000) DLT 195, 2000 (54) DRJ 46 Author: K Gupta Bench: K Gupta ORDER K.S. Gupta, J. 1. Plaintiff filed this suit, inter alia, alleging that it is a partnership […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-84202","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nVij Sales Corporation vs Lufthansa, German Airlines on 22 February, 2000 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/vij-sales-corporation-vs-lufthansa-german-airlines-on-22-february-2000\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Vij Sales Corporation vs Lufthansa, German Airlines on 22 February, 2000 - 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