Delhi District Court
Royal Sundaram General Insurance Co Ltd vs Shri Krishna Traders on 5 February, 2026
IN THE COURT OF SH. NARESH KUMAR MALHOTRA :
DISTRICT JUDGE (COMMERCIAL)-06
TIS HAZARI COURTS, WEST: DELHI
CS (COMM) No. 821/2024
CNR No. DLWT010081052024
05.02.2026
1. M/s. Royal Sundaram General Insurance Co. Ltd.
Through its AR Sh. Tanveer Ahmed,
Registered office at:-
21, Patullos Road,
Chennai-600002
Regional office at
Rider House, 1st Floor,
Plot No. 136, Sector-44,
Gurugram-122002
Haryana
Also at
Unit No. 801A, 8th Floor,
Devika Tower, Nehru Place,
New Delhi-110049
2. M/s. Hindustan Coca Cola Beverages Pvt. Ltd.
Through its Director/AR
Reg. Office at:
B-19, Mayapuri Industrial Area,
Phase-I, New Delhi-110064
Also at:-
Brigade Magnum,
Tower A, 9th Floor,
Amruthahalli, Kodigehalli Post,
Bangalore-560092
Karnataka
....Plaintiffs
Vs.
Ms. Kavita Devi
Proprietor of M/s. Shri Krishna Traders,
CS (Comm.) No. 821/2024 -1-
Registered office at:-
H. No. 172, Ground Floor,
Gali No. 5, Block-B, Phase-2,
Prem Nagar, New Delhi-110041.
....Defendant.
Date of filing : 19.09.2024
Date of arguments : 02.02.2026
Date of judgment : 05.02.2026
COMMERCIAL SUIT FOR RECOVERY OF Rs. 11,16,472/-
ALONGWITH INTEREST.
JUDGMENT:
1. Vide this judgment, I am deciding the suit for recovery of
Rs. 11,16,472/- along with interest filed by the plaintiffs against
the defendant.
2. The essential facts for disposal of the present suit are as
that the plaintiff no. 1 is an Insurance company, duly
incorporated and registered under the Indian Companies Act,
1956, having its registered office at the above mentioned address.
Sh. Prashant Pratap Singh, who is AR/Legal Manager of plaintiff
no. 1 is duly authorized to sign, verify and file the present suit,
having its registered office at 801A, 8th Floor, Devika Tower,
Nehru Place, New Delhi-110049 and Resider House, 1 st Floor,
Plot No. 136, Sector-44, Gurugram-122002, Haryana. The
plaintiff no. 2, who was the consignee of the suit consignment for
valuable consideration and is insured with the plaintiff no. 1. It
has authorized the plaintiff no. 1 by way of letter of Subrogation
Cum Special Power of Attorney to file the suit and has authorized
all his representative to take all necessary steps or to do all acts
which are necessary for the recovery of the abovesaid amount.
CS (Comm.) No. 821/2024 -2-
Sh. Prashant Pratap Singh, AR/ Legal Manager has signed,
verified and instituted the present suit on behalf of plaintiff no. 2.
It is mentioned that the defendant is a common carrier by the
name and style of M/s. Shree Krishna Traders within the meaning
of Carriage by Road Act, 2007. The defendant is carrying out
business of goods carrier by road from one place to another for
consideration. The plaintiff no. 2 booked a consignment of
concentrate of Soft Drinks (Non Alcoholic Beverage) vide
invoice no. F20000001504 dated 28.01.2021, for a sum of Rs.
3,13,64,305.60 vide C.N 419 dated 28.01.2021 with the
defendant for the transportation from Pune, Maharashtra to
Khurda, Orissa. The defendant provided the above service for the
valuable consideration paid by the plaintiff no. 2. The defendant
is liable to compensate the plaintiff for the damages/shortage/loss
of the consignment in question being a common carrier under the
Carriage by Road Act, 2007. The consignment of plaintiff no. 2
was dispatched vide LR/CN No. 419 dated 28.01.2021 by Truck
No. HR-55 AB-0778. The truck carrying the consignment was
negligent and out of the total consignment, partial consignment
was received in severe damaged condition. The loss/damage/
shortage occurred because of the negligence of the
defendant/carrier and the same amounts to breach of duty on the
part of defendant which has failed to deliver the consignment in
safe condition at its destination. It is mentioned that a registered
notice was sent on 06.05.2021 under Sec 10 of The Carrier Act/
Section 16 Carriage by Road Act, 2007, which was duly served
by the plaintiff no. 2 on the defendant, whereby the defendant
was called upon to pay the estimated loss caused to the plaintiff
no. 2 to the tune of Rs. 10,64,000/- as the defendant was solely
CS (Comm.) No. 821/2024 -3-
responsible for the said loss. The defendant also acknowledged
the loss caused to the plaintiff no. 2 to the tune of Rs.
10,64,000/- and issued the damage certificate no. 007 dated
28.05.2021. The defendant should have taken proper care for the
safety of the consignment. It is mentioned that the defendant
acted negligently and there is no dispute in respect of the fact that
the consignment was completely damaged causing loss to the
plaintiff no. 2. The defendant, its agents/employees were
careless and negligent in handling the consignment in transit and
did not take due and reasonable care as required from an
experienced carrier. As a result of negligence, the consignment
was partially and severely damages and 48 units of thumps up
concentrate were found to be damaged. The defendant is liable to
compensate the plaintiff(s) to the tune of Rs. 11,16,472/- along
with accrued pendentelite and future interest. The safe delivery
of the consignment at its destination was the responsibility of the
defendant/ its servants/ agents but in the present case no proper
and reasonable care was taken and the goods in consignment
were extensively damaged while the said consignment was under
the control and custody of the defendant/its servant/ agents. It is
mentioned that the carriage of goods by road is covered by
Carriage by Road Act, 2007 and the liability of the defendant
would be governed by this Act. Section 12 deals with the
provisions pertaining to the liability of common carrier for the
loss/damage to the goods entrusted for carriage to them. As per
Section 12 it shall not be necessary for the plaintiff(s) to prove
that such loss or damage or non delivery was owing to the
negligence or criminal act of the common carrier or any of its
servants and agents. The principle is that the carrier is absolutelyCS (Comm.) No. 821/2024 -4-
liable for any loss or destruction of the goods. The carrier
undertakes the liability of an insurer. The carries should either
deliver the goods intact or pay compensation for loss or
destruction. In India the common carrier is liable for the loss or
damage of the goods just like an insurer. The plaintiff no. 2
being the insured of the plaintiff no. 1 vide policy No.
ST20002968000102/ STC3160682000100 in the name of M/s.
Hindustan Coca Cola Beverages Pvt. Limited covering all transit
risks from 01.05.2020 to 30.04.2021. The plaintiff no. 2
intimated the plaintiff no. 1 regarding the damage of the
consignment. The plaintiff no. 1 appointed Surveyor namely
S.K. Das & Associates for assessing the claim. The Surveyor
submitted the Assessment Report dated 20.02.2021, thereby
assessing a net adjusted loss to the tune of Rs. 11,17,313/-.
Thereafter receiving the said Report, the plaintiff no. 1
scrutinized the claim as per its contractual obligations, settled the
claim of the plaintiff no. 2 for an amount of Rs. 11,16,472/-. The
plaintiff no. 1 made the payment of Rs. 11,16,472/- to the
plaintiff no. 2 and discharge voucher dated 20.07.2021 was
issued by the plaintiff no. 2 to plaintiff no. 1. It is mentioned
that upon receipt of the compensation amount aforementioned,
the plaintiff no. 2 had assigned, transferred, abandoned and
subrogated all its rights, claims and beneficial interest of the
subject matter insured, including the rights to recover and
realized on its own name, the amount of compensation for and on
behalf of plaintiff no. 2 from the defendant in favour of the
plaintiff no. 1. The plaintiff no. 2 has also duly executed letter of
subrogation cum special power of attorney in favour of the
plaintiff no. 1. The plaintiff no. 1 now being the Subrogee andCS (Comm.) No. 821/2024 -5-
assignee of all rights and claims, beneficial interest, title and
remedy in respect of the subject matter and having suffered the
loss ultimately entitled to recover the full amount from the
defendant under its own right and in its own name. The plaintiff
no. 1 has sent a demand legal notice on 29.06.2022 to the
defendant. The plaintiff no. 2 being the consignee and owner of
the subject matter in question is entitled to claim compensation
for the loss from the defendant. In alternative, it is pleaded that
both the plaintiff(s) jointly and severally having suffered the loss
of the value of the damaged consignment are entitled to claim
compensation of Rs. 11,16,472/-. The plaintiff(s) are also
entitled to interest @ 18% per annum which is a commercial rate
of interest. It is prayed by the plaintiffs to pass a decree of Rs.
11,16,472/- in favour of the plaintiff no. 1 or in favour of the
plaintiff no. 2 or jointly in favour of plaintiffs no. 1 & 2. The
plaintiffs have claimed interest @ 18% per annum from the date
of filing of the suit till realization.
3. Defendant has filed written statement taking preliminary
objections that there is no privity of contract and no cause of
action has accrued in favour of plaintiff. Defendant has already
performed his part of contract with the plaintiff no. 2. The
contract has been performed to the satisfaction of the plaintiff no.
2. The present suit is bad in law and an abuse of process of law.
The plaintiff has concealed and suppressed material facts. It is
mentioned that the defendant does not owe any money. There are
no dues towards the defendant. There was never a commercial
transaction between the plaintiff no. 1 and the defendant. The
present suit is barred by limitation. This court has no territorial
CS (Comm.) No. 821/2024 -6-
jurisdiction to try and entertain the present suit. The plaintiff has
no locus standi to file the present suit.
In reply on merits, it is denied that Sh. Prashant Pratap
Singh is duly authorized/ empowered to sign and verify the
present suit. It is admitted that the plaintiff no. 2 sent the
consignment through the defendant to Orissa but it is denied for
want to knowledge that the plaintiff no. 1 was the insurer. It is
denied that the plaintiff no. 2 has authorized the plaintiff no. 1 to
file the present suit. The plaintiffs never intimated the defendant
about the said documents and defendant was never given
opportunity to assail the contents of the documents. As per the
defendant, the subrogation contract is clandestine document and
does not apply to the defendant. It is mentioned that the
defendant has performed her part of contract as per contract
between plaintiff no. 2 and the defendant. It is denied that
defendant undertook to transport the said consignment in safe
condition from Pune, Maharashtra to Khurda, Orissa. It is
mentioned that the documents itself mention that the
consignment is being carried at owners’ risk and the part of the
insurance was kept vacant. As per the averments of the plaint,
the cause of action had taken place in Orissa and not in Delhi. It
is denied that defendant or any of its employee were negligent. It
is denied that loss/damage occurred because of the negligence of
the defendant and the same amounts to breach of duty on the part
of the defendant. The plaintiff is making false averments with
regard to the joint inspection report. It is denied that registered
notice was sent on 06.05.2021 to the defendant. It is denied that
defendant had acknowledged her liability to the loss cause to the
plaintiff no. 2. It is denied that defendant acknowledged the loss
CS (Comm.) No. 821/2024 -7-
caused to the plaintiff no. 2 to the tune of Rs. 10,64,000/- and
issued the damage certificate no. 007 dated 28.05.2021 for any
claim or liability of the defendant. As per the defendant, she had
taken all the proper care for the safety of the consignment and the
partial loss to the consignment was not caused by her. It is
denied that the defendant is liable to compensate the plaintiff to
the tune of R s. 11,16,472/-. It is denied that the discharge
voucher dated 20.07.2021 was issued by the plaintiff no. 2 to
plaintiff no. 1 under intimation to the defendant. It is denied that
plaintiff no. 2 has executed letter of subrogation cum special
power of attorney in favour of the plaintiff no. 1. It is denied that
plaintiff no. 1 has sent legal notice to the defendant on
29.06.2022. Dismissal of suit is prayed by the defendant.
4. The plaintiff no. 1 has filed replication to the written
statement filed by the defendant and controverted the allegations
made in the written statement and further reaffirmed the
averments made in the plaint.
5. On the basis of pleadings of the parties, following issues
were re-framed by this court on 02.02.2026, which are as under:-
(1) Whether this Court has territorial jurisdiction to try and
entertain the present suit ? (OPP)
(2) Whether the plaintiff is entitled for recovery of Rs.
11,16,472/-from the defendant ? (OPP)
(3) Whether the plaintiff is entitled for interest on the
amount of Rs. 11,16,472/-. If yes, for what rate and for
what period ? (OPP)
(4) Relief.
CS (Comm.) No. 821/2024 -8-
6. In evidence plaintiff has examined Sh. Tanveer Ahmed, AR
of the plaintiff as PW-1. This witness has filed affidavit on the
lines of plaint. This witness has proved copy of letter of
Subrogation cum Power of attorney as Ex. PW-1/B, copy of tax
invoice issued by defendant to the plaintiff no. 2 as Ex. PW-1/C,
copy of GR/CN issued by the defendant company as Ex.
PW-1/D, copy of Joint Inspection Report of the damage as Ex.
PW-1/E, the acknowledgment of the said damage/loss/short
material received by the plaintiff no. 2 as Ex. PW-1/F, copy of
claim notice u/s 16 Carriage by Road Act, 2007 Section 10 of the
Carriers Act as Ex. PW-1/G, copy of certificate as Ex. PW-1/H,
copy of the policy as Mark-A, copy of surveyor report as Ex.
PW-1/J, copy of Discharge Voucher as Ex. PW-1/K, copy of legal
notice as Ex. PW-1/L, copy of Non-starter report marked as Ex.
PW-1/M, copy of Board Resolution in favour of Managing
Director dated 28.05.2025 as Mark-B, copy of Power of attorney
of Managing Director dated 28.05.2025 as Mark-C and copy of
power of attorney of Authorised Representative dated 19.06.2025
as Ex. PW-1/P.
7. This witness is duly cross examined by Ld. Counsel for
defendant. In cross examination, this witness has admitted that he
had adopted the affidavit which was filed by earlier AR. This
witness has stated that he has filed the affidavit u/s 63-B of
Bhartiya Sakshya Adhiniyam. This witness after seeing the file
submits that he has not filed any affidavit u/s 63-B of Bhartiya
Sakshya Adhiniyam. This witness has admitted that earlier AR
has signed the affidavit. This witness has admitted that he has
CS (Comm.) No. 821/2024 -9-
not filed Incorporation certificate of plaintiff no. 1 company and
Form-32. This witness has stated that he is working with the
plaintiff since the year, 2018. He has admitted that there was no
agreement between the plaintiff no. 1 & 2 in the year, 2018
regarding Subrogation agreement. This witness has stated that he
cannot tell when the plaintiff no. 2 had purchased the Marine
policy from the plaintiff no. 1. He has voluntarily stated that
policy was purchased at Gurgaon (Haryana). This witness has
stated that he does not know if any documents was executed
between plaintiff no. 1 and plaintiff no. 2 in Delhi. He has
admitted that the plaintiff no. 2 has booked the goods for
transportation from Pune to Khurda (Orissa). He has admitted
that defendant had issued document Ex. PW-1/H on 28.05.2021.
He has admitted that the document Ex. PW-1/G is dated
06.05.2021. This witness has admitted that he has not filed any
undertaking of the defendant as mentioned in para no. 4 of the
plaint. This witness has stated that he cannot recall when the joint
inspection of goods were carried out and where the joint
inspection was carried out.
8. Thereafter, PW-1 was again examined on the application of
the plaintiff on 15.12.2025. This witness has proved additional
affidavit in evidence as Ex. PW-1/B and certificate u/s 63 of BSA
as Ex. PW-1/Q. During cross examination, this witness has
admitted that he was cross examined on 04.08.2025. He has
admitted that there is no mention of # (hash) value in Ex.
PW-1/Q.
CS (Comm.) No. 821/2024 -10-
9. On the other hand, defendant has examined Sh Narendra
Kumar Mewa Lal Mishra S/o Sh Mewa Lal Vishwanath Mishra,
who is Manager of defendant as DW-1. This witness has filed
affidavit on the lines of written statement. This witness has
proved photocopy of his I.D card issued by the defendant as Ex.
DW1/1. This witness is duly cross examined by Ld. Counsel for
plaintiff. During cross examination, this witness has stated that
he is working in the defendant’s firm since the year 2018. This
witness has stated that he is working as Manager in the
defendant’s firm and he looks after all the aspects related to
transport of goods for the firm. This witness has stated that he
has not placed on record any document except his I.D card to
show that he has been authorized to depose on behalf of
defendant’s firm. This witness has stated that he was instructed
by the Proprietor of the defendant’s firm to depose on behalf of
defendant. This witness has stated that he is not aware about the
name of the Proprietor of the defendant’s firm. This witness has
stated that he is not aware that a claim has been made against the
defendant firm. This witness has stated that he is aware that Coca
Cola had placed consignment order with the defendant firm. He
has admitted that the defendant firm has many other dealings
with Coca Cola (plaintiff no.2). He has admitted that when an
order is placed by any company for transport of goods with the
defendant firm, an invoice is issued for the said order. This
witness has stated that he cannot identify the signatures of Ms.
Kavita Devi, Proprietor of defendant firm.
The document ExPW1/C (Tax Invoice) was put to the
witness and witness after seeing the document submits that this is
the similar invoice that Coca Cola used to issue. This witness
CS (Comm.) No. 821/2024 -11-
has admitted that document ExPW1/D consignment letter was
issued by the defendant firm to plaintiff no. 2. This witness has
stated that he is not aware if defendant has filed any document to
show that goods were delivered in intact condition.
10. I have heard Ld. Counsel for parties at length and perused
the record carefully.
11. At the very Outset, I may observe that the provisions of
Section 2 (1) (c)(xviii) of Commercial Courts Act, 2015 are very
clear which reads as under:-
(c) “commercial dispute” means a dispute arising out
of-
(i) ordinary transactions of merchants, bankers,
financiers and traders such as those relating to
mercantile documents, including enforcement and
interpretation of such documents;
(ii) export or import of merchandise or services;
(iii) issues relating to admiralty and maritime law;
(iv) transactions relating to aircraft, aircraft engines,
aircraft equipments and helicopters, including sales,
leasing and financing of the same;
(v) carriage of goods;
(vi) construction and infrastructure contracts, including
tenders;
(vii) agreements relating to immovable property used
exclusively in trade or commerce.
(viii) franchising agreements;
(ix) distribution and licensing agreements;
(x) management and consultancy agreements;
(xi) joint venture agreement;
(xii) shareholders agreements;
(xiii) subscription and investment agreements pertaining
to the services industry including outsourcing services
and financial services;
(xiv) mercantile agency and mercantile usage;
(xv)partnership agreements;
(xvi) technology development agreements;
CS (Comm.) No. 821/2024 -12-
(xvii) intellectual property rights relating to registered
and unregistered trademarks, copyright, patent, design,
domain names, geographical indications and
semiconductor integrated circuits;
(xviii) agreement for sale of goods or provision of
services;
(xix) exploitation of oil and gas reserves or other natural
resources including electromagnetic spectrum;
(xx) insurance and re-insurance;
(xxi) contracts of agency relating to any of the above;
and
(xxii) such other commercial disputes as may be notified
by the Central Government.
12. The provisions of Section 2 (1) (c) (xviii) of Commercial
Courts Act as above are very much clear. The Insurance and re-
insurance specified value do come within the jurisdiction of
Commercial Courts Act. The clause also includes the services
and guarantee given for the same. The service or guarantee may
be oral or written. Therefore, the facts which alleged in the plaint
comes under the Commercial disputes.
13. Secondly, now the question arises whether this Court has
the pecuniary jurisdiction to adjudicate the matter which is
dispute. In this regard, the provisions of Section 3 of Commercial
Courts Act, 2015 provides that:
Section 3 : Constitution of Commercial Courts:
(1) The State Government, may after consultation
with the concerned High Court, by notification,
constitute such number of Commercial Courts
at District level, as it may deem necessary for
the purpose of exercising the jurisdiction and
powers conferred on those Courts under this Act:
[Provided that with respect to the High Courts
having ordinary original civil jurisdiction, the
State Government may, after consultation with the
concerned High Court, by notification,CS (Comm.) No. 821/2024 -13-
constitute Commercial Courts at the District
Judge level:
Provided further that with respect to a territory
over which the High Courts have ordinary original
civil jurisdiction, the State Government may, by
notification, specify such pecuniary value
which shall not be less than three lakh rupees
and not more than the pecuniary jurisdiction
exercisable by the District Courts, as it may
consider necessary. ]
3[1A) Notwithstanding anything contained in this
Act, the State Government may, after consultation
with the concerned High Court, by
notification, specify such pecuniary value
which shall not be less than three lakh rupees or
such higher value, for whole or part of the State, as
it may consider necessary.]
14. Admittedly, the Commercial Court Act was amended on
03.05.2018 and by virtue of the amendment and by virtue of the
notification, the pecuniary value of the Commercial Courts Act
shall not be less than Rs. 3,00,000/-. In the present case, the
claim amount which is shown in the plaint is of Rs. 11,16,472/-.
So, commercial court has jurisdiction to try and entertain the
present suit.
15. My issue-wise findings are as under:-
16. Issue No. 1-Whether this Court has territorial jurisdiction
to try and entertain the present suit ? (OPP)
The burden to prove this issue is on the plaintiff. To prove
this issue the plaintiff has mentioned in paragraph no. 17 of the
plaint that this Court has jurisdiction to try and entertain the
matter as the defendant is having her office and working for gain
CS (Comm.) No. 821/2024 -14-
in Delhi. Section 20 CPC provides that suits to be instituted
where defendants reside or cause of action arises. It reads as
under:-
20. Other suits to be instituted where defendants reside or cause of
action arises.– Subject to the limitations aforesaid, every suit shall
be instituted in a Court within the local limits of whose jurisdiction
—
(a) the defendant, or each of the defendants where there are more
than one, at the time of the commencement of the suit, actually and
voluntarily resides, or carries on business, or personally works for
gain; or
(b) any of the defendants, where there are more than one, at the time
of the commencement of the suit, actually and voluntarily resides, or
carries on business, or personally works for gain, provided that in
such case either the leave of the Court is given, or the defendants
who do not reside, or carry on business, or personally works for
gain, as aforesaid, acquiesce in such institution; or
(c) The cause of action, wholly or in part, arises.
Therefore, it is clear that a civil suit is to be instituted
where the defendant reside or cause of action has arisen whether
in whole or part.
17. The defendant has filed written statement along with
affidavit. In the affidavit it is stated that Smt. Kavita Devi is
proprietor of M/s Shree Krishna Traders and is a resident of H.
No. 172, Ground floor, Gali no. 5, Block – B, Phase -2, Prem
Nagar, New Delhi – 110041. DW-1 appeared before this Court
and filed DW1/1 which is an employee ID card. This card also
CS (Comm.) No. 821/2024 -15-
states the address as H. No. 172, B- Block, phase -2, Prem nagar,
New Delhi-110041. Thus, the defendant resides and doing
business within the territorial jurisdiction of this Court. The
plaintiff is able to prove this issue and this issue is decided in
favour of the plaintiff and against the defendant.
18. Issue No. 2-Whether the plaintiff is entitled for recovery of
Rs. 11,16,472/- from the defendant ? (OPP)
The burden to prove this issue is on the plaintiff no.1. Ld.
Counsel for the plaintiff no. 1 has argued that plaintiff no. 2
booked a consignment of soft drink concentrate, vide invoice
number F20000001504 dated 28.01.2021 and consignment note
number 419 dated 28.01.2021 with the defendant for carriage
from Pune, Maharashtra to Khurda, Orissa. The consignment was
transported in Truck no. HR-55-AB-0778 under the custody and
exclusive control of the defendant. Upon delivery the
consignment was found partially and severely damaged resulting
in loss of 48 units. The defendant is therefore liable to pay the
plaintiff no. 1 an amount of Rs. 11,16,472/-. It is also argued that
even though actual loss has been caused to the plaintiff no. 2, the
amount is liable to be recovered by plaintiff no. 1. Plaintiff no. 2
was insured by plaintiff no. 1 and plaintiff no. 2 has executed
subrogation agreement with the plaintiff no. 1. Plaintiff no. 1
steps into the shoes of the insured to recover the loss from the
defendant.
On the other hand Ld. Counsel for the defendant has
argued that there was no privity of contract between plaintiff no.
1 and the defendant. Plaintiff no. 2 never appeared before this
CS (Comm.) No. 821/2024 -16-
court to prove that consignment was damaged due to sole
negligence of the defendant. The surveyor never appeared to
prove the survey report and thus no reliance can be placed on the
same. Document Ex- PW1/H and Ex- PW1/G are irreconcilable
and contrary to the claim made in the plaint.
19. Firstly, I will deal with the contention of the defendant,
whether plaintiff no. 1 could have filed the present suit on behalf
of the plaintiff no. 2. Plaintiff no. 1 has filed marine cargo sales
turn over policy assuring plaintiff no. 2 of damages and losses
caused during transportation of cargo. This document is marked
as MARK-A. Mark-A is digitally signed by Sh. Pushpendra
Pratap Singh on behalf of plaintiff no. 1. On 15.02.2025 PW-1
led additional evidence and placed on record certificate under
section 63 of BSA to prove insurance policy, extract of board
meeting and power of attorney of the managing director. Plaintiff
no. 1 has filed certificate under section 63 of BSA after marking
the document, the same is liable to be reconsidered. The Hon’ble
High Court of Delhi in Ram Kishan vs. Emaar MGF
Construction Pvt. Ltd (2024 SCC OnLine Del 4443) has
observed as under:-
17. In view of the settled law, the certificate under Section
65B IEA which as terms of general procedure should have
been filed by the petitioner along with the Statement of
Accounts at the time of filing of the suit. However, the
non-filing of the certificate under Section 65B IEA at the
relevant stage is a curable defect which could be removedCS (Comm.) No. 821/2024 -17-
by allowing to place the said certificate subsequently on
record.
Needless to say, the filing of the certificate under Section
65B IEA is a matter of procedure and by not allowing the
same to be taken on record amounts to taking a hyper
technical view which is against the settled preposition of
law as cited above. Accordingly, the impugned order dated
26.07.2018 is set aside.
(emphasis supplied)
The Hon’ble Supreme Court in Arun Panditrao Khotkor vs
Kailash Kushanrao Gorantyal and Ors. ([2020] 7 S.C.R. 180 has
observed as under:-
57. Subject to the caveat laid down in paragraphs 50 and
54 above, the law laid down by these two High Courts has
our concurrence. So long as the hearing in a trial is not yet
over, the requisite certificate can be directed to be
produced by the learned Judge at any stage, so that
information contained in electronic record form can then
be admitted, and relied upon in evidence.
Thus, plaintiff no. 1 is able to prove marine policy
document MARK-A. PW-1, Sh. Tanveer Ahmed authorised
representative of plaintiff no. 1 proved power of attorney of
authorised representative Ex. PW1/P dated 19.06.2025. Ex.
PW1/P which has been executed on judicial stamp paper and
CS (Comm.) No. 821/2024 -18-
bears the public notary stamp. As per this agreement managing
director of plaintiff no. 1 company appointed PW-1 as authorised
representative to do all acts on behalf of plaintiff no. 1. Clause 1,
3, 4, and 12 of this agreement states as under:-
“1. To appear for and prosecute and defend all actions and
proceedings, to sign and verify all matters in judicial
proceedings.
3. To sign, verify and file a complaint, claim, affidavit, petition,
documents, written, or an application for amendment thereof.
4. To give evidence and produce documents.
12. Generally, to do all other lawful acts necessary for the
conduct of the said case.” as per this agreement.”
Bare reading of the above mentioned clauses show that
PW-1 has the authority to pursue the present suit. Plaintiff no. 1
has placed reliance on Union Bank of India versus Naresh Kumar
and others (AIR 1997 SUPREME COURT 3) passed by Hon’ble
Supreme Court where observations have been given in respect of
suit filed on behalf of corporation. Relevant paragraph of this
judgment is as under :-
It cannot be disputed that a company like the appellant can sue
and be sued in its own name. Under Order 6 Rule 14 of the
Code of Civil Procedure a pleading is required to be signed by
the party and its pleader, if any. As a company is a juristic
entity it is obvious that some person has to sign the pleadings
on behalf of the company. Order 29 Rule 1 of the Code of CivilCS (Comm.) No. 821/2024 -19-
Procedure, therefore, provides that in a suit by against a
corporation the Secretary or any Director or other Principal
officer of the corporation who is able to depose to the facts of
the case might sign and verify on behalf of the company.
Reading Order 6 Rule 14 together with Order 29 Rule 1 of the
Code of Civil Procedure it would appear that even in the
absence of any formal letter of authority or power of attorney
having been executed a person referred to in Rule 1 of Order 29
can, by virtue of the office which he holds, sign and verify the
pleadings on behalf of the corporation. In addition thereto and
de hors Order 29 Rule 1 of the Code of Civil Procedure, as a
company is a juristic entity, it can duly authorise any person to
sign the plaint or the written statement on its behalf and this
would be regarded as sufficient compliance with the provisions
of Order 6 Rule 14 of the Code of Civil Procedure. A person
may be expressly authorised to sign the pleadings on behalf of
the company, for example by the Board of Directors passing a
resolution to that effect or by a power of attorney being
executed in favour of any individual. In absence thereof and in
cases where pleadings have been signed by one of it’s officers a
Corporation can ratify the said action of it’s officer in signing
the pleadings. Such ratification can be express or implied. The
Court can, on the basis of the evidence on record, and after
taking all the circumstances of the case, specially with regard to
the conduct of the trial, come to the conclusion that the
corporation had ratified the act of signing of the pleading by it’s
officer.
From the reading of the above judgment, it is clear that
even in absence of resolution passed by board of directors or
power of attorney, the court has the power to examine whether
the pleadings have been signed by an officer on behalf of
Corporation on the basis of evidence. On the basis of Ex. PW1/P,CS (Comm.) No. 821/2024 -20-
it can be concluded that PW-1 is duly authorised to pursue the
present matter on behalf of plaintiff no. 1.
20. It is pertinent to note Section 79 of The Marine Insurance
Act, 1963 which deals with the right of subrogation of the
insurer. In simple terms, it explains what rights the insurer gets
after paying the insured for a loss. It states that once the insurer
has paid for a total loss (or a particular loss, to the extent paid),
the insurer steps into the shoes of the insured and can exercise all
rights and remedies that the insured had against third parties
responsible for the loss. Section 79 of The Marine Insurance Act,
1963 states as under :-
79. Right of subrogation.–(1) Where the insurer pays for a
total loss, either of the whole, or in the case of goods of any
apportionable part, of the subject-matter insured, he thereupon
becomes entitled to take over the interest of the assured in
whatever may remain of the subject-matter so paid for, and he
is thereby subrogated to all the rights and remedies of the
assured in and in respect of that subject-matter as from the time
of the casualty causing the loss.
(2) Subject to the foregoing provisions, where the insurer pays
for a partial loss, he acquires no title to the subject-matter
insured, or such part of it as may remain, but he is thereupon
subrogated to all rights and remedies of the assured in and in
respect of the subject-matter insured as from the time of the
casualty causing the loss, in so far as the assured has been
indemnified, according to this Act, by such payment for the
loss.
CS (Comm.) No. 821/2024 -21-
MARK-A shows that the policy bearing no.
ST20002968000102 is mentioned in agreement of subrogation
cum special power of attorney Ex. PW1/B. This agreement has
been executed between plaintiff no. 2 and plaintiff no 1.
Whereby, plaintiff no. 2 had taken marine insurance policy from
plaintiff no 1 for a period of 1 year starting from 01/05/2021 till
30/04/2021 for a total cover of Rs. 133,008,004,037/- and in
view loss caused on 15/02/2021 plaintiff no. 1 compensated
plaintiff with Rs. 11,16,472/- vide discharge voucher Ex. PW1/K
dated 20.07.2021 as full and final settlement. Clause 4 of this
subrogation agreement states that plaintiff no. 2 subrogates
plaintiff no.1 with the same rights, title, interests and remedies as
that of plaintiff no. 1. Clause 4 of this agreement is as under :-
4. That the Subrogor hereby subrogates to the Subrogee, the
same rights, title, interests and remedies as the Subrogor has in
consequence of or arising from loss/ damage to the aforesaid
subject matter, and the Subrogor further hereby grants to the
Subrogee full power and authority to take and use all lawful
ways and means to recover the said loss/ damage from the
aforesaid Service Provider or any other person representing the
Service Provider.
(Emphasis Supplied)
This document is duly signed and bears the stamp of
plaintiff no. 1 and 2. This document is duly executed on e-stamp
paper and stamped by notary public on each page.
CS (Comm.) No. 821/2024 -22-
21. Plaintiff no. 1 has placed reliance on National Insurance
Co. Ltd and ANR vs. Mukesh Tempo Service [2010:DHC:5647]
passed by Hon’ble Delhi High Court wherein the consignor was
not examined still the suit was decreed. I have carefully read this
judgement. Hon’ble High Court framed issue ” (ii) Whether the
purported subrogation by the plaintiff no. 2 in favour of plaintiff
no. 1 is a valid and legally enforceable subrogation ? (OPP) “.
This issue has been decided in paragraphs 12 – 20 of the
judgment. Relevant portion of this judgment is reproduced as
under :-
12. Issues No.2 and 5
These issues are inter-connected and can be conveniently decided
together. “Exhibits PW-1/6 and PW- 1/7” are the Letters of
Subrogation purporting to be executed by plaintiff No.2, Calcom
Electronics Ltd. in favour of plaintiff No.1 National Insurance
Company Ltd. Vide these documents, plaintiff No.2, on receipt of
Rs.12,50,000/- from plaintiff No.1 in respect of loss/damage to it
under Policy No.420602/175152/31.03.98 assigned, transferred and
abandoned all its rights, title and interest in respect of the above
mentioned policy. It also granted full power to plaintiff No.1 to use
all lawful ways and means to recover the damages. Plaintiff No.1
was also authorized to sue in the name of plaintiff No.2 in any action
or proceedings that it might bring in its own name or in the name of
plaintiff No.2 in relation to the matter assigned, transferred and
abandoned under these documents. It also agreed that any money
collected from any person shall be the property of plaintiff No.1 and
if the same is received by plaintiff No.2, it will be made over to
plaintiff No.1. These documents have been proved by PW-1, Shri
A.K. Goel, Assistant Manager of plaintiff No.1. The authenticity of
these documents which have otherwise been attested by a Notary
Public in New Delhi has been assailed by the defendant on theCS (Comm.) No. 821/2024 -23-
ground that the policy number mentioned in these documents is
different from the policy number mentioned in the receipt „Exhibit
PW-1/11‟ and also on the ground that according to PW-1 the Letter
of Subrogation was executed in Rohtak, whereas they have been
attested at New Delhi. I, however, find no merit in the contention.
PW-1 did not have any personal knowledge as to the place where
these documents were executed. He stated that he presumed that it
must have been executed in the office of the plaintiff-Company in
Rohtak, from where the policy had been taken. However, this
presumption on the part of PW-1 cannot be preferred to the
documents themselves. Plaintiff No.2 is a Company based in Delhi.
The stamp papers on which the documents have been prepared were
purchased from a stamp vendor in Delhi, as is evident from the
stamp of the stamp vendor on the back side of the documents. The
documents have been attested by a witness Mr. A.K. Dixit, who has
given his address as B-23, Wazirpur Industrial Area, Delhi. They
have been attested by a Notary Public at New Delhi. There is no
indication in the documents that they were executed at Rohtak,
though they are addressed to Rohtak Branch of National Insurance
Company Ltd. Hence, there is no merit in the contention that the
documents were executed at Rohtak and attested at New Delhi.
Exhibits PW-1/8 and PW-1/9‟ are the other two Letters of
Subrogation purporting to be executed by plaintiff No.2 in favour of
plaintiff No.1 in respect of Policy No.420602/21/99/96/00020/11-06-
96. These documents also have been attested by a Notary Public at
New Delhi. They also have been signed by Mr. A.K. Dixit who has
signed `Exhibit PW-1/6 and PW-1/7‟ as a witness. The stamp paper
for these documents have also been purchased from a stamp vendor
in Delhi as is evident from the stamp of the stamp vendor on the
back side of these documents.
As regards the alleged discrepancy in the policy number, a bare
perusal of the receipt `Exhibit PW-1/11′ would show that the number
420602/21/99/0005/98 mentioned in this document is claim number
and not the policy number. Therefore, there is no contradiction in the
CS (Comm.) No. 821/2024 -24-
receipt and the Letters of Subrogation as regards the number of the
policy to which these documents pertain.
13. ……..
14………
15. Since the Power of Attorney Ex. PW-1/10, purporting to be
executed by plaintiff No. 2 in favour of plaintiff No. 1 has been
attested by a Public Notary, there is a statutory presumption under
Section 85 of Evidence Act that the Power of Attorney was executed
by the person by whom it purports to have been executed and the
person who executed the power of attorney was fully competent in
this regard. In Jugraj Singh and Anr. Vs. Jaswant Singh and Ors.,
AIR 1971 SC 761, the Power of Attorney attested by a Public Notary
was disputed on the ground that it did not show on its face that the
Notary had satisfied himself about the identity of the executant.
Supreme Court held that there was a presumption of regularity of
official acts and that the Notary must have satisfied himself in the
discharge of his duties that the person who was executing it was the
proper person. In Rajesh Wadhwa vs. Sushma Govil, AIR 1989,
Delhi 144, it was contended before this Court that till it is proved
that the person who signed the said power of attorney was duly
appointed attorney, the court cannot draw a presumption under
Section 57 and 85 of the Evidence Act. Repelling the contention, it
was held by this Court that the very purpose of drawing presumption
under Sections 57 and 85 of the Evidence Act would be nullified if
proof is to be had from the foreign country whether a particular
person who had attested the document as a Notary Public of that
country is in fact a duly appointed Notary or not. When a seal of the
Notary is put on the document, Section 57 of the Evidence Act
comes into play and a presumption can be raised regarding the
genuineness of the seal of the said Notary, meaning thereby that the
said document is presumed to have been attested by a competent
Notary of that country.
……………………………………………………………
CS (Comm.) No. 821/2024 -25-
……………………………………………………………
……………………Hence, in this case also the Court is required
to draw the requisite statutory presumption that the power of
attorney Ex. PW-1/10 was executed by plaintiff No.2 in favour of
plaintiff No.1 and that the person who executed the Power of
Attorney on behalf of plaintiff No. 2 was duly authorized in this
behalf.
22. From the perusal of marine policy MARK-A, subrogation
agreement Ex. PW1/B, power of attorney Ex. PW1/P and
discharge voucher Ex. PW1/K, it is clear that plaintiff no. 1 has
been subrogated by plaintiff no. 2 to act on its behalf to recover
losses from the defendant and plaintiff no. 1 has discharged its
liability towards plaintiff no. 2 caused by the defendant to the
tune of Rs. 11,16,472/-. Thus, this issue is decided in favour of
the plaintiffs and against the defendant.
23. Secondly, I will examine whether the defendant is liable
for the loss caused to plaintiff no. 2. Ld. Counsel for the
defendant has denied any liability of defendant against plaintiff
no. 2 and contended that the defendant has performed her part of
contract towards plaintiff no. 2 satisfactorily. On the other hand,
the plaintiff has argued that the cargo consignment was damaged
due to the defendant’s negligence.
As such, business relationship between plaintiff no. 2 and
the defendant is not denied. Defendant has also admitted that
plaintiff no. 2 sent the consignment through the defendant to
Orissa. It is also admitted in paragraph number 7 of the written
CS (Comm.) No. 821/2024 -26-
statement that partial loss had been caused to the consignment
however, it is denied that it was due to the negligence of the
defendant. In paragraph no. 4, it is stated that on the invoice
itself, it is mentioned that consignment is being carried at
owner’s risk, and the part of insurance was kept vacant. DW-1 in
cross examination admitted that he is not aware if any document
has been filed to show that goods were sent in intact condition.
This witness denied any obligation on the defendant to deliver
the goods in intact condition.
24. I have perused consignment letter dated 28.01.2021
PW1/D and in this document it is stated in capital letters “AT
OWNER’S RISK”. DW-1 has also identified this consignment
letter during cross examination. Under the caution clause of this
invoice it is mentioned as under :-
1. Transport Co. is not responsible for leakage,
breakage, demurrage, fire and riots.
2. Consignee and consignor responsible for illegal
goods and octroi.
3. This G.C. Note issued subject to terms and
conditions printed overleaf.
25. Ld. Counsel for the plaintiff has rebutted this contention of
the defendant and argued that there was no special contract
between plaintiff no. 2 and the defendant to escape the
responsibility for leakage, breakage, demurrage, fire and riots.
Reliance is placed on Nath Bros Exim International Ltd. Vs. Best
CS (Comm.) No. 821/2024 -27-
Roadways (2000 AIR SCW 2116) passed by Hon’ble Supreme
Court. Relevant paragraph of this judgement is as under :-
9. Plaintiffs, in suits for loss, damage, or non-delivery, not required
to prove negligence or criminal act.- In any suit brought against a
common carrier for the loss, damage or non-delivery of goods
(including containers, pallets or similar article of transport used to
consolidate goods) entrusted to him for carriage, it shall not be
necessary for the plaintiff to prove that such loss, damage or non-
delivery was owing to the negligence or criminal act of the carrier,
his servants, or agents.” Section 4 contemplates the rates fixed by the
carrier for carrying the property entrusted to it to the place indicated
by the consignor. The Proviso to this Section contemplates a still
higher rate than the ordinary rate of charge for carrying the goods.
The only requirement is that the carrier should have exhibited at the
place of his business a notice indicating the higher rate of charge
required for carrying the goods. Section 5 provides that where the
property entrusted to the carrier is lost or damaged, then the owner
thereof would be entitled not only to recover the damages for the
loss or damage to the property, but he will also be entitled to recover
any amount which might have been paid to the carrier as a
consideration for carrying the goods. Section 6 speaks of unlimited
liability of the common carrier in respect of goods, not being of the
description contained in the Schedule to the Act. It is provided that
the liability shall not be deemed to be limited or affected by any
public notice. Section 8 provides in specific terms that where any
property is entrusted to any carrier for being carried to the
destination indicated by the owner thereof, the carrier shall be liable
for loss or damage caused by neglect or fraud of the carrier or its
agent. Section 9 provides that in a suit for recovery of damages for
loss or non-delivery of the goods, the burden of proof would not be
on the plaintiff to establish that loss or damage or non-delivery was
caused owing to the negligence or criminal act of the carrier, his
servants or agents. Learned counsel for the appellant has contended
that under Section 151 of the Indian Contract Act, the carrier as a
bailee is bound to take as much care of the goods bailed to him as a
man of ordinary prudence would, under similar circumstances, take
CS (Comm.) No. 821/2024 -28-
of his own goods. It is contended that if that amount of care, which a
person would have taken of his own goods, is not taken by the
carrier, it would amount to deficiency in service and the carrier
would be liable in damages to the owner for the goods bailed to
him.
: “A common carrier is not a mere bailee of goods entrusted to him.
He is an insurer of goods. He is answerable for the loss of goods
even when such loss is caused not by either negligence or want of
care on his part, act of God and of King`s enemies excepted. This
arises because responsibility attached to the public nature of the
business carried on by him. He holds out as a person who has the
expertise and the facilities to conduct the business of transport;
consequently he is treated as an insurer of the goods and is
answerable for its loss. This concept as to the liability of a common
carrier has been applied in India uniformly. The rule of the Roman
law as to the liability of a carrier is different. It does not conceive of
an absolute liability as in the English Common Law and the rule of
the Roman Law has been adopted by many States in the continent.
The extent of liability of a bailee under Ss. 151 and 152 of theIndian
Contract Act, 1872, is different from the extent of liability of a
common carrier. A bailee is only bound to take proper care of the
goods and for loss beyond his control he is not answerable. But the
provisions of the Indian Contract Act do not govern the liability of a
common carrier nor do they override the provisions of the Carriers
Act, 1865. This question was considered by the Privy Council in
(1891) ILR 18 Cal.620 (PC) and it was held that notwithstanding the
provisions of the Indian Contract Act, the liability of a common
carrier continues to be absolute subject to any special contract
entered into by him.” This decision was followed by the Kerala High
Court in Kerala Transport Co. v. Kunnath Textiles 1983 Kerala Law
Times
11. He held that that clause should have its full effect whereas if “at
charterers’ risk” had included an exception of negligence, it might
not have done so. That judgment has been followed since 1932, for
CS (Comm.) No. 821/2024 -29-
example in The Stranna (1937) 57 Ll.L.Rep. 231; (1937) P.130 and
East & West Steamship Co. v. Hossain Brothers, (1968) 2 Lloyd`s
Rep. 145 (Supreme Court of Pakistan) and it has not, so far as I am
aware, been dissented from.” In Mitchell v. Lanc. & Y.R., 44 LJQB
107 = LR 10 QB 256, it was held that “OWNER`S RISK” only
exempts the carrier from the ordinary risks of the transit and does
not cover the carrier`s negligence or misconduct. So also, in Lewis
vs. The Great Western Railway Company 3 Queen`s Bench 195, the
words “OWNER`S RISK”, were held to mean, “at the risk of the
owner, minus the liability of the carrier for the misconduct of
himself or servants.” Thus the expression “at owner`s risk” does not
exempt a carrier from his own negligence or the negligence of his
servants or agents. We may now consider the facts of this case. The
Consignment Note No. 52330 dated 11th March, 1994, through
which the goods were booked with the respondent says “AT
OWNER`S RISK”. In the column meant for insurance, again, the
alphabets “OR” are mentioned, which obviously mean “OWNER’S
RISK”.
26. This principle has been reiterated in the case of Rotla India
Ltd. Vs. ELBEE Services Ltd. AIR 2001 Delhi 353, the question
of the liability of a common carrier was considered and it was
observed that the common carrier has been placed on the same
pedestal as the insurer. In any event the common carrier is liable
to pay the loss or the damage caused to the goods accepted as
carrier. The only defense available to the common carrier is that
the loss or damage was not caused due to its negligence which
even otherwise is assumed.
Thus, from the above it can be concluded that the
defendant who is the carrier, is assumed to be the insurer of the
goods and any liability cannot be fastened on shipper i.e;
plaintiff no. 2 in respect for the goods damaged during
transportation.
CS (Comm.) No. 821/2024 -30-
27. Further, the defendant has argued that PW1/G and PW1/H
are inconsistent documents as claim notice dated 06/05/2021
(PW1/G) has been issued prior to damage certificate dated
28/05/2022 (PW1/H). It is argued that the damage certificate is
false and fabricated and not issued by the defendant. I have
carefully perused both the documents. Claim notice dated
06/05/2021 clearly states “please return a signed copy of this
notice to us, along with your company seal, acknowledging its
receipt or reply to the same citing this letter “. Subsequent to this
damage certificate duly signed by the proprietor of the defendant
has been given. Thus, no inconsistency has been found in the
timeline of issuance of these documents. It is pertinent to note
that the signature of the defendant Sh. Kavita Devi on the
damage certificate is the same as the signature present of the
written statement filed by her. Defendant has not come forward
to depose in the present matter to disapprove her signature. Even
DW-1 in cross-examination stated that he can not identify
signatures of the defendant. It appears that the defendant has
deliberately not come forward in the witness box to depose in the
present matter.
From the above it can be concluded that damage was
caused to the consignment during transportation by the defendant
to the tune of Rs. 10,64,000/- as per the damage certificate Ex.
PW1/4.
28. Now, I will assess the quantum of damage to the
consignment. To prove this plaintiff no. 1 has placed reliance on
CS (Comm.) No. 821/2024 -31-
the report of the surveyor dated 20/02/2021 Ex. PW1/J. The
surveyor has not come to depose in respect of this document. It is
argued by plaintiff no. 1 that it is not required to examine the
surveyor to prove the surveyor’s report. Reliance is placed on
India Assurance Co. Ltd. And ANR vs State of A.P. Ors passed
by Telangana High Court. I have perused this judgment with
utmost regard however this judgment is not applicable to facts in
hand and the surveyor should have come to depose in the witness
box to clarify the same. It is pertinent to note clause 23. of this
document which states as under :-
23. May be due to rough handling during loading at the
consignor end or due to jerk / jolt during transit, the PVC
jar got rupture and leaking the liquid parts. Also part 2 nos.
Product tag/ striker got PVC jars were.
Defendant has herself given damage certificate Ex.
PW-1/H. She did not come in the witness box to depose. As
observed earlier, signatures of the defendant on the written
statement resembles with the signatures on Ex. PW-1/H. I am of
the view that plaintiff no. 1 is able to prove the damages to the
tune of Rs. 10,64,000/-.
28. Lastly, the defendant has taken defence that she has
discharged her liability in respect of plaintiffs no. 2 satisfactorily
and there is no liability on her. To prove this contention DW-1
Sh. Narendra Kumar Mewa appeared on behalf of defendant.
This witness filed a copy of the identity card DW1/1. However,
no copy of the authorisation letter was placed on record on behalf
of the defendant authorising DW-1 to pursue the present matter.
CS (Comm.) No. 821/2024 -32-
In cross-examination this witness admitted that he has not placed
on record any document except his ID card. He further stated that
he has been instructed by the proprietor of the defendant’s firm to
depose in this matter. He further states that he does not know the
name of the proprietor of the defendant’s firm. Thus, DW-1 had
no power to depose in the present matter in absence of any valid
power of attorney / authorization letter and he could prove
assertions of the written statement.
29. I am of the view that plaintiff no. 1 is partly able to prove
this issue to an admitted amount of Rs. 10,64,000/-. Thus, this
issue is accordingly decided in favour of the plaintiffs and against
the defendant.
30. Issue No. 3- Whether the plaintiff is entitled to interest on
the amount of Rs. 11,16,472/-. If ye, for what rate and for what
period ? (OPP)
The plaintiff has claimed interest @ 18% per annum from
the defendant. Ld. Counsel for plaintiff has placed reliance on
judgment titled as “The United India Insurance Co. Ltd. Vs. M/s.
M.K.J. Corporation” [1996] Supp. 95) SCR 20 passed by
Hon’ble Supreme Court of India, wherein, it is held that ” That
next question is : what rate of interest the insured-respondent is
entitled to get ? In common parlance, when the insured-
respondent is deprived of right to enjoy his money or invest the
money in business, necessarily the loss has to be compensated by
way of payment of interest by the insurance company. We are
informed that as per the directions of the Government of India
the appellant-insurance company has no option but to invest the
CS (Comm.) No. 821/2024 -33-
money in the securities specified by the Government of India
under which the insurance company is securing interest on
investment at the rate of 11.3% per annum. Under these
circumstances, the appellant-insurance company is liable to pay
interest at 12% per annum from January 1, 1991 till date of
payment.” Reliance can be placed in this regard on the judgment
of Central Bank of India Vs Ravindra & Ors
MANU/SC/0663/2001 passed by Hon’ble Supreme Court of
India. In this judgment it is held that according to stroud’s
Judicial dictionary of Words and Phrases interest means, inter
alia, compensation paid by the borrower to the lender for
deprivation of the use of his money. In Secretary, Irrigation
Department, Government of Orissa & Ors Vs G. C. Roy Manu/
SC/0297/1992 (1992) 2 SCC 508, it is held that the constitution
bench opined that a person deprived of the use of money to
which he is legitimately entitled has a right to be compensated
for the deprivation, call it by any name. It may be called interest,
compensation or damages. This is the principles of Section 34
CPC.
In this judgment, Judgment of Dr. shamlal Narula Vs
CIT Punjab MANU/ SC/0109/1964 (53) was also relied upon
wherein it is held that interest is paid for the deprivation of the
use of the money. In this judgment it is also held that in whatever
category “interest in a particular case may be put, it is a
consideration paid either for the use of money or for forbearance
in demanding it, after it has fallen due, and thus, it is charge for
the use of forbearance of money. In this sense, it is a
compensation allowed by law or fixed by parties, or permitted by
customs or usage, for use of money, belonging to another, or of
CS (Comm.) No. 821/2024 -34-
the delay in paying money after it has become payable.
Reliance can also be placed on the judgment of Aditya Mass
Communication (P) Ltd Vs APSRTC MANU/SC/0759/2003
wherein Hon’ble Supreme Court granted interest @ 12% p.a.
Reliance can also be placed on the judgment of ” M/s IHT
Network Limited Vs. Sachin Bhardwaj” in RFA No. 835/2016 &
CM Appl.14617/2020 wherein the Hon’ble High Court of Delhi
has granted interest @12% per annum.
I am of the view that the interest claimed by the plaintiff is
very excessive and plaintiff is entitled to interest on the amount
of Rs. 10,64,000/- @ 12% per annum which is reasonable and
usually prevailing market rate of interest from the date of filing
of suit till realization.
31. RELIEF:
In view of my above discussions, the suit of the plaintiffs
is partly decreed and a decree of Rs. 10,64,000/- is passed in
favour of the plaintiff no. 1 and against the defendant. The
plaintiff no. 1 is also entitled to interest @ 12% per annum on the
amount of Rs. 10,64,000/- from the date of filing of suit till
realization. Plaintiff no. 1 is also entitled to the cost of the suit.
Decree sheet be prepared accordingly. File be consigned to
record room, after necessary compliance.
Announced in the (NARESH KUMAR MALHOTRA)
open court on 05.02.2026 District Judge, Comm. Court-06
West, Tis Hazari Courts
Digitally signed Extension Block, Delhi/05.02.2026
by NARESH
NARESH KUMAR
KUMAR MALHOTRA
MALHOTRA Date:
2026.02.05
16:26:00 +0530CS (Comm.) No. 821/2024 -35-