Delhi District Court
Shailsuta Logistrics Pvt Ltd vs Emami Ltd on 17 July, 2025
IN THE COURT OF MS. RAVINDER BEDI
DISTRICT JUDGE (COMM.)-12, (CENTRAL),
TIS HAZARI COURTS, DELHI.
In the matter of:
CS (COMM) No. 123/2022
M/s Shailsuta Logistic Pvt Ltd.
having its Corporate Office at:
3/23 B, EMCA House, Ansari Road,
Daryaganj, Delhi-110002 ........Plaintiff
Versus
M/s Emami Ltd
through its Directors
having its registered office at:
687,Anandapur E.M Bypass,
Kolkata-700107 ......Defendant
Date of Institution of Suit : 12.01.2022
Date of Final Arguments : 04.07.2025
Date of Judgment : 17.07.2025
Plaintiff represented by Col. Mr. Kartik Bhardwaj and Col. Mr Raghu
Vasishth
Defendant represented by Col. Mr. Vinayak Thakur
Digitally signed
by RAVINDER
RAVINDER BEDI
BEDI Date:
2025.07.17
17:21:09 +0530
____________________________________________________________________________
CS (COMM) No. 123/2022 Page no. 1/ 29
M/s Shailsuta Logistic Pvt Ltd v M/s Emami Ltd
JUDGMENT
1. Present is a suit instituted by Plaintiff Company seeking
recovery of Rs. 8,48,485/- alongwith interest @ 18% per annum
pendente-lite and future against the Defendant.
2. It is necessary to take note of the material facts as
mentioned in the Plaint.
2.1 Plaintiff is a company registered under the Companies Act,
1956 having its office at Ansari Road, Daryaganj, Delhi. Plaintiff is into
the business of logistics and carrier as per the specific demands of its
customers. Plaintiff is a pioneer in its field and enjoys immense
reputation and goodwill. Defendant is a registered company engaged in
the business of personal and health care products.
2.2 Plaintiff’s case is that Defendant approached the Plaintiff
and expressed its interest in hiring its services for transportation of
various healthcare and personal goods to different locations in India.
Defendant assured the Plaintiff that the payments would be made on time
for such services. Based upon the representations, Plaintiff started
transporting several consignments of Defendant throughout India.
2.3. On 14.07.2018, as instructed, Plaintiff transported the
Digitally signed by
RAVINDER RAVINDER BEDI
BEDI Date: 2025.07.17
17:21:16 +0530
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M/s Shailsuta Logistic Pvt Ltd v M/s Emami Ltd
goods of Plaintiff (which were ‘drugs and medicines’) from Ambala to
Patna. Plaintiff hired the services of a public carrier, vehicle no. HR 46C
3807 to carry the said consignment from Ambala to Patna and issued a
Consignment Note dated 14.07.2018 to the Defendant with description of
the goods therein alongwith the desired destination.
2.4 The driver of the said vehicle, however without any
knowledge of Plaintiff was carrying alcohol alongwith goods of
Defendant (as prohibited under Bihar Excise Prohibition Act, 2016).
Plaintiff by an e-mail dated 21.07.2018 apprised the Defendant that the
vehicle had been seized by police officials at PS Nadi, Patna (Bihar) and
it would take considerable time to release the said vehicle. Plaintiff filed
a Writ Petition no. 1981/2018 titled as Shailsuta Logistics Pvt Ltd v The
State of Bihar& ors before Hon’ble High Court of Patna for release of
vehicle. The vehicle was released to Plaintiff by Order dated 21.08.2018
and could be received by Plaintiff only on 12.09.2018.
2.5 Plaintiff was surprised to know that there was a shortage of
goods in vehicle and besides, the goods were also damaged. This fact
was brought to the knowledge of the Defendant, which by its
communication dated 01.11.2018 enclosed a claim bill of Rs. 7,46,667/-
towards the value of shortage/damage to the goods. Defendant also
preferred an Insurance claim of Rs. 7,46,667/- with its insurer, but the
Insurance Company rejected the claims of Defendant. Digitally signed
RAVINDER by RAVINDER
BEDI
BEDI Date: 2025.07.17
17:21:22 +0530
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M/s Shailsuta Logistic Pvt Ltd v M/s Emami Ltd
2.6 On rejection of the claims, Plaintiff came to know that
Defendant had illegally and without any justification adjusted the amount
of Rs. 8,48,485/- from the running account of Plaintiff on account of
alleged ‘damage and shortage’. The instant suit of Plaintiff is for
reclaiming this amount. Plaintiff sent reminders to the Defendant to
recover back the adjusted amount of Rs. 8,48,485/- but to no avail.
Plaintiff was constrained to issue a Legal Notice dated 22.11.2019 to the
Defendant to recover such dues . Plaint avers that said Notice was replied
by Defendant on 6.12.2019 wherein Defendant took false and frivolous
defence.
2.7 The Defendant in furtherance of its malafide intention
withheld the payment of Plaintiff, thereby causing wrongful loss to the
Plaintiff, while incurring wrongful gain onto themselves. Plaint avers that
the Plaintiff is also entitled for an interest @12% p.a. from the date when
the payment became due.
2.8 Plaintiff approached Pre-Institution Mediation Process as
per Section 12 A of The Commercial Courts Act (hereinafter as ” The CC
Act“) before DLSA, Central, Tis Hazari. The Defendant did not appear
despite service of Notice upon them. The same resulted into the issuance
of Non-Starter Report. Plaint avers that subject matter of the suit is a
“Commercial Dispute”, as provided under Section2(1)(c)(i) of The
Digitally signed by
RAVINDER RAVINDER BEDI
BEDI Date: 2025.07.17
17:21:28 +0530
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M/s Shailsuta Logistic Pvt Ltd v M/s Emami Ltd
Commercial Courts Act, 2015. Plaintiff has prayed for recovery of an
amount of Rs. 8,48,485- against Defendant along-with interest pendente-
lite and future @ 18% per annum from the date of filing suit till its
realization.
3. Summons of suit were issued upon the Defendant. The
Defendant appeared and contested the suit by filing his written Statement
wherein it took certain preliminary objections inter-alia :
3.1 The suit of the Plaintiff deserved dismissal as Plaintiff was
guilty of Supressio vari and Suggestio falsi. Plaintiff deliberately
concealed the material fact i.e. the existence of the Transportation
Contract dated 01.01.2016 (hereinafter referred to as TC) executed
between parties. Both parties were bound by the terms and conditions of
the TC and as per which, Plaintiff was under an obligation to transport
the products of Defendant safely from Ambala to Patna, as per the
Consignment Note dated 14.07.2018 (hereinafter referred as CN) of
Plaintiff.
3.2 For recovery of its claims, Plaintiff relied only upon the CN
issued for transportation. Plaintiff malafidely suppressed the existence of
the TC dated 01.11.2016 between parties. The validity of the TC was for
a period of 36 months i.e. from 01.01.2016 till 31.12.2018 with a
provision for further extension, subject to mutual agreement. It was as
Digitally signed
RAVINDER by RAVINDER
BEDI
BEDI Date: 2025.07.17
17:21:35 +0530
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M/s Shailsuta Logistic Pvt Ltd v M/s Emami Ltd
per terms of the TC that the Defendant used to place orders on the
Plaintiff for outbound transportation of the finished products from pick
up points and destinations. Various clauses relevant for the purpose of the
subject matter are detailed in para no. 5 of the written statement. As per
the terms of TC, Plaintiff being a “Service Provider” was responsible for
the wrongful acts committed by the driver of the vehicle carrying goods.
As per Clause 6(d) and 12 of TC, it was Plaintiff’s liability to bear full
responsibility for any loss, damage or other consequences alongwith
liability to indemnify the Defendant and right to terminate the contract.
3.3 The terms and conditions of the TC were to supersede the
CN issued by the Plaintiff. The CN only showed that Plaintiff accepted
the work i.e. transportation of goods for successful and timely delivery.
Even if it is assumed that the said CN could define any rights, it clearly
mentioned ‘carriers are not responsible for leakage, breakage and
accident for lorry and fire’. The Defendant had recovered its loss from
Plaintiff as per Section 74 of The Indian Contract Act, 1872 as per terms
and conditions of the TC.
3.4. This Court had no territorial jurisdiction to entertain or try
the suit. Defendant’s office was situated in Kolkata and clause 17 of the
TC specifically mentioned that only the Courts in Kolkata would have
the exclusive jurisdiction over any civil dispute between parties. The
Digitally signed
RAVINDER by RAVINDER
BEDI
BEDI Date: 2025.07.17
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17:21:42 +0530
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cause of action if any, arose at Patna when the vehicle carrying the
Defendant’s goods was seized by Bihar police at Patna, while it was
traveling from Ambala to Patna and no cause of action arose within
jurisdiction of Central District, Delhi.
3.5 The suit was also not maintainable in view of the legal
principle of Nullus Commudum Capere Protect De Injuria Sua Propria
i.e no man can take advantage of his own wrong . Plaintiff by clever
drafting had created a cause of action against the Defendant. Plaintiff by
way of an e-mail dated 21.07.2018 informed the Defendant that vehicle
carrying Defendant’s goods from Ambala to Patna was seized by the
police at PS Fatuha (Nadi), Bihar on the ground that it was found loaded
with several cartons of liquor, which was in violation of the provisions
of Bihar Excise Prohibition Act, 2016. Plaintiff acknowledged that the
driver of vehicle had loaded upto 300 cartons of liquor in the said vehicle
and police had seized the vehicle. On the same date i.e. 21.07.2018,
Defendant by an e-mail replied to the Plaintiff that due to illegal
activities of Plaintiff’s truck driver, Defendant’s goods were seized and
also advised Plaintiff to take immediate steps to release the goods.
Plaintiff filed a Criminal Writ Jurisdiction case no. 1981 of 2018 titled as
Shailsuta Logistics Private Ltd v The State of Bihar & ors before the
Hon’ble High Court for release of vehicle. By order dated 21.08.2018,
the vehicle was released with certain directions and returned to the
Plaintiff on 12.09.2018 i.e. after 22 days of said order.
Digitally signed by
RAVINDER RAVINDER BEDI
BEDI Date: 2025.07.17
17:21:49 +0530
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3.6 Plaintiff vide an e-mail dated 05.10.2018 informed the
Defendant that there was a shortage/damage to the goods found in
vehicle, which as per the calculation of Defendant was upto Rs.
15,54,909.75/- (Rs. 8,36,610.25/- (shortage) and Rs. 7,16,299.50/-
(damage)). Defendant managed to make the damaged goods saleable and
reduced the claim value to Rs. 8,48,485/-. The claim of Defendant was
filed with its Insurer, but the Insurer sent an e-mail dated 01.11.2018 Ex.
DW1/8 to the Defendant thereby rejecting such claim.
3.7 Defendant by an e-mail dated 16.11.2018 informed the
Plaintiff about the rejection of the Insurance claims and further informed
that such loss of Rs. 8,48,485/- borne by Defendant had to be recovered
from the Plaintiff as per clause 12 (vi) of the TC. It was Plaintiff’s
responsibility to transport the goods to their destination and due to
wrongful acts on part of Plaintiff, the said losses were recoverable from
Plaintiff, as per the terms and conditions of TC. Defendant thus deducted
the amount of Rs. 8,48,485/- from the running account of Plaintiff, as per
terms of TC.
4. In the Replication, Plaintiff has reiterated its version in the
plaint while refuting the contentions of Defendant. By Order dated
Digitally signed
by RAVINDER
RAVINDER BEDI
BEDI Date: 2025.07.17
17:21:55 +0530
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M/s Shailsuta Logistic Pvt Ltd v M/s Emami Ltd
27.11.2024, the following issues were settled for adjudication :-
Issue no. 1: Whether this Court has no territorial
jurisdiction to try and entertain the present suit?
OPDIssue no. 2: Whether the parties were governed by
the Transportation Contract dated 01.01.2016 which
was valid only for the period of 36 months i.e.
between 01.01.2016 to 31.12.2018 with further
extentable only as per mutual agreement? OPDIssue no. 3: Whether the Plaintiff is entitled to the
recovery of the amount as prayed in the prayer
clause of the plaint? OPPIssue no. 4: Whether the Plaintiff is entitled to any
interest on the amount. If so, at what rate and from
what period? OPPIssue no 5: Relief.
5. Plaintiff in order to prove its case examined its AR Mr Dalip
Singh as PW-1. PW-1 tendered his evidence by way of affidavit as Ex.
PW1/A and proved the board of resolution dated 30.01.2023 as Ex.
PW-1/1; Consignment Note dated 14.07.2018 as Mark ‘A’; Ledger
account as Ex.PW-1/3; legal notice dated 22.11.2019 as Ex. PW-1/4 ;
Reply Notice of Defendant dated 26.12.2019 as Mark ‘B’; Non-starter
report dated 20.10.2020 as Ex. PW-1/6 and the Affidavit of Plaintiff
Digitally signed by
RAVINDER RAVINDER BEDI
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BEDI Date: 2025.07.17
17:22:01 +0530
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M/s Shailsuta Logistic Pvt Ltd v M/s Emami Ltd
under Order XI Rule 6(3) of The CC Act as Ex. PW-1/7.
6. Defendant in order to prove its case examined its
AR/Manager Sh Suman Pyne as DW-1. The DW1 tendered his evidence
by way of an affidavit as Ex. DW1/A. DW-1 proved the power of
attorney executed by the Defendant dated 23.07.2024 Mark ‘A’ ;
Transportation Contract dated 01.01.2016 executed between parties as
Ex. DW-1/2 ; Consignment Note dated 14.07.2018 as Mark ‘B’ , Email
dated 21.07.2018 sent by defendant to the plaintiff as Ex. DW-1/4 ; True
copy of the Email dated 21.07.2018 sent by plaintiff to the defendant as
Ex. DW-1/5 ; Order dated 21.08.2018 passed by the Hon’ble Patna High
Court in CrWJ case no. 1981 of 2018 as Mark ‘C’ ; Email dated
05.10.2018 as Ex. DW-1/7 ; Email dated 01.11.2018 as Ex. DW-1/8 and
an Email dated 16.11.2018 as Ex. DW-1/9.
7. I have heard final submissions as addressed by Ld. Counsel
for parties and perused the entire record meticulously. The written
synopsis of parties alongwith judicial precedents relied upon have also
been considered.
As per Section-101 of The Indian Evidence Act, plaintiff
must prove the existence of legal right in his favour. The onus is on the
Plaintiff to positively establish its case on the basis of material available.
Plaintiff cannot rely upon the weakness or absence of defence to
discharge this onus. Once the Plaintiff discharges that onus and makes
Digitally signed
RAVINDER by RAVINDER
BEDI
BEDI Date: 2025.07.17
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17:22:08 +0530
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out a case which entitles him to a relief, onus shifts upon the Defendant
to prove those circumstances, if any, which would disentitle the Plaintiff
to the same.
8. Order XVIII Rule 1 of CPC also recognizes the general rule
that the Plaintiff in a suit must prove his case. The Latin maxim says:
ei incumbit probatio qui dicit, non qui negat i.e the burden of proof is on
him, who asserts and not on him who denies. The same is in consonance
with sections 101 to 114 of Indian Evidence Act, 1872. Also as per
settled law, if the evidence is not led by the party, an adverse inference
may be drawn. Considering the principles as above and having looked
into the entire record, my issue-wise findings are herein below :
Issue no. 2: Whether the parties were governed by the
Transportation Contract dated 01.01.2016 which was valid
only for the period of 36 months i.e. between 01.01.2016 to
31.12.2018 with further extentable only as per mutual
agreement? OPD
9. Issue no.2 is taken up first. The onus to prove the same was
upon the Defendant. Defendant examined Sh Suman Pyne as DW-1 who
by way of an affidavit Ex. DW1/A deposed on the lines of averments
taken in the written statement. DW-1 stated that he was the AR and
Manager with Defendant company having its office at 687, Anandapur,
Digitally signed by
RAVINDER RAVINDER BEDI
BEDI Date: 2025.07.17
17:22:14 +0530
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EM Byepass, Kolkata. He stated that parties were bound by the terms
and conditions of the Transport Contract dated 01.01.2016 (TC) Ex.
DW1/2. He stated that the Plaintiff deliberately concealed the existence
of TC from Court. DW-1 in his cross-examination reiterated his stand
and to the suggestion of Counsel for Plaintiff that TC was a forged
document, DW-1 negated the same and stated that TC was bearing
signatures of ARs of parties. DW-1 stated that the goods belonging to the
Defendant were seized and deduction of the amounts was made only as
per the terms of the TC Ex. DW1/2.
10. Ld. Counsel for Defendant at the outset submits that suit of
Plaintiff was not maintainable being based on the suppression of material
facts. Ld. Counsel submits that Plaintiff concealed the TC Ex. DW1/2
between parties and suit deserves dismissal on this count alone. Ld.
Counsel submits that Plaintiff did not come up with anything in support
of its case and even the CN brought on record was a mere xerox copy
and loose document. Ld. Counsel argues that alleged plea of TC Ex.
DW1/2 being a forged document was never taken by Plaintiff in
pleadings. He argues that the TC bore signatures of Mr B.KSharma on
Plaintiff’s side and Mr B.K Sharma was duly authorized and acting under
the authority of Plaintiff during the relevant time. He submits that as per
Section 91 of the Evidence Act, when terms of TC were reduced in the
form of a document and proved under law, any other evidence could not
be allowed in proof of the same except the document itself.
Digitally signed by
RAVINDER RAVINDER BEDI
BEDI Date: 2025.07.17
____________________________________________________________________________ 17:22:21 +0530
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11. Ld. Counsel has further pointed to e-mails sent by said Mr
B.K Sharma, proved in evidence, which clearly suggest that he had been
acting under the Plaintiff’s authority, being its employee. Ld. Counsel
submits that e-mails and communication exchanged between parties
would suggest that DW-1 had specific knowledge of all events, which
transpired between parties, but Plaintiff did not examine Mr B.K Sharma
i.e. the best evidence available with them. He argues that once the onus
of existence of TC was discharged by Defendant, the onus to dispel the
same became even more pronounced upon Plaintiff, which it failed to do
so.
12. Ld. Counsel for Defendant argues that even otherwise,
Plaintiff failed to show any document governing the terms and conditions
or relationship between parties. He argues that the TC Ex. DW1/2 was
valid for a period of 36 months i.e. between 01.10.2016 to 31.12.2018
and cause of action accrued within this tenure. Ld. Counsel submits that
photocopy of CN Mark A was only showing the consignment’s
description and destination, while the terms of the TC Ex. DW1/2
contained in detail, the terms and conditions, which parties were bound to
the same. Ld. Counsel referred to the cross-examination of the PW-1,
where he did not utter anything as to how relationship of parties was
governed regarding the transactions.
Digitally signed by RAVINDER RAVINDER BEDI BEDI Date: 2025.07.17 17:22:27 +0530
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13 Per contra, Ld. Counsel for Plaintiff argued that the Plaintiff
had proved its case as the CN Mark A was issued to the Defendant and
the same governed conditions between parties alongwith jurisdiction of
Court specified therein. Ld. Counsel argued that the TC Ex. DW1/2 was
an illegal document as it did not have signatures of Plaintiff on all pages
besides it being an unstamped document. Ld. Counsel argued that the
money was deducted illegally from the running account of Plaintiff on
the premise of alleged terms of Ex. DW1/2 by the Defendant.
14. Having mulled over the record, I find that the TC Ex.
DW1/2 between parties has been proved by Defendant. The Clause 12
(vi) of the Ex DW1/2 provides for the recourse to Defendant to make
claims for any losses from the Plaintiff. The very basis of defence of
Defendant has been this Contract containing terms and conditions
between parties for a period of 36 months for outbound transportation of
finished products from pick up points and destinations as mentioned
thereunder. The TC bears the signatures of Mr B.K Sharma, an employee
of the Plaintiff and who is still working with the Plaintiff.
15 The contention of Plaintiff that Ex. DW1/2 was false or
forged came only at the stage of evidence. The same was not pleaded by
Plaintiff anywhere in pleadings. To the averment in the written statement
of the existence of Ex. DW1/2 between parties, the corresponding para
no. 4 (a) of the Replication mentions ” the contents of para no. 4 are
Digitally signed by
RAVINDER RAVINDER BEDI
BEDI Date: 2025.07.17
17:22:34 +0530
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wrong and denied except the contents which form part of record”. Once
the Defendant took a categorical stand of the parties being bound by Ex.
DW1/2, the onus shifted upon the Plaintiff to disprove the same in order
to discharge the said burden.
16. However, Plaintiff utterly failed to establish the same, nor
any witness was examined to establish the factum of any Contract other
than Ex. DW1/2 between parties.
17. Plaintiff also failed to examine Mr B.K Sharma, the
signatory to Ex.DW1/2, an important witness who was still working with
Plaintiff and was into regular correspondence with the Defendant, acting
under the authority of Plaintiff during the relevant period. Thus, an
adverse inference has to be drawn against the Plaintiff that had the
Plaintiff brought him in evidence, it would have contradicted Plaintiff’s
own version. In case of Vidhyadhar v Manikrao and another (1999) 3
SCC 573, the Supreme Court has held as under:
“16. Where a party to the suit does not appear into
the witness box and states his own case on oath and
does not offer himself to be cross examined by the
other side, a presumption would arise that the case
set up by him is not correct as has been held in a
series of decisions passed by various High Courts
and the Privy Council beginning from the decision
Digitally signed by
RAVINDER RAVINDER BEDI
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BEDI Date: 2025.07.17
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M/s Shailsuta Logistic Pvt Ltd v M/s Emami Ltd
in Sardar Gurbakhsh Singh v. Gurdial Singh and
Anr. . This was followed by the Lahore High Court
in Kirpa Singh v. Ajaipal Singh and Ors. AIR (1930)
Lahore 1 and the Bombay High Court in Martand
Pandharinath Chaudhari v. Radhabai Krishnarao
Deshmukh AIR (1931) Bombay 97. The Madhya
Pradesh High Court in Gulla Kharagjit Carpenter v.
Narsingh Nandkishore Rawat also followed the
Privy Council decision in Sardar Gurbakhsh Singh’s
case (supra). The Allahabad High Court in Arjun
Singh v. Virender Nath and Anr. Held that if a party
abstains from entering the witness box, it would give
rise to an inference adverse against him. Similarly, a
Division Bench of the Punjab & Haryana High
Court in Bhagwan Dass v. Bhishan Chand and Ors. ,
drew a presumption under Section 114 of the
Evidence Act against a party who did not enter into
the witness box…”
The view taken in the case of Vidhyadhar v Manikrao
and another (supra), was followed by Hon’ble Apex Court in the
case of Janki Vashdeo Bhojwani and another v Indusind Bank
Ltd (2005) 2 SCC 217 as under:
” Apart from what has been stated, this Court in the
case of Vidhyadhar vs. Manikrao and Another, (1999)
Digitally signed
RAVINDER by RAVINDER
BEDI
BEDI Date: 2025.07.17
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3 SCC 573 observed at page 583 SCC that “where a
party to the suit does not appear in the witness-box and
states his own case on oath and does not offer himself
to be cross-examined by the other side, a presumption
would arise that the case set up by him is not correct”.
18 In the Judgment of Hon’ble Delhi High Court in Shalu v
Sandeep Soni (DOD as 03.02.2016) it was held that :
” 32. It is well settled that irrespective of the onus or the
burden of proof, a party in possession of the best evidence,
is bound to produce the same on record.”
19. The Plaintiff did not respond to the Reply Notice Mark B
sent by Defendant by filing any reply/response, concerning denial of TC
Ex. DW1/2. Further, Plaintiff in its affidavit of admission-denial of
documents of Defendant filed on 15.05.2024 denied the contents of its
own document Mark A, while admitting only of its existence. Given the
same, the faint plea of Plaintiff that parties were governed by the CN
merits rejection. The CN Mark A is a mere xerox document and the same
has not been proved in accordance with the provisions of the Evidence
Act ;thus it has to be eschewed from consideration.
20. What can be discerned from record is that the Plaintiff while
denying the existence of Ex. DW1/2 took the most convenient stand of
Digitally signed
RAVINDER by RAVINDER
BEDI
BEDI Date: 2025.07.17
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the same being a forged document, but failed to explain the alleged
forgery. It was for the Plaintiff to s tand on its own legs and prove its own
case by adducing oral and or documentary evidence. ( Shri Saurav Jain &
Anr. v. M/s A. B. P. Design & Anr (DOD as 05.08.2021 by Hon’ble Apex
Court).
Hon’ble Delhi High Court in the case of Madan Mohan v.
Sheel Gulati, 223 (2015) DLT 57 observed that mere self-serving ipse
dixit can’t be held to be discharge of onus of proof. The overall facts and
circumstances coupled with the documents Ex. DW1/3 to Ex. DW1/9
would clearly establish that Plaintiff concealed the factum of the Ex.
DW1/2 between parties, which governed the relationship between parties
besides the stipulations concerning recovery of losses and compensation.
Having held thus, the Issue stands decided in favour of
Defendant and against the Plaintiff.
Issue no. 1: Whether this Court has no territorial
jurisdiction to try and entertain the present suit?
OPD
21. Ld. Counsel for Plaintiff argues that this Court has the
territorial jurisdiction to entertain the suit since the cause of action arose
when the CN Mark A was issued by Plaintiff in favour of Defendant,
mentioning “subject to Delhi jurisdiction” and the acceptance of Mark A
by the Defendant is a form of acceptance of its terms and conditions. Ld.
Counsel submits that the Legal Notice Ex. PW1/4 was also issued upon Digitally signed
RAVINDER by RAVINDER
BEDI
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the Defendant from Delhi and Defendant’s reply was received at Delhi.
He submits that Plaintiff has its head office at Delhi and as per the
principle of Debtor must seek the Creditor, this Court has the territorial
jurisdiction to try and entertain the present suit. Reliance is placed upon
the decisions in TKW Management Solutions Pvt v Sherif Cargo and
Anr, 2023 SCC OnLine Del 593, Shradha Wason and ors v Anil Goel
and Anr, 2009 SCC OnLine Del 1285 and Cypress Fincap Pvt Ltd v
Vyogiswami Financial Consultants Ltd & ors , 2019 Scc Online Del
10065 to argue that in the absence of any Contract to the contrary, a
debtor is bound to find the creditor for making payment – the place of
payment is where the creditor resides.
22. Per contra, Ld. counsel for Defendant submits that this
Court had no territorial jurisdiction to entertain or try the suit as
Defendant’s office was situated in Kolkata and clause 17 of the TC
Ex.DW1/2 specifically mentioned that ” All disputes under the contract
shall be subject to the jurisdiction of Courts in Kolkata” , meaning
thereby, only the Courts in Kolkata had the jurisdiction over the matter.
between parties. Ld. Counsel submits that no part of cause of action
also arose within Delhi and the part cause of action, if any, could be said
to arise at Patna , when the vehicle carrying the Defendant’s goods was
seized at Patna, Ld. Counsel argues that mere sending a Legal Notice Ex.
PW1/4 from Delhi would not confer jurisdiction upon the Courts at
Central Delhi. Ld. Counsel argues that the CN Mark A is nothing but a
Digitally signed
RAVINDER by RAVINDER
BEDI
BEDI Date: 2025.07.17
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Receipt of services to be delivered by Plaintiff and would not create any
jurisdiction.
23. Ld. Counsel for Plaintiff submits that Plaintiff is a dominus
litus and it is the Defendant who must seek the Plaintiff and not
otherwise. He submits that at no point did the cause of action arise at
Kolkata and the TC Ex. DW1/2 to that extent and its Clause 17 are void.
Ld. Counsel submits that the exclusive jurisdiction clause or ouster
clause is considered legal only when multiple courts would have
jurisdiction and in furtherance of the same, jurisdiction is conferred on a
particular Court. Reliance is placed upon Interglobe Aviation Ltd v N.
Satchidnanad, (2011) 7 Supreme Court Cases 463.
24 Ld. Counsel for Defendant submits that the Defendant’s
primary defence has been that the instant suit has been filed on the basis
of concealment of the TC Ex. DW1/2, which contains a jurisdiction
clause, as per which the jurisdiction is vested in Kolkata Courts. To the
plea of ‘Debtor must seek out his Creditor ‘ taken by plaintiff, Ld.
Counsel for Defendant submits that the same is not applicable here as
the Defendant is not the debtor of Plaintiff and in the absence of any
acknowledgment of Defendant of any debt or there being any
relationship of debtor-creditor between parties, this principle is not
applicable. Ld. Counsel submits that Plaintiff’s case is not that there
exists any debt owed by Defendant to Plaintiff and the principle applies
Digitally signed by
RAVINDER RAVINDER BEDI
BEDI Date: 2025.07.17
17:23:13 +0530
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only in such cases where the Plaintiff avers non payment of pending
dues and as such reliance placed by Plaintiff is misconceived.
25. Ld. Counsel for Defendant further submits that Plaintiff
cannot escape the rigors of pre-requisite of Section 20 (a)(b) and (c) of
CPC. .
26. It would be proper to refer to Section-20 of CPC which is
set out as below :
“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,
xxx xxxx xxxx;
(c) the cause of action, wholly or in part, arises.”
(Explanation) — A corporation shall be deemed to carry on
Digitally signed by
RAVINDER RAVINDER BEDI
BEDI Date: 2025.07.17
17:23:19 +0530
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business at its sole or principal office in (India) or, in respect
of any cause of action arising at any place where it has also a
subordinate office, at such place.
27. As per Section-20 CPC, where Defendant neither resides nor
carries on business nor any part of the cause of action arises within the
limits of the jurisdiction of the court, such court has no territorial
jurisdiction to try the suit. (Bahrain Petroleum Co. Ltd. Vs. P.K Pappu &
Anr., AIR 1966 SC 634). The principle underlying clauses (a) and (b) is
that this suit has to be instituted at the place where Defendant is able to
defend it without any difficulty. Under Clause (c), the suit can be filed,
where the cause of action arose wholly or in part.
Where clauses (a) and (b) of Section 20 are not applicable,
only that court will be competent, where cause of action wholly or in part
arises. (ONGC Vs. Utpal Kumar Basu & Ors. (1994) 4 SCC 711; Patel
Roadways Limited Vs. Prasad Trading Company & Ors. (AIR 1992 SC
1514) ; M/s Bhaktawar Singh Bal Kishan Vs. Union of India and others
(1988) 2 SCC 293 and Board of Trustees for the Port of Calcutta and
Anr. Vs.Bombay Flour Mills P. Ltd. & Anr. (1995) 2 SCC 559).
28. It was for the Plaintiff to specifically aver in the plaint that
the Court had the jurisdiction to entertain the suit and that in case, the
Defendant was not residing or working for gain within Court’s
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by RAVINDER
RAVINDER BEDI
BEDI Date:
2025.07.17
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jurisdiction, the cause of action wholly or in part had arisen within the
jurisdiction of the Court to invoke the territorial jurisdiction.
29. It would be apposite to read para no. 19 of the Plaint
relating to territorial jurisdiction, which is set out as :
” That the Plaintiff has its registered office at Delhi.
The consignment note was issued at Delhi. The
payments have to made at Delhi. The correspondence
was done at Delhi. It was agreed between the parteis
that in case of a dispute, the Delhi courts alone shall
have jurisdiction. There is an exclusionary
jurisdiction clause in the consignment note dated
14.07.2018 signed and consented by the Defendant
which clearly mentions subject to Delhi Jurisdiction.
Therefore, the Hon’ble Court has the territorial
jurisdiction to entertain and try the present suit”.
30 The contention of Plaintiff is that its office is located in
Delhi and CN was issued to Defendant at Delhi. The contention further is
that CN mentions at its extreme right side as “subject to Delhi
Jurisdiction” ; thereby this Court has the territorial jurisdiction to
entertain the suit. The contention of Plaintiff is untenable and misplaced
as firstly, Para no. 19 of the Plaint is not supported by any document to
Digitally signed
RAVINDER by RAVINDER
BEDI
BEDI Date: 2025.07.17
17:23:31 +0530
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show that CN was issued from Delhi or the payments were to be made at
Delhi. CN Mark A also shows Plaintiff’s corporate office is located at
Noida. CN Mark A nowhere contains any exclusive jurisdiction clause
and is only a stray document in xerox form; it cannot be read into
evidence as observed in Issue no 2. Even otherwise, the jurisdiction
mentioned in the printed formats or the Consignment Notes does not bind
the parties unless the parties have the consensus ad-idem . The simple
printed conditions on the bill or the CN, which restrict the jurisdiction to
only one Court, cannot be a rider on the jurisdiction of another competent
Court to entertain the suit.
Hon’ble Delhi High Court in M/s Victoria Motors Pvt Ltd
v M/s Rai Automotive Systems (DOD 06.08.2014), held that simple
printed conditions of the CN, restricting the jurisdiction to only one
Court cannot operate as an ad- idem on the issue.
31. Secondly, the Reply Notice dated 26.12.2019 Mark B sent
by Defendant to Plaintiff categorically mentions the TC Ex. DW1/2
between parties stipulating that only the Courts in Kolkata shall have the
exclusive jurisdiction over any dispute between parties. The Plaintiff did
not respond to the reply Notice of Defendant by filing any reply/response
to the same. Further, the Plaintiff in its affidavit of admission-denial of
documents dated 15.05.2024 denied the contents of the CN Mark A and
as such, the reliance placed by Plaintiff on CN Mark A pales into
insignificance. Digitally signed
RAVINDER by RAVINDER
BEDI
BEDI Date: 2025.07.17
17:23:37 +0530
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32 Defendant has proved the fact that parties were bound by
Ex.DW1/2, which also contain jurisdiction at Clause 17, which shows
that ” All disputes under the contract shall be subject to the jurisdiction of
Courts in Kolkata”. Clause 17 unambigously mentions that only the
Courts in Kolkata would have the exclusive jurisdiction and said clause
is clear and specific. The accepted notion of TC binds the parties
showing the presence of ad-idem. Clause 17 shows clear intent of parties
to the exclusive jurisdiction of the Courts at Kolkata.
33. Hon’ble Apex Court in the case of State of West Bengal vs
Associated Contractors; (2015) 1 SCC 32, has observed that the
presentation of the Plaint in a Court contrary to the exclusion jurisdiction
clause could not be said to be the proper presentation before the Court
having the jurisdiction in the matter.
34. Hon’ble Apex Court in the decision of Rakesh Kumar
Verma vs HDFC Bank Ltd (DOD as 08.04.2025), observed as :
” While the general principle is that the suit
could be instituted at any place where a
substantial part of the cause of action arises,
however, when a clause such as the one in the
instant case exists, the jurisdiction will lie with
Digitally signed by
RAVINDER RAVINDER BEDI
BEDI Date: 2025.07.17
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the court at the place which has been expressly
agreed to by and between the parties, i.e., the
courts in Bombay in the instant case…”
35. Reliance can further be placed upon the decisions of
Hon’ble Apex Court upholding the exclusive jurisdiction clause e.g Patel
Roadways (supra); Angile Insulations v Davy Ashmore India Ltd (1995)
4 SCC 153; A.V.M Sales Corporation v Anuradha Chemicals P Ltd ;
(2012) 2 SCC 315 and Shree Subhlaxmi Fabrics P Ltd v Chand Mal
Bradia (2005) 10 SCC 704.
36. Decision of Shradha Wasson (supra), Cypress (supra) and
TKW Management (supra) relied upon by Ld. Counsel for Plaintiff are
of no assistance to its case, as the said decisions are rendered in
altogether different context and are on the facts clearly distinguishable. In
TKW Management (supra) the amounts were payable within the
jurisdiction of New Delhi as per the terms of the invoices filed by the
Plaintiff and thus, the same is inapplicable to factual matrix.
37. The Defendant’s registered office is at Kolkata. As per
Clause 17 of TC Ex. DW1/2, only the Kolkata Courts would have the
jurisdiction to entertain the disputes between parties. Further, no cause of
action wholly or in part arose within the jurisdiction of Central Delhi and
Digitally signed
RAVINDER by RAVINDER
BEDI
BEDI Date: 2025.07.17
17:23:51 +0530
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in such circumstances, the only conclusion which can be drawn is that
this Court has no jurisdiction to entertain the suit.
The issue therefore stands decided in favour of Defendant
and against the Plaintiff.
Issue no. 3: Whether the Plaintiff is entitled to the
recovery of the amount as prayed in the prayer
clause of the plaint? OPP
Issue no. 4: Whether the Plaintiff is entitled to any
interest on the amount. If so, at what rate and from
what period? OPP
38 The onus of proving these issues was upon the Plaintiff.
In view of the observations of this Court in Issue no. 1 and
2, there is no requirement to return any findings on these issues. This
Court has no territorial jurisdiction to entertain the suit in view of the
existence of jurisdiction clause in the TC Ex. DW1/2 between parties.
Plaintiff failed to discharge the primary onus under Section 104 of
Bhartiya Sakshaya Adhiniyam, 2023 (Section 101 of The Indian
Evidence Act, 1872 and failed to explain the suppression of material fact
of existence of Ex. DW1/2 between parties.
The conduct of Plaintiff certainly amounts to deliberate
concealment of facts from the Court, while approaching the Court asking
Digitally signed by
RAVINDER RAVINDER BEDI
BEDI Date: 2025.07.17
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for its claims by taking mere self serving stand of denial of Ex. DW1/2.
Hon’ble Supreme Court in the decision of S.P Chengalvaraya Naidu
(dead) through LRs vs Jagannath (dead) through LRs (DOD as
27.10.1993 ) observed that Courts of law are meant for imparting justice
between the parties. It was observed that one who comes to the court,
must come with clean hands. A person whose case is based on falsehood,
has no right to approach the court and his case can be summarily thrown
out at any stage of the litigation.
39. This Court has no hesitation to hold that the Plaintiff’s case
is based upon falsehood on account of suppression of the material facts
and for which the Plaintiff is disentitled to claim the reliefs sought
against Defendant.
Thus, the issues stand answered accordingly.
Relief
40 Keeping in view my findings on the Issue no. 1 and 2 , it is
held that Plaintiff has failed to establish its case and its entitlement for
the reliefs claimed. The suit of the Plaintiff stands dismissed.
41. Costs will follow the result in the suit. The Defendant’s
Digitally signed
by RAVINDER
RAVINDER BEDI
BEDI Date:
2025.07.17
17:24:05 +0530
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lawyer’s fees is assessed as Rs. 50,000/-.
Decree sheet of dismissal be prepared and File be consigned
to record room after completion of formalities.
Digitally signed by
RAVINDER RAVINDER BEDI
Announced in open BEDI Date: 2025.07.17
17:24:11 +0530
Court on 17.07.2025 (Ravinder Bedi)
District Judge (Commercial Court)-12
Central District, Tis Hazari Courts/Delhi
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