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2013 DAILYLAW 2666 (DEL)

Kavitra Exports Pvt. Ltd. v. Wsa Lines (Delhi) Pvt. Ltd. & Ors.

2013-11-12

S Muralidhar

body2013
1. By this order the Court decides one of the preliminary issues framed by the Court on 20th November, 2012 which is whether the suit is barred by limitation. 2. The brief facts are that M/s. Kavitra Exports Pvt. Ltd., the Plaintiff, has filed the above suit against M/s. WSA Lines (Delhi) Pvt. Ltd. (Defendant No. 1), M/s. Banwait Brothers Inc. (Defendant No. 2), M/s. Royal Bank of Canada (Defendant No.3) and Standard Chartered Bank (Defendant No. 4) for recovery of a sum of Rs. 40, 38, 074 together with pendente lite and future interest @ 12% per annum. 3. The Plaintiff is stated to be in the business of export of readymade garments. Defendant No. 1 is engaged in the business of sea transport. It is stated that Defendant No. 2, the buyer in Canada, approached the Plaintiff with a request to supply readymade garments. Accepting the request, the Plaintiff prepared the products to the satisfaction of Defendant No. 2 and booked the shipment to Canada on full container load (‘FCL’) basis under a bill of lading (‘B/L’) dated 27th March 2006 through Defendant No. 1. The shipment was booked as O/F and IHC Freight Collect (collect at destination) basis. The freight was payable at the Consignee’s (Defendant No. 3) destination. Defendant No. 4 was the corresponding bank through whom payment was to be received by the Plaintiff. 4. According to the Plaintiff, Defendant No. 1 informed it that the shipment had been sent by a container on 14th April 2006. However, Defendant No. 3 denied delivery of the container. According to the Plaintiff, when it contacted Defendant No. 1 it learnt that the shipment was not sent on FCL basis but was sent sometime in May, 2006 on less container load (‘LCL’) basis and was released by release note dated 23rd May, 2006 by Defendant No. 1. The Plaintiff alleges that Defendant No. 1 issued a false/bogus certificate dated 12th May, 2006 showing a wrong container number. Further Defendant No. 1 charged from Defendant No. 2 US$ 4235.14 instead of US$ 2984 by invoice dated 11th May, 2006 whereas the agreed rate for delivery on FCL basis was US$ 2984. It is stated that when the consignment reached Defendant No. 3 (consignee) and was delivered to Defendant No. 2, neither of them raised any objections as to the quality or the price of the goods. It is stated that when the consignment reached Defendant No. 3 (consignee) and was delivered to Defendant No. 2, neither of them raised any objections as to the quality or the price of the goods. It is stated that after receiving the consignment, Defendant No. 2 started raising an issue on the pricing of the goods. It pressurised the Plaintiff to agree to a lower price. Reference is made to communications dated 17th August, 19th October and 24th November, 2006. The Plaintiff on its part addressed communications dated 15th February, and 1st December, 2006. It is stated that despite the Plaintiff keeping in touch with Defendants 3 and 4, they refused to collect Canadian $ 57333.55 from Defendant No. 2. Ultimately, the Plaintiff sent a communication dated 24th November, 2008 to Defendants 2 and 3 asking to clear the aforesaid dues together with interest from 11th May, 2006. A reply dated 5th January, 2009 was sent by Defendant No. 2 alleging that the goods supplied were not as per specifications. It is contended by the Plaintiff that Defendant No. 2 has taken a false stand and that the fault also lies with Defendant No. 1. Defendant No. 3 is alleged to have wrongly withheld the balance payment as well. Accordingly, it is claimed that all the Defendants jointly and severally have committed breach of their obligations resulting in loss being suffered by the Plaintiff to the tune of Rs. 40, 04, 175 computed at the rate of Rs. 45 per Canadian dollar (market rate as on 10th January, 2011) along with interest @ 12% per annum from 11th July, 2006 till 10th January, 2007. The sum claimed in the suit is Rs. 40,38,074. 5. In the written statement filed by Defendants 1, 2 and 4 a preliminary objection is taken as to limitation. It is submitted by Mr. Jeevesh Nagrath, learned counsel appearing for Defendant No. 1 that under Section 17 of the Limitation Act, 1963 read with Article 55 of the Schedule thereto the outer limit-for filing the suit was three years which had to be calculated from the expiry of 60 days from the date of presentation of the documents for payment. Jeevesh Nagrath, learned counsel appearing for Defendant No. 1 that under Section 17 of the Limitation Act, 1963 read with Article 55 of the Schedule thereto the outer limit-for filing the suit was three years which had to be calculated from the expiry of 60 days from the date of presentation of the documents for payment. Referring to the correspondence placed on record, he pointed out that even in November, 2006 the Plaintiff was aware that the aforementioned sum was due and payable by Defendant No. 2 and there was no justification for waiting till 2011 for filing the suit. 6. Mr. Joydeep Sharma, learned Counsel for the Plaintiff, on the other hand submitted that there was a tacit assurance given by the Defendant No. 2 that payment would be made and that since negotiations were in progress, the Plaintiff did not take steps to file the suit immediately. He submitted that it was only in January 2009 that Defendant No. 2 took an unreasonable stand and refused to make payment and hence that was the starting point for the computation of limitation. 7. The Court is unable to agree with the submission of the learned Counsel for the Plaintiff. In a letter dated 23rd August, 2006, the Plaintiff informed Defendant No. 4 that the bill for Canadian $ 97333.55 of Defendant No. 2 was due for payment within 60 days from acceptance date but that Defendant No. 2 wanted 60 more days to make the payment. Accordingly it requested Defendant No. 4 to ‘please send the drawer bank revised Bill of Exchange for 120 days sight and oblige’. On 24th August, 2006, the Plaintiff addressed a letter to Defendant No. 2 asking it to settle the unpaid amount of Canadian $ 57333.35. It is, therefore, apparent that even as on 24th August, 2006 the Plaintiff was not only aware of the sum outstanding but also raised a claim against Defendant No. 2 on that day itself. A reminder was also sent by the Plaintiff to Defendant No. 4 that the said amount remained outstanding. 8. It is trite that repeated reminders from the Plaintiff to Defendants 2 and 4 demanding payment would not extend the limitation for claiming payment. A reminder was also sent by the Plaintiff to Defendant No. 4 that the said amount remained outstanding. 8. It is trite that repeated reminders from the Plaintiff to Defendants 2 and 4 demanding payment would not extend the limitation for claiming payment. The Plaintiff has also not been able to substantiate its plea that there was an acknowledgment by the Defendants of their liability to make payment at any time after 23 / 24th August, 2006. The letters relied upon by the Plaintiff as emanating from the Defendants nowhere express any such acknowledgement of liability. A communication dated 19th October, 2006 from Defendant No. 4 to the Plaintiff talks about the request of Defendant No. 2 for reduction of the amount but this in no way amounts to acknowledgement of the liability by either Defendant No. 2 or Defendant No. 4 and definitely not by Defendant No. 1. 9. It is averred in para 9 of the plaint by the Plaintiff that one of the reasons adduced by Defendant No. 2 in its letter dated 5th January, 2009 for not making payment was that the goods were sent on LCL and not FCL basis by Defendant No. 1. Having examined the said letter dated 5th January, 2009, the Court finds that there is nothing to that effect stated by Defendant No. 2. 10. The Court is satisfied that the suit has been filed beyond the prescribed period of limitation. Consequently, the preliminary issue is answered in favour of the Defendants and against the Plaintiff. The suit is dismissed on the ground of limitation. Suit dismissed.