Ups Jetair Express Pvt Ltd v. Bd Mahajan & Sons Pvt. Ltd & Anr

ORDER ' o/o

26.08.2008

¶1lt is an unfortunate situation but it cannot be helped. Due to a total non-focused approach neither relevant issues have been framed nor proper evidence has been n R FA Nos.376 -7 9, 38L-82, 39 1, 393-95, 398-99, 38O / 2007 1+ brought on record. There has been occasioned a total misca rriage of j ustice.

¶2Lest parties are prejudiced at the re-trial which would have to be held, learned counsel for the parties jointly pray that their consent may be recorded and impugned judgment and decree dated 29.3.2007 which are a subject matter of challenge in the appeals may be set aside with matter remanded for fresh trial in accordance with law after resettling the issues.

¶3lt may be noted that the contesting parties in RFA No.37612007 and RFA No.398/2007 ,are the same. The cross appeals arise out of the'rur" judgment and decree-dated

29.3.2007 disposing of Suit No.LL4l2006. We further note that ,the contesting parties in RFA No.378/2007 and RFA N0.391/2007 are the same. Both appeals are in the nature of cross appeals. They challenge the judgment and decree dated

29.3.2007 disposing of Suit No.6912006. We further note that the contesting parties in RFA No.379/2007 and RFA No.395/2007 are the same. Both appeals are in the nature of cross appeals. They challenge the judgment and decree dated

29.3.2007 disposing of Suit No.115/2006. We note that the contesting parties in RFA.No.38Ll2007 and RFA No.39412007 {t_, rl RFA Nos.375 -79,38t-82,391, 393-95, 398-99, 38O/2O07 t& are the same. Both uppeu'lt are in the nature of cross appeals. They challenge the judgment and decree dated 29.3.20Q7 disposing of Suit No.70/2006. We note that the contesting parties in RFA No.382/2007 and RFA No.399/2007 are the Same. Both appeals are in the nature of cross appeals. They challenge the judgment and decree dated 29.3.2007 disposing of Suit No.6712006. We note that the contesting parties in RFA No.38Q/2007 and RFA No.393/2007 are the same' Both appeals are in the nature of cross appeals. They challenge the judgment and decree dated 29.3.2007 disposing of Suit No.7 Ll20O6. I

¶4We note that in RFA No.37712007 there is no cross apBeal by the respondent. ,5. UPS Jetair Express Pvt. Ltd. was a defendant in 7 suits filed by the respondents of RFA Nos.376 to 382 of 2007 and RFA No.380 of 2007. Partial claims were decreed in the suits. UPS Jetair Exprerr'Put. Ltd. has challenged the part of the decree against it where claims have been decreed against it. The appellants of other appeals have challenged the part of the decree where their claims have not been allowed.

¶6ln all the suits nature of transactions were the same, being entrustment cf goods by the plaintiffs of the suit RFA Nos.375 -7g,38L-82,391, 393-95, 398-99, 38O/2OO7 l1 t to UPS Jetair Express Pvt. Ltd. for delivery at the place of destination in USA. Claims were made for violation of the contract between the parties and damages resulting \, thereupon.

¶7lssues framed in the suits are identical and most ') unhappily worded. The issues read as under:- {lJ "1) Whether the suit is bad for the privity of contract?OPD 2) Whether the suit is bad for suppression of material facts?OPD 3) Whether the suit is bad for not being filed by authorized person?OID 4) Whether the suit is bad for not being properly va lued ?OPD 5) Whether the plaintiff is entitled for recovery of { the suit amount, if so, what sum?OPP {), 6) Whether the plaintiff is entitled for interest, if so, at what rate and for which period?OPP 7) Relief. " '

¶8To any reader the inappropriateness of the issues is writ large.

¶9Qua lssue No,l we fail to understand how can a suit be bad for privity of contract.

¶10From the pleadings of the parties we note that the RFA Nos.376 -79,38L-82,391, 393-95, 398-99, 380/2007 pageT of L2 la defence was predicated on lack of privity of contract between the defendant and plaintiff No.1 of each suit. On said pleadings the appropriate issue, if at all required to be framed should have been: Whether there is no privity of contract between the defendant and the plaintiff No.1. lf yes, to what effect?

¶11What is the relevance of issue No.2?

¶12Suits were for recovery. The suits were not where the discretionary jurisdiction of the. Court was invoked. Thus, irrespective of any suppressiQn, the maintainability of the suit could not be questioned. That apart, we do not understand as to how can a suit be bad for suppression of material facts,

¶13lf claim relates to the discretionary jurisdiction of 'the court and if it is pleaded in defence that the plaintiff has suppressed material facts, the issue to be framed has to be worded as: 'Whether the plaintiff is not entitled to any relief on account of suppression of material facts? OPD'

¶14On lssue No.3, suffice would it be to note that a suit cannot be bad for not being filed by an authorized person. No suit can be good or bad. lf the authority of the person instituting the suit is in question the correct issue to be framed is: 'Whether the suit has been validly instituted and whether RFA Nos.376-79,38L-82, 391, 393-95, 398-99, 380/2007 t ,/t >l J, the plaint has been signed and verified by a duly authorized person? OPP'

¶15on lssue No.4 suffice would it be to note that no suit can be bad for not being properly valued' lf valuation of a suit and court fee paid is a matter in issue, the proper issue to be framed is: 'Whether the suit has not been valued correctly for the purposes of jurisdiction and court fee? lf yes, to what effect. oPD.' lf the issue relates only to the payment of court fee, the proper issue to be framed should be: 'Whether the plaint is liable to be rejected on account of deficient court fee? OPD'

¶16We have commented on issues No'1 to 4 to bring home the callous manner in which the learned Trial JUdge has ,framed the issues and the inappropriate language used while framing the issues.

¶17But, what is more relevant is that the real issues which has arisen between the pleadings of the parties have not been framed. We do not give our justification for the same b I I

¶18because learned counsel for the parties do not desire as they fear that anything stated by us may inadvertently prejudice their case. Parties desire that their consent be recorded to set RFA Nos.376 -79,381-82, 391-, 393-95, 398-99, 38012007 L)_ I aside the impugned judgments and decrees in challenge in the afore-noted appeals; suits be restored for de-novo trial ignoring the existing evidence after framing appropriate issues. c1

¶19We accordingly allow all the appeals and set aside the impugned judgments and decrees dated 29.3.2007 in all the appeals.

¶20As agreed between learned counsel for the parties following issues are framed in all the suits. "1) Whether there is no privity of contract between plaintiff No.1 and the defendant? lf yes, effect thereof? OPD 2) Whether the suit has been instituted under valid authorization and whether the plaint has been signed and verified by a duly authorized person?OPP - 3) Whether the defendant is in breach of its '^ contractual obligations under the contract between the parties as alleged in the plaint?OPP 4) lf issue No.3 is decided against the plaintiff, whether the defendant is guilty of negligence as pleaded in the plaint? lf yes, to what effect? 5) Whether the plaintiff is entitled to the sum claimed in the Plaint?OPP (N.B.: This issue would include determination of the defence of liability being limited as pleaded in the written statement.) r (l 6) Whether the plaintiff is entitled to from the defendant? lf Yes, at what RFA Nos.376 -79,38L-82, 391, 393-95, 398-99, 38012007 any interest rate and for page L0 of 1.2 @ I what period, 7) Relief. " 2L. Before concluding we may nOte that pertaining to general damages claimed in the suits filed by the plaintiffs," i findings have been returned by the learned Trial Judge, which we direct, by consent of parties, would not be treated as binding, Since fresh evidence would be led, the learned Trial Judge who has to re-decide the suits would take a decision uninfluenced by any finding returned in the impugned decisions.

¶22We request the learned Trial Judge who has to re-decide the matter to expedite the trial of the suits and make an endeavour to dispose of the same as early as possible. x .t :t

¶23a Parties are directed to appear before the learned Trial Judge on 1.10.2008.

¶24One further direction is being issued with consent of the parties. UPS Jetair Express Pvt. Ltd. has deposited the decretal amount as per decree passed against it in the appeals filed by it. This decretal amount would be retained if UPS Jetair Express Pvt. Ltd. does not furnish security in the amount deposited by it to the satisfaction of the learned Trial Judge. lf it furnishes security of the amount deposited paid, security RFA Nos.376 -79,38L-82,391, 393-95, 398-99, 38012007 page L1 of 12 being to the satisfaction of the learned Trial Judge, on receipt of security UPS Jetair Express Pvt. Ltd. would be permitted to receive back the amount deposited by it.

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¶27AUGUST 26,2008 dk -^fi*(

PRADEEP NANDRAJOG, J. suNll GAUR, J. No costs. t TCR be returned through special messenger. Dasti to learned counsel for the parties, ,,1 \ ) .l - fr""rt e-F2 'd"/a /Ja'/// ^1* F WL42 ui4"wonn'' RFA Nos.376-79,38L-82, 391, 393-95, 398-99, 380/2007 page L2 of L2 xlN THE HIGH COURT OF DELHI AT NEW DELHI + RFA 379/2007 ups JETAIR EXPRESS PVT LTD ..... Appellant Through : Mr. Vibhu Shankar and Mr. R, Vishal Dass, Advs, VCTSUS BDMAHAJAN&SONSPVT.LTD&ANR""'Respondents Through : Mr. Manish Gandhi, Adv' CORAM: HON'BLE MR. JUSTICE J.R. MIDHA ORDER %

18.08.2011 CM No.15401/2011

¶1The parties have jointly filed the application for a direction for release of the amount deposited by the appellant in terms of the orders dated 23'd 1uly, 2OO7 and 4th December,2007 '

¶2lt is submitted that the parties have amicably resolved all their disputes. The terms of their settlement are recorded before the learned Trial Court on 9'h August, 201L. The attested copy of the order dated 9th August, 2011 of the learned Trial Court has been placed on record as Annexure-A to the application' As per the said settlement, respondent No.2 is entitled to a sum of Rs.2,I4,285/- out of the amount deposited by the appellant in this appeal and the remaining amount along with interest on the total amount deposited by the appellant is to be released to the appellant, RFA No.379/2007 q .ti ii' .n, {

¶3In the facts and circumstances of these cases, the applications are allowed and the Registrar General is directed to release a sum of Rs.2,14,2851-to respondent No.2. The remaining amount along with interest accrued on the total amount deposited by the appellant be released to the appellant.

¶4CMs disposed of,

¶5Copy of this order be given 'Dasti' to learned counsels for RFA No.379/2007 both the parties under signature of Court Master. rKIttw "ffi;-AUGUST 18, 201L mk J3 .,t --

l3 * IN THE HIGH COURT OF DELHI AT NEW DELHI + RFA 376120Q7 UPS JETAIR EXPRESS PW LTD ..... Appellant Through: Mr.Suhail Dutt, Mr.Vibhu Shankar, Mr.Rayner Vishal Dass, Advs. versus . ! K.L.MAHAJAN & SONS & ANR ..... Respondents '\ Through: Mr.Manish Gandhi, Adv. and Mr.N.K.Verma, Adv. + RFA 37712007 UPS JETAIR EXPRESS PVT LTD ..... Appellant Through: Mr.Suhail Dutt, Mr.Vibhu Shankar, Mr.Rayner Vishal Dass, Advs. versus WASAN EXPORTS & ANR ..... Respondents Through: Mr.Manish Gandhi, Adv. and fr, Mr.N.K.Verma, Adv. -i + RFA 37812007 UPS JETAIR EXPRESS PW LTD ..... Appellant Through: Mr.Suhail Dutt, Mr.Vibhu Shankar, Mr.Rayner Vishal Dass, Advs. versus ,, SUMNESH AGGARWAL & ANR. ..... Respondents Through: Mr.Manish Gandhi, Adv. and Mr,N.K.Verma, Adv. + RFA 37912007 UPS J ETAIR EXPRESS PVT LTD ..... Appellant Through: Mr.Suhail Dutt, Mr.Vibhu Shankar, RFA Nos.376-79,38\-82. 391, 393-95, 398-99, 380/2007 Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. {Y -l ,,Mr:Rayner Vishal Dass, Advs. VCTSUS B.D,MAHAJAN & SONS PVT. LTD. & ANR ..... Respondents Through: Mr.Manish Gandhi, Adv. and Mr.N.K.Verma, Adv. + RFA 38112007 Through: ,,Mr.Suhail Dutt, Mr.Vibhu Shankar, Mr.Rayner Vishal Dass, Advs. versus CHADHA SPORTS & ANR ..... Respondents Through: Mr.Manish Gandhi, Adv. and Mr.N.K.Verma, Adv. + RFA 38212007 UPS JETAIR EXPRESS PVT LTD ..... Appellant Through: Mr.Suhail Dutt, Mr.Vibhu Shankar, Mr.Rayner Vishal Dass, Advs. versus MAXWELL EXPORTERS & ANR. ..... Respondents Through: Mr.Manish Gandhi, Adv. and Mr.N.K.Verma, Adv. + RFA 39112007 i SUMNESH AGGARWAL & ANR. .....Appellants Through: Mr.Manish Gandhi, Adv. and Mr.N.K.Verma, Adv. VCTSUS UPS JETAIR EXPRESS PW LTD ..... Respondent Through: Mr.Suhail Dutt, Mr.Vibhu Shankar, Mr.Rayner Vishal Dass, Advs. RFA Nos.376 -7g, 381-82. 391, 393-95, 398-99, 380/2007 page 2 of t2 ) 1s- + RFA 393120Q7 l R.K.INTERNATIONAL & ANR. .....Appellants Through: Mr.Manish Gandhi, Adv. and Mr.N.K,Verma, Adv. versus UPS JETAIR EXPRESS PVT LTD ..... Respondent Through: Mr.Suhail Dutt, Mr.Vibhu Shankar, Mr.Rayner Vishal Dass, Advs. + RFA 39412007 CHADHA SPORTS & ANR. .....Appellants Through: Mr.Manish Gandhi, Adv. and Mr.N.K.Verma, Adv. VCTSUS UPS JETAIR EXPRESS PVT LTD ..... Respondent Through: Mr.Suhail Dutt, Mr.Vibhu Shankar, Mr.Rayner Vishal Dass, Advs. + RFA 39512007 tr B.D.MAHAJAN & ANR. .....Appellants Through: Mr.Manish Gandhi, Adv. and Mr.N.K.Verma, Adv. VCTSUS UPS JETAIR EXPRESS PVT LTD ..... Respondent Through: Mr.Suhail Dutt, Mr,Vibhu Shankar, Mr.Rayner Vishal Dass, Advs. + RFA 39812007 K.L.MAHAJAN & ANR. .....Appellants Through: Mr.Manish Gandhi, Adv. and Mr.N.K.Verma, Adv. I RFA Nos.376 -7 9, 38L-82, 39 1, 393-95, 398-99, 38O / 2007 page.3 of 12 1L versus UPS JETAIR EXPRESS PVT LTD ..... Respondent Through: Mr.Suhail Dutt, Mr.Vibhu Shankar, Mr.Rayner Vishal Dass, Advs. + RFA 39912007 SUMNESH AGGARWAL & ANR. .....Appellants Through: Mr.Manish Gandhi, Adv. and Mr.N.K.Verma, Adv. VCTSUS UPS JETAIR EXPRESS PVT LTD ..... Respondent Through: Mr.Suhail Dutt, Mr.Vibhu Shankar, Mr.Rayner Vishal Dass, Advs. + RFA 38012007 UPS JETAIR EXPRESS PVT LTD ..... Appellant Through: Mr.Suhail Dutt, Mr.Vibhu Shankar, Mr.Rayner Vishal Dass, Advs. VCTSUS '-- . R.K.INTERNATIONAL & ANR. ..... Respondents J Through: Mr.Manish Gandhi, Adv. and Mr.N.K.Verma, Adv. CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MR. JUSTTCE SUNTL GAUR