Ups Jetair Express P.Ltd v. Maxwell Exporters & Anr

ORDER %

26.08.2008

¶1It 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 RFA Nos.376-79, 381-82, 391, 393-95, 398-99, 380/2007 u . brought on record. There has been occasioned a total miscarriage of justice.

¶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 u matter of challenge in the appeals may be set aside with "V matter remanded for fresh trial in accordance with law after resettling the issues.

¶3It may be noted that the contesting parties in RFA No.376/2007 and RFA No.398/2007 are the same. The cross appeals arise out of the same judgment and decree dated

29.3.2007 disposing of Suit No.114/2006. We further note that contesting parties in RFA No.378/20Q7 and RFA No.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.69/2006. We further note that 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.381/2007 and RFA No.394/2007 RFA Nos.376-79, 381-82, 391, 393^95, 398-99, 380/2007 A 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.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 Np.67/2006. We note that the contesting parties in RFA No.380/2007 and RFA No.393/2007 are same. Both appeals are in the nature of cross appeals. They challenge the judgment and decree dated

29.3.2007 disposing of Suit No.71/2006.

¶4We note that in RFA No.377/2007 there is no cross appeal by the respondent.

¶5UPS 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 Express Pvt. 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.

¶6In all the suits nature of transactions were same, being entrustment of goods by the plaintiffs of the suit RFA Nos.376-79,381-82,391,393-95,398-99,380/2007 page 6 of12 I<s to UPS Jetair Express Pvt. Ltd. for delivery at the place of destination in USA. Claims were made for violation of the contract between parties and damages resulting thereupon.

¶7Issues framed in the suits are identical and most unhappily worded. The issues read as under:- "1) Whether suit is bad for privity of contragt?OPD 2) Whether suit is bad for suppression of material facts?OPD 3) Whether the suit is bad for not being filed by authorized person?OPD 4) Whether the suit is bad for not being properly valued?OPD 5) Whether the plaintiff is entitled for recovery of the suit amount, if so, what sum?OPP I ^ 6) Whetherthe plaintiffis 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 Issue No.I 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, 381-82, 391, 393-95, 398-99, 380/2007 /f ^ defence was predicated on lacl< of privity of contract between defendant and plaintiff No.l of each suit. On said pleadings the appropriate issue, if at ail required to be framed should have been: Whether there is no privity of contract between the defendant and the plaintiff No.l. If 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 suppression, 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.

¶13If 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 Issue No.3, suffice would it be to note that a suit cannot be bad for not being filed by an authorized person. suit can be good or bad. If 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.376-79,381-82, 391, 393-95, 398-99, 380/2007 JLO the plaint has been signed and verified by a duly authorized person? OPP'

¶15On Issue No.4 suffice would it be to note that no suit can be bad for not being properly valued. If 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 purposes of jurisdiction and court fee? If yes, to what effect. OPD.' If the issue relates only to the payment of court fee, the proper issue to be framed should be: 'Whether plaint is liable to be rejected on account of deficient court fee? OPD'

¶16We have commented on issues No.l 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.

¶18We do not give our justification for same because 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, 393-95,398-99,380/2007 page 9of12 D-\ aside the impugned judgments and decrees in challenge in the afore-noted appeals; suits be restored for de-novo trial ignoring existing evidence after framing appropriate issues. 3,9. We 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. "D Whether there is no privity of contract between plaintiff No.l and the defendant? If 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 defendant is in breach of its contractual obligations under contract between the parties as alleged in the plaint?OPP 4) If issue No.3 is decided against plaintiff, whether defendant is guilty of negligence as pleaded in the plaint? If yes, to what effect? 5) Whether plaintiff is entitled to 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.) 6) Whether the plaintiff is entitled to any interest from the defendant? If yes, at what rate and for RFA Nos.376-79,381-82,391,393-95, 398-99,380/2007 page 10of 12 !2-2-what period. 7) Relief."

¶21Before concluding we may note that pertaining to general damages claimed in the suits filed by the plaintiffs, 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 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.

¶23Parties are directed to appear before the learned ^ TrialJudgeon 1.10.2008.

¶24One further direction is being issued with consent of the parties. UPS Jetair Express Pvt. Ltd. has deposited 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. If it furnishes security of the amount deposited paid, security RFA Nos.376-79, 381-82, 391, 393-95, 398-99, 380/2007 f 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.

¶25No costs.

¶26TCR be returned through special messenger.

¶27Dasti to learned counsel for the parties. —TT PRADEEP NANDRAJOG, J.

SUNIL GAUR, J. AUGUST 26, 2008 RFA Nos.376-79,381-82,391, 393-95,398-99,Zmjimi page 12of12 /: *1N THE HIGH COURT OF DELHI AT NEW DELHI + RFA 382/2007 UPS JETAIR EXPRESS P.LTD. Appellant Through ; Mr. Vibhu Shankar and Mr. R. Vishal Dass, Advs. versus MAXWELL EXPORTERS& ANR. Respondents Through : Mr. Manlsh Gandhi, Adv. , CORAM: HON'BLE MR. JUSTICE J.R. MIDHA ORDER ^ %

18.08.2011 CM No.15404/2011

¶1The parties have jointly filed the applicationfor a direction for release of the amount deposited by the appellant in terms of the orders dated 23^''July,2007 and 4^"^ December, 2007.

¶2It is submitted that the parties have amicably resolved all their disputes. The terms of their settlementare recorded before the learnedTrial Court on 9^^^ August, 2011. The attested copy of the order dated T August, 2011 of the learned Trial Court has been placed on record as Annexure-Ato the application. As per the said settlement, respondent No.2 is entitled to a sum of Rs.2,14,285/-out of the amount depositedby the appellantin this appeal and the remainingamount along with intereston the total amount deposited by the appellant is to be released to the appellant. RFA No,382/2007 A. -5>: •c 4 5»

¶3In facts and circumstances of these cases, applications are allowed and the Registrar General is directed to release a sum of Rs.2,14,285/- 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 both the parties under signature of Court Master. AUGUST 18, 2011 mk ki J.R. MIDHA,j'* RFANo.382/2007 Page 2of2

J / * IN THE HIGH COURT OF DELHI AT NEW DELHI + RFA 376/2007 UPS JETAIR EXPRESS PVT LTD Appellant Through: Mr.Suhall Dutt, Mr.Vibhu Shankar, Mr.Rayner Vishal Dass, Advs. versus K.LMAHAJAN & SONS & ANR Respondents Through: Mr.Manish Gandhi, Adv. and Mr.N.K.Vernna, Adv. + RFA 377/2007 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 Mr.N.K.Vernna, Adv. + RFA 378/2007 UPS JETAIR EXPRESS PVT 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 379/2007 UPSJETAIR EXPRESS PVT LTD Appellant Through: Mr.Suhail Dutt, Mr.Vibhu Shankar, RFA Nos.376-79,381-82, 391, 393-95, 398-99, 380/2007 /-S 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. Mr.Rayner Vishal Dass, Advs. versus B.D.MAHAJAN& SONS PVT. LTD. & ANR Respondents Through: Mr.Manish Gandhi, Adv. and Mr.N.K.Vernna, Adv. + RFA 381/2007 UPS JETAIR EXPRESS PVT LTD ..... Appellant y 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.Vernna, Adv. + RFA 382/2007 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 391/2007 SUMNESH AGGARWAL & 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 Nos.376-79, 381-82, 391, 393-95, 398-99, 380/2007 fl 1^ A + RFA 393/2007 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 394/2007 CHADHA SPORTS & 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 395/2007 B.D.MAHAJAN & 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 398/2007 K.L.MAHAJAN& ANR. Appellants Through: Mr.Manish Gandhi, Adv. and Mr.N.K.Verma, Adv. RFA Nos.376-79, 381-82, 391, 393-95, 398-99, 380/2007 p versus ) UPSJETAIR EXPRESS PVT LTD Respondent Through: Mr.Suhail Dutt, Mr.Vibhu Shankar, Mr.Rayner Vishal Dass, Advs. + RFA 399/2007 SUMNESH AGGARWAL & ANR Appellants Through: Mr.Manish Gandhi, Adv. and Mr.N.K.Vernna, Adv. versus UPS JETAIR EXPRESS PVT LTD Respondent Through: Mr.Suhail Dutt, Mr.Vibhu Shankar, Mr.Rayner Vishal Dass, Advs. + RFA 380/2007 UPS JETAIR EXPRESS PVT LTD Appellant Through: Mr.Suhail Dutt, Mr.Vibhu Shankar, Mr.Rayner Vishal Dass, Advs. versus R.K.INTERNATIONAL & ANR Respondents Through: Mr.Manish Gandhi, Adv. and Mr.N.K.Vernna, Adv. CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MR. JUSTICE SUNIL GAUR