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Freight received in excess should be returned to the person received from otherwise interest liability will raise

Apurba Ghosh ,
  16 November 2011       Share Bookmark

Court :
HIGH COURT OF DELHI
Brief :
We shall be referring to the parties as per their description in the plaint.Plaintiff (respondent No.1) sought RFA(OS) 12/1997 decree in sum of `7,43,568.88 alleging that M/s.Freight Wings and Travels Pvt. Ltd., defendant No.2, M/s.Daga Air Agents, defendant No.3 and M/s.Friends Clearing Agency Pvt. Ltd. defendant No.4 were the agents of Air India International defendant No.1/appellant and that M/s.Skylines defendant No.5 was the clearing and forwarding agent appointed by the plaintiff. That 37 consignment for carriage by air from New Delhi to Tashkent were entrusted to defendant No.1 which charged freight in sum of `8,95,697.15 which was paid by the plaintiff through defendant No.5. The goods being carried to the destination it was alleged that freight in excess by `4,96,864.67 was paid. Alleging that the said sum was not refunded, suit was filed claiming said sum plus `2,46,703.88 towards pre-suit interest which was calculated @19.5% per annum and thus the decree claimed was in sum of `7,43,568.88. (A totaling error because `4,96,864.67 + `2,46,703.88 = `7,43,628.55). Though not relevant for the purposes of the appeal, details of the 37 consignments carried by air by the first defendant being entrusted to it through the stated agents of the first defendant i.e. defendants No.2, 3 and 4 were disclosed
Citation :
NATIONAL AVIATION COMPANY OF INDIA LTD....Appellant versus GENERAL COMMERCE LTD. & ORS. ...Respondents

 

 

*                                              IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                             Date of Decision: 31st October, 2011

+                                              RFA(OS) 12/1997

NATIONAL AVIATION COMPANY OF INDIA LTD.

...Appellant

Through: Mr.Mudit Sharma, Advocate.

versus

GENERAL COMMERCE LTD. & ORS. ...Respondents

Through: None.

CORAM:

HON'BLE MR. JUSTICE PRADEEP NANDRAJOG

HON'BLE MR. JUSTICE S.P.GARG

 

1. Whether the Reporters of local papers may be allowed to see the judgment?

 

2. To be referred to Reporter or not?

 

3. Whether the judgment should be reported in the Digest?

 

PRADEEP NANDRAJOG, J. (Oral)

 

1. We shall be referring to the parties as per their description in the plaint.Plaintiff (respondent No.1) sought RFA(OS) 12/1997  decree in sum of `7,43,568.88 alleging that M/s.Freight Wings and Travels Pvt. Ltd., defendant No.2, M/s.Daga Air Agents, defendant No.3 and M/s.Friends Clearing Agency Pvt. Ltd. defendant No.4 were the agents of Air India International defendant No.1/appellant and that M/s.Skylines defendant No.5 was the clearing and forwarding agent appointed by the plaintiff. That 37 consignment for carriage by air from New Delhi to Tashkent were entrusted to defendant No.1 which charged freight in sum of `8,95,697.15 which was paid by the plaintiff through defendant No.5. The goods being carried to the destination it was alleged that freight in excess by `4,96,864.67 was paid. Alleging that the said sum was not refunded, suit was filed claiming said sum plus `2,46,703.88 towards pre-suit interest which was calculated @19.5% per annum and thus the decree claimed was in sum of `7,43,568.88. (A totaling error because `4,96,864.67 + `2,46,703.88 = `7,43,628.55). Though not relevant for the purposes of the appeal, details of the 37 consignments carried by air by the first defendant being entrusted to it through the stated agents of the first defendant i.e. defendants No.2, 3 and 4 were disclosed.

 

2. As per written statement filed by defendant No.1 i.e. the appellant, it admitted having received excess freight charges in sum of `4,96,864.67 but stated that it had returned RFA(OS) 12/1997  `2,83,163.65 to defendant No.2 and qua the rest kept mum. Defendant No.1 denied that defendants No.2, 3 and 4 were its agents.

 

3. With respect to the Airway Bills and in particular column 4, wherein under the caption “Issuing Carriers’ Agent” the name of either defendant No.2 or defendant No.3 in the various Airway bills finds a mention, the learned Single Judge has held that payments received by said defendants were in their capacity as the agents of defendant No.1.

 

4. The impugned judgment would reveal that during arguments, defendant No.1 stated that it was not in a position to refund `2,13,701.02 because it was not sure as to whom the money had to be paid.

 

5. In view of the fact that `2,83,163.65 received as excess fare was refunded by defendant No.1 to defendant No.2, a fact not in dispute, the learned Single Judge has passed a decree in sum of `4,03,298.53 with interest @19.5% on the sum of `2,83,163.65 against defendant No.2. Qua defendant No.1, decree passed is in sum of `2,13,701.02 with interest @12% per annum from date of suit till realization.

 

6. Since the appeal has been filed only by defendant No.1 we need not discuss anything qua the decree passed against defendant No.2.

 

7. Conceding before us that defendant No.1, after refunding `2,83,163.65 to defendant No.2, was still retaining excess freight in sum of `2,13,701.02, learned counsel for defendant No.1 (appellant) urged that the finding returned by the learned Single Judge that defendants No.2 and 3 were the agents of defendant No.1 is incorrect inasmuch as they were IATA approved agents and they were not the agents of defendant No.1. Their registration with IATA authorized them to interact with customs authorities for clearance of the goods for export and thus the impugned judgment, insofar it holds status of defendants No.2 and 3 as agents of defendant No.1 is liable to be set aside and taking the argument further, learned counsel argued that said defendants were the agents of the plaintiff.

 

8. The argument takes the defendant No.1 nowhere for the reason, whether it received excess freight charges through its agents or the agents of the plaintiff, the excess money held by defendant No.1 was obviously held in trust for the real owner thereof. It not being in dispute that the excess freight charges pertained to 37 Airway bills where the consignor was the plaintiff and freight charges paid were recorded to the credit of the consignor, the defendant No.1 had to return `2,13,701.02 to the plaintiff. Thus, decree passed against defendant No.1 in said sum is correct.

 

9. As regards whether defendant No.2 and defendant No.3 were the agents of defendant No.1, though the issue is irrelevant, for the reason as per para 8 above, we agree with the learned Single Judge that said defendants were the agents of defendant No.1 inasmuch as under clause-4, under the caption “Issuing Carriers’ Agent” the name of said defendants is written in the 37 Airway bills, we clarify that in some Airway Bills the name of defendant No.2 is written and in others the name of defendant No.3 is written. Being written on a written document i.e. Airway bill, status of said defendants is clearly that of the agents of the carrier i.e. defendant No.1, the appellant.

 

10. We must highlight that defendant No.1 admitted having received excess freight charges in sum of `4,96,864.67 in the written statement filed and took a stand that it had returned `2,83,163.65 to defendant No.2 but kept quiet about the remainder in the written statement and only during arguments before the learned Single Judge said that not knowing whom to return the amount it did not pay the same. Why was the amount not tendered in Court to be paid to the rightful owner? No answer is forthcoming.

 

11. We dismiss the appeal but refrain from imposing any costs since none appears for the respondents.

 

12. Under orders passed in appeal, the appellant has deposited `2,13,701.02 in this Court which has been paid over to the plaintiff upon furnishing a bank guarantee by the plaintiff and since the appeal is dismissed we discharge the bank guarantee requiring the Registry to return the same, upon demand by the plaintiff or the issuing bank.

(PRADEEP NANDRAJOG)

JUDGE

(S.P. GARG)

                                                                                                                                                                                                                                                                                 JUDGE

 
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Published in Corporate Law
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