Delhi District Court
Ms New Era Industries vs Ms K. M. Europa Metal Ag on 28 April, 2025
IN THE COURT OF SH. HARJYOT SINGH BHALLA
DISTRICT JUDGE-05, SOUTH DISTRICT,
SAKET COURTS, NEW DELHI
CS DJ 6855/16
MS NEW ERA INDUSTRIES Vs. MS K. M. EUROPA METAL
AG
CNR No. DLST01-000148-2009
M/s New Era Industries
A partnership Firm,
Having its Regd. Office at
51, First Floor Adhchini,
Near Qutab Hotel,
New Delhi-110017
[Through its Partner Shri Aman Khanna]
............ PLAINTIFF
Vs.
M/s KM Europa Metal AG
Klosterstrasse 29
49074 Osnabruck
Germany
.......... DEFENDANT
Date of Institution : 13.05.2009
Arguments concluded : 19.03.2025
Date of judgment : 28.04.2025
JUDGMENT
1. Vide this judgment, I shall dispose of the suit for recovery of ₹36,38,403.00 (Rupees Thirty Six Lacs Thirty Eight Thousand Four Hundred & Three Only).
2. The brief facts, as culled out from the plaint, are as follows:
1. That the plaintiff is a duly registered partnership firm having its registered office at the address mentioned in the cause title of CS DJ No.6855/2016 Page No. 1 of 30 the present Plaint. Shri Aman Khanna is the partner of the Plaintiff firm and his name has been shown in the Register of Firm as Partner of the Plaintiff firm and as such, he is authorized to sign, file, verify and institute the present Suit.
2. That the Plaintiff is importing and marketing a few selected & reputed international branded products related to the field of Architecture and Interior Design, and is the Exclusive Licensee and Sole Distributor in India for such products.
3. That the Defendant is a Company based in Germany and is a Manufacturer and Supplier of Patina Copper Sheets used for cladding of sloping roofs, pergolas, etc under the brand name of "TECU". The Defendant Company appointed the Plaintiff as their representative in India for the purpose of marketing and promotion of the goods manufactured by the Defendant under the brand name "TECU". As per the understanding between the parties, it was agreed that the Plaintiff would be the sole representative of the Defendant in India and would undertake all the business activities necessary for the sale of TECU brand products on the basis of pre-determined commission on project to project basis.
4. That in August, 2005, ITC was planning the construction of a Hotel called "ITC Gardenia Hotel" in Bangalore. The Plaintiff approached the ITC with a proposal to use the Defendant's TECU Patina copper sheets for roofing and cladding of sloping roof, pergolas and canopies for the aforesaid hotel being constructed by the ITC. The Plaintiff communicated the aforesaid fact to the Defendant, who asked the Plaintiff firm CS DJ No.6855/2016 Page No. 2 of 30 to make every effort to procure the order from ITC for use of its products in its aforementioned Hotel. Thereafter, the Plaintiff started perusing the Project in order to procure the order on behalf of the Defendant in the said ITC Project.
Thereafter, the Plaintiff made sincere and strenuous efforts over a period of more than 2 years in order to successfully procure the contract for the ITC Project. The successful specifications of TECU Patina sheets in the tender documents through an Architect in Delhi were undertaken by the Plaintiff firm in September, 2005. From January 2006 to April, 2006, based on numerous emails exchanged with the Defendant and the Installation Company in Singapore, the Plaintiff worked out the material and wastage estimate and budgetary cost, which were approved by the ITC and provided all the Principal Contracting Companies including the Defendant with the quotations for providing and fixing of TECU Patina Sheets for the aforesaid ITC project.
5. That in the month of November and December, 2006, the Plaintiff successfully executed a mock-up of Canopy Clad with TECU Patina Sheet at the Project site. Based on the mock-up prepared by the Plaintiff, the use of TECU Patina Sheet was finally approved by ITC for its aforesaid project.
6. That thereafter, the Plaintiff informed about the said approval to the Defendant Company. In the entire transaction, the Defendant Company was being represented by one Mr. Herbert Mock, who was taking all the decisions on behalf of the Defendant Company. Initially, in August, 2005, when the Plaintiff firm had initiated the proposal for use of Defendant's products in the ITC CS DJ No.6855/2016 Page No. 3 of 30 Project, it has agreed to pay 25% commission on the value of the goods supplied for the aforesaid ITC Project. As the ITC, with all the efforts of the Plaintiff firm, was considering to place a Purchase Order on the Defendant Company for supply of its products, on 06.06.2007, Mr. Aman Khanna, the Partners of the Plaintiff firm spoke to Mr. Herbert Mock of the Defendant Company, who, during the said conversation, informed that since the price level in Euro was approx. Euro 70 to 75 per m2, the commission payable by the Defendant Company to the Plaintiff would be 15%, to which, the Plaintiff firm agreed. Consequently, based on the aforesaid telephonic conversation to confirm the commission payable to the Plaintiff, the plaintiff sent an email dated 08.06.2007 to the Defendant Company seeking clarification/confirmation to the following effect: -
"The material supply price for the project as it stands today including our commission. If I understand you correctly, you mentioned that our previously calculated commission @ 25% approx would stand reduced to 15% at currently high price levels of approx Euros 70/- to 75/- per m2. As such, our commission would amount to approx Euros 45,000.00 (Euros forty five thousand). If however the raw material prices were to reduce, the percentage calculation would rise so as to keep the absolute value of the commission of Euros 45,000.00 unchanged. Please confirm if my understanding is correct?"
7. That vide the email of the same day, CS DJ No.6855/2016 Page No. 4 of 30 the Defendant Company confirmed the rate of commission mentioned in Plaintiffs email dated 08.06.2007 and gave the following clarification/confirmation: -
"This is almost correct, but I have to give you some more details about it. The calculation was based on 4000 sqm with the price mentioned above. Based on 4000 sqm the commission will be between 40.000 and 45.000€, even as you mentioned when we can offer a better price, but it will not be higher than 45.000€ and not less 40.000€, again when the volume will be 4000 sqm. If the quantity will be only 3000 sqm at least, than the commission will be between 30.000€ and 35.000€"
The Defendant, instead of quoting to the ITC through the Plaintiff firm, quoted directly to the ITC at its discretion and at the price decided by it alone, and simultaneously agreed for payment of rate of commission, as mentioned in the email dated 08.08.2007 of the Plaintiff firm. It may be relevant to mention here that the ITC was required to place the order directly on the Defendant Company, which was liable to directly supply the material to the ITC for its project against Letter of Credit opened by the ITC, as such, the commission agreed to be paid by the Defendant Company to the Plaintiff firm was to be paid by the Defendant itself.
8. That thereafter, in November, 2007, Mr. Herbert Mock representing the Defendant Company visited India and met the Plaintiff on 21.11.2007 in New Delhi and he verbally confirmed that the order for the ITC project would be for an estimated quantity close to 5000 sqm of Patina Copper Sheets at the price of Euro 62.50 per sqm and CS DJ No.6855/2016 Page No. 5 of 30 the commission at the agreed rate of 15% would be payable to the Plaintiff firm on the exact quantity of material supplied.
9. That vide the email dated 02.12.2007, the Plaintiff requested Mr. Herbert Mock of the Defendant Company to keep them informed and updated regarding the status of the order for the ITC Project. Mr. Mock replied vide email dated 03.12.2007 that a written order from ITC was still awaited and that the Defendant Company would revert back once the order was received and booked. The copy of the order as requested by the Plaintiff has not been received to-date even though, the Plaintiff firm learnt that the ITC had placed a confirmed order on the Defendant Company. Ultimately, it was confirmed that the actual volume of the order placed on the Defendant Company by ITC was 5675 sqm.
10. That thereafter, the Plaintiff was completely shocked and surprised to receive an email dated 06.02.2008, whereby, the Defendant Company, while acknowledging the role played by the Plaintiff firm in procuring the order for ITC project, stated that instead of the agreed commission of 15%, only the commission of 5% would be paid to the Plaintiff and that too, after the material was delivered and the contract executed. The Plaintiff firm immediately informed the Defendant Company that as per the Agreement, the Defendant Company is liable to pay the commission at the agreed rate of 15% and the Defendant cannot go back from its contractual obligations after the pronouncement of Order, which was the result of sincere and persistent efforts made by the Plaintiff firm for a period of even more than two years, which had also incurred CS DJ No.6855/2016 Page No. 6 of 30 huge expenses. Vide the letter dated 08.07.2008, the Defendant Company offered the Plaintiff firm to pay an increased commission (termed as final compensation) of 6%, based on the actual order volume of 5675 sqm @Euro 62/- per sqm, however, the same was rejected by the Plaintiff.
11. That as stated herein above, as per the agreed terms and conditions of the Agreement, the Defendant Company is liable to pay an amount of Euro 56,750/-, which is equivalent to Rs.36,38,403/- based on supply of volume of 5675 sqm, however, despite repeated requests and reminders, the Defendant Company failed to pay the said amount.
12. That since the Defendant Company failed to pay the amount due and payable by it to the Plaintiff as per the Agreement between the parties, the Plaintiff got issued a legal Notice dated 16.09.2008 calling upon the Defendant to pay Euro 56,750/- which is equivalent to Rs.36,38,403/-along with up to date interest.
13. That in response to the said legal notice, another communication dated 10.12.2008 was received from the Defendant Company, wherein, it again offered only 6% commission (termed as 'compensation') amounting to Euro 18,682.05, however, the said amount was not acceptable to the Plaintiff as the Defendant Company is liable to pay the entire agreed amount of Euro 56,750 (equivalent to Rs.36,38,403/= at the present rate) and the Defendant is also liable to pay an interest @ 18% per annum, which is from the date of filing of the present Suit till its realization at the prevailing market rate of interest for international transaction.
CS DJ No.6855/2016 Page No. 7 of 30Hence, the present Suit.
14. That the cause of action for filing the present Suit firstly arose in August, 2005, when the Plaintiff firm proposed the use of Patina Copper Sheets manufactured by the Defendant Company in ITC Project at Bangalore. It further arose when due to the efforts made by the Plaintiff firm from September 2005 till November / December, 2007, the Defendant Company was able to procure the order from ITC for supply of Patina Copper Sheets manufactured by it. It also arose when the Defendant executed the order of the ITC, Bangalore and supplied the material to it. The cause of action further arose when despite repeated requests and reminders including service of legal notice dated 16.09.2008, the Defendant Company failed to pay the amount of agreed commission to the Plaintiff firm. The cause of action is still continuing as till date, the Defendant Company has not paid the amount due and payable by it to the Plaintiff.
15. That this Hon'ble Court has territorial jurisdiction to try and entertain the present Suit as the Defendant Company had appointed the Plaintiff as its representative at Delhi for the entire India. Further, the Plaintiff firm interacted with ITC Office at Delhi for procurement of the order for its hotel project at Bangalore and the entire dealings for transaction were carried out by the Defendant Company with the Plaintiff firm's office at Delhi. Further, the entire commission was payable by the Defendant Company to the Plaintiff firm at Delhi, as such, the cause of action has arisen within the territorial jurisdiction of this Hon'ble Court.
CS DJ No.6855/2016 Page No. 8 of 3016. That the value of the suit for the purpose of court fees and jurisdiction is assessed at Rs.36,38,403/-, on which requisite court fees of Rs. 37,860/- has been paid by the Plaintiff firm.
That it is respectfully prayed that this Hon'ble Court may be pleased to:
a) Pass a decree of recovery of Rs.36,38,403/-(Rupees Thirty Six Lacs Thirty Eight Thousand Four Hundred and Three Only) in favour of the Plaintiff firm and against the Defendant Company along with pendente-lite and future interest @ 24% p.a. from the date of filing the present suit till its realisation;
b) Award the cost of the present suit in favour of the Plaintiff firm and against the Defendant Company; and
c) Pass such other or further orders which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case in favour of the plaintiff.
3. Summons were sent to defendant, which was duly served. Appearance entered on behalf of Defendant. The defence taken by the defendants in the WS is as under:
1. This Court does not have the territorial jurisdiction to entertain the present plaint.
2. That there is no agreement signed or executed between the parties or arrived at in any manner within the territorial jurisdiction of this Hon'ble Court. No cause of action of any nature or part thereof has arisen within the territorial jurisdiction of this Hon'ble Court. Since there was no agreement CS DJ No.6855/2016 Page No. 9 of 30 between the parties, there was no obligation which was to be performed in the territorial jurisdiction of this Hon'ble Court. Neither any commission was payable nor was agreed to be paid by the Defendant to the plaintiff.
3. There is no privity of contract between the parties. The steps taken by the plaintiff for its own business promotion or various discussions between the parties does not in any manner constitute any contract between the parties. The entire plaint is bereft of any particulars of the alleged contract sought to be created by the plaintiff.
4. It is denied that the plaintiff is a partnership firm or the same is registered, the plaintiff be put to strict proof thereof. It is denied that Mr. Aman Khanna is one of the partners of the plaintiff firm or he is competent to sign or verify or institute the present claim.
5. It is denied that the plaintiff is any sole distributor or exclusive licensee of any product.
6. It is specifically denied that the Defendant Company at any point of time appointed plaintiff as their representative in India for their product for the purposes of marketing or promotion. It is specifically denied that there was ever any understanding that the plaintiff would be sole representative or would undertake all the business activities necessary for the sale of TECU brand products on pre-determined commission on project to project basis or otherwise. No such agreement was ever arrived between the parties and no such agreement was ever signed for the said purposes. Rest all is false and is therefore denied.CS DJ No.6855/2016 Page No. 10 of 30
7. It is specifically denied that the Defendant made any representation to ITC or to any client as the representative of the Defendant.
The Defendant would have paid commission only if the contract was finalized through the plaintiff and not otherwise. If the plaintiff had made any efforts for sale of the products of the Defendant the same was for their own business promotion. It is specifically denied that the plaintiff is dealing with ITC was for and on behalf of defendant. The efforts made by the plaintiff to promote its business do not in law or otherwise create any contractual relationship between the defendant and plaintiff as is being represented by the plaintiff. As such it is specifically denied that the Defendant asked the plaintiff to procure the contract or pursue the same on their behalf. As it appears from the averments made in the para that the plaintiff was working for ITC and various other companies for the product desired by ITC. It is submitted that the product of the Defendant can be purchased by any person either directly or through their Agents. Various other persons /agencies were also in the offering TECU product to ITC. It is specifically denied that mock up of Canopy Clad was prepared by the plaintiff on the directions of the Defendant. It is submitted that there were only negotiations between parties which never, resulted in any contract.
8. The contents of para 6 as stated are wrong and therefore denied. The plaintiff has deliberately not filed the complete emails and correspondence exchanged between the parties which would clearly reflect the intention of the parties. The plaintiff is quoting a part of the email in order to mislead the Hon'ble Court. The Defendant CS DJ No.6855/2016 Page No. 11 of 30 will rely on the complete correspondence exchanged between the parties which would clearly show that whatever steps the plaintiff took was for its own business promotion. The Defendant submits that the plaintiff would have only become entitled for commission if any, on rate and on terms and conditions to be agreed between the parties and if the contract would have been procured by it. The offer made by the plaintiff for Defendant's product was never accepted by ITC. Since no contract was procured by the plaintiff for the Defendant, the question therefore of plaintiff being entitled to a commission at any rate does not arise.
9. It is submitted that the offer made by the plaintiff to ITC for Defendant's project was rejected by ITC and parties never reached the stage of finalization of commission. It is submitted that the plaintiff has no role whatsoever in the order placed by the ITC on the Defendant on the rates and offer given by the Defendant to ITC. It is specifically denied that Mr. Herbert Mock made any such representation with regard to the ITC project or with regard to the payment of commission as alleged. Rest all is false and therefore denied.
10. It is denied that there was any such agreement to pay commission @ 15% or Defendant had any such contractual obligation or the order finally placed on the Defendant was due to any efforts of the plaintiff. As submitted the plaintiff had made efforts if any for its own business promotion which never fructified in grant of an order by the client. The Defendant, in order to amicably settle the matter agreed to compensate the plaintiff @ 6% subject to receipt of payment from the client. However, CS DJ No.6855/2016 Page No. 12 of 30 the said offer of the Defendant having been rejected, the said agreement also never came into existence. As such the Defendant has no liability whatsoever to pay any amounts to the plaintiff.
11. The contents of para 11 are wrong and therefore denied. It is denied that there are any agreed terms or conditions or there is any agreement at all between the parties. It is denied that the Defendant is liable to pay any amount of Euro 56,750/- or any other amount whatsoever on the basis of the volume or otherwise. As submitted there was no agreement of any nature arrived at between the parties. The question of Defendant performing any obligation does not arise. The Defendant is not liable to pay any such amount as mentioned in the para to the plaintiff. Rest all is false and therefore denied.
12. The alleged legal notice of the plaintiff dated 16.09.2008 was issued on a wrong premise and was against the facts and documents. The plaintiff is not liable to pay any such amount or any other amount as stated in the alleged legal notice. The Defendant replied to the said legal notice vide their letter dated 10.12.2008 and once again offered to compensate the plaintiff though there was no such agreement for the same; however, the said offer Was again rejected by the plaintiff. It is denied that the Defendant is liable to pay any interest @ 18% p.a. or any other rate on any amount as stated in the para under reply to the plaintiff. The present suit has been filed on a wrong premise and is without any cause of action and is liable to be rejected.
13. The plaint as such is liable to be CS DJ No.6855/2016 Page No. 13 of 30 dismissed by the Hon'ble Court due to lack of jurisdiction. In view of the above facts and circumstances, it is therefore prayed that the plaint of the plaintiff be dismissed with costs.
4. Vide order dated 24.02.2012, Ld. counsel for plaintiff has denied all the documents filed on behalf of defendant, whereas defendant has admitted Ex.P-1 to P-21 of the documents filed on behalf of plaintiff.
5. On the pleadings of the parties, the following issues were framed vide Order dated 10.04.2012. The issues framed are as under:
1. Whether this Hon'ble Court has the territorial jurisdiction to entertain the present suit? OPP/ OPD
2. Whether any concluded contract was arrived at between the parties as pleaded by the plaintiff? OPP
3. Whether the Plaintiff is entitled to the amounts claimed in the suit? OPP
4. Whether the Plaintiff played any role in securing the contract with ITC for supply of TECU Patina sheets? If yes, to what commission is the plaintiff entitled? OPP
5. Whether the Plaintiff is entitled to pendente lite and future interest? If yes, at what rate? OPP
6. Whether the Plaintiff is entitled to the cost of the present suit? OPP
7. Relief.
Evidence:
CS DJ No.6855/2016 Page No. 14 of 306. In plaintiff's evidence, Plaintiff examined Sh. Aman Khanna, Partner of Plaintiff as PW1 and he exhibited the following documents:
1. The partnership Deed dated 26.08.2008 alongwith form A, B and C by the Registrar of Firm as Ex.PW1/1
2. The plaintiff proposed to be the representative of Defendant in India, email dated 14.12.2004 as Ex.P9
3. E-mail dated 08.01.2005 as Ex.P7
4.E-mail dated 02.02.2005 as Ex.P2
5. E-mail dated 09.02.2005 as Ex.P1
6. Fax message dated 16.02.2005 from the Plaintiff to the Defendant as Ex.PW1/6
7. E-mail dated 07.07.2005 as Ex.PW1/7
8. Cost estimates email dated 02.08.2005 as Ex.P4, P5
9. Reply email by Defendant dated 03.08.2005 as Ex.PW1/9.
10. The plaintiff sent Architect's drawings showing the installation and asked the Defendant to fabricate the sheets for mock up, email dated 22.09.2006 as Ex.PW1/10
11. E-mail dated 20.01.2007 as Ex.PW1/11
12. E-mail dated 04.06.2007 as Ex.PW1/12
13. E-mail dated 08.06.2007 by Defendant as Ex.P12
14. E-mail dated 23.08.2007 as Ex.PW1/14
15. E-mail dated 29.08.2007 as Ex.PW1/15
16. E-mail by Plaintiff to Defendant estimating the quantity of sheets that would be required and seeking confirmation of defendant as Ex.PW1/16 CS DJ No.6855/2016 Page No. 15 of 30
17. The reply email dated 11.09.2007 by defendant as Ex.P14
18. Plaintiff communicated the clarifications to Mr. Keshav Verma, Architect from M/s RK Associates by email dated 12.09.2007 as EX.PW1/18
19. E-mail dated 10.11.2007 as Ex.PW1/9
20. E-mail dated 01.12.2007 as Ex.PW1/20
21. Reply email dated 03.12.2007 as Ex.PW1/21
22. E-mail dated 06.02.2008 as Ex.PW1/22
23. E-mail dated 06.02.2008 by defendant as Ex.P15
24. Letter dated 01.03.2008 as Ex.PW1/24
25. Letter dated 19.03.2008 of Defendant as Ex.P19
26. Letter dated 08.04.2008 as Ex.P18
27. Letter dated 15.06.2008 as Ex.PW1/27
28. E-mail dated 17.06.2008 as PW1/28
29. Letter dated 08.07.2008 as Ex.P20
30. E-mail dated 18.07.2008 as Ex.PW1/30
31. Letter dated 19.07.2008 as Ex.PW1/31
32. Legal notice dated 16.09.2008 as Ex.PW1/32
33. Fax dated 10.12.2008 by the defendant as Ex.P21
7. PW-1 cross-examined and discharged. Plaintiff has further examined Sh. Keshav Verma as PW-2. The documents mentioned in the evidence affidavit Ex.P2/A of PW-2 were not filed on record. PW-2 has been duly cross-examined and discharged.
8. The Plaintiff has further examined Sh. Aman CS DJ No.6855/2016 Page No. 16 of 30 Khanna as PW-1 in additional evidence. PW-1 has tendered his affidavit as EX.PW1/A-1 and she relied upon the document i.e. Certificate under Section 65B of Indian Evidence Act as Ex.PW1/X.
9. No witness was produced by the defendant in the present case and defendant has chosen to rely on the cross- examination of the Plaintiff's witness to prove its defence. The same indicates that the defendant was not interested in pursuing the present matter and the matter was listed for final arguments.
10. Submissions have been heard on behalf of the parties.
11. The defendant has argued that there was no concluded contract between the plaintiff and the defendants and therefore, the present suit is not maintainable for want of privity of contract. It is urged that some efforts were made towards arriving at a contract, but the negotiations has not yielded in a contract between the plaintiff and the defendants. Therefore, no commission was payable to the plaintiff by the defendant. To buttress the contention, Ld. Counsel has relied upon the Section 10, 13 and 29 of the Contract Act to show that there was no final acceptance of the offer/counter offer between the parties and they were not ad idiom to constitute the valid contract.
12. Secondly, it has been urged that the plaintiff had failed to procure the contract for supply of material and erection of structure with a third party entity i.e., ITC Gardenia. Although, there were some negotiations with the assistance of the plaintiff, ultimately, the contract was directly entered into between the plaintiff and the said company.
CS DJ No.6855/2016 Page No. 17 of 3013. Lastly, it has been urged that goods were supplied and work was carried out at hotel ITC Gardenia, Banglore. Therefore, there is no cause of action within the jurisdiction of Delhi and this court has no territorial jurisdiction to deal with the same.
14. The plaintiff has in response to the objections raised by the defendants relied upon certain admissions made by the defendant and more specifically Ex.P-13 dated 08.06.2007, Ex.P-19 dated 19.03.2008 and Ex.P-21 dated 10.12.2008, as also, an e-mail dated 09.08.2005, which was admitted in the judicial orders, more specifically in C.R.P. No. 231/17, order dated 01.05.2018 and CM(M) No. 1476/18 order dated 19.03.2024. Further, reliance is placed upon the Ex.PW1/A1, which is the additional affidavit on behalf of PW-1 to prove certain e-mails.
15. I shall first decide the issue no.2 i.e. Whether any concluded contract was arrived at between the parties as pleaded by the plaintiff? OPP.
Cross examination of PW-1 dated 21.04.2015:
Q2 Do you have any letter issued by defendant appointing you as their representative in India?
Ans. We have an email from Mr. Mock @ KME to say that the Plaintiff is the authorised partner company of KME in India. It is not filed in the suit record but it was given by us to the architect and it is a part of the affidavit of the said architect namely Keshav Verma who is a witness of the Plaintiff. Further prior to this email the defendant had asked us to send a written fax stating that a close cooperation between the Plaintiff and defendant was agreed upon and the Plaintiff would function as the De-facto CS DJ No.6855/2016 Page No. 18 of 30 representative of the defendant company in India. Subsequent to our sending this fax we received from the defendant company a shipment of samples and promotional material. Again said the email was addressed to the client ITC and CC to us.
...
Q6 I put it to you that you approached the defendant for appointment as their representative in India which was not agreed to by the defendant.
Ans. It is incorrect.
Q7 Do you have any letter from the defendant asking you to approach ITC on their behalf?
Ans. No. Vol. But we wrote to the defendant telling them that we were proposing the use of their TECU Copper sheets for the ITC Gardenia Hotel Project in Benglore through the Architect of ITC and requested the defendant for a quotation which they sent to us and based on which we quoted to the architect of ITC. Defendant also provided us with all the technical information based on which we got the TECU Sheets specified in the tender documents of the project. The defendant also sent us Copper sheets to execute a Mock up of the project site which was executed by us and approved by the client and architect.
...
Q10 Can you please tell us what "tender" are you referring to in answer to question no. 7?
Ans. This is tender for construction of the ITC Gardenia Hotel in Bengalore floated by Architect and ITC.CS DJ No.6855/2016 Page No. 19 of 30
Q11 Can you please tell us when was this tender floated?
Ans. It was towards the end of 2005.
Q12 Did you submit any bid in pursuance of the said tender and if so in whose name?
Ans. We did not submit any bid. We submitted budgetary quotation to the architect based on which the TECU item was specified in the tender as one of the approved finishes.
Q13 Are you aware who submitted the tender for ITC Gardenia Hotel in Bengalore?
Ans. There were many civil contractors who bid for the job including Ahluwalia Contracts, BE Billimoria Co. and Ors.
Q14 Is it correct that the execution of the project was to be undertaken by the contractors who had submitted bids?
Ans. Yes. Vol. All the contractors took quotations from us for supply and installation of the TECU Sheets.
...
Q16 Kindly see para 3 of your affidavit on page 2. Can you show any email or letter on record in August 2005 where "the defendant who asked the Plaintiff firm to make every effort to procure the order from ITC for use of its products in its aforementioned Hotel".
Ans. There is an email from the defendant in June 2007 in this regard which is filed in the suit record.CS DJ No.6855/2016 Page No. 20 of 30
Q17 Did the Plaintiff at any point of time made any offer to ITC in your own name for TECU Sheets?
Ans. Not directly to ITC. Vol. Through Architect only.
Q18 Do you have any letter on record whereby the Architect referred to by you have called upon you to give the quotations?
Ans. I think so. On checking the record the witness say No. There is a trail email (Ex. P4 and Ex. P5 at pages 226 and 227 of the suit record) from the Architect.
Q19 I put it to you that there is no such fact mentioned in the documents referred by you in the previous answer.
Ans. I deny the suggestion.
...
Q20 Kindly see para 2 of your affidavit. Can you show any document on record whereby appointing you as a sole representative on the basis of pre-determined commission on project to project basis as stated by you in the affidavit is recorded in 2005?
Ans. No. Not in 2005. In 2005 there was the general agreement to appoint us as the representative of the Plaintiff in India. However, later in 2006 and 2007 there were many email exchanged regarding the compensation to us through commission.
Q21 This general agreement which you have referred in answer to Q20, has it been incorporated in any document executed CS DJ No.6855/2016 Page No. 21 of 30 between the defendant and Plaintiff?
Ans. It is in emails and also the fax that we sent in February 2005.
Q22 Was this fax of February 2005 replied by the defendant or defendant sent you any confirmation of February 2005?
Ans. No Vol. But they sent us samples and catalogs for us to commence our promotional efforts in India.
Cross examination of PW-1 dated 16.07.2015:
Q25 Is it correct that your offer made through the architect referred by you in answer to earlier question, were not approved and accepted by ITC?
Ans. That is not correct. Vol. We provided budgetary quotes and estimates to architect and based on the same the item was approved by the architect and specified by the architect in the tender.
Q26 Did you any point of time had any discussion with ITC regarding your answer to question no. 25?
Ans. Yes.
Q27 Is it correct that Mr. Kamlesh Gandhi of ITC specifically stated that you have not been able to give workable /orderable quantity with wastage factor till August 2007?
Ans. I do not recall.
Q28 Please see the email filed by you at page CS DJ No.6855/2016 Page No. 22 of 30 no.96 Part-III of Suit record. Who is Mr. Mock and who is Mr. Kamlesh Gandhi?
Ans. Mr. Mock is the manager of the defendant and Mr. Kamlesh Gandhi was the purchase manager at ITC (The Document shown to the witness is given the number Ex PW1/D1).
Q29 Once you were not able to finalize with ITC, the defendant submitted the offer and details directly to ITC with regard to product in question. Is that correct?
Ans. No. Vol. We requested the defendant in early January 2007 and June 2007 to give us the quotation but instead the defendant submitted the quotation directly to ITC but clearly mentioning our commission to us separately in the communication addressed to us.
Q30 I put it to you that at no point of time defendant promised any commission on the offer which was to be made by defendant to ITC directly. What do you have to say?
Ans. I deny the suggestion.
...
Q31 Is it correct that the offer made by defendant to ITC was accepted by the ITC? Ans. Yes. There was an order placed by ITC on the defendant.
Q32 In the offer made by defendant which was accepted by ITC, were you a party to the discussion?
Ans. No. Q33 Is it correct that the order placed by CS DJ No.6855/2016 Page No. 23 of 30 ITC was directly on the defendant and in November/December, 2007?
Ans. We do not have a copy of the order and therefore, I cannot comment on this.
Q34. Is it correct that defendant for whatever your efforts, agreed to pay as a settlement amount Euro 6% commission? Ans. That is correct.
...
Q35 Is this correct that you refused to accept the said commission?
Ans. Yes.
Q36 I put it to you that since the order was not placed through you nor you had any role in the purchase order issued by ITC you were not entitled for any alleged commission demanded by you?
Ans. I deny the suggestion.
Q37 I put it to you that there was no concluded contract arrived at between the parties.
Ans. I deny the suggestion.
16. Thus the plaintiff maintained its stand during cross examination. The stand of the plaintiff vis-a-vis visit of Mr. Herbert Mock in November 2007 and his meeting with plaintiff on 21.11.2007 has gone unrebutted. No suggestion was put to the witness that the said meeting had not taken place. No witness has been produced by the defendant to depose as to what transpired in the said meeting dated 21.11.2007 and that the plaintiff's claim was false and incorrect.
17. It is clear that the case of the plaintiff besides the e-
CS DJ No.6855/2016 Page No. 24 of 30mail is also based on meeting dated 21.11.2007 in New Delhi and plaintiff is claiming that the contract was concluded not only on the basis of the e-mail exchanged, but also the said alleged meeting of 07.11.2007. Since none has appeared on behalf of the defendant to depose about the content of the said meeting dated 21.11.2007, the court has no option, but to accept the only version before it i.e. of the plaintiff. Therefore, this court is unable to agree with the submission of the defendant that the correspondence exchanged between them only shows exchange of offers/counter offers and at no point of time, there was a concluded contract between the parties.
18. This is not a case where the entire contract is spelt out in writing, signed by the parties. The contract is not of supply of goods, but is of appointment of the plaintiff as an authorized agent for the parties for getting business from India and in lieu of payment of commission to the plaintiff. If there was no concluded contract at any point of time and parties were only negotiating with each other the terms of the engagement of the plaintiff as an authorized agent, why the defendant would respond to the e-mail dated 06.08.2005 of ITC Green Centre on 09.08.2005 asking them to get in touch with the plaintiff. The said e-mail dated 06.08.2005 and the reply dated 09.08.2005, which was also CC'd to Aman Khanna are quoted for ease of reference:
E-mail dated 06.08.2005:
Ours is a leading hotel chain based in india. We are planning to use your products for our upcoming projects in India. I would be grateful if you could send us some CS DJ No.6855/2016 Page No. 25 of 30 information about your dealers who are based in India/south-east Asia.
Thanking you in anticipation Vidyaprakash Project Manger, ITC Green Centre.
Reply e-mail dated 09.08.2005 by defendant:
Thank you for your inquiry. We are already aware of this project ITC in Bangalore. For this project our autorisized partner company NEW ERA INDUSTRIES took over the responsibilities. Please contact Mr. Aman Khanna.
New Era Industries 51 Adhchini, Sri Aurobindo Marg, New Delhi 110017 Tel: xx 91 11 2685 4673 e-mail: [email protected]
19. These e-mails were admitted in order dated 01.05.2018 and 19.03.2024 in CRP No. 231/2017 and CM(Main) 1476/2018. Further, the e-mail dated 08.06.2007 Ex.P12 is directed by the defendant Herbert Mock to the plaintiff which encloses a copy of an offer to ITC and comments to the questions/clarifications. This is an admitted e-mail. If there was no concluded contract between the parties, why the offer to ITC was being sent to the plaintiff herein. Therefore, issue no.2 is decided in favour of the plaintiff and against the defendant.
20. That takes me to issue no.4 i.e. Whether the Plaintiff played any role in securing the contract with ITC for supply of CS DJ No.6855/2016 Page No. 26 of 30 TECU Patina sheets? If yes, to what commission is the plaintiff entitled? OPP. It is pertinent to note that the defendant had admitted Ex.P15 i.e. e-mail dated 06.02.2008 sent by the defendant to the plaintiff. The said letter is quoted for ease of reference:
There is a contract between ITC and KME. This is inside of these two companies and not for third available.
Please let me explain that you have done a part of the successful acquisition for TECU Patina for this project and therefore you will be entitled to a commission as we pay when successfully procured a project with our products. This will be followed by KME commission regulation and after material will be delivered and paid.
There has never been a sale contract between ITC and New Era as well a subsequently (sales) contract between New Era and KME. Earlier communications between New Era and KME have been based at the case that New Era will get the contract with ITC. Unfortunately, the offer of New Era has not been accepted by ITC. The offer for the Prodema claddings has been not accepted by ITC as well conditional on the non proportional high prices of the offer of New Era. Clearly, saying this, that under such conditions as New Era offered our product and therefore KME could never get the order of the project.
We would like to come back to you for the regularly commission for project acquisition (which is 5% per m2 when the material will be delivered and we know the exact quantity.CS DJ No.6855/2016 Page No. 27 of 30
21. The contents of the said e-mail, of course, show the dishonest intention of the defendant. The defendant has introduced a claim that there was to be a sale contract between ITC and New Era and between New Era and the defendant, which was never concluded. I do not see in the e-mails placed on record by the plaintiff that there was a contract for sale of goods between the plaintiff and the defendant which was to become the foundation of any commission being paid to the plaintiff. Only the plaintiff was to serve as an agent to ensure that the defendant's product was utilized for the project by ITC. The claim of the plaintiff that because of import duties, ITC had to directly deal with the defendant company has also gone unrebutted. It is only for this reason that the defendant still offers commission for procuring the project with the product. This e-
mail dated 06.02.2008 is not without prejudice and is not an offer after any dispute had arisen between the parties. It shows a unilateral slashing of the agreed commission because the contract was entered into between the ITC and the defendant with the assistance of the plaintiff. Therefore, the plaintiff has been able to show from defendant's own admission that it had assisted ITC in securing the contract. The agreed rate of 15% as is evident from the e-mail Ex.P13 and the claim of a subsequent meeting dated 21.11.2007 has also been proved by the plaintiff. Issue no.4 is decided accordingly.
22. That takes me to issue no.3 i.e. Whether the Plaintiff is entitled to the amounts claimed in the suit? OPP. The plaintiff has been able to show that the defendant supplied 5675 Sq. Meter CS DJ No.6855/2016 Page No. 28 of 30 of its product to the defendant and was therefore, entitled to receive 56750 Euros, at least, equivalent to Rs.36,38,403/-. The issue no.3 is also decided in favour of the plaintiff accordingly.
23. As far as issue no.5 i.e. Whether the Plaintiff is entitled to pendente lite and future interst? If yes, at what rate? OPP is concerned, the plaintiff has been able to show that the transaction was commercial and he had issued legal notice being Ex.PW1/32 dated 16.09.2008 demanding the amount, as also, claiming interest, the plaintiff is also entitled to pre-litigation interest from 01.10.2008 till the filing of the case @ 9% per annum, as also, pendente lite and future interest at the same rate.
24. That takes me to issue no.1 i.e. Whether this Hon'ble Court has the territorial jurisdiction to entertain the present suit? OPP/ OPD. Plaintiff has been able to show that the contract between the parties were executed through e-mails exchanged between the plaintiff at New Delhi and the defendant, as well as, during the visit of the defendant's representative in the year 2007 and his meeting with the plaintiff at New Delhi. Since this is a contract for commission, these communications and the meeting form an important part of cause of action for filing the case and therefore, the first issue is also decided in favour of the plaintiff holding that since the part of cause of action had arisen at New Delhi, courts at New Delhi have jurisdiction to try the same.
25. Issues are answered accordingly.
26. Suit is decreed alongwith costs in favour of the plaintiff.
27. Decree sheet be drawn up.
CS DJ No.6855/2016 Page No. 29 of 3028. File be consigned to Record Room.
Digitally signed by Harjyot Harjyot Singh Bhalla Singh Date:
Pronounced in the open court Bhalla 2025.04.28 16:43:49 on 28.04.2025 +0530 HARJYOT SINGH BHALLA DJ-05, SOUTH SAKET COURTS NEW DELHI CS DJ No.6855/2016 Page No. 30 of 30