Bangalore District Court
M/S Green Agro Pack Ltd vs M/S. Web-Links on 17 February, 2020
1
Com.OS.No.4108/1999
IN THE COURT OF LXXXII ADDL.CITY CIVIL & SESSIONS
JUDGE,BANGALORE CITY.(CCH.83)
Dated this the 17th day of February 2020.
PRESENT:Sri.Jagadeeswara.M.,B.Com,LL.B.,
LXXXII Addl.City Civil & Sessions Judge, Bangalore.
Com.OS.No.4108/1999
Plaintiff M/s Green Agro Pack Ltd, having its
registered Office at No.2821, 6th cross, 18th
main, HAL 2nd stage, Bangalore-560 008,
represented by its Managing Director and
authorised representative Mr. B.M.Devaiah.
(By Sri. K.G.Raghavan - Advocate)
VS
Defendant M/s. WEB-LINKS,
Web-Links Espana S.L.,
Having its Office at
Beethoven 15
08021 Barcelona, Spain,
represented by Mr.Enrique Junoy Fatjo.
(By Sri.R.Sreedhar-Advocate)
Date of institution of the suit : 02.06.1999
Nature of the suit (suit on Suit for recovery of money
pronote, suit for declaration
and possession suit for injunction,etc) :
Date of the commencement 13.11.2008
of recording of the evidence
Date on which the Judgment 17.2.2020
was pronounced
Total duration Year/s Month/s Day/s
21 08 15
(JAGADEESWARA.M.),
LXXXII Addl. City Civil & Sessions Judge,
Bangalore.
2
Com.OS.No.4108/1999
JUDGMENT
Plaintiff has filed this suit against the defendant for recovery of a sum of Rs.3,94,79,138/- with interest at 24% per annum from the date of suit till realisation.
2. Brief facts of the case are as under:
(a). The plaintiff is a 100% export oriented unit engaged in food processing, producing semi finished gherkins both in vinegar and brine for the food processing industry, having processing capacity of 8000 MT of vegetables, being given the status of export oriented unit, entitled to various incentives offered by the Government of India to boost exports.
The plaintiff is under an obligation to export 75% or 100% of its Produce and in the event of its failure to meet its export obligation, it would be liable to pay duties of excise and customs from which it was exempted.
(b). Defendant is a company incorporated in Spain, carrying on business as an agent for selling semi-transformed vegetables and has been purchasing pickled gherkins from the plaintiff for sale in the European market and also holds shares to the extent of 40% in the plaintiff company. Mr. Enrique Junoy Fatjo, the director of the defendant is also a director of the plaintiff company. Plaintiff and the defendant entered into a Memorandum of Understanding (MOU) dated 7.9.1996 with certain terms and conditions. After entering into the MOU, inspite of repeated requests of the plaintiff, the defendant failed to enter into sales contract for each 3 Com.OS.No.4108/1999 year as contemplated in the MOU. As per the terms of the MOU, plaintiff was required to route the marketing of its Produce to the European continent only through the defendant. Plaintiff had no option but to effect sales on the purchase orders placed without prior execution of sales contract.
(c). It is further stated that plaintiff for the purpose of financing its exports availed Bill Discounting Scheme from Canara Bank, Bangalore. In terms of the said scheme, when the plaintiff dispatched the Produce to the defendant and presented the bills to Canara Bank, the value of the bills would automatically be credited to the plaintiff's account at no extra cost, provided the defendant made payment within the credit period between 60 to 90 days of receiving the Produce. Failure of payment by the defendant would result in interest payable at 10% to 11% from the date of discounting the bill, delinking charges arising from reversing of credit owing to non-payment and principal amount automatically becoming loan repayable on demand.
(d). It is further stated that the supplies to the defendant continued without any problem from September 1996 till January-February 1998. At that point of time, the defendant informed the plaintiff of a glut in the European market and its difficulty in marketing the entire Produce. The Produce would be dispatched to the defendant in consignments -each consignment containing 80 barrels of the Produce pertaining to a single purchase order. The Produce once packed, in the barrels is checked by the 4 Com.OS.No.4108/1999 Customs Department and thereafter, dispatched in containers which are sealed by the customs Department before they are loaded on the ship. The transshipment for export is confirmed by the issue of a Bill of Lading by the Shipping Liner. In the month of January-February 1998, defendant alleged that the Produce shipped was giving a bad taste and the said complaint was raised once more in March 1998. By way of abundant precaution, plaintiff obtained a warehouse to warehouse insurance for a total risk cover which was clearly stipulated in the insurance document that any complaint with reference to the Produce would have to be registered with the Authorities at Port within 7 to 15 days of the defendant taking delivery of the Produce. It is further stated that till 21.9.1998, the plaintiff had supplied to the defendant 92 containers of the Produce against various purchase orders placed by the defendant amounting to Rs.2,83,66,849/0. But, inspite of repeated requests for payments, defendant failed to make payments on the basis of flimsy and unsubstantial reasons. The defendant on one hand raised complaints with respect to quality of the Produce and on the other hand, consistently kept placing orders on the plaintiff for supply of Produce and also sought credit extension for payments already fallen due. The dispute with regard to the alleged bad quality containers was resolved in terms of a settlement dated 11.9.1998 under certain terms as detailed in para-15 of the plaint.
(e). After signing of the MOU dated 11.9.1998, plaintiff awaited return of 10 containers as promised by the defendant, but the defendant 5 Com.OS.No.4108/1999 failed to take any steps towards export of the same inspite of repeated requests by the plaintiff. The defendant also did not take any steps to sell the 22 second quality containers. The plaintiff communicated with the defendant in this regard, but the defendant has not reverted for the reasons best known to it. It is further stated that contrary to the stipulations contained in an earlier letter of 22.7.1998c the defendant asked the plaintiff to stop further shipments to a major buyer. The defendant in its communication dated 5.10.1998 informed the plaintiff that the stoppage of deliveries to the defendant was putting the defendant in a "limit" position. As regards the return of 10 containers, the defendant asked the plaintiff to place an order for the defendants to send back the said containers and indicate the Liner which, its agent, Jogrex should use. As regards the sales of second quality containers, the defendant stated that the attempts to sell the same were in progress. The plaintiff informed the defendant vide its communication dated 20.10.1998 that with every container that had been shipped, a quality control report giving details of chemical analysis had been sent, which was double checked in the laboratory of the plaintiff. The plaintiff also stated that it was not appropriate on the part of defendant to raise issues pertaining to quality six months after the goods had been shipped. By letter dated 28.10.98b the defendant informed the plaintiff that there were no buyers because of difficulty in sorting the goods and it was decided to return the same to the plaintiff. Inspite of repeated requests, the defendant did not dispatch the 10 containers to India, neither did the 6 Com.OS.No.4108/1999 defendant take any steps for the sale of 22 container in European market. The defendant failed to intimate the plaintiff as to the location of these containers. The defendant failed to intimate the plaintiff as to whether any test had actually been carried out. Resultantly 45 containers were lying in the warehouse of the said customer and neither have the same been paid for by the defendant nor have any steps been taken to find new customer for the same. However, the defendant did not produce any materials to show that the 45 containers had been rejected by Amora Maille after having conducted the tests and the defendant went on to state that the said batch of 45 containers could be sold for an average of 3 FFR/kg. The plaintiff in its communication dated 16.11.1998 specifically asked the defendant whether it could pay for all the bills pending with the bank and also informed the defendant that it could not offer a further price discount on 47 containers shipped after 28.3.1998.
(f). It is further stated that the plaintiff by its communications dated 23.11.1998 and 25.11.1998 informed the defendant that it had identified certain buyers to take over the stock and pay the invoice price and asked for various details with regard to the containers to be sold. But, the defendant even upon request, failed to give the importation cost incurred to arrive at a price for sale of the Produce. The defendant by its communication dated 4.12.1998 stated that as regards 45 containers, the defendant had started to sell them in B Class according to the MOU signed in Brussels and also stated that as per the actual market situation, the 7 Com.OS.No.4108/1999 demand was poor and prices were low. Inspite of numerous efforts of the plaintiff, it was unable to cause the defendant to honour is commitments as contained in the MOU dated 11.9.1998. Neither was the defendant forthcoming to provide details of location of the containers nor did the defendant fulfill any of the commitments under the MOU dated 11.9.1998. The defendant failed to provide its importation cost to the plaintiff with supporting documents, resultantly the plaintiff found it extremely difficult to negotiate cost with prospective buyers. Therefore, plaintiff issued notice of termination of the MOU dated 7.9.1996 by its communication dated 4.12.1998 giving the defendant one year's notice of termination as stipulated in the MOU.
(g). The defendant acted in breach of the agreement dated 11.9.1998 and has also acted in bad faith. Though nine months have elapsed since the date of settlement agreement, the defendant has not returned the 10 containers which the plaintiff accepted to take return. With respect to the remaining 22 containers, the defendant has till date not furnished any details of sales nor attempts to sell. No offer has been made to return these containers t the plaintiff. With respect to 45 containers, the defendant has not furnished any material to show whether any quality checks were conducted and if so, the result thereof. Apart from the 77 containers the plaintiff also effected supply of 15 containers, there is no quality issue raised but the defendant has not made any payment. Inaction on the part of the defendant under the Settlement Agreement dated 11.9.1998 dis-entitles 8 Com.OS.No.4108/1999 it from taking umbrage under the Agreement daed 11.9.1998. The Produces stated are perishable commodity and the shelf life does not exceed one year under the controlled conditions. In terms of Bill of exchange, the reasonable time for rejection is 7 to 15 days. The delay of 9 months between the date of settlement agreement and date of filing of the suit is unreasonable and hence, the defendant cannot claim the benefit of rejection for alleged quality problems.
(h). The plaintiff got issued legal notice dated 23.12.1998 to the defendant claiming a sum of FFR 4,037,860/- being the value of 92 containers. Though the defendant replied with untenable grounds, has not made any payments to the plaintiff in respect of the 92 containers that have been shipped by the plaintiff to the defendant, as a result of which the plaintiff incurred huge liability with its bank to the extent of Rs.1,11,12,289/- . The defendant refused to give personal guarantee to the Bank against the express Board Resolution to that effect. The defendant with ulterior motives, induced the plaintiff to ship as many as 92 containers of Produce valued as FFR 4,037,860/- (i.e., Rs.2.8 Crores). Due to the acts of the defendant, the plaintiff has suffered enormous losses as narrated in para No.34 of the plaint. Accordingly, plaintiff has requested to decree the suit.
3. Defendant filed its written statement contending that the Manager of the defendant Mr. Enrique Junoy assisted the plaintiff with his experience and advice and also designed some of the machines required 9 Com.OS.No.4108/1999 and was continuously helping the plaintiff. The defendant denied that the production capacity of the factory of the plaintiff is 8000 MT and contended that it is between 5000 to 6000MT only. The defendant is engaged in the business of importing commodities and semi-transformed raw materials for food to Spain. The MOU was executed by the parties of their own free will and accord and signed by fully authorized representatives of the plaintiff. The defendant holds 40% share of the plaintiff company. The plaintiff has deliberately suppressed certain provisions of MOU. Clause-6 of the MOU imposes counter prohibition on the defendant also and provides that if the defendant purchased any of the Produce covered by the MOU from any other Indian Supplier other than the plaintiff, then, the defendant would pay to the plaintiff full value of the purchase so made.
3(a). By a letter dated 9.7.1997 the defendant gave sales contract to the plaintiff i.e., the requirement of gherkins for the year 1997-98 and due to the poor quality of the products of the plaintiff, a new specific contract was not issued and the plaintiff also did not at any point require it. The defendant was accordingly placing purchase orders and having sought for, accepted the purchase orders and made deliveries thereon. The plaintiff itself admitted that the defendant has placed purchase orders. It is further contended that the whole transaction from the date of export of goods to the date of receipt of goods at their destination and verification of the quality of goods by the end customer would take between 70 to 90 days. If 10 Com.OS.No.4108/1999 the goods are found in order, then the amount is to be paid and any payment will always be subject to full compliance with the quality requirements as mentioned in all the purchase orders issued by the defendant and also in the Bill of Exchange, which was duly accepted by the plaintiff.
3(b). It is further contended that the plaintiff continued supplying poor quality goods to the defendant. The defendant repeatedly approached the plaintiff on coming to know the rejection of goods by its customers due to quality problems and was coerced to pay for 47 containers supplied between November 1997 and June 1998 even though the said containers contained defective and contaminated goods. The defendant which has 40% of the share holdings in the plaintiff company, was forced to make the above said payment. The plaintiff subsequently with fraudulent intentions, asserted that the goods were of good quality. The defendant started to seriously complaint about the quality problems from January 1998. The defendant received more and more complaints about the quality of the gherkins in February and March 1998, not only from Spain but also from France. The customers were also complaining that they were having problems when they repacked the gherkins in small containers for sale and as such, the customers were refusing the gherkins sent by the plaintiff. The complaints were about the acetic acid quality, foreign bodies such as plastic filaments, human hair, buts of strings and the like in the gherkin drums and in several cases, the drums had collapsed, broken, lids covered 11 Com.OS.No.4108/1999 with soil, liquid not transparent in the drums, bad taste and high salt content etc. The samples of plaintiff's gherkins brought from Spain and France were checked in the laboratory of the plaintiff's factory and found and recognized to be contaminated by all present, including the plaintiff's staff and its Managing Director Mr. Devaiah. The defendant and the representative of Amora-Maille S.A., of France were anxiously trying to figure out the reasons for the contamination during a meeting held at the factory. On being repeatedly asked by the defendant to look into the matter, the plaintiff admitted that there were defects through a fax of Mr. Devaiah dated 18.5.1998, after 6 or 8 months after the contamination problem began, that its fumigation was responsible for contamination. The plaintiff stated that the contamination occurred due to 'fumigation method applied to fumigate the container and the dunnage wood used to fumigate the container".
3(c). It is further stated that the defendant learnt that the plaintiff was fumigating the containers at the time of loading the barrels into the container by dropping Quicphos tables (a strong lethal insecticide) inside the sea shipping containers and immediately closing the container doors. As the transportation took between 45 to 60 days, the insecticide affected and reacted with the gherkins and the liquid, especially in those barrels which did not have the required rubber ring in the lid for an air tight closure. When the said fact was brought to the notice of the plaintiff, it was told that the plaintiff had run out of stock of the rubber rings and that 12 Com.OS.No.4108/1999 they needed money from the bank to purchase them. The sole intention of the plaintiff was to export the products at all costs without any delay notwithstanding the quality problems and immediately get money from its banker by discounting the Bill of Exchange. The insurance covered only transport derived risk and not the quality of the products and the contamination was made by fumigation before beginning the transportation process.
3(d). The defendant made payments on several invoices of more than 40 consignments during the problem period only to subsequently find that the goods were contaminated. Since the pace of shipments made by the plaintiff was of about 30 containers a month and they took an average of 60 to 70 days to reach destination, at least 60 or more containers were continuously on the fly before to be checked, which led to cumulating of bad containers at destination factories and to a substantial financial loss and also loss of reputation of the defendant. The location of the containers was communicated to the plaintiff several times by the defendant and the plaintiff was informed that they were in warehouse of Jogrex, N.V. in Belgium, who was the customer of the defendant, who made the importation and sold the goods to the final customers in France. The 45 containers shipped after April 1998 were refused by Amora-Maille (LMA) as the plaintiff failed in proving to LMA that the product was non- contaminated and good for consumption and the defendant and Jogrex were acting as mere cooperators to help the plaintiff in selling these 45 13 Com.OS.No.4108/1999 containers. The plaintiff's communication to the defendant that no price discount would be offered for the sale of such goods is breach of its undertaking contained in MOU dated 11.9.1998 wherein it was agreed that all losses derived from the quality problem will be supported by the plaintiff. The plaintiff did not cooperate in selling of the rejected containers under MOU dated 11.9.98 and also never communicated to the defendant the identity of the potential customers.
3(e). The defendant further stated that plaintiff had no buyers at all for purchase of contaminated, toxic and bad gherkins and in order to escape its liability with a malafide intention to illegally cancel the Sales MOU with the defendant signed on 7.9.1996 by issuing the notice. The defendant has not accepted the illegal termination notice, returning to the plaintiff such letter of termination. The plaintiff itself has admitted regarding the quality problems and as such, the defendant is making a counter claim against the plaintiff regarding the loss and damage suffered by it due to the illegal and wrongful termination. It is further stated that it is the responsibility of the plaintiff regarding the 77 containers which are the subject matter of the settlement and it cannot under the garb of alleging breach of agreement or otherwise escape the same. The plaintiff itself owes money to the defendant on several invoices and the plaintiff is also liable to pay the defendant amounts towards loss of business, reputation and consequential damages. The claim of Rs.3,94,79,139/- made by the plaintiff is fanciful, arbitrary and without any basis and the defendant is not 14 Com.OS.No.4108/1999 liable to pay any sum and much less any interest. There is no cause of action for the suit. Accordingly, the defendant requested to dismiss the suit.
4. The defendant has also filed counter claim reiterating the written statement averments and further contended that Mr. Devaiah was all along aware of the defective nature of the goods but, with ulterior motives, dispatched the same to the defendant and the defendant believing in good faith the assertions of the plaintiff that the goods were of excellent quality, paid for 47 containers supplied between November 1997 and June 1998 even though the said containers contained defective and contaminated goods. The defendant which has 40% share holding in the plaintiff was to perforce pay the same and help the plaintiff to survive. The plaintiff asserted that the goods were of good quality so as to prevent the defendant from canceling the orders which would have put the plaintiff in dire financial straits. Plaintiff for the first time admitted only in May 1998, 6 or 8 months after the contamination problem began, that its fumigation was responsible for the chemical contamination. During late July 1998 Amora decided to reject a batch of 35 fully contaminated containers. They also refused to accept a second batch of 45 containers (468 MT of gherkins packed into 3600 barrels, most of which were lying in their warehouse at Augy) because of the huge quality problems they were having. Amora also received a police denunciation and plenty of complaints from their customers (final consumer) which resulted in the defendant losing its main 15 Com.OS.No.4108/1999 customer. It is further contended that based on the assurance of plaintiff to supply good quality products and fully trusting the plaintiff, the defendant was still placing purchase orders on the plaintiff. However, the contamination and defects were noticeable only after a lapse of time and as such, the belief of the defendant that the Produce were of good quality were belied only after they were imported and time elapsed.
4(a). it is further contended that MOU dated 11.9.1998 was signed by the plaintiff and the defendant in Brussels to try to find a way to s ell even as low price B class all the refused goods already in Europe. The containers detailed as fully proven bad quality were 35 shipped to Antwerp and not less than 16 containers shipped to Spain. Clause-4 of MOU at Annexure-14 to the plaint clearly indicates that 32 containers were of bad quality and as such no payment is to be made for the same, but this despite the fact that all these containers were already paid for by the defendant to financially help the plaintiff. The defendant and Jogrex agreed to cooperate with the plaintiff to sell the refused goods, but plaintiff did not cooperate in selling these goods. The defendant endeavored to dispose of most of the goods in Spain to the customers despite a saturated market and knowledge in the market about quality problems of the goods or strong suspicion about bad quality. The defendant was not liable to reship to India any container which contained bad quality gherkins, which could be reshipped only if the plaintiff agreed to bear the transport costs as required by the freight company. The plaintiff never accepted to pay freight cost to 16 Com.OS.No.4108/1999 repatriate all bad containers to India despite many requests made by the defendant. However, the defendant had, at its own cost, transported all the barrels containing bad quality gherkins about 600 Kms from final customers factory in France to the vicinity of exporting port in Belgium to be ready for shipment through Antwerp (that had been the reception port) as soon as the shipping instructions were received along with acceptance of the Liner. The defendant asked the plaintiff to stop further shipments destined to Amora who had received most of the defective and contaminated gherkins from the plaintiff and was facing extremely serious problems.
4(b). It is further contended that the plaintiff's Managing Director Mr. Devaiah totally refused to seriously address the quality complaints, even purposely not communicating the real situation to the Directors during Board Meetings. Claims were also raised by Ets. Briand, another French customer to whom supplies were made and this was also brought to the notice of plaintiff vide letters dated 14.1.1999 an 25.1.1999. Defendant has forwarded invoices in lieu of earlier invoices and also invoices towards the rejections, claims from the importers etc., in January 1999. Defendant also lost out on sales to another importer Montrose on account of the plaintiff,for which the defendant should be receiving commissions on the consignments made. The plaintiff has approached customers in areas reserved to the defendant, especially in Europe (mainly in France and Spain) violating the terms of MOU. The defendant made every effort to 17 Com.OS.No.4108/1999 find a solution as can be seen from the emails. Failure of the plaintiff to address problems has resulted not only in the defendant paying for bad containers, but also incurring high importation costs, travel costs, inspection costs, analysis costs, total loss of income, loss of commissions, claims from customers etc., and loss of reputation and credibility of the defendant representative Mr.Enrique Junoy built over several decades.
4(c). Plaintiff is due and owing to the defendant in a sum of Rs.81,121,849/- with 24% per annum as detailed in para-30 of the counter claim and accordingly requested to allow its counter claim.
5. The plaintiff has filed Written Statement to the counterclaim reiterating the plaint averments and further contended that the counter claim filed by the defendant is not maintainable in law or on facts and is to be dismissed on the ground of misrepresentation and suppression of material facts. The defendant has, without any legal or logical basis made allegations which are completely opposed to the facts of the case, aimed at distorting the factual position of the case. The counter claim filed by the defendant is a counter blast to the suit filed by the plaintiff, and is nothing bu an attempt to coerce the plaintiff into succumbing to the illegal and wrongful demands of the defendant, as prayed in the counter claim. The plaintiff denied the fact that the defendant is holding 40% share in the capita of the plaintiff and technologically supporting the plaintiff. It is denied that Mr. Enrique Junoy had assisted the plaintiff free of cost with his experience and advice. It is further contended that except for one 18 Com.OS.No.4108/1999 occasion in 1996 at the request of plaintiff, sales to the defendant was covered by the Sales MOU, on all other occasions plaintiff did not insist on or even seek a Sales Contract to be in writing and signed. It is further contended that solely for the purpose of arriving at a settlement, the plaintiff agreed in the MOU that 10 containers may have been contaminated. The defendant is now seeking to contend that all the containers were contaminated on the basis of which this counter claim has been filed, which is clearly false and unjustified. The defendant was required to sell the refused goods as per the MOU. The defendant has violated the terms of MOU and is now seeking to implicate the plaintiff for its blatant fault. It is further contended that as per the MOU, the defendant is liable to reship to India any container which contained bad quality gherkins, but the defendant failed to do so. The plaintiff was willing to abide by the terms of MOU. On 4.12.1998 the Board of Directors of the plaintiff decided to terminate the MOU since it became practically impossible for the plaintiff to transact with the defendant. The notice of termination has been amply reasoned and the decision to terminate the same was communicated to the defendant, in compliance with the stipulation in the MOU. In the light of termination, the MOU signed between the parties on 7.9.1996 stands completely terminated. The defendant has not provided the plaintiff with the importation costs and other related expenses. It was the responsibility of defendant for the 77 containers. The time limit for a perishable product in most cases far 19 Com.OS.No.4108/1999 exceeded 11.9.1998 to address any quality issues. Since the MOU has been validly terminated, there is no question of any violations of the terms of the said MOU after the MOU has been terminated. The plaintiff categorically denied that it is liable to pay counter claim amount of Rs.81,121,849/-. Denying all other averments made in the counter claim, plaintiff requested to dismiss the counter claim filed by the defendant.
6. From the above the pleadings of the parties, following issues have been framed:
1. Whether the plaintiff proves as per plea in para-15 of the plaint that vide settlement i.e., MOU dated 11.9.98 the defendant was duty bound to re-ship (export back) 10 containers of gherkins identified as of bad quality ?
2. Whether the plaintiff further proves as contended in para-15 of the plaint that the defendant had agreed vide said settlement to sell remaining 22 containers treated as of second quality to the buyers in Europe ?
3. Whether the plaintiff also further proves as averred in para-15 of the plaint that as regards 45 containers that were shipped after April 1, 1998 the final buyer was to carry out test to check contamination who to accept or reject accordingly ?
4. Whether the plaintiff proves as contended in para-21 of the plaint that the defendant failed to intimate location of the containers to enable it to transact with the prospective buyers ?
5. Whether the plaintiff further proves as stated in para029 of the plaint that apart from 77 containers as noticed above for the supply of 15 more containers regarding which there was no quality issue raised; the defendant made no payments ?20
Com.OS.No.4108/1999
6.Whether the plaintiff also proves as averred in paras 7, 32 and 34 of the plaint that due to non-payment of the dues by the defendant its liability with the Canara Bank, Bangalore in availing bill discounting scheme came to Rs.1,11,12,289/- ?
7. whether the plaintiff is entitled to claim interest at the rate of 24% per annum ?
8. Whether the defendant proves that the liability of the plaintiff to guarantee quality of the gherkins sold continued till they were checked even after reception to conform with the technical specifications as required by the purchase order as contended in para-5 of the counter-claim and also till possible tracing of "hidden defects" as envisaged by the International Trade Legislation as pleaded in para-13 of the counter claim ?
9. Whether the defendant proves as averred in paras 7 to 9, 11 and 24 of the counter-claim that the gherkins including the containers sold were contaminated ?
10. Whether the defendant also proves as maintained in para-18 of the counter-claim that the MOU dated 11.9.1998 was signed by both the parties at Brussels (Belgium) to find out a way to sell the refused gherkins as low price 'B" class, being already in Europe ? If so, whether the defendant further proves that the plaintiff failed to co-operate in this context ?
11. Whether the defendant also proves as maintained in para-21 of the counter-claim that since 45 containers destined to Amora were rejected, it along with Jogrex were only to Act as mere co-operators to help the plaintiff in selling the same ?
12. Whether the defendant proves as contended in para-22 of the written statement that cancellation of MOU signed on 7.9.1996; by issuing notice (vide notice dated 4.12.1998 as 21 Com.OS.No.4108/1999 pleaded by the plaintiff in para-27 of the plaint) was illegal besides being with malafide intentions ?
13. Whether the defendant also prove as maintained in para-28 of the counter-claim that because of the plaintiff it also lost on sales to another Importer Mantrose ?
14. Whether the defendant proves as per particulars given in para-30 of the counter-claim that it is entitled to counter claim of Rs.8,11,21,849/- ?
15. What decree or order ?
7. The Managing Director of the plaintiff company got examined himself as PW.1 and got marked Exs.P.1 to P.214. On the other hand, the power of attorney holder of the defendant was examined as DW.1 and got marked Exs.D.1 to D.87.
8. I have heard arguments of both sides. I have carefully gone through to the materials on record.
9. My findings to the above issues are as under:-
Issues Nos. 1 to 3 - Affirmative Issue No.4 - Negative Issue No.5 & 6 - Affirmative Issue No.7 - Plaintiff is entitled for interest at 12% p.a. for the amount due.
Issue No.8 - Affirmative
Issue No.9 - Out of total 92 containers supplied, 77
containers were contaminated.
Issue No.10 - MOU dated 11.9.1998 was signed by the
parties to sell refused gherkins of 45
containers as 'B' grade materials.
Issue No.11 - Affirmative
22
Com.OS.No.4108/1999
Issue Nos.12 to 14 - Negative
Issue No.15 - As per final order
for the following :
REASONS
10. Issue Nos. 1 to 3: It is submission of learned advocate for plaintiff that it is admitted fact that plaintiff and defendant had entered into Settlement MOU dated 11.9.1998 for which both parties had signed.
Defendant in his written statement has admitted this fact. Plaintiff has produced original MOU at Ex.P.199. Terms of MOU clearly proves the contention raised by the plaintiff in para No.15 of the plaint. Accordingly learned advocate for plaintiff has requested to answer these Issue Nos.1 to 3 in the affirmative.
11. On the other hand, it is submission of learned advocate for defendant that no doubt the settlement MOU dated 11.9.1998 was entered into between the parties is not in dispute. But interpretation of the terms of MOU at the convenience of the plaintiff is not proper. Defendant has explained the reasons for not complying the terms of MOU dated 11.9.1998. Accordingly learned advocate for defendant has requested to answer these Issue Nos.1 to 3 in the negative.
12. It is an admitted fact between the parties that plaintiff was engaged in food processing and was producing semi finished gherkins both in vinegar and brine and it used to export the Produces. Defendant company is incorporated in Spain and is carrying on business as an agent 23 Com.OS.No.4108/1999 for selling semi transformed vegetables. Defendant used to purchase pickled gherkins from the plaintiff for sale in European market. Defendant Company was holding shares to the extent of 40% in the plaintiff company. One Mr. Enrique Junoy Fatjo was the Director of both plaintiff company and also defendant company. It is also admitted fact between the parties that plaintiff and defendant had entered into Memorandum of Understanding (MOU) dated 7.9.1996 with certain terms and conditions for sale of the Produces of the plaintiff to the defendant. Accordingly plaintiff used to supply its Produces to the defendant on the basis of supply order placed by the defendant. It is also undisputed fact between the parties that the defendant placed 92 purchase orders on the plaintiff from 11.3.1998 to 21.9.1998, which are the subject matter of this case. Accordingly plaintiff has supplied 92 containers of its Produce to the defendant against various purchase orders placed by the defendant by way of shipment and the entire value of shipments made amounted to FRR.4,037,860 (Indian Rs.2,83,66,849/-) as per the detailed list of shipments made to the defendant along with invoice numbers and price thereof as per Annexure-11 of the plaint. After receipt of the Produce of the plaintiff, defendant raised issue of quality of the Produce on the ground that Produce supplied is contaminated and it gives bad smell and it contains foreign bodies etc. Due to this quality issue raised by the defendant, plaintiff deputed two of its representatives viz., Managing Director Mr. Devaiah and Mr. Jayashekar its Consultant to visit warehouse 24 Com.OS.No.4108/1999 of ultimate customers in Belgium and France. Accordingly representatives of the plaintiff visited the warehouse of the customers along with Mr. Enrique Junoy Fatjo and Mr. Jos Olbrecht, who were agents involved in the transactions. After examining the various facts and pursuant to mutual discussions, the plaintiff and defendant had agreed to resolve their differences with respect to defective Produces by an agreement being MOU dated 11.9.1998. Accordingly plaintiff and defendant had entered into settlement MOU dated 11.9.1998 which is marked as Ex.P.199.
13. It is pleaded in para-15 of the plaint as under:
"15. In terms of the settlement dated 11.9.1998, the Plaintiff and Defendant resolved that:
The Defendant would export back to India all barrels identified as bad quality. These amounted to 10 containers i.e., 810 barrels The Defendant would not effect payment for these containers to the Plaintiff.
The remaining 22 containers would be sold as second quality by the Defendant to buyers in Europe.
As regards 45 containers that were shipped after April 1, 1998, the final buyer was to carry out tests to check contamination, if any, and would accordingly accept or reject them."
14. It is pertinent to note that defendant in its written statement at para-13 has categorically admitted settlement MOU dated 11.9.1998 entered into between the parties. The said admission in para-13 of the written statement is as under:
"Regarding para-13 of the plaint, the defendant submits that it is true 25 Com.OS.No.4108/1999 that the MOU dated 11.9.1998 was signed by the plaintiff and the defendant."
15. Plaintiff has produced original Settlement MOU dated 11.9.1998 at Ex.P.199. Either in the cross-examination of PW.1 or in the oral evidence of DW.1 there is no dispute raised by the defendant relating to contents of this Settlement MOU dated 11.9.1998 at Ex.P.199. The relevant terms of Settlement MOU dated 11.9.1998 at Ex.P.199 are as under:
"2. Some of the containers shipped by GAP during December'97 to March '98 were found to be contaminated by Quickphos fumigation and the product (gherkins) was not good for processing proved by AM. A buyer from France. Hence the payment from AM were held, WEB LINKS could not keep up payment schedule to GAP for some of these containers.
3. During the visit of representative of GAP TO Brussels and France from the 7th September to 11th September, all the rejected containers were physically inspected by the parties.
4. It was concluded that about 32 containers are affected by bad quality. (Fumigated). The parties of GAP and WEB LINK and also JOGREX agree for the following terms:
(A) To facilitate the bank formalities of GAP, WEB LINKS along with JOGREX will arrange to re-export to India, all barrels identified as bad quality (up today 810 barrels, but will be probably more).
(B) WEB LINKS and JOGREX will try to arrange for sale as second quality products to such buyers in Europe for the remaining containers, which can be salvaged. This money will be applied to pay to WEB LINKS and also JOGREX importation related expenses of these containers.
(C) For the 10 containers refused by AM, payment will not be 26 Com.OS.No.4108/1999 made by WEB LINKS.
(D) In the above process, whatever losses that may arise it will be settled amicably between GAP, WEB LINKS and JOGREX, so that if there is any loss; the same will be settled by GAP. In this connection, WEB LINKS and or JOGREX, will also show as evidence all sales documents as "B" grade and all other connected claims so that the matter can be resolved. There are also about 45 containers in the warehouse of MA, Augy and at the Antwerp port shipped after April 1 st 1998. Which are not yet accepted by MA. For all these containers GAP India approach their bankers to extend the period of maturity. However, in case MA do not accept these containers, GAP, WEB LINKS and JOGREX, will be obligated to find other and alternative markets to sell them.
(E). As soon as an objective chemical test to check the contamination is found, MA will carry out the tests and may accept these 45 containers as good products. Otherwise, these containers will have to be sold as 'B" grade to other market and all losses for WEB LINKS and JOGREX, if any will be settled by GAP.
(F) For the 45 containers shipped by GAP from April'98 to July'98, the buyers MA, DIJON FRANCE have not accepted yet, as they are conducting further test to satisfy that these containers are not affected.
(G) In addition, all pending quality claims from WEB LINKS not yet settled by GAP will be settled at an early date.
(H) In case MA sends any claims (i.e.,product recalling, others) the same will be settled by GAP."
16. It is submission of learned advocate for plaintiff that Produces consigned through shipments to the defendant was consisting of several containers and each container was consisting of 80 barrels. As per term 27 Com.OS.No.4108/1999 No.4(A) of the Settlement MOU dated 11.9.1998 at Ex.P.199, defendant had agreed to re-export to India all barrels identified as 'bad quality' (upto that date 810 barrels). This supports the contention of the plaintiff that defendant had agreed to re-export to India 10 containers of gherkins identified as 'bad quality'. As per term No.4 of Settlement MOU dated 11.9.1998 at Ex.P.199, it was concluded by the parties that about 32 containers are affected by bad quality. In term-4(A) of Settlement MOU dated 11.9.1998 at Ex.P.199, it was agreed by the defendant to re-export (export back to India) 10 containers of gherkins identified as bad quality. The remaining containers, out of 32 containers identified as bad quality, were 22 containers. In Term No.4(B) of the Settlement MOU dated 11.9.1998 at Ex.P.199, it was agreed by the defendant that defendant and Jogrex will try to arrange for sale as second quality products to such buyers in Europe and the sale proceeds will be applied to pay to the defendant and also to Jogrex importation related expenses of those containers. Term No.4(D) of the Settlement MOU dated 11.9.1998 at Ex.P.199 supports the contention of the plaintiff relating to Issue No.3. For these reasons, Issue Nos.1 to 3 are answered in the 'Affirmative'.
17. Issue No.4 : It is submission of learned advocate for plaintiff and it is also contended in the written arguments that the plaintiff has repeatedly through letters at Exs.P.200, 201, 202 & 204 requested the defendant to provide it the details of the location of the containers to enable it to transact with its prospective buyers. But the defendant has failed to provide such 28 Com.OS.No.4108/1999 details. This fact has also been clearly stated in the notice of the plaintiff dated 4.12.1998 terminating the MOU dated 7.9.1996. However, the defendant has failed to inform the location of the containers to the plaintiff. Accordingly it is submission of learned advocate for plaintiff that plaintiff has proved Issue No.4.
18. On the other hand, it is submission of learned advocate for defendant that there are no reliable records produced by the plaintiff to show that plaintiff had sent letters as per Exs.P.200, 201, 202 & 204. In fact plaintiff has failed to provide the details of the prospective buyers. Plaintiff knew very well as to where containers were located. Accordingly it is submission of learned advocate for defendant that plaintiff has failed to prove Issue No.4.
19. After having heard both sides, I have carefully gone through the materials on record. It is contended in para No.21 of the plaint, based on which this Issue No.4 has been framed, as under:
"21. It is submitted that inspite of the repeated requests by the plaintiff the Defendant did not dispatch the 10 containers to India, and neither did the Defendant take any steps for the sale of the 22 containers in the European market. It was the plaintiff, who, on various occasions, located buyers and requested the Defendant to furnish details with regard to the location of the containers in order that the said buyers could be requested to inspect the same. However, inspite of repeated requests in this regard, the Defendant failed to intimate the Plaintiff as to the location of these containers. Few of the relevant communications in this regard are 2.11.1998, 4.11.1998, copies of which are enclosed herewith as Annexure-19 & 20."29
Com.OS.No.4108/1999
20. Relating to the above noted pleading in para No.21 of the plaint is concerned, it is say of defendant in para No.20 of the Written Statement as under:
"20. The allegations in para No.21 of the plaint are misleading and half truth. The location of the containers was communicated to the plaintiff several times by the defendant and the plaintiff was informed that they were in the warehouse of Jogrex, N.V. in Belgium, who was the customer of the defendant, who made the importation and sold the goods to the final customers in France. (such as Amora-Maille, Ets. Briand and Conserveries Besiers). Copies of some of the letters indicating the location and the need to remove them at an early date is annexed hereto and marked as Annexure-S, M & M1 (Letter dated 5.10.1998 and 22.10.1998)."
As rightly submitted by the learned advocate for defendant, contention of the plaintiff that defendant failed to furnish details with regard to the location of the containers to request the buyers to inspect those containers, cannot be accepted for the reasons that in the plaint itself it is stated by the plaintiff that prior to entering into settlement MOU dated 11.9.1998 itself due to dispute raised by the defendant relating to quality of the Produce, plaintiff deputed two of its representatives i.e., its Managing Director Mr. Devaiah and its consultant Mr. Jayashekar to visit the warehouses of the ultimate customers in Belgium and France. The representatives of the plaintiff visited the warehouses of the customers along with Mr. Enrique Junoy and Mr. Joes Oldrecht, an Agent involved in the transactions. After examining the various facts and pursuant to mutual discussions, the plaintiff and defendant agreed to resolve their differences with respect to the 30 Com.OS.No.4108/1999 defective Produce by an agreement being a Memorandum of Understanding dated 11.9.1998. As per the pleading in para No.14 of the plaint, plaintiff knew where the defective Produce i.e., contaminated containers were located with the customers at Belgium and France. After visiting those places of the customers and after verifying the defective Produce, discussions were held which resulted entering into of MOU dated 11.9.1998. I have carefully examined the letters at Exs.P.200, 201,202 &
204. There is nothing in these letters to show that they were sent to the defendant either through post or through fax or through mail. When representatives of the plaintiff knew the places of the customers in Belgium and France where contaminated containers were located since they visited those places and verified the containers, the contention of the plaintiff that despite its repeated requests defendant has failed to inform the location of containers, cannot be accepted. For these reasons, this Issue No.4 is answered in the 'Negative'.
21. Issue No.5 : It is submission of learned advocate for plaintiff and it is also contended in the notes of argument that it is undisputed fact that on the basis of purchase order placed by the defendant, plaintiff had supplied 92 containers containing 80 barrels each, till 21.9.1998. Plaintiff has produced office copies of 92 invoices and they are marked as Ex.P.19 to P.110. Similarly, plaintiff has produced certificates from its Bankers at Ex.P.111 to 197 to show that 92 bills relating to said 92 containers have remained unpaid. The MOU dated 11.9.1998 pertains to 77 containers 31 Com.OS.No.4108/1999 only. The remaining 15 containers were of good quality for which defendant was liable to make complete payment. There is no proof placed by the defendant to show that said remaining 15 containers were forming part of the MOU dated 11.9.1998. Accordingly learned advocate for plaintiff has requested to answer Issue No.5 in the affirmative.
22. On the other hand, it is submission of learned advocate for defendant that though there is no dispute to the fact that based on the purchase orders of the defendant, plaintiff had supplied 92 containers till 21.9.1998, but as could be seen from the contents of MOU dated 11.9.1998, all the containers were contaminated and therefore, there are no materials to hold that 15 containers were not forming part of the MOU dated 11.9.1998. Accordingly, learned advocate for defendant has requested to answer Issue No.5 in the negative.
23. After having heard both sides on Issue No.5, I have carefully gone through the materials on record. Para No.29 of the plaint, based on which Issue No.5 has been framed, is as under:
"29. Apart from the 77 containers which are the subject matter of settlement of 11.9.1998 the plaintiff has also effected supply of the 15 containers. In respect of these 15 containers, it is submitted that there is no quality issue raised nor has the Defendant made any payment."
24. It is relevant to note that in para No.7, page No.5 of plaint, it is specifically pleaded that the defendant placed 92 purchase orders from 11.3.1998 to 21.9.1998, which are the subject matter of the suit. Further, it 32 Com.OS.No.4108/1999 is also pleaded in para No.12 of the plaint that till 21.9.1998 the plaintiff had supplied to the defendant 92 containers of the Produce against various purchase orders placed by the defendant. There is no specific and clear cut denial made by the defendant in its Written Statement relating to the averments pleaded in the plaint with regard to the Produce supplied by the plaintiff in 92 containers till 21.9.1998 based on the various purchase orders of the defendant. Apart from this, no dispute is raised in the cross examination of PW.1 relating to the 92 containers supplied by the plaintiff to the defendant till 21.9.1998 based on the orders placed by the defendant. Plaintiff has produced office copies of invoices of 92 containers at Exs.P.19 to P.110. Certificates issued by the bank together with corresponding returned bills after being dishonoured are produced and marked as Exs.P.111 to 197. Defendant has not disputed these records produced by the plaintiff. There is no much dispute raised by the defendant relating to the contention of plaintiff that based on the purchase orders placed by the defendant, it had supplied 92 containers of the Produce till 21.9.1998. Thus, from the materials on record, it is clear that based on the purchase orders placed by the defendant, plaintiff had supplied 92 containers of the Produce till 21.9.1998.
25. As rightly submitted by the learned advocate for plaintiff 77 containers are the subject matter of settlement in the MOU dated 11.9.1998 at Ex.P.199. Para No.4 and 4(A) to 4(C) of MOU at Ex.P.199 relate to 32 33 Com.OS.No.4108/1999 containers. Para Nos. 4 (D) to 4(F) relate to 45 containers. Thus, it is clear that 77 containers are the subject matter of settlement in the MOU dated 11.9.1998 at EX.P199. As noted above, plaintiff has proved from the materials on record that it had supplied 92 containers of the Produce till 21.09.1998, out of which 77 containers are the subject matter of MOU at Exs.P.No.199. There is nothing placed by the defendant to show that there was issue of contamination relating to remaining 15 containers. This shows there was no quality issue relating the remaining 15 containers. It is not the pleading and proof of the defendant that it made payment to the remaining 15 containers. Therefore, defendant is liable to make payment relating to the remaining 15 containers. For these reasons Issue No. 5 is answered in the 'Affirmative'.
26. Issue No.6 : It is submission of Learned advocate for plaintiff and it is also contended in the notes of of argument that there is necessary pleading in Para Nos.7, 32 and 34 of the plaint with regard to the Issue No.6. The plaintiff has produced Exs.P.16 & P.17 which are the certificated of interest and other charges charged by its bank in respect of non payment of invoices by the defendant. Plaintiff has also produced a certificate from its bankers at Ex.P.18 to show that 92 bills pertaining to the defendant have remained unpaid. The office copies of the invoices have been produced and marked as Exs.P.19 to P.110. The various protest and return certificates of Deutsche bank has been produced and marked Exs.P.111 to P.197. A statement showing the sums due under the various invoices is annexed to 34 Com.OS.No.4108/1999 the certificate of the plaintiff's bank at Ex.P.18. Accordingly, it is submission of learned advocate for plaintiff that from these materials on record the plaintiff has clearly proved Issue No.6.
27. On the other hand, it is submission of learned advocate for defendant that since plaintiff had supplied contaminated Produce in various containers, defendant has refused to make payments relating to those Produces and due to this reason, Deutsche bank, who is the banker of defendant, refused to make payment as per records produced and marked by the plaintiff as Exs.P.111 to P.197. Accordingly, it is submission of learned advocate for defendant that defendant is not liable for the bank charges of the plaintiff.
28. After having heard both sides, I have carefully gone through the materials on record. It is relevant to note that it is pleaded in para No.7 of the plaint that the plaintiff for the purpose of financing its exports availed the Bill Discounting Scheme (BDS) from Canara Bank, Bangalore. In terms of the said scheme, whenever the plaintiff dispatched the Produce to the defendant and presented the bills to the Canara Bank, the value of the bills could automatically be credited to the plaintiff's account at no extra interest, provided the buyer (defendant) made payment within the credit period as agreed in the purchase orders which could be anyway between 60 to 90 days of receiving the Produces. Failure to effect such payment within time agreed would cause the plaintiff to pay interest at 10% to 11% from p.a. from the date of discounting of the bill till the date of actual credit in 35 Com.OS.No.4108/1999 plaintiff's account in India and delinking charges arising from the reversing of credit owing to non-payment and consequent foreign exchange fluctuations and thereby principal amount automatically becoming a loan payable on demand. It is pleaded in para No.32 of the plaint that due to the failure of the defendant to make payment, the plaintiff incurred a huge liability with its bank to the extent of Rs.1,11,12,289/- and a threat of institution of recovery proceedings by the bank. Accordingly, plaintiff has included this charges of the bank of Rs. 1,11,12,289/- in its claim in the plaint.
29. Defendant has not denied the pleading of the plaint relating to bill discount scheme from the Canara bank, Bangalore availed by the plaintiff for the purpose of financing its exports. In para No.7 of the written statement, it is contended by the defendant that averments made in Para No.7 of the plaint regarding the arrangement with the Canara Bank and the terms thereof or not within the knowledge of defendant. Even in the cross- examination of PW1 also no dispute is raised relating to Bill Discounting Scheme availed by the plaintiff from the Canara Bank. Apart from that, plaintiff has produced Exs.P.16 & P.17 which are the certificated of the interest and other charges charged by its bank in respect of non-payment of invoices by the defendant. It is undisputed fact that the Deutsche bank is the bank of the defendant. Plaintiff has proved the fact that it had exported its Produce in 92 containers. Defendant raised quality issue relating to 77 containers. As discussed above under Issue No.5 there was no quality issue 36 Com.OS.No.4108/1999 relating to remaining 15 containers. There is no dispute to the fact that defendant has not made payments relating to the Produce exported by the plaintiff in 92 containers. Ex.P.16 to P.18 produced and marked by the plaintiff disclose that it availed bill discount facility from its Canara Bank relating to 92 containers exported. But 92 bills pertaining to the defendant have remained unpaid and they have been protested and returned by the Deutsche bank as per Exs.P.111 to 197. These materials on record clearly prove the contention of the plaintiff relating to bank charges of Rs.1,11,12,289/-. For these reasons Issue No.6 is answered in the 'Affirmative'.
30. Issue No.7 : Plaintiff has claimed interest at the rate of 24% p.a. on the suit claim amount on the ground that the interest is to be calculated as per the trade, custom ,excise and the interest claimed as per the commercial lending rate of interest of banks, since the transaction between it and defendant is commercial in nature.
31. Rate of interest claimed by the plaintiff at 24% p.a. is abnormal and excessive for the reasons that though the transactions between the parties is commercial in nature, but as could be seen from the pleading of the plaint in para No.7 of the plaint, the interest payable to the bank was at the rate of 10% to 11% p.a. from the date of discounting the bill till the date of actual credit in plaintiff's account in India. There is no contract between the parties to charge interest at the rate of 24% p.a. By considering the oldness of the matter and the nature of transaction between the parties and also by considering bank rate of interest, it is just and proper to award 37 Com.OS.No.4108/1999 interest at 12% p.a. only to the amount due and payable to the plaintiff. Accordingly Issue No. 7 is answered holding that plaintiff is entitled for interest at 12% p.a. for the amount due.
32. Issue No.8 : It is submission of learned advocate for plaintiff that averments in para No.13 of the counter claim are all bald and lacking any support on facts or on law and made solely to defeat the legitimate claims of the plaintiff. The defendant has not produced any international trade legislation or contractual document to prove this contention raised in para No.13 of the counter claim. Accordingly, Learned advocate for plaintiff has requested to answer in this Issue No.8 in the negative.
33. On the other hand, it is submission of learned advocate for defendant that purchase order at Ex.P.2 itself shows the specification of the materials to be exported to the defendant. Even it is common practice in the export business that the exported materials should confirm with the technical specifications as detailed in the purchase orders. PW.1 has admitted this fact in page No.35 & 36. It cannot be expected that importer should receive the materials exported even though materials do not confirm with the technical specifications of the purchase orders. It is undisputed fact that Produce exported by the plaintiff to the defendant were contaminated which is admitted in the MOU at Ex.P.199. Accordingly, learned advocate for defendant has requested to answer Issue No.8 in the affirmative.
34. At this stage it is material to note that Ex.P.2 is one of the 38 Com.OS.No.4108/1999 purchase orders placed by the defendant to the plaintiff to export fresh gherkins, which was the Produce of the plaintiff. This purchase order is dated 04.07.1998. The text for the good description is shown as "Fresh Gherkins temporarily preserved only, for the transport, in a salt/water/solution with condition of sulphurous anhydrid and natural alcohol vinegar. Raw material for the industry not suitable for direct human consumption without further processing". It is undisputed fact that as per the specifications shown the purchase order, plaintiff was required to export the Produce of gherkins to the defendant. As could been seen from the settlement MOU at Ex.P.199, dispute arose between the parties relating to the quality of the Produce exported by the plaintiff. In the cross examination at page No.35, it is evidence of PW.1 that "it is true that as per the terms and conditions I have to supply the standard quality of goods to the defendants". Further in the cross examination at page-36, it is evidence of PW.1 as "it is true that to reach the goods in proper condition to defendant is our responsibility".
35. It is undisputed fact that plaintiff exported its Produce of gherkins to the defendant as per the purchase orders placed by the defendant. Plaintiff was required to export materials as per the specifications of the Purchase orders. Though defendant has not placed international trade legislation or contractual documents to support its pleading in para-13 of the counter claim, but after going through the 39 Com.OS.No.4108/1999 specifications of the materials shown in the purchase orders at Ex.P.2, and also the above noted evidence of PW.1 in page-35 & 36 and by considering the business standard in the export of the materials, the materials exported should confirm with the technical specifications of the purchase order. It cannot be held that the importer is bound to receive the materials exported which do not confirm with the technical specifications of the Purchase orders. Therefore, it was obligatory on the part of the plaintiff who was exporter to confirm the materials supplied with the technical specifications of the Purchase orders. For these reasons, Issue No.8 is answered in the 'Affirmative'.
36. Issue No.9 : It is submission of learned advocate for plaintiff that plaintiff supplied its Produce in 92 containers on the basis of the purchase orders placed by the defendant from 11.3.1998 to 21.9.1998. Out of those 92 containers, due to difficulties faced by the defendant, it was agreed in the settlement MOU at Ex.P.199 that the 32 containers were of bad quality. There are no materials placed by the defendant to show rest of the containers were tested and proved as contaminated. Even defendant has not produced reliable materials to show that 45 containers shown in the settlement MOU at Ex.P.199 were tested and proved as contaminated. Test report relating to those 45 containers are not produced. There was no quality issue relating to 15 containers out of the exported 92 containers. Accordingly, it is submission of learned advocate for plaintiff that defendant has failed to prove Issue No.9.
40Com.OS.No.4108/1999
37. On the other hand, it is submission of learned advocate for defendant that it is undisputed fact that on the basis of purchse orders placed by the defendant from 11.03.1998 to 21.09.1998, plaintiff had supplied its Produce in 92 containers. All the containers were contaminated and this message was sent to the plaintiff. Representatives of the plaintiff visited the locations where the containers were laying and got confirmation relating to the contamination of the Produce and then only the settlement MOU as per Ex.P.199 was entered into. Further learned advocate for defendant has submitted that in the MOU at Ex.P.199, plaintiff has admitted that the containers were contaminated. Test Survey Report at Ex.D.85 proves that test was conducted relating to the containers. Even PW.1 in his cross examination at page -23&24 has admitted this fact. Accordingly, learned advocate for defendant has requested to answer Issue No.9 in the affirmative.
38. It is undisputed fact between the parties that plaintiff supplied its Produce in 92 containers to the defendant on the basis of Purchase orders placed by the defendant from 11.03.1998 to 21.09.1998. It is also undisputed fact that there was quality issue relating to the Produce supplied by the plaintiff and due to this reason the plaintiff had sent its representatives for verification of the Produce. After verification of the Produce and after getting confirmation of the quality issue, Settlement MOU at Ex.P.199 was entered into between the parties. In para-4 of 41 Com.OS.No.4108/1999 settlement MOU at Ex.P.199 it is stated that it was concluded that about 32 containers are affected by bad quality. Para-4 (D) to (F) are relating to 45 containers shipped by the plaintiff from April 1998 to July 1998. Relating to these 45 containers, as stated in Ex.P.199, those containers were not yet accepted by the customers as good products. Therefore, it was preferred to conduct another test and then to take decision to sell it as 'B' grade if those containers are with bad quality. M.A. was the customer of the said 45 containers. It has come out in the cross examination of PW.1 in page 23 & 24 that M.A. means L.M.A. i.e., 'Liebeg Malle Amora' which was one of the customers of defendant. Defendant has produced records at Ex.D.15 to D.19 stating that Fax were sent to the plaintiff relating to the test result of the containers. In the cross examination at page-23 it is evidence of PW.1 that "he cannot say whether plaintiff had received the said Fax letters". Further in same page No.23 it is admitted by the PW.1 that on 02.03.1998 defendant by Fax informed that some containers were blocked in L.M.A. factory. Plaintiff received some communications relating to blocking of the containers by the defendant. Further it is evidence of PW.1 that the communications have been made for the reason that L.M.A. factory has not accepted the containers. Further it is admission of PW.1 in page-23 that Mr. Enrique Junoy informed the plaintiff that some strange smell and taste is emitting from the shipment. Further he has also admitted that it was informed that some terrible juice is coming out of the barrels.
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39. Ex.D.15 to D.19 are the records produced by the defendant in support of its contention that the 45 containers shown in para-4(D) to (F) of Ex.P.199 were contaminated and as such, L.M.A., the customer, rejected those containers. These records at Ex.D.15 to D.19 were shown to PW.1 in the cross examination. PW.1 has not specifically denied these records at Ex.D.15 to D.19. It is evidence of PW.1 relating to these records at Ex.D.15 to D.19 that he cannot say whether plaintiff had received the Fax letters. Careful scrutiny of these records at Ex.D.15 to D.19 and also the above noted evidence of PW.1 clearly shows that test was conducted relating to 45 containers shown in para-4(D) to (F) of Ex.P.199 and the customer i.e., L.M.A. refused those containers. Thus, out of total 92 containers supplied by the plaintiff to the defendant, it is admitted in Ex.P.199, that 32 containers were with bad quality. Ex.D.15 to D.19 and also evidence deposed by PW.1 in page No.23 & 24 disclose that 45 containers shown in para No.4(D) to (F) of Ex.P.199 were tested and found contaminated and as such, customer L.M.A., refused those containers. There was no quality issue relating to remaining 15 containers. For these reasons this Issue No.9 is answered that out of total 92 containers supplied, 77 containers were contaminated.
40. Issue Nos.10 & 11 : As discussed above, plaintiff had supplied 92 containers to the defendant on the basis of various purchase orders placed by the defendant. As could be seen from the details of the Settlement MOU at Ex.P.199, relating to which there is no dispute, 77 containers are 43 Com.OS.No.4108/1999 the subject matter of this Ex.P.199 for the reasons that para-4 of Ex.P.199 is relating to 32 containers. Para No.4(A) of Ex.P.199 relates to 10 containers, out of 32 containers referred to in para No.4 of Ex.P.199. Para-4(B) of Ex.P.199 relates to remaining containers means 22 containers i.e., out of 32 containers shown in para NO.4, 10 containers are referred to in para-4(A) and remaining 22 containers which are the subject matter in para-4(B) of Ex.P.199. Para-4(D) to (F) relate to 45 containers. As could be seen from the details of Ex.P.199, the said MOU dated 11.9.1998 at Ex.P.199 was signed by the parties to find out a way to sell the refused gherkins of 45 containers as B-grade materials. Those containers were in the location of the customers of defendant at France and Belgium. Plaintiff was in India. In Ex.P.199 nothing was entrusted to the plaintiff to co-operate to sell the refused gherkins of 45 containers as B-grade materials. As per terms of settlement at Ex.P.199 defendant agreed that it would along with Jogrex to try to sell 45 containers of 'B' grade materials. For these reasons, Issue Nos.10 is answered holding that MOU dated 11.9.1998 was signed by the parties to sell refused gherkins of 45 containers as 'B' grade materials and Issue No.11 is answered in the Affirmative.
41. Issue No.12: It is submission of learned advocate for plaintiff that due to breach committed by the defendant in making payment relating to the Produces supplied by the plaintiff to the defendant in 92 containers, plaintiff was forced to terminate the MOU signed on 7.9.1996 44 Com.OS.No.4108/1999 by way of issuing one year notice at Ex.P.208 as per Clause-12 of MOU dated 7.9.1996 at Ex.P.1. The said MOU has been terminated in accordance with the terms provided in it and therefore, termination of MOU is not illegal and not with malafide intention.
42. On the other hand, it is submission of learned advocate for defendant that though defendant had entered into settlement MOU on 11.9.1998 at Ex.P.199 with bonafide intention to assist the plaintiff to sell contaminated Produces as 'B' grade materials, but plaintiff failed to co- operate with the defendant in that regard. In order to escape its liability, plaintiff issued termination notice dated 4.12.1998 at Ex.P.208 terminating the MOU signed on 7.9.1996 with malafide intention and thereby plaintiff has committed breach of the Agreement dated 7.9.1996. Accordingly, learned advocate for defendant has requested to answer Issue No.12 in the affirmative.
43. Original Memorandum of Understanding signed by the parties on 7.9.1996 is at Ex.P.1. Clause-12 of this Ex.P.1 is as under:
"12. The parties hereto shall be entitled to terminate this MOU or the Sale Contracts entered into pursuant to this MOU by giving one year notice or any period ending with the expiry of all subsisting Sale Contracts which ever is earlier. The termination shall be for sufficient reason which shall include "
(a) GAP or WL ceasing to do business or being in under any legal liability unable to do business;
(b) The prices offered by WL (before deduction of 16% of its gross margin) is lower than the average price offered 45 Com.OS.No.4108/1999 by the 3 leading Producers in Bangalore area to the same customer.
(c) For any material breach of the agreement between the parties which cannot be ratified, remedied, compensated in terms of money".
As per the above noted Clause-12 of MOU at Ex.P.1, parties shall be entitled to terminate the MOU or the sale contracts by giving one year notice or any period ending with the expiry of all subsisting sale contracts, for sufficient reason which shall include ceasing of business by the parties, the low price offered by the defendant and for any material breach of the agreement between the parties which cannot be ratified, remedied, compensated in terms of money. It is pertinent to note that it is undisputed fact that plaintiff had supplied its Produce in 92 containers on the basis of the purchase orders placed by the defendant from 11.3.1998 to 21.9.1998. Defendant raised quality issue relating to these containers. Therefore, representatives of the plaintiff visited the places of customers of the defendant at Belgium and France where the supplied containers were located and after verifying the Produce in the containers and after discussing with each other, plaintiff and defendant had entered into settlement MOU dated 11.9.1998 at Ex.P.199 with certain terms and conditions. It is undisputed fact that terms and conditions of settlement MOU at Ex.P.199 could not have been complied with by the parties for the various reasons and stands taken by them respectively. Thus, there was breach of the agreement between the parties which could not be 46 Com.OS.No.4108/1999 ratified or remedied or compensated in terms of money. Due to this reason, plaintiff had to issue termination notice dated 4.12.1998 at Ex.P.208. After going through the materials on record it is clear that plaintiff terminated MOU signed on 7.9.1996 by issuing one year notice dated 4.12.1998 at Ex.P.208 and this termination is as per the terms of the MOU dated 7.9.1996 and therefore, termination of MOU dated 7.9.1996 is not illegal and it is not with malafide intention. For these reasons, Issue No.12 is answered in the 'Negative'.
44. Issue No.13 & 14 : It is submission of learned advocate for plaintiff that the defendant has not placed acceptable oral and documentary evidence to prove these two issues. Evidence of DW.1, who is power of attorney holder, is not on the basis of his personal knowledge. He never participated in the suit transaction. DW.1 has not produced reliable records to show he was involved in the transaction of the defendant company. Alleged invoices produced by the defendant at Ex.D.28 to D.44 are devoid of supporting materials and they are nothing but invoices on the letter head of defendant alleged to have been sent to the plaintiff. There is nothing to show that these invoices were sent to the plaintiff. There are no supportive materials to support the claim of the defendant relating to alleged invoices. It is evidence of DW.1 in page NO.43 that he does not remember whether copies of the invoices were sent to the plaintiff and no records are produced in support of the 47 Com.OS.No.4108/1999 expenses referred to in the invoices. Ex.D.84 is titled as "Summary of total dues by GAP to Web-Links/Jogrex on 31.12.1999" is not sufficient and it does not have any evidenciary value since it is not accompanied by any supporting evidence to prove the debt. Accordingly it is submission of learned advocate for plaintiff that defendant has failed to prove Issue Nos.13 & 14.
45. On the other hand, it is submission of learned advocate for defendant that defendant has lost its sales to another importer Montrose due to breach committed by the plaintiff and also due to termination of the MOU dated 7.9.1996. Therefore, defendant lost its commissions on the consignments made. Further it is also submission of learned advocate for defendant that the act of the plaintiff in committing breach of the MOU reduced the defendant's working economical conditions. Plaintiff is due to the defendant in a sum of Rs.8,11,21,849/- as detailed in para No.30 of the counter claim. Defendant has produced invoices at Exs.D.28 to D.44 to support its counter claim. It has also produced summary of total dues by the plaintiff at Ex.D.84. Accordingly it is submission of learned advocate for defendant that defendant has proved Issue Nos.13 & 14.
46. After having heard both sides on these Issue Nos.13 & 14, I have carefully gone through the materials on record. It is contended by the defendant in para No.28 of its counter claim that it lost out on sales to 48 Com.OS.No.4108/1999 another importer Montrese on account of the plaintiff, for which it should be receiving commission on the consignments made. In total violation of the terms of the MOU, the plaintiff has approached customers in areas reserved to the defendant in France and Spain and even after these developments, every effort was made to find a solution as noted in e- mails dated 2.11.1999 between the parties and the plaintiff has suggested changes also. This substantially reduced the defendant's working economical conditions. In para No.30 of the counter claim, the defendant has shown the details of alleged dues of the plaintiff as Rs.8,11,21,849/- i.e., i) claims from France Rs.6,21,06,484/- , ii) claims from Spain Rs.8,91,066/- iii) Claims arising from unsettled small claims and miscellaneous invoices-Rs.13,06,902/- iv) claims towards commissions and non-compliance with existing orders - Rs.64,52,840/- v) Claims for wrongful termination of MOU dated 7.9.1996 - Rs.68,55,850/- , and vi) interest on amounts due on 31.12.1999 - Rs.52,90,839/-.
47. Plaintiff in its written statement filed to the counter claim of the defendant has denied alleged claims of defendant. Therefore, burden is upon the defendant to prove alleged claims of the counter claim through acceptable oral and documentary evidence. So far oral evidence placed for the defendant is concerned, it is relevant to note that Mr. Enrique Junoy, the Director of the defendant, who was involved in the suit transactions with the plaintiff, has not led any evidence. There are no 49 Com.OS.No.4108/1999 acceptable materials placed by the defendant as to why the said Mr. Enrique Junoy has not given his evidence. DW.1 is power of attorney holder. 87 documents came to be marked through DW.1. Among them records at Exs.D.4 to D.27, D.45 to D.58, D.60 to D.72, D74 to D.82 and D.87 were marked subject to validity, admissibility and proof of the same.
48. There is no Board Resolution or other document evidencing that Board of Directors of the defendant had authorized Mr.Enrique Junoy to execute power of attorney in favour of DW.1 to give evidence in this case on behalf of the defendant. In the cross examination it is evidence of DW.1 that he was not an employee of the defendant or associated with the defendant at the time of the suit transaction. Further it is evidence of DW.1 that he has no personal knowledge of the suit transaction. Further in page No.38 it is evidence of DW.1 that he was doing self-employment in landscaping and consultancy from the year 1996 till the year 1999. Further it is evidence of DW.1 in page No.40 that he has not made any correspondence with the parties relating to the suit transaction. Though in page No.38 it is evidence of DW.1 that he was working in the defendant Company since 2004 till January 2015, but it is his further evidence in page No.38 that he has not produced any document to show that he was working in the defendant Company from 2004 to 2015. Further it is his evidence that he has not produced the salary certificate issued by the defendant Company. Further it is his evidence that he was 50 Com.OS.No.4108/1999 not present at the time of MOU dated 9.11.1998.
49. After going through the nature of oral evidence deposed by DW.1, it is clear that defendant is foreign Company. DW.1 is Indian citizen. Except the power of attorney marked as Ex.D.3, there are no reliable records to show DW.1 has personal knowledge of the suit transaction. Even as per the evidence of DW.1, he never participated in the suit transaction and he never made any correspondence with the parties relating to suit transaction. Except GPA at Ex.D.3, there are no other records to show connection of DW.1 with the defendant Company. Therefore, evidence of DW.1 cannot be relied upon for the above noted reasons and also in view of the proposition of law of Hon'ble Apex Court in (2010) 10 SCC 512 (Man Kaur (D)by LRs Vs. Hartar Singh Sangha), wherein it is held in para No.18 that an attorney holder, who has no personal knowledge of the transaction can only give formal evidence about the validity of the power of attorney.
50. It is also relevant to note that there is no certificate produced as required under Sec.65-B(4) of the Indian Evidence Act, 1872 relating to the electronic records at Exs.D.10 to D.12, D.45 to D.47, D.81 & D.82. Defendant has produced some records at Ex.D.15, D.26, D.48 to D.51, D.73 & D.79 which are not in the language of the court and some of them have been produced along with English translations. However, they have not been complied with mandatory requirements of Order 13 Rule 2 CPC 51 Com.OS.No.4108/1999 and an affidavit of the translator has not been produced.
51. Defendant has produced alleged invoices at Exs.D.22 to D.44 in support of the claim made in the counter claim. But, these invoices are on the letter head of the defendant alleged to have been sent to the plaintiff. There are no materials to show that alleged invoices were factually sent to the plaintiff. In the cross examination in page No.43, it is evidence of DW.1 as "I do not remember whether we have sent the copy of the said invoices to the plaintiff. We have not produced any document in support of the expenses which are referred in the invoices". Defendant has produced summary of alleged dues of plaintiff at Ex.D.84. It is relevant to note that there are no supportive evidence placed by the defendant to support alleged invoices at Ex.D.28 to D.44 and also the summary of dues at Ex.D.84. Apart from that, as noted above, oral evidence of DW.1, who is attorney holder, is not reliable since DW.1 has no personal knowledge relating to the suit transactions and he never participated in the suit transactions and he never made any correspondence with the parties relating to the suit transactions and as per his own evidence he was not working with the defendant during the period of suit transaction. For these reasons, defendant has failed to prove Issue Nos.13 & 14. Hence, these issues are answered in the 'Negative'.
52. Issue No.15 : As discussed above, it is undisputed fact between the parties that plaintiff had supplied its Produce to the defendant in 92 52 Com.OS.No.4108/1999 containers from 11.3.1998 to 21.9.1998 on the basis of various purchase orders placed by the defendant. Defendant raised quality issue relating to these containers supplied by the plaintiff. Therefore, representatives of the plaintiff visited the places of the customers of defendant at Belgium & France and after conducting verification and after discussion, parties had entered into settlement MOU dated 11.9.1998 at Ex.P.199 with certain terms and conditions. As discussed above under Issue No.5, there was no quality issue relating to 15 containers. Total Produce supplied by the plaintiff to the defendant was in 92 containers. Out of said 92 containers, there was no quality issue relating to 15 containers. 77 containers are the subject matter of settlement MOU at Ex.P.199. Out of said 77 containers, in para No.4 of Ex.P.199, it was concluded that 32 containers were affected by bad quality. In para No.4(A) of Ex.P.199, defendant agreed to arrange to re-export to India all barrels identified as 'bad quality' (upto that date 810 barrels). As discussed above, it has come out that one container contained 80 barrels. As per para-4(A) of Ex.P.199, defendant had agreed to arrange to re-export to India 10 containers. In para-4(C) of Ex.P.199, it was agreed that payment will not be made by the defendant for 10 containers refused. It appears for this reason only, defendant agreed in para-4(A) of Ex.P.199, to arrange to re-export said 10 containers to India. As discussed above, defendant failed to re-export said 10 containers to India. Therefore, when defendant has failed to re-export 53 Com.OS.No.4108/1999 10 containers to India, it is liable to pay cost of containers to the plaintiff.
53. As noted above, para-4 of Ex.P.199 relates to 32 containers which were affected by bad quality. Out of that, para-4(A) relates to 10 containers and defendant agreed to arrange to re-export these 10 containers to India. The balance, out of 32 containers shown in para-4 of Ex.P.199, is 22 containers which is subject matter of para-4(B) of Ex.P.199. As per this para-4(B) of Ex.P.199, defendant agreed to re- arrange for sale as 2nd quality products to such buyers in Europe for the remaining 22 containers and this money will be applied to pay to the defendant and also Jogrex importation related expenses of these containers. Thus, as per para-4(B) of Ex.P.199, plaintiff is not entitled to claim money towards remaining 22 containers. Para-4(D) to (F) of Ex.P.199 relate to 45 containers. As per para-4(D) to (F) of Ex.P.199, customer of defendant did not accept the said 45 containers and the said customer was conducting further tests to satisfy that those 45 container were not affected with bad quality. Further it was also stated that in case those 45 containers are affected by quality, those containers will have to be sold as 'B' grade material to other market and all losses for the defendant and Jogrex will be settled by the plaintiff. Thus, on careful reading of para-4(D) to 4(F) of Ex.P.199, it is clear that if 45 containers were found with bad quality, they were to be sold in the market as 'B' grade and sale proceeds should be adjusted towards losses of defendant 54 Com.OS.No.4108/1999 and Jogrex. As discussed above under Issue No.11, the materials on record proved that 45 containers were rejected by Amora on the ground of containers contaminated. Therefore, plaintiff is not entitled to claim cost of these 45 containers. Thus, plaintiff is entitled for the cost of 10 containers shown in para No.4(A) of Ex.P.199 since defendant has failed to arrange to re-export those 10 containers to India and also cost of 15 containers for which there was no quality issue. Plaintiff has produced 92 invoices of 92 containers at Ex.P.19 to P.110. But containers are not available to compare with the invoices and to determine as to which invoice relates to which container. Prices shown in the invoices varied from invoice to invoice. The total value of 92 invoices is Rs.2,83,66,849/-. It is just and proper to take average price of 25 containers for which plaintiff is entitled to. Similarly, plaintiff has claimed charges paid to the bank in all Rs.1,11,12,289/- relating to 92 containers. This charge paid by the plaintiff is proved as discussed under Issue No.6. Since plaintiff is entitled for the cost of 25 containers only, it is just and proper to consider the average charges of the bank for 25 containers only.
54.As noted above, total cost of 92 containers as per the invoices at Ex.P.19 to 110 is Rs.2,83,66,849/-. Average cost of 25 containers is Rs.70,91,712.25. Similarly, the total bank charges paid by the plaintiff for bill discounting facility towards 92 containers is Rs.1,11,12,289/-. Average bank charges for 25 containers is Rs.27,78,072.25. Thus, plaintiff 55 Com.OS.No.4108/1999 is entitled for Rs.70,91,712.25 towards average cost of 25 containers and Rs.27,78,072.25 towards average bank charges for 25 containers. Thus, plaintiff is entitled for Rs.98,69,784.50 in all for 25 containers only. By considering oldness of the matter and as discussed under Issue No.7, plaintiff is entitled for interest at 12% per annum for this amount of Rs.98,69,784.50 from the date of suit till realisation of entire amount. For these reasons, I proceed to pass the following:
ORDER Suit of the plaintiff is partly decreed with proportionate cost. Plaintiff is entitled to recover average cost of Rs.70,91,712.25 for 25 containers and its average bank charges of Rs.27,78,072.25, in all Rs.98,69,784.50 from the defendant along with interest at the rate of 12% per annum from the date of suit till realization of entire amount.
Defendant shall pay above stated amount to the plaintiff within two months from today.
Draw decree accordingly.
Dictated to the JW, typed by her, corrected and then pronounced by me in Open Court, on this the 17th day of February, 2020.) (JAGADEESHWARA.M.) LXXXII Addl.City Civil & Sessions Judge, Bangalore.
56 Com.OS.No.4108/1999 LIST OF WITNESSES EXAMINED FOR PLAINTIFF PW.1 Sri.B.M.Devaiah LIST OF DOCUMENTS MARKED FOR PLAINTIFF Exs.P-1 Memorandum of Understanding dtd.7.9.96 " P-2 Purchase order dated 4.7.1998 " P-3 to 13 Eleven fax messages " P-14 Report consisting of five sheets " P-15 Copy of letter dated 26.9.1998 " P-16 to 18 Bank statements "p.19 to 110 Copies of 92 invoices " p.111 to 197 87 certificates issued by Bank " p.198 Copy of covering letter dated 14.9.1998 " p.198(a) to (j) Ten annexures to Ex.P.198 " p.199 MOU dated 11.9.1998 (two sheets) "p.200 to 205 Copies of six fax messages "P.206 Fax message dated 13.11.1998 "P.207 E-mail dated 4.12.1998 "P.208 Copy of notice dated 4.12.1998 "P.209 Copy of legal notice dated 23.12.1998 "P.210 Reply notice by fax "P.211 & 212 Fax messages "P.213 Extract of Board Meeting Resolution dated 17.12.1999 "P.214 Extract of Board Meeting Resolution dated 18.11.2006. LIST OF WITNESSES EXAMINED FOR DEFENDANTS: DW.1 Ramanatha Shenoy LIST OF DOCUMENTS MARKED FOR DEFENDANTS Exs.D-1 Communication dated 23.1.1998 " D-2 Purchase order No.WL98/20 dated. 1.8.97 " D-3 General Power of Attorney " D-4 to 8 Fax communications " D-9 Fax message dated 28.1.1999 " D-10 to 12 E-mail correspondence " D-13 to 27 Fax communications 57 Com.OS.No.4108/1999 " D-28 to 44 Invoices " D-45 to 47 E-mail correspondence " D-48 to 51 Fax communication " D-52 Fax message " D-53 to 58 Fax communications " D-59 Letter dated 19.5.1998 " D-60 to 72 Fax communications " D-73 Letter dated 21.10.1998 " D-74 to 80 Fax communications " D-81 & 82 E-mail correspondence " D-83 Letter dated 18.1.2000 " D-84 Statement (contains 8 pages) " D-85 Survey report " D-86 Broacher " D-87 Certificate filed under Sec.65 A (JAGADEESWARA.M.), LXXXII Addl. City Civil & Sessions Judge, Bangalore.