Bangalore District Court
M/S.Shell Apparells Pvt.Ltd vs Mr.Ramaraj on 8 August, 2016
IN THE COURT OF THE XIX ADDL. CITY CIVIL &
SESSIONS JUDGE AT BANGALORE CITY: (CCH.18)
Dated this 8th day of August, 2016.
Present
SMT.K.B.GEETHA, M.A., LL.B.,
XIX ADDL. CITY CIVIL & SESSIONS JUDGE,
BANGALORE CITY.
O.S.NO.4908/2011
PLAINTIFF : M/s.Shell Apparells Pvt.Ltd.,
A company incorporated under the
Companies Act, 1956 and having its
registered office at No.10/15 (New
No.10/14-10/16), G.T.Industrial Complex,
Magadi Main Road, Sunkadakatte,
Bangalore-560 091, and represented by its
Managing Director Mr.B.R.Vasuki,
Aged about 56 years,
s/o late Mr.B.N.Rangnathan.
(By Sri Kashyap.N.Naik,Advocate)
-VS-
DEFENDANT : Mr.Ramaraj,
Father's name not known to plaintiff,
Major, r/at Flat No.1-101,
Mantri Residency, Opposite to
Meenakshi Temple, Bannerghatta Road,
Bangalore-560 076.
Also at:
Daisy-201, Esteem Park,
3/6, Rose Garden Road,
J.P.Nagar, 5th Phase,
Bangalore-560 078.
( By Sri.K.R.Chandrappa, Advocate)
2 O.S.No.4908/2011
Date of Institution of the suit : 11/7/2011
Nature of the Suit : Recovery of money
Date of commencement of recording
of evidence : 16/11/2012
Date on which the Judgment was
pronounced : 08/08/2016
Year/s Month/s Day/s
Total Duration : 05 00 27
JUDGMENT
The plaintiff has filed this suit for recovery of Rs.2,56,188/- towards advance commission paid to defendant with interest at 18% p.a.; for recovery of Rs.7,76,559/- towards damages caused to plaintiff on account of actions of the defendant with interest at 18% p.a. from the date of issuance of legal notice till realization; for court costs and such other reliefs.
2. The case of plaintiff in nutshell is that the plaintiff is a company registered under the provisions of Companies Act, having its office at Magadi Main Road, Sunkadakatte, 3 O.S.No.4908/2011 Bangalore represented by its Managing Director B.R.Vasuki. Plaintiff is engaged in the business of export of garments. It manufactures and stitches garments as per the requirements of its customers and thereafter, sell the same. The process involves manufacturing, dying, stitching, washing, etc. Plaintiff mainly depends on marketing agents for sale of its products amongst the retail business companies. Because, plaintiff is not selling its products in retail or directly. In the month of March 2009, defendant approached the M.D. of the plaintiff intimating his willingness to become marketing agent of plaintiff and also promised that he is capable of procuring high end contracts and multi-crore deals to the plaintiff company. Defendant was known to M.D. of plaintiff. He informed that he had earlier marketed various other products in India and abroad and promised to bring various foreign clients also. Based on his representation and promise, owing to the past relationship of the M.D. with defendant, defendant was appointed as "Head Marketing" on commission basis in the month of April 4 O.S.No.4908/2011 2009. At that time, defendant promised plaintiff to procure orders worth Rs.1 Crore p.m. As per the promise between plaintiff and defendant, defendant was paid 1% commission on the net sales on the orders received by plaintiff through defendant. However, no commission was payable on the orders received by plaintiff for the existing customers. Defendant was required to take necessary permission and authority from the plaintiff before fixing the rate of garments or otherwise providing any discounts to any person or company through whom the defendant dealt with. It was agreed to pay Rs.5,000/- p.m. towards phone and conveyance charges to the defendant towards marketing of plaintiff's products. Citing certain difficulties, defendant requested plaintiff to pay the advance commission of Rs.3,00,000/-. Considering his request, plaintiff has paid an advance of Rs.3,00,000/- in 4 installments i.e., Rs.40,000/- during May 2009; Rs.70,000/- each during June to August 2009 and Rs.50,000/- in the month of September 2009. Defendant told the M.D. of Plaintiff Company that there is prospective 5 O.S.No.4908/2011 business deal in certain companies in Delhi and therefore, requested for making a business trip to Delhi. Believing his words and in fond hope of procuring the business, plaintiff sent defendant twice to Delhi in a span of 3 months and incurred expenditure of Rs.56,269/-. There was no business deal out of the said trips. Plaintiff learnt that in those two trips to Delhi, defendant sort out his certain issues regarding previous employment at Chennai with M/s.Impusle Buying House. Defendant made certain enquiries pertaining to tender only to eye wash the plaintiff and thus, misused the services of plaintiff for his personal benefit and thereby breached the trust and confidence reposed upon him. Furthermore, against his promise of Rs.1 Crore p.m., defendant was able to procure orders only wroth Rs.57,54,005/- over a period of 8 months commencing from April 2009 to December 2009. Out of the said amount, Rs.13,72,814/- worth of goods are still held on account. Hence, defendant is entitled to receive only 1% commission on the balance amount of Rs.43,81,191/-. During December 2009, defendant 6 O.S.No.4908/2011 promised plaintiff that he would obtain purchase orders from "Spadeworks" company of U.S. for export market amounting to U.S.$.36,619/-. Based on the said representation of defendant, plaintiff booked forward contracts with its banker - SBM for said amounts i.e., for U.S.$.6,930/- and U.S.$.29,689/-. Defendant misleads the plaintiff that the Spadeworks would make payment within 30 days against Letter of Credit and would also give bulk orders for each design. When plaintiff approached Spadeworks, it learnt that contrary to the representation made by defendant, Spadeworks accepted only for part payment through Letter of Credit and further placed lesser quantity orders for all styles of garments. Hence plaintiff was constrained to cancel the forward contract with its banker and thereby incurred loss of Rs.25,935/-. Defendant introduced a domestic garment company named "Anuvarth" to plaintiff, who had agreed to buy garments of specific design from the plaintiff. Defendant was aware that the rate of one garment that was to be manufactured as per Anuvarth's specification was 7 O.S.No.4908/2011 Rs.275/-. Based on certain specifications provided by Anuvarth to plaintiff, the plaintiff had specifically designed the garments to them and had agreed to sell the desired number of garments. In the mean while, defendant at his free will and without consent of plaintiff's M.D., carelessly informed and affirmed to Mr.Prakash Jain of Anuvarth Company that the plaintiff would sell the said garments at the rate of Rs.190/- per garment without wash to them. Being in the industry for a reasonable point of time, defendant know the washing costs of a garment would be only Rs.35/- and not at the discount price of Rs.85/- as cited by him. Thus, defendant tried to cause business loss to plaintiff by making such irresponsible promises and representations to third parties or customers of the plaintiff without any authority, express or implied or prior permission from the M.D. of the plaintiff. Hence, the M.D. of plaintiff requested defendant to settle all the issues with Anuvarth Company. Defendant abandoned the scheduled meetings without any regard to the plaintiff's requests and shirked his responsibility. At this juncture, plaintiff held 8 O.S.No.4908/2011 various meetings with Prakash Jain of Anuvarth and constrained to settle the contract at Rs.240/- per garment with wash and thereby conceding a loss of Rs.35/- per garment. Plaintiff sold 4,591 pieces of garments to Anuvarth at said rate and thus, incurred loss of Rs.1,60,685/-. Plaintiff repeatedly requested defendant to settle all the issues and compensate for the losses, but defendant evaded making the payments and meeting the plaintiff. On the other hand, he threatened in his e-mail to plaintiff that he would commit suicide if plaintiff took any legal action against him. Plaintiff further learnt that defendant utilized the sums paid towards phone and conveyance to promote the business for his personal use and thereby acted against the plaintiff. In all, plaintiff paid Rs.33,670/- towards local conveyance and cell phone. Hence, defendant is liable to repay the said sum to the plaintiff. Initially, defendant ignored the mails of plaintiff, later denied its liability. Hence, the suit for appropriate reliefs i.e., balance amount of advance commission received by defendant, loss occurred to plaintiff towards 9 O.S.No.4908/2011 false representation made by defendant to Anuvarth Company, expenses incurred by plaintiff towards defendant's Delhi trips, expenses incurred by plaintiff towards defendant's phone bill and conveyance, cancellation charges of forward contract and loss of plaintiff's business and reputation totally amounting to Rs.10,32,747/-. Ultimately, plaintiff has issued legal notice dtd:28/10/2010 to defendant calling upon him to pay the said amount with interest together with costs of legal notice. Legal notice sent through speed post is not claimed and legal notice sent through certificate of posting was served upon defendant, but defendant has not given reply to the notice. Hence, the suit for appropriate releifs.
3. After service of suit summons, defendant appeared through his counsel and filed his written statement under Order VIII R.1 & R.6-A CPC along with the counter-claim, wherein, he admitted that plaintiff is engaged in manufacturing and exporting of garments, but denied the other averments that he approached plaintiff for 10 O.S.No.4908/2011 appointing him as 'Marketing Agent'. On the other hand, he contended that M.D. of plaintiff who is known to him had called him to appoint as Head of the Marketing as an employee in the plaintiff company and he agreed for it. Defendant further contended that he was not agreeable to be appointed on commission basis and contacted M.D. of plaintiff to discuss matters personally and thereafter, based on personal discussions, M.D. issued the appointment letter to defendant appointing him as Head of the Marketing Department with salary of Rs.70,000/- and allowance of Rs.5,000/-. He denied the other averments made in the plaint that he assured that he would procure orders worth Rs.1 Crore per month, etc. He further contended that he was appointed as the Head of the Marketing Department in the plaintiff company with basic salary of Rs.70,000/- and travel and phone allowances at Rs.5,000/- p.m. and not appointed on commission basis. He denied the other averments made in the plaint that because of his misrepresentation and negligence, plaintiff suffered loss from Anuvarath or plaintiff cancelled the 11 O.S.No.4908/2011 contract with Spadeworks of USA or sustained loss towards expenses for his Delhi Trips. Defendant further admitted that he received Rs.3,00,000/- from plaintiff but denied that it was as advance commission amount, but, he received it as salary. He contended that during April 2009, he was not worked for the entire month and hence, he received salary of Rs.40,000/- in said month; and he worked for entire months and received salary from May to July at Rs.70,000/- per month, and in the month of August, plaintiff has paid only Rs.50,000/- pleading its inability for payment of balance amount. For the months of September, October and November, defendant worked for full months, however, his salary was not paid and hence, he is entitled for balance salary of August and September to November totally amounting to Rs.2,30,000/-. He is further entitled for damages of Rs.2,00,000/- for his illegal and unlawful termination from the services in the month of December 2009 without giving any opportunity to him and thus, he is entitled for Rs.4,30,000/- as counter-claim. He further contended that 12 O.S.No.4908/2011 for Delhi Business Trip on 4/5/2009 he and H.V.Vinod have gone to Delhi and freight charges are in respect of him and H.V.Vinod. Further on 15/5/2009 defendant had not travelled to Delhi and it is only H.V.Vinod travelled to Delhi and on 7/10/2009 only for finalization of business transaction, defendant travelled to Delhi. He had gone for the purpose of negotiating the possibility of seeking orders from M/s.Impulse International and on account of his efforts, plaintiff company could secure orders from M/s.Impulse, Guargoan, Haryana. Hence, he has not made any false representation to plaintiff in respect of Delhi Trips. He further denied that the amount of orders pertaining to goods worth Rs.13,72,814/- was held on account of his misleading. He further contended that he secured the orders from M/s.Anuvarth Apparels; after such orders placed by M/s.Anuvarth Apparels, it is the plaintiff company who failed to supply the goods in time, before Deepavali and customer refused to receive those goods after Deepavali and thus, said amount was withheld. Defendant is only a "Marketing Head" and was not 13 O.S.No.4908/2011 responsible for delay in production and delivery. On the other hand, he approached customers and requested them to have to take the goods and the customers agreed to receive the same for lesser price. After negotiations, defendant informed plaintiff that said customer is not willing to receive the goods at the original price and agreeable to receive the same at reduced price of Rs.240/- instead of Rs.270/-. Plaintiff is responsible for this delay in production and supply. On this ground alone, plaintiff terminated the services of defendant by letter dtd:4/12/2009 without giving any notice or without giving any opportunity to defendant. On 4/12/2009 itself, plaintiff called upon defendant to stop working for him. Hence, there is no question of defendant promising in December 2009 that he would procure purchase orders from Spade Works. On 23/10/2009 the order was placed by Mr.Raghavan of Spade Works and it was sent through e-mail to defendant and to other employees of the plaintiff company. Plaintiff could not immediately take decision on the said order and booked forward contract in December 14 O.S.No.4908/2011 2009 after defendant ceased to be in employment of Plaintiff Company. Hence, it is not the case of defendant's mis-representation. Defendant has not made any false representation to the plaintiff and not responsible for this financial loss. The claim made by plaintiff is untenable. On the other hand, plaintiff has to pay the counter-claim amount. Hence, prayed for dismissal of suit and allowing counter-claim of Rs.4,30,000/- with interest at 12% p.a. from the date of suit till realization.
4. Plaintiff filed his written statement to counter-claim of defendant wherein, he denied his responsibility of making payment of counter-claim and further reiterated the plaint averments and further denied that defendant was not agreeable to be appointed on commission basis and contacted M.D. of plaintiff to discuss matters personally and thereafter, based on personal discussions, M.D. issued the appointment letter to defendant appointing him as Head of the Marketing Department with salary of Rs.70,000/- and allowance of Rs.5,000/-. He has 15 O.S.No.4908/2011 further contended that defendant approached M.D. of Plaintiff Company and requested him to issue a letter stating that the defendant is a salaried employee of the plaintiff company for the purpose of obtaining loan for his personal use and also to make believe his family members that he is employed at a company. In view of the previous and longstanding relationship, the MD of plaintiff company shared with the defendant, he agreed to issue such a letter. However, as a measure to show that such a letter was only issued for his personal use and not in connection with the employment of the defendant, the defendant has also issued letter adtd:14/8/2009 to the plaintiff acknowledging and confirming that the nature of business relationship between plaintiff and defendant was only "Commission Agent & Head Marketing" and not an employer and employee relationship. Plaintiff company is having more than 1000 employees and complete salaries are being paid to several employees and there was no need or necessity for plaintiff to withhold a sum of Rs.20,000/- from the defendant by citing financial 16 O.S.No.4908/2011 difficulties in August 2009 as alleged by defendant in his written statement. Plaintiff Company is a profit making concern and having turn over of more than 27 Crores per year. Defendant travelled to Delhi in the pretext of procuring business for plaintiff. No business deal was procured on account of defendant's efforts. It was only due to the honest and sole efforts of H.V.Vinod, plaintiff secured business order from M/s.Impulse Buying House. It is further contended that there was no time limit for supplying goods to M/s.Anuvarth Apparels before Deepavali. Time of delivery or sale of goods was never a matter of discussion between the parties, but price of the goods was for discussion. Only because of the wrong quotation given by defendant, M/s.Anuvarth Apparels refused to take goods at a different price. Defendant never written any letter to the plaintiff as alleged in the written statement. Hence, prayed for dismissal of counter-claim with exemplary costs and to decree the suit of plaintiff.
17 O.S.No.4908/2011
5. From the above facts, the following issues were framed:-
ISSUES
1. Whether the plaintiff proves that the defendant is due and liable to pay the suit claim of Rs.2,56,188/- along with interest at 18% p.a. as prayed for?
2. Whether the plaintiff proves that the defendant is also liable to pay the damages of Rs.7,76,559/- along with interest at 18% p.a. as prayed for?
3. Whether the defendant proves that he is entitled for a counter claim of Rs.4,30,000/- along with interest at 12% p.a. as prayed for?
4. Whether the plaintiff is entitled for a judgment and decree as sought for?
5. To what order or decree?
6. On behalf of plaintiff, the Managing Director of Plaintiff Company is examined as P.W.1, got marked Ex.P.1 to Ex.P.68 and closed its side. On behalf of defendant, defendant is examined as D.W.1, got marked Ex.D.1 to Ex.D.10 and closed his side.18 O.S.No.4908/2011
7. Plaintiff got appointed Hand Writing Expert as Court Commissioner pertaining to Ex.P.65. Defendant examined said Commissioner as C.W.1 and Report of the Commissioner is marked as Ex.C.1.
8. Heard arguments of both sides.
9. Findings of this court on the above issues are:-
Issue No.1:- Partly in Affirmative; Issue No.2:- In the Negative;
Issue No.3:- In the Negative;
Issue No.4:- Partly in Affirmative; Issue No.5:- As per the final order for the following:-
REASONS ISSUE Nos.1 to 3
10. These issues are considered together as they are inter-linked with each other.
11. The first and foremost point to be decided in this suit is whether the defendant is an employee of plaintiff company or whether, he was appointed only as 19 O.S.No.4908/2011 commission agent for marketing goods manufactured by plaintiff. It is not in dispute that plaintiff is the company engaged in manufacturing and export of garment business.
12. It is the specific contention of plaintiff that defendant approached plaintiff's M.D. during March 2009 and after negotiations, defendant was appointed as "Head Marketing" i.e., as an commission agent for marketing the goods of plaintiff and remuneration of defendant was fixed at 1% on the total orders procured by defendant to plaintiff and this is not applicable for the existing customers of plaintiff.
13. It is the specific contention of defendant that he was appointed as "Head Marketing" as other employees of the plaintiff company and his salary was fixed at Rs.70,000/-
with perks of Rs.5,000/- towards phone and other conveyance charges.
14. It is not in dispute that defendant commenced his work with plaintiff on 9/4/2009. It is also not in dispute 20 O.S.No.4908/2011 that in total, defendant received a sum of Rs.3,00,000/- from plaintiff i.e., Rs.40,000/- during May 2009; Rs.70,000/- during June to August 2009 and Rs.50,000/- in the month of September 2009. It is the contention of plaintiff that defendant by expressing his financial problems, requested for advance payment of commission and accordingly, plaintiff paid the above said sum to defendant. Whereas, defendant has contended that he was appointed as an employee of plaintiff and he received the above sums in the above months as his salary. He received only Rs.40,000/- in the month of May as salary of April, because, he joined the services belatedly in the month of April i.e., 9/4/2009 and in the month of September, 2009, he received Rs.50,000/- from plaintiff though he worked for the full month in August, as plaintiff expressed his financial difficulties to pay salary for the said month. It is not in dispute that defendant received a sum of Rs.5,000/- towards perks i.e., mobile and other incidental charges for the months of May to October 2009 and he received proportionate amount to the month of 21 O.S.No.4908/2011 April 2009 amounting to Rs.3,670/-, because, he worked in the said month only for 22 days i.e., from 9/4/2009 to 30/4/2009. Plaintiff has produced those vouchers as per Ex.P.18 to Ex.P.24 to substantiate its above said contention. All the above said vouchers were signed by defendant as receiver. In the above vouchers, it is stated that said amount was paid to defendant as conveyance charges.
15. Defendant has produced e-mail with its attachment as per Ex.D.1 and Ex.D.1(a) dtd:3/4/2009 and letter dt:9/4/2009 to show that he is the salaried employee in plaintiff company and he was not appointed only as commission agent.
16. Plaintiff has produced the e-mail dtd:4/7/2010 as per Ex.P.33. This is only the date of print out taken by plaintiff, but it contains the e-mail dtd:22/12/2009 and Forward message dtd:8/4/2009 at 06.06.34 hours sent by P.W.1 to defendant's e-mail i.e., ramraj personal <[email protected]>. This e-mail had an attachment 22 O.S.No.4908/2011 i.e., appointment letter of defendant. This appointment letter is dtd:7/4/2009. This appointment letter reads as follows:
"We are pleased to appoint you as Head- Marketing effective 9/4/2009. You will be part of the current marketing team and guide them in all aspects of new developments and business. You will be paid 1% commission on net sales against the value of orders received through your efforts and contacts. Orders from the existing customers will be excluded for this purpose.
A consolidated amount of Rs.5,000/-
will be paid towards local transport, cell phone bills etc. Any expenses towards out- station travel will be as per actuals and estimates will be submitted for approval before planning such trips.
Cost to company (CTC) will not exceed 1% of the net sales, which will include any Tax deductions as per the IT Act or Service Tax or any such acts.
We hope your association with SHELL will be mutually beneficial. Wishing you all the Best."23 O.S.No.4908/2011
17. In the cross-examination of P.W.1, some documents were confronted to P.W.1, as he admitted them, they were marked as per Ex.D.1, Ex.D.1(a), Ex.D.1(b) & Ex.D.2. P.W.1 in his cross-examination admitted that [email protected] is the e-mail I.D. of himself and his wife. He also admitted e-mail as per Ex.D.1 was sent by him to defendant with attachment as per Ex.D.1(a) and it also contains confirmation from defendant as per Ex.D.1(b). He also admitted that Ex.D.2 is issued by him. However, P.W.1 denied the suggestion that as per this e-mail dtd:3/4/2009, he had offered defendant an employment and defendant has accepted the same. He denied the suggestion that only in pursuance of Ex.D.2, defendant started to work in plaintiff company w.e.f. 9/4/2009. After Ex.D.2, there was no agreement executed between plaintiff and defendant.
18. Ex.D.1 is the e-mail dtd:3/4/2009 at 7.56 p.m. from ramraj ramraj <[email protected]> to Vasudha <[email protected]>. In this e-mail, there is 24 O.S.No.4908/2011 another e-mail dtd:3/4/2009 at 6.44 p.m. from Vasudha <[email protected]> to defendant wherein it is stated that "Dear Ramraj, Attached is the offer letter, as confirmed you need to join on 9th April. regards Vasuki."
19. The attachment to it is marked as Ex.D.1(a) which is dtd:3/4/2009 which was addressed to defendant by the M.D. of plaintiff. The said letter is the order appointing as "Head Marketing" effective from 9thapril09 which reads as follows:-
"We are pleased to appoint you as per terms and condition below:-
Consolidated salary - Rs.70,000/- p.m. Petrol allowance - Rs.3,000/- p.m. Mobile bill - Rs.2,000/- p.m. Also as agreed, you will be given 1% of the annual turnover as bonus as per the agreed business plan.
All tax liability will be to your account."
20. According to the terms and conditions mentioned in this letter, in the letter-head of the plaintiff company, plaintiff's M.D. has issued appointment letter dtd:9/4/2009 25 O.S.No.4908/2011 to defendant as per Ex.D.2 and it is duly signed by M.D. of plaintiff. All the above terms and conditions are mentioned in Ex.D.2, but, it does not speak about 1% commission as mentioned in the e-mail. Further, it is mentioned in this document that "all terms and conditions will be as per the Marketing agreement/guideline agreed vide mail dtd:7th April. Wishing you all the very best." This e-mail dtd.7th April is an attachment to Ex.P.33 as stated above. In Ex.P.33, there is no mention of salary to defendant, but it is only mentioned regarding 1% commission on orders procured by defendant.
21. The above discussion reveals that defendant disputes employer and employee relationship with plaintiff. As discussed above, Ex.D.2, Ex.D.1(a) reveals that plaintiff ready to take defendant as its employee. However, it is not in dispute that plaintiff has issued appointment letter through e-mail as per Ex.P.33. Under this appointment letter, plaintiff has only categorically stated that defendant was appointed as "Head Marketing" and his remuneration 26 O.S.No.4908/2011 is fixed at 1% on the orders procured by defendant. It is the specific contention of plaintiff that defendant assured to procure orders worth more than Rs.One Crore p.m. In this regard, plaintiff has produced the e-mail as per Ex.P.59. This is the e-mail dtd:3/5/2009 at 6.24 p.m. sent by D.W.1 to P.W.1 wherein, he has specifically stated that they could have make sale of Rs.50 Lakhs per month with DEBENHAMS-Lounge; he also assured that they would maximum sale of Rs.75 Lakhs from ESPRIT-Women's for the light weight cotton pants/jackets and knits and also stated in this letter that his appointment order is attached and requested to mail back to him as confirmation and also courier one hard copy to his Chennai address; it is further written in this letter that Deepak appointment scanned copy is attached and as discussed, following will be split:- Basic - Rs.20,000/-, HRA -Rs.5,000/-and mobile expense Rs.500/-. But in Ex.D.2, his salary is Rs.70,000/- + Perks of Rs.5,000/-. There is no link or relationship between the two. In this e-mail defendant assured plaintiff that he would procure sale of more than Rs.1,25,000/- 27 O.S.No.4908/2011 p.m. Thus, under this e-mail, definitely, defendant offered plaintiff that he would procure orders more than Rs.One Crore orders to Plaintiff Company. This e-mail was not at all denied by defendant while cross-examining P.W.1. Hence, the contention of plaintiff that defendant has made such assurances before he was taken as "Head Marketing"
is proved.
22. As per Ex.P34 - e-mail dtd:17/12/2009, P.W.1 has stated that he would be seriously viewed to recover all the losses and excess of commission paid to defendant in advance through legal means. There is no reply from defendant to this e-mail stating that he is not commission agent and he is the employee in Plaintiff Company. There are several e-mails exchanged in between the parties. Even after this e-mail, in any of the e-mails, defendant has not taken such a stand. Furthermore, defendant admitted this e-mail while cross-examining P.W.1, because, a portion of this e-mail was got marked by defendant's 28 O.S.No.4908/2011 counsel as per Ex.D.4. Thus, the relevant sentence in Ex.P.34 reads as under:-
"I will view this seriously to recover all the losses and the excess of commission paid to you in advance through legal means. I will not hesitate to do this in the interest of fair business practice"
23. The above statement in Ex.P.34 clearly establishes that plaintiff considered defendant as commission agent ad not as an employee. This fact is further clarified from the cross-examination of D.W.1. In the cross-examination, at para No.24, D.W.1 categorically deposed that Plaintiff Company was issuing I.D. Cards to its workers and he has not received such ID card. He volunteered that he was not the worker and only the staff. But, P.W.1 in his cross- examination at page No.5 has deposed that there are 30- 40 employees are working in their office and nearly 1,000 employees are working in their factory. Thus, the persons who are working as staff in the office also called as employees by plaintiff and not only a mere staff. Whether the person is working in the factory or in office, definitely, 29 O.S.No.4908/2011 he will be an employee of Plaintiff Company and thus, the I.D. cards should be issued to all the employees.
24. In the further cross-examination, D.W.1 at para 24 further deposed that at the time of paying salary to him, gratuity and PF are not deducted. If really, defendant is an employee of Plaintiff Company, definitely, it is compulsory to deduct gratuity and PF from the salary and the employer should remit the same to the Employee's PF account. Non-performance of such act is a punishable offence. But, PF and Gratuity was not deducted from the salary of defendant. This also substantiates the contention of plaintiff that defendant is not an employee of plaintiff company.
25. Learned counsel for defendant submitted arguments that there is no word as "Marketing Agent" used in Ex.P.33
- the appointment letter of defendant. It is true that no such words are used in Ex.P.33. However, along with Ex.P.33, as discussed above, Ex.P.34, another e-mail and evidence of both parties are to be looked into decide 30 O.S.No.4908/2011 whether defendant is an employee or a commission agent. Furthermore, it is not in dispute that defendant received Rs.40,000/- in May 2009, Rs.70,000/- in June, July and August, 2009 and Rs.50,000/- in September, 2009. If really, salary of defendant is Rs.70,000/- p.m., as he worked for 22 days in the month of April 2009; then, his salary for April month should be Rs.51,334/-. Then, defendant would not keep quite by receiving only Rs.40,000/- for that month. Likewise, defendant would not keep quite by receiving only Rs.50,000/- for the month of August 2009, though he worked for the entire month in said August 2009. His say that plaintiff was in financial crisis and hence, they have paid only Rs.50,000/- in that month is not an acceptable one, because, admittedly, even according to defendant, there are more than 300 workers working in the plaintiff company; salary of none of those workers was deducted in that month.
26. After the cross-examination of P.W.1, plaintiff has produced Ex.P.65 said to be the letter written by 31 O.S.No.4908/2011 defendant to plaintiff. This is the letter dtd:14/8/2009 written by defendant to plaintiff and subject of this letter is confirmation of business relationship wherein it is stated as follows:-
"With reference to the above, I wish to confirm that the business relationship between myself and your company is in the nature of procuring of Garment business by me for the company for a consideration of Commission as a percentage of Business procured.
There is no Employer-Employee
relationship between us. Any previous
letter/s issued by your company on my
request in this regard is to be treated as cancelled and is null and void abinitio."
27. In this letter, it is specifically stated that there is no employer and employee relationship between plaintiff and defendant and any previous letter issued by Plaintiff Company be treated as cancelled and null and void abinitio.
32 O.S.No.4908/2011
28. Defendant disputed the execution of said letter dtd:14/8/2009 to plaintiff. This letter contained the signature of defendant, but it is disputed by defendant. Hence, plaintiff sent this letter with written statement, vakalath and specimen signatures of defendant to Handwriting Expert for comparison. Handwriting Expert after examination of all these, has given her report as per Ex.C.1 holding that there are no signs of forgery in the disputed signature D; there is no hesitation in the disputed signature; there is no drawn movement in the disputed signature and there is no defective line quality in the disputed signature and ultimately hold that the disputed signature is made by the person who made the admitted and specimen signature.
29. Learned counsel for defendant disputed the report given by handwriting expert and summoned handwriting expert and cross-examined her and also filed objections to Commissioner's Report. In the said objections, defendant contended that the Commissioner has not examined the 33 O.S.No.4908/2011 admitted and disputed signatures properly and thus, the conclusion arrived by the Commissioner is not proper. While cross-examining the Commissioner, defendant took the same contention. He suggested to Commissioner that she has not mentioned the nature of disguised characteristics found in S.5, S.9 and S.10 to S.14 in Ex.C.1 and it was admitted by the Commissioner. The Commissioner admitted that generally a person attempts to disguise his signature, he would follow some common methods for such disguise and she has not mentioned those common methods adopted by defendant in attempting to commit disguise. In this regard, when the court questioned the Commissioner, the Commissioner has deposed that she has mentioned the nature of disguise found in S.5, S.9, S.10 to S.14 in her personal notes, but, she thought that mentioning the same is not required and hence, she has not mentioned it in her report and she further deposed that she has not mentioned the common methods followed by defendant in attempting to disguise the above signature, because, subsequently, she has not 34 O.S.No.4908/2011 mentioned in her report that the acquired characteristics were not changed in S.5, S.9 to S.14 and other signatures.
30. Commissioner has given 27 reasons for coming to the conclusion that the admitted and disputed signatures were made by one person. Though in the commencement of her report, she has not mentioned the details, but, subsequently, she has stated that there is no sign of forgery in disputed signature - D. She has given reason for it that there is no hesitation in disputed signature - D. There is no drawn movement, there is no defective line quality, no unnatural movement, no unnecessary pen lifts and pen stops in disputed signature.
31. Learned counsel for defendant relied on the book "Handwriting & Finger Prints Analysis in Criminal Trial and Investigation" written by B.L.Bansal & Rajiv Raheja and in the said book at page No.410 onwards, the Simulation Process was discussed. It has mentioned that if there are poor line quality, added strokes or retouching of the line trace, etc., then, they are the signs of forgery. But, in the 35 O.S.No.4908/2011 instant case, as discussed above, the learned Commissioner has stated that there is no defective line quality, no unnatural movement, etc. Hence, even though, the Commissioner has not mentioned the different Simulation methods in her report, she has analyzed those methods to come to the proper conclusion.
32. Likewise, in the said book, it is mentioned that some of the common methods employed by an individual attempting to disguise and they are mentioned as large or very small writing, heavy pen pressure, etc. In the instant case, as discussed above, Commissioner in her Report has mentioned that there is no hesitation, no drawn movement, no unnatural movement, no unnatural pen lifts and pen stops in disputed signature; there is wrist movement, medium to fast in disputed, admitted and specimen signatures and there is freedom of movement in disputed admitted and specimen signatures. Thus, though the method of disguised signature is not mentioned in the 36 O.S.No.4908/2011 report, the Commissioner has analyzed all those methods to come to the conclusion.
33. The learned Commissioner has mentioned in her report that the style of disputed, admitted and specimen signatures are circular, the slant is back hand in disputed, admitted and specimen signature and the pictorial appearance of dispute and S.1 to S.4, S6 to S8 are similar; alignment is ascending in disputed and admitted and specimen signatures. The alignment is ascending in disputed, admitted and specimen signatures. The line quality is medium in the disputed, admitted and specimen signature. She made an observation that in the disputed signature and S.2 beginning stroke continue to form an outer circle and loop inside the circle. There is retracing in the central stroke in the disputed S4, S6 to S8 and 10 signatures.
34. Though Commissioner was cross-examined in length by the learned counsel for defendant, he has not elicited in her cross-examination to dispute the above 37 O.S.No.4908/2011 observations made by learned Commissioner and thus, the report of Commissioner cannot be thrown away.
35. Defendant's counsel relied on the citation reported in ILR 2008 KAR 1840 in "Parappa and others v/s Bhimappa and another", wherein, their Lordships held as under:-
"(C) The Indian Evidence Act, 1872 -
Evidence of finger impression - Admissibility
- Held, When the thumb impression on the disputed document is disputed, this science of finger prints aids and guides the courts in resolving the dispute, if an expert's evidence is made available - The evidence of finger impression is admissible. But the person giving his opinion as in other cases must be an expert - Further Held, The Court is liberty to use its own discretion and to affirm or to differ from the expert opinion. The evidence of an expert is in the nature of opinion evidence. It is advisory in nature. It is not conclusive. It is not substantive evidence. However, the Courts before acting on such an expert's evidence insist corroborative evidence. It is not a rule of law. It is a rule 38 O.S.No.4908/2011 of caution and prudence. The expert's evidence should contain reasons. The Court should be careful in looking at such evidence and examining the same - Expert's evidence would not become evidence automatically. The weight of the evidence is dependent on the correctness of the report, the reasons given and their expertise in the field."
36. Relying on the above citation, this court opines that the report of the Commissioner can be looked into; however, as this is the report of Handwriting expert, it requires corroborative evidence to believe Ex.P.65 and this report alone is not sufficient to hold that Ex.P.65 is signed by defendant.
37. The above discussion made it clear that Ex.P.65 is corroborated by other e-mail conversations between P.W.1 and D.W.1. When there is specific mention in e-mails written by P.W.1 to D.W.1 regarding payment of excess commission fee, etc. D.W.1 has not disputed them in the replies as discussed above. Further, there is no ID card issued to defendant, amount from his salary was not 39 O.S.No.4908/2011 deducted towards EPF or Gratuity. Hence, this court holds that plaintiff has proved that defendant was appointed as Commission agent and not as an employee of plaintiff company.
38. The further contention of plaintiff is that defendant told plaintiff's M.D. that he had very good contacts in Delhi in particular with M/s.Impulse Buying House and in all twice, defendant had gone to Delhi and in all, plaintiff spent Rs.56,269/- for the Delhi trip of defendant in a span of 3 months, but plaintiff did not get any orders from M/s.Impulse Buying House. On the other hand, plaintiff learnt that defendant had gone to Delhi pertaining to his previous employment with M/s.Impulse Buying House and used this Delhi trip for his personal purpose and thus, the amount paid by plaintiff towards this trip is to be the reimbursed by defendant.
39. To substantiate that defendant had gone to Delhi twice; plaintiff has produced Ex.P.2 to Ex.P.13. Ex.P.2 is the statement of account which contains the trip to Delhi 40 O.S.No.4908/2011 i.e., by Ramraj and Vinod and it was booked on 1/5/2009 and expenses are Rs.22,938/-; on 15/5/2009 again, Vinod had gone to Delhi and its expenditure amounts to Rs.12,746/- and this amount was paid by plaintiff. Ex.P.3 & Ex.P.4 are bus ticket, hotel bill for having spent money by defendant and Vinod towards conveyance and food. Ex.P.5 is the voucher for Rs.2,404/- for Delhi Trip expenses. Ex.P.6 is the taxi-hire charges by Vinod. Ex.P.7 is the hotel bill for Rs.996/- at Delhi on 7/10/2009. Ex.P.8 is the cash voucher for Delhi expenses amounting to Rs.5,683/-. Ex.P.9 & Ex.P.10 are the Bangalore International Airport Bill for payment of flight charges and both are dated 4/5/2009. Ex.P.11 is again taxi hiring charges in the name of Vinod. Ex.P.12 is the hotel bill. Ex.P.13 is the taxi service bill. Ex.P.62 to Ex.P.64 are flight bills dtd:4/5/2009, 15/5/2009 and 6/10/2009. Defendant has not disputed that he visited Delhi twice. His contention is that because of his efforts, he has procured some business orders from M/s.Impulse Buying House. Defendant further contended that he alone had 41 O.S.No.4908/2011 not gone to Delhi, he along with Vinod had gone to Delhi twice and once only Vinod had gone to Delhi. This fact is further substantiated by the above documents produced by plaintiff.
40. In the plaint, plaintiff pleaded that no order was placed, because of these business trips; whereas in the written statement to counter-claim, plaintiff has stated that it was the honest and sole efforts of Vinod, they have got orders from M/s.Impulse Buying house. With this background, cross-examination of P.W.1 on this point is to be looked in to.
41. In the cross-examination, P.W.1 admitted that on 4/5/2009 defendant and Mr.Vinod both were traveled, Vinod is their employee and they traveled to Delhi in connection with M/s.Impulse Buying house; on 15/5/2009 Mr.Vinod had gone to Delhi and on 7/10/2009 both Vinod and defendant traveled to Delhi and he also admitted that whatever expenses he has shown is in respect of both himself and Vinod. He admitted the e-mail sent by M/s.Impulse Buying house dtd:26/11/2009 and hence, it is 42 O.S.No.4908/2011 marked as Ex.D.3. He further admitted that due to the efforts of defendant who was the Head Manager of Marketing, the business deal was obtained from M/s.Impulse Buying house, but volunteered that it was due to the efforts of Ramaraja and Vinod.
42. The above evidence of P.W.1 made it very clear that there may be the efforts of Vinod to get orders from M/s.Impulse Buying house, but, there were also efforts from defendant to get orders from M/s.Impulse Buying house. Hence, it cannot said that the expenditure shown by plaintiff towards Delhi trip amounting to Rs.56,269/- is only towards the personal expenditure of defendant, because, it was the official trip. Furthermore, as per Ex.D.3 dtd:2/12/2011, M/s.Impulse Buying house has sent 2 attached files regarding orders with M/s.Impulse Buying house was placed with the plaintiff. The plaintiff was and is in possession of these orders and other documents. Hence, it was the bounden duty of plaintiff to produce those documents and to substantiate its claim that said 43 O.S.No.4908/2011 order was placed not because of defendant, but, only because of Vinod. Hence, the above claim of plaintiff on this point is not tenable in law.
43. The 2nd claim made by plaintiff is regarding cancellation of forward contract amounting to Rs.25,935/-. The plaintiff contended that defendant represented to plaintiff that he has procured the order worth U.S.$.36,619/- from Spade Works Company with Letter of Credit and accordingly, plaintiff booked forward contracts with its banker-SBM for said amount i.e., 2 contracts, one is for U.S.$.6,930/- and another is for U.S.$.29,689/-. But, later, plaintiff learnt that Spade Works is accepted only part payment through Letters of Credit; and placed lesser quanity of orders for all style of garments and thus, plaintiff was forced to cancel the forward contract and thereby plaintiff sustained loss of Rs.25,935/- towards cancellation charges.
44. In this regard, plaintiff has produced Ex.P.14 to 16 and Ex.P.66 & Ex.P.67 i.e., cancellation of forward 44 O.S.No.4908/2011 contract letter written by plaintiff to SBM. These document reveal that plaintiff had booked the Forward contract on 23/10/2009 and cancelled it before expiry period i.e., on 14/12/2009 and SBM had charged the amount for cancellation of these contracts totally amounting to Rs.25,935.51/-.
45. Plaintiff has produced the e-mail conversation between plaintiff and defendant pertaining to this contract. Defendant in the written statement denied his responsibility for cancellation of this contract. He contended in the written statement that plaintiff could not immediately take decision on the order placed by Spade Works and has booked forward contract only in December 2009 after defendant ceases to be in employment with Plaintiff Company and thus, he is not responsible for its cancellation. In the cross-examination, defendant has taken separate contention that MD of Plaintiff Company told him that Spade Works Company is a new customer and plaintiff cannot invest much amount and raw- 45 O.S.No.4908/2011 materials and restricted to lesser amount. He further stated in his cross-examination that plaintiff could not purchase even raw-materials for fulfillment of the purchase orders and hence, cancelled the Letter of Credit.
46. In the cross-examination, at para No.31, a specific suggestion was put to defendant that he procured orders worth U.S.$.27,861/- from Spade Works and by looking into Ex.D.6 he admitted the said suggestion. D.W.1 further admitted that he represented P.W.1 that purchase orders from Spade Works Company is U.S.$.36,619/-.
47. As stated above, Ex.P.14 to 16, Ex.P.66 & Ex.P.67 and the above admission of D.W.1 made it clear that D.W.1 represented to plaintiff that Spade Works would place orders worth U.S.$.36,619/-, but, as per the documents produced by defendant himself that as per Ex.D.6, it was only U.S.$.27,861/- orders were placed by Spade Works.
48. In this regard, P.W.1 was cross-examined at page No.15 & 16. In the said cross-examination, P.W.1 admits 46 O.S.No.4908/2011 Ex.D.5 & Ex.D.6 i.e., e-mail correspondences with defendant along with order confirmation contract by Spade Works. Ex.D.5 is dated 2/12/2011 at 4.31 p.m. by P.W.1 to D.W.1 that some of the terms and conditions cannot be acceptable at all; has they made these at the beginning, they could save some time. It further contains the forward message dtd:23/10/2009 at 17.45.33 hours by Raghavan from Spade Works to Vinod of plaintiff company. It reads as follows:-
"pls find the attached order confirmation sheet and terms and conditions procedure to follow for bulk orders.
pls sign back the copy and based on this
we will check with buyer for LC
arrangement."
49. Ex.D.6 reveal that Spade Works confirmed the order only for U.S.$.27,861.10/-.
50. Defendant has produced 2 more e-mails between defendant and Spade Works as per Ex.D.7 and Ex.D.8. Ex.D.7 contains the e-mail conversations in between 3/10/2009 to 5/10/2009 between defendant and officials 47 O.S.No.4908/2011 of Spade Works i.e., R.Rajeevkrishna. They reveal that there is conversation between defendant and officials of Spade Works regarding the quantity of goods to be supplied, etc.
51. In this regard, P.W.1 has deposed that the terms and conditions sent by Spade Works is available in their office and there is no impediment for him to produce them and he admitted that on 23/10/2009 itself, he sent said e-mail to defendant. He further admitted that he booked forward contract in December 2009. But, as stated above, it is contrary to Ex.P.14 to Ex.P.16 and Ex.P.66 and Ex.P.67. On 23/10/2009 itself, plaintiff has booked forward contract. After his cross-examination, P.W.1 has produced Ex.P.66 & Ex.P.67. Though P.W.1 had booked forward contract on 23/10/2009 itself, the above cross- examination of P.W.1 coupled with his admission regarding Ex.D.5 & 6, it is crystal clear that the employee of Spade Works contacted Vinod and not defendant directly and the order confirmation contract was sent to Vinod and not to defendant. Vinod is one of the employees 48 O.S.No.4908/2011 of plaintiff company. Hence, it is to be held that on 23/10/2009 itself, by looking into order confirmation contract only, plaintiff might have booked the forward contract. There is no material to show that it is defendant's mis-representation alone is the cause for cancellation of said forward contract. Hence, it cannot be said that plaintiff has inevitably cancelled the contract for Spade Works due to mis-representation of defendant.
52. It is the further contention of plaintiff that defendant has obtained order from M/s.Anuvartha Apparels for supply of Jeans pant with specific designs. It is the contention of plaintiff that originally the price was fixed at Rs.275/- per pant. Later, without consent of plaintiff, defendant fixed it at Rs.190/- and then, with series of discussions with the defendant and the owner of M/s.Anuvartha Apparels i.e., Prakash Jain, ultimately able to fix for Rs.240/- per piece and thus, plaintiff sustained loss of Rs.35/- per piece. In all, plaintiff supplied 4,591 pieces to M/s.Anuvartha Apparels and thus, it sustained 49 O.S.No.4908/2011 loss of Rs.35/- per piece totally amounting to Rs.1,60,685/-.
53. In this regard, defendant was cross-examined by plaintiff's counsel. In the said cross-examination at para No.36, D.W.1 admitted that the price per pant was fixed at Rs.275/- to M/s.Anuvartha Apparels. He further admitted that based on his representation, the quantities to be supplied to M/s.Anuvartha Apparels was fixed. He admitted that he had no discretion to fix the rate of each garment. He denied the suggestion that he assured M/s.Anuvartha Apparels that each garment can be sold at Rs.190/- without any authority.
54. In the further cross-examination, D.W.1 admitted that M/s.Anuvartha Apparels purchased 2 types of garments i.e., washed and unwashed garments and he does not know the cost of washing per garment was Rs.85/-. However, this suggestion to D.W.1 is not according to plaint pleadings; because, as per the plaint pleadings and as per the e-mail conversation between 50 O.S.No.4908/2011 plaintiff and defendant, it is very clear that plaintiff contended that washing per garment costs Rs.35/-.
55. DW.1 further admitted in his cross-examination that there were several meeting between P.W.1 and Prakash Jain regarding fixing of price. But, he denied the suggestion that he was involved in those meetings. However, the e-mail conversations between plaintiff and defendant reveals that P.W.1 repeatedly insisted defendant to be present in those meetings, but for one or other reason, defendant has not attended all those meetings, but attended some of them.
56. Defendant has taken contention in his written statement at para No.10 that the customer demanded for reduction of price on account of default committed by plaintiff and it is defendant who has negotiated the price with customers who had agreed to pay Rs.240/- per piece. But, plaintiff who did not agree for the said offer and putting the blame on defendant had called upon defendant to stop working for plaintiff. However, this 51 O.S.No.4908/2011 contention was not found in the e-mail conversation between plaintiff and defendant. Only in reply notice as per Ex.D.10, defendant had taken this contention, but it is the specific contention of plaintiff that defendant has not given such reply. P.W.1 was not cross-examined regarding this issuance of reply. Defendant has not produced the postal acknowledgment or postal receipt for having sent this legal notice to plaintiff. Hence, this court holds that there is no proof that defendant has given reply to legal notice of plaintiff as per Ex.D.10 dtd:27/11/2010.
57. With these backgrounds, the conversation between plaintiff and defendant in the e-mails is to be looked into. Ex.P.34 is the e-mail dtd:17/12/2009 at 4.30 a.m. P.W.1 had sent this e-mail from his personal e-mail ID to the plaintiff's official e-mail ID. However, actually, P.W.1 sent this e-mail to defendant on 16/12/2009 at 21.55.20 hours. This is a forward message. It contained one more e-mail dtd:16/12/2009 sent by defendant to plaintiff at 9.25 a.m. wherein defendant stated that "PJ wants price for non- 52 O.S.No.4908/2011 washed denim, as he will do the washing/finishing which is 3000 pcs. He will not agree for Rs.275 for non washed denim! As per costing without washing is Rs190".
58. P.W.1 has sent e-mail to D.W.1 on 28/11/2009 at 12:50:36 hours that Rs.35/- is for wash and not Rs.85/- as mentioned by defendant in his e-mail and told that defendant has not applied his mind before making such irresponsible statements. It is further stated that plaintiff is not convinced about the way in which defendant is working. One more sentence in this e-mail is as follows:-
"I will view this seriously to recover all the losses and the excess of commission paid to you in advance through legal means. I will not hesitate to do this in the interest of fair business practice."
59. In this e-mail, defendant's counsel got marked a portion of Ex.D.4. It reads as follows:-
"Just arrange to pick the items at 275 minus 35 or you can make good the loss on your own."53 O.S.No.4908/2011
60. On perusal of this e-mail as per Ex.P.34, containing Ex.D.4 also, it is crystal clear that according to plaintiff, cost of washing per piece is Rs.35/- and earlier the price was fixed at Rs.275/- per piece with Anuvarth Apparels and if Anuvarth Apparels requires the garment without wash, then, plaintiff at maximum supply the goods at Rs.240/- per piece and not less than that. After this e- mail again plaintiff sent another e-mail dtd:18/12/2009 at 6.07 a.m. as per Ex.P.35 to defendant under which P.W.1 abused defendant for his way of approaching the customers and misleading the facts to plaintiff company and he referred about the transaction with Anuvarth Apparels, Spade Works and ultimately told that if the talks planned on Tuesday does not yield any result, he will start the process of loss recovery by legal means without fail and delay. On the same day, at 6.41 p.m. plaintiff again sent another e-mail as per Ex.P.36 to D.W.1 regarding cancellation of orders from Spade Works and loss of Rs.26,000/- towards forward currency block, etc. 54 O.S.No.4908/2011
61. As per Ex.P.37, on 19/12/2009 at 6.07 p.m., D.W.1 sent e-mail to P.W.1 alleging that it is P.W.1 along with Vinod/Vishnu handling the Spade Works Contract. It reads as follows:-
"Spadework, you have been handling along with Vinod/Vishnu. Your intention is to make me suffer pls do so. I believe in god. I take full responsibility regarding anuvarth and doing the best to recover fully."
62. Ex.P.38 is another e-mail dtd:22/12/2009 at 2.41 a.m. by P.W.1 to D.W.1 regarding Anuvarth Apparels fixation of price, etc. In this e-mail P.W.1 changed his version from Rs.240/-. He stated that he should fix the price at Rs.275/- + washing up charge, etc. and also stated about accountability of defendant's commission of 1% of the value of orders handled and refund of excess. Thus, there is a deviation by P.W.1 from his own admission that the price is to be fixed at Rs.240/- per piece and not Rs.275 + washing charges.
55 O.S.No.4908/2011
63. Ex.P.39-e-mail sent by D.W.1 to P.W.1 dtd:23/12/2009 at 1.42 p.m. stating that the delay is from shell and anuvarth has right to claim damages. In fact, PJ is decent not claiming the damage of jacket order and only asking the loss of sale, the agreed rate is Rs.275/- and as on today rate is Rs.240/-. The difference is Rs.35/- and he is trying his best to bridge the gap.
64. In this e-mail though defendant has not specifically mentioned that Anuvarth Apparels has right to claim damages, he has only stated that there might be some default in plaintiff and hence, Anuvarth Apparels has right to claim damages.
65. In one more e-mail dtd:22/12/2009 at 7.32p.m. as per Ex.P.40, sent by P.W.1 to D.W.1 wherein P.W.1 has stated that the meeting was at 3p.m. on that day and defendant was supposed to attend, but he has not attended it. He further stated that ultimately, the price was fixed at Rs.240/- per piece for washed garment instead of Rs.225 as committed by defendant. This up- 56 O.S.No.4908/2011 charge is because of extra dry process and wash add-ons hence the effective rate remains at Rs.225/-.
66. Plaintiff has produced another e-mail as per Ex.P.41 dtd:24/12/2011 at 4.56 a.m. which was written by P.W.1 to D.W.1 wherein P.W.1 has stated that Prakash Jain has never raised this subject of loss of sale in any of the meetings or communications. His reasoning for seeking goods at a lesser price is only due to market conditions after the pooja. This had nothing to do with the quality, delivery or any such issue. It is further stated that "do not keep finding new reasons to absolve yourselves, absolutely, there was no authority for you to re-negotiate the prices without re-confirming with me by stating the reasons."
67. Ex.P.42 is the e-mail dtd:24/12/2009 at 8.34 p.m. from P.W.1 to D.W.1 wherein he called defendant to sort out the issues within 7 days or else, he would transfer the entire loss and consequential loss to defendant. Ex.P.43 is the e-mail dtd:24/12/2009 at 5.20 p.m. wherein D.W.1 57 O.S.No.4908/2011 wrote to P.W.1 wherein, he requested P.W.1 to meet before he take any decision. It reads as follows:-
"I need not meet you(not in shell) before you take this forward. I am prepare to compensate only after detailed meeting with you."
68. Thus, in this e-mail D.W.1 intends to meet P.W.1 before P.W.1 take any drastic decision against defendant and he is also ready to compensate the plaintiff only after detailed discussion with plaintiff. D.W.1 in his cross- examination at para No.38, admitted that he sent e-mail as per Ex.P.43. According to him, the word "to compensate" used in Ex.P.43 means he could solve the situation with all his efforts and resolve the dispute between plaintiff and its customers. However, by no stretch of imagination, reading of Ex.P.43 would give such a meaning.
69. Ex.P.44 & Ex.P.46 are the e-mails sent by P.W.1 to D.W.1 on 24/12/2009 at 6.25 p.m. and 25/12/2009 at 9.47 a.m. respectively and in both these e-mails, P.W.1 58 O.S.No.4908/2011 refused to meet D.W.1. However, even in Ex.P.45 - e- mail dtd:25/12/2009 at 9.25 a.m. again D.W.1 requesting to meet P.W.1 at least once.
70. Immediately after P.W.1 sends e-mail on 25/12/2009 at 9.47 a.m. as per Ex.P.46; on the same day, as per Ex.P.47 at 10 a.m., D.W.1 sent e-mail to P.W.1 that by the time plaintiff would take legal action, he wont be in this world and again requesting P.W.1 to meet once for which P.W.1 has given reply, which is part and parcel of Ex.P.48. On 25/12/2009 at 11.26 a.m. P.W.1 replied to D.W.1 that he has to commit suicide because of mis-representation, misdeeds committed by defendant and again gave 7 more days to sort out the issues. Immediately on the same day at 11.26 a.m. D.W.1 wrote again requesting to meet P.W.1 outside Shell wherein, he categorically admitted that P.W.1 has supported him. Afterwards, again on same day at 6.00 p.m., detailed e-mail was sent by P.W.1 to D.W.1 wherein also P.W.1 alleges against the wrong decision taken by defendant regarding the fixation of price 59 O.S.No.4908/2011 of Rs.225/- to Anuvarth Apparels and further reiterated that defendant has already walked away with Shell's earnings and also inflicted huge losses i.e., pertaining to Anuvarth Apparels, Spadeworks, Delhi trips, foreign currency loss, conveyance, etc. and again given 7 days to solve the issues and also told that do not threaten him again and he will not kept quiet if this issue is not resolved and he will take legal action to recover all his losses to the last rupee.
71. Ex.P.49 is the e-mail sent by P.W.1 to Prakash Jain of Anuvarth Apparels to close the issue of price with Mr.Ramaraj(defendant). Ex.P.50 is the e-mail sent by P.W.1 to Ranganath saying that the meeting was confirmed at 10.30 a.m. on next day by Prakash Jain and Ramaraj. Ex.P.51 is the e-mail dtd:30/12/2009 at 3.03 p.m. by P.W.1 to D.W.1 for confirming the meeting at 10.30 a.m. on 30/12/2009 and also thankful to Prakash Jain for agreeing to close the issue and to pay the balance and also mentioned the agenda of the meeting and stated 60 O.S.No.4908/2011 that once the rates issues is resolved, they will close the other issues and also asked him to bring his cheque book to close the issue once for all and get on with their business.
72. Ex.P.52 is the e-mail dtd:4/1/2010 at 8.31 a.m. by P.W.1 to D.W.1 and also asked him to confirm the meeting on 5/1/2010 without fail. Ex.P.53 is the letter dtd:6/1/2010 written by P.W.1 to D.W.1 wherein, he categorically stated that Prakash Jain has considered that he will not reconsider the price and hence, the loss on account of unauthorized sale will be Rs.35/-per piece for 4591 piece working out to Rs.1,60,685/- and he also mentioned that defendant is liable to pay Rs.3,46,120/- regarding other issues.
73. Ex.P.54 to Ex.P.57 are other e-mails written by P.W.1 to D.W.1 on 7/1/2010, 12/1/2010 and 24/3/2010 directing defendant to compensate the losses and they are not ready to accept any amount short of their claims and also reiterated that plaintiff will take both civil and criminal 61 O.S.No.4908/2011 action against defendant for recovery of dues. Ex.P.58 is the e-mail dtd:12/1/2010 at 1.48 p.m. written by D.W.1 to P.W.1 stating that he will also contact legal experts and then, give reply to the notice of plaintiff. Ex.P.60 is the certificate under S.65-B of the Indian Evidence Act for all e-mail conversations between plaintiff, defendant and others and they were stored in their computer and down- loaded and printout was taken by plaintiff.
74. As discussed above, defendant has not disputed these e-mails. These e-mails were exchanged between parties and they establish that what is the actual claim of plaintiff and what is the defence of defendant.
75. On perusal of the above e-mail conversation between P.W.1 & D.W.1, this court noticed that at a stretch, P.W.1 admitted that sale of jeans pant at Rs.275- Rs.35 = Rs.240/- per piece to Anuvarth Apparels. Ultimately, it is the case of plaintiff that it supplied those jeans pant at Rs.240/- per piece. At that time, P.W.1 was ready to bear the above loss of Rs.35/- per piece, but subsequently, he 62 O.S.No.4908/2011 changed his version and claimed that only because of defendant, plaintiff sustained loss of Rs.35/- per piece, i.e., for 4591 pieces amounting to Rs.1,60,685/-. When once plaintiff agreed to waive off this loss, ultimately, when the price is fixed at the same rate, plaintiff is not entitled to claim the above loss from the plaintiff.
76. Plaintiff contended that defendant totally procured orders worth Rs.57,54,005/-, but the amount of orders worth Rs.13,72,814/- was not yet realized and contended that the orders procured by defendant was amounting only to Rs.43,81,191/- and thus, defendant is entitled for commission of only Rs.44,000/-. However, there is no evidence produced by plaintiff that the plaintiff has not at all received the payment pertaining to orders procured by defendant amounting to Rs.13,72,814/-. Hence, this court holds that admittedly, defendant has procured the orders worth Rs.57,54,005/-, and thus, his commission should be considered as Rs.58,000/-; and admittedly, plaintiff paid Rs.3,00,000/- to defendant. Out of this amount, 63 O.S.No.4908/2011 Rs.58,000/- is to be deducted and balance is Rs.2,42,000/- is the excess commission paid by plaintiff to defendant.
77. Plaintiff claimed interest at 18% p.a. from date of issuance of legal notice till realization. Plaintiff issued legal notice to defendant on 28/10/2010. However, it was returned unserved as 'not claimed and door locked'. But, plaintiff has sent the notice through certificate of posting. Hence, it is to be presumed that notice was served upon defendant. As discussed above, this court holds that there is no employer and employee relationship between plaintiff and defendant and defendant is only marketing agent of plaintiff. Thus, defendant received excess commission amount from plaintiff. Hence, this court holds that plaintiff is entitled to recover the excess payment of commission with interest. If plaintiff had keep the amount in F.D. in any of the nationalized banks, definitely, plaintiff would get interest atleast at 10% p.a. Hence, plaintiff is entitled for recovery of Rs.2,42,000/- with interest at 10% p.a. from 28/10/2010 till realization.
64 O.S.No.4908/2011
78. As discussed above, plaintiff failed to prove Delhi trips of defendant as futile, because, P.W.1 admitted that some orders were procured by defendant from M/s.Impulse Buying House and hence, the amount of Rs.56,269/- spent towards Delhi trip is not entitled to be recovered from defendant. Furthermore, it is admitted by plaintiff in all the e-mail that defendant is entitled for Rs.5,000/- towards conveyance charges and plaintiff totally paid to defendant for conveyance is Rs.33,670/- which also cannot be recovered from defendant. The above discussion reveals that plaintiff has cancelled the forward contract and sustained loss of Rs.25,935/- not only because of defendant and thus, plaintiff is not entitled to recover the said amount from defendant and plaintiff is also not entitled to recover Rs.1,60,685/- from defendant towards loss from M/s.Anuvartha Apparels.
79. There is no specific evidence produced by plaintiff to show that there was loss of business and reputation amounting to Rs.5,00,000/- only because of defendant; 65 O.S.No.4908/2011 defendant also fails to prove that he is an employee of plaintiff and plaintiff is due a salary of Rs.2,30,000/- to him and further he is entitled for damages of Rs.2,00,000/-. Hence, this court holds that plaintiff is entitled only for recover of excess commission paid by plaintiff to defendant and not towards loss. Accordingly, issue No.1 is answered partly in affirmative; issue No.2 is answered in negative, and issue No.3 is answered in negative.
ISSUE No.4
80. In view of findings on issue Nos.1 to 3, this court holds that plaintiff is partially entitled for judgment and decree as sought for. Accordingly, this issue is answered partly in affirmative.
ISSUE No.5
81. In view of findings on issue Nos.1 to 4, this court proceeds to pass the following:-
66 O.S.No.4908/2011
ORDER Suit is partly decreed with costs against defendant for a sum of Rs.2,42,000/- with interest at 10% p.a. from 28/10/2010 till realization.
"Counter-claim filed by defendant U/O VIII R.1 and R.6-A CPC is dismissed." Added in the judgment as per order dtd:8/8/2016.
Draw decree accordingly.
(Dictated to the Judgment Writer, transcribed and computerized by her, corrected and then pronounced by me in the open Court on this the 8th day of August, 2016).
(K.B.GEETHA) XIX ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE CITY.
ANNEXURE I. List of witnesses examined on behalf of :
(a) Plaintiff's side :
P.W.1 - B.R.Vasuki
b) Defendant's side :
D.W.1 - Ramaraj
c) Court' side:-
C.W.1 - Smt.C.V.Jayadevi 67 O.S.No.4908/2011 II. List of documents exhibited on behalf of :
(a) Plaintiff's side :
Ex.P.1 Ledger account extract for the
period from 1/4/2009 to 7/9/2010
Ex.P.2 Statement of account
Ex.P.3 Bill issued by Taste of India
Ex.P.4 Bus ticket
Ex.P.5 Petty cash voucher dtd:8/10/2009
Ex.P.6 Pre-paid taxi bill
Ex.P.7 Galaxy Hotel bill
Ex.P.8 Petty cash voucher dtd:7/5/2009
Ex.P.9 & 2 receipts issued by BIAL
Ex.P.10
Ex.P.11 Pre-paid taxi bill
Ex.P.12 Punjab hotel bill
Ex.P.13 Taxi bill
Ex.p.14 Copy of the letter dtd:14/9/2010
Ex.p.15 & 2 SBM letters both dtd:14/12/2009
Ex.P.16
Ex.P.17 Ledger account extract for the
period from 1/4/2009 to 7/9/2010
Ex.P.18 to 7 payment vouchers
Ex.P.24
Ex.P.25 Copy of the legal notice
dd:28/10/2010
Ex.P.26 to 3 postal receipts
Ex.P.28
Ex.P.29 Certificate of posting
Ex.P.30 to 3 unserved postal envelops
Ex.P.32
Ex.P.33 to Print outs of e-mails conversation
Ex.P.59 between plaintiff, defendant and
others of different dates
Ex.P.60 & 2 certificates of compliance of S.65
Ex.P.61 B(4) of the Indian Evidence Act
Ex.P.62 to 3 print outs of air tickets
Ex.P.64
Ex.P.65 Letter written by defendant to
plaintiff company
68 O.S.No.4908/2011
Ex.P.66 & 2 correspondence letters between
Ex.P.67 plaintiff and SBM
Ex.P.68 Vakalath of defendant
Ex.P.68(a) Signature of defendant
(b) Defendant's side : -
Ex.D.1 E-mail dt:3/4/2009 at 7.56 p.m.
sent by plaintiff to defendant
Ex.D.1(a) Attachment to Ex.D.1
Ex.D.1(b) Relevant portion marked in Ex.D.1
Ex.D.2 Appointment letter given by
plaintiff to defendant dtd:9/4/2009
Ex.D.3 E-mail correspondence between
M/s.Impulse and the defendant
dtd:26/11/2009
Ex.D.4 Relevant portion marked in Ex.P.34
Ex.D.5 & E-mail correspondence issued by
Ex.D.6 Spade Work to defendant
dtd:2/12/2011 along with order
confirmation contract
Ex.D.7 & 2 e-mail conversations between
Ex.D.8 defendant and his customers
Ex.D.9 Certificate u/s 65-B of Evidence Act
Ex.D.10 Notice
(c) Court' side:-
Ex.C.1 Commissioner Report
(K.B.GEETHA)
XIX ADDL.CITY CIVIL & SESSIONS JUDGE,
BANGALORE CITY.
GVU/-