Delhi District Court
M/S Interocean Shipping Company vs M/S Geotrace Technologies Ltd on 30 November, 2016
In the Court of Ms. Asha Menon, District & Sessions Judge
South East : Saket Court, New Delhi.
In the matter of :
Suit No. 66/15
M/s Interocean Shipping Company
(Sole Proprietorship Firm of Mr. Arjun Saigal)
Through his duly constituted Power of
Attorney Holder Mr. Rohit Sharma
its Authorised Representative
Having its office at : 75, Link Road
Lajpat NagarIII, New Delhi110024. .... Plaintiff
V E R S U S
1. M/s Geotrace Technologies Ltd.
(a company organized and existing
under the laws of Malaysia)
Having its office at 8th Floor
Unit A81, Menara Taipan
No. 6 Jalan P. Ramlee
50250 Kuala Lumpur, Malaysia
2. M/s Geotrace Technologies Ltd.
(a company organized and existing
under the laws of United Kingdom)
Having its office at the Cornerstone
The Broadway Working, Surrey GU21 5A.
....Defendants
Suit presented on : 10.12.2015
Arguments concluded on : 10.11.2016
Judgment on : 30.11.2016
JUDGMENT
This suit has been filed by M/s Interocean Shipping Company, a Sole Proprietorship firm of Mr. Arjun Saigal through his duly constituted Power of Attorney Holder Mr. Rohit Sharma, for Suit No.66/15 Interocean Shipping Company V. Geotrace Technologies Page 1 of 13 declaration and recovery of Rs.25,60,336/ against two defendants namely M/s Geotrace Technologies Ltd., Malaysia and M/s Geotrace Technologies Ltd., United Kingdom.
2. It is stated in the plaint that plaintiff is a leading Indian ship broker whereas the defendant no.1 was a company based in Malaysia and was an integrated reservoir services company providing inter alia services such as comprehensive reservoir seismic processing, reservoir development services and reservoir data management from reconnaissance, to brownfield recovery, to various land and reservoir projects. Defendant no.2 is the sister company of the defendant no.1 and based in United Kingdom.
3. The case of the plaintiff briefly put is that it was approached by the defendant no.1 to facilitate meetings with potential clients in India and in respect of the said services on the suggestion of the plaintiff, the defendant no.1 sent a letter of support authorising the plaintiff to act as its agent and representative for all tenders to be floated by M/s Cairn India Ltd.. For this work, the plaintiff was entitled to a commission/brokerage of 7.5% "on all charter hire earned", which was payable by the defendant no.1 on receipt of the payment from the principal. Subsequently, the quantum of commission was deleted from the support letter while maintaining the entitlement of the plaintiff to commission.
4. The case of the plaintiff is further that though initially the services were rendered in respect of prebid meeting for the Suit No.66/15 Interocean Shipping Company V. Geotrace Technologies Page 2 of 13 tender for the Rajasthan Block with M/s. Cairn India Ltd., subsequently, the services were rendered by the plaintiff to the defendant no.1 in respect of tenders floated by M/s. Cairn India Ltd. for its South African block.
5. The plaintiff claims that it was through his services that the defendant no.1 successfully bid in the South African block which was alloted to it. It is further stated that till the payments were released by M/s. Cairn India Ltd. to the defendant no.1 in respect of its 3D Short offset processing project in South Africa i.e. till 12.02.2014, the plaintiff had participated in the entire project as the facilitating intermediary and yet when he demanded payment, the defendant no. 1 through its email dated 03.04.2015 declined to pay the commission to the plaintiff declaring "at no point did we formally appoint you as our agent in India."
6. The plaintiff raised an invoice dated 07.04.2015 upon the defendant no.1 for USD 27,303 being 7.5% of USD 324,000 i.e. the project price of the tender for the South African block. Since, no response was forthcoming, demand notice was issued vide email dated 02.02.2015 and since, there was no further response, the suit was filed claiming the equivalent of the USD at the prevailing rate amounting to Rs.18,15,649/ with interest @18% per annum from 03.04.2014 till the date of institution of the suit, amounting to Rs.5,44,687/. Legal costs of Rs.2,00,000/ have also been claimed in the suit. The plaintiff has prayed for a decree of declaration that Suit No.66/15 Interocean Shipping Company V. Geotrace Technologies Page 3 of 13 the plaintiff was entitled to the sum of Rs.25,60,336/ from the defendants, jointly and severally, as commission for services rendered to the defendants. It has prayed that a decree of recovery for the said amount along with interest @18% along with the legal costs be passed in favour of the plaintiff.
7. The defendants were served with the summons of the suit, despite which, none appeared on their behalf and they were proceeded exparte vide order dated 10.02.2016.
8. The exparte evidence was filed through the affidavit of Sh. Ravi Chopra who tendered his affidavit Ex.P1 and has been examined as PW1. He has brought on record all the emails communications as Ex.PW1/1 to Ex.PW1/18. The print out of the RBI website is Ex.PW1/19. The certificate under Section 65B of the Indian Evidence Act, 1872, is Ex.PW1/20.
9. I have perused the record. I have also heard the arguments of Sh. K. Harshavardhan, Ld. Counsel for the plaintiff.
10. It is clear from the record that the entire transactions between the parties is based on emails. Reference to these emails would help establish the relationship between the parties and whether the plaintiff is entitled to claim any amount from the defendants.
11. In this regard, the first document of importance is Ex.PW1/1 which reveals that it was the defendant no.1 through its Area Manager Far East Mr. Mark Robinson who first approached the Suit No.66/15 Interocean Shipping Company V. Geotrace Technologies Page 4 of 13 plaintiff by addressing Mr. Salish Mukundan expressing interest in having business in India and inviting the plaintiff in helping the defendant no.1 by settingup meetings with potential clients in India. The email is dated 01.11.2012.
12. The response to this is Ex.PW1/2 dated 02.11.2012 whereby plaintiff through Mr. Salish Mukundan expressed willingness to arrange and join defendant no.1's representative at all meetings and also expressed the need of an MOU to work together in India and also requested for covering the expenses as per actuals.
13. In response, Mr. Mark Robinson vide Ex.PW1/3 dated 05.11.2012 expressed willingness to have an MOU and sought a draft through email and also expressed no problem in covering reasonable expenses for the visit. In this letter, Mr. Mark Robinson also informed the plaintiff that the clients he would be like to visit would be "those focusing on the onshore business, Cairn, etc."
14. These emails would show that the defendant no.1 was the one who approached the plaintiff for assistance and services to build business, particularly, with M/s Cairn India. The plaintiff agreed to render services and expressed the need for an MOU which was also agreed upon in principle.
15. Since, the MOU was being delayed, vide Ex.PW1/4, the plaintiff informed the defendant no.1 that since, there were still to discuss and sign the MOU in order to proceed further, the plaintiff would require a letter of support on the letter head of the defendant Suit No.66/15 Interocean Shipping Company V. Geotrace Technologies Page 5 of 13 no.1. The content of the letter of support was also forwarded in this email Ex.PW1/4. In response, the defendant no.1 actually sent the letter of support dated 15.11.2012 duly signed by Mr. Mark Robinson and placed on record as Ex.PW1/5 (Colly).
16. The letter of support bears reproduction as under :
"We, M/s Geotrac Technologies Limited a company organized and existing under the laws of Malaysia, represented by Mr. Mark Robinson and having its office address at 8th Floor, Unit A81 Menara Taipan, No. 6 Jalan P. Ramlee 50250 Kuala Lumpur, Malaysia, in the capacity as independent, integrated, reservoir services company providing comprehensive reservoir seismic processing, reservoir development services & reservoir data management from reconnaissance, to brownfield recovery, do hereby authorise Interocean Shipping Company (Interocean), New Delhi in their capacity as "Agent & Representative" to submit all documents related to Cairn's EOI and to represent, negotiate & attend prebid conference on our behalf.
Interocean will also assist in obtaining necessary documents like Tenders, drawings, etc, approvals and sanctions (if any) from appropriate authorities. Interocean will assist in reminding the parties concerned for hire payments/fees whenever the same is due and submit all the required invoices/documents.
The letter of Authorization shall become effective from this date & shall remain in effect for all the tenders being floated by Cairn India after the documents have been submitted and owners have been prequalified for the present as well as the future tenders. Interocean will assist owners in getting themselves prequalified for all future tenders as well.Suit No.66/15 Interocean Shipping Company V. Geotrace Technologies Page 6 of 13
Interocean will charge 7.5 pct as commission on all charter hire earned and invoice will be raised for immediate payment only after the amount has been credited to owners account."
17. From this letter of support, it is very clear that the plaintiff was appointed as agent and representative by the defendant no.1 to attend, represent and negotiate prebid conference on behalf of defendant no.1. Attending may not have involved any specific services of the plaintiff. However, negotiating and representing reflect that due authority had been conferred by the defendant no.1 upon the plaintiff to act on their behalf as an agent would, to bind the defendant no.1. The authority was also not only to attend the prebid conference but to assist the defendant no.1 in obtaining necessary documents like tenders, drawings etc. approvals and sanctions from appropriate authorities and submit all the required invoices and documents. More interestingly, this letter of authorisation became immediately effective from 15.11.2012 and was to remain in effect for all the tenders being floated by M/s Cairn India in the preset as well as in the future and Interocean i.e. the plaintiff was to assist the defendants in getting themselves prequalified for all future tenders as well. Clearly, this was a continuing authorisation. No doubt, this particular project did not fructify as the defendant no1 withdrew from the project. However, it is to be noted that the plaintiff continued to assist the defendant no.1 in respect of prebid meeting in other projects such as the provision of 3D seismic anisotropic Suit No.66/15 Interocean Shipping Company V. Geotrace Technologies Page 7 of 13 reprocessing services for their onshore block in Rajasthan and the further tenders in South Africa, on the request of the defendant no.1.
18. It is clear from Ex.PW1/6 (Colly) dated 15.02.2013 that an email emanated from Mr. Mark Robinson of the defendant no.1 dated 15.02.2013 requesting the attendance of the plaintiff in discussion with Cairn India in respect of the project in Rajasthan. The same day, Sh. Salish agreed to attend the prebid meeting on the 18.02.2013 requesting that an authority letter be sent.
19. It is at this juncture that the defendant no.1 clarified that the commission could not be paid at 7.5% as, even though, it was not an unacceptable amount, he had to discuss and get the approvals from the management in United Kingdom before inserting the percentage.
20. Vide Ex.PW1/7, the support letter was sent again to act as an agent and representative of the defendant no.1 to submit all documents related to M/s Cairn India, ITT and to "represent, negotiate and attend" prebid conference on behalf of defendant and to assist in obtaining necessary documents like Tenders, drawings, etc, approvals and sanctions (if any) from appropriate authorities and reminding the parties concerned for hire payments and fees and submit all required invoices/documents.
21. Once again, the letter of authorisation was to become effective from 14.02.2013 and was to remain in effect for all the tenders being floated by M/s. Cairn India after documents have been Suit No.66/15 Interocean Shipping Company V. Geotrace Technologies Page 8 of 13 submitted by the owners for all present and future tenders and once again, Interocean was to assist the owners in getting themselves pre qualified for all future tenders as well. In fact, except for the quantum of commission, the words are the same as in the previous letter of support.
22. Ex. PW1/8 (Colly) sent by the plaintiff not only includes the report of the meeting but also certain information that the plaintiff sent to the defendant no. 1 about their participation in Cairn India's South African block. The response was sent by the defendant no.1 to Mr. Salish of the plaintiff dated 19.02.2013 that they had in fact participated in the South African tender and also requested him i.e. the plaintiff to clarify with Cairn India about the participation of defendant no.1.
23. Vide Ex.PW1/10, the plaintiff sought a clarification from the defendant no.1 through email dated 26.02.2013 as under :
"Meanwhile, on the South African tender, do let us know the status of the same and we will need your confirmation that this tender is being routed through our channel. I have been working alongside Geotrace since August 2010 and is eager to do some biz together in whichever way possible."
24. An email dated 28.03.2013 has been placed on record as Ex.PW1/11 (Colly) in respect of the subject "Cairn land seismic." This email addressed to the plaintiff records that the defendant no.1 has had no final word from M/s. Cairn India on this issue. The Suit No.66/15 Interocean Shipping Company V. Geotrace Technologies Page 9 of 13 previously discussed options were referred and the preference of the defendant no.1 in respect of the bid was conveyed to Mr. Salish with the request "Can you convey this message to them with some urgency."
25. Ex. PW1/12 is an email dated 24.04.2013 for South Africa Processing Kickoff meeting with Geotrace, sent on behalf of M/s. Cairn India to Mr. Mark Robinson of the defendant no. 1 with a copy marked to the plaintiff. In respect of the same project, an e mail was sent by the plaintiff to the defendants requesting "as discussed & agreed, please copy me on all your messages that you will be sending it to Cairn's office." In response to this request of the plaintiff through Mr. Salish, Mr. Mark Robinson responded with "we will make sure you are copied on all emails with Cairn." Mr. Mark Robinson while proposing 3 equal invoicing stages in respect of the said project marked these invoices to the plaintiff while amongst others. This was on 20.05.2013.
26. Thus, it is clear that the defendants have requested for the services of the plaintiff for not merely the tenders that were floated in India by M/s. Cairn India Ltd., but also in respect of the South African project where the plaintiff was requested specifically to render assistance. His participation is reflected through the copying of the emails and the constant communications between the plaintiff and defendants in respect of the various projects. E mails placed on this file as part of Ex.PW1/13(Colly), forwarding the Suit No.66/15 Interocean Shipping Company V. Geotrace Technologies Page 10 of 13 dissatisfaction with the participation of the defendants in respect of Orange Basin Project - South Africa reflects the active involvement of the plaintiff in another project of M/s Cairn India, on behalf of the defendants, in South Africa.
27. Ex. PW1/14 is the reply to the representation of the defendants Mr. Dean in respect of Cairn Orange Basin Project referring to the "Tele con" on the previous day i.e. 02.12.2014. This is regarding release of the full and final payment of M/s Geotrace for this project. This again reflects that even up to the release of the final payment, the defendants used the services of the plaintiff for the projects that they were engaged in by M/s. Cairn India in South Africa.
28. The defendants apparently do not dispute that they have received services from the plaintiff. Ex.PW1/15 (Colly) is an acknowledgement of the defendant through Mr. David Bannister that the Financial Director of the defendants also agreed that the plaintiff should receive the commission due to him. In fact, the tenor of the email suggests that the payment would be released. Yet, vide Ex.PW1/17, the defendants chose to reject the claim of the plaintiff stating "although we do appreciate your assistance on occasion in the past, at no time did we formally appoint you as our agent in India."
29. This is a clear reneging on the support letters Ex.PW1/5 & Ex.PW1/7 which clearly engaged the services of the plaintiff for all future proposals and tenders involving M/s Cairn India. The Suit No.66/15 Interocean Shipping Company V. Geotrace Technologies Page 11 of 13 defendants cannot take the services of the plaintiff for free with a certificate of appreciation. This email Ex.PW1/17 at the most can only be a revocation of the letter of support, but cannot be an eraser to wipe out all liabilities that the defendants incurred in availing the services of the plaintiff.
30. On the basis of evidence that has been brought on record, it is very clearly established that the plaintiff was appointed as the agent and representative of the defendants and his services were used for several projects whether they concluded successfully or not and particularly, for Cairns Orange Basin South Africa Project. Having benefited greatly from these services upto and including final release of payment to the defendants in respect of this project, the defendants cannot be permitted to enrich themselves unjustly.
31. Having concluded that the defendants are liable to pay the plaintiff for the services rendered, the question would be what would that payment be.
32. It is clear from the first letter of support that 7.5% commission was incorporated in a signed document but subsequent effort to wriggle out of that was no doubt made. However, the plaintiff had affirmed in response that they stand by the first letter dated 15.11.2012. In any case, there is no counter to this claim of 7.5% commission. Not even the subsequent email which sought an approval from the management at United Kingdom disputed the Suit No.66/15 Interocean Shipping Company V. Geotrace Technologies Page 12 of 13 reasonableness of the rate of 7.5% towards commission. The plaintiff is clearly entitled to the commission @ 7.5%. The legal notice sent to the defendants as also the invoice raised Ex.PW1/18 have demanded USD 27,303. The prevailing exchange rate has been brought on record from the RBI website as Ex.PW1/19 which reflect that the exchange rate was Rs.66.50 per US Dollar at the time of filing of this suit.
33. The plaintiff is therefore entitled to the sum of Rs.18,15,649/.
34. Since, the entire transaction is commercial, interest @18% from the date of invoice i.e. 03.04.2014 Ex.PW1/17, till the date of institution amounting to Rs.5,44,687/ is also awarded to the plaintiff.
35. The plaintiff is also entitled to further interest @ 18% per annum on the sum of Rs.18,15,649/ from the date of this Judgment till realisation.
36. The plaintiff is also entitled to costs.
37. Thus, this suit is decreed for a sum of Rs.23,60,336/ together with costs. Decree sheet be prepared.
38. File be consigned to Record Room.
Announced (Asha Menon) District & Sessions Judge SouthEast, Saket Courts New Delhi 30.11.2016 (s) Suit No.66/15 Interocean Shipping Company V. Geotrace Technologies Page 13 of 13