Delhi District Court
Sh. Kavinder Singh vs Reliance Communication on 26 August, 2016
IN THE COURT OF MS. MANJUSHA WADHWA,
ADJ 08 (WEST), TIS HAZARI COURTS, DELHI
RCA DJ No. 61054/2016
Sh. Kavinder Singh
Prop. of M/s V.K. Garments
Main market, Sant Nagar,
Burari, Delhi110084 ..Appellant
versus
Reliance Communication
Anil Dhirubhai Ambani Group
Reliance Communication Ltd
Vijaya Building, 17 Barakhamba Road,
Connaught Place, New Delhi - 110001 .. Respondent
Date of institution of the appeal : 14.05.2013 Date of transfer of case to this Court : 09.08.2016 Date of hearing arguments : 09.08.2016 Date of judgment : 26.08.2016 JUDGMENT :
1. By way of this judgment, I shall decide an appeal filed by the appellant/plaintiff, Sh. Kavinder Singh against the judgment and decree dated 05.04.2013 passed by learned Senior Civil Judge (West) in suit bearing no. 132/2008 titled as Sh. Kavinder Singh vs. Reliance Communication & anr whereby, Ld. trial Court partly allowed the suit filed by the appellant/plaintiff against the respondent/defendant, M/s Reliance Communication.
2. Ld counsel for the appellant contended that the Ld. Trial RCA DJ No. 61054/2016 Kavinder Singh Vs. Reliance Communication 1 of 13 Court has erred in holding that the claim of the appellant/plaintiff towards commission for the period from August 2003 till March 2004 is time barred on the ground that the present suit was filed in February 2008 i.e. much beyond the period of limitation. He further submitted that the Ld. trial Court has erred in observing that the defendant had given two cheques dated 06.03.2006 of Rs.19,671/ and Rs. 10,000/ respectively towards outstanding security amount, however, the same were given against the pending dues of commission also.
He relied upon the testimony of DW1 who deposed that the Respondent/defendant in total paid Rs.29,671/ to the Appellant/plaintiff after adjusting the amount due to him including the security and commission. He contended that as last payment was made vide two cheques of Rs.19,671/ and Rs.10,000/ on 06.03.2006 against the dues of commission and security amount and thus, as per Section 19 of the Limitation Act, fresh period of limitation commenced from 06.03.2006.
3. Before looking into the aforesaid contention, it is necessary to throw light on the facts of the case. In brief the case set up by the Appellant/plaintiff is that he as proprietor of M/s V.K. Garments entered into Retailer Agreement with the Respondent/defendant in the year 2002 which was rewritten between the parties on 09.01.2003. As per Retailer Agreement, the RCA DJ No. 61054/2016 Kavinder Singh Vs. Reliance Communication 2 of 13 Appellant/plaintiff had deposited Rs.50,000/ as security money, out of which, the respondent company adjusted Rs.3,000/ as club membership fee which was refundable; Rs.10,000/ was adjusted for DAEP (Dhirubhai Ambani Entrepreneur programme), which was also refundable as per Retailer Agreement. Under DAEP, the respondent had given three set of mobile for demo purpose. The appellant/plaintiff surrendered the retailer ship on 24.01.2006 to the respondent and deposited the three demo sets with the defendant. Under the said Agreement, Rs.37,000/ was refundable after selling of 10 connections of the Pioneer offer of the respondent. It is further pleaded that the Appellant/plaintiff had sold 224 connections of the Respondent/defendant upto March 2004. The detail of the sold connection is as under: a) Upto August, 2003 total connections = 131 b) In September, 2003 total connections = 27 c) In October, 2003 total connections = 29 d) In November, 2003 total connections = 27 e) In December, 2003 total connections = 4 f) In January, 2004 total connections = 2 g) In February, 2004 total connections = 2 h) In March, 2004 total connections = 1
4. It is further pleaded that the commission slab upto August 2003 was Rs.850/ per connection for more than 100 connections and after August 2003, it was decreased RCA DJ No. 61054/2016 Kavinder Singh Vs. Reliance Communication 3 of 13 from Rs.850/ per connection to Rs. 500/ per connection and from December 2003, it was decreased to Rs.400/ per connection till March 2004. The appellant/plaintiff pleaded that the commission outstanding was Rs.1,56,850/ till March 2004 and against the said amount, the respondent had paid Rs.61,325/ only including TDS. The appellant thus claimed payment of Rs.95,525/ on account of commission charges as principal amount and also claimed interest @ 12% per annum thereupon from 01.08.2003 to 12.02.2008, amounting to Rs.51,937/. Accordingly, the appellant / plaintiff pleaded that he is entitled to recover Rs.1,47,462/ on account of commission charges including interest upto 12.02.2008 and claimed further interest @ 18% per annum thereafter till realization.
5. It is also pleaded that the appellant / plaintiff is entitled to refund of security amount of Rs.50,000/ and Rs.9000/ towards handset security amount. Against the said due security amount, on 06.03.2006, the Respondent had issued two cheques of Rs.19,671/ and Rs.10,000/ and thus, the respondent had paid Rs.29,671/ only and balance amount of Rs. 20,329/ (Rs. 50,000/ Rs. 29,671/) & Rs. 9,000/ as handset security amount is due with interest @ 18% per annum which is Rs.10,844.62 for the period from 24.01.2006 till 12.02.2008 and further interest @ 18% per annum from RCA DJ No. 61054/2016 Kavinder Singh Vs. Reliance Communication 4 of 13 the date of filing of suit i.e. 13.02.2008 till realization. It is also averred in the plaint that the plaintiff had also sent legal notice dated 30.08.2006 and legal notice dated 21.12.2006 but, despite sending of notices, the respondent did not pay the said amount which led to the filing of present suit for recovery of Rs.1,87,635/ from the defendant.
6. Written statement was filed wherein it is averred that the present suit was filed beyond limitation period and also, the Appellantplaintiff was not entitled for commission @ Rs. 850 per connection and on the contrary, Appellantplaintiff was entitled to receive commission @ Rs.500 per connection for more than 100 connections. It is further averred that the Appellantplaintiff was entitled to receive commission of Rs.58,905/ in respect of the connections sold under DAPO scheme. It is also averred that in addition to it, plaintiff was also entitled to incentives which were added to his commission and as such, cheque of Rs.61,325/ was paid towards full and final settlement of commission account. It is also averred that out of 224 connections, plaintiff was entitled to receive commission only for 133 connections, which were activated and were operative beyond 90 days and the claim of the plaintiff for Rs.95,525/ towards balance commission is not maintainable. It is also pleaded in the written statement that the Appellantplaintiff is not entitled for refund of security deposit as he was having RCA DJ No. 61054/2016 Kavinder Singh Vs. Reliance Communication 5 of 13 outstanding of Rs.26,288/ in respect of three demo connection which he took from the Respondent defendant, therefore, after adjusting outstanding amount, sum of Rs.29,671/ was paid to the plaintiff vide two aforesaid cheques of Rs.19,671/ and Rs.10,000/ towards full and final settlement of security amount.
7. Replication was filed by the plaintiff wherein, the plaintiff denied the averments contrary to the contents of the plaint .
8. On the pleadings of the parties, following issues were framed by the learned trial Court vide order dated 29.01.2009 :
i) Whether the plaintiff is entitled for money decree as prayed for ? OPP
ii) If answer to the aforesaid issue is in affirmative, then whether the plaintiff is entitled to interest, if so, for what period and at what amount ? OPP
iii) Relief.
9. In order to prove his case, the Appellantplaintiff has examined himself as PW1, Sh. Ajay Goel, Dealer / Retailer of defendant company as PW2 and Sh.Navneet Singh, Dealer / Retailer of defendant company as PW3.
10. On the other hand, Respondentdefendant in order to RCA DJ No. 61054/2016 Kavinder Singh Vs. Reliance Communication 6 of 13 prove his case has examined Sh. Ajay Kumar Singh, Power of Attorney of defendant company as DW1.
11. Learned trial Court held that the Appellant/plaintiff is not entitled to the commission for the period from August 2003 to March 2004 as the suit was filed beyond the period of limitation in February 2008. With respect to the security deposit, learned trial Court has observed that the Appellant / plaintiff is not entitled to amount of Rs.3,000/ being one time club membership fee as per Ex.PW1/D1. Learned trial Court further observed that the plaintiff is entitled to sum of Rs.9,000/ as security for three sets and thus, entitled to a total sum of Rs. 56,000/ (Rs. 47,000/ + Rs. 9,000/) and after deducting sum of Rs.29,671/ paid vide two cheques on 06.03.2006, the trial court held that the plaintiff is entitled to Rs. 26,329/ with 18% p.a. interest from 06.03.2006 till realization.
12. The grievance of the appellant / plaintiff is limited to the extent that his claim towards commission from August 2003 to March 2004 is within the period of Limitation as per Section 19 of the Limitation Act as the respondent / defendant company had lastly paid an amount of Rs.19,671/ and Rs.10,000/ on 06.03.2006 vide two cheques. The question which requires consideration is that whether the said amount paid on 06.03.2006 was towards outstanding security amount only or was towards RCA DJ No. 61054/2016 Kavinder Singh Vs. Reliance Communication 7 of 13 commission as well. It is pertinent to note that the appellant / plaintiff himself had given two notices separately towards outstanding commission as well as towards security deposit to the respondent / defendant company. The legal notice dated 30.08.2006, Ex.PW1/7 (colly) was given to the defendant for claiming security amount of Rs. 50,000/ and Rs.9000/ as hand set security amount. It is categorically mentioned in the said legal notice that the defendant had paid lessor amount of Rs.20,329/ towards the security deposit of Rs.50,000/ and also not paid Rs.9,000/ towards security of three handsets which were duly returned on the date of surrender of retailer ship i.e. on 24.01.2006 and after adjusting amount of Rs. 29,671/ which was paid on 06.03.2006, the appellant / plaintiff had asked for the balance amount of Rs.29,329/ with interest @ 18% per annum from 24.01.2006 till payment.
Vide another legal notice dated 21.12.2006 which is Ex.PW1/8 (colly), plaintiff categorically stated that out of total outstanding commission of Rs.1,56,850/ till March 2004, the respondent / defendant had only paid Rs.61,325/ and thus, balance amount of Rs.95,525/ along with interest @ 12% per annum from 01.08.2003 till realization is due and asked for the payment of the same.
13. Perusal of the aforesaid legal notices i.e. Ex.PW1/7 RCA DJ No. 61054/2016 Kavinder Singh Vs. Reliance Communication 8 of 13 (colly) and Ex.PW1/8 (colly), envisage that the appellant / plaintiff had admitted the receipt of amount of Rs. 29,671/ on 06.03.2006 towards security amount only. Further, in para 8 of preliminary objections and para 12 of reply on merits in the written statement, the respondent / defendant has categorically stated that aforesaid two cheques dated 06.03.2006 for Rs.19,671/ and Rs.10,000/ were towards full and final settlement of security deposit account of the plaintiff. In the replication, the plaintiff did not categorically deny the said averment.
14. During the course of arguments, Ld Counsel for the Appellant has relied upon the deposition of DW1 which is reproduced as under : "Q. I put it to you whether Rs.37,000/ which were to be refunded to the plaintiff were refunded by the defendant to the plaintiff or not ? ( The figure of Rs.37,000/ has been calculated after deducting Rs.10,000/ of DAEP and Rs.3,000/ towards club membership charges out of the total security amount of Rs.50,000/ deposited by the plaintiff as a necessary condition with the defendant for getting retailership. ) Ans. I do not remember today any breakup regarding the payment made to the plaintiff after the closing of the retailship of the plaintiff, however, the defendant in total paid Rs. 29,671/ to the plaintiff after adjusting all the amounts due to the plaintiff including the security and commission..."
15. Deposition of DW1 cannot be read in isolation. The same should be seen in the light of pleadings of the RCA DJ No. 61054/2016 Kavinder Singh Vs. Reliance Communication 9 of 13 parties and evidence led on record. As the case of the appellant is based on legal notices Ex.PW1/7 (colly) and Ex.PW1/8 (colly) and perusal of the same leaves no manner of doubt that the amount paid on 06.03.2006 was only on account of security deposit after surrendering of retailorship to the respondent company. Thus, the appellant cannot claim that fresh period of limitation commenced from 06.03.2006 in terms of Section 19 of the Limitation Act.
16. Even otherwise, I have perused the documents relied upon by the parties. On merits also, the appellant is not entitled to any further amount for the reason stated hereunder. The respondent has relied upon Ex.PW1/1 i.e. letter dated 09.01.2003 and AnnexureA i.e. Ex.PW1/D2 which provides the commission level for each slab. It is mentioned in annexureA i.e. Ex.PW1/D2 that in case plaintiff is able to sell more than 100 connections, he is entitled for commission of Rs.400/ per connection i.e. Rs.40,000/ for 100 connection. It is necessary also to peruse the payment schedule which is mentioned in annexureA and is also reproduced underneath : Payment schedule :
75% of commission and the refund of the application fee ( if there is a minimum of 10 subscriptions) will be payable 30 days after the activation of the last customer acquired within the offer subscription period ( latest by June 20, 2003); please note that customers will be activated on a first come first serve basis, with RCA DJ No. 61054/2016 Kavinder Singh Vs. Reliance Communication 10 of 13 the customers signing up in the first 7 days of the offer having guaranteed activation by Mary 31,2003. The remaining 25% will be payable 90 days after the activation of the last customer.
Please note that for customers who discontinue the connection within 90 days of activation, no commission will be paid.
Please note that the above POS commission scheme holds only for the Dhirubhai Ambani Pioneer Offer."
17. As per the payment schedule, it is provided that no commission will be paid in case the customer discontinue the connection within 90 days of the activation.
18. PW1 has admitted in his crossexamination that he has not filed any document on record to prove that he was entitled to commission @Rs.850 per connection. Further, the appellant / plaintiff has not put any question to DW1 to the effect that the respondent / defendant has wrongly calculated a sum of Rs. 61,325/ towards commission. As per terms and conditions of Ex.PW1/D2, it is clear that plaintiff was not entitled to any commission if the connection was discontinued within 90 days of activation.
19. Further, the defendant has stated in Para 8 of the preliminary objections of written statement that the plaintiff was not entitled to receive commission in respect of the those customers who discontinued the connection within 90 days of activation or whose address RCA DJ No. 61054/2016 Kavinder Singh Vs. Reliance Communication 11 of 13 verification report was negative or PDCs have bounced or have voluntarily disconnected the connection. It is seen from the replication that the plaintiff has not categorically denied the same.
20. Moreover, in crossexamination, PW1 has admitted the list pertaining to the hand set sold by him as Ex.PW1/D4 and admitted that the said list pertains to the activation of the set / deactivation / bounced cheques and the customers whose connection could not be activated due to fraud documents.
21. In view of the above discussion, this Court is of the opinion that the appellant / plaintiff has failed to prove that commission was settled at Rs.850/ per connection for plus 100 connections upto August 2003 and has also miserably failed to prove that he was entitled to commission for remaining 91 connections. Therefore, the case of the appellant / plaintiff is not only time barred but on merits also, I am of view that the appellant has failed to lead such evidence which on preponderance of probabilities would establish to the satisfaction of this Court that the Appellant was entitled to more than Rs. 61,325/, the amount which stands paid by the respondent to the appellant. Accordingly, I find no irregularity or infirmity in the impugned judgment dated 05.04.2013 passed by the learned trial Court. For the reason stated RCA DJ No. 61054/2016 Kavinder Singh Vs. Reliance Communication 12 of 13 above, the appeal lacks merits and is hereby dismissed with no order as to costs. File be consigned to the Record Room.
Announced in the open court on the 26th August, 2016.
(MANJUSHA WADHWA) ADDL. DISTRICT JUDGE08, WEST DISTRICT/DELHI RCA DJ No. 61054/2016 Kavinder Singh Vs. Reliance Communication 13 of 13