Kerala High Court
D.C.Mills Ltd vs M/S.Vulcan Industries on 4 June, 2019
Bench: A.Hariprasad, T.V.Anilkumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.HARIPRASAD
&
THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR
TUESDAY, THE 4TH DAY OF JUNE 2019 / 14TH JYAISHTA, 1941
RFA.No. 535 of 2011
AGAINST THE JUDGMENT AND DECREE DATED 11-03-2011 IN OS
NO.237/2007 of SUB COURT,ALAPPUZHA
APPELLANT/1ST DEFENDANT:
D.C.MILLS LTD., COCO DALE,
M.O.WARD, ALLEPPEY-688 001.
BY ADVS.SRI.K.GOPALAKRISHNA KURUP
(SENIOR ADVOCATE)
SRI.V.S.AFSAL KHAN
RESPONDENTS/PLAINTIFF/DEFENDANTS 2 & 3:
1 M/S.VULCAN INDUSTRIES,
A DIVISION OF EBSCO INDUSTRIES HAVING ITS
PRINCIPAL OFFICE AT 300 DISPLAY DRIVE, MOODY A1
350004 AND REP. BY ITS POWER OF ATTORNEY HOLDER
ROBI ISSAC.
2 D.C.MILLS LLC 1209, BAKER ROAD
STREET 401, VIRGINIA BEACH, VA 23455.
3 THE HOME DEPOT, 2455 PARIS FERRY ROAD,
ATLANTA, GORGIA-80339.
R1 BY ADV. SRI.MADHU RADHAKRISHNAN
THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON
23.05.2019, THE COURT ON 04.06.2019 DELIVERED THE FOLLOWING:
RFA No.535 of 2011 2
A.HARIPRASAD & T.V.ANILKUMAR, JJ.
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R.F.A.No.535 of 2011
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Dated this the 4th day of June, 2019
JUDGMENT
Hariprasad, J.
1st defendant in O.S.No.237 of 2007 before the Subordinate Judge's Court, Alappuzha is the appellant. Parties are referred to hereinafter in the rank shown in the plaint. Case in the plaint, stated shortly, is as follows: Plaintiff/1st respondent is a division of EBSCO Industries having its principal office in the State of Delaware, U.S.A. Plaintiff is engaged in the manufacture and supply of point of purchase displays and custom store fixtures. 2nd defendant is said to be a subsidiary company of the 1st defendant and 3rd defendant is the retailer in Gorgia, U.S.A. During September, 2005, it was decided to commemorate the 25th anniversary of the 3rd defendant and in connection with that a world wide bay-reset in all other stores was organized as part of sales promotion. Accordingly, the 3 rd defendant ordered 1800 door mat sets costing $394.88 each from the plaintiff. 3 rd defendant informed the plaintiff that the 1st defendant would meet the expenses for the same as it was one of their value supplier partners. It is contended that such payments were transferred from the 1st defendant to the 2nd defendant who in turn remitted the same to the RFA No.535 of 2011 3 plaintiff's account. Plaintiff also contended that the defendants 1 and 2 were represented by Mr.Glynn P.Montelongo (in short, "Mr.Glynn"), the National Accounts Director of the 2nd defendant. It was further agreed that a total cost of U.S.$710,784/- for the transaction, in addition to the freight charges and taxes, would be paid by the 1 st defendant to the plaintiff. Further, there were e-mail communications between Mr.Glynn and Mr.Bryant Terry, the Business Development Manager of the plaintiff, which would make it clear that the freight charges and taxes were in addition to U.S. $710,784/-. The plaintiff had issued an invoice on 04.08.2005 to the 2nd defendant detailing the amounts due. In spite of repeated requests, the 1st defendant failed to make good the amount and therefore the defendants 1 and 2 are jointly and severally liable to pay U.S.$257,287/- with interest to the plaintiff.
2. 1st defendant filed a written statement raising a counter claim. The suit is not maintainable. It is an experimental one suppressing the material facts. The plaintiff has no locus standi to institute the suit and the power of attorney does not confer any power on the holder. 1st defendant is unaware of the transactions and it had no direct transaction with the plaintiff. 1st defendant had business transactions with the 3rd defendant. 3rd defendant had informed the 1st defendant regarding the intention of redesigning store bays in connection with their 25th anniversary and as part of the same the plaintiff had agreed to supply materials worth U.S.$710,784/- including RFA No.535 of 2011 4 the freight charges and taxes. The mode of payment to the plaintiff was also admitted. Since Mr.Glynn was only a supervisor at the premises of the 2nd defendant and not the National Account Director, the communications between him and the plaintiff do not bind the 1 st defendant. 2nd defendant was never acting for an on behalf of the 1 st defendant. The alleged e-mails are fabricated for the purpose of this case. Ext.A2 letter dated 01.07.2005 issued by the 3rd defendant to the 1st defendant clearly shows that the 1st defendant need to pay U.S. $710,784/- only. All the contrary averments are false. The invoices as well as payment schedule are fabricated documents. 3 rd defendant never asked the 1st defendant to pay anything more than U.S. $710,784/-. In fact the 1st defendant had made an excess payment of U.S.$82,967.81 to the plaintiff. The plaintiff is liable to refund the excess amount and hence the 1st defendant had set up a counter claim seeking realisation of the amount paid to the plaintiff in excess of their demand. There was no agreement between the parties at any point of time regarding the claim for payment of freight and taxes.
3. 2nd defendant filed a written statement contending that it is an entity different from the 1st defendant. It was only as per the direction of the 1st defendant, the 2nd defendant co-ordinated with the plaintiff to ensure effective and smooth transactions and payments. Be that as it may, the 2nd defendant was not authorised by the 1 st defendant to deal with the plaintiff for and on behalf of the 1 st defendant. 2nd defendant RFA No.535 of 2011 5 appointed Mr.Glynn temporarily for supervising the project. The e-mails are fabricated documents. Neither the 1st defendant nor the 2nd defendant has consented to pay freight charges and taxes to the plaintiff in addition to U.S.$710,784/-.
4. 3rd defendant filed a written statement contending that no cause of action for the suit arose within the jurisdiction of the court below. There is no privity of contract between the 3 rd defendant and the plaintiff. 3rd defendant is an unnecessary party. Ext.A2 letter sent by the 3rd defendant to the 1st defendant has no relevance in adjudicating the contractual liability between the plaintiff and defendants 1 and 2.
5. The plaintiff filed a written statement to the counter claim set up by the 1st defendant denying the allegations therein as well as their liability to pay the amounts claimed therein.
6. PW1 testified on behalf of the plaintiff. Exts.A1 to A11 series are marked on the side of the plaintiff. Defendants tendered no oral evidence and produced no documentary evidence.
7. Heard the learned senior counsel appearing for the 1 st defendant and the learned counsel for the plaintiff.
8. Learned senior counsel attacked the judgment and decree mainly on the following grounds. Firstly, it is contended that the court below seriously erred in assuming, without any evidence, that there was a concluded contract between the plaintiff and 1st defendant for payment of any amount in addition to the same revealed in Ext.A2. In RFA No.535 of 2011 6 otherwords, the amounts specified in Ext.A2 includes the freight charges and taxes. Secondly, it is contended that Mr.Glynn was not authorised to enter into any contract with the plaintiff binding the 1st defendant and it never held out Mr.Glynn as its agent. Thirdly, the e- mails relied on by the court below are forged ones and inadmissible under Section 65B of the Evidence Act, 1872 (in short, "the Evidence Act"). Fourthly, it is contended that the plaint was not properly verified in accordance with the requirement in Order VI Rule 15 of the Code of Civil Procedure, 1908 (in short, "the Code"). Fifthly, it is contended that the power of attorney holder, who was examined as PW1, is incompetent to testify.
9. Learned counsel for the plaintiff would oppose these contentions by saying that the cumulative effect of the oral and documentary evidence would clearly show that there was a concluded contract between the plaintiff and 1st defendant to the effect that the 1st defendant had undertaken the liability to pay freight charges and taxes in addition to the amount mentioned in Ext.A2. It is also contended that Mr.Glynn is the authorised representative of the 1 st defendant, who was dealing with the plaintiff and the 3rd defendant for and on behalf of the 1st defendant. Documents produced in the case would clearly show the authority given to Mr.Glynn by the 1 st defendant and they cannot be heard to say that they are not bound by the actions of Mr.Glynn. Insofar as the communications through e-mails are concerned, it is contended RFA No.535 of 2011 7 by the learned counsel for the plaintiff that they are genuine and they have been duly certified under Section 65B of the Evidence Act to make it admissible in this proceedings. Moreover, there is no dispute regarding the documents, except a bald statement in the written statement that they are forged. This contention is not proved by oath against oath. Not only that, the e-mail communications have been received in evidence without any challenge. Therefore, the case of the 1st defendant in this regard is unacceptable. It is also contended by the learned counsel that the power of attorney holder is a competent witness to prove the case set up by the plaintiff. There is no defect in the verification and therefore that ground of attack also should fail.
10. Let us examine these contentions with reference to the materials placed on record. Ext.A1 is the power of attorney whereby the plaintiff appointed, nominated and constituted jointly and severally three attorneys. PW1 is one among them. Even though learned senior counsel raised challenge regarding lack of authority given to the attorneys as per Ext.A1, we find no reason to hold that they were not authorised to file the suit on behalf of the plaintiff. One of the attorneys has verified the plaint and another one has testified as PW1. For this also we do not find any illegality since the power of attorney clearly expressed that each one of them has been authorised jointly and severally to do all the functions. In other words, the power given to each attorney is alike and each one of them could have acted singly or jointly RFA No.535 of 2011 8 on behalf of the plaintiff in respect of all the matters relating to this litigation. Therefore, we do not find any legal reason to find any incompetency on the part of the attorney who verified the plaint and on the part of the attorney who testified before the court below.
11. Insofar as the verification of pleadings is concerned, it is settled law that there is no rigidity in assessing its quality. It has been held in many decisions that an omission to verify a pleading is a mere irregularity within the meaning of Section 99 of the Code. Section 99 of the Code explicitly says that no decree shall be reversed or substantially varied nor shall any case be remanded in appeal on account of any error, defect or irregularity in any proceeding in a suit not affecting the merits of the case or jurisdiction of the court. By no stretch of reasoning, it can be held that if at all there is any defect in the verification, it would affect merit of the case. In this case we find no blemish on the part of the attorney who verified the plaint. Having regard to the legal principles and the facts borne out of records, we do not find any reason to accept the contention of the 1 st defendant regarding defective verification and competency of PW1 to prove the case of the plaintiff.
12. PW1, Mr.R.Ravichandran is an advocate associated with Kochar and Company. Plaintiff authorised PW1 along with others to do all necessary things for the conduct of this case. In cross-examination, PW1 stated that Mr.Roby Issac, who is one of the partners of the law RFA No.535 of 2011 9 firm, viz. Kochar and company, has verified the plaint and instituted the same. PW1 asserted that he has knowledge about the entire transactions between the plaintiff and 1st defendant and he is competent to testify. Learned senior counsel contended that Ext.A1 power of attorney was executed on 12.03.2007 and Ext.A2 letter was issued by the 3rd defendant to the 1st defendant on 01.07.2005. It is therefore argued that neither the person who verified the plaint nor PW1 was in the know of things as on the date of Ext.A2, from which the liability is said to have arisen. In regard to this contention, PW1 testified that he has received instructions from the plaintiff company as well as he has gone through the documents. He therefore contended that he has direct knowledge about the issues involved in this case. Despite cross- examination, we do not find any reason to hold that PW1 is incompetent to testify for and on behalf of the plaintiff.
13. Learned senior counsel for the 1st defendant heavily relied on Man Kaur v. Hartar Singh Sangha ((2010) 10 SCC 512) to argue that PW1 has no personal knowledge of the transaction and he can only give a formal evidence about validity of the power of attorney and things transpired subsequent to Ext.A1. Admittedly, in this case the whole transaction was completed prior to Ext.A1. It is therefore contended that the testimony of PW1 is insufficient to prove the transaction as alleged in the plaint. The law stated by the Supreme Court in the above case can be seen in paragraph 18. It reads as RFA No.535 of 2011 10 follows:
"18. We may now summarise for convenience, the position as to who should give evidence in regard to matters involving personal knowledge :
(a) An attorney-holder who has signed the plaint and instituted the suit, but has no personal knowledge of the transaction can only give formal evidence about the validity of the power of attorney and the filing of the suit.
(b) If the attorney-holder has done any act or handled any transactions, in pursuance of the power of attorney granted by the principal, he may be examined as a witness to prove those acts or transactions. If the attorney-holder alone has personal knowledge of such acts and transactions and not the principal, the attorney-holder shall be examined, if those acts and transactions have to be proved.
(c) The attorney-holder cannot depose or give evidence in place of his principal for the acts done by the principal or transactions or dealings of the principal, of which principal alone has personal knowledge.
(d) Where the principal at no point of time had RFA No.535 of 2011 11 personally handled or dealt with or participated in the transaction and has no personal knowledge of the transaction, and where the entire transaction has been handled by an attorney-holder, necessarily the attorney-holder alone can give evidence in regard to the transaction. This frequently happens in case of principals carrying on business through authorised managers/attorney-holders or persons residing abroad managing their affairs through their attorney- holders.
(e) Where the entire transaction has been conducted through a particular attorney-holder, the principal has to examine that attorney-holder to prove the transaction, and not a different or subsequent attorney-holder.
(f) Where different attorney-holders had dealt with the matter at different stages of the transaction, if evidence has to be led as to what transpired at those different stages, all the attorney-holders will have to be examined.
(g) Where the law requires or contemplated the plaintiff or other party to a proceeding, to establish or prove something with reference to his "state of mind" RFA No.535 of 2011 12
or "conduct", normally the person concerned alone has to give evidence and not an attorney-holder. A landlord who seeks eviction of his tenant, on the ground of his "bona fide" need and a purchaser seeking specific performance who has to show his "readiness and willingness" fall under this category. There is however a recognised exception to this requirement. Where all the affairs of a party are completely managed, transacted and looked after by an attorney (who may happen to be a close family member), it may be possible to accept the evidence of such attorney even with reference to bona fides or "readiness and willingness". Examples of such attorney-holders are a husband/wife exclusively managing the affairs of his/her spouse, a son/daughter exclusively managing the affairs of an old and infirm parent, a father/mother exclusively managing the affairs of a son/daughter living abroad."
14. In answer to the above contention, learned counsel for the plaintiff submitted that PW1 testified with reference to the records in this case. Facts in this case are to be understood in the context of the matters revealed from the documents. It is his submission that not much importance can be attached to the oral evidence as the RFA No.535 of 2011 13 documents themselves speak volumes for the transactions. Learned counsel for the plaintiff placed reliance on Section 59 of the Evidence Act which says that all facts, except the contents of the documents or electronic records, may be proved by oral evidence. According to him, the whole transactions are revealed from the documents produced on the side of the plaintiff and oral evidence in this case is only one of a formal nature. We are in agreement with this argument for the reason that acceptability of the documents relied on by the plaintiff is the crucial aspect in this case. Moreover, it is to be remembered that the 1 st defendant, although opposed the plaint case and raised a counter claim, did not adduce any evidence to substantiate its contentions. To be more precise, the 1st defendant failed to adduce oral evidence and produce any document to challenge the case put forward by the 1st plaintiff.
15. To explain away this situation, learned senior counsel contended that the 1st defendant's liability to mount the box and produce any document would arise only when the plaintiff has established its case. We do not have any hesitation, in the light of the provisions in the Evidence Act, to hold that it is the initial burden on the plaintiff to prove facts since it desires the court to give a judgment in its favour as to the legal rights claimed in the plaint. But, on an anxious consideration of the entire facts and circumstances, we are of the view that in this case it cannot be said that the plaintiff has not discharged its burden of RFA No.535 of 2011 14 establishing the case set up in the plaint. If that be so, lack of evidence on the side of the 1st defendant would be fatal if the plaintiff's case is found to be credible.
16. Testimony of PW1, although may not prove the transactions happened prior to Ext.A1, can be referred to for considering evidentiary value of the documents relied on by the plaintiff. It is seen from the records that the plaintiff has produced Exts.A1 to A10 series e-mail communications and Ext.A11 series invoices. 1249 invoices have been produced by the plaintiff in the form of a bound book with a certification to the effect that the computer system, which generated the e-mail communications and the invoices, was operated properly at the material time and the Chief Financial Officer and the System Administrator were provided with all the relevant data and print outs in question and they represented correctly the relevant data. Learned counsel for the plaintiff contended that this certification is strictly in accordance with the requirements in Section 65B of the Evidence Act.
17. Learned senior counsel for the 1st defendant contended that Exts.A7 to A10 produced and marked originally, as part of the bound book, were scored off and they were marked subsequently on the documents produced along with I.A.No.129 of 2011 in the suit. To explain away this situation, learned counsel for the plaintiff pointed out that production of the documents along with the interlocutory application RFA No.535 of 2011 15 was necessitated on the basis of a contention raised by the 1 st defendant at the time of trial that Exts.A7 to A10 are copies and not the originals. According to him, the plaintiff in fact produced the original documents along with the bound book and at the time of evidence, they were properly marked. By way of abundant caution the plaintiff has produced another set of the same documents duly certified under Section 65B of the Evidence Act on which the trial court affixed the seal to mark the documents. According to the learned counsel, the party has no control on this action by the court below since the documents produced earlier and the documents produced along with the interlocutory application are the print outs from the same computer system and therefore, they can only be regarded as secondary evidence of the letters. Merely for the reason that the seal for marking the documents were scored off by the court below and Exts.A3 and A7 to A10 are marked again, we do not find any reason to reject their evidentiary value as they satisfy the requirements in Section 65B of the Evidence Act.
18. Section 65B of the Evidence Act is re-produced for clarity:
"65B. Admissibility of electronic records.
(1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter RFA No.535 of 2011 16 referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible. (2)The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely :-
(a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;
(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;
(c) throughout the material part of the said period, the computer was operating properly or, if not, then in any respect of any period in which it was not operating properly or was out of operation during that part of the period, was RFA No.535 of 2011 17 not such as to affect the electronic record or the accuracy of its contents; and
(d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities. (3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in clause
(a) of sub-section (2) was regularly performed by computer, whether -
(a) by a combination of computers operating over that period; or
(b) by different computers operating in succession over that period; or
(c) by different combinations of computers operating in succession over that period; or
(d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers, all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly. RFA No.535 of 2011 18 (4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say,-
(a) identifying the electronic record containing the statement and describing the manner in which it was produced;
(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;
(c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-
section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it. (5) For the purposes of this section,-
(a) information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment; RFA No.535 of 2011 19
(b) whether in the course of activities carried on by any official information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities;
(c) a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment.
Explanation : For the purposes of this section, any reference to information being derived from other information, shall be a reference to its being derived therefrom by calculation, comparison or any other process."
19. Sub-section (4) deals with essentiality of a certificate to prove the electronic record which is printed on a paper. If the conditions are satisfied, the electronic record printed on a paper shall be the evidence of any matter stated in the certificate. As we pointed out earlier, the certificate would go to show that the rule in Section 65B of the Evidence Act has been complied with in this case and we find no reason to discard Exts.A7 to A10 from consideration. Learned counsel for the plaintiff relied on Section 85B of the Evidence Act to argue that RFA No.535 of 2011 20 there is a presumption in respect of a secured electronic record that it has not been altered and the presumption would last until the contrary is proved. For the above reasons we find that the documents produced by the plaintiff deserve to be considered for adjudicating this case as they are properly admitted in evidence.
20. One of the main contentions raised by the learned senior counsel is that there is no concluded contract for payment of any amount in addition to that specified in Ext.A2. Stated precisely, the amount shown in Ext.A2 includes the cost plus freight charges and taxes. This argument is seriously opposed by the learned counsel for the plaintiff.
21. In order to establish this case, learned counsel for the plaintiff relied on Exts.A7 to A10 e-mail communications. It can be seen that these communications are either sent or addressed to Mr.Glynn. Before deciding on the legal effect of these communications, it will be apposite to consider whether Mr.Glynn was authorised to represent the 1st defendant to deal with the plaintiff.
22. Learned senior counsel raised a contention that Mr.Glynn was a temporary employee of the 2nd defendant and he had no authority to deal with the plaintiff to bind the 1st defendant. Per contra, learned counsel for the plaintiff would contend that for all practical purposes, he was held out by the 1st defendant as its agent in all the transactions wherein the plaintiff was involved through the intervention of the 3 rd RFA No.535 of 2011 21 defendant.
23. In the plaint, it is asserted that 2 nd defendant is a subsidiary unit of the 1st defendant. Ext.A10 is an e-mail sent by Mr.Glynn to an employee of the 1st defendant. In Ext.A10 it is clearly mentioned that Mr.Glynn is the International Business Director of D.C. Mills LLC (2 nd defendant). That apart, PW1 also testified asserting this aspect. Not only the 1st defendant did not adduce any evidence to controvert this contention, but the credible mentioning in Ext.A10 that Mr.Glynn was an International Business Director of the 2nd defendant at the material time would cut at the root of the 1st defendant's contention that he was only a temporary employee of the 2nd defendant. The jural relationship between the defendants 1 and 2 is not disputed. It has also come out from evidence that the 2nd defendant was looking after the operations of the 1st defendant in U.S.A.
24. Learned counsel for the plaintiff heavily relied on the answers given by the 3rd defendant to the interrogatories served on them by the plaintiff. 3rd defendant admitted that the 1st defendant was its value supply partner. They also admitted in the interrogatories that the plaintiff manufactured fixtures to contain the door mats made by 1 st defendant and other manufacturers sold in the 3rd defendant's stores. To a specific question as to what was the cost of supplies made by the plaintiff to the stores of the 3 rd defendant, the answer given by the 3 rd defendant is that the manufacturers of the products that were to be RFA No.535 of 2011 22 contained in the plaintiff's fixtures were responsible for paying the plaintiff for the cost of fixtures and any associated freight and tax charges. This answer nails down the 1st defendant to a great extent, contended the learned counsel for the plaintiff. It is to be remembered that the 1st defendant has no case that the 3rd defendant answered the interrogatories in favour of the plaintiff on account of any collusion. In fact the 3rd defendant has filed a written statement opposing the plaint claim and therefore, it cannot be thought that it was unduly supporting the plaintiff for securing a decree against the 1 st defendant. Another specific question was raised by the plaintiff in the interrogatories as to the liability of the 1st defendant to meet the cost of supplies inclusive of freight and tax charges. To this question, the 3rd defendant replied that the 1st defendant was responsible for paying the plaintiff for the cost of fixtures and associated tax and freight charges. There is no objection raised by the 1st defendant at any point in time regarding these answers. No question was put by the 1 st defendant on PW1 while he was cross-examined to doubt the veracity of the answers given by the 3rd defendant to the interrogatories.
25. Coming back to the question whether Mr.Glynn was authorised to represent the 1st defendant, it can only be seen from Exts.A7 to A10 e-mail communications that Mr.Glynn was not only acting for and on behalf of the 2 nd defendant, but also on behalf of the 1st defendant. An e-mail sent by Mr.Glynn to Mr.Bryant (authorised RFA No.535 of 2011 23 representative of the plaintiff) dated 24.05.2005 at 12.39 a.m., which is part of Ext.A7, would show that he wanted to get some information from Mr.Bryant to see an itemised break down of the amount due to the plaintiff regarding the over all charges of bay sets, the break down for each company and how much would be the charges for each store being serviced, including the freight charges. Relying on these documents, the learned counsel for plaintiff would contend that there are lot of materials, apart from the testimony of PW1, to show that there was a concluded contract between the plaintiff and the 1 st defendant to pay freight charges and taxes in addition to the amount shown in Ext.A2. It is also seen from the aforementioned documents that this was a tripartite understanding between the 2nd defendant, 1st defendant and the plaintiff for which the 3rd defendant supported by answering the interrogatories. We, therefore, are of the firm view that there is a concluded contract between the plaintiff and 1st defendant to pay freight charges and taxes in addition to the amount specified in Ext.A2 and that fact was known to the 3rd defendant. We also find that Mr.Glynn, who was functioning as Director of the 2nd defendant, was entrusted with the authority to act for and on behalf of the 1 st defendant in order to bind them. Learned counsel for the plaintiff relied on Section 186 of the Indian Contract Act, 1872 (in short, "the Contract Act") to argue that the authority of agent may be express or implied and in this case, there are circumstances borne out from the unchallenged documentary evidence RFA No.535 of 2011 24 that Mr.Glynn was so authorised by the 1 st defendant. Reliance is also placed on Section 237 and the Illustrations thereon of the Contract Act to contend that the 1st defendant cannot wriggle out of the contractual obligations created by Mr.Glynn on their behalf towards the plaintiff.
26. It was argued by the learned senior counsel for the 1 st defendant that the court below has not entered a definite finding as to the existence of a concluded contract between the plaintiff and the 1 st defendant. Even if we accept this argument, we do not find any impediment for us to decide the factual questions arising in this appeal which would indicate the creation of a concluded contract between the plaintiff and 1st defendant relating to the payments towards freight charges and taxes.
27. This is a case wherein the evidences adduced on the side of the plaintiff prove its case and the 1 st defendant failed to bring in any material either to substantiate its case or to disprove the plaintiff's case. Therefore, on evaluating the preponderance of probability borne out from the documentary evidence and oral evidence of PW1, we are in agreement with the finding of the court below that the plaint claim stands proved. We have to remember the settled principle that when a view taken by the first court is based on materials and is a probable one, the appellate court should be loath in disturbing the reasoned finding. On applying the above principle, we can only affirm the view taken by the trial court.
RFA No.535 of 2011 25
28. Insofar as dismissal of the counter claim by the trial court is concerned, no serious challenge is made on behalf of the 1 st defendant. It goes without saying that there is no material brought on record to establish the case set up by the 1st defendant in the written statement by way of a counter claim. Therefore, it was rightly dismissed by the trial court.
In the result, we find no merit in the appeal. Hence the appeal stands dismissed. Parties are directed to suffer their costs.
All pending interlocutory applications will stand dismissed.
A.HARIPRASAD, JUDGE.
T.V.ANILKUMAR, JUDGE.
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