Bombay High Court
Sudesh Prabhakar Volvoikar vs Gopal Baboo Savoikar on 12 December, 1994
Equivalent citations: 1996(1)BOMCR5
Author: T.K. Chandrashekhara Das
Bench: T.K. Chandrashekhara Das
JUDGMENT T.K. Chandrashekhara Das, J.
1. Admit. To be heard forthwith by consent.
2. The defendant files this appeal. The suit is for recovery of money from the appellant.
3. The plaintiff's case is that he was employed as a Manager of Cine Metropole at Margao under the Management of M/s. Hira Film Exhibitors. The defendant/appellant was working as a booking-clerk in the said theatre. The plaintiff/respondent was in overall charge of the staff and the day to day collection made out of the sale of tickets, which was deposited in the company bank, namely, United Commercial Bank at Margao. The appellant was entrusted with the duty of taking the cash to the bank for the purpose of depositing and, thereafter, return the pass-book to the respondent showing the deposit. On 19-10-1993 the respondent was entrusted a sum of Rs. 9,067.35 with the bank pass-book for the purpose of depositing in the bank. When the appellant went to remit the money into the bank, two door-keepers also accompanied him as security. The appellant failed to return the pass-book till about 2.00 p.m. When the respondent inquired from him the appellant started to give evasive answers. The respondent then went to the bank and inquired but came to know that it was not deposited. On returning to the office the respondent found that the appellant had disappeared from the office. It was further revealed that the door-keeper was absconding with the money and a criminal case was charged against him. He pleaded guilty and was convicted.
4. Subsequently, the respondent filed the present suit against the appellant on the allegation that the company has lost an amount of Rs. 5,767.35 due to the negligent act of the appellant and the company had decided to recover the said amount from the salary of the respondent and to recover that amount the respondent filed the suit against the appellant.
5. The suit was resisted by the appellant saying that the respondent has no locus standi to file the suit as the money was lost to M/s. Hira Film Exhibitors as the money belonged to them. He further contended that there was no entrustment of money by the respondent to him. With these rival contentions the parties went for trial. The trial Court dismissed the suit mainly on the ground that the respondent had no locus standi to file the suit as the money does not belong to him. Against the Judgment of the trial Court the respondent filed an appeal before the Appellate Court. The decree of the trial Court was reversed by the Lower Appellate Court and the suit was decreed for an amount of Rs. 5,767.35 with interest at 12% p.a. that is how this appeal arises.
6. The counsel for the appellant mainly contended that the plaintiff has not proved in this case his locus standi to file the suit. Apart from the oral evidence, he relied on a document which was marked as Exhibit P.W. 18 dated 26th December, 1983 whereby legal notice was sent on behalf of M/s. Hira Film Exhibitors demanding the amount of Rs. 9,067.35 from the appellant. It further says that if the appellant fails to pay the amount a suit would be filed within 7 days from the date of receipt of the notice. Mainly relying on this document, the trial Court found that the money does not belong to the respondent and that on the other hand it belongs to the company of which the plaintiff is only an employee and therefore the suit is not maintainable.
7. The main contentions of the plaintiff, namely, the respondent herein is that he was the Manager of M/s. Hira Film Exhibitors and he was to discharge all the responsibilities of collecting and depositing the money in the bank and supervising his subordinate employees including the appellant. He further contended and tried to prove that he on his own volition, not as part of the duties of post, he used to entrust the money to the appellant to remit it to the bank. In other words the plaintiff's case is that the entrustment of money to the appellant is at his risk and responsibility and not as a part of his conditions of duty and responsibility. The trial Court in the light of the letter as aforesaid P.W. 1 negatived this contention and found that remitting the money to the bank daily, "as usual", is one of the responsibilities of the respondent and appellant, therefore, the breach of duty is committed by the plaintiff towards his employer, namely, M/s. Hira Film Exhibitors. The Lower Appellate Court negatived the contention relying on the oral evidence adduced before the trial Court and disposed of the point of locus standi as under :-
"Coming to the point of locus standi, his contention was that the appellant has proved that the shortage amount had been recovered by the employer from the appellant and further the employer has allowed the appellant to recover the said amount from the respondent and as such, the appellant definitely has locus standi to file this suit for recovery of that amount."
I am afraid that unless the legal character of this transaction has been identified by the Appellate Court, this finding cannot be entered into. Assuming for argument sake that the entrustment of money to the appellant is by the volition and responsibility of the respondent alone and is nothing to do with the conditions of duties and responsibilities attached to the post of appellant, then, we a contract between the respondent and appellant. If the appellant failed to deposit that amount as entrusted then we can say that a breach of contract is committed by the appellant. Similarly, if the remitting of the amount daily to the bank is part of the contract of employment of the respondent, then there is a breach of contract committed by the respondent for which he is liable to the employer. If the plaintiff's argument is accepted there are two independent contracts involved in this case (1) the contract between the appellant M/s. Hira Film Exhibitors and the plaintiff and (2) As brought by the respondent in his pleadings and evidence, independent of that contract, another contract has been entered into between the plaintiff and the defendant whereby the duty is cast by the plaintiff on the defendant to go and remit the amounts in the bank without the knowledge of the principal employer. Therefore if the plaintiff's case is accepted, there is no privity of contract between M/s. Hira Film Exhibitors and the defendant for the loss of money. But at the same time, it is admitted that there was a contract between the respondent and the appellant and in which case there is a clear breach of the contract. Consequently, respondent will get a cause of action and he can maintain a suit against him. It is a well settled principle that in a breach of contract the party who suffers the breach is entitled to damages from the party who committed breach. But it is also a burden cast on the plaintiff who rests his claim on the breach to prove actually the damages and loss. However the only evidence that has been proved is Exhibit 17A. This is a letter written by M/s. Hira Film Exhibitors on 15-2-1984 saying that the plaintiff had agreed with M/s. Hira Film Exhibitors to deduct so much sum of money from his salary and that respondent has agreed to recover this amount from the appellant. This was only an agreement between the respondent and his employer. How this will bind the appellant unless he is a party to that agreement. Moreover there is no evidence to prove what is the amount deducted, how long it was deducted and under what rate it has been deducted from his salary. Therefore, it is a case where the damage has not been quantified by the plaintiff in order to sustain an action based on the breach of contract, if at all there is an entrustment as contented by respondent. Plaintiff has also to prove the quantum of damage. If the case set up by the plaintiff is mainly based on locus standi and if the plaintiff wants to succeed in this case, the plaintiff has, as I stated earlier, to establish that locus standi. Further he should establish that there is a breach of contract and consequently that there is damage. If one of this is not proved, the plaintiff is not going to succeed in this suit. The trial Court is justified in holding that on the basis of documents produced in this case, that there is no locus standi. I find no illegality in that judgment to warrant any interference by the Appellate Court.
8. In the result, I allow this appeal. Judgment and Decree of the Lower Appellate Court is set aside and suit is dismissed.
In the circumstances of the case, there shall be no order as to costs.