* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA NO. 389 OF 1996
% Date of Decision: 12th February, 2009
# KULDIP TRIKHA ...Appellant
! Through: Mr. B.B. Gupta, Advocate
versus
$ NEW INDIA MOTORS (NEW DELHI)
PVT. LTD. & ORS. ...Respondents
^ Through: None
CORAM:
* HON'BLE MR. JUSTICE P.K.BHASIN
1. Whether Reporters of local papers may be allowed to see
the Judgment?(No)
2. To be referred to the Reporter or not?(No)
3. Whether the judgment should be reported in the digest?(No)
JUDGMENT
P.K.BHASIN, J(ORAL) This appeal has been filed by the appellant against the judgment and decree dated 17-05-1996 passed by the learned Additional District Judge, Delhi in suit No. 636/82 whereby suit filed by him against the respondents for recovery of Rs.86,188.90 has been decreed only for a sum of Rs. 44,550/- along with interest thereon @ 12% p.a. from the date of filing of the suit till realization and rest of his claim has been rejected. The appellant felt aggrieved by the rejection of part of his claim and filed the present appeal. The respondents had also filed an appeal against the decree passed against them but that appeal(being RFA No. 330/1996) came to be dismissed by a Division Bench of this Court in limine on 11th September, 1996.
2. The facts relevant for the disposal of the present appeal may first be stated. The appellant filed a suit for recovery of Rs.86,188/90 against respondent no.1, a private limited Company doing the business of procuring orders from Embassies, diplomats etc. in India for its Principals abroad dealing in export business. Respondent no. 2 and respondent no.3 were impleaded as the Managing Director and Director respectively of the respondent no.1-Company. It was alleged in the plaint that the plaintiff was appointed as a sales representative w.e.f. 15th May, 1976 and as per the terms of his employment he was to get monthly salary, transport allowance as well as commission @ 1% on the business done by the respondent no. 1 Company. The plaintiff was also to pay a security deposit of Rs. 30,000/- which was to be refunded along with interest @ 6% per annum at the time of RFA No. 389/1996 2 termination of his services. The plaintiff pleaded that he paid the security amount, as per the understanding between the parties, to defendant no. 3(respondent no.3 herein). It was further pleaded in the plaint that it was also the understanding between the parties that in respect of the business which he had procured for the Company from ITDC Ltd. for supply of imported liquor and perfumes he was to get commission of ½ % only. The plaintiff's services were abruptly terminated by the defendants without even clearing his account. The plaintiff averred that the security deposit along with the accrued interest was not refunded to him and his salary and travelling allowance from November, 1981 to 24th February, 1982 were also not paid and as far as the commission payable to him was concerned a sum of Rs. 49,574.60 was payable to him but out of that amount he was paid only a sum of Rs. 8500/-. Since the respondents did not clear his dues despite demands he filed the suit for recovery of Rs. 86,188.90 which included the amount of Rs. 41,074.60 on account of commission. As noticed already, the learned trial Court decreed the suit of the appellant-plaintiff as far as his claim of arrears of salary, travelling allowance and security deposit is concerned but rejected the RFA No. 389/1996 3 claim of Rs. 41,074.60 on account of commission and in this appeal now only this rejected claim is the subject matter of adjudication.
3. The suit was contested by the respondents-defendants by filing a joint written statement. In the written statement it was admitted that the appellant was employed by respondent no. 1 as a sales representative. The monthly salary, which the appellant claimed to be payable to him as per the terms of employment, was also not disputed as also his claim that he was entitled to commission @ 1% . However, it was denied that commission was payable to him on the entire business done by the Company and it was claimed that he was entitled to the commission @ 1% only on the business which he would procure for the Company and in fact he himself had been claiming commission only in respect of business procured by him and so now he was estopped from claiming that he was entitled to get commission even in respect of the business which he had not procured for the Company. Respondent-defendant no. 2 admitted that he was the Managing Director of the respondent no. 1 Company but as far as defendant- respondent no. 3 is concerned it was claimed that he has RFA No. 389/1996 4 ceased to be a Director long ago and in any case they were not personally liable for paying any money to the plaintiff. It was also pleaded that services of the plaintiff were not terminated but he himself had stopped coming to the office from 24-02-1982 since it was found out that he had started dealing with other competitors of respondent-defendant no.1 Company and he had been warned of that in January, 1982.
4. On the pleadings of the parties the trial Court had framed the following issues:
1. Whether defendants no. 2 and 3 are necessary or proper party. If not, to what effect. OPP
2. Whether the suit is not properly valued for the purposes of court fee and jurisdiction. If so, what would be the proper valuation? OPD
3. Whether the suit in so far as recovery of arrears of salary and recovery of security amount is time barred. If so, to what effect? OPD.
4. Whether the suit insofar as recovery of arrears of salary and recovery of security amount is time barred. If so, to what effect? OPD
5. Whether the arrears of commission become due and whether the claim in respect of any portion is beyond three years on the date of the filing of the suit. If so, how much and to what effect? OPP
6. Whether the plaintiff is not entitled to the amounts of commission as mentioned in Annexure-I to the plaint? OPD RFA No. 389/1996 5
7. Whether defendants have paid the salary of the plaintiff for the period November, December, 1981 and January and February 24, 1982? OPD
8. Whether the plaintiff is entitled to one month's salary in lieu of notice for termination of his service? OPP
9. Whether the defendants are not liable to pay commission to the plaintiff at the rate of 1%? OPD
10. Whether the plaintiff is entitled to interest? If so, at what rate and for what period? OPP
11. Whether the plaintiff paid a sum of Rs. 30,000/- to the defendant no. 2 as security at the instance of defendant no. 1? OPP
12. To what amount is the plaintiff entitled? OPP
13. Relief.
5. After examining the evidence adduced from both the sides learned trial Judge decided all the issues, except issues no. 6 and 9, in favour of the appellant-plaintiff. Issues no. 6 and 9 were decided against the appellant-plaintiff on the ground that he was not entitled to any commission on the business done by the Company directly and he was only entitled to get the commission for the business procured by him and taking into consideration the business procured by him he had already received more than what was due to him as commission. Consequently, his claim of commission for Rs. 41,074.60 was rejected RFA No. 389/1996 6 while the claim for arrears of salary, refund of security, etc. was allowed but only against defendant no.1.
6. I have heard learned counsel for the appellant only since there was no appearance from the side of the respondents when this appeal was taken up for hearing.
7. In this appeal the question of entitlement of the appellant for Rs. 41,074.60 on account of commission only is to be decided by this Court. The appellant's claim in respect of the commission was based upon one document which, according to him, was executed by respondent-defendant no. 3 on behalf of respondent no.1-Company. That document is Ex. P-2, contents whereof are reproduced below:
"New Delhi 1st May, 1976.
As discussed and agreed the security amount of Rs. 30,000/- (Thirty thousand) furnished today will carry interest @ 6% P.A. This security and interest due thereon will be refunded only after service comes to an end. Meanwhile salary will be Rs. 270/-, transport allowance Rs. 200/- per month and one percent commission will be paid on the business secured by the company after clearance of the payments by our principals abroad.
Sd/-
(P.S.Jain)"RFA No. 389/1996 7
Execution of this document was denied by the respondents-
defendants. The learned trial Judge after examining the entire evidence found that this document was executed by respondent no. 3 Pawan Sagar Jain and as has been noticed already, the respondents' appeal against the trial Court's findings which had been given against them, including in respect of the said document Ex. P-2, was dismissed by this Court. A perusal of the document Ex.P-2 clearly shows that it had been agreed between the parties that the appellant would be entitled to commission of 1% "on the business secured by the Company". The learned trial Judge even after coming to the conclusion that this document containing the clause regarding payment of commission of 1% on the entire business done by the Company rejected the appellant's claim for commission on the business which had been done by the Company and also came to the conclusion that in respect of the business procured by the appellant he had already received excess amount. The learned trial Judge observed that since it had also been pleaded in the plaint that the rate of commission as initially agreed between the parties was enhanced to one and a half RFA No. 389/1996 8 per cent and further that in respect of the business procured by him from ITDC he was to get half per cent commission only it was clear that the term regarding payment of commission as contained in Ex.P-2 was not final and, therefore, it had to be decided from the conduct of the parties as to what was the commission payable to the appellant. The learned trial Judge then observed that the plaintiff himself had been maintaining account of his commission and claiming it also only in respect of the business done by the Company through him and so that showed that even according to him the commission was payable to him only in respect of the business procured by him for the Company. In my view, this reasoning of the learned trial Judge cannot be accepted it was for the defendants to show that there was no final settlement regarding the payment of commission. Although they had disputed the very execution of Ex.P-2 but that defence was not accepted by the Trial Court and, therefore, the learned trial Judge after accepting that this document was genuine could not have at the same held that there was no final settlement in respect of the commission payable to the plaintiff. There is no doubt that the plaintiff had also pleaded in the plaint that the commission payable to him was RFA No. 389/1996 9 subsequently raised to 1-1/2% and he was restricting his claim of commission at 1% only but from that plea also it could not be inferred that agreement in respect of commission was not final. In the plaint it was also pleaded by the plaintiff that he was not insisting for claim of commission @ 1-1/2% in view of the written document Ex.P-2. This, in fact, was not even the defence raised by the defendants that there was no final agreement in respect of payment of commission. They had denied the very execution of document Ex.P-2 and once they failed in that plea and the trial Court had found the same to be a genuine document no such conclusion could be arrived at by the trial Court that document Ex.P-2 did not bring into existence any final understanding between the parties regarding commission payment. In fact, by claiming that commission was payable to the plaintiff in respect of business procured by him only the defendants and not the plaintiff, were attempting to adduce oral evidence in respect terms of employment of the plaintiff contrary to the written contract. The trial Court wrongly concluded that the plaintiff was introducing oral evidence contrary to written contract in respect of commission payable to him.
RFA No. 389/1996 10
8. The learned trial Judge had rejected this claim of the plaintiff also on the ground that if actually he was entitled to the commission even for the business done by the Company directly he would not have accepted small amount of Rs. 8500/- as commission without raising any hue and cry for not being paid the balance amount of commission payable to him which, according to him, was Rs. 49,574.60/-. This reasoning also of the learned trial Judge is not sound and cannot be accepted. The plaintiff had categorically pleaded in the plaint and also during his evidence that he had not been paid his commission in respect of the entire business done by the Company despite his having demanded the same orally as well as in writing. That fact remained uncontroverted. The defendants had not even claimed in their written statement that the plaintiff had not demanded commission from them for the entire business done by the Company. I am, therefore, of the view that the findings of the learned trial Judge on Issues No. 6 and 9 to the effect that the plaintiff was entitled to claim commission only in respect of the business procured by him for defendant no.1 cannot be sustained. The same are accordingly set aside and it is held that the plaintiff was entitled to claim commission in respect of the business RFA No. 389/1996 11 done by procured by him as well as the business done by the Company directly.
9. As far as the amount of commission calculated @ 1% on the total business done by the respondent no. 1 during the tenure of employment of the plaintiff is concerned, the defendants in their written statement had not disputed the fact that they had not done the business to the extent which would have entitled the plaintiff to claim commission @ 1% amounting to Rs. 49,574.60. Of course, the trial Court has held that by accepting the payment of Rs. 8500/- as commission as against his claim of Rs. 49,574.60 he was estopped from claiming the balance amount. That conclusion, however, is also totally unsustainable. There is nothing brought on record by the defendants from which it could be inferred that the plaintiff had accepted the payment of Rs. 8500/- in full and final settlement of his claim. So, he is not estopped from claiming the unpaid commission of Rs.41,074.60/-.
10. As a consequence of my afore-said findings on issues no. 6 and 9 this appeal succeeds and it is ordered that the appellant has become RFA No. 389/1996 12 entitled to a decree for Rs.41,074.60 along with interest thereon @ 12% per annum from the date of filing of the suit till realization in addition to the amount for which the trial Court has already passed the decree in his favour. He shall also be entitled to the costs in respect of his claim of money which has now been decreed in his favour.
FEBRUARY 12, 2009 P.K.BHASIN,J
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RFA No. 389/1996 13