[Cites 2, Cited by 0]
Calcutta High Court
Amazon Seller Services Private Ltd vs Pioneer Property Management Limited ... on 29 January, 2026
Author: Debangsu Basak
Bench: Debangsu Basak
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IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
(COMMERCIAL DIVISION)
ORIGINAL SIDE
Present:
The Hon'ble Justice Debangsu Basak
And
The Hon'ble Justice Md. Shabbar Rashidi
AD-COM 8 of 2024
With
CS-COM 69 of 2024
Amazon Seller Services Private Ltd.
Vs.
Pioneer Property Management Limited and Anr.
For the appellant : Mr. Jishnu Chowdhury, Sr. Adv.
Mr. Harsh Hiroo Kursahani, Adv.
Mr. Adarsh Kumar, Adv.
Mr. Sayandeep Pahari, Adv.
Ms. Sanskriti Agarwal, Adv.
Mr. Alminhaz Karim, Adv.
For the respondent No. 1 : Mrs. Suparna Mukherjee, Sr. Adv.
Mr. Sankarshan Sarkar, Adv.
Mr. Ratul Das, Adv.
Ms. Abhipriya Sarkar, Adv.
For the respondent No. 2 : Ms. Jayati Chowdhury, Adv.
Mr. Jitendra Mehta, Adv.
Hearing concluded on : 08.12.2025
Judgment on : 29.01.2026
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Md. Shabbar Rashidi, J.:-
1. The appeal at the behest of defendant No.1 in the original
Civil Suit is directed against the judgment and decree dated April 16,
2024 passed in CS COM 69 of 2024 (Old Suit No. 02 of 2016 and CS
No. 45 of 2024).
2. By the impugned judgment and decree, the learned Trial
Judge decreed the suit being CS-COM 69 of 2024 holding both the
defendants jointly and severally liable. The learned Single Judge, in
the impugned judgment and order, held to the following:
"The defendants are directed to pay jointly and severally a sum
of ₹34,00,000/- along with interest @ 12% per annum from 7th
January, 2016 till the realization of the said amount along with
service tax to the plaintiff.
CS-COM 69 of 2024 (Old Nos. CS 2 of 2016 & CS 45 of 2024) is
thus disposed of. Decree be drawn accordingly."
3. Learned advocate for the appellant submitted that the
impugned judgment was passed by learned Single Judge without
appreciating the true facts. The same is also erroneous application of
settled law.
4. Learned advocate for the appellant further submitted that the
learned Trial Judge committed error by not appreciating that in the
business of real estate and brokerage, the information with regard to a
particular property remains available with so many brokerage
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firms/agents and in fact, such information is available in public. It is
submitted that the learned Single Judge committed error in arriving at
a finding that there was a concluded contract between the appellant
and the respondent No.1, in so far as the appellant was not able to
prove at the trial that the respondent No.1 accepted the proposal sent.
5. Learned advocate for the appellant also contended that the
learned Single Judge erroneously held respondent No. 2 as agent of
the appellant. The relationship between the appellant and respondent
No.2 flowed out of an independent agreement or the Master Service
Agreement executed by and between the appellant and respondent
No.2. At the same time learned Judge was not justified in upholding
the validity of a non-disclosure agreement. Such agreement was never
executed between the appellant and respondent No.1. Learned
advocate for the appellant referred to clause 6 of Master Service
Agreement which specifically provided that respondent No.2 will act as
independent service provider and nothing will be construed to create
any relationship like principal and agent.
6. Learned advocate for the appellant further submitted that
learned Single Judge erroneously relied upon the statement of
respondent No.1 to the effect that respondent No.2 was agent of the
appellant without any evidence in this regard. The appellant
specifically denied such relationship with respondent No. 2 in his
written statement. Respondent No.2 was engaged by the appellant as
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a logistic service provider independently and entered into a Master
Service Agreement with respondent No.2 in this regard. The appellant
outsourced his requirement to such respondent and in doing so; the
appellant introduced respondent No.2 with respondent No.1.
7. Learned advocate for the appellant also referred to clause 4 of
the Master Service Agreement which provided that for any claim in
respect of finalizing the warehouse requirement, the appellant would
not be liable for any act of respondent No.2. It precisely provided that
the appellant would not be vexed for any transaction between
respondent No.2 and any third party. In that view of the facts, the
learned Single Judge was not justified in holding the appellant liable
for the compensation to respondent No.1.
8. Learned advocate for the appellant further submitted that the
learned Single Judge overlooked the fact that respondent No.1 was
specifically intimated beforehand that the requirement of warehouse
properties of the appellant were outsourced to respondent No.2. It was
also contended that the learned Single Judge arrived at an erroneous
conclusion that warehouse requirement of the appellant was finalized
on the basis of Master Service Agreement. It was an independent
transaction by respondent No.2 with respondent No.1. There was no
business transaction between appellant and respondent No.1 and as
such, the appellant could not have been held liable for the acts or
omissions of respondent No.2.
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9. According to learned advocate for the appellant, learned
Single Judge erred in holding that there was a valid concluded
contract between the appellant and respondent No.1. In fact, the
mutual Non-Disclosure Agreement was never executed. An un-
executed contract could not be held to be a valid concluded contract,
though; acceptance of such contract was neither communicated nor
executed on the part of the appellant. The mutual Non-Disclosure
Agreement does not contain the basic ingredients in terms of the
provisions of Indian Contract Act, 1872 to be a valid contract. There is
no concept of deemed acceptance in the Act of 1872.
10. Per contra, learned advocate for respondent No.1submitted
that initially, the appellant approached the respondent No.1 seeking
his services for its requirement of warehouse property in and around
Kolkata. The appellant entered into a Mutual Non-Disclosure
Agreement with respondent No.1. Respondent No.1 rendered the
services, provided the appellant with requisite information about
several properties and made arrangements for site inspection of such
properties by the appellant. However, the appellant, upon availing the
services of the respondent No.1, entered into an agreement directly
with the landlord and did not pay them the requisite services charges
as agreed.
11. Learned advocate for respondent No.1 further contended that
the appellant utilized the services rendered by them in the form of
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information regarding the whereabouts of the properties likely to be
hired without paying the agreed charges to respondent No.1. Such
respondent spent his resources in terms of money as well as otherwise
in providing services to the appellant in derogation of the terms of
Non-Disclosure Agreement. It was submitted that learned Single
Judge was quite justified in holding that there was valid concluded
contract between the appellant and respondent No.1 and therefore,
rightly awarded the damages.
12. Learned advocate for respondent No.1 also contended that
respondent No.1 acted as agent of the appellant and exploited the
services rendered by respondent No.1 in arranging for the warehouse
requirement of the appellant. The appellant acted in breach of Mutual
Non-Disclosure Agreement in so far as he disclosed the information
regarding the properties searched by respondent No.1 to respondent
No.2.
13. An officer of the appellant approached respondent No.1 on
October 14, 2014 looking for its brokerage services intending to hire a
large warehouse in and around Kolkata. Respondent No.1, through its
Director, agreed to provide such service to the appellant concern on
usual terms more specifically, on condition to charge one month's
rental with applicable service tax, both from the tenant as well as from
landlord upon finalization of the deal or on handing over of possession
whichever is earlier. The appellant agreed to avail of the brokerage
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services on such terms. It was also agreed between the parties that in
the event the appellant agreeing to utilize the brokerage services
rendered by respondent No.1, the appellant will not enter into direct
negotiations or agreement with the landlord of the properties which
would be shown or particulars whereof would be provided by
respondent No.1.
14. In pursuance of such understanding, the appellant/
defendant No.1, by an email, sent a draft agreement to be known by
'Mutual Non-Disclosure Agreement' which was acknowledged by
respondent No.1/plaintiff by an email dated October 18, 2014. The
plaintiff suggested some modification in the draft 'Mutual Non-
Disclosure Agreement' and by the self-same email requested the
appellant to express its view on the proposed modifications. Such
modifications in the draft agreement were accepted by the appellant
by an email dated December 4, 2014. At the same time, respondent
No.1 was requested to send the signed copy of such agreement.
Accordingly, the 'Mutual Non-Disclosure Agreement' was prepared by
respondent No.1 in duplicate on requisite stamp papers. Both the
copies were signed on behalf of respondent No.1 and it were sent to
appellant for execution under a covering letter dated December 16,
2014 with a request to return one copy of such agreement after
signing for the purpose of records.
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15. Respondent No.1, acting in furtherance of the 'Mutual Non-
Disclosure Agreement', started sharing the details of properties
including photographs, to the appellant which could meet the
requirements of appellant. It was also urged by respondent No.1 that
in pursuance of the 'Mutual Non-Disclosure Agreement', the appellant,
by an email dated October 27, 2014, forwarded a checklist to
respondent No.1 asking it to fill up the details of the properties in the
format of checklist. Respondent No.1 acknowledged such request of
the plaintiff and by two several emails dated October 28, 2014 filling
up the details of two properties situated at Bantala and Dhulagarh
together with photographs thereof.
16. The plaintiff/respondent No.1 also shared the details of
another warehouse property at Sreerampore, Delhi Road, Hooghly, to
the appellant/defendant No.1, by an email dated December 31, 2014
which was then occupied but about to be vacated. By an email dated
January 12, 2015, the appellants asked for the postal address of
Sreerampore warehouse belonging to Keola Associated Private Limited.
Respondent No.1 furnished the details as sought by the appellant, by
an email dated January 13, 2015 and discussions over the Keola
warehouse continued between the parties from time to time.
17. The suit being CS 2 of 2016 was filed by the
plaintiff/respondent No. 1 seeking for the following reliefs:-
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(a) "Decree for Rs. 1,15,92,877/- as pleaded in paragraph 35 above
against the defendant no. 1;
(b) In the alternative, decree for Rs. 1,15,92,877/- as pleaded in
paragraph 35 above against defendant no. 2;
(c) Further interest, Interim interest and interest upon judgment at
18% per annum;
(d) Judgment upon admission;
(e) Attachment before judgment;
(f) Receiver;
(g) Injunction;
(h) Costs;
(i) Further and/or other relief or reliefs."
18. Reliefs were sought in the suit against the
appellant/defendant No. 1 and in the alternative, similar reliefs were
sought against respondent No. 2/defendant No. 2. The learned Trial
Judge had passed the impugned judgment and decree against both
the defendants in the suit, holding them jointly and severally liable,
thereby granting both the prayers (a) and (b) in the plaint
simultaneously. In such view of the facts and particularly the prayers
of the plaint requiring a decree in the alternative, at the time of
hearing, we enquired from the learned Senior Advocate appearing for
respondent No. 1 as to which of the reliefs was the respondent No. 1
seeking, in appeal. In response, learned Senior Advocate submitted
that the plaintiff/respondent No. 1 was not pressing for the alternative
relief sought in the original suit, as against the respondent No.
2/defendant No. 2. It was contended in response to our query that
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respondent No. 1 was limiting its prayers as against the
appellant/defendant No. 1 only. In such conspectus, the hearing of
the instant appeal was confined to prayers (a), (c) to (i) of the plaint
sought against the appellant/defendant No. 1 in the suit.
19. According to the case made out by the plaintiff/respondent
No.1, in January, 2015, the appellants informed respondent No.1 that
it had appointed respondent No.2/ defendant No.2, as its agent who
will finalize the warehouse requirement of appellant on its behalf. It
was also informed that respondent No.2 would be contacting and
getting in touch with respondent No.1 over the issue. Accordingly,
representative of respondent No.2, by an email dated February 3,
2015 requested respondent No.1 to share the details of Sreerampore
property. Such request was duly responded by respondent No.1 on
February 3, 2015 itself. The details of the property, as requested by
respondent No.2, were also shared by respondent No.1 on February 3,
2015.
20. By a separate email dated February 3, 2015, respondent No.1
requested the appellant to confirm a visit to the property concerned.
Date of visit was fixed on February 5, 2015, by respondent No. 2;
however, the visit could not materialize due to late arrival of the
representative of respondent No.2. Later, respondent No. 2 informed
respondent No. 1 that they were not interested in finalizing the hiring
of Sreerampore property and asked to supply the details of some
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alternative properties. In pursuance of such request, respondent No. 1
furnished the details of four other properties to respondent No.2 by an
email dated February 20, 2015.
21. Respondent No.1 also came up with a case that on May 22,
2015 they were informed by the appellant that since respondent No.1
could not arrange a site visit by respondent No.2 on February 5, 2015,
respondent No.2 had refused to enter into any further negotiation with
respondent No.1 in respect of the Sreerampore property. However, on
May 28, 2015, the representatives of respondent No.1 visited the
Sreerampore property and came to learn that respondent No.2 had
directly entered into a tenancy agreement in respect of the said
property with Keola Associates Private Limited, avoiding respondent
No. 1 which according to respondent No. 1 was violation of the
agreement of 'Mutual Non-Disclosure Agreement' entered into between
the appellant and respondent No.1, respondent No.2 having been
acting as an agent of the appellant.
22. Defendant No.1 on the other hand came up with a case that
the defendant No. 1 was looking for a warehouse space and he was in
regular touch with different real estate brokerage firms as also
individuals. It was not limited to the plaintiff, defendant No. 2 or
CBRE. It was further stated that by an email and letter dated October
25, 2014, respondent No. 1 sent proposals on a couple of properties
together with its schedule and fees that was likely to be charged as
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commission on finalization of either of the properties. Such proposal
was, however, rejected by the appellants. It was further case of the
appellant/defendant No. 1 that in view of an inordinate delay in
finalizing its requirements, it engaged the third party logistics service
for its requirements. Accordingly, the appellant handed over the
responsibilities to finalize the location for the warehouse to
respondent No. 2. In the process, the appellant introduced respondent
No. 2 to the plaintiff/respondent No. 1.
23. It was further case of the appellant in the original suit that
the appellant entered into a Master Service Agreement with
respondent No. 2. Clause - 4 of such argument guaranteed an
indemnity to be provided by respondent No. 2 to the appellant against
any claim based on loss, damages, settlement, costs, expenses and
any other liability. It was urged that in terms of such Master Service
Agreement, no liability existed against the appellant and it could not
have been implicated for any business relationship or transaction
between respondent No. 2 and any third party. The appellant also
made out a case that by an email dated December 31, 2014 sharing
details of the property involved in the case was overlooked by the
appellant due to Master Service Agreement between it and respondent
No. 2. The appellant did not require any service from respondent No.
1/plaintiff. By its email dated January 12, 2015, the appellant
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relegated respondent No. 1 to the respondent No. 2 for finalization of
the deal.
24. The appellant specifically stated in its written statement that
no concluded contract was executed between the appellant and
respondent No. 1. The details of the property were openly available
with different real estate brokerage firms/agents. The appellants also
alleged that since there was no concluded contract between it and
respondent No. 1, no claim of confidentiality is sustainable.
25. Respondent No. 2, in the written statement, made out a case
that the appellant and respondent No. 2 shared a business
relationship since December 22, 2014 in the form of a Master Service
Agreement executed by and between them. Under such agreement,
respondent No. 2 was responsible to provide logistic support to the
appellant.
26. It was further case of respondent No. 2 that on December 22,
2014, the appellant contacted respondent No. 2 for the availability of a
ready warehouse space in Kolkata which was responded by
respondent No. 2 through its email dated December 23, 2014. By
another email dated December 24, 2014, respondent No. 2 informed
the appellant of two individual sites at Calcutta. Since then, there has
been several email correspondences between the appellant and
respondent No. 2 between December 30, 2014 and January 28, 2015.
In the meantime, respondent No. 2 had been communicating with its
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listed real estate agent, CBRE, seeking assistance in respect of
warehouse requirement of the appellant. Consequently, details of
several properties were furnished to the appellant.
27. It was specific case of respondent No.2 that the lead to
subject property was provided by CBRE to it and both of them were
coordinating to arrange a site visit by the appellant. It referred to an
email dated February 3, 2015 by respondent No.2 to CBRE.
Accordingly, respondent No.2 visited the property site with the
assistance of CBRE on February 4, 2015 and a site visit to be taken
by respondent No.1 was also arranged on February 6, 2015. Referring
to emails dated February 5, 2015 and June 17, 2015, respondent
No.2 set out a case that they had informed respondent that they
would not consider the proposal for Sreerampore property by
respondent No.1 if they failed to arrange a site visit on February 5,
2015. The site was thereafter, visited by the appellant and respondent
No.2 through the services of CBRE. The deal was ultimately finalized
by the appellant on April 17, 2015 and according to the terms; one
month's rental was paid to CBRE by the landlord/owner of the
property Keola Associates Private Limited as commission.
28. Based on the pleading, so put in by the parties, the learned
Single Judge framed as many as 12 issues for the adjudication of the
disputes involved in the lis. The issues framed by the learned Trial
Judge are as follows:
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1. "Is the suit bad or not maintainable in its present form or is
liable to be dismissed as alleged by the defendants in their
written statements?
2. Is the defendant No.2 an agent of the defendant No.1?
3. Does the instant suit suffer from lack of or non-disclosure
of cause of action as alleged by the defendants in their written
statements?
4. Was the defendant No.1 after orally accepting the terms
and condition of brokerage services of the plaintiff and thereafter
acted in furtherance to such acceptance by forwarding the
'Mutual Non-Disclosure Agreement', not bound and obliged to
honour the terms thereof as stated in paragraph 5 of the plaint?
5. Was not acceptance of the terms of 'Mutual Non-Disclosure
Agreement' by defendant No.1 final and binding after exchange
of emails dated 4th December, 2014 as stated in paragraph 7 of
the plaint?
6. Did the defendants in consent and connivance of each
others violating the terms of 'Mutual Non-Disclosure Agreement'
on one hand and taking full advantage of the plaintiff's services
on the other hand acted to the prejudice and detrimental of the
plaintiff?
7. Is the defendant No.2 bound by any contractual obligation
or otherwise with the plaintiff?
8. Whether any concluded contract was entered into in
between the plaintiff and the defendant No.1 which can entitle
the plaintiff to obtain a decree of ₹1,15,92,877/- as against the
defendant No.1?
9. Are not the defendants liable to compensate the plaintiff as
per the particulars as stated in paragraph 35 of the plaint?
10. Is the plaintiff entitled to any interest @ 18% on the sum of
₹1,00,00,000/- on and from 31st December, 2014 till 18th
November, 2015 from the defendants?
11. Whether the plaintiff is entitled to a decree as prayed for?
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12. To what other reliefs is the plaintiff entitled to?"
29. The materials on record exhibits that the appellant/defendant
No.1 approached respondent No.1 for brokerage services for the
purpose of its warehouse requirements in and around Kolkata. Both
the parties negotiated over the issue for some time. There was an
understanding between the parties that respondent No.1 will be
providing the brokerage services to the appellant and the appellant
shall pay a sum equal to one month's rental of the property hired by it
to respondent No. 1, as brokerage, in case the deal is finalized. In
turn, the appellant also gave out that he would not disclose the details
of the properties furnished by respondent No.1 to any other person
and shall not enter into direct agreement with the landlord/owner of
such properties.
30. According to the case of respondent No.1 there was a
concluded contract between the two parties in this regard in the name
of 'Mutual Non-Disclosure Agreement', which is of course, disputed by
the appellant. It is the case of the appellant that he did approach
respondent No.1 seeking its brokerage services for hiring property for
their warehouse requirements. The alleged 'Mutual Non-Disclosure
Agreement' was however never executed by the appellant resulting
into a concluded contract.
31. The appellant ultimately hired a warehouse property at
Sreerampore by entering into an agreement directly with the owner of
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such property. According to the case of respondent No.1, details of the
property hired by appellant was furnished by it to the appellant.
However, in blatant violation of the terms of the contract concluded
between appellant and respondent No.1, the appellant proceeded to
hire the property directly from the landlord/owner. It was also
contended that the property was hired by the appellant availing the
brokerage services rendered by respondent No.1, in order to evade its
due commission as agreed between the parties. The suit was filed by
respondent No.1 seeking a decree for such brokerage charges together
with damages on account of loss of reputation etc.
32. On the contrary, the appellant denied the existence of any
concluded contract between it and respondent No.1. It was also
contended by appellant that besides seeking brokerage services of
respondent No.1, it also sought such services of respondent No.2. In
fact, according to the appellant, the brokerage services of respondent
No.2 was hired by the appellant in terms of a Master Service
Agreement on pan India basis and such relationship was on the terms
of principal to principal basis instead of principal and agent. It is in
this capacity, respondent No.2 was introduced to respondent No.1
with intimation that any deal regarding the requirements of the
appellant of the warehouse property would be independently
negotiated with respondent No.2, it being an independent brokerage
service provider on the rolls of appellant company.
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33. Respondent No.2 acting as independent brokerage service
provider, hired another company under the name and style of CBRE
to obtain lead of properties open for hiring and in fact, lead of the
property at Sreerampore, hired by the appellant was provided by
CBRE to respondent No.2. It was also contended that it is not
uncommon that details of same property, open for hiring, may be
available to more than one service provider. Accordingly, on the basis
of lead provided by CBRE to respondent No.2, property was shown to
the appellant and it was finally hired by the appellant.
34. Respondent No.2 and CBRE also arranged for site visit of
such property conducted by the appellant company on February 6,
2015, independent of any involvement of respondent No.1.
Involvement of respondent No.1 in the deal was ruled out, at least on
two counts. Firstly that respondent No.1 was duly intimated by the
appellant, well beforehand, that they had placed their requirements
with respondent No.2 and therefore, any negotiation in this regard
was directed to be made with respondent No.2 and secondly, since
respondent No.1 failed to arrange the site visit by the appellant,
respondent No.1 was intimated that respondent No.2 was not
interested in proceeding with the deal any more.
35. Issue No.1 was decided by learned Single Judge in favour of
the plaintiff/respondent No.1 holding that the suit was maintainable
in its present form. Maintainability of the suit was not pressed by
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either of the parties at the time of hearing of this appeal. In such view
of the facts, since we are not called upon, we are not minded to go into
the maintainability of the suit.
36. As regards issue No. 2 i.e. respondent No. 2 acting as an
agent of the appellant/defendant No.1, the learned Trial Court decided
this issue in favour of the plaintiff/respondent No. 1. While deciding
such issue, the learned Trial Judge apparently took into consideration
various clauses of the Master Service Agreement between the
appellant and respondent No.2 on December 22, 2014. It was also
observed that inspite of the existence of Master Service Agreement, the
appellant continued to negotiate with respondent No.1 at least till mid
February 2015. Learned Single Judge also held that the execution of
such Master Service Agreement between the appellant and respondent
No.2 was never intimated to respondent No.1. On such score, learned
Single Judge came to a conclusion that respondent No.2 was acting as
an agent of the appellant.
37. There are rival contentions by the parties as to the position of
respondent No.2. According to respondent No.1, respondent No. 2
Kuehne & Nagal (India) Private Limited, was acting as an agent of the
appellant Amazon Sellers Services Private Limited in the transaction
relating to hiring of the warehouse. On the contrary, the appellant has
come up with a case that, besides hiring the services of respondent
No.1, Pioneer Property Management Limited, the appellant also
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engaged respondent No.2, as an independent service provider, to
render services in respect of finalization of its warehouse
requirements. To this effect, the appellant also entered into a Master
Service Agreement with respondent No.2. The said respondent No.2
never acted as agent of the appellant rather it was acting as an
independent service provider.
38. According to the appellant, such appointment of respondent
No.2 was duly intimated to respondent No.1 and thereafter it has been
communicating with respondent No.2 for the property requirements of
the appellant. Although, no definite evidence has been brought on
record to establish that respondent No.1 was dealing with respondent
No.2 as agent of the appellant but it is evident that a series of email
communications were exchanged directly between respondent No.1
and respondent No.2 over the requirement of appellant, ranging from
details of property to request for arrangement of site visit, legal and
technical requirements etc. and that too, in some of such email
communications, addressed to respondent No. 2, the appellant was
referred to as the 'client' of respondent No.2.
39. The purport of such email communications, generated from
respondent No.1 clearly indicates that respondent No.1 was dealing
with respondent No.2 independently and that it was acting as
independent service provider serving its clients, like the appellant. To
our view, non-disclosure of Master Service Agreement entered into
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between the appellant and respondent No.2 before respondent No.1 is
of no consequence. The appellant, as an entity, was at liberty to
engage as many service providers for its requirements as it liked.
Therefore, learned Trial Judge was not justified in holding that
respondent No.2 was acting as an agent of the appellant.
40. The other issues which are contentious between the parties
are issue No. 4 to issue No. 8 as framed in the suit. These issues
relate to the concluding nature of a contract of non-disclosure entered
into between the appellant and respondent No. 1 and violation thereof.
The original suit was based on the allegation of violation of a
concluded contract. The appellant has disputed the existence of a
concluded contract between them and respondent No. 1.
41. From the case made on behalf of the parties, it transpires that
the appellant approached respondent No. 1 for brokerage services for
its requirement of a warehouse in and around Kolkata. The
respondent No. 1 agreed to provide to such brokerage service.
According to the case made out by respondent No. 1, the appellant
agreed with respondent No. 1 that the appellant agreeing to avail
brokerage services of respondent No. 1, would not enter into
negotiations and agreement directly with the landlord/owner of the
properties which would be shown or any particulars of the properties
would be provided by respondent No. 1. On such understanding,
appellant and respondent No. 1 drafted an agreement in the form of
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'Mutual Non-disclosure Agreement' and shared it with respondent No.
1. Respondent No. 1, in turn, after going through the draft, suggested
certain modifications in the draft agreement and sent back the draft
agreement with modifications asking the appellant to express its views
in the proposed modifications. It was further case of respondent No. 1
that appellant accepted the modifications and asked respondent No. 1
to send the signed copies of such agreement. Such communication
was allegedly made by the appellant by an email message. In
pursuance of such communication, respondent No. 1 prepared two
copies of the agreement and sent it across to the appellant after
signing it. It was also requested that one copy of such agreement be
transmitted to respondent No. 1 after signing for the purpose of their
records. It was the contention of respondent No. 1 that since the
appellant sought respondent No. 1 to send the signed copy of the
agreement and it was accordingly sent to the appellant for their
signature, a contract between the appellant and respondent No. 1 was
concluded.
42. On the other hand, according to the case made out by the
appellant, the 'Mutual Non-Disclosure Agreement' was never signed by
the appellant. Therefore, there was no concluded contract between the
parties binding upon them. The materials go to show that the
agreement was actually never signed by the appellant although it was
sent to it by respondent No. 1. Respondent No. 1 had already signed
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the said agreement and sent it across to the appellant for their
signature with a request to send the duplicate copy of such agreement
after its signing by the appellant which was never done.
43. The principles with regard to completion of communication in
respect of an offer or acceptance thereof or with regard to revocation of
such offer or acceptance have been dealt with under Section 4 of the
Indian Contract Act, 1872. It would be appropriate to set out Section
4 of the Act of 72 which is as follows:-
"4. Communication when complete.--The communication of a
proposal is complete when it comes to the knowledge of the
person to whom it is made.
The communication of an acceptance is complete,--
as against the proposer, when it is put in a course of
transmission to him, so as to be out of the power of the acceptor;
as against the acceptor, when it comes to the knowledge of the
proposer.
The communication of a revocation is complete,--
as against the person who makes it, when it is put into a course
of transmission to the person to whom it is made, so as to be out
of the power of the person who makes it;
as against the person to whom it is made, when it comes to his
knowledge.
Illustrations
(a) A proposes, by letter, to sell a house to B at a certain price.
The communication of the proposal is complete when B receives
the letter.
(b) B accepts A's proposal by a letter sent by post.
The communication of the acceptance is complete,
as against A when the letter is posted;
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as against B, when the letter is received by A.
(c) A revokes his proposal by telegram.
The revocation is complete as against A when the telegram is
dispatched. It is complete as against B when B receives it.
B revokes his acceptance by telegram. B's revocation is complete
as against B when the telegram is dispatched, and as against A
when it reaches him."
42. In the case at hand, respondent No.1 communicated the term
of proposed Non-Disclosure Agreement through email. The appellant
made certain modifications in such terms and conditions and sent it
across to the respondent No.1 for its views on such modifications. The
modifications were accepted by respondent No.1 and thereafter,
respondent No.1 executed the agreement in duplicate, with a request
to send a copy thereof, after execution by the appellant. However,
such agreement was admittedly, never executed by the appellant.
Therefore, in view of the provisions contained in Section 4 of the Act of
1872 no concluded contract came into being in between the appellant
and respondent No.1 because it was not executed by the appellant
and its acceptance was neither communicated nor came to the
knowledge of respondent No.1. Mere communication of the terms of
agreement and incorporating certain modifications therein cannot
amount to a concluded contract, especially when the parties intended
execution of such document in writing.
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43. Proposing or accepting modification in a document to be used
as an agreement and acceptance of the terms of an agreement by
executing it cannot be equated. In such view of the facts, learned Trial
Judge was not justified in holding that there was a concluded contract
between respondent No.1 and the appellant. The learned Trial Judge
held the 'Mutual Non-Disclosure Agreement' binding between the
parties on the premise that the appellant, upon receipt of the draft
agreement did not expressly intimate that it will not execute the
agreement. The relevant finding of the learned Single Judge reads
thus:
"Considering the above facts and circumstances this Court finds
that even after receipt of Mutual Non-Discloser Agreement by the
defendant No.1, the defendant No.1 had never informed the
plaintiff that the defendant No. 1 will not execute the agreement
or does not agree with the terms and conditions of the agreement.
There is no evidence to prove that the defendant No. 1 has
informed that the defendant No. 1 is not intending to continue
with any deal with the plaintiff, thus this Court safely held that
there is concluded contract between the plaintiff and the
defendant No.1"
44. However, it is evident that the parties intended a signed
agreement in writing. The draft copies of such document were sent to
the appellant for their signature and sending a copy thereof to
respondent No.1 for their records. The said draft was never signed by
the appellant and was not sent back to respondent No.1. Where the
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parties intended a signed agreement in writing, it cannot be said to be
binding on the parties until it was signed and duly communicated to
respondent No.1.
45. We have noted hereinbefore that the appellant informed
respondent No.1 well beforehand that it had hired the services of
respondent No.2 on pan-India basis for their warehouse requirements
by entering into a 'Master Service Agreement'. The materials on record
reveal that respondent No.1 had been communicating with respondent
No.2. There appears no iota of evidence that respondent No.1 was
dealing with respondent No.2 as a mere agent of appellant and not an
independent entity as instructed by the appellant. The terms and
conditions of the 'Master Service Agreement', admitted in evidence,
demonstrate that respondent No.2 was acting as an independent
service provider instead of a mere agent of the appellant. There was no
contract between respondent No.1 and the appellant and as such, the
appellant cannot be held responsible for breach of any contract or
liable to pay damages for such breach.
46. The parties have adduced evidence which contain email
communication between them. It transpires from such evidence that
respondent No.1 had been communicating with respondent No.2 over
the warehouse requirements of the appellant. In turn, respondent
No.2 also availed the services another entity in the name of CBRE.
There are email communications to that effect as well. Such
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communications become relevant in view of the case made out by
respondent No.2 to the effect that details of properties are available
with many brokers/property dealers working in the field and that the
lead to the property in question was provided by CBRE and not by
respondent No.1.
47. Be that as it may, since on the basis of materials on record,
we are of the view that there was no concluded contract legally
binding between the appellant and respondent No.1, the appellant
could not have been held liable for any breach thereof. In such view of
the facts, issue nos. 4 to 8 ought to have been decided against
respondent No.1/plaintiff. Consequently, in absence of a legally
enforceable contract between the appellant and respondent No.1, the
appellant was not liable to pay any brokerage service charges to the
plaintiff/respondent No.1. On the same reasoning respondent No.1
was not entitled for any damages towards breach of contract.
Accordingly, we are of the opinion that issue nos. 9, 10 and 11 could
not have been decided in favour of the plaintiff/respondent No.1.
48. Therefore, on the basis of discussions hereinabove, we set
aside the impugned judgment and order. Consequently, AD-COM 8 of
2024 is hereby allowed, however without any order as to costs.
Connected applications, if any, shall also stand disposed of.
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49. Urgent photostat certified copy of this judgment, if applied
for, be supplied to the parties on priority basis upon compliance of all
formalities.
[MD. SHABBAR RASHIDI, J.]
50. I agree.
[DEBANGSU BASAK, J.]
