M.L. Anand vs Normac
1997 Latest Caselaw 103 Del

JUDGMENT

K. Ramamoorthy, J.

(1) The plaintiff Mr. Anand, the Sole Proprietor of M/s. Anand Technical Services has filed the suit against the defendant Company in Norway for the recovery of sum of Rs. 56,31,000.00 . To put it in a nut shell the case of the plaintiff is that the defendant had entered into a contract with National Airport Authority of India, for the installation of Instrument Landing Systems to the tune of Rs. 30 crores and it was the plaintiff who was responsible for the National Airport Authority placing the order on the defendant and, therefore, he was entitled to a commission of 6% on the said actual amount.

(2) The answer by the defendant is that the National Airport Authority of India invited global tender and the defendant submitted its tender and that was accepted by the National Airport Authority and the plaintiff did not or could not play any part in the National Airport Authority accepting the tender of the defendant. It is the case of the defendant that the plaintiff is not entitled to any commission when he has not done anything for the defendant.

(3) The brief survey of the allegation in the plaint and the written statement is necessary in this case.

(4) The plaintiff would state that the defendant has been trying for years to sell Instrument Landing Systems to the National Airport Authority of India and the plaintiff agreed to help the defendant. There were agreements dated 18th, 19th and 20th September of 1989 by which the plaintiff was appointed as a agent of the defendant in India and according to the plaintiff he was appointed as consultant for the supply of Instrument Landing Systems for the National Airport Authority of India. According to the plaintiff the defendant agreed to pay 10% commission on technology transfer fee on prorata transfer basis. The plaintiff arranged a seminar in Hyatt Regency Hotel on 71.9.89 for the presentation of the defendant project in the year 1989-90. The plaintiff took a lot of efforts to get the order for the defendant and according to the plaintiff all of a sudden on 14.11.90 the defendant terminated the agreement stating that the defendant was not happy with the visit of the plaintiff in U.S.A. It would appear that the plaintiff had visited U.S.A. in 1990. The plaintiff himself stated in para 19 that on or about 4th of May, 1992, the National Airport Authority of India had placed orders with the defendant for the supply of eight Instrument Lading Systems. According to the plaintiff the commission calculated @ 6% on this would come to Rs. 56,28,000.00 .

(5) The defendant filed the written statement repudiating the claim of the plaintiff. In para 6 of the written statement it is stated thus : That para 6 of the plaint is incorrect and hence denied. The plaintiff has distorted the facts contained in the agreement between the parties to suit his own convenience. It is incorrect and hence denied that the plaintiff was appointed as general agent for procurement of order of Instrument Landing Systems from the National Airport Authority of India on the 18th September, 1989. The plaintiff was appointed as a Consultant only for the specific purpose of the supply of six Instrument Landing systems to the National Airports Authority of India in accordance with the defendants Quotation No. 89/020- 2401-WJX (or as amended in writing by Normarc AS) and the appointment was restricted to that quotation only. It is further stated by the defendant that it came to know that global tender would be invited by the National Airport Authority of India for placing orders as per the information received by the defendant and the plaintiff did not do anything. The defendant categorically stated that there was absolutely no connection between the plaintiff and the defendant for the placement of the orders by the National Airport Authority of India in 1990. According to the defendant it was not bound to give any reason for the termination of the agreement. There was no agreement between the plaintiff and the defendant to pay commission to the plaintiff on the supply of the quantity of eight Instrument Landing Systems to the National Airport Authority of India calculated @ 6% on particular or at any other rate. The plaintiff filed its replication which I do not want to refer to because those are only the repetition what is stated in the plaint.

(6) On 7.2.95 this Court framed the following issues for trial :

1. Whether the plaintiff was appointed as Agent for defendant on the basis of letters dated 18.9.89, 19.9.89 and 20.9.89 ? 2. Was the agreement concluded between the parties by virtue of the aforesaid letters between the parties was restricted only to Quotation No. 89/620-2401-WJX or any amendment thereto ? 3. Was the agreement between the parties was at Will ? 4. Whether the defendant could not have terminated the agreement by letter dated 14.11.90? 5. Did the plaintiff make any consistent false and misleading representation to the defendant ? If so, to what effect ? 6. Did the defendant get the order of supply of the Instrument Landing System from Airport Authority of India? If so, of what value? 7. Is the plaintiff entitled to commission calculated at the rate of 6% on the price of quantity of eight Instrument Landing System supplied by the defendant to the said Airport Authority of India? 8. To what amount, if any, is the plaintiff entitled from the defendant? 9. Is the plaintiff entitled to interest calculated at the rate of 18% on the amount due from the defendant? 10. Relief.

(7) Mr. Anand the plaintiff was examined on commission by the Local Commissioner N.S. Avinsah Maheshwari.

(8) The plaintiff would admit that the defendant is a Company based in Norway and it is a reputed Company in LL.S. and other Navigation equipments. A question was put to the witness and the same was answered as under : Q. Please tell the Court the meaning and purpose of the Quotation 89/020- 2401-WJX (or as amended in writing by Normarc)? (Objected to by Sh. Bedi being contents of documents). Mr. Mahajan submits that witness is being asked to explain the purpose and meaning of the quotation. the decision of the Hon'ble Court. Ans. The quotation was not shown to me and it was known between both the parties that the requirement is bound to be amended by N.A.A. and hence fresh quotations will be called for and, therefore, the words "as amended in writing" was inserted.

(9) The plaintiff would itself admit that "the order which has been placed by National Airport Authority on the defendant has no relevancy to the quotation which had become irrelevant. This is mentioned Ext. P 1 and P 55.1 had explained this aspect of the matter to C-l. I have repeatedly mentioned that a Global Tender will be floated, fresh quotation would be asked and, therefore, the quotation given by the defendant had become redundant and irrelevant". The witness would expect that he is entitled to 6% commission on Fob value on the equipment which comes to Rs. 56,28,000.00 . He would claim interest @ 18% per annum. The witness would speak about the correspondence that passed between the parties in 1989-90 which are not relevant for deciding the point. He would himself admit "it is wrong to suggest that I procured the agreement from the defendant on the specific understanding that the order for supply for I.L.S. shall be obtained on the basis of these quotations." He would also admit that "at the relevant time I was not involved with the Government of India or N.A. for making any policy for supply of I.L.S." He would however state "I was however indirectly involved in the issuance of global tender relating to I.L.S. wherein specification for the defendant were changed to suit defendant's requirement." He would asserted in the evidence that "in fact I put the defendant on a driver seat and enable them to get this order".

(10) Mr. Larsen was examined as Dw I for the defendant. The following questions and answers would show what happened between the parties and also would show that the defendant independently deal with the National Airport Authority:

Q.12. Did the plaintiff assist you in getting any orders ? Ans. After he was appointed he started to request and communicate with us regarding several other proposals which never came to us successfully and we made a lot of efforts and over 100s of working hours and had large expenses for these proposals. For this proposal Brig. Anand requested separate agreements. He was fully aware of that the agreement for the 6 Ils made in September, 1989 did not cover any other quotation, tender or supply to Naa or any other customer in India.

Q.13. Why and how did you terminate the agreement of Brig. Anand ? Ans. Although the agreement was terminated itself if no orders were placed on this specific quotation for which the agreement was valid as a professional Co. in order not to make any further efforts from Brig. Anand's side we chose as normal courtesy to write a termination letter in November, 1990.

Q20. On what basis the tender was awarded to you ? Ans. The tender was awarded to our Company. This was a global and open competition. The tender was awarded to our Company because we complied all requirements of the tender. We had the best offer, we had the best price, we were fully technically complaint and we met the financing requirements of the tender.

In the cross-examination it was suggested to the witness that it was because of the efforts made by the plaintiff that the defendant got the order and that was denied. A question was put to the witness that the defendant was made it to sit on the driver seat and that was denied vide Questions No. 50 and 51. Questions No. 50 and 51 and their answers are as follows :

Q.50. Kindly see it was because of the effort made by the plaintiff that you got this order of Ils ? Ans. It was not owing to the efforts made by the plaintiff but it was purely on the efforts made by us.

Q.51. I put it to you that because you were put on the driving seat for this order by the plaintiff. Ans. I deny the suggestion.

Therefore, as I had mentioned in the beginning the only point that is to be decided is whether the plaintiff could have done anything for the successful completion of the contract between the defendant and the National Airport Authority. There is absolutely no material produced by the plaintiff to show that he was in any way responsible for the acceptance of the tender of the defendant by the National Airport Authority. The case of the plaintiff cannot be accepted in the nature of things because global tenders are invited by the National Airport Authority on the specifications and conditions mentioned in the tender and the tender submitted by the various concerns all throughout the world have been considered on their merits and no outsider could influence the National Airport Authority to award the contract to any particular person. No doubt, there were agreements in September, 1989 between the plaintiff and the defendant but those agreements were cancelled on 14.11.90. The suit was instituted on the plaintiff coming to know of the contract between the National Airport Authority and the defendant. Therefore, this suit cannot be considered to be a suit for damages on the illegal termination of the contract. The plaintiff has no where stated in the plaint as to how did he incur any damages on account of the termination of the agreements by the defendant on 14.11.90. He would not say anything in his evidence also. Even in the plaint though in para 19 a specific mention is made by the plaintiff about the awarding of the contract by the National Airport Authority to the defendant, the plaintiff had not been able to specify the role played by him right from the date of submission of tender by the defendant till the date of awarding of the contract in 1992. As I had mentioned earlier the plaintiff was not in a position to do anything in the process of the evaluation of the tender by the National Airport Authority. His assertion in his evidence is that the defendant could get the contract because of the efforts made by him. According to him, this would enable him to claim commission @ 6% from the defendant. In the absence of any material to prove the necessary links in the chain of events the plaintiff cannot claim commission from the defendant. In this view of the matter, I am unable to accept the case of the plaintiff. In the light of this, I do not think that it is necessary to deal with other issues in the case.

(11) Therefore, all the issues are found against the plaintiff and in favour of the defendant.

(12) Accordingly, the suit is dismissed and the parties shall bear their respective costs.