P.N. Sethi vs Parley Biscuits Ltd
2018 Latest Caselaw 5504 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RFA No.239/2006

%                                              12th September, 2018

P.N. SETHI
                                                         ..... Appellant
                          Through:       Mr. Ajay Kumar Jha, Advocate
                                         with Mr. K.R. Sasiprabhu,
                                         Advocate and Mr. Rohit
                                         Chandra,    Advocate       (M.
                                         Nos.9811679632, 9971233838
                                         & 8447933100).


                          versus

PARLEY BISCUITS LTD.
                                                          ..... Respondent

Through: Mr. Jagjit Singh, Advocate (M.

No.9810152774).

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. This Regular First Appeal under Section 96 of Code of

Civil Procedure, 1908 (CPC) is filed by the plaintiff in the suit

impugning the judgment of the Trial Court dated 22.10.2005 by which

trial court has dismissed the suit filed by the appellant/plaintiff for

recovery of Rs.7,86,131/- against the respondent/defendant on account

of providing by appellant/plaintiff to the respondent/defendant

consultancy services towards settlement of accounts done by the

appellant/plaintiff for the respondent/defendant with the supplier of

natural gas Gas Authority of India Ltd. (GAIL) to the

respondent/defendant. The appellant/plaintiff pleaded that a contract

was entered into between him and the respondent/defendant in terms

of the appellant‟s/plaintiff‟s letter dated 8.8.1997/Ex.PW1/1 and the

reply of the respondent/defendant dated 11.8.1997/Ex.PW1/2. The

appellant/plaintiff pleads that on account of his visiting the office of

the GAIL India Ltd on various occasions and consequently the

respondent/defendant was released a sum of Rs.1,10,76,965/- by

GAIL and consequently the appellant/plaintiff became entitled to

contractually receive 5% of this amount being Rs.5,53,848/-, and since

the same was not paid in spite of repeated reminders to the

respondent/defendant, hence the subject suit was filed.

2. Respondent/defendant contested the suit and took up the

objection that the amount which was released by the GAIL to the

respondent/defendant was not on account of any acts or efforts of the

appellant/plaintiff but was on account of the general circular dated

13.4.1993 issued by the Government of India whereby the consumers

of natural gas had not to pay any minimum guaranteed off take

amount, but that the consumer had only to pay for the actual gas

consumed. Respondent/defendant contended that what was paid to the

respondent/defendant by GAIL was the difference of the amount being

the higher minimum off take already paid by the respondent/defendant

to GAIL as compared to the lower amount which was actually payable

on account of the lesser actual consumption of natural gas that as the

minimum guaranteed consumption and this differential amount

therefore was credited in favour of the respondent/defendant being the

amount of Rs.1,10,76,965/-.

3. Trial court by the impugned judgment has dismissed the

suit by holding that payment which is received by the

respondent/defendant is on account of the general circular of

Government of India dated 13.4.1993 and that no evidence has been

led by the appellant/plaintiff that because of his skills and expertise

that the said amount was released by GAIL to the

respondent/defendant. The relevant discussions in this regard are

contained in paras 12 and 13 of the impugned judgment and these

paras read as under:-

"12. The counsel for the defendant has vehemently argued that the plaintiff is unable to show that the plaintiff has put in any efforts to get the amount released. It has been admitted by the plaintiff in the cross examination that there is no details available to show as to when and for that matter how many times he visited the office of GAIL in connection with the job of the defendant. Although, he has stated that he has proof qua his visits but has not brought it on record. The plaintiff has also admitted that he has no special knowledge or expertise of the accounting system. The plaintiff has also admitted that the GOI has revised the schedule of price of the gas by GAIL through letter dt.13/4/1993. It has also been admitted by the plaintiff that the amount refunded to the defendant by the GAIL was on account of and in-consonance with letter dt. 13/4/1993 of GOI. It is submitted by him that he has convinced the authorities at GAIL by quoting examples. However, the plaintiff has not been able to show that he had communicated with GAIL in writing, nor he has brought any evidence by examining any official of GAIL with whom he had the meeting and deliberations over the issue pertaining to the refund of amount to the defendant.

13. The crux of the contentions of the counsel of the defendant that there is no cogent evidence on record which may indicate that the plaintiff had used his skills and experience to further the cause of the defendant with GAIL. In view of these facts where the documents filed on behalf of the plaintiff are not proved on record and he is unable to show that he has used his expertise, his skills for the benefit of the defendant, and for that matter the plaintiff has no special knowledge in the accounting field as has been admitted by him in the cross examination that he is an Engineer. Thereafter in these circumstances, the claim lodged by the plaintiff remains unsubstantiated as such the plaintiff is not entitled to the

principal amount claimed. Accordingly, issue no.2 is decided in favour of the defendant and against the plaintiff."

(underlining added)

4. Learned counsel for the appellant/plaintiff has argued

before this Court that it is not possible in the facts of the case for the

appellant/plaintiff to have maintained his record of visits to GAIL and

once the amount which is released to the respondent/defendant though

may be in terms of the circular of Government of India dated

13.4.1993, yet since the respondent/defendant received this amount

because of the efforts of the appellant/plaintiff by placing reliance

upon the circular of the Government of India dated 13.4.1993,

therefore the appellant/plaintiff became entitled to the amount due

which was 5% of the amount released in favour of the

respondent/defendant inasmuch as the figure of 5% is clearly stated in

Ex.PW1/1 written by the appellant/plaintiff to the

respondent/defendant and acknowledged by the respondent/defendant

by its letter dated 11.8.1997/Ex.PW1/2.

5. Learned counsel for the respondent/defendant has argued

that case of the appellant/plaintiff was misconceived more so because

in the offer letter of the appellant/plaintiff dated 8.8.1997/Ex.PW1/1

the claim of the appellant/plaintiff only arises when the

respondent/defendant is released the amount by the settlement of

accounts with GAIL India Ltd in terms of the provisions of the

contract entered into by the respondent/defendant with GAIL, whereas

the amount which is being released is not on account of the settlement

of accounts with GAIL under the contract but dehors the contract and

only on account of the circular dated 13.4.1993 of Government of

India.

6. In order to appreciate the respective arguments, letter of

the appellant/plaintiff dated 8.8.1997, letter of the

respondent/defendant dated 11.8.1997 and the letter of the

appellant/plaintiff to respondent/defendant dated 15.12.1997 (though

receipt of which is denied by the respondent/defendant but being a

document of appellant/plaintiff can be used against the

appellant/plaintiff), are required to be referred to, and these three

letters read as under:-

"Letter dated 8.8.1997 8 August 1997 M/s. Parle Biscuits Limited Delhi-Rohtak Road BAHADURGARH-124507 (Haryana)

Sub: Consultancy services for Gas Supply Contract

Dear Sirs,

This has reference to my discussions in your office today regarding rendering of consultancy services for finalization of the accounts with GAIL for getting refunds for gas supply in terms of the provisions in the contracts executed so far with GAIL.

In this regard, I had offered to take 5% of the amount received from GAIL by your organization. This amount will be paid to us after you get the payments from GAIL.

Kindly convey your acceptance for the same and also favour us with information like copies of Contracts, amount paid to GAIL so far (month-wise) to enable us to take up the matter with GAIL.

Thanking you,

Yours faithfully, For NATURAL GAS ASSOCIATES

Sd/-

(P.N. SETHI) CHIEF EXECUTIVE

Letter dated 11.8.1997 August 11, 1997 Mr. P.N. Sethi Chief Executive M/s. Natural Gas Associates 354, Sector „A‟ Pocket C Vasant Kunj NEW DELHI-110070.

Dear Sir,

This has reference to your letter dated 8th August 1997 and further discussions we had in our Factory.

We accept your offer for retainership with regard to finalization of accounts with GAIL for supply of Natural Gas to us. We also agree to pay you 5% (five per cent) of the amount received by us from GAIL against settlement of our claims.

In the meantime, we are sending you the copy of our Contract with GAIL along with details of payments made to them. We request you to file refund claims on our behalf wherever necessary.

Thanking you,

Yours faithfully, FOR PARLE BISCUITS LIMITED

Sd/-

(S.S. SHIVRAIN) GENERAL MANAGER

Encl: As above.

  Letter dated 15.12.1997

  NGA/I2/37                                 15.12.97
  To
     M/s Parle Biscuits Limited,
     Delhi-Rohtak Road,
     BAHADUR GARH 124507
     (HARYANA)

  SUBJECT:-         NATURAL GAS

  Dear Sirs,

This has reference to your letter dated II/8/97 on the above referred subject. Gas Authority of India Ltd. has relaxed Minimum Guaranteed Offtake Provisions of the Contract with effect from 13.4.93 in view of Government of India letter dated 13.4.93 which was not earlier given effect to, but on our pointing

out of the provisions contained in this letter the relaxations in MGO has been given by amending the earlier Contracts and making the necessary changes in all future Contracts.

Because of this change in Contracts effected from 13.4.97 the refund amount in favour of M/s Parle Biscuits Ltd. has been calculated by GAIL as Rs.1,10,76,965/- upto 31.7.97 and this amount is being adjusted against your gas supply bills from first fortnight of October, 97 by giving necessary credits.

In view of Govt. of India letter dated 13.4.93 and the amendments in the gas supply contracts, we also become entitled to Gas Pricing concessions, the case for which will be taken up after the aforesaid amount on account of MGO is adjusted. Since such gas supplies as per the recent gas pricing orders of Govt. of India, I would request you to make available to us the copies of future gas supply contracts as well as correspondence copies, if any, to keep our records up to date.

I am raising a consolidated bill of our fees as per our contract on the above referred amount of Rs.1,10,76,965/- as Rs.5,33,848/-. You may kindly make fortnightly payments based on the fortnightly gas supply bills and credit received from October, 97 onwards indicating the fortnightly amounts adjusted. This will also enable us to keep a track of the total amount credited by GAIL.

Thanking you, Encl. A/A.

Yours faithfully For NATURAL GAS ASSOCIATES Sd/-

Authorized Signatory"

7. Para 1 of the letter dated 8.8.1997 makes it clear that

entitlement of the appellant/plaintiff was only for settlement of

accounts and getting refunds in terms of the provision of the contract

entered into by the respondent/defendant with GAIL. The amount

which is released in this case is not by settlement of accounts under

the contract and using by the appellant/plaintiff of his expertise for

consequent release of the amount to the respondent/defendant payable

under the contract of respondent with GAIL. The

respondent/defendant was given the amount of Rs.1,10,76,965/- on

account of bounty given by the Government of India that though in the

contract for supply of natural gas payment had to be made on a

minimum off take guarantee consumption but this payment by a

consumer of natural gas need not be as per minimum off take

guarantee but can be for a lesser actually purchased natural gas from

GAIL. Therefore the present is not a case of any amount being got

released by the appellant/plaintiff to the respondent/defendant by

using his consultancy services for accounts for GAIL and this is in so

many terms admitted by the appellant/plaintiff in his letter dated

15.12.1997/Ex.PW1/3 written to the respondent/defendant and which

has been reproduced in its entirety above.

8. I may note that the respondent/defendant had also

exhaustively and thoroughly cross-examined the plaintiff, and who in

his cross-examination admitted that he had no record of any visits to

the office of the GAIL and nor any proof that he conducted any

discussion with any officials of GAIL for release of the said amount to

the respondent/defendant, much less under the contractual provisions

of respondent with GAIL. In any case even if the amount would have

been released to the respondent/defendant on account of any

discussion of the appellant/plaintiff with GAIL, yet since the release is

not on account of the settlement of accounts in terms of the contracts

but dehors the accounts settlement in terms of the contract, and only in

view of the circular of Government of India dated 13.4.1993, in view

of the language of Ex.PW1/1 no right accrues in favour of the

appellant/plaintiff.

9. Counsel for the appellant/plaintiff argued that the

respondent/defendant has admitted in its written statement that the

amount would be due to the appellant/plaintiff on account of the

contract being entered into by the respondent/defendant with GAIL,

however in the opinion of this Court what would bind the parties is not

any aspect as stated in the written statement by the

respondent/defendant because what is stated by the

respondent/defendant in its written statement is only on the basis of

the contract entered into between the parties as crystallized and

formalized in terms of Ex.PW1/1 and Ex.PW1/2, and which letter

restrict the issue of entitlement of the appellant/plaintiff only for

settlement of accounts in terms of the contract and not dehors the

contract.

10. There is no merit in the appeal. Dismissed.

SEPTEMBER 12, 2018                                VALMIKI J. MEHTA, J
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