Delhi High Court
Dr. Amitabha Sen vs M/S. Sportsworld International ... on 21 September, 2022
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: September 21, 2022
+ RFA 130/2021 & CM APPL. 7838/2021
DR. AMITABHA SEN ..... Appellant
Through: Dr. Amitabha Sen, Appellant in
person with Mrs. Aditi Pandey and
Mr. Abhinav, Advs. with appellant in
person
versus
M/S. SPORTSWORLD INTERNATIONAL LIMITED
& ORS. ..... Respondents
Through: Dr. Lalit Bhasin, Ms. Ananya
Marwah, Ms. Sayani Chatterjee and
Mr. Ajay Pratap Singh, Advs.
CORAM:
HON'BLE MR. JUSTICE V. KAMESWAR RAO
JUDGMENT
V. KAMESWAR RAO, J
CM APPL. 7838/2021
1. This is an application seeking condonation of 154 days in
filing the appeal.
2. For the reasons stated in the application, the same is allowed.
3. Application disposed of.
RFA 130/2021
4. This appeal has been filed by the appellant Dr. Amitabha Sen
challenging the judgment / decree dated March 04, 2020, whereby the
suit filed by the appellant for unlawful conspiracy, unlawful business
practices, violation of public policy, defamation, fraud,
Signature Not Verified
Digitally Signed By:ASHEESH
Signing Date:22.09.2022
11:22:51
misrepresentation, extortion, denigration, harassment, humiliation,
breach of contract, intentional interference with prospective economic
advantage, invasion of privacy and breach of covenant of good faith
and fair dealing, was dismissed.
5. The prayers made in the suit were primarily the following:-
"On the basis of the foregoing, the Plaintiff, therefore,
most respectfully prays that this Hon'ble Court may be
pleased to:
1. Hold the Defendants in breach of their
contractual duty to pay and Pass a Decree against the
Defendants to pay the Plaintiff the sum of ₹10,00,000.00
(Ten Lakhs only), which includes the interest on the
unpaid amount @18% per annum;
2. Award exemplary damages against the
Defendants for their outrageous acts in the interest of
justice, equity and as a way of example. The quantum of
damages may kindly be determined in proportion to the
Net Worth of the Defendants;
3. Report the outrageous acts of the Defendant
No.10 to the Banking Regulatory Authorities for
appropriate actions and sanctions;
4. Award costs in favor of the Plaintiff; and
5. Pass such further orders and / or grant any other
relief which this Hon'ble Court may deem just and
proper under the facts and circumstances of this case."
6. In effect, the suit of the appellant was primarily a suit for
recovery of ₹10 lakh with 18% interest and for award of damages, with
a further prayer for taking action against the defendant No.10. The
case of the appellant, as set up in the plaint was that the Respondent
No.l, (Sportsworld International Ltd,) is a powerhouse in Sports and
owns almost 400 retail stores in the U.K. and is present all over the
world, through its subsidiaries and agents. It owns a large number of
trademarks like "DUNLOP", "DUNLOP SLAGENZER", "D-
Signature Not Verified
Digitally Signed By:ASHEESH
Signing Date:22.09.2022
11:22:51
DEVICE", "CARLTON LONDON" and "PANTHER & DEVICE" in
India. The products are sold through licensees such as Spartan Sports
India and Mayor International Limited. The "Carlton" products are
handled in the Indian market through the Carlton Overseas Private
Limited, Gurgaon.
7. On January 18, 2002, the appellant was retained by the agents
of the Respondent No.l, to protect and promote the IP rights and
interests in India. It has been stated that on May 08, 2006, appellant
met respondent No.2 in Toronto, Canada and the Respondent No.2
instructed the appellant on behalf of Dunlop Slazenger Group to carry
out a plethora of work for Dunlop Slazenger Group Limited (DSGL)
and asked the appellant to undertake certain task for Respondent No. 3
(Integrated Brand Management Ltd (IBML) on behalf of Dunlop
Slazenger Group Limited.
8. It was stated that appellant was instructed by Respondent No. 2
to file 31 Notices of Opposition against India Tyre & Rubber Company
(India) Limited and the deadline for filing the same was on June 07,
2006. The governmental filing fees alone was close to USD 2,000.00/-,
the appellant asked for payment of at least the costs for filing.
9. That on June 06, 2006, the respondent terminated appellant's
retainer-ship from filing the Notices of Opposition. The appellant's
claim was against Respondent Nos. 1 to 4. According to him, their
acts have caused the appellant loss of Professional Fees and immense
harassment, defamation and humiliation.
10. It was stated, the appellant came to know that the 31 Notices of
Opposition were filed by erstwhile Defendant No. 7 before the
deadline, which was simply impossible to file, in a day after they were
Signature Not Verified
Digitally Signed By:ASHEESH
Signing Date:22.09.2022
11:22:51
hired unless they had been working illegally in parallel, which is in
violation of Rule 39 of the Bar Council of India Rules.
11. It was the case of the appellant that the appellant had raised
invoice dated June 07, 2006 for USD 11,625/- for drafting 31 Notices
of Opposition, which were ready to be filed but the appellant's services
were terminated before the deadline. It was also the case of the
appellant that the invoice was sent by the appellant to the respondent
No.6 but the respondent No.6 has not paid the said invoice. I may state
here, the appellant had made defendants 7 to 12 as parties, but they
were deleted as parties vide Order dated October 01, 2007 passed by
this Court, before the suit was transferred to the District Court.
12. The respondents herein had filed a written statement wherein
they have set up a case that the suit filed by the appellant is liable to be
dismissed as he has not approached the Court with clean hands. It was
also stated that the suit regarding respondent Nos. 1, 2, 4 and 5 need to
be rejected as there is no privity of contract between the appellant and
the said respondents. It was stated that the respondent No.1 had never
instructed the appellant to do any work. Even otherwise, the dispute in
question has been amicably settled between the appellant and the
respondents. It is stated that the appellant had received an amount of
₹8,37,133.30/- and pursuant thereto, he had returned the files, which
fact has been concealed from the Court. The respondents relied upon a
communication dated October 06, 2006 of the appellant whereby he
has returned all the files (total 73 files). It was also represented by the
respondents that though the appellant has returned all the files but he
has not handed over the Original Certificate of registration.
13. It was stated by the respondents that there is no breach of
Signature Not Verified
Digitally Signed By:ASHEESH
Signing Date:22.09.2022
11:22:51
contract between the appellant and respondent No.1 and he has failed
to make any such averment. It was stated that the appellant has failed
to file the books of account evidencing any amount payable to the
appellant by the respondent No.1. It was reiterated that the amount of
USD 18,290/- i.e. ₹8,37,133.30/- was made to the appellant towards
full and final settlement of all the claims of the appellant. It was
further stated that there was a deadline to file the objections on June
07, 2006 but the appellant refused to undertake the work without being
given advance as costs and in these circumstances, the respondent No.3
instructed defendant No.7 (since deleted) on June 05, 2006 to
undertake the professional work concerned before the deadline of June
07, 2007 as defendant No.7 required no advance costs for undertaking
the professional work and furthermore, the defendant No.7 agreed to
provide draft of Notices of Opposition for review and approval of
respondent No.6 before they were filed.
14. Replication to the written statement was filed by the appellant.
On the basis of the pleadings, this Court (before transfer) had framed
the following issues:-
"1. Whether defendants 1 to 6 failed to clear the
professional fees and expenses of the plaintiff? OPP.
2. Whether the plaintiff is entitled to a sum of Rs.10
Lakhs or another amount on account of fees and
expenses? OPP.
3. Whether the plaintiff is entitled to exemplary
damages for outrageous acts by the defendant of
Rs.10,05,000.00/-? OPP.
4. Whether the plaintiff is entitled to interest? If so,
on what amount at what rate and for which period?
OPP.
5. Whether there is no privity of contract between
the plaintiff and defendants 1 to 5 ? Onus on the parties.
Signature Not Verified
Digitally Signed By:ASHEESH
Signing Date:22.09.2022
11:22:51
6. Relief."
15. Insofar as issue Nos. 1, 2 and 3 are concerned, the same were
considered by the Trial Court together and decided against the
appellant. The Trial Court on the aforesaid issues, was of the
following conclusion:-
(i) The appellant has not filed any books of accounts
evidencing any amount payable to the appellant by the
respondent No.1.
(ii) In the cross-examination, the appellant has admitted the
fact that he has not filed invoice on record, which is the
subject matter of his claim in the suit.
(iii) The appellant has stated that he has addressed
communications to the respondents refuting that the amount
of USD 18290 is not the correct amount. He is unable to find
out any such communication from the Court record.
(iv) Even on the payment of interest, the appellant could not
show any document issued by the respondents agreeing to pay
interest on the amount of the invoice.
(v) Copy of the notices and reports are not part of the plaint.
16. The Trial Court was also of the view that Section 106 and
l14(g) of the Indian Evidence Act, 1872 stipulates, the burden of
proving a fact is on the person, who especially is within the knowledge
of proving a fact. The appellant had withheld the details of the invoice
for recovery of amount for which he had filed the suit. Therefore,
presumption was drawn against the appellant that he deliberately
withheld the details at his own peril. Further, no evidence of dues
Signature Not Verified
Digitally Signed By:ASHEESH
Signing Date:22.09.2022
11:22:51
including books of accounts, ledger balance or statement of any
account which respondents ever maintained with the appellant is filed
by the appellant evidencing any dues or any balance. The Trial Court
was also of the view, during cross-examination, it was put to the
appellant that he never demanded any amount from the respondents
other than the invoices amounting to USD 18,290/. In answer to this,
the appellant relied upon Exhibit P-4 / D7 - D9. Perusal of the same
would show acknowledgment of the payment received by the appellant
which is equivalent of USD 18,290/- that is ₹8,37,133.30/- but no
mention is made of any amount due or unpaid.
17. With regard to damages, the Court held that it is a settled law,
in a suit for damages for defamation, the appellant is required to prove
that he is the person defamed by the defamatory words or that the
imputation was directed against him. For proving the allegations of
alleged loss caused due to defamation, neither any detail nor document
has been filed by appellant. The appellant has not produced any
witness in support of his allegations of defamation.
18. Similarly, insofar as issue No.4 of interest is concerned, the
Trial Court stated that in view of the finding on issue Nos. 1, 2 and 3,
the issue of interest is also to be decided against the appellant and
actually did so.
19. On the issue No.5 with regard to privity of contract, the Trial
Court was of the view that the respondent Nos.1 to 5 may have
connection with respondent No.6 but that cannot be termed as privity
of contract with the appellant as those respondents were either the
Directors or managing the accounts and cannot be personally liable to
the appellant.
Signature Not Verified
Digitally Signed By:ASHEESH
Signing Date:22.09.2022
11:22:51
SUBMISSIONS:-
20. Dr. Amitabha Sen, appellant, appeared in person along with
counsels. He stated that the respondents had instructed the appellant to
file 31 Notices of Opposition before the Registrar of Trademark and it
is admitted by respondents' Nos. 1 to 4. He also submitted that the
appeal is filed as the respondent Nos. 1 to 4 failed to pay the invoice
dated June 07, 2006 for USD 11,625/- for drafting the 31 Notices of
Opposition which were ready to be filed but the respondents
wrongfully terminated appellant's services a day before the deadline.
He has also stated that the invoice dated June 07, 2006 for USD
11295/-, was sent by the appellant to respondent No. 6. He stated, the
respondents have also admitted unequivocally that appellant's invoice
dated June 07, 2006, was not paid.
21. On June 02, 2006, Peter Barnes (respondent No.4, since
expired) through e-mail had communicated to the appellant that the
payment of the outstanding invoices will take up to 90 days from
receipt of the invoices and if the appellant has a problem in continuing
the work of the clients, .i.e. respondents No.1 to 4, then the respondent
No. 6 is left with no alternative but to remove matters from appellants
office and to place the business in other hands.
22. He stated that respondent No.2 through email dated June 05,
2006, to the appellant instructed him to file the oppositions without any
delay to which he responded that he be paid an advance of USD5000/-.
This resulted in defendant No.9 calling him and asking to get the files
transferred to defendant No.7 for filing the notices. He stated, he
having raised the invoice with regard to thirty one notices, the
respondents were required to pay it.
Signature Not Verified
Digitally Signed By:ASHEESH
Signing Date:22.09.2022
11:22:51
23. He has stated that an advocate must be paid by his client for
the work he has done even if the client substitutes the advocate. Mr.
Sen has relied upon the judgments in the case of Ram Babu Sharma
Vs. State of Madhya Pradesh AIR 1989 MP 261 & The Punjab And
Haryana High Court Bar Association and another v. Chandigarh
Administration and others, AIR 1987 Punjab And Haryana 238.
24. He argued that the respondents have illegally extorted 20%
discount amounting to USD 1,995/- from the previous invoices. He
also stated that the respondents after many more phone calls and e-
mails from the appellant had remitted the amount via wire transfer to
the appellant's bank account.
25. He also argued that the respondents have not filed any
document to show that the discount was not extorted under threat. He
contended that the respondents have failed to discharge the onus, as
they have not adduced any evidence to prove their claim under section
103 of the Evidence Act.
26. Dr. Sen stated that the inordinate delay in payments led to
ante litem interest amounting to USD 3,395/-, which is calculated as
follows:
USD 9.975.00 x 0.18 x 7/12 = USD (Invoice
1,047.37 dated
5 23.1.2005)
USD 7,450.00 x 0.18 x 13.2/12 = USD (Invoice
1,475.75
dated
29.8.2005)
USD 11,625.00 0.18 5/12 USD (Invoice
871.875 dated
7.6.2006)
TOTAL ANTE LITEM INTEREST = USD
3,395.00
Signature Not Verified
Digitally Signed By:ASHEESH
Signing Date:22.09.2022
11:22:51
27. He also stated that the appellant is entitled to the sum of USD
17,015/- which is the total of USD 11,625/-, USD 1,995/- and USD
3,395/-, the amount comes to ₹12, 14,871.00 /- @ ₹.71.40 per
USD1.00/-.
28. He stated that the appellant is entitled to exemplary damages
for outrageous acts of the respondents quantified as ₹10,05,000/-. The
facts as averred show, the appellant has made out a case for exemplary
damages because of the reprehensible conduct of the respondents who
seem to have willfully entered into a series of acts of refusing to pay
without any basis, denigration, harassment, conspiracy, wrongful
discharge, defamation of the appellant and pressurizing the appellant to
pay huge cost from his own pocket, which is in direct violation of Rule
32 of the Bar Council of India Rules and engaging another counsel
without first obtaining the permission or consent of the appellant or the
Court is in violation of Rule 39 of the Bar Council of India Rules.
29. The appellant stated that the respondents kept appellant
working on the notices while directing the erstwhile Pro forma
Defendant Nos. 7 and 8 to simultaneously prepare the said Notices of
Opposition with a clear intention of terminating the services of the
appellant on the last day.
30. Dr. Sen relied upon the following cases on the point that a
lawyer's reputation is the foundation of his livelihood and thus to be
treated with utmost dignity.
I. Mr. Parshuram Babaram Sawant v. Times Global
Broadcasting Co. Ltd. and others, Special Civil Suit No.
1984/2008 Pune,
II. Times Global Broadcasting Co. Ltd. v. Parshuram
Signature Not Verified
Digitally Signed By:ASHEESH
Signing Date:22.09.2022
11:22:51
Babaram Sawant, (2014) 1 SCC 703.,
III. Bala Ram v. Sukh Sampat Lai and others, AIR 1975 Raj.
40.,
IV. The Punjab And Haryana High Court Bar Association
and another v. Chandigarh Administration and others,
AIR 1987 Punjab And Haiyana 238.,
V. Saldiaram Narayan Kherdekar v. City of Nagpur
Corporation and others, AIR 1964 Bom. 2005.
VI. State of Bihar v Lai Krishna Advani and Ors.. (2003) 8
Supreme Court Cases, 361.
VII. Smt.Kiran Bedi v The Committee of Enquiry AIR
1989Supreme Court 714.
31. Dr. Sen has relied upon the following cases for the grant of
exemplary damages for the reprehensible conduct of the respondents;
Common Cause, A Registered Society Vs. Union of India, 1999 AIR
(SC) 2979, Organo Chemical Industries & Anr vs. Union of India &
Ors., 1979 AIR 1803 SC, Reckitt Benckiser (India) Ltd Vs.
Hindustan Lever Limited, 2008 (38) PTC 139 (Del). He has also
relied upon the following judgments with regard to respondents
illegally withholding payments of appellant after instructing the
Advocate; 1. Ghaziabad development Authority Vs. Balbir Singh
(2004) 11 CPJ 12 SC. 2. M/S. Peacock Plywood Pvt. Ltd vs The
Oriental Insurance Co. Ltd (2006) 14 SCALE 300 3. Swaran Talwar
& others v. M/s Unitech Limited, Consumer Case No. 347 of 2014 4.
Lohmann Rausher Gmbh vs Medisphere Marketing Pvt. Ltd., 117
(2004) DLT 95 5. Parasurama Vaidyanathan vs State Of Tamil
Nadu, W.P No. 6469 of 2005.
Signature Not Verified
Digitally Signed By:ASHEESH
Signing Date:22.09.2022
11:22:51
32. Dr. Sen has also stated that though respondent Nos.1 to 6 only
filed their written statement together with the documents but have
failed to lead any evidence through witnesses. In the absence of the
same, none of the statements nor the documents filed by respondents'
No.1 to 6 should be considered. He seeks the prayer as made in the
appeal/suit.
33. Dr. Lalit Bhasin learned Counsel for the respondents' justifies
the impugned judgment. He states, the appeal is wholly misconceived,
frivolous and not maintainable.
34. He stated that the Trial Court was of the view that the appellant
did not file any books of account evidencing any amount payable to the
appellant by the respondents. He also stated, it was admitted by the
appellant during his cross examination which is reproduced as under
that, he has not filed the invoice on the basis of which the claim has
been made.
"Q. Can you show from the record the invoices which
are your subject matter of your claim in the suit?
Ans. I have not filed the invoices on record which are
subject matter of my claim in the suit. (Vol. 1 have
prayed for the leave of the court to file the same in
camera).
Q. (Please see the document being email dated
27.07.2006filed by you on record). Can you show any
letter addressed by you in response to this email refuting
that the amount of US dollars 18,290/- was not the
correct amount ?
Ans Not one but many, but not on record.
Q Please see the records and point out which
communication are you referring to ?
A.I am unable to find any such communication from the
court record.
Q. Can you show from the record any document issued
by any of the respondents agreeing to pay interest on the
Signature Not Verified
Digitally Signed By:ASHEESH
Signing Date:22.09.2022
11:22:51
amounts of your invoices ?
A.As far as I remember, the question never arose.
Q.Can you show from the record any document whereby
you furnished copy of the notices and reports were
requisitioned by communication dated 16.12.2005.
A. Copies of notices and reports are not part of die
plaint....
(underline supplied)"
35. He stated that the presumption under section 106 and 114 (g)
of the Indian Evidence Act of 1872, is liable to be drawn against the
appellant as he has deliberately withheld such details at his own peril
and presumption is to be drawn against the appellant that the books of
accounts, ledger account, tax returns, if produced would be
unfavorable to the plaintiff who has withheld it.
36. Furthermore, he stated, during the cross examination, it was
put to the appellant that after October 06, 2006 when he received the
payment of ₹ 8,37,132.30 equivalent to USD 18,290.00 @ ₹45.77, he
never demanded any amount from the respondents. He also submitted
that the appellant chose not to file the alleged invoice dated June 07,
2006 along with the suit filed by him and as such, the appellant has
failed to prove his claim. He contended that, it was not the case of the
appellant that the invoice is not available with him. It was available
with him but he deliberately chose not to produce the same.
Furthermore, he submitted that there was no fee schedule or agreement
or contract for payment of alleged invoice dated June 07, 2006.
37. He submitted that the alleged invoice relating to work which
was never undertaken by the appellant or if done, was done, without
instructions and was never forwarded to the respondents for settlement.
It was also submitted that, in the absence of details, having been
Signature Not Verified
Digitally Signed By:ASHEESH
Signing Date:22.09.2022
11:22:51
withheld and not provided by the appellant, one could not go into the
issue of the amount of fees charged by the appellant.
38. He also stated that the above facts were specifically admitted
by the appellant during his cross-examination by drawing my attention
to relevant questions, which are reproduced as under:
"Q. As a professional do you maintain books of
accounts?
Ans. Yes, We have an accountant and auditor to
maintain the account and record.
Q. 1 put up it to you that you have deliberately not filed
the extract of your audited accounts since the same does
not show any outstanding from any of therespondents?
Ans. I do not know as the question pertains to
accounting'"
39. He submitted that no one ever authorized the appellant to file
the oppositions. He stated, there is an admission of the appellant in
paragraph 23 of the plaint that the 31 Notices of Opposition were never
filed but the invoice was raised for it. He submitted that during the
cross examination dated July 29, 2009 the following questions were
put to the Appellant;
"Q. Is it correct that defendant no. 4 specifically wrote
to you that you are undertaking certain work without
advice and instructions and without obtaining any
authority?
Ans. Defendant no.4 made some wrong statements"
40. He submitted that during the cross-examination, it was
admitted by the appellant that he never placed any document to show
his authority to undertake work and he undertook the work of his own
volition and without the advice or instructions or proper authority from
the respondents. He submitted that the judgment was correct in
Signature Not Verified
Digitally Signed By:ASHEESH
Signing Date:22.09.2022
11:22:51
dismissing the suit filed by the appellant and submitted that the client
has a choice to appoint his attorney/advocate/counsel. In support of his
arguments, he has relied upon the judgment in the case of Dharamdas
Kachudas Vs. Kachiidas Makanji AIR1933 Bom 182, wherein the
Court held that the attorney could not insist on being employed by the
client even after the client did not desire to employ him as his attorney.
It is not open to an attorney to say that his client shall continue to
employ him in the suit or proceedings until all the costs due to him are
paid.
41. He has also relied upon judgments of the Supreme Court in the
cases of R.D. Saxena v. Balram Prasad Sharma, (2000) 1 SCC 264
and New India Assurance Co. Ltd v. A.K. Saxena, (2004) 1 SCC 117;
wherein it is held that, the right of a client to appoint any Advocate of
his choice and the freedom to change his Advocate whenever he feels
like, is absolute.
42. He stated that the appellant has also concealed material facts of
settlement of all his invoices, as such no cause of action had accrued
for filing the suit.
43. He submitted that during the cross examination on August 19,
2009, the appellant admitted that he had received a cheque of ₹
8,37,133.30/-. The said amount was as per the then prevailing rates
equivalent to USD 18,290/-, which was the full and final amount and
the same is evident from the document filed by the appellant along
with the suit. He also submitted that the appellant has admitted that no
amount whatsoever is due / unpaid with respect to the appellant's
invoice as the appellant took no steps to place the necessary document
to support his claim, on record.
Signature Not Verified
Digitally Signed By:ASHEESH
Signing Date:22.09.2022
11:22:51
44. Furthermore, he also submitted that the letter dated October
06, 2006 (Exhibit P4 / D7-D9), issued by the appellant on his
letterhead addressed to M/s Anand & Anand Law Firm wherein the
Appellant has stated, as under:
"As advised in our letter elated September 28,2006 and
inconsideration of the payment for Rs. 8,37,133.30
equivalent to USD 18,290.00 at Rs. 45.77 per USS, we
are handins over all the dues, total 73 notices, as per the
list enclosed, which are paid for by the above mentioned
payment. The list also includes files, which we were
handle is for Dunlop before Barlin Associates started
instructions us for Dunlop."
45. He has also stated that the demand made in the suit was
clearly an afterthought and barred by waiver and estoppel.
46. He stated that no amount was due to be paid to the appellant by
the respondents as the appellant had admitted that the full and final
payment of all the dues had been made and that is the reason for the
appellant to have never raised the demand through a Legal notice or a
Letter or an E-mail. He has also reproduced the questions from the
cross examination of the appellant, asunder;-
"Q. When did you receive the cheque of Rs.8,37,133.30
?
Ans. Sometime in first week of October 2006.
Q. Can you show from the record any written
communication addressed by you to any of the
respondents between 06.10.2006 and filings of the
present suit whereby you have specifically refuted or
took any objection that the amount of US $18,290 was
not received: by you in full and final settlement of your
invoices ?
Ans I do not remember but I am pretty sure that I did
Q. Please see the records and point out which
communication are you referring to ?
Signature Not Verified
Digitally Signed By:ASHEESH
Signing Date:22.09.2022
11:22:51
Ans I am unable to find any such communication from
the court record.
Q. Can you show from the record any written
communication addressed by you to any of the
respondents between 06.10.2006 and the filing of the
present suit whereby you have made a demand of any
amount about the cheque amount received by you ?
Ans. The letter is on record which is Ex P.4/D 7 to
D/9.0. I put it to you please see the letter Ex P.4/D 7 to
D/9 dated06.10.2006, you made no further demand ?
Ans It is not correct interpretation of the said letter.
Q. Was any legal notice sent by you after 06.10.2006 to
any of the respondents preceding filing of the present
suit calling upon any of the respondents to make
payments as claimed by you in the present suit ?
Ans. Legal notice is no pre requisite to filing a law suit."
47. He stated that the Trial Court has correctly held that it is well
settled law that in a suit for damages for defamation the appellant was
required to prove that he is the particular person defamed by the
defamatory words or that the imputation was directed against him. No
details have been given in the plaint nor any document was filed by
appellant. The appellant has also not produced any witness in support
to substantiate the said allegations.
48. Furthermore, he submitted that M/s Barlin Associates is now
dissolved and has also been removed from the array of parties. It was
M/s Barlin Associates which was dealing with the appellant and the
other respondents had no privity of contract with the appellant.
49. He submitted that a company incorporated is a juristic entity
and the decisions of the company are taken by the Board of Directors
of a Company, that is the company acts through its Board of Directors.
An individual Director cannot don the mantle of the company by
acting on its behalf, unless he is so authorized to act by a special
Signature Not Verified
Digitally Signed By:ASHEESH
Signing Date:22.09.2022
11:22:51
resolution passed by the Board or unless the Articles of Association so
warrant. It is equally well settled that a Director of a Company though
he owes a fiduciary duty to the Company, he owes no contractual duty
qua third parties. He has relied on the case of Salomon vs. Salomon &
Co. Ltd. 1897 AC 22, Lord Macnaghten, observed as under: -
"the company is at law a different person altogether
from the subscribers to the memorandum; and, though it
may be that after incorporation the business is precisely
the same as it was before, the same persons are
managers, and the same hands receive the profits, the
company is not in law the agent of the subscribers or
trustee for them. Nor are the subscribers as members
liable, in any shape or form, except to the extent and in
the manner provided by that Act."
He seeks the dismissal of the appeal.
CONCLUSION:-
50. Having heard the appellant / his counsels and learned counsel
for the respondents, the only issue which arises for consideration is
whether the appellant is entitled to the amount of USD17,015/-, the
break-up of which is USD 11,625/-, USD 1,995/- and USD 3,395/-. It
may be clarified here, the claim of USD 1,995/- is primarily on the
ground that the appellant was paid less against the invoices raised by
him for the 42 notices earlier issued by him and USD 3,395/- is the
interest, which is payable by the respondents on both the amounts.
According to the appellant, the equivalent of the aforesaid amount
shall be ₹10 lakhs. It is in this background that he has claimed an
amount of ₹ 10 lakhs as prayer No.1. There was a further claim of
₹10,05,000/- as damages on the ground of defamation.
51. As stated above, the claim of the appellant, more specifically
with regard to USD 11,625/- was for 31 Notices of Opposition, which
Signature Not Verified
Digitally Signed By:ASHEESH
Signing Date:22.09.2022
11:22:51
were to be filed before the Registrar of Trademark.
52. The initial invoices were for USD 18290/- in respect of 42
Notices of Opposition. The invoices are of different dates being June
23, 2004, August 19, 2005, December 30, 2005, April 10, 2006, April
27, 2006 and April 28, 2006. With regard to 31 Notices of Opposition,
it is the case of the appellant that he has raised invoice for USD
11625/- on defendant No.6, on June 7, 2006. From the record it is seen
that the initial invoices for USD 18290/- were also not paid to the
appellant till that date. In the meantime, necessity was felt by the
respondents for issuance of 31 Notices of Opposition as the last date of
June 07, 2006 was fast approaching. As seen from communication
dated June 05, 2006 (Annexure V as filed by the appellant), that the
appellant insisted upon transfer of USD 5000/-, to his bank account to
cover, out of pocket expenses because of the non-payment of the
invoices of the first lot of 42 Notices of Opposition.
53. In the e-mail dated June 05, 2006, the appellant had made it
clear that he is not going to file the notices of opposition unless the
funds are wired transferred in his account on the same day.
I may at this stage also refer to a communication dated June
02, 2006 (Exhibit P-2/D1-D6) from M/s Barlin Associate, respondent
No.6 through Peter Barnes (respondent No.4, since expired), wherein it
is stated that if the appellant has a problem in continuing the work then
the respondent No.6 has no other alternative but to remove matters
from the appellant's office and place the business in other hand.
Accordingly, the respondent No.3 instructed the defendant No.7 on
June 05, 2006 to undertake the professional work before the deadline
of June 07, 2007. The conceded case of the appellant in the plaint is
Signature Not Verified
Digitally Signed By:ASHEESH
Signing Date:22.09.2022
11:22:51
that he has received a call on June 5, 2006, that is a day before the last
date of deadline, from the defendant No.7 requesting the transfer of
files handled by the appellant. It is clear that the work of filing the 31
Notices of Opposition was taken away from the appellant. So, there
was no reason for the appellant to prepare/file those Notices of
Opposition. In fact, it is not the case of the appellant that he has filed
the 31 Notices of Opposition with Registrar of Trademark. Despite
that the invoice for 31 Notice of Operation was raised by the appellant
on June 07, 2006.
54. One aspect which is relevant is that the earlier invoices for
USD18290/- were paid to the appellant on September 28, 2006
(Exhibit P-6/D7-D9). Pursuant thereto the appellant on October 06,
2006 (Exhibit P-4/D7-D9) also returned all the 73 files i.e, 42 and 31
for which notices were sent / to be sent. It has come to record that the
appellant had never disputed, in his communication dated October 06,
2006, the amount of USD 18290 equivalent to ₹8,37,133.30/- till the
filing of the suit on October 31, 2006., I reproduce the contents of the
said letter under:
"As advised in our letter dated September 28, 2006 and
in consideration of the payment for Rs.8,37,133.30
equivalent to US$18,290.00 at Rs.45.77 per US$, we are
handing over all the files, total 73 files, as per the list
enclosed, which are paid for by the above mentioned
payment. The list also includes files, which we were
handling for Dunlop before Barlin Associates started
instructing us for Dunlop."
55. I must state here that, the Trial Court's finding is also that the
appellant has not filed the invoice of June 07, 2006 which is the subject
matter of the claim. It has noted the statement of the appellant during
Signature Not Verified
Digitally Signed By:ASHEESH
Signing Date:22.09.2022
11:22:51
cross-examination, that he has not filed the invoice on record. This
conclusion of the Trial Court has not been contested. The reason why
the appellant has not filed the invoice can be seen from paragraph 23
of the plaint wherein, the appellant has stated as under:-
"......The June 7 invoice of the Plaintiff contains
valuable trade secret and the Plaintiff craves leave of
the Hon'ble Court to produce a copy of the invoice in
chambers in camera only."
56. Suffice to state, there is nothing on record to show the plaintiff
had produced the said invoice in the Chambers. I must also state that
the respondents in their written statement has admitted of having
received the invoice of June 07, 2006 as is seen from reply to
paragraph 23 of the plaint wherein it is stated as under:-
"It is admitted that an invoice dated 7th June, 2006 was
sent by the Plaintiff to Defendant No.6. The said invoice
allegedly related to professional work undertaken by the
Plaintiff in preparing Notices of Opposition which were
to be filed on 7th June, 2006 but which Defendant No.6
advised Plaintiff on 5th June, 2006 that it was instructing
Defendant No.7 instead to undertake the professional
work concerned."
57. Though, the respondents also, have not filed the invoice on
record but their stand has been that the appellant has been told not to
undertake the professional work of preparing the Notices of Opposition
as it had instructed defendant no.7 to carry out the work. It was also
the stand of the respondents that, the appellant had not sent the draft
notices to them. According to them, if the appellant had prepared the
draft notices before June 05, 2006, there is no reason why they were
never sent for approval. In other words, as the appellant neither
prepared the draft of Notices of Opposition, nor filed it, there was no
Signature Not Verified
Digitally Signed By:ASHEESH
Signing Date:22.09.2022
11:22:51
reason for them to pay for the invoice raised on June 07, 2006. This
reasoning of the respondents is justified. That apart, in the absence of
invoice being on record, it cannot be said that whether the same was
raised for preparing the Notices of Opposition or for filing the same. It
can be argued that the invoice was raised by the appellant for incurring
expenses for preparing the Notices of Opposition. Such a stand could
have been justified the invoice provided the appellant had sent the draft
notices and raised invoice for the purpose of preparing them. It is not
such a case, nor can it be ascertained, in the absence of same being on
record / produced.
58. Hence, I am of the view, the appellant is not entitled to the
amount of USD11290, as claimed by him in the suit and it was rightly
rejected by the Trial Court. Even the claim of USD 1995 was rightly
not granted by the Trial Court. The same was claimed by the appellant
as the less amount, paid by the respondents against the invoices for
USD 18290. Suffice to state, I have already reproduced the contents of
the letter dated October 06, 2006 which reveal that the appellant had
not contested the amount of ₹8,37,133.30/- (equivalent in Indian
currency), received by him resulting in the handing over of all the 73
files to the respondents. So it follows, the deduction having not been
contested by the appellant before returning the files, the rejection of
this claim is also justified.
59. Even the plea of damages on the ground of defamation, which
is rejected by the Trial Court, has been made by the appellant on the
basis of the following averments in the plaint:-
"59. The Defendants did not pay the fees for services
already rendered by the Plaintiff on one ground or another.
The Defendants kept on continuously defaming the Plaintiff
Signature Not Verified
Digitally Signed By:ASHEESH
Signing Date:22.09.2022
11:22:51
claiming that they could not trust the Plaintiff and could not
pay unless all the files were transferred to their new agent in
advance. The Plaintiff tried to point out that the transfer of
the files had nothing to do with the payment of Fees for
services already rendered and earned. However, no
reasoning or logic seemed to convince the Defendants who
were determined not to release payment even after
acknowledging in writing, that the funds will be released
shortly.
60. While the payment of the Fees for services rendered
had or have nothing to do with the transfer of the files to the
newly appointed lawyer, on the basis of this non-issue, the
Defendants held up payment to the Plaintiff. Allegedly,
according to the Defendants, the Plaintiff was so unreliable,
untrustworthy and evil that the Defendants had no other
choice but to take help from another India Trade Marks Agent
to make the payment which was already overdue for over a
year. In the process, the Defendants made it a point to paint
the grimmest picture of the Plaintiff and defame, denigrate
and dehumanize him beyond repair. Such nefarious acts of
the Defendants must not go unpunished under the Law."
60. In support of his claim for damages, the appellant had relied
upon the letter dated September 27, 2006(Exhibit P-8/D7-D9), which
reads as under:
Dear Sir / Madam,
Re: Account# 0082510001
This is with reference to your recent contact with us.
We confirm that an amount of Rs.6,27,849.98
(Equivalent to USD13,717.50 @ 45.77) has been
credited to your above-mentioned account on September
22, 2006. The same was received from Bo Barlin
Associates.
Further, we confirm that an amount of USD 4,572.50 @
45.77 (25% of the above said remittance) has been
credited to our EEFC account #0300019005 on
September 25, 2006.
Signature Not Verified
Digitally Signed By:ASHEESH
Signing Date:22.09.2022
11:22:51
Should you require any further assistance, please
contact your Relationship Manager.
We assure you of our best attention at all times.
T A Sampathkumar
Manager-Customer Care"
"This is in reference to our telecom today. Pls note that
this Money transfer is for Amitabha Sen & co which we
would remit simultaneously with the transfer of files of
Barlin Associates. In the meantime pls. sent us the list of
Matters."
61. From the perusal of the contents of the letter, the same are not
defamatory. The said letter was issued by the bank with regard to
certain money getting credited in the account of the addressee i.e., the
defendant No.7. The portion at the bottom is a narration of fact that
the money shall be simultaneously remitted with the transfer of files.
The appellant has not been shown in poor light resulting in loss of his
reputation.
62. The reliance placed by the appellant on the following
judgments with regard to his claim of damages because of defamation
has no applicability in the facts of this case.
i. Mr. Parshuram Babaram Sawant (supra); the term
person includes not only the physical body and
members, but also every bodily sense and personal
attribute among which is the reputation a man has
acquired.
ii. Bala Ram (supra); When on the face of them, the
Defendant clearly must have injured the Plaintiffs
reputation, they are said to be actionable per se; and the
Plaintiff may get a verdict for a substantial amount
without giving any evidence of actual pecuniary loss.
iii. The Punjab And Haryana High Court Bar Association
Signature Not Verified
Digitally Signed By:ASHEESH
Signing Date:22.09.2022
11:22:51
and another (supra;. The success of a lawyer is
dependent on his personal skill, intelligence, intellect,
competence, knowledge, efficiency and integrity. These
characteristics separate the legal profession from the
commercial activity, which is primarily dependent upon
the co-operation of labour and capital.
iv. Sakharam Narayan Kherdekar (supra); "The practice
of law is not a business open to all, but a personal right,
limited to a few persons of good moral character, with
special qualifications ascertained and certified after a
long course of study, both general and professional, and
a thorough examination by a State Board appointed for
that purpose. The right to practice law is in the nature of
a franchise from the State conferred only for merit...."
The relation of attorney and client is that of master and
servant in a limited and dignified sense, and it involves
the highest trust and confidence.
v. State of Bihar (supra); Right to reputation is a facet of
the right to life of a citizen under Article 21 of the
Constitution.
vi. Smt. Kiran Bedi (supra), Reputation is, therefore, a
personal right, and the right to reputation is put among
those absolute personal rights equal in dignity and
importance to security from violence as a part of the
rights of personal security, the preservation of every
person's good name from the vile arts of detraction is
justly included.
63. So, the claim of the appellant of damages is not justified. The
Trial Court has rightly rejected the same with the following findings,
with which I agree:-
"As regards damages are concerned it is well
settled law that in a suit for damages for defamation the
plaintiff is required to prove that he is the particular
person defamed by the defamatory words or that the
Signature Not Verified
Digitally Signed By:ASHEESH
Signing Date:22.09.2022
11:22:51
imputation was directed against him. For proving the
allegations of alleged loss caused due to defamation,
neither any detail or document has been filed by plaintiff
nor did the plaintiff produce any witness in his support
to substantiate the allegations of defamation."
64. That apart, Dr. Sen has also relied upon the following
judgments for the corresponding propositions;-
i. Common Cause, A Registered Society Vs. Union of
India AIR 1999 SC 2979; Organo Chemicals Industries
& Anr Vs. Union of India & Ors. AIR 1979 SC 1803 &
Reckitt benckiser(India) Ltd vs. Hindustan Lever
Limited 2008(38) PTC(Del) ; for exemplary damages
awarded for the reprehensible conduct of the Defendants.
ii. Ghaziabad Development Authority Vs.Balbir Singh
(2004) 5 SCC 65; for compensation can be given in the
form of damages;
iii. M/S. Peacock Plywood Pvt. Ltd vs The Oriental
Insurance Co. Ltd. (2006) 12 SCC 673; Swaran Tahvar
& others v. M/s Unitech Limited Consumer Case
No.347 of 2014;Lohmann Rausher Gmbh vs
Medisphere Marketing Pvt. Ltd. 117(2004) DLT 95 ;
Parasurama Vaidyanathan vs State of Tamil Nadu
W.PNo 6469 of 2005; for 18% simple interest given.
65. The judgments, as relied upon by the appellant in support of
his claim, shall not be applicable to the facts of this case. In view of
my conclusion above. I do not see any merit in this appeal. The same
is dismissed. No costs.
V. KAMESWAR RAO, J
SEPTEMBER 21, 2022/ak
Signature Not Verified
Digitally Signed By:ASHEESH
Signing Date:22.09.2022
11:22:51
