Sri. K.R. Adhikari vs M/S Sulfex Fibre Products
2022 Latest Caselaw 2999 Kant

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    IN THE HIGH COURT OF KARNATAKA AT BENGALURU


       DATED THIS THE 22ND DAY OF FEBRUARY, 2022

                         BEFORE

          THE HON'BLE MR.JUSTICE M.G.S.KAMAL

             R.S.A.NO.1293 OF 2011(MON)

BETWEEN:

SRI. K.R. ADHIKARI
S/O LATE K.L. ADHIKARI
AGED ABOUT 45 YEARS
PROP:M/S R.K. BED
EMPORIUM, VASUDEVA
ENCLAVE MAIDAN
4TH CROSS ROAD
MANGALORE.
                                      ... APPELLANT
(BY SRI. SACHIN B.S., ADVOCATE)

AND:

M/S SULFEX FIBRE PRODUCTS
D.NO.1/5/16/1094
SRI. NIDHI APARTMENT
URVA, CHILIMBI
MANGALORE - 575 001
REPRESENTED BY ITS
ACCOUNTS MANAGER AND
GPA HOLDER MR. HARIDAS.
                                    ... RESPONDENT

(NOTICE TO THE RESPONDENT H/S V/O DATED:27.01.22)

      THE REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 OF CPC AGAINST THE JUDGEMENT AND DECREE DATED
15.02.2011 PASSED IN R.A. NO. 62/2008 ON THE FILE OF THE I
ADDITIONAL DISTRICT JUDGE, DAKSHINA KANNADA, MANGALORE
PARTLY ALLOWING THE APPEAL AND SETTING ASIDE THE
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JUDGMENT    AND   DECREE    DATED:18.02.2008 PASSED IN
OS.NO.98/2004 ON THE FILE OF II ADDITIONAL CIVIL
JUDGE(JR.DN.), MANGALORE, D.K.

     THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:


                       JUDGMENT

Present appeal is filed by the appellant/defendant

aggrieved by the judgment and order dated 15.02.2011

passed in R.A.No.62/2008 on the file of the I Additional

District Judge, Dakshnina Kannada, Mangalore

(hereinafter referred to as the 'first appellate Court'), in

and by which, the first appellate Court while allowing the

appeal, set aside the judgment and decree dated

18.02.2008 passed in O.S.No.98/2004 on the file of II

Additional Civil Judge (Sr.Dn), Mangalore, Dakshina

Kannada, (hereinafter referred to as the 'trial Court') and

further decreed the suit in part holding that

respondent/plaintiff is entitled for decree of Rs.81,000/-

with interest @6% p.a. from the date of suit till the date

of realization and directed the appellant/defendant to

make payment within a period of three months from the

date of judgment and decree.

2. Parties are referred to by their ranking before

the trial Court.

3. The plaintiff/firm had filed a suit against the

defendant contending inter alia that it is carrying on the

business in manufacturing and dealing of Fiber products

having its factory at Kannur District, Kerala and sale

depots at various places, one of which was at Mangalore.

That the defendant had been employed as depot-in-

charge for Mangalore from July, 2003 to September,

2003. During the said period, defendant was entrusted

with depot for its day-to-day administration, sales

dealings, collection from the customers and all other

connected and incidental works thereto. Plaintiff/firm

used to keep signed blank cheques in the depot for the

purpose of urgent necessity with the knowledge of the

defendant and plaintiff had given definite instructions to

the defendant to use of blank cheques only in the case

of utmost urgency and solely for the purpose of plaintiff's

work and not otherwise. However, taking undue

advantage of the confidence and faith reposed in

defendant, he had illegally encashed the cheque for

Rs.81,000/- by misusing the said blank cheques. It is

further contended that defendant also indulged in

unauthorized invoicing thereby cheating the plaintiff/firm

of a sum of Rs.1,25,176/-. Thus, plaintiff/firm

constrained to file a suit for recovery of Rs.2,39,810/-.

4. Defendant filed written statement denying

that he was employed as depot-in-charge in Mangalore

branch also denied that he was entrusted for day-to-day

administration of the plaintiff's branch. He specifically

contended that he was appointed as a area sales

manager as per letter dated 19.07.1997 and was

promoted as a Regional Manager for Karnataka and Goa

w.e.f. 01.02.2003 and was entitled for 2% cash

incentives over and above sales of Rs.1,00,000/- apart

from basic salary. He contended that a sum of

Rs.81,000/- which he had encashed was at the

instructions of the plaintiff/firm towards his incentives.

He denied unauthorized and misutilization of

Rs.1,25,176/- as alleged by the plaintiff/firm.

5. The trial Court by its judgment and decree

dated 18.02.2008 dismissed the suit. Aggrieved by the

same, plaintiff/firm had filed regular appeal in

R.A.No.62/2008 before first appellate Court. The first

appellate Court by the aforesaid judgment, partly allowed

the suit directing the defendant to pay Rs.81,000/-.

Aggrieved by the same, defendant is before this court.

6. Sri. Sachin B.S, learned counsel for the

appellant/defendant reiterating the grounds urged in the

appeal memorandum submitted;

(a) that the encashment of sum of Rs.81,000/-

was at the instructions of the plaintiff/firm towards his

incentives which were due and payable by the

plaintiff/firm.

(b) drawing attention of the Court to the

document at Ex.D14 dated 11.07.2003 learned counsel

referred to paragraph 6, wherein the plaintiff/firm has

stated as under.

"Accounts Department has been instructed to settled your commission due upto 30th June 2003 in three installments"

(c) that relying upon the said letter, learned counsel

for the appellant/defendant submitted that said letter

constituted instructions enabling the appellant/defendant

to encash the said cheque.

(d) That suit was not maintainable as this firm was

represented by a power of attorney holder, who being an

incompetent witness could not have led evidence on

behalf of the plaintiff/firm.

Hence, he submits that these aspect of the matter

have not been taken into consideration by the first

appellate Court, giving raise to substantial question of

law requiring consideration.

7. Heard learned counsel for the

appellant/defendant. Perused the records.

8. It is not in dispute that the plaintiff/firm had

engaged the services of defendant to work as a area

manager. It is also not in dispute that plaintiff/firm had

handed over certain signed blank cheques with

defendant. It is also not in dispute that defendant had

encashed the said cheque. The only dispute is, whether

encashment was authorized or not?. The defendant

except para 6 of Ex.D14 has not produced any cogent

material evidence to justify his contentions of having

been authorized by the plaintiff to encash the cheques

and adjust the amount towards his incentives. The first

appellate Court taking into consideration of the contents

of Ex.D14 had rightly held that if plaintiff had not paid

the incentive commission, it is open to the defendant to

seek recovery dues if any as per law. However, it does

not allow the defendant to withdraw the amounts from

the cheque which was handed over for the purpose other

than one claimed by the defendant.

9. In that view of the matter, findings and

reasoning given by the first appellate Court does not

suffer from any infirmity. As regard maintainability of the

suit by the plaintiff/firm through its GPA holder and the

competency of the witness, no such plea is raised before

the courts below. In any case the Apex Court in the case

of PURUSHOTTAM UMEDBHAI & CO. vs. M/S.

MANILAL AND SONS reported in AIR 1961 SC 325

at paragraph 10 has held the firm can sign, verify,

present and file a suit through its power of attorney

holder. Since the claim is based on the documentary

evidence and in view of admission by the defendant

regarding encashing the cheques, no infirmity can be

found in this matter. As such, no substantial question of

law arise in the matter. Hence, appeal is dismissed.

Sd/-

JUDGE RU