M/S Geep Batteries Pvt Ltd vs Mr K D Muthappa
2023 Latest Caselaw 5823 Kant

                                    R.F.A No.2114/2012

                            1

       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 22ND DAY OF AUGUST 2023

                        PRESENT

        THE HON'BLE MR. JUSTICE P.S. DINESH KUMAR

                           AND
  THE HON'BLE MR. JUSTICE T.G. SHIVASHANKARE GOWDA
              R.F.A NO.2114 OF 2012 (MON)

BETWEEN:

M/S. GEEP BATTERIES PVT. LTD.,
A COMPANY INCORPORATED UNDER
THE COMPANIES ACT, 1956
HAVING ITS REGISTERED OFFICE
AT # 23/24, RAJDEEP SOCIETY
OPPOSITE I.T.O'S OFFICE NAUPADA
THANE WEST, MAHARASTRA-400 602
REP. BY ITS DIRECTOR MR. JOEB THANAWALA
                                          ... APPELLANT
(BY SHRI. J.N. AJAY, ADVOCATE)

AND:

MR. K.D. MUTHAPPA
S/O SRI. K.M. DEVAIAH
AGED ABOUT 42 YEARS
HAVING OFFICE AT NO.1
ANNAPURNA COMPLEX, 4TH MAIN
II CROSS, KALIDASA ROAD
V.V.MOHALLA, MYSORE-570 001             ...RESPONDENT

(BY SHRI. N. NARESH, ADVOCATE)

      THIS RFA IS FILED UNDER ORDER 41 RULE 1, R/W SEC
96 OF CPC, AGAINST THE JUDGEMENT AND DECREE
DATED 21.07.2012 PASSED IN O.S.NO.437/2010 ON THE FILE
OF IV ADDITIONAL SENIOR CIVIL JUDGE, MYSORE, DECREEING
THE SUIT FOR RECOVERY OF MONEY.

     THIS RFA, HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 15.06.2023 COMING ON FOR PRONOUNCEMENT
                                            R.F.A No.2114/2012

                                 2

OF JUDGMENT, THIS DAY, T.G. SHIVASHANKARE GOWDA J.,
PRONOUNCED THE FOLLOWING:-

                     JUDGMENT

In this appeal, the defendant has challenged the

judgment and decree dated 21.07.2012 passed in

O.S.No.437/2010 on the file of the IV Additional Senior

Civil Judge, Mysore (for brevity 'the Trial Court') in

decreeing the suit for a sum of Rs.16,75,000/-.

2. For the sake of convenience, parties shall be

referred as per their status before the Trial Court.

3. Brief facts of the case are, plaintiff is a Real

Estate Agent running his business in the name of

'Cauvery Estate'. The defendant is a Private Limited

Company having its registered office at Thane,

Maharashtra, owning factory situated at Mysore in plot

bearing Nos.120(P), 121 and 122(P) at Belagola

Industrial Area, Mysore. The plaintiff was acquainted

with one Mr.D.B.Prasanna Kumar, who was in-charge of

affairs of the defendant at Mysore. In the year 2009,

the Managing Director of the defendant Mr.Aziz Chil had R.F.A No.2114/2012

approached the plaintiff to render his services in

securing a prospective buyer for the industrial plot.

Mr.Deepak Bhat, the present Chairman of the defendant

also held discussion with plaintiff to secure the

prospective buyer. Based on such discussion, the

plaintiff has secured Mr.Deepak Abbhi and Mrs.Seema

K.Abbhi as the prospective buyers. With the aid and

liaison of plaintiff, sale was finalised for

Rs.16,75,00,000/- and an agreement was entered into

between them on 15.12.2009 and an advance sale

consideration of Rs.5 lakhs was paid. Prior to entering

into the agreement, the defendant was specifically

informed by the plaintiff that a sum equivalent to 1% of

the total sale consideration shall be his brokerage

charges and in this regard, a commission agreement

was executed between plaintiff and defendant on

17.11.2009. After execution of the sale deed, it was

informed that brokerage charges would be despatched

from the Head Office of the defendant, once Chairman

returned to Mumbai. Thereafter the plaintiff approached R.F.A No.2114/2012

the defendant over telephone and he was informed that

payment being under process. He was asked to send

the bill and on 05.04.2010, the plaintiff sent the same

through courier, but plaintiff did not receive his

brokerage charges as agreed. The defendant's officers

did not respond to his calls, so also the Chairman of the

defendant. Ultimately, the plaintiff approached

Mr.D.B.Prasanna Kumar at Mysore requesting him to

arrange for payment of his brokerage charges and in

this regard, several e-mails were also sent to the

defendant. On 26.04.2010, a legal notice was issued to

the defendant to clear the liability. On 21.05.2010,

defendant issued a reply stating that he might receive

brokerage charges from the purchaser of the property

and defendant was not liable to pay the brokerage.

Seeking recovery of Rs.18,00,875/-, the plaintiff has

filed the instant suit.

4. The defendant contested the suit by filing

written statement admitting interalia, the ownership of

the industrial plot and its intention to sell. It is R.F.A No.2114/2012

contended that the plaintiff had approached the

defendant representing that he would arrange for a

prospective buyer and receive brokerage from the buyer

of the property as per the prevailing trend at 1% of sale

consideration. The defendant has denied the execution

of any agreement on 17.11.2009 and refuted receipt of

any bill. Notice of the plaintiff was suitably replied, the

defendant is not liable to pay any brokerage charges,

and the suit is bad for non-joinder of buyer and sought

for dismissal of suit.

5. On the basis of the above pleadings, the Trial

Court has framed following issues:

1. Whether the plaintiff proves that he was rendered service to the defendant at the time of purchase the property by the defendant and defendant is agreed to pay 1% commission on the total value of the sale consideration?

2. Whether the defendant proves that the suit is liable to be dismissed on account of non-joinder of necessary parties?

R.F.A No.2114/2012

3. Whether the plaintiff is entitled for the relief as sought for?

4. What decree or order?

6. Before the Trial Court, on behalf of the plaintiff,

3 witnesses are examined as PWs-1 to 3 and 7

documents marked as Exs.P1 to P7. On behalf of the

defendant, the Power of Attorney holder of the

defendant Mr.Joeb Thanawala was examined as DW-1

and one document marked as Ex.D1.

7. The Trial Court has answered issue Nos.1 and 3

in the affirmative, issue No.2 in the negative and

decreed the suit for Rs.16,75,000/- without interest.

Aggrieved by the same, defendant has filed this appeal

on various grounds.

8. We have heard the arguments of Sri.Ajay J.N.,

learned Counsel for the appellant/defendant and

Sri.N.Naresh, learned Counsel for respondent/plaintiff.

R.F.A No.2114/2012

9. It is the contention of the learned Counsel for

the defendant that the entire suit is based on the

commission agreement dated 17.11.2009 which came

to be executed at Bangalore, hence, the suit ought to

have been filed in Bangalore and not at Mysore. The

burden of proving the agreement is on the plaintiff, but

the Trial Court has shifted the burden against the

defendant. Ex.P1 is a concocted document which came

into existence under suspicious circumstances and this

aspect has not been considered by the Trial Court. As

the buyer was already identified on 18.11.2009, there

was no question of plaintiff identifying a prospective

buyer. The plaintiff has not played any role in

identifying the buyer and he is not entitled for any

brokerage charges on the sale consideration. It is

further contended that the suit is hit by non-joinder of

buyer Mr.Deepak Abbhi from whom the plaintiff, if at all

to claim the brokerage charges.

9.1. To buttress his arguments, he has relied upon

the following judgments:

R.F.A No.2114/2012

(i) Tarak Nath Sha -vs- Bhutoria Bros. Pvt.Ltd. and Others - (2002) 5 SCC 15;

(ii) Arjun Panditrao Khotkar -vs- Kailash Kushanrao Gorantyal and others - (2020) 7 SCC 1;

(iii) Manish -vs- Smt.Shanti Devi - 2014(4) RLW 2967 (Raj.);

(iv) Umedmiya R.Rathod and Ors. -vs- State of Gujarat - MANU/GJ/1360/2017.

10. Per contra, it is contended by the learned

counsel for the plaintiff that the officers of the

defendant/Company have approached the plaintiff, for

identifying the prospective buyer. After such discussion,

the plaintiff has identified the prospective buyer and

thereafter, Commission Agreement was executed on

17.11.2009 and the sale agreement came to be

executed on 15.12.2009 under Ex.P6. Prior to such

discussion since the plaintiff has identified the

prospective buyers, the defendant agreed to pay 1% of

brokerage charges in the form of commission and

thereby agreement under Ex.P1 came to be executed.

The plaintiff was promised to pay brokerage charges on R.F.A No.2114/2012

completion of the sale transaction under Ex.P7. If the

plaintiff were to receive the brokerage charges from the

prospective buyers, there was no occasion for the

defendant to execute an agreement under Ex.P1. The

defendant has not denied that Mr.D.B.Prasanna Kumar

was not the employee of the defendant. The defendant

has not denied the signature on Ex.P1 and the

correspondence between them through e-mail. By

appreciating the evidence on record, the Trial Court has

rightly decreed the suit.

10.1. Learned counsel further contended that

since the Trial Court has not awarded interest sought for

indulgence of this Court to award interest in the appeal.

10.2. In support of his contentions, he has relied

upon the following judgments:

(i) Akhilesh Singh -vs- Lal Babu Singh and Others - (2018) 4 SCC 659;

(ii) Anglo American Metallurgical Coal Pvt.Ltd. -vs- MMTC Ltd.-(2021) 3 SCC 308;

(iii) Govindbhai Chhotabhai Patel and Others -vs- Patel Ramanbhai Mathurbhai - AIR 2019 SC 4822;

R.F.A No.2114/2012

(iv) Narinderjit Singh -vs- North Star Estate Promoters Ltd. -(2012) 5 SCC 712;

(v) Thiruvengada Pillai -vs- Navaneethammal and Ors. - (2008) 4 SCC 530;

(vi) Kishan Rao -vs- Shankargouda - (2018) 8 SCC 165; and

(vii) Rohitbhai Jivanlal Patel -vs- State of Gujarat and Ors. - (2019) 18 SCC 106.

11. We have given our anxious consideration to

the arguments addressed on behalf of both parties and

perused the records.

12. In the light of the rival contentions urged on

both parties, the points that arise for our consideration

are:

(i) Whether the defendant is liable to pay brokerage charges to the plaintiff as per Commission Agreement/Ex.P1?

(ii) Whether the impugned judgment calls for our interference?

Reg. Point No.1:

13. There is no dispute as to the defendant owning

an industrial site, the officers of the defendant R.F.A No.2114/2012

approaching the plaintiff to identify a prospective buyer

and accordingly the plaintiff having introduced one

Mr.Deepak Abbhi and Mrs.Seema K.Abbhi, with whom

the defendant entered into an agreement to sell the

property for a consideration of Rs.16.75 crores and

thereafter the sale transaction was completed on

24.02.2010.

14. The material on record demonstrates that

plaintiff is running a Real Estate Agency in the name of

'Cauvery Estate'. The sale transaction is evidenced by

Ex.P6/sale agreement and Ex.P7/sale deed for which

plaintiff is attesting witness.

15. The plaintiff claims that under Ex.P1, the

officers of the defendant have agreed to pay 1% of total

sale consideration as brokerage charges/ commission.

After completion of sale transaction, plaintiff was

informed that commission would be paid once the

Chairman returned to Mumbai. The plaintiff was in

touch with the officers of the defendant continuously R.F.A No.2114/2012

and in this regard, admittedly E-mail correspondences

have also been made. The plaintiff was directed to

submit a bill, which he has submitted to the Head Office

of the defendant at Mumbai through E-mail. Later, the

plaintiff was informed that he should collect 1% of his

brokerage charges from the buyer only. In the course

of cross-examination of the plaintiff, it has been elicited

that he has received 1% of brokerage charges from the

prospective buyer.

16. The defendant is disowning its liability to pay

any brokerage charges on the ground that plaintiff

himself had agreed that he would collect the brokerage

charges from the buyer which, in fact, has been denied

by the plaintiff. Now, the claim and defence rest on

proof of Ex.P1/agreement.

17. In order to prove the execution of Ex.P1, apart

from marking the document, the plaintiff has discharged

his initial burden by examining two of its attestors as

PWs-2 and 3. During the course of cross-examination of R.F.A No.2114/2012

PWs-1 to 3, the signatures of officials of the defendant

on Ex.P1 have not been denied. On the contrary, there

is a suggestion to the plaintiff that Ex.P1 was obtained

for the security purpose which, in fact, has been denied

by the plaintiff. If Ex.P1 were to be the security

document to ensure payment of brokerage by

Mr.Deepak Abbhi, the officers of the defendant have not

made any effort to collect Ex.P1 from the plaintiff. There

is not even any correspondence. No notice issued to the

plaintiff to surrender Ex.P1 as being a security

document.

18. The judgment in Manish (supra) is relied

upon to contend that any statement made during the

cross-examination or elicited through a suggestion will

not shift the burden of proof on the other side. The

tenor of cross-examination of the plaintiff and his

witnesses goes to establish execution of

Ex.P1/agreement between the officers of the defendant

and the plaintiff. Hence, the burden of proving Ex.P1 is R.F.A No.2114/2012

discharged by the plaintiff and the defendant has failed

to rebut it.

19. Umedmiya R.Rathod's case (supra) is relied

upon to contend that mere suggestions are not sufficient

to dislodge or disprove the case of the plaintiff.

Suggestions in cross-examinations have no evidentiary

value. In the absence of any evidence, nor any material

traced in the cross-examination in support thereof, the

finding could not have been answered in the affirmative.

20. As discussed above, the plaintiff has examined

PWs-2 and 3 and they have been cross-examined by the

defendant. The correspondence among the officers of

the defendant as referred in Ex.P5/e-mail demonstrates

the conduct of the defendant admitting the liability to

pay brokerage charges to the plaintiff. Hence, the

plaintiff is not relying on any stray admission of the

defendant witness and totality of the evidence explains

the circumstances under which Ex.P1 came into

existence.

R.F.A No.2114/2012

21. DW-1 is one of the Directors and the Power of

Attorney Holder of the defendant. His evidence goes to

show that he has not attested any document either the

sale deed or the agreement with the prospective buyer

nor was he present during the sale negotiation nor on

the date of sale transaction. He admits that the

prospective buyer was introduced to the defendant by

'Cauvery Estate' of which the plaintiff is the Proprietor.

He has also admitted the E-mail correspondences

between the plaintiff and defendant. He further admits

that one Mr.Prasanna Kumar was working with the

defendant. Ex.P5, the E-mail correspondence mentions

about the plaintiff, his demand for payment of brokerage

charges on account of sale transaction with Mr.Deepak

Abbhi.

22. The contention of the defendant that the

plaintiff has to receive the brokerage charges from the

purchaser has not been substantiated. If really the

plaintiff had to receive brokerage charges from

Mr.Deepak Abbhi, where was the occasion for the R.F.A No.2114/2012

defendant to execute Ex.P1 agreeing to pay 1%

brokerage charges on the sale proceeds. The Chairman

of the defendant/Company has though filed his affidavit

evidence, did not enter the witness box. In view of DW-

1's admission that he was not acquainted with the

transaction, his evidence will neither discard the claim of

the plaintiff nor probabalise the defence.

23. The evidence placed before the Court speaks

of execution of Ex.P1 by the officers of the

defendant/Company. The E-mail correspondences

established defendant's offer regarding payment of 1%

of brokerage charges. The officer of the defendant,

Mr.Prasanna Kumar sending E-mail to one Smt.Pushpa,

who is sitting at Mumbai Office of the defendant about

frequent calls of the plaintiff regarding payment of 1%

brokerage charges and requesting her to treat the

matter as urgent also supports plaintiff's case. The

recitals of Ex.P1 do not point out that it is a document

for collateral purpose rather it shows that the defendant

had agreed to pay 1% brokerage charges of sale R.F.A No.2114/2012

consideration. The conduct of the officers of the

defendant shows that they have agreed to pay 1% of

sale consideration as commission or service charges to

the plaintiff and Ex.P1 came into existence for that

purpose only.

24. As noticed from the material on record, the

commission agreement came into existence on

17.11.2009. The officers of the defendant and the

plaintiff were in contact and holding talks much earlier.

It is the plaintiff, who came to Bengaluru on several

occasions and he himself introduced Mr. Deepak Abbhi

to the officers of the defendant as prospective buyer.

Negotiation was held in presence of plaintiff, final price

was fixed only after identifying the prospective buyer

and on finalising the price, the agreement of sale was

entered into on 18.12.2009. Evidence also points out

that plaintiff and his associates signed the sale

agreement. If the plaintiff is an outsider to the

transaction, the defendant has to explain how the

plaintiff was present and attested the agreement as well R.F.A No.2114/2012

as the sale deed which he has failed to do. After having

repeated E-mail correspondences, the plaintiff issued

notice to the defendant for non-compliance of the terms

of Ex.P1. Till the plaintiff files the suit, the

defendant/Company were giving evasive answers to the

plaintiff that they were arranging to make payment of

his brokerage charges. Only in the suit, technical

objections have been raised by the defendant and the

purpose for raising such a defence is to deny the

plaintiff's claim.

25. As seen from the records, Ex.P6 is the

registered sale agreement signed by Chairman of the

defendant/Company Mr.Jainuddin T.Thanawala. Ex.P7 is

the registered sale deed dated 24.02.2010, for its

execution, Chairman of defendant Mr.Jainuddin

T.Thanawala was present. The plaintiff has not only

attested the document, but he was present when the

document was presented for registration. Hence, the

plaintiff and Mr.Jainuddin T.Thanawala were very well

known to each other on the date of agreement as well R.F.A No.2114/2012

as on the date of sale deed. On perusal of the recitals of

Ex.P1, it is pertinent to note that it came to be executed

by the authorised signatory of the defendant/Company

and the defendant is represented by its Chairman

Mr.Jainuddin T.Thanawala.

26. Reason for concoction offered by the defendant

is that the seal used in Ex.P1, description of the

defendant is different to that of one found in Ex.P6 and

Ex.P7. In the cross-examination of PWs-1 to 3 or the

evidence of DW-1, nothing is forthcoming that the

signatory to Ex.P1 was not authorised to sign. Ex.P4 is

the reply notice to Ex.P2/notice. Nowhere it is denied

that Ex.P1 is concocted and such a document was not

executed. What has been replied is that plaintiff shall

receive brokerage charges from the buyer. This

establishes that there were talks between the plaintiff

and the defendant regarding payment of 1% brokerage

charges. Ex.P5 is the bunch of E-mail correspondences

between the plaintiff and Mr.D.B.Prasanna Kumar, the

officer of the defendant. It refers the name of the R.F.A No.2114/2012

Chairman of the defendant, the name of one

Smt.Pushpa, who sits in Mumbai office of the defendant.

27. Objections have been raised that there is no

certificate under Section 65B of the Evidence Act to

substantiate the genuineness of these E-mail

correspondences. Arjun Panderao (supra), is relied

upon to contend that the e-mails under Ex.P5 are

inadmissible in the absence of certificate under Section

65B(4) of the Evidence Act. When DW-1 has admitted

the E-mail correspondence, there is no need for the

plaintiff to place a certificate in proof of it, hence, the

said contention is untenable.

28. The evidence on record clearly points out that

the property belonging to the defendant was sold to

Mr.Deepak Abbhi and Mrs.Seema Abbhi for consideration

of Rs.16.75 crores. Before execution of sale deed, there

was an agreement, payment of part consideration and

for both agreement as well as the sale deed, plaintiff is a

party and he has attested both documents. It is R.F.A No.2114/2012

admitted by the defendant that plaintiff is entitled to 1%

of brokerage charges. According to defendant, it is only

from the buyer, not from the seller. If that is so, why

Ex.P1 came into existence is not explained. The recitals

of Ex.P1 show about defendant having agreed for 1% of

brokerage charges on sale consideration. On the date of

Ex.P1, sale consideration was not finalised, almost one

month after Ex.P1, Mr.Deepak Abbhi has entered into an

agreement on 15.12.2009. If really the prospective

buyer was identified on the date of Ex.P1 and sale price

was finalized, this could have been incorporated in

Ex.P1. Hence, evidence on record unequivocally

establishes that defendant had entered into an

agreement with plaintiff for identifying a prospective

buyer offering him brokerage charges of 1% on the total

sale consideration.

29. As regards jurisdiction of the Trial Court is

concerned, the entire transaction took place at Mysore,

the plaintiff is residing at Mysore, so also notice of Ex.P1

was issued from Mysore. The property sold is located at R.F.A No.2114/2012

Mysore. Mere signing of Ex.P1 at Bengaluru will not

oust the jurisdiction of Court at Mysore. Hence, the

Court at Mysore is having jurisdiction to try the suit.

Therefore, the contention of the defendant is

unsustainable.

30. Hence, we have no hesitation to hold that

plaintiff has proved the execution of Ex.P1 by the

officers of defendant for the purpose of payment of 1%

brokerage charges to the plaintiff on completion of sale

transaction with the prospective buyers. The defendant

is liable to pay brokerage charges to plaintiff as agreed

under Ex.P1. Accordingly, point No.1 is answered

against the defendant.

Reg. Point No.2:

31. We have carefully perused the impugned

judgment. The Trial Court has recorded that the land

belonging to defendant was sold to Mr.Deepak Abbhi

through the assistance of the plaintiff. Mr.Deepak Abbhi

being the prospective buyer is identified by the plaintiff.

R.F.A No.2114/2012

The plaintiff has introduced the prospective buyer to

defendant. Sale transaction has been finalized in the

presence of plaintiff. For the purpose of payment of

brokerage charges, the officers of the defendant entered

into Ex.P1/agreement. Cross-examination of PWs-1 to 3

does not demolish the case of the plaintiff. Suggestion

put to the plaintiff and his witness that Ex.P1 was a

document for security does not affect plaintiff's case in

any manner. To accept that the claim of the plaintiff is

genuine, he has fairly admitted that he has received 1%

brokerage charges from the buyer. DW-1 admits entire

case of the plaintiff, the Chairman of the defendant has

failed to enter the witness box inspite of filing his

affidavit evidence. It also recorded that DW-1 is not

trustworthy. Hence, we do not find any error or

illegality in the finding recorded by the Trial Court.

Accordingly, we answer this point in favour of the

plaintiff.

R.F.A No.2114/2012

32. In the light of above discussion, we are of the

view that the appeal is devoid of merits and it is

accordingly dismissed with costs.

Sd/-

JUDGE

Sd/-

JUDGE

KNM