* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA NO. 389 OF 1996
% Date of Decision: 12th February, 2009
# KULDIP TRIKHA ...Appellant
! Through: Mr. B.B. Gupta, Advocate
versus
$ NEW INDIA MOTORS (NEW DELHI)
PVT. LTD. & ORS. ...Respondents
^ Through: None
CORAM:
* HON'BLE MR. JUSTICE P.K.BHASIN
1. Whether Reporters of local papers may be allowed to see
the Judgment?(No)
2. To be referred to the Reporter or not?(No)
3. Whether the judgment should be reported in the digest?(No)
JUDGMENT
P.K.BHASIN, J(ORAL)
This appeal has been filed by the appellant against the judgment
and decree dated 17-05-1996 passed by the learned Additional District
Judge, Delhi in suit No. 636/82 whereby suit filed by him against the
respondents for recovery of Rs.86,188.90 has been decreed only for a
sum of Rs. 44,550/- along with interest thereon @ 12% p.a. from the
date of filing of the suit till realization and rest of his claim has been
rejected. The appellant felt aggrieved by the rejection of part of his
claim and filed the present appeal. The respondents had also filed an
appeal against the decree passed against them but that appeal(being
RFA No. 330/1996) came to be dismissed by a Division Bench of this
Court in limine on 11th September, 1996.
2. The facts relevant for the disposal of the present appeal may
first be stated. The appellant filed a suit for recovery of Rs.86,188/90
against respondent no.1, a private limited Company doing the business
of procuring orders from Embassies, diplomats etc. in India for its
Principals abroad dealing in export business. Respondent no. 2 and
respondent no.3 were impleaded as the Managing Director and
Director respectively of the respondent no.1-Company. It was alleged
in the plaint that the plaintiff was appointed as a sales representative
w.e.f. 15th May, 1976 and as per the terms of his employment he was
to get monthly salary, transport allowance as well as commission @
1% on the business done by the respondent no. 1 Company. The
plaintiff was also to pay a security deposit of Rs. 30,000/- which was to
be refunded along with interest @ 6% per annum at the time of
RFA No. 389/1996 2
termination of his services. The plaintiff pleaded that he paid the
security amount, as per the understanding between the parties, to
defendant no. 3(respondent no.3 herein). It was further pleaded in
the plaint that it was also the understanding between the parties that
in respect of the business which he had procured for the Company
from ITDC Ltd. for supply of imported liquor and perfumes he was to
get commission of ½ % only. The plaintiff’s services were abruptly
terminated by the defendants without even clearing his account. The
plaintiff averred that the security deposit along with the accrued
interest was not refunded to him and his salary and travelling
allowance from November, 1981 to 24th February, 1982 were also not
paid and as far as the commission payable to him was concerned a
sum of Rs. 49,574.60 was payable to him but out of that amount he
was paid only a sum of Rs. 8500/-. Since the respondents did not
clear his dues despite demands he filed the suit for recovery of Rs.
86,188.90 which included the amount of Rs. 41,074.60 on account of
commission. As noticed already, the learned trial Court decreed the
suit of the appellant-plaintiff as far as his claim of arrears of salary,
travelling allowance and security deposit is concerned but rejected the
RFA No. 389/1996 3
claim of Rs. 41,074.60 on account of commission and in this appeal
now only this rejected claim is the subject matter of adjudication.
3. The suit was contested by the respondents-defendants by filing
a joint written statement. In the written statement it was admitted
that the appellant was employed by respondent no. 1 as a sales
representative. The monthly salary, which the appellant claimed to
be payable to him as per the terms of employment, was also not
disputed as also his claim that he was entitled to commission @ 1% .
However, it was denied that commission was payable to him on the
entire business done by the Company and it was claimed that he was
entitled to the commission @ 1% only on the business which he would
procure for the Company and in fact he himself had been claiming
commission only in respect of business procured by him and so now
he was estopped from claiming that he was entitled to get commission
even in respect of the business which he had not procured for the
Company. Respondent-defendant no. 2 admitted that he was the
Managing Director of the respondent no. 1 Company but as far as
defendant- respondent no. 3 is concerned it was claimed that he has
RFA No. 389/1996 4
ceased to be a Director long ago and in any case they were not
personally liable for paying any money to the plaintiff. It was also
pleaded that services of the plaintiff were not terminated but he
himself had stopped coming to the office from 24-02-1982 since it was
found out that he had started dealing with other competitors of
respondent-defendant no.1 Company and he had been warned of that
in January, 1982.
4. On the pleadings of the parties the trial Court had framed the
following issues:
1. Whether defendants no. 2 and 3 are necessary or proper party. If
not, to what effect. OPP
2. Whether the suit is not properly valued for the purposes of court
fee and jurisdiction. If so, what would be the proper valuation?
OPD
3. Whether the suit in so far as recovery of arrears of salary and
recovery of security amount is time barred. If so, to what effect?
OPD.
4. Whether the suit insofar as recovery of arrears of salary and
recovery of security amount is time barred. If so, to what effect?
OPD
5. Whether the arrears of commission become due and whether the
claim in respect of any portion is beyond three years on the date of
the filing of the suit. If so, how much and to what effect? OPP
6. Whether the plaintiff is not entitled to the amounts of commission
as mentioned in Annexure-I to the plaint? OPDRFA No. 389/1996 5
7. Whether defendants have paid the salary of the plaintiff for the
period November, December, 1981 and January and February 24,
1982? OPD
8. Whether the plaintiff is entitled to one month’s salary in lieu of
notice for termination of his service? OPP
9. Whether the defendants are not liable to pay commission to the
plaintiff at the rate of 1%? OPD
10. Whether the plaintiff is entitled to interest? If so, at what rate and
for what period? OPP
11. Whether the plaintiff paid a sum of Rs. 30,000/- to the defendant
no. 2 as security at the instance of defendant no. 1? OPP
12. To what amount is the plaintiff entitled? OPP
13. Relief.
5. After examining the evidence adduced from both the sides
learned trial Judge decided all the issues, except issues no. 6 and 9, in
favour of the appellant-plaintiff. Issues no. 6 and 9 were decided
against the appellant-plaintiff on the ground that he was not entitled
to any commission on the business done by the Company directly and
he was only entitled to get the commission for the business procured
by him and taking into consideration the business procured by him he
had already received more than what was due to him as commission.
Consequently, his claim of commission for Rs. 41,074.60 was rejected
RFA No. 389/1996 6
while the claim for arrears of salary, refund of security, etc. was
allowed but only against defendant no.1.
6. I have heard learned counsel for the appellant only since there
was no appearance from the side of the respondents when this appeal
was taken up for hearing.
7. In this appeal the question of entitlement of the appellant for
Rs. 41,074.60 on account of commission only is to be decided by this
Court. The appellant’s claim in respect of the commission was based
upon one document which, according to him, was executed by
respondent-defendant no. 3 on behalf of respondent no.1-Company.
That document is Ex. P-2, contents whereof are reproduced below:
“New Delhi
1st May, 1976.
As discussed and agreed the security
amount of Rs. 30,000/- (Thirty thousand)
furnished today will carry interest @ 6% P.A.
This security and interest due thereon will be
refunded only after service comes to an end.
Meanwhile salary will be Rs. 270/-, transport
allowance Rs. 200/- per month and one percent
commission will be paid on the business
secured by the company after clearance of the
payments by our principals abroad.
Sd/-
(P.S.Jain)”
RFA No. 389/1996 7
Execution of this document was denied by the respondents-
defendants. The learned trial Judge after examining the entire
evidence found that this document was executed by respondent no. 3
Pawan Sagar Jain and as has been noticed already, the respondents’
appeal against the trial Court’s findings which had been given against
them, including in respect of the said document Ex. P-2, was dismissed
by this Court. A perusal of the document Ex.P-2 clearly shows that it
had been agreed between the parties that the appellant would be
entitled to commission of 1% “on the business secured by the
Company”. The learned trial Judge even after coming to the conclusion
that this document containing the clause regarding payment of
commission of 1% on the entire business done by the Company
rejected the appellant’s claim for commission on the business which
had been done by the Company and also came to the conclusion that
in respect of the business procured by the appellant he had already
received excess amount. The learned trial Judge observed that since it
had also been pleaded in the plaint that the rate of commission as
initially agreed between the parties was enhanced to one and a half
RFA No. 389/1996 8
per cent and further that in respect of the business procured by him
from ITDC he was to get half per cent commission only it was clear that
the term regarding payment of commission as contained in Ex.P-2 was
not final and, therefore, it had to be decided from the conduct of the
parties as to what was the commission payable to the appellant. The
learned trial Judge then observed that the plaintiff himself had been
maintaining account of his commission and claiming it also only in
respect of the business done by the Company through him and so that
showed that even according to him the commission was payable to
him only in respect of the business procured by him for the Company.
In my view, this reasoning of the learned trial Judge cannot be
accepted it was for the defendants to show that there was no final
settlement regarding the payment of commission. Although they had
disputed the very execution of Ex.P-2 but that defence was not
accepted by the Trial Court and, therefore, the learned trial Judge after
accepting that this document was genuine could not have at the same
held that there was no final settlement in respect of the commission
payable to the plaintiff. There is no doubt that the plaintiff had also
pleaded in the plaint that the commission payable to him was
RFA No. 389/1996 9
subsequently raised to 1-1/2% and he was restricting his claim of
commission at 1% only but from that plea also it could not be inferred
that agreement in respect of commission was not final. In the plaint it
was also pleaded by the plaintiff that he was not insisting for claim of
commission @ 1-1/2% in view of the written document Ex.P-2. This,
in fact, was not even the defence raised by the defendants that there
was no final agreement in respect of payment of commission. They
had denied the very execution of document Ex.P-2 and once they
failed in that plea and the trial Court had found the same to be a
genuine document no such conclusion could be arrived at by the trial
Court that document Ex.P-2 did not bring into existence any final
understanding between the parties regarding commission payment. In
fact, by claiming that commission was payable to the plaintiff in
respect of business procured by him only the defendants and not the
plaintiff, were attempting to adduce oral evidence in respect terms of
employment of the plaintiff contrary to the written contract. The trial
Court wrongly concluded that the plaintiff was introducing oral
evidence contrary to written contract in respect of commission
payable to him.
RFA No. 389/1996 10
8. The learned trial Judge had rejected this claim of the plaintiff
also on the ground that if actually he was entitled to the commission
even for the business done by the Company directly he would not have
accepted small amount of Rs. 8500/- as commission without raising
any hue and cry for not being paid the balance amount of commission
payable to him which, according to him, was Rs. 49,574.60/-. This
reasoning also of the learned trial Judge is not sound and cannot be
accepted. The plaintiff had categorically pleaded in the plaint and also
during his evidence that he had not been paid his commission in
respect of the entire business done by the Company despite his having
demanded the same orally as well as in writing. That fact remained
uncontroverted. The defendants had not even claimed in their written
statement that the plaintiff had not demanded commission from them
for the entire business done by the Company. I am, therefore, of the
view that the findings of the learned trial Judge on Issues No. 6 and 9
to the effect that the plaintiff was entitled to claim commission only in
respect of the business procured by him for defendant no.1 cannot be
sustained. The same are accordingly set aside and it is held that the
plaintiff was entitled to claim commission in respect of the business
RFA No. 389/1996 11
done by procured by him as well as the business done by the Company
directly.
9. As far as the amount of commission calculated @ 1% on the
total business done by the respondent no. 1 during the tenure of
employment of the plaintiff is concerned, the defendants in their
written statement had not disputed the fact that they had not done
the business to the extent which would have entitled the plaintiff to
claim commission @ 1% amounting to Rs. 49,574.60. Of course, the
trial Court has held that by accepting the payment of Rs. 8500/- as
commission as against his claim of Rs. 49,574.60 he was estopped
from claiming the balance amount. That conclusion, however, is also
totally unsustainable. There is nothing brought on record by the
defendants from which it could be inferred that the plaintiff had
accepted the payment of Rs. 8500/- in full and final settlement of his
claim. So, he is not estopped from claiming the unpaid commission of
Rs.41,074.60/-.
10. As a consequence of my afore-said findings on issues no. 6 and 9
this appeal succeeds and it is ordered that the appellant has become
RFA No. 389/1996 12
entitled to a decree for Rs.41,074.60 along with interest thereon @
12% per annum from the date of filing of the suit till realization in
addition to the amount for which the trial Court has already passed
the decree in his favour. He shall also be entitled to the costs in
respect of his claim of money which has now been decreed in his
favour.
FEBRUARY 12, 2009 P.K.BHASIN,J
sh
RFA No. 389/1996 13