* IN THE HIGH COURT OF DELHI
Judgment reserved on : September 17, 2008
% Judgment delivered on : September 24, 2008
+ RFA 545/2005
RAVENDER PAUL ..... Appellant
Through: Ms.Maldeep Sidhu, Advocate
VERSUS
GOETZE INDIA LTD. ...... Respondent
through: Mr.Jasmeet Singh, Advocate
CORAM:
Hon'ble Mr.Justice Pradeep Nandrajog
Hon'ble Mr.Justice J.R. Midha
1. Whether reporters of local papers may be allowed
to see the judgment?
2. To be referred to the Reporter or not?
3. Whether judgment should be reported in Digest?
: PRADEEP NANDRAJOG, J.
1. The appellant has failed in his endeavour to obtain
a favourable decree in the suit filed by him. The judgment
and decree dismissing his suit is dated 3.3.2005.
2. The case of the plaintiff was that he was residing in
Germany and was carrying on business under the name and
style of M/s. LUBTECH MAILRHOFLSTR. He stated that his
business was to introduce buyers in Germany to
manufacturers of leather products in India and take
RFA No.545/2005 Page 1 of 9
commission if the deal materialized and the Indian
manufacturer sold goods to the Germany buyer. He stated
that the respondent appointed him as an agent in 1994 to
interact with a German buyer namely Speitch & Wesrsky
GMBH & Co. He stated that as per the agreement he was to
receive 5% commission on sales affected by the defendant on
said German buyer. It was pleaded that in the season
concluding in September, 1995 the defendant made sales to
the said German Company in sum of Rs.60 lacs and in the
second season affected sales worth Rs.80 lacs. Thus,
appellant claimed that he was entitled to commission on said
sum @5% of the total sale value i.e. Rs.7 lacs. Stating that no
payment was made to him hence he was entitled to interest
@ 18% per annum, pre-suit interest was calculated @ Rs.2.31
lacs. Suit was filed seeking a decree in sum of Rs.9.31 lacs
with pendente lite and future interest @ 18% per annum.
3. In the written statement filed, respondents stated
that in the year 1994 it deputed 2 of its representatives
namely, Mr. R. Jayaraman and Mr. Vinod Verma, to visit
countries abroad including Germany to obtain business.
During the course of visit the plaintiff introduced himself to
said persons claiming to be an expert in leather garments and
boasted of being in touch with importers of leather garments
in Germany. To test the plaintiff it was agreed between the
plaintiff and said persons that for the ensuring summer
RFA No.545/2005 Page 2 of 9
season plaintiff would demonstrate his skills and would prove
his worth of procuring orders by obtaining orders for sale to be
affected by defendant. It was pleaded that the ensuing period
was akin to the plaintiff being a probationer. It was pleaded
that no agreement was arrived that the defendant would get
any commission to the plaintiff for the first season much less
@ 5% on the sales affected.
4. To put it simply the defendant pleaded that by
procuring some orders for the ensuing summer months the
plaintiff would prove his worth and only then the parties would
enter into a contract.
5. On the pleadings of the parties the issue which
required to be adjudicated upon was whether the plaintiff was
appointed as an agent by the defendant to introduce
importers of leather garments in Germany and if yes whether
the defendant had agreed to pay commission being 5% of the
value of the exports made.
6. To prove his case, the appellant filed several
facsimile messages as also photocopies of some facsimile
messages. The contents of the documents purport to be
communications received by the appellant from the
respondent.
7. The original copies of the facsimile message filed
by the appellant are a document marked „B‟ at page 329 of
the Trial Court record; a document marked „C‟ at page 333; a
RFA No.545/2005 Page 3 of 9
document marked „D‟ at page 335; a document marked „F‟ at
page 337 and a document marked „G‟ at page 341. We note
some more original facsimile messages which are not marked
at pages 331, 343 and 347 of the Trial Court record.
8. We note that most of the original facsimile
messages placed on record are not legible. The reason is that
the ink used for taking the print of the facsimile message has
sublimed/evaporated gradually resulting in the printed words
getting faded. Nonetheless, as of today one can make out
some impressions of the words even from the naked eye. But,
the document(s) cannot be read fully. It is apparent that the
paper carried some inscription which over the period of time
gradually faded.
9. The learned Trial Judge has non-suited the
appellant by refusing to look into the contents of any
document referred to in his testimony by the appellant or any
document referred to in the testimony of the witnesses of the
respondent.
10. Reason why learned Trial Judge has done so may
be noted in the language of the learned Trial Judge. The
reasoning is as under:-
“…….The only document which suggest some kind of
agreement between the parties are photocopies of the
Fax messages mark A to G.
Court can not place any kind of reliance on the
said copies. Plaintiff had placed on record only
RFA No.545/2005 Page 4 of 9
photocopies of Fax messages which he had allegedly
received from the officials of defendant company and
also copies of Fax messages which he himself had sent
to defendant. The original Fax messages which he had
received were never placed on record. What were
placed on record were mere photocopies of Fax
messages received or sent by him. Whenever a person
wants to sent a Fax message to another person, then,
he puts the paper in the Fax machine in his office and
then the message gets transmitted to the receiver. The
receiver will receive the message on the Fax machine
installed in his office. The mark A to G were not original
papers. As per section 65 of the Indian Evidence
Act, secondary evidence can be given where original is
in power and possession of the other party. Towards
this end a notice to produce must be given to the said
other party. This is requirement of section 66 of the
Indian Evidence Act. In case, the said other party
fails to produce the documents then, court can permit
leading of secondary evidence. A notice to produce
document can also be given Under Order 12 Rule 8.
Only thereafter, secondary evidence can be led and
court can place reliance on copies of documents so
produced. Fax messages mark A to G are not even the
original messages received or sent by the plaintiff.
They are mere photocopies of the messages received
and sent by him.”
11. It may be noted that a witness of the respondent
DW-1 Mr. R. Jayaraman spoke, as under, in respect of some of
the facsimile messages:-
“…..It is correct that 91-011-6834594 is the fax number
of the defendant/company. I, however, do not
remember whether 6843922 is the other number of the
defendant/company. This fax number is also on
document mark at ‘A’………….
………I do not remember whether on 14th February,
1995 I had sent a fax message to the plaintiff stating
that the 5% commission, agreed upon, given to him
includes 2% commission of Raja. I have seen the
document ‘G-I’ but the same is not legible, it appears to
be a blank paper with faded print. I cannot say whether
such a fax was sent by our company ……….”
12. Holding that there was no admissible evidence
RFA No.545/2005 Page 5 of 9
learned Trial Judge has concluded as under:-
“Reverting back to the facts of the case, defendant
witness denied sending of the Fax messages. Court
can not draw any presumption that photocopies of
Fax messages mark A to E originated from the
defendant. Plaintiff has been negligent to the extent
of even he did not file the copy retained by him of the
Fax message F and G which he himself had sent.
Thus, court can not place any reliance on the said Fax
messages. In absence of any substantive evidence,
court holds that plaintiff was never appointed as
agent by the defendant nor defendant was liable to
pay any commission to the plaintiff. Both the issues
are decided in favour of defendant and against the
plaintiff…..”
13. The testimony of DW-1 itself establishes that the
facsimile messages were fading with the passage of time.
14. It is unfortunate that counsel for the appellant did
not bring it to the notice of the learned Trial Judge that
facsimile messages are transmitted over the telephone and
the electronic impulse is reproduced in a print form by the
facsimile machine and print out is taken on paper with the
help of a cartridge ink which has a high ammonia content.
Those with a little knowledge of chemistry know that ammonia
is a highly vaporizing chemical and vaporizes very rapidly. A
print out taken with the help of a chemical having ammonia
base would be a perishable print out because with the
passage of time due to vaporization of ammonia the imprint
would fade and would become extinct at some point of time.
15. It was a practice followed in the industry to
immediately take out photocopies of facsimile messages
because of the inherent limitation of preserving the contents
RFA No.545/2005 Page 6 of 9
of facsimile messages.
16. In our opinion rules of evidence have to be read in
harmony with the progress of science. Thus, where a person
claims that he had received a facsimile message from the
opposite party and produces the faded facsimile messages
which cannot be legibly read but produces photocopies
thereof and states that the photocopies are obtained from the
original facsimile message, on proof of the facsimile message
being transmitted, the contents of the photocopy would be
admissible in evidence as secondary evidence because the
original facsimile message would presumably be lost due to
the imprint fading on the original facsimile message.
17. We may highlight the issue with reference to only
one document being the document marked „B‟. The
document can be graphically reproduced as under:-
” FA X M E S S A G E
GOETZE (INDIA) LIMITED
(LEATHER DIVISION)To Mr. RAVINDER PAUL From R. JAYARAMAN/MANOJ VERMA
Fax No. 004989835746 Fax 91-011-6834594, 6843922
Date July 20, 1995 Page 1 of 1
Our Ref. __________________Please refer to your fax No.6027 and 6029 dated 13/7/95.
We have reviewed the role and relation between GIL (not legible) yourself.
For any relation to last as well as to grow should be a „You win I win situation
created‟ and all should benefit. The nature of the leather business (not
legible) areas on the quality standards between what is acceptable and (not
legible) acceptable, is putting the manufacturer at disadvantageous
position. When we are not able to get adequate returns for efforts and risk
taken, it is difficult for us to pay commission for each order for just
introducing a customer.
It is true that when we first met we were keen to do business using an
exclusive middleman who has no interest other than promoting our
business. We will complete the first (not legible) S & W in another 30 days
RFA No.545/2005 Page 7 of 9
and we will sent your (not legible) thereafter. In our initial experience we
feel that our (not legible) will not be protected as a company and we are not
gaining (not legible) additional advantage by having a middleman. We
would then settle your commission after completing the orders.
Regards
Sd/-
R.JAYARAMAN
237, Okhla Industrial Estate, Phase III, New Delhi(not legible)
Ph.: 91-11-6911468, 0885194, 6848970(not legible)
Telex : 091-76256 GIL (not legible)”
18. The document marked „B‟ shows that if one was to
strain one‟s eye it is possible to read more than 99% of the
contents of the document and the remaining 1% can be filled
up subject to context.
19. Similarly, we find that the document marked „C‟
can also be fully read by straining the eye. It is a facsimile
message sent under the signatures of R. Jayaraman. It has a
short content. It reads as under:-
” FA X M E S S A G E
GOETZE (INDIA) LIMITED
(LEATHER DIVISION)To Mr. RAVINDER PAUL From R. JAYARAMAN
Fax No. 004989835746 Fax 91-011-6834594, 6843922
Date July 12, 1995 Page _________ of ________
Our Ref. __________________RE : COMMISSION
A suitable commission for introduction and above mentioned services will be
paid after the completion of entire order and payment received by us (which
is normally the system with our other agents also who are paid on quarterly
basis).
Regards
Sd/-
R.JAYARAMAN
237, Okhla Industrial Estate, Phase III, New Delhi(not legible)
Ph.: 91-11-6911468, 0885194, 6848970(not legible)
Telex : 091-76256 GIL (not legible)”
RFA No.545/2005 Page 8 of 9
20. Since the learned Trial Judge has not discussed the
evidence which was led, we set aside the impugned judgment
and decree dated 3.3.2005 and restore the suit for fresh
adjudication. While so doing learned Trial Judge would treat
all documents marked during the testimony of the
appellant/plaintiff.
21. Needless to state decision would be on merits.
22. Parties are directed to appear before the learned
Trial Judge on 21.10.2008, who on restoring the suit would
assign it to the successor Judge.
23. No costs.
PRADEEP NANDRAJOG, J.
J.R. MIDHA, J.
September 24, 2008
rk
RFA No.545/2005 Page 9 of 9