(Prayer: Appeal filed under Order 36 Rule 1 r/w. Section 96 of the Code of Civil Procedure against the judgment and decree dated 22.12.2016 passed in O.S.No.5859 of 2015 on the file of the XV Additional City Civil Court, Chennai.)

N. Sathish Kumar, J.

1. Aggrieved over the judgment and decree of the learned XV Additional Judge, City Civil Court, Chennai, in O.S.No.5859 of 2015, dated 22.12.2016, dismissing the suit filed for recovery of money of a sum of Rs.22,87,000/-, along with interest at the rate of 21% per annum from the date of plaint till the date of realisation, the present Appeal has been filed by the unsuccessful plaintiff.

2. For the sake of convenience, the parties will be referred to as per their rank before the trial Court.

3. Brief facts of the plaintiff’s case are as follows :

               The defendant Company is marketing Eloguard (a boiler feed water treatment chemical). One Mr.Rajagopalan of the defendant Company approached the plaintiff way back in the year 1986 with a request to the plaintiff to introduce their product in the market. The said Rajagopalan requested the plaintiff to undertake to introduce the product in September/October, 1986. It is the contention of the plaintiff that, though the terms for marketing the product were discussed, the parties have not reduced the same into writing because of the full faith and confidence the parties had in each other. It was agreed between the parties that the plaintiff should be paid for marketing and introducing the product into the Indian market, 5% as commission on the sale price of Eloguard 84 and Eloguard 86 for all sales. The correspondences between the parties also clearly prove such arrangement. There was a meeting between the plaintiff and the Executive Director of the defendant Company in the year 1987. In that meeting, the plaintiff was requested to follow up the business for steel industries. The plaintiff invested all his time and money and assured the consumers that the product was good and that on a fair trial they would not hesitate to buy it. The first sale took place in the year 1988. The consumer of the product found that the quality of the product marketed by the plaintiff was upto the standard held out by the plaintiff. Hence, the sales gradually increased and in the year 1989, a year after the first sale was made, the commission earned by the plaintiff rose from Rs.3,600/- in 1988 to Rs.42,087.50 in 1989. The defendant, in appreciation of the good work done by the plaintiff, started paying him a retainer of Rs.2,500/- per month from January, 1991, besides meeting out his travelling expenses. However, in the year 1990, the defendant sought the terms to be reduced into writing. Since the plaintiff had objectionable features, he did not sign it. However, it is the specific contention of the plaintiff that, all along, he was paid the commission at the rate of 5% flat on all sales, whereas, the defendant sought to introduce a slab system which is not agreeable for the plaintiff. It is the contention of the plaintiff that, later, the defendant has gone back in their agreement. Though the plaintiff has marketed the defendant’s product and there was an oral agreement from the year 1986 to pay 5% commission, the defendant has failed to pay the same. Hence, according to the plaintiff, the defendant is liable to pay 5% commission on every sale of the defendant’s product as per the oral agreement which existed between the parties from the year 1986. Hence, the plaintiff filed the present suit for recovery of a sum of Rs.22,87,000/- along with interest at the rate of 21% per annum from the date of plaint till the date of realisation.

4. The defendant, in their written statement, disputing the suit claim on the basis of the alleged oral agreement, denied that there is a contract between the parties. It is also denied that there was an arrangement for marketing the said product. It is the specific stand of the defendant that the arrangement that existed between the plaintiff and the defendant was purely on ad-hoc basis, since it was the plaintiff who had approached the defendant to afford him an opportunity to market the defendant’s product. It is the contention of the defendant that the plaintiff had stated that the defendant could pay whatever ad-hoc commission or compensation they desired, till a formal arrangement was arrived at between the parties. It is also disputed that the commission at the rate of 5% for all sales was agreed by the defendant. Hence, the defendant disputed the suit claim.

5. Based on the pleadings of the parties, the trial Court framed the following issues :

               1.Whether there was any agreement between the plaintiff and the defendant appointing the plaintiff as marketing agent of the defendant for an indefinite period ?

               2.Whether there was an agreement to pay commission at the rate of 5% between the plaintiff and the defendant ?

               3.Whether the defendant has wrongfully terminated the agency of the plaintiff ?

               4.Whether the suit is barred by limitation ?

               5.Whether the plaintiff received payment from the defendant in full and final settlement ?

               6.Whether the plaintiff is entitled to any damages from the defendant ?

               7.Whether the plaintiff is entitled to suit claim of Rs.22,87,000/- from the defendant ?

               8.Whether the plaintiff is entitled to interest as claimed on the suit claim?

               9.To what relief if any the plaintiff is entitled to ?

6. On the side of the plaintiff, P.W.1 was examined and Exs.P1 to P31 were marked. On the side of the defendant, D.W.1 was examined and Exs.D1 to D6 were marked.

7.The trial Court, on appreciation of evidence and materials on record, by its judgment and decree dated 22.12.2016, found that the plaintiff has not established the concluded contract between the parties which entitles the plaintiff to recover the suit amount and thereby, dismissed the suit.

8. Aggrieved over the dismissal of the suit by the trial Court, the unsuccessful plaintiff has filed the above Appeal.

9. The main contention of the learned counsel for the appellant/plaintiff before this Court is that an oral agreement existed between the plaintiff and the defendant from the year 1986 and the very admission of D.W.1 clearly proves the oral agreement between the parties. It is his further contention that the copies of the invoices (Exs.P22 to P24) issued by the defendant itself clearly show that the plaintiff has marketed the defendant’s product and accordingly, the plaintiff is certainly entitled to 5% commission on all sales. Exs.P2 and P3 (letters of the plaintiff addressed to the defendant) are not disputed by the respondent/defendant. It is his contention that the terms of the agreement insisted upon by the defendant, which were enclosed along with the letter of the defendant (Ex.P8), are not concluded and they were only in the process of negotiation. Whereas, the earlier arrangement between the parties has continued and the plaintiff was being paid commission at the rate of 5% for every sale. The very invoices issued by the respondent/defendant (Exs.P22 to P24) prove the concluded contract between the plaintiff and the defendant, particularly with regard to the commission payable by the defendant. Whereas, the trial Court has negatived the plaintiff’s case on the ground that Exs.P22 to P24 are only photocopies and print outs, and no certificate, whatsoever, under Section 65- B of the Indian Evidence Act is appended. The learned counsel would submit that, admittedly, those photocopies have been sent by the defendant themselves. Therefore, the question of issuing certificate under Section 65- B of the Evidence Act does not arise at all. It is his contention that, as long as the documents are not disputed by the other side, the trial Court ought to have relied upon the same. It is his further contention that, in Ex.P14 (reply notice) also, the defendant has clearly admitted the earlier arrangement between the parties. Therefore, the plaintiff is certainly entitled to recovery of amount.

10. Whereas, the learned counsel for the respondent/defendant would submit that, though there was some previous arrangement between the parties, it was purely on ad-hoc basis, whereas, when the defendant insisted the terms of the contract to be signed by the plaintiff, the plaintiff did not agree for the said terms set out by the defendant. Therefore, now, the plaintiff tries to take advantage of the earlier temporary arrangement to show that there was a concluded contract forever. The learned counsel would submit that, to show that 5% commission has been paid continuously to the plaintiff by the defendant and the same has realised by the plaintiff, no material, whatsoever, filed. Hence, he would submit that the trial Court has rightly concluded that the plaintiff is not entitled to recovery of money.

11. In the light of the above submissions, the points that arise for consideration in this Appeal are as follows :

               1. Whether there is a concluded contract between the plaintiff and the defendant to pay 5% commission for sale of the product of the defendant ?

               2. Whether the arrangement between the plaintiff and the defendant was only on ad-hoc basis or on permanent basis ?

Point Nos.(1) and (2) :

12.The suit has been laid for recovery of a sum of Rs.22,87,000/- said to be the commission payable by the defendant for sale of the defendant’s product, namely, Eloguard (a boiler feed water treatment chemical). It is the specific case of the plaintiff that there was an oral agreement between the plaintiff and the defendant from the year 1986, wherein, the defendant has agreed to pay commission at the rate of 5% on the sale price of Eloguard 84 and Eloguard 86 for all sales and that arrangement was for an indefinite period. Whereas, it is the stand of the defendant that, though initially, the plaintiff was paid 5% commission on the sale price of the defendant’s goods, that arrangement was only temporary in nature and in fact, the defendant has insisted for the terms to be signed by the plaintiff, for which, the plaintiff did not agree. Therefore, it cannot be said that there was an oral agreement continuously existed between the parties.

13. Much reliance has been placed by the learned counsel for the appellant/plaintiff on the letter dated 10.04.1990 addressed by the defendant, marked as Ex.P1. In Ex.P1, when carefully perused, though it is admitted that there were some discussions between the parties and in fact, the defendant has decided to appoint M/s.Resource Engineers as their Consultant for promoting sale of their multi-component polyamine viz., Eloguard with effect from 1st April, 1990, the fact remains that the defendant requested the plaintiff to sign the contract and forward the duplicate copy of the contract to them. The terms were also sent along with Ex.P1. However, the said terms have not been signed by the plaintiff. Instead, the plaintiff has sent a letter dated 18.06.1990, which is marked as Ex.P2, insisting upon the oral discussion which had taken place earlier. The correspondence between the parties clearly shows that there was no concluded contract reached between the parties. Though it appears that there were some discussions that took place earlier, when the defendant insisted for the written contract to be executed, the plaintiff did not agree for that. Whereas, the plaintiff insisted only for the earlier arrangement to continue. These facts clearly show that the plaintiff, in fact, did not like to enter into a written contract, which case, in fact, probabilises the defendant’s case that though there was some ad-hoc arrangement between the parties at initial stage, later, when the defendant insisted for a written contract, the plaintiff did not agree. Therefore, we are of the view that, merely because there was some oral arrangement earlier for selling the product, it cannot be said that there was a concluded contract between the parties forever. If really the plaintiff was interested in marketing the defendant’s products on commission basis, he ought to have entered into a contract as requested by the defendant. For the reasons best known to him, he has declined to do that. However, he continued to insist only upon the oral arrangement which was in vogue for few years.

14. Further, it is contended by the plaintiff that he was continuously paid 5% commission on every sale of the product. It is relevant to note that, though the plaintiff has admitted that he is also maintaining accounts and every commission received from the defendant is also accounted, no materials, whatsoever, placed before the Court to prove the same. The Income Tax Returns and Ledgers relating to the plaintiff's account are also not filed.

15. Much emphasis has been placed on Exs.P22 to P24 said to be the invoices raised by the defendant. It is relevant to note that these documents are only photocopies. Though it is stated by the plaintiff that these photocopies have been given only by the defendant, absolutely, there is no whisper, whatsoever, with regard to the availability of these documents in the hands of the plaintiff at the earliest point of time. If really the photocopies have been handed over by the defendant to the plaintiff, from the very inception, the same should have been pleaded in the plaint. However, the plaint is totally silent about Exs.P22 to P24, namely, the photocopies of the invoices. Surprisingly, for the first time, in the proof affidavit, the plaintiff has sought to give an explanation for non-production of the originals. Had the plaintiff pleaded these facts in the plaint, the defendant would have had an opportunity to dispute the documents. In the absence of any fundamental facts for filing the secondary evidence, merely on the basis of some explanation given at a later point of time, which has also not been pleaded in the plaint, these documents cannot be admitted as secondary evidence. Even assuming that the photocopies have been given only by the defendant, nothing prevented the plaintiff from seeking for production of the originals from the defendant. Atleast the plaintiff could have given a notice under Order 12 Rule 8 of CPC. However, the plaintiff had remained silent and not even a notice has been issued to the defendant to produce the originals. Further, Exs.P22 to P24, the so-called invoices relied upon by the plaintiff are not only photocopies, but also do not contain any signature of either any representative or officer of the defendant Company. Admittedly, the defendant Company is registered under the Companies Act and any invoice or statement raised normally should have been signed by the officer in-charge or any of the Directors of the Company. But the copies have not been authenticated and no signature, whatsoever, found. This also creates doubt about the very documents. Therefore, in the absence of proof with regard to the authenticity of these documents, these documents cannot be relied upon.

16. The evidence of P.W.1, in the cross-examination, also clearly indicates that, in fact, the defendant themselves are an agent of the product Eloguard 84 and Eloguard 86. Therefore, when the defendant themselves were an agent, entering into a contract with the plaintiff to pay 5% continuously without reducing the same into written terms, is also improbable.

17. Further, though Ex.P15 (statement of commission claims for 1988 sales) indicates that the defendant Company raised invoices on 18.05.1989 and 22.08.1989, the same clearly shows that those invoices have been raised in the name of M/s.Straw Products Ltd. The nature of the documents mentioned in Ex.P15 also differs from the actual commission the plaintiff is entitled even as per his pleadings, and further, there is no correlation between Ex.P15 and Ex.P17-invoice also. Similarly, Ex.P18-invoice issued by the defendant is only in favour of Tamil Nadu Newsprint and Papers Limited for a quantity of 1800 kg, whereas, in the statement relied upon by the plaintiff (Ex.P15), it is mentioned as only 800 kg. Further, the statement of accounts (Ex.P15) relied upon by the plaintiff is not authenticated by anyone and therefore, the same is not established.

18. Though Exs.P19 to P21 have been filed to show that certain amounts have been paid towards commission, we have already indicated that there was an ad-hoc arrangement prior to the defendant insisting for written contract. Therefore, merely because certain payments have been made on temporary basis prior to the defendant insisting for the written contract, it cannot be concluded that an oral agreement should continue forever, particularly the defendant being a Company.

19. As the entries in Exs.P22 to P24 have not been proved and no amount whatsoever paid, merely on the basis of some earlier temporary arrangement between the parties, we are of the view that the plaintiff is not entitled to recovery of amount in the absence of any clinching evidence to prove the concluded contract between the parties.

20. Exs.P13 and P14 (legal notice and reply notice), when carefully perused, make it clear that the defendant has settled the amount upto 31.03.1992. As the plaintiff did not sign the contract as requested by the defendant under Ex.P1, no amount has been paid later. Whereas, the plaintiff insisted upon payment only as per the earlier discussion made between the parties. Though it is contended by the plaintiff that, one Rajagopalan, who had discussion with the plaintiff and who was the competent person, has not chosen to examine himself and therefore, adverse inference has to be drawn against him, it is relevant to note that, merely because one of the Directors or officer in-charge has participated in the meeting, in the absence of any minutes evidencing the discussions, merely because the said person has not been examined, adverse inference cannot be drawn against him. The plaintiff has come up to the Court for recovery of money with a definite allegation that there was a concluded contract. Therefore, it is for him to establish the concluded contract and the nature of the amount payable based on authenticated accounts, which has not been done in this case as held supra. Therefore, both the points are answered against the plaintiff.

21. As a result, we do not find any merit in this Appeal. Accordingly, this Appeal is dismissed. No costs.