9911796707
TMI Blog1966 (9) TMI 70X X X X Extracts X X X X X X X X Extracts X X X X ..... ans, officers, watch and ward staff) of the Bharathkhand Textile Manufacturing Company Limited, arrears of wages and claim of the applicants is that they were employees of the Bharathkhand Textile Manufacturing Company Limited for the period 21st January, 1961 to 31st March, 1962, and they are, therefore, entitled to recover from the respondent the sum of Rs. 39,619.87 representing the arrears of wages due to them from the Bharathkhand Textile Manufacturing Company Limited (hereinafter referred to as the company) for work done during the said period. The applicants are a partnership firm and they were appointed as dalals by the company for sale of cloth manufactured by the company throughout the whole at India on the terms and condition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per cent. of the verified claims and it was provided that the amount representing 40 per cent. of the verified claim should be paid by the purchaser to Shri C.C. Gandhi and Shri M.M. Thakore, learned advocates appearing on behalf of some of the creditors and they should distribute the said amount amongst the unsecured creditors according to 40 per cent, of the verified claims. The Scheme also provided that unsecured creditors whose claims were admitted in the books of the company and shown in the statements annexed to the affidavit filed by Shri Ravindra Gunvantlal in court on 3rd December, 1963, should also be entitled to receive 40 per cent. of their admitted claims from out of the amount to be handed over by the respondent to Shri C.C. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions on which the applicants were appointed as dalals by the company. The agreement in its opening part declared that the company has appointed the applicants as its cloth dalals for the whole of India and the applicants have agreed to their appointment as such for the purpose of selling cloth manufactured by the company for the period commencing from 21st January, 1961, and ending on 20th January, 1966, on the terms and conditions contained in the agreement. Clauses 1 and 2 of the agreement then proceeded to state as follows : "(1)That the dalals shall have the sole and exclusive right of selling the cloth manufactured by the company, provided that nothing herein contained shall be deemed to prevent the company from supplying or s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stomers in India. The company, however, reserves the right to appoint or sell through other selling agents in any specific territory, for the purpose of their sales to exporters, and pay any additional commission to such commission agencies." Clause 10 provided for payment of dalali to the applicant at the rate of half per cent, on net sale proceeds received by the company on all sales of cloth effected either through the dalals or otherwise. And lastly clause 17 laid an obligation on the applicants to carry out and abide by and faithfully follow any instructions which might be given to them from time to time by the company relating to the matters arising under the agreement. These were the relevant provisions of the agreement and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly, Dharangadhara Chemical Works Ltd. v. State of Saurashtra [1957] SCR 152; AIR 1957 SC 264; 11 FJR 439, that the relationship of master and servant imports the existence of the right in the employer not only to supervise and control the work but also the manner in which the work is to be done. The proper test, to use the words of Lord Uthwat in Mersey Docks and Harbour Board v. Coggins and Griffith ( Liverpool ) Ltd. [1946] 2 All. ER 345; [1947] AC 1, 23, " is whether or not the hirer had authority to control the manner of execution of the act in question." But the application of this test to the facts of the present case does not yield the result contended for by Mr. V.S. Parikh. Clauses 3, 4 and 17 on which reliance has bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eement in terms says that the applicants are appointed dalals for sale of cloth manufactured by the company, it is impossible to hold that the applicants are not brokers or agents appointed by the company but are employees of the company Clause 1 of the agreement confers sole and exclusive right on the applicants to sell the cloth manufactured by the company with a reservation that the company may, if it thinks fit, sell cloth direct to persons or firm or create "other selling agencies" for any defined territories. But in that case the company would still have to pay dalali to the applicants on sales effected directly or through other selling agencies. The use of the words "other selling agencies" clearly suggests that the applicants ar ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
