9911796707
TMI Blog2003 (4) TMI 565X X X X Extracts X X X X X X X X Extracts X X X X ..... otams. For all intents and purposes there was no change of proprietorship. Plaintiff No.2, Tahil Ram is the father of respondent- plaintiff No.1 and his power of attorney holder. Tahil Ram entered into an agency-cum-deed of licence with the appellant-defendant on 15.5.1975 and the terms of such agency-cum-licence agreement was incorporated in an agreement dated 15.5.1975. Earlier, the appellant-defendant was having his business as tailors and drapers at A-7, Prahlad Market, Deshbandhu Gupta Road, New Delhi. He had approached respondent-plaintiff No.1 for use of his premises in question under his tenancy as a show room on licence-cum- agency basis. As per the agreement, plaintiffs were to receive their commission @ 12% on tailoring business and @ 3% commission on the sale of materials of all kinds as conducted by the appellant-defendant. Possession of the shop continued with the plaintiffs along with the tenancy rights. The agreement was initially for a period of five years, with option of extension by mutual consent. The agreement expired on 14.5.1980 and was never renewed thereafter. In terms of clause 5 of the agreement, the appellant-defendant was to keep separate accounts of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion and, therefore, the question of rendition of any accounts did not arise. It was further stated that due to litigation between plaintiff No.1 and his landlords, the defendant was made a victim though with a spirit of good faith and to help the plaintiffs, he had signed some documents which were not intended to be acted upon, but have been maliciously relied upon to his disadvantage. There was no relationship of principal and agent as claimed. A suit for injunction had been filed and the same is pending adjudication. Additional plea was taken that as per averments in the plaint, defendant is alleged to have committed act of criminal trespass on 2.5.1980 after surrendering possession to the plaintiffs, so the suit on the basis of agreement dated 15.5.1975 or on the basis of termination of agency-cum-licence deed is not maintainable. Initially 11 issues were framed on 17.2.1981. Subsequently, an additional issue was framed on 6.4.1993. Nine witnesses were examined to further the plaintiffs' case, while defendant examined seven witnesses. Several documents were exhibited and proved. Some other documents were marked, but were not proved. The Trial court decreed the suit in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 14.10.1977 to 31.3.1978 fixed at ₹ 7,000/- was affirmed. For the period from 1.4.1978 and 14.5.1980 the appellant-defendant had not rendered accounts and, therefore, taking into account the average monthly commission for which the accounts were rendered, a decree for ₹ 25,500/- was passed in favour of the plaintiffs and against the defendant in respect of the commission charges for the period from 1.4.1978 to 14.5.1980 and subject to payment of court fees by the plaintiffs. As the appellant- defendant was in unauthorised occupation of the premises in question at the rate of ₹ 1200/- p.m., the Trial Court was not justified in fixing at the rate of ₹ 500/-. The commission for the period for which accounts were rendered was more than ₹ 1200/- in the normal course and, therefore, the appellant would have paid ₹ 1200/- p.m. even if he was continuing in possession in terms of the agreement. The rentals in the area have increased by leaps and bounds after 1980 and the claim of ₹ 1200/-p.m. was very reasonable. Therefore, respondent-plaintiff No.1 would be entitled to damages for use and occupation of the premises by the appellant-defendant at the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tive. Though the Trial Court had granted ₹ 500/- p.m. as damages, the High court suo motu without even any challenge thereto by the respondent raised the same to ₹ 1200/-p.m. The specific stand of the appellant was that the agreement was executed as a devise to protect the plaintiffs in the suit for ejectment or/and that relating to fixation of standard rent in the dispute between the plaintiffs and their landlords. The High Court erroneously came to hold that payments were made as commissions for various periods. As the Trial Court proceeded on the basis as if the appellant was a party in proceedings earlier, the foundation of its conclusions was shaken. The High Court should have remitted the matter back to it for fresh adjudication after having found that the conclusions were contrary to records and materials; instead it adjudicated the matter acting as a Trial Court which is not permissible. The High Court erroneously proceeded to do so as if the appellant had conceded to such a course being adopted while in reality there was no concession. Per contra, learned counsel for the respondent submitted that after having agreed before the High Court that it may take up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... what has been said in State of Maharashtra v. Ramdas Shrinivas Nayak and Anr. (1982 (2) SCC 463). In a recent decision Bhavnagar University v. Palitana Sugar Mill Pvt. Ltd. and Ors. (2002 AIR SCW 4939) the view in the said case was reiterated by observing that statements of fact as to what transpired at the hearing, recorded in the judgment of the Court, are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. If a party thinks that the happenings in Court have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the Judges, to call the attention of the very Judges who have made the record. That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there. It is not open to the appellant to contend before this Court to the contrary. Before we deal with the factual aspects, it would be proper to deal with the plea relating to scope and ambit of Sections 91 and 92 of the Evidence Act. Section 91 relates to evidence of terms of contract, grants and other disposition of properties reduced to form of document. This ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but are always possible elements. The enaction or creation of an act is concerned with the question whether any jural act of the alleged tenor has been consummated; or, if consummated, whether the circumstances attending its creation authorise its avoidance or annulment. The integration of the act consists in embodying it in a single utterance or memorial commonly, of course, a written one. This process of integration may be required by law, or it may be adopted voluntarily by the actor or actors and in the latter case, either wholly or partially. Thus, the question in its usual form is whether the particular document was intended by the parties to cover certain subjects of transaction between them and, therefore, to deprive of legal effect all other utterances. The practical consequence of integration is that its scattered parts, in their former and incohate shape, have no longer any jural effect; they are replaced by a single embodiment of the act. In other words, when a jural act is embodied in a single memorial all other utterances of the parties on the topic are legally immaterial for the purpose of determining what are the terms of their act. This rule is based upon an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he wants to establish a particular contract between certain others, either when such contract has been reduced to in a document or where under the law such contract has to be in writing, can only prove such contract by the production of such writing. Sections 91 and 92 apply only when the document on the face of it contains or appears to contain all the terms of the contract. Section 91 is concerned solely with the mode of proof of a document which limitation improved by Section 92 relates only to the parties to the document. If after the document has been produced to prove its terms under Section 91, provisions of Section 92 come into operation for the purpose of excluding evidence of any oral agreement or statement for the purpose of contradicting, varying, adding or subtracting from its terms. Sections 91 and 92 in effect supplement each other. Section 91 would be inoperative without the aid of Section 92, and similarly Section 92 would be inoperative without the aid of Section 91. The two sections are, however, differ in some material particulars. Section 91 applies to all documents, whether they purport to dispose of rights or not, whereas Section 92 applies to documents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ements as per the terms of an agreement. The High Court also referred to certain exhibited documents to hold that the appellant was paying commission at the rate of 12% on the tailoring business, and 3% on the sale of materials of all kinds. Reference has been made to Exhibits PWs 6/4, 6/5, 6/6 to 6/9. It was noted that cheque dated 12th August, 1975 for ₹ 963.43 has been paid which corresponds to the commission for the month of July 1975 payable on the sale of cloth as well as tailoring. The cheque is exhibited as PW 2/3. On a reference to Exhibit PW 6/4 and Ex.PW6/5, it appears that in respect of the sale of cloth and on commission of tailoring, the amounts payable for the month of July 1975 are ₹ 454.95 and ₹ 513.48 respectively. Adding up, the total comes to ₹ 968.43 for which cheque dated 12.8.1975 has been issued. Similarly, for the month of August 1975, the amounts are ₹ 401.85 and ₹ 513.72, and cheque dated 19.9.1975 is for an amount of ₹ 915.57, which tallies with the commission of ₹ 401.85 and ₹ 513.72 respectively. Some instances were also noticed by the High Court. It was highlighted that in many instances amou ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
