D.C.MILLS LTD Vs. VULCAN INDUSTRIES

JUDGEMENT

(1.) 1st defendant in O.S.No.237 of 2007 before the Subordinate Judge's Court, Alappuzha is the appellant. Parties are referred to hereinafter in the rank shown in the plaint. Case in the plaint, stated shortly, is as follows: Plaintiff/1st respondent is a division of EBSCO Industries having its principal office in the State of Delaware, U.S.A. Plaintiff is engaged in the manufacture and supply of point of purchase displays and custom store fixtures. 2nd defendant is said to be a subsidiary company of the 1st defendant and 3rd defendant is the retailer in Gorgia, U.S.A. During September, 2005, it was decided to commemorate the 25th anniversary of the 3rd defendant and in connection with that a world wide bay-reset in all other stores was organized as part of sales promotion. Accordingly, the 3 rd defendant ordered 1800 door mat sets costing $394.88 each from the plaintiff. 3 rd defendant informed the plaintiff that the 1st defendant would meet the expenses for the same as it was one of their value supplier partners. It is contended that such payments were transferred from the 1st defendant to the 2nd defendant who in turn remitted the same to the plaintiff's account. Plaintiff also contended that the defendants 1 and 2 were represented by Mr.Glynn P.Montelongo (in short, "Mr.Glynn"), the National Accounts Director of the 2nd defendant. It was further agreed that a total cost of U.S.$710,784/- for the transaction, in addition to the freight charges and taxes, would be paid by the 1 st defendant to the plaintiff. Further, there were e-mail communications between Mr.Glynn and Mr.Bryant Terry, the Business Development Manager of the plaintiff, which would make it clear that the freight charges and taxes were in addition to U.S. $710,784/-. The plaintiff had issued an invoice on 04.08.2005 to the 2nd defendant detailing the amounts due. In spite of repeated requests, the 1st defendant failed to make good the amount and therefore the defendants 1 and 2 are jointly and severally liable to pay U.S.$257,287/- with interest to the plaintiff.

(2.) 1st defendant filed a written statement raising a counter claim. The suit is not maintainable. It is an experimental one suppressing the material facts. The plaintiff has no locus standi to institute the suit and the power of attorney does not confer any power on the holder. 1st defendant is unaware of the transactions and it had no direct transaction with the plaintiff. 1st defendant had business transactions with the 3rd defendant. 3rd defendant had informed the 1st defendant regarding the intention of redesigning store bays in connection with their 25th anniversary and as part of the same the plaintiff had agreed to supply materials worth U.S.$710,784/- including the freight charges and taxes. The mode of payment to the plaintiff was also admitted. Since Mr.Glynn was only a supervisor at the premises of the 2nd defendant and not the National Account Director, the communications between him and the plaintiff do not bind the 1 st defendant. 2nd defendant was never acting for an on behalf of the 1 st defendant. The alleged e-mails are fabricated for the purpose of this case. Ext.A2 letter dated 01.07.2005 issued by the 3rd defendant to the 1st defendant clearly shows that the 1st defendant need to pay U.S. $710,784/- only. All the contrary averments are false. The invoices as

(3.) rd defendant well as payment schedule are fabricated documents. never asked the 1st defendant to pay anything more than U.S. $710,784/-. In fact the 1st defendant had made an excess payment of U.S.$82,967.81 to the plaintiff. The plaintiff is liable to refund the excess amount and hence the 1st defendant had set up a counter claim seeking realisation of the amount paid to the plaintiff in excess of their demand. There was no agreement between the parties at any point of time regarding the claim for payment of freight and taxes. 3. 2nd defendant filed a written statement contending that it is an entity different from the 1st defendant. It was only as per the direction of the 1st defendant, the 2nd defendant co-ordinated with the plaintiff to ensure effective and smooth transactions and payments. Be that as it may, the 2nd defendant was not authorised by the 1 st defendant to deal with the plaintiff for and on behalf of the 1 st defendant. 2nd defendant appointed Mr.Glynn temporarily for supervising the project. The e-mails are fabricated documents. Neither the 1st defendant nor the 2nd defendant has consented to pay freight charges and taxes to the plaintiff in addition to U.S.$710,784/-.