Narhari Electrical Company v S.P.B Duty Free Traders [1979] FJSC 95; Action 318.1977 (13 September 1979)

This is an action brought by the plaintiff for the recovery of a sum of $2,732.04 alleged to be due and owing by the defendant firm to the plaintiff company for duty-free goods sold and supplied to the defendant and for a repair account incurred during the period between 2nd March, 1977 and 18th July, 1977.

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March	2	To goods as per Inv. No. 29707 - $301.50
"	7	"	"	"	"	"	"	29809 - 122.40
	"							29795 - 208.00
	8							29908 - 144. 00
	10							29963 - 291.50
	23							30378 - 225.00
	24							30388 - 16.50
April	6							30633 - 76.00
	12							30649 - 419.50
								30701 - 149.50
	15							30732 - 57.00
	22							30873 - 252.00
May	2							31179 - 26.04
	4							31271 - 252.00
								31272 - 55.00
	19							31556 - 126.00

July	18	To repair service Invoice No.						32888 - 13.50
								$2746.44
		Less Credit balance								14.40

		Amount due							$2732.04

The defendant denies any liability for the amount claimed and says that it was a condition of the dealing between the plaintiff and the defendant that unless and until the plaintiff received an official order from the defendant signed by one S.P. Bidesi whose specimen signature was supplied to the plaintiff, no goods were to be sold or supplied by the plaintiff to any of the agents of the defendant.

Kalyan Dass (P.W.1) stated in his evidence that he was acting as General Manager for the plaintiff company during the period in question. He said that the plaintiff deals in duty-free goods which it would supply to customers on orders received from them. He said one of his customers was defendant firm which was owned and operated by one S.P. Bidesi. The witness described the procedure followed when orders are placed with the plaintiff. He said this was normally done through its own sales representative whose job was to go round the city and canvass for orders.

The orders would be taken down in the order book supplied to its sales representatives. Each order received would be entered in triplicate and would be signed by the customer to whom the original would be given and the duplicate would remain in the order book. The duplicate would later be used by the general manager or assistant manager in processing the order which among other things entailed the checking of the creditworthiness of the customer. After each order has been checked and processed an invoice would be made out by the clerk in the office. The invoices would then be checked by the general manager or assistant manager before they are taken to the bulkstore from which the goods ordered would be supplied. The staff at the bulkstore would organise the dispatch of goods and these transactions would be recorded in the packing slip book and in the delivery book. The customer receiving the goods would sign the delivery book in acknowledgment of the receipt of the goods. According to the witness a monthly statement would in due course be prepared and sent out to the customer and this would give the state of the account as at the date of the statement.

Referring to Ex. 43 which is a copy of a letter dated 9th March, 1977 which purports to have been written by one S.P. Bidesi of the defendant firm and addressed to the manager of the plaintiff company, the witness said he never received the original of this alleged letter. He said he only received a copy when it was sent to him with a covering letter (Ex. 44) dated 22nd August, 1977. The terms of the alleged letter are as follows:

I have noticed your company has supplied goods without our written official order. I have discovered discrepancies in charge accounts. My instructions to your sales representative Mr. Azam not to deliver goods without my written order, has been ignored.

Please note that no goods to be supplied without my official order and signed by S.P. Bidesi whose specimen signature appears below.

I will, not be responsible for any goods supplied without our official orderly."

Virendra Prasad (P. W. 2) said in evidence that he was employed by the defendant firm from 1976 until May 1977. Part of his job was to order goods which he would personally receive and enter up in the ledger after which he would display the goods for sale in the shop. The witness said that on several occasions he had ordered goods from the plaintiff company either on that company's order book or by telephone. According to him he was authorised to order goods from the plaintiff company by S.P. Bidesi.

He said he placed the orders Nos. 2513, 2516, 2525, 2550, 2559, 2571, 2578, 2702 (in Exs. 1, 2 and 3) and possibly though he could not be sure No. 2598.

Most of the goods ordered he would receive himself and sign for them but this was not always the case.

He said he would sign delivery notes in respect of goods received from plaintiff company and this include in Ex. 27 delivery note Nos. 14096, 14103, 14166, 14192 but 14015 was signed by H.K. Sinha and 14173 by Watisoni, both employees of defendant firm. In Ex. 28 the witness said he signed for goods in delivery note No. 14271 - in Ex. 29 delivery note Nos. 14434 and 14503 - in Exs. 30, 31 and 32 delivery note Nos. 18909, 20779 and 20904 respectively.

The witness said that S.P. Bidesi used to check goods delivered at the shop every afternoon. He would check what they received and sold by perusing the receipt book and ledger book with the Invoices. The witness also said the goods received from the plaintiff company were of National product items. They would be brought in with packing slips together with respective invoices in which the numbers of each of them would be noted on the top right corner of the relevant packing slips.

According to the witness following a dispute with the plaintiff company over the payment of goods received S.P. Bidesi instructed his staff not to place any orders except under his written orders. According to him this was just about the time he left the job which was in May 1977. The witness said the orders he placed with the plaintiff company were made before S.P. Bidesi gave these instructions to them. The witness said he never saw Ex. 43, a letter purporting to have been written by S.P. Bidesi to plaintiff company. The witness said that S.P. Bidesi never told him that he should get his initials before placing any orders.

Shehzad Azam Ali (P.W.3) in his evidence said that he was working for plaintiff company in March 1977 to July 1977. His Job was to canvass for orders from companies round the city. He would write the order in an order book of the plaintiff company which was supplied to him for that purpose.

He said Virendra Prasad (P.W.2) had placed several orders with him for defendant firm. These included in Ex. 1 orders No. 2513, 2516, 2556, 2571, 2578 and in Ex. 2 order No. 2702, He said in Ex. 3 order No. 2828 was taken by another salesman of the company. He said sometimes S.P. Bidesi would be present in the shop when he took down the orders.

The witness said the top copy from the order book would be given to the customer and the carbon copy would go to the office from which the invoices would be prepared. The third copy remains in the book.

According to the witness he never at any time saw the original of Ex. 43. He said S.P. Bidesi never gave him the letter to deliver to his boss. Referring to the third entry on page 87 of Ex. 49 witness said the signature therein and which is alleged to be his was not his. He said his usual signature appears on sheet 50 in the Wages Register (Ex. 42) and in Ex. 50.

The witness said S.P. Bidesi never told him not to accept any orders without first getting his initials on them.

Jayanti Lal (P.W.4) was assistant manager of the plaintiff company during the period in question. According to him part of his job was to process orders received and pass them on to the invoice clerk to prepare necessary invoices. He said after the invoices were prepared he would check them and then pass them on to the bulkstore where the goods would be supplied and despatched to the customers.

Invoice No. 30873 (Ex. 12) relates to an Order which was received on telephone for $252

Invoice No. 32888 (Ex. 17) relates to repair charges on job No. 18194 for $13.15

Viliame Rokobuli (P.W.5) was a clerk at the plaintiff company's bulkstore. In that job he was among others responsible for preparing packing slips from invoices received from head office. According to this witness -

Packing slip No. 11369 (Ex.18) which was prepared by one Virendra Lal also an employee at the bulkstore relates to Invoice No. 31556.

The goods in relation to the packing slips would then be brought out and checked and this together with invoices and the respective packing slips would be given to the delivery driver Surendra Prasad who in his delivery of goods was assisted by the delivery boy Jagdish Singh.

The job of delivering goods ordered by the defendant firm during the period in question was carried out jointly by Surendra Prasad (P.W.6) the van driver for the plaintiff company and Jagdish Singh (P.W.7) the delivery boy. Record of goods delivered by them to defendant firm and other customers during the period in question was maintained in the plaintiff company's relevant delivery books.

According to Jagdish Singh the goods he delivered to the defendant firm during the period in question was signed for in all instances but one by Virendra Prasad (P.W.2) and these are recorded in the delivery notes which also bear the corresponding invoices as noted hereunder -

Delivery Note No. 14015 (Ex. 27) relate to Invoice No. 29963 for a sum of $291.50

Delivery Note No. 14013 (Ex. 27) relates to Invoice No. 30388 for a sum of $16.50

Delivery Note No. 14172 (Ex. 27) relates to Invoice No. 30649 for a sum of $419.50

Delivery Note No. 14173 (Ex. 27) relates to Invoice No. 30701 for a sum of $149.50

Delivery Note No. 14482 (Ex. 29) relates to Invoice No. 31179 for a sum of $26.04

Delivery Note No. 18909 (Ex. 30) relates to Invoice No. 29809 for a sum of $122.40

Delivery Note No. 20904 (Ex. 32) relates to Invoice No. 29707 for a sum of $301.50

Evidence on behalf of the plaintiff company which I have outlined concerning the supply of goods and services on orders purporting to have been made on behalf of the defendant firm between March and July 1977 has not been seriously challenged at the trial. Accordingly I accept as a fact that goods and services were supplied to the defendant firm as claimed by the plaintiff company.

The defence is based in essence upon the contention that the transactions claimed to have been made between the parties and which I have accepted as having in fact been made were wholly unauthorised and therefore no liability could be accepted for them. The evidence on which this contention is based was given by S.P. Bidesi who at all material times was the owner of the business of the defendant firm. He started the business in 1975.

In his evidence S.P. Bidesi said that in or about March 1977 he had had a dispute with his salesman, Narend Sharma, (who is no doubt the same person who was referred to earlier as Virendra Prasad (P.W.2) and as a result of that dispute S. P. Bidesi said he wrote a letter (Ex. 43) to plaintiff company. According to him he took the letter personally and delivered it to Azam Ali (PW3) at the plaintiff company's shop. He said Ali received the letter and signed for it in Ex. 49 (third entry from the top). S. P. Bidesi also said that at the shop he told Ali and the manager that no goods were to be supplied without his written orders. He said despite his instructions to the plaintiff company goods continued to be charged to his firm without his written authority for them.

Ali and the manager of the plaintiff company both denied S.P. Bidesi's allegations that he had told them not to supply goods without his written orders. Ali said he never received the letter which S.P. Bidesi claimed to have delivered to him and for which he allegedly signed in Ex. 49. Ali's specimen signatures as noted above appear on Sheet 50 in Ex. 42 and in Ex. 50. Neither of these signatures bears any resemblance whatever to the signature in Ex.49. I accept Ali's evidence that he did not sign the entry in Ex. 49. The onus of satisfying this Court as to the alleged instructions to the plaintiff company not to supply goods without S.P. Bidesi's personal written orders falls on the defendant firm. In this regard and on the test of probabilities I am not satisfied that such onus has been discharged by the defendant firm. In my opinion this is the crux of the matter in this case and in these circumstances I have no alternative but to find for the plaintiff company.

Accordingly I give judgment for the plaintiff company against the defendant firm in the sum of $2,732.04 together with costs to be taxed in default of agreement.

Supreme Court of Fiji

Narhari Electrical Company v S.P.B Duty Free Traders [1979] FJSC 95; Action 318.1977 (13 September 1979)