The plaintiffs in O.S.No.99 of 1997 are the appellants herein.
2.The plaintiffs filed a suit for recovery of Rs.1,21,394.91/- from the defendants. The plaintiffs are sister concerns, owned by one T.S.Krishna Rao. The first plaintiff is doing business in printing and block making and the 2nd plaintiff is a publisher of a journal.
3.The 2nd plaintiff proposed to publish a supplement along with their 1981 ANNUAL NUMBER and for that, canvassed technical articles, write-ups and color photos, drawings etc., for publication inside the journal and by letter, dated 10.11.1980, the 2nd plaintiff addressed the first defendant to send articles and write-ups containing not more than 2000 words supported by glossy colour photos. The 2nd plaintiff also mentioned in the letter that the articles and colour photos would be published free of charge and 25 copies of reprints of the article will be sent free of cost and the first defendant has to pay only the charges for the preparation of the colour blocks directly to the 1st plaintiff.
4.It is further stated in the said letter, that if the colour photos received from the 1st defendant are nice and sharp, one of them may be used on the Front Cover Page at Inset. The first plaintiff also sent the invoice containing rates for preparing the blocks in black and white and color blocks to the first defendant. A reminder was also sent by the 2nd plaintiff to the defendants on 10.01.1981 and the first defendant, by his letter, dated 22.01.1981 to both the plaintiffs, enclosing leaflets in English language, showing small machineries and tools and their production programme and also colour photos and in the letter addressed to the 1st plaintiffs, the defendants also acknowledged the receipt of the first plaintiff's letter, dated 10.11.1981, containing the invoice the blocks and also stated that the same was accepted and directed the first plaintiff to send their invoice for color blocks making charges to Mr.Leitner, who will directly pay the charges for making the blocks. The first defendant in their letter, dated 22.01.1981, to the 2nd plaintiff permitted the 2nd plaintiff to select the leaflets and to compile the pictures and blocks for the articles as per their own choice. The 2nd plaintiff also sent a letter, dated 30.01.1981 to the first defendant informing that they would compile and publish colour photos and as per the advise of the first defendant, invoice for the block making charges, will be sent to the person stated in their letter. According to the plaintiffs, they have prepared the blocks and colour photos and one color photo was utilized for the front cover page. Another block of the colour photos, were utilized inside the write-up in the journal duly published in the supplement to the 1981 Annual Number of the 2nd plaintiff and twenty five reprints copies for the technical write-ups were also submitted as per the acknowledgment, dated 06.07.1981, by the first defendant. Thereafter, the first plaintiff submitted their bill or invoice of their charges for such block-making, with a covering letter, dated 25.06.1981 and the first defendant, by their letter, dated 06.07.1981 protested the claim of the first plaintiff and contented that they have agreed for the blocks to be made to cover 2000 words and contrary to the agreement, the plaintiffs published the entire article and utilized all the colour photos and the article published was in excess of 2000 words as agreed by the parties and therefore, they are not liable to pay the charges for preparing the blocks, which are used in the journal in excess of 2000 words. The plaintiffs repudiated the claim of the first defendant stating that by letter, dated 22.01.1981, the first defendant has authorized the 2nd plaintiff to select the photos as per their choice and therefore, having given option to the 2nd plaintiff, it is not open to the first defendant to contend that they are not liable to pay anything more than what has been published beyond 2000 words and as per the invoice, the cost for preparing colour blocks, which was published in the journal comes to U.S.$8020.
5.The plaintiffs, therefore calculated the interest @ 12% on the aforesaid amount, which comes to U.S.$.2287.00 and filed a suit for recovery of U.S.$ 10907.00, which is equivalent to Rs,1,21,394.91 and filed the suit for the recovery of the said amount.
6.The first defendant filed a statement stating that the 2nd plaintiff exceeded the authority and the permission granted to him and without consulting the first defendant, the 1st plaintiff prepared blocks for all the photos and the defendants never agreed for the charges mentioned in the plaint. There is no privity of contract between the first defendant and the plaintiffs and the first defendant has also no privity of contract with the 2nd plaintiff. The defendants had never dealt with the first plaintiff and the 2nd plaintiff is not entitled to claim charges for making all the blocks and the plaintiffs have not acted bona-fide. The plaintiffs have acted voluntarily and therefore, they are not entitled to seek reimbursement and there is no contract between 1st defendant and second plaintiff and as such there was no concluded contract between the parties for making blocks and the 2nd plaintiff without getting consent of the defendants, lavishly and extravagantly published the articles running to 10000 words and prepared blocks of the entire photos, though the 2nd plaintiff was requested to select some of the leaflets and colour blocks to suit within 2000 words. The 2nd plaintiff cannot publish exceeding 2000 words and only some of the blocks should have been used for publishing 2000 words in the article and contrary to the agreement, the plaintiffs published the articles containing more than 10,000 words and also used all the colour photos, by preparing blocks for those photos and hence, there is no agreement between the parties for payment of charges for the preparation of blocks to all the photos and hence, the first defendant is not liable.
7.In the additional written statement filed by the first defendant, the first defendant contented that no copy of the journal was circulated and published either in India or outside India and the 1st defendant was not at all benefited by the blocks making as there was no publication and the defendants were trapped into the evil design of the plaintiffs and charges claimed are excessive and unfair. The 2nd defendant filed a separate statement stating that there is no privity of contract between the plaintiffs and the 2nd defendant and also denied various allegations made in the plaint and the rest of the statement of the 2nd defendant was similar to the statement of the firs defendant. The 2nd defendant also filed additional written statement similar to that of the first defendant.
8.The plaintiffs filed reply statement stating that the suit is filed against the first defendant based on correspondence interse and the 2nd defendant was impleaded formally because the first defendant has written to the plaintiffs to receive the payment from the 2nd defendant and the second defendant was projected as an Indian representatives of the 1st defendant. The plaintiffs also denied the allegations that there was no publication and reiterated that there was a concluded contract between the plaintiffs and the first defendant.
9.The plaintiffs examined the Proprietor of M.K.Press as P.W.1 and marked 48 documents and the defendants did not examine any witness and marked the journal for the year 1981 published by the 2nd plaintiff.
10.The lower court on the basis of the oral and documentary evidence framed the following issues:
1.Whether the defendants are liable to pay the amount as claimed by the plaintiffs?
2.Whether the first plaintiff is entitled to claim that amount from the defendants?
3.Whether the suit filed by the plaintiff against the defendants is maintainable?
4.Whether the claim for sale tax and interest tenable?
5.To what relief, the plaintiffs are entitled to?
11.Additional Issue No.1: Whether there was any agreement between the plaintiffs and the defendants for publication in the journal?
2.What are the details of publication made by the 2nd plaintiff as per the contract?
3.Whether any concluded contract came into existing between the plaintiffs and the first defendant?
4.Whether the 2nd plaintiff published the articles of the first defendant in the journal?
12.The lower court, after discussing the oral and documentary evidence, answered the Additional Issue Nos.1 & 3 holding that there was a concluded contract between the first defendant and the 2nd plaintiff and in respect of Additional Issue No.2 that the 2nd plaintiff published the journal and while answering the Issue No.4 held that the plaintiffs are entitled to sale tax and interest. While answering Issue No.3, the lower court has held that the suit filed by the plaintiffs is maintainable and after holding that there was a concluded contract between the parties and the 2nd plaintiff did publish the articles in the journals, answered the Issue Nos.1 & 2 against the plaintiffs holding that in the absence of any proof for the expenses incurred by the plaintiffs for making blocks, the plaintiffs are not entitled to recover the amount from the defendants and dismissed the suit. Aggrieved by the same, the first appeal is filed by the plaintiffs.
13.Mr.S.Parathasarathy, the learned Senior Counsel appearing for the appellants argued that the trial court having held that there was a concluded contract between the parties and the journal was published by the 2nd plaintiff, which carried the article as well as the photos given by the first defendant, erred in dismissing the suit, holding that the plaintiffs have not proved that they incurred expenses for preparing the blocks. The learned Senior Counsel submitted that once the publication of the journal, which contains the articles as well as the blocks were proved, the first defendant is liable to pay the charges and the suit ought not to have been dismissed on the ground that the plaintiffs failed to prove that they have incurred expenses in preparing the blocks.
14.On the other hand, Mr.V.K.Vijayaraghavan, the learned counsel appearing for the respondents submitted that as per the admission of PW1, there cannot be any claim against the 2nd defendant and even in the reply statement filed by the plaintiffs, they have admitted that the 2nd defendant can be exonerated and therefore, there cannot be any claim against the 2nd defendant. The learned counsel further submitted that the finding of the lower court that there was no concluded contract is not also correct. Though, the defendants have not filed any cross objection against the finding, they are entitled to canvass the finding on those issues in this appeal and according to him, there is no concluded contract between the parties and the plaintiffs without getting the approval of the first defendant for preparing the blocks for the entire colour photos, exceeded the authority and hence, they are not entitled to claim amount from the first defendant. He further contented that as per the documents filed by the plaintiffs and as per his oral evidence, the 2nd plaintiff offered to publish the articles submitted by the first defendant not exceeding 2000 words and publish the photos, by preparing blocks for that article, which did not exceed 2000 words and the plaintiffs have published the articles containing more than 10,000 words and prepared the blocks for all the photos, which was not agreed by the first defendant. In other-words, the first defendant has agreed for the preparation of blocks, which are necessary to be placed for the articles containing 2000 words and hence, the plaintiffs are not entitled to claim the charges for preparing the entire blocks.
15.From the submissions of counsels for the plaintiffs and the defendants, the points for consideration to be considered in this appeal are:
1.Whether there was a concluded contract between the plaintiffs and the first defendant as alleged by the plaintiffs?
2.Whether there was no concluded contract between the plaintiffs and first defendant for the payment of blocks, which are necessary for the publication of the articles containing more than 2000 words?
3.Whether the first defendant is not liable to pay the charges for the block of all the photos as contended by him?
4.Whether there was publication of journal in foreign countries as claimed by the plaintiffs?
16.Point Nos.1 to 3: The case of the plaintiffs is that there was a concluded contact between the parties and in pursuance of that contract, the plaintiffs incurred expenses for preparing the blocks for all the colour photos and liberty was given to the 2nd defendant by the first defendant for choosing the colour photos and the 2nd plaintiffs on the basis of the liberty given to him by the first defendant prepared the blocks for all the photos as they are necessary for covering the entire articles. The lower court has also held that there was a concluded contract between the parties, but the defendants contended that there was no concluded contract and at the most, the first defendant is only liable to pay the costs of the blocks, which are necessary to be published for covering the articles containing 2000 words and in respect of those photos, which are not necessary for covering more than 2000 words in the article, they are not liable to pay the same.Therefore, we will have to see what was the contract that was agreed to between the parties.
17.Under Ex.A1, dated 10th November 1980, the second plaintiff informed the first defendant about the publication of 1981 Annual Number of their Railway Engineering Journal and requested the first defendant to contribute a suitable technical article or write-up as suggested, containing not more than 2000 words duly supported by glossy colour photos. In that, it was also stated that the article would be published free of charge and 25 reprints will also be supplied free of costs and colour photos will also be published free of charge and the first defendant has to pay the cost for preparing of colour blocks to their block makers on receipt of the invoice, to them directly.
18.The first plaintiff also sent price list for the preparation of colour blocks, line blocks and b/w halftone blocks, by their letter, dated 10.11.1980, which was marked as Ex.A2. In response to the letter of the 2nd plaintiff, the first defendant, by his letter, dated 22.01.2008 (Ex.A4), sent a letter to the first plaintiff acknowledging the receipt of the letter, dated 10.11.1980 containing price list for preparing the blocks marking the rates for black and white and coloured blocks. It is further stated that the schedule of block- making charges are accepted and they have sent a leaflets in English language showing small machineries and tools of their production programme with coloured photos and requested the plaintiffs to send a invoice for colour blocks making charges. The first defendant also sent a similar letter to the 2nd plaintiff (Ex.A8), wherein it has been specifically stated that they were ready to make use of the offer made by the 2nd plaintiff and they have sent the leaflets in English language, showing small machineries and tools and also some colour photos and also permitted the second plaintiff to select the leaflets by themselves and to complete the blocks and use the same for the articles as per the their choice. Therefore, it is seen from Ex.A1, 2, 4 & 8, there was an offer from the plaintiffs for publishing the articles sent by the first defendant in the Annual Number and its supplementary along with the colour photos and black and white photos and the first defendant also agreed about the charges for making blocks as per the price list Ex.A2 and it was also made clear that the parties were under the impression that the article will be published containing not more than 2000 words and necessary photos will be published along with the articles, for which the first defendant has to pay for block making charges.
19.It is further made clear by the letter of the 2nd plaintiff, dated 30th 1989 (Ex.A5) that they received the technical leaflets and were satisfied with the information furnished therein and informed the first defendant that the technical leaflets would be compiled into a nice technical article and it would be published with the colour photos in the 1981 Annual Number's International Railways Track Construction Machineries & Maintenance Equipments Supplement. Therefore, it is seen from Ex.A5 that the second plaintiff has agreed to compile the leaflets furnished by the first defendant into a nice technical article. The first defendant also sent a letter, dated 11.02.1981 informing that block making charges for the preparation of one black and white, will be done by them on the basis of the price lists issued by the plaintiff 10.11.1980(Ex.A2) and requested the 2nd plaintiff to send the invoice to their Indian representative. The 2nd plaintiff by their letter, dated 19.02.1981 (Ex.A6), which was in reply to the letter of the first defendant, dated 11.02.1981 stating that the advertisement b/w will be published placing their technical, write-up on the right hand side full page and informed that invoice would be sent to them quoting U.S.dollar rate. Thereafter, by letter, dated 25.06.1981, the first plaintiff sent the invoice for preparing the colour blocks claiming U.S.$8020, which includes sale tax, surcharge, packing and forwarding charges etc. and at that time only, the first defendant objected about the quotation made in the invoice and also questioned the plaintiffs act of using all the colour photos for preparing the blocks and informed that they had agreed for the publication of articles, permitting not more than 2000 words together with the necessary colour photos to cover such article and the plaintiffs contrary to their instructions and instead of selecting some of the material on hand, published all the leaflets that had been sent by them, covering 36 pages together with all photos and they never agreed for the use of one of the photos for the front cover page, for which the plaintiffs charged U.S.$ 475.
20.It is further made clear from the letter, dated 06.07.1988 (Ex.A12) that contrary to the quantity of 2000 words, the article is comprising of 10,000 words and for the said 10,000 words, all the photos were used and therefore, they are not liable to pay the entire amount. In their letter, dated 06.07.1981 to the plaintiff (A13) the first defendant also made it clear that they are liable to pay the charges for blocking making in respect of 2000 words and they are not liable for the cost of block making for the entire 10,000 words. Therefore, it is seen from these correspondences dispute arose between the plaintiffs and the first defendant about the number of photos that could have been used for the preparation of the articles.
21.Mr.S.Parthasarathy, the learned counsel appearing for the appellants submitted that as per Ex.A8, the letter addressed by the 2nd defendant to the first plaintiff, the first defendant authorized the 2nd plaintiff to select the leaflets by them to compile the picture and blocks of the articles as per their own choice and therefore, the learned counsel contended that having given liberty to select the leaflets and the photos, the plaintiffs exercised discretion given to them found that the entire articles and the photos sent by the 1st defendant were found to be so interesting and therefore, published the entire article, by using the above colour blocks and for this made the claim. Hence, the first defendant cannot resile from that agreement latter.
22.He would further submit that though it was originally stated that the article will have only 2000 words, having given them liberty to select articles as well as the photos, the first defendant cannot go back on their words and cannot question the authority of the 2nd plaintiff in publishing the entire articles, submitted by the first defendant and it is not open to the first defendant to refuse to pay the aforesaid payment for the same.
23.Per contra, the learned counsel appearing for the respondents, Mr.V.K.Vijayaraghavan, submitted that a reading of Exs.A1 to A13 would make it clear that there was no agreement and consensus ad-idem between the parties and the first defendant never agreed to pay the charges for preparing the blocks and the first defendant is also not liable to pay any charges for block making as there was no publication of articles as alleged by the plaintiffs in foreign countries and the plaintiffs, by making fraud on the first defendant falsely claimed that they had published the journals and circulated in foreign countries, which they did not do and therefore, they are not liable to pay any charges.
24.As stated supra, the first defendant, by their letter, dated 22.11.1981 to the first plaintiff and the 2nd respondent made it clear that they were ready to use the offer made by the 2nd plaintiff and have sent the leaflets in English showing some machineries and tools of their production programme and also sent colour photos. Therefore, it is seen from these documents Ex.A4 and A8 that the offer made by the plaintiffs made in their letter, Ex.A1, A2 were accepted by the first defendant. It is seen from Ex.A1, 2 & 3 that the offer was to publish the articles containing not more than 200 words and publish colour photos for the said article and in their letter, dated 30.01.1981(Ex.A8), the second plaintiff also made it clear that they would compile the article into a nice technical article and publish them with the colour photos in their Annual Number. In their letter, dated 30.01.1981, Exs.A3 to A6, the plaintiffs did not inform the first defendant that they are going to make use of the entire colour photos and b/w photos sent by the first defendant and they are going to publish the entire article containing more than 2000 words.
25.Further, it cannot be contended by the learned counsel appearing for the appellants, that by virtue of liberty given to them by the first defendant to select the articles and photos, they have published the entire articles as well as prepared the blocks for all the colour photos sent by the first defendant. The liberty given to the 2nd plaintiff is to chose the photos, which are necessary for publishing in the article containing 2000 words and it cannot be construed that the first defendant has given permission to the 2nd plaintiff to publish the entire leaflets sent by them, and also use all colour photos sent by them.
26.It is pertinent to mention here that even in Exs.A1 and A3, it was made clear that the article would be published in the journal and it will not exceed 2000 words. Further, for publishing the articles or publishing the photos, no charges would be levied and the first defendant has to pay the price for making blocks for publishing those photos along with the articles. Therefore, it is made clear from the correspondences that the plaintiffs offered to use only such photos, which are necessary to be published along with the articles, which would contain not more than 2000 words and that was agreed by the first defendant and the first defendant never agreed to pay the cost for preparing the colour blocks as well as b/w blocks in respect of all the photos sent by them. In other words, what was agreed between the parties was that such of the photos, which are necessary for the publication of articles containing not more than 2000 words. Therefore, I am of the opinion that there was a concluded contract between the parties in respect of publication of articles containing not more than 2000 words and the photos to be used for such publication, which are published along with the articles containing not more than 2000 words and the first defendant never agreed to pay the charges for the blocks prepared in respect of all the photos sent by them to the plaintiffs. In this case, according to the plaintiffs, the article runs to 38 pages containing more than 10,000 words and to cover the same the plaintiffs published the entire photos making blocks for them. Therefore, the plaintiffs exceeded the authority given to them, and have printed article having 10000 words to make unjust enrichment by claiming the price for the blocks for covering the article, which run into 36 pages. Therefore, the fist defendant is liable to pay only in respect of charges incurred for making blocks for the photos, which are necessary for the publication of articles containing not more than 2000 words. Hence, the plaintiffs are not entitled to claim the cost for preparing the blocks for all the photos and the plaintiffs are entitled to claim only the cost for preparing the blocks, which are necessary to cover the article containing not more than 2000 words.
27.It is further contended by the learned counsel appearing for the appellants, Mr.S.Parathasarathy, they have charged U.S.$475 for preparing the blocks for the front cover page and that cannot be disputed by the first defendant.
28.Mr.S.Parthasarathy, the learned Senior Counsel submitted that having regard to the admission made by the first defendant in their letter, dated 27.02.1981, they are bound to pay the costs for preparing the blocks for publication in the front page. According to me, the learned counsel is right in his submission and it is stated by the 2nd plaintiff in their letter, dated 10.01.1981 (Ex.A1) that if the colour photos are nice and sharp, one of them may be used in the front cover page and the first defendant, by his letter, dated 27.02.1981 agreed for the same and in that letter, permission was given to use any one of the colour photos in the front page at the journal. Therefore, it is not open to the first defendant to contend now that they are not liable to pay charges for making colour block for publishing in the front page and hence, these issues are answered that there was a concluded contract between the appellants and the first respondent to publish the photos, which are necessary to cover the article containing not more than 2000 words and the first defendant is not liable to pay the cost for preparing the blocks for the entire article and the first defendant is liable to pay the cost for preparing the photos, which are necessary for publishing the articles containing not more than 2000 words.
29.In this case, admittedly, the article in containing 10000 words and therefore, it can be assumed that only 1/5th of the photos are necessary for the article containing not more than 2000 words and hence, the first defendant is liable to pay the costs of photos, which are equivalent to 1/5th of the charges stated by the plaintiffs in their letter, dated 25th June 1981. While calculating the same, the charges for preparing the blocks in the front cover page viz., U.S.$475 has to be excluded and out of the balance 1/5th has to be calculated and it come to U.S.$1509. Therefore, the first defendant is liable to pay Rs.1509 being the 1/5th value of the charges for making the blocks and U.S.$475 being the costs for preparing the block for the front page and the first defendant is liable to pay U.S.$1984 with corresponding interest, as claimed in the plaint. Therefore, the first defendant is liable to pay 1984 US dollar and interest at the rate of 12% on that from 25.06.1981 to 25.06.1984 and multiply the same with the corresponding foreign exchange at that time. These issues 1 to 3 are answered accordingly.
30.Issue No.4: It was contended by the learned counsel appearing for the respondents, Mr.V.K.Vijayaragavan that there was no publication of article as claimed by the plaintiffs and therefore, even assuming that the first defendant has agreed to pay the charges for the preparing blocks in the absence of any publication, the plaintiffs cannot claim the charges. He further submitted that the first defendant agreed to pay the charges for preparing blocks only on the assurance given by the plaintiffs that the journals will be published in foreign countries and the business would also be promoted by such publication of the article as well as photos and in the absence of any publication, there is no need to pay the charges for preparing the blocks. According to me, the argument of the learned counsel appearing for the respondents cannot be accepted. It is seen from the Exs.A22 to A33 that the plaintiffs sent articles to various foreign countries and they also received remittance from the foreign countries. Therefore, it cannot be stated that the journals were not published. Further, it is not as if, the defendants are known to the plaintiffs for the first time and as claimed by the first defendant, they were customers of the plaintiffs in the past. Admittedly, the first defendant had contributed their articles to the plaintiffs as evident from Exs.A39 to A45 and periodically, the first defendant was contributing the articles and that was published in the journals, published by the 2nd plaintiff. Therefore, the 2nd defendant is well aware of the publication of journal by the 2nd plaintiff and there was no protest by the first defendant about the non-publication of journal on earlier occasion . Therefore, the first defendant was satisfied with the publication of the journal in the past by the 2nd plaintiff and having regard to the Exs.A22 to A33, the plaintiffs have proved that there was publication of journal in the foreign countries. Hence, I concur with the finding of the lower court that there was publication and the first defendant is liable to pay the sale tax and interest on the costs incurred by the plaintiffs for preparing the blocks. The lower court dismissed the claim of the plaintiffs holding that the plaintiffs did not prove that they have incurred expenses for preparing blocks and no proof for making payment to the persons, who prepared the blocks and the lower court held held that when the plaintiffs are able to maintain the various records to prove his publication, they would have also maintained the records to show the payment to the block makers and without producing any such proof, they have only filed the auditors statement Exs.A35 and A36 and therefore, they are not entitled to claim that amount. According to me, the said finding of the lower court is liable to set aside. Once, the preparation of block and publication of the photos in the articles is accepted, it has to be presumed that the plaintiffs must have incurred expenses and that cannot be denied on the ground of non- production of proof for payment to the blocks makers. In this case, the parties have agreed for making blocks and the cost of making the bocks was also agreed and and it is also proved that the articles was published along with the photos, which can not be done without making block and therefore, the plaintiffs are entitled to claim the costs of the blocks. As I have held that the plaintiffs are entitled to the costs for preparing the blocks, which are necessary to be published along with the articles containing 2000 words, the plaintiffs are entitled to claim the sum of U.S.$1984, multiply the same with corresponding exchange rate prevailing at that time claimed by the plaintiffs in the plaint, with corresponding interest and sales tax on that amount.
31.Hence, the finding of the lower court, in respect of issue No.1 and 2, is set aside with the modification as stated above and the findings of the lower court in respect of other issues are confirmed. Further the plaintiffs also admitted that the 2nd defendant was added as proforma party and no claim is made against the 2nd defendant. Hence, the 2nd defendant is not liable to pay any amount and the suit against the 2nd defendant is dismissed.
32.In the result,the judgment and decree of the lower court are set aside and the appeal is allowed in part and the appellants are entitled to claim the costs claimed by them, viz., U.S.$1984 multiply the same with the corresponding exchange rate at that time and also entitled to sale tax and interest at @ 12% on that amount for the period stated in the plaint from the 1st defendant. No costs.
er To, The Subordinate Judge, Kumbakonam.