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2017 DIGILAW 134 (CAL)

Ambo Exports Limited v. Narasus Exports

2017-01-31

SHIVAKANT PRASAD

body2017
JUDGMENT : Shivakant Prasad, J. Concise Statement 1. This is a suit for a decree for Rs. 70,60,405.25 paisa together with interest at the rate of 15% per annum on account of commission for sale of coffee to CIS countries; mandatory injunction and other reliefs. Plaint case 2. The plaintiff carries on export-import business at No.3, Pretoria Street, Kolkata-700 071 and has good and large customer based in RUSSIA AND CIS countries. 3. On or about May 11, 2005 the defendant No. 1 and the plaintiff entered into an agreement modifying some of the terms contained in the previous agreement dated January 24, 2005 which provided inter alia, that the agreement will continue without ending of its validity under which the plaintiff has been acting as the agent of the defendant No. 1 and is entitled to commission and other expenses as agreed. 4. In accordance with the aforesaid agreements, the defendant No. 1 has from time to time from the State of Tamilnadu exported instant coffee to RUSSIA and CIS countries. A few shipments on account of the defendant No. 1 were also made by the plaintiff. 5. On or about November 26, 2007 the defendant No.1 intimated to the plaintiff at the said office at Kolkata that it had received payments of all of consignments. As on November 26, 2007, plaintiff's commission and charges amounting to Rs.48,69,245/- became due and payable by the defendant No.1 to the plaintiff for the export of instant coffee by the defendant No. 1 up to October 18, 2006, after adjusting the payments received on account of said commission and charges. 6. According to the defendant No. 1, the defendant No. 1 inter alia, had deducted that a sum of Rs. 1,31,423/- against the payments of commission and other charges payable to the plaintiff had been deducted towards Tax deducted at source on March 7, 2008. The plaintiff is not aware which alleged payments are referred to by the defendant No. 1 as no corresponding TDS Certificate was at all issued by the defendant No. 1 to the plaintiff. In fact if any such deductions have been made by the defendant No.1, the plaintiff for reasons above, claims the said amount as damages and/or compensation for not issuing the corresponding TDS Certificates. In fact if any such deductions have been made by the defendant No.1, the plaintiff for reasons above, claims the said amount as damages and/or compensation for not issuing the corresponding TDS Certificates. Inspite of repeated requests and demands the defendants have failed and neglected to pay to the plaintiff the said sum of Rs.48,69,245/-. 7. Accordingly, the plaintiff claims a decree against the defendants on the said sum of Rs. 48,69,245/- together with interim and further interest at the rate of 15% per annum with effect from October 18, 2006 and an aggregate sum of Rs. 70,60,405.25 as per the particulars below: PARTICULARS (a) Principal sum; Rs. 48,69,245.00 (b) Interest @ 15% per annum from October 18, 2009; Rs. 21,91,160.25 Total = Rs. 70,60,405.25 Written statement 8. The defendants have contested the suit by filing a written statement denying all material particulars made in the plaint and contended inter alia, that the instant suit is clearly fraught with malice and misrepresentation on the part of the plaintiff and ought to be dismissed with exemplary costs against the plaintiff. It is admitted fact that the plaintiff entered into an agreement with the 1st defendant on 24th January, 2005 for promotion and export of coffee powder to Russia and other CIS nations which was time bound, valid only for a period of one year till 23rd January, 2006 and the agreement expired and as no new agreement or extension was agreed between the parties, the commercial transactions between the parties to the present suit came to an end, thus the defendants have denied having entered with an agreement dated 11th May, 2005, that too with a clause stating that it would have no time limit attached to it. 9. As far as the place of payment to the agent (plaintiff) is concerned, the purported agreement dated May 11, 2005 relied upon by the plaintiff but not the defendants under the heading "4. 9. As far as the place of payment to the agent (plaintiff) is concerned, the purported agreement dated May 11, 2005 relied upon by the plaintiff but not the defendants under the heading "4. Commissions and other Payments," "Clause 2" specifically provided that "The Commissions will be remitted to such account of the agent as instructed by him from time to time." Therefore there is nothing in the contract between the parties as would show that the defendants agreed with the plaintiff that "all payments to the plaintiff would be payable at its said office at Kolkata," as the admitted agreement dated January 24, 2005 does not contain any clause that payment would be made to the plaintiff at Kolkata. The defendants by their Advocate's letter dated September 10, 2009 denied the claim for payment made by the plaintiff and also denied about any supplemental agreement dated May 11, 2005. 10. Thus, the defendants prayed for dismissal of the suit with costs. Issues 11. On the above pleadings, following issues are framed for determination of the disputes between the parties: (1) Is the suit barred by laws of limitation? (2) Was there any agreement entered into between the parties after 24th January, 2005? (3) Whether the plaintiff is entitled to a commission for exporting instant coffee after 23rd January, 2006? (4) Whether there is any valid subsisting and legally enforceable agreement between the parties on 11th May, 2005? (5) Whether there was any modification of the agreement dated 24th January, 2005? (6) Whether the plaintiff is entitled to claim the certificates of Tax Deducted at Source (TDS) for an amount of Rs.1,31,423/- as TDS? (7) Whether the plaintiff is entitled to claim interim and further interest @ 15% w.e.f. October 18, 2006 and costs incidental thereto which has arisen herein? (8) Whether the plaintiff is entitled to all unpaid amounts which has arisen on account of transactions made subsequent to October 18, 2006? (9) Whether the defendant is entitled to the benefit of Form H? (10) Is the plaintiff entitled to a decree of mandatory injunction directing defendants to render complete and faithful account of all export made in its own name or in the names of its associate concerns subsequent to October 18, 2006 and accounts of the commission and other expenses for the period subsequent to October 18, 2006? (10) Is the plaintiff entitled to a decree of mandatory injunction directing defendants to render complete and faithful account of all export made in its own name or in the names of its associate concerns subsequent to October 18, 2006 and accounts of the commission and other expenses for the period subsequent to October 18, 2006? (11) To what relief, if any, is the plaintiff entitled? (12) Has this Court jurisdiction to entertain the suit? Decision with reasons Issue Nos. 2, 3, 4, 5, 6, 7 & 8: 12. The above issues are taken up together for the sake of convenience in discussion and for brevity. The question which basically falls for consideration before this Court is as to whether there was concluded contract being agreement dated 11th May, 2005 Exbt.-C pertaining to commission and other charges payable to the plaintiff by the defendant No.1 for sale of coffee to Russia and other CIS countries. 13. It is submitted by Mr. Aniruddha Mitra learned Advocate for the defendants that the document fashioned as agreement dated 11th May, 2005 is lacking the essentials of a contract being consensus ad idem, i.e., meeting of minds between parties and as such is not enforceable under law. 14. It is specifically submitted that the defendants did not enter into any agreement after January 24, 2005, modifying the terms of the said agreement dated January 24, 2005. Therefore, the plaintiff is not entitled to any commission and expense in terms of any alleged agreement dated May 11, 2005 otherwise, in terms of the admitted agreement dated January 24, 2005, Exbt.-A. 15. It is true, the plaintiff wanted some changes to the agreement in writing dated January 24, 2005. In view of the same, the plaintiff sent to the defendants, at the defendants' office at No. 16, Court, Johnsonpet, Salem-636007, Tamil Nadu, a draft supplementary agreement in the form of a computer print-out and also by electronic mail, containing the date May 11, 2005 as "Affixed this day the 11th May, 2005" on the left hand side of the computer printed "Acceptance." The same was only draft proposal exchanged between the parties upon discussions and by no stretch of imagination, could this draft be assumed as an agreement under law because the defendants were not at all agreeable to the said draft of the proposed agreement dated 11th May, 2005. It would reveal from the correspondence that till 21st May, 2005 both the parties to the suit were in the process of negotiation in respect of the clauses of the agreement which the plaintiff claims to have been signed by both the parties on 11th May, 2005. Mr. Mitra for the defendants further submitted that if the parties were still discussing about insertion and deletion of certain terms to a proposed agreement, then there cannot, without incorporation of the said changes, be any concluded contract as from the correspondence aforesaid it would be amply clear that the defendants did not accept the draft of the proposed supplementary agreement and were at variance on several conditions and there was neither any meeting of minds nor any concluded contract between the parties. 16. Mr. O.P. Agarwal has deposed proving the Service and Commission agreement No. NE/AMBO/001/dated 24.01.2005 by and between Mr. O.P. Agarwal, Director of the plaintiff Co. and Mr. P. Sivanantham, Partner of Narasu's Exports (Exbt.-A) which reflects that the agreement was binding for a period of one year i.e. from 24th January, 2005 to 23rd January, 2006 and shall be renewed by one month notice. He has also proved an agreement dated 11.5.2005 between them incorporating the terms of obligations of the Agent and the Principal and also relating to commission and other payments and other provisions relating to the agreement duly signed by the parties. 17. It reveals from E-mail dated Saturday, May 21, 2005 by N.S. Srinath Commission Agent that the agreement entered upon by and between the parties were proposed to be changed viz., "2. CLAUSE 3, POINT 1.5: The principal will be bound to pay 3% commission in favour of Agents for the first six months on CIF value and in addition to that USD 1000.00 (USD One Thousand Only) per month, will be spent by the Principal towards promotional activities in Russia. Further the present agreement inures only after signing by the Principal and its acceptance by the Agent and continues without ending of its validity. For the further period thereon the Principal will be entitled to a commission of 2.5% will be fixed subject to the guarantee sale of minimum 4 containers every month. Even in the event of termination of the said agreement principal is bound not to deal with Company directly or indirectly without covering desirable commissions of the Agent. For the further period thereon the Principal will be entitled to a commission of 2.5% will be fixed subject to the guarantee sale of minimum 4 containers every month. Even in the event of termination of the said agreement principal is bound not to deal with Company directly or indirectly without covering desirable commissions of the Agent. In the above, 3% commission for the first 6 months and 1000$ per month expenses towards the promotion was accepted. Now in the original signed contract, it has become for 2 months instead of 6 months. Also after 6 months, a commission of 2.5 % on CIF on CIF value, was supposed to be paid and now it has become 2% on FOB/CIF value. Instead of 4 containers per month minimum, it has become 100 tons per month. All these points are marked in blue. Also the last lime marked in greed is being omitted. Please do the needful." It would be profitable to reproduce the letter dated 11.6.2005 of Mr. O.P. Agarwal, Director of the plaintiff Co. addressed to Mr. Shiva of the defendants' concern proved as Exbt.-1, which reads thus-- "O.P. Agarwal 11/6/05 Conditional My dear Shiva, I am enclosing copy of our agreement and a E-mail from N.S. Srinath indicating some changes which requires to be done in the agreement based on our agreement before. I signed the agreement without looking into such points. Name of the Agent also not mentioned. If you feel, there are some errors then I request you to kindly make amendment and send the amendment by way of letter. Thanking you, Kindly convey my regards to your father. Regds. Sd/- (O.P. Agarwal)" 18. Having regard to the aforesaid documentary evidence it can safely be concluded that the parties have not arrived at an open end agreement vide Exbt.-C, although parties to the suit had signed the proposed agreement dated 11.5.2005 expressing their mind as an open end agreement just few months after the agreement dated 24th January, 2005 Exbt.-A which was up to a period of one year ending on and from 23rd January, 2006 with the option to renew by one month notice which provides in terms 9, 10 & 11 as under-- "9. For the 1st six months you shall be entitled a commission of 3% on CIF value for the orders received from your buyers and in addition to that USD 1000.00 (USD one thousand only) will be paid to you for promotional activities. 10. For the next 6 (six) months you will be entitled to a commission of 2 to 2.5% and the same will be fixed and you should guarantee a sale of not less than 6 (six) containers per month. 11. For the business generated from M/s. Grand Company 3% commission on CIF value will be paid for the next 6 (six) months also." 19. Debit Note No. N-01 dated 10.10.2005 Exbt.-B and the commission statement for the period January 2005 to June 2005 @ 3% and 2.5% being the commission on export of coffee to CIS countries for Rs.12,35,144.00 were issued to the defendants' concern by the plaintiff and so also the Debit Note No. N-02 dated 27.03.2006 for Rs.29,11,870.00 with the commission statement for the period October 2005 to March 2006 were issued to the defendants by the plaintiff claiming commission on export of coffee to CIS countries. The TDS showing the amount paid and credited and the amount of Tax deducted at source @ 5.61 % shows the TDS for the period from 01.4.2005 to 31.3.2006 having been deposited by the defendants' concern. The Debit Note No. N-01/06-07 dated 26.5.2006 for Rs. 4,42,241.00 being the commission on export of coffee to CIS countries have been issued to the defendants by the plaintiff. Plaintiff had admitted having received two Demand Draft Nos.064570 & 064571 of Andhra Bank for Rs.9,00,000.00 and Rs. 2,65,852.00 respectively against the Debit Note in the month of December 2005 reflecting a sum of Rs.11,65,852.00 against Debit Note No.01 of Rs.12,35,144/- having been paid to the plaintiff and has wanted to know the reason of deduction of the sum of Rs.69,292/- deducted on account of TDS which is reflected from the commission statement for the period January 2005 to June 2005 Exbt.-D. 20. It would reflect from the statement of commission Exbt.-E that a total of Rs. 20,10,207/- has been paid to the plaintiff towards commission. It would reflect from the statement of commission Exbt.-E that a total of Rs. 20,10,207/- has been paid to the plaintiff towards commission. The plaintiff has claimed commission on account of sale of coffee to CIS countries as per the statement Exbt.-E taking into account the second agreement dated 11th May, 2005 which has not been agreed upon conclusively by and between the parties. The plaintiff has claimed the commission of Rs. 39.05 lakhs allegedly due from the plaintiff till October 2006. As per the letter dated November 27, 2007 Exbt.-F of the plaintiff addressed to Mr. Shiva, it would reveal that defendants' concern had paid commission to the plaintiff for shipments made up to January 2006. 21. Mr. Mitra, learned Advocate for the defendant No. 1 submitted that the letter dated August 25, 2009 on behalf of the plaintiff sent to the defendants Exbt.-G is the reply to the letter dated 01.7.2009 of defendants admitting that Service and Commission Agreement dated January 24, 2005 on the terms and conditions for the business of purchase and export of instant coffee to the customers was valid till January 23, 2006. It is true that said agreement dated 11th May, 2005 Exbt.-C was aimed at modification of supplemental agreement which was to continue without ending of its validity but it was the plaintiff who himself disagreed upon the said agreement which is reflected from his hand written letter dated 11.6.2005 Exbt.-1 providing that the said agreement dated 11.5.2005 and the E-mail from N.S. Srinath were sent to the defendants' indicating some changes which required to be done in the agreement based on the agreement before and that the plaintiff had signed the agreement without looking into such points. Witness has though, stated on oath that the agreement dated January 24, 2005 was for a period of one year initially but in May 2005 a new agreement was signed between the parties and by conduct of the parties, the previous agreement was superseded. I do not find the primary document showing that the plaintiff acted as the agent of the defendant No. 1 after January 23, 2006. I do not find the primary document showing that the plaintiff acted as the agent of the defendant No. 1 after January 23, 2006. The TDS Exbt.-H related to transaction for the period of January 21, 2005 to 23rd January, 2006 and the plaintiff has not placed the detailed record relating to TDS for the payment made on commission to the plaintiff thereafter and the TDS is normally deposited within one month from date of the payment made towards commission. Obviously TDS is Tax deduction at source which means Tax has to be deducted on the payment. 22. It is argued on behalf of the defendants that prayers (c), (d) and (e) of the plaint relate to period subsequent to October 2006, which the plaintiff is not entitled to. As per prayer (a) the plaintiff has quantified its claim to Rs. 48,69,245/- up to September, 2006 but no primary documents produced to substantiate such claim of money on account of commission and other charges. In paragraph 9 of the plaint, the plaintiff averred that on November 26, 2007, the defendant had intimated to the plaintiff that it had received payments of all consignments but no such letter adduced by the plaintiff in proof of the said fact. That apart, no details of consignments, amount and the period have been mentioned in the ledger showing statement of commission paid or payable (Exbt. E). It is evident from the answer to question No. 190 put to O.P. Agarwal that no payment was made by the defendants to the plaintiff for any transaction post January 23, 2006. 23. Mr. Aniruddha Mitra, learned Advocate for the defendants has fortified his argument relying on a decision reported in AIR 1960 (SC) 1006 to take an analogical conclusion that balance sheet is not the proof as to the contents. This decision in my considered view is distinguishable from the facts and circumstances of the instant case. 24. Reliance is also made to a decision reported in AIR 2004 (SC) 175 , paragraph 16 wherein it is observed that mere production and marking of a document as exhibit by the Court cannot be held to be a due proof of its contents. Its execution has to prove by admissible evidence that is, by the 'evidence of those persons who can vouchsafe for the truth of the facts in issue.' 25. Its execution has to prove by admissible evidence that is, by the 'evidence of those persons who can vouchsafe for the truth of the facts in issue.' 25. The commission statement prepared by the plaintiff Exbt.-D is not the balance confirmation and the same cannot be relied on without the production of the documents like, shipment details. In answer to the question Nos. 26 and 27, the witness has candidly stated on oath that statement of shipment made by defendants were received by the plaintiff up to October 2006 only but no such statement has been produced before this Court. The said commission statement Exbt.-D has been prepared based on the shipment details but that details have not been proved primarily by which the plaintiff claim a sum of Rs.3905393.26, whereas the plaintiff otherwise claimed a money decree on the principal sum of Rs.48,69,245.00 together with interest @ 15% per annum from October 18, 2006 till October 18, 2009 for Rs.21,91,160.25 and claimed total sum of Rs.70,60,405.25 in the plaint without proof for such quantification of the said claim. 26. Exbt.-E is the internal ledger account which the plaintiff claimed that a sum of Rs.20,10,207/- has been paid towards commission as part payment. The amount so paid towards commission and other charges related to the first agreement dated 24 January, 2005 Exbt.-A and well admitted by the plaintiff witness in his deposition, but no export invoices and vouchers produced before the Court to ascertain the commission statement and details other charges claimed by the plaintiff. It transpires from the evidence that the statements have been prepared based on details, transaction and information but nothing has been placed on record for a conclusive decision. 27. It is settled principle of law that the basis of enforcement of contract is consensus theory of contract. Unless there is consensus one cannot think of enforcement. For the contract there has to be an acceptance of an offer on the same terms of the offer and such acceptance must be unconditional, unequivocal and absolute. 28. The test - at any stage of contract, most crucial question is - did the parties intend to be bound themselves by the terms conclusively agreed upon? It is trite to say that no judicial authority can decide anything for the party to make the term certain. [See. In Pomal Kanjs Govindji v. Vrajlal Karsandas Purohit, Ref. 28. The test - at any stage of contract, most crucial question is - did the parties intend to be bound themselves by the terms conclusively agreed upon? It is trite to say that no judicial authority can decide anything for the party to make the term certain. [See. In Pomal Kanjs Govindji v. Vrajlal Karsandas Purohit, Ref. (2011) 5 SCC J 49; (1989) 1 SCC 458 ] 29. I am of the clear opinion that the proposal made by Mr. O.P. Agarwal, Director of the plaintiff was not accepted by the defendant No. 1. Even if it is construed that the second agreement was accepted and with variation there is no acceptance. It is simply a counter proposal, since a contract may be completed although its terms are to be embodied in writing in reply by the defendant No. 1 in view of the expression given by the plaintiff in his hand written letter. Bearing in mind the above principle of law in the context of the factual aspects of the case that the proposal as made by the plaintiff vide his letter dated 04.6.2005 Exbt.-1 expressing his mind that name of the agent was not mentioned in the agreement and having signed the agreement without looking into such point which were indicated for some changes in the copy of the agreement as per the points mentioned in E-mail from N.S. Srinath, I hold therefore, that there was no consensual bargaining process by and between the parties to the suit as the full terms contained in agreement dated 11.5.2005 (Exbt.-C) were not crystallized. 30. Thus, the above issues are decided against the plaintiff in the following manner. Issue No. 2-answered in the affirmative. Issue No. 3-answered in the negative. Issue No. 4-answered in the negative. Issue No. 5-answered in the negative. Issue No. 6-answered in the negative. Issue No. 7-answered in the negative. Issue No. 8-answered in the negative. Issue No. 1 31. It is contention on behalf of the defendants that from the original agreement dated January 24, 2005, it would appear that the agreement was to continue, in terms of Clause 12 thereof, for a period of one year from January 24, 2005 to January 23, 2006 and could only be renewed by one month's notice. Neither party exercised this option. The agreement came to an end on January 23, 2006. Neither party exercised this option. The agreement came to an end on January 23, 2006. Therefore, unless a claim was made to the defendants by the plaintiff by January 23, 2009, the same would be barred by limitation. The plaintiff has not made any claim against the defendants and/or any of them prior to January 23, 2009. The so called journal relates to transactions subsequent to January 23, 2006 when there was no relationship of principal and agent as between the defendant No. 1 and the plaintiff. There was never any open, continuous, mutual and/or current account between the parties after January 23, 2006. All accounts had been reconciled, settled and squared off and nothing remained outstanding after January 23, 2006. 32. On the contrary, Mr. Reetobrato Mitra for the plaintiff submitted that the TDS was made on March 7, 2008 and would indicate the date for reckoning the time of limitation for the suit and adverted to averments in paragraph 4, 6 and 7 of the plaint and contended that there are two agreements being agreement dated 24.01.2005 and 11.5.2005. In paragraph 9 of the plaint it has been averred that on 26.11.2007, the defendant No. 1 intimated to the plaintiff at Kolkata office that it had received payments of all consignment. So, the cause of action arose on the date and the suit cannot be held to be barred by limitation inasmuch as the defendant No.1 deducted sum of Rs.1,31,423/- against payment of commission and other charges payable to the plaintiff as against Tax deduction at source in March 7, 2008 (Exbt.-H). It is urged that the TDS being dated 07.3.2008, having been admitted by the defendant, the jural relationship between the parties existed as on the date and the suit is not barred by limitation as the suit was filed on 16.10.2009. 33. I am not in agreement with such contention because admittedly the defendants have not made any payment to the plaintiff for any transaction after January 23, 2006. There is no primary document to prove the ledger showing the statements of commission payable to the plaintiff after January 23, 2006. 34. In view of my findings in the foregoing issues that there was no concluded contract as per the alleged agreement dated 11th May, 2005, the plaintiff is not entitled to a decree as prayed for. There is no primary document to prove the ledger showing the statements of commission payable to the plaintiff after January 23, 2006. 34. In view of my findings in the foregoing issues that there was no concluded contract as per the alleged agreement dated 11th May, 2005, the plaintiff is not entitled to a decree as prayed for. I do not find any reason to dilate the issue relating to limitation. Thus, this issue is disposed of. Issue No. 9 35. This issue has not been pressed by the defendants during trial making any counter claim although, averments made in the written statement goes to show that till July 2009, there was no dispute and the plaintiff never made any communication or demand alleging that any amount to which it was entitled was in arrear and/or was due. However, the plaintiff, despite the passage of long time, in respect of certain exports made by the defendant No. 1 through the plaintiff between April 11, 2005 and October 14, 2005, covering 10 invoices, had not furnished the defendant No. 1 with the Form "H" which the plaintiff was bound to furnish in respect of its Sales Tax levy and that these were detailed in a letter dated July 1, 2009 sent on behalf of the defendant No. 1 through its learned Advocate at Salem, Tamil Nadu, addressed to the plaintiff and in order to avoid its liability for furnishing the said Form "H", for the first time, and after the expiry of the period of limitation, the plaintiff, through an Advocate's letter dated August 25, 2009 made the wild, reckless and false allegations relating to amount being due from the defendant No. 1 to the plaintiff till October 18, 2006 and also about the alleged supplementary agreement dated May 11, 2005. It will be very clear that the said letter, which raises the said allegations and claims for the first time more than three years after expiry of the agreement dated January 24, 2005, which also admits that no payment was made by the defendant No. 1 after January 23, 2006, and thereby supports the case of the defendants that plaintiff afterthought, tried to create a fictitious defence against the rightful claim of the defendants against the plaintiff, which runs to around Rs. 1,21,38,725.24 paisa for the statutory taxes and penalty alone. 36. 1,21,38,725.24 paisa for the statutory taxes and penalty alone. 36. Thus, the above issue not being pressed by the defendants stands disposed of. Issue Nos. 10 & 11 Both issues are interlinked, hence taken up together. 37. In view of the findings above for no concluded contract between the parties based on the agreement dated 11th May, 2005 and for no proof of primary document showing the ledger containing statement of commission payable by the defendants to the plaintiff after the expiry of the agreement dated January 24, 2005 Exbt.-A, the defendants cannot be direction by way of mandatory injunction for rendering complete account of all export made by the defendant and the amount of commission and other expenses for the period subsequent to October 2006 as the plaintiff is not entitled to any decree as prayed in the plaint. 38. Thus, above issues are decided against the plaintiff and answered in the negative. Issue No. 12 39. Although, it is contended in the written statement that the only agreement dated January 24, 2005 was entered into at and from Salem, Tamil Nadu, the "instant coffee" exported in question, for some of which, till January 23, 2006 the plaintiff was an agent, was manufactured at the factory of the defendant No. 1 at Vedapatty Village D. Perumapalayam, Salem 636122, Tamil Nadu, the money was paid from the office of the defendants at No. 16, Court Road, Johnsonpet, Salem-636007, Tamil Nadu, the Tax on the commission payable to the plaintiff under the agreement dated January 24, 2005 was deducted at source from the said office. So, the defendants were entitled to the Form- "H" and in default, the money value of the statutory taxes and penalty at the said office at Salem, Tamil Nadu, the negotiations were done by electronic mail and letter which the defendants received and opened at their said office in Salem, Tamil Nadu, and the performance of the contract of agency was to be done in Russia and the Commonwealth of Independent States, none of which is within the ordinary original civil jurisdiction of this Hon'ble Court and therefore no part of the cause of action and/or no substantial part of the cause of action arose within the territorial jurisdiction and/or ordinary original civil jurisdiction of this Hon'ble Court. Nevertheless, this Court on the submission of learned Advocates for the parties took this issue as a preliminary issue and decided against the defendants and in the affirmative in favour of the plaintiff vide order dated 30th August, 2016. 40. Thus, this issue is disposed of. 41. In the result, suit fails. 42. Hence, ordered that the civil suit being No. 300 of 2009 be and the same is hereby dismissed on contest against the defendants, however, without any order as to costs. 43. Department and all parties to act on the signed photocopy of this judgment.