LI SUNG SANG ELECTRONICS LTD [IN RECEIVERSHIP] v

RAMALINGUM G

2008 SCJ 104

Record No. 825

IN THE SUPREME COURT OF MAURITIUS

[COURT OF CIVIL APPEAL]
In the matter of:

LI SUNG SANG ELECTRONICS LTD (IN RECEIVERSHIP)

APPELLANT

VERSUS

MR GANESH RAMALINGUM

RESPONDENT

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JUDGMENT

The appellant, a company in Receivership, had lodged a claim against the

respondent claiming a sum of Rs 857,191 for goods sold and delivered. The respondent

denied being indebted inasmuch as there was allegedly a verbal agreement whereby the

price of all the purchases made by him would be deducted from accumulated

commissions on sales by the “Computer and Office Automation Department” of the

appellant which had been under his management at the relevant time.

At the hearing of the case on 30 September 2003 the learned trial Judge allowed

oral evidence from and on behalf of the respondent to establish proof of the alleged

verbal agreement on the ground that the action had been entered by the appellant on

the basis that the transaction was a commercial one. The learned Judge found that he
could act on the evidence of the respondent and of the witness called on his behalf, the

former managing director of the appellant. He found that there was a verbal offsetting

agreement and that although the respondent had not given evidence of the precise

amount due as commission, there was evidence to the effect that no goods could be

taken by the respondent unless he had sufficient credit by way of commission. The

goods taken by the respondent could therefore be set-off against the outstanding

commission and the plaint with summons was accordingly set aside.

There are 5 grounds of appeal but they basically cover two points, viz.

(1) that the trial Court had erred in allowing oral evidence; and

(2) the trial Court had erred in its appreciation of the evidence on

record.

As regards the first point, it is a fact that the appellant, a trader, chose to lodge its

claim by way of plaint with summons for goods sold and delivered. That action was

obviously lodged by its receiver and manager on the basis of documentary evidence viz.

vouchers which were found at the seat of the appellant company. But basically the

appellant’s claim rests on a contract of sale of goods by a trader to a purchaser in the

normal course of a commercial transaction.

In Giorgio v. Jeewoonarain [1991 MR 76] the Court considered the

submission that since our Code de Commerce is to a large extent borrowed from the

French Code de Commerce, we should be guided by the praetorian interpretation made

of “acte mixte” in France, viz. that in the case of a transaction entered into between a
trader on the one hand and a non-trader on the other hand, it is open to the non-trader to

choose the jurisdiction before which he wants to bring his case (see Ripert Traité

Elémentaire de Droit Commercial 9ème édition, at paragraph 338). The Court stated

that the importance of the praetorian interpretation referred above resided principally in

the relative ease afforded to a litigant in setting out to prove an “acte de commerce” as

provided by article 109 of our Code de Commerce viz. “à l’égard des commerçants les

actes de commerce peuvent se prouver par tous moyens à moins qu’il n’en soit

autrement disposé par la loi ».

The appellant having chosen to proceed by way of plaint with summons in May

1999, at a time when that process was reserved for small claims or for commercial

claims only, it can hardly foreclose the respondent from invoking the provisions of the

Code de Commerce in relation to the permissible mode of proof found therein and which

the respondent was invoking. Nor is the submission of learned Counsel for the appellant

that there were two distinct contracts factually correct viz. (1) a sale of goods by a trader

to its employee and (2) an agreement whereby the employee would be allowed to

deduct the value of the goods purchased from his earned commission. The correct

interpretation of the agreement reached in fact boils down to one contract where there

was just one agreement viz. that of a sale of goods with the understanding and condition

that the contract price would be deducted from the commission which had already been

earned by the respondent.

We accordingly find that the learned trial Judge was right when he allowed oral

evidence on behalf of the respondent to explain the conditions of the sale of goods

effected to him by the appellant, who was a trader at the relevant time.
 As regards the second issue which questions the trial Court’s appreciation of the

evidence on record we must remark that the learned trial Judge found that he could

safely act on the evidence of the respondent which was backed by that of the former

managing director of the appellant to the effect that there was a practice of offsetting the

amount of purchases effected from the company by the respondent against the

outstanding amount of his accumulated commission on condition that he had sufficient

credit by way of commission. There were 46 invoices produced by the appellant but 10

of those which did not bear the respondent’s signature, although drawn in his name,

were discarded by the trial Judge on the ground that there was no acknowledgement of

purchase by the respondent, the buyer. We have doubts that this was a proper finding

in the light of the plea of the respondent who did not specifically deny that he took goods

from the appellant worth Rs 875,191.- but who centred his defence squarely on the

agreement reached on offsetting which was accepted by the trial Judge. The absence of

respondent’s signature on some of the official vouchers of the appellant was in fact not

very significant considering that the respondent was part of the senior staff and was

responsible for the management of another department and that there was sufficient

credit in his favour when the goods were taken. On the other hand, the signature of the

managing director in all the vouchers is understandable since he was thereby certifying

that goods were being removed from his store as a result of a sale transaction to the

respondent.

However, the wrong finding of the trial Judge on the specific point we have raised

has no bearing on the outcome of the present appeal considering that he found that the

setting-off agreement did exist.

 We are not prepared to say that the trial Judge erred when he chose to act on

the evidence led by the respondent as confirmed by the then managing director of the

appellant.
 6

We find that the appeal has no merit and is set aside. With costs against the

appellant.

Y.K.J. Yeung Sik Yuen

Chief Justice

A. Caunhye
Judge

18 April, 2008

Judgment delivered by Hon. Y.K.J. Yeung Sik Yuen, Chief Justice

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For Appellant: Mr M. King Fat, of Counsel,

Mr J. Gujadhur, Attorney

For Respondent: Mr R. Chetty, of Counsel

Mr N. Rama, Attorney