C. S. RATNAM, Appellant, and K. M. PERERA, Respondent

035-NLR-NLR-V-64-C.-S.-RATNAM-Appellant-and-K.-M.-PERERA-Respondent.pdf


108
Ttatnam v.- Perera
1961Present: T. S. Fernando, J., and Sinnetamby, J.
«•
S. RATNAM, Appellant, and K. M. PERERA, RespondentS. C. 67 of 1959—D. G. Kurunegala, 11,433
Partnership—Dissolution-—Action for accounts—Procedure—Civil Procedure . Codes. SOS.'
Contracts—Interpretation—Emphasis on substance and not on form—Principal andagent—“ Commission ”.
In an action, instituted by a partner against his co-partnor asking for accountsof tho partnership which has boon dissolved, mid for a distribution of the profitsand assets, tho proper coarse for tho Court to adopt is-first to decide whether itshould call upon tho defendant t.o filo an account and for what period andonly thoroaftor, after giving tho plaintiff an opportunity to falsify and surcharge,proceed to determine what amounts are. duo either to the plaintiff or to thedofondant, as tho caso may bo.
In construing a contract the Court will look at what tho contract roally isand not at what tho parties say it is. What the Court has to consider is notthe mero namo.givon to it but the substance of tho transaction and docide whatit would in truth and in fact amount to on a consideration of all tho factsrolating to it.
Plaintiff and dofondant entered into a partnership agreement under thetorms of which they agreed to become tho “ Agonts ” of Tho Shell Co. of CeylonLtd. at Ivurunogala and other places. In a subsequent contract betwoon theSholl Co. and tho partnership tho firm was reforrod to as tho “ agont ” and theShell Co. as tho “ company ”. Although tho contract stated that the ** agent ”should sorve tho company for tho purposo of, among othor things, “ soiling,storing and distributing the company’s products entrustod to its charge ”,it expressly oxcludod tho company from liability to third parties in respect oftho partnership’s acts, contracts with customers, etc. Thoro were also othertorms which offended against tho principles governing tho law of agency.
Potrol, korosono and diosoline were consigned to the “ agonts ” to be keptin the installation and issued to customers at prices fixed by the company, andtho firm was paid a “ commission ” or a rebate at a fixed rate in rospoct ofactual sales. In the case of othor Shell products, such as lubricating oils,greases, otc., the firm had to pay in advance for them when taking delivery,at certain specified rates, subject to tho condition that they should be soldby tho firm at rates not above a cortain fixed coiling price and that the servicesshould bo paid for by tho differonco in prico,between tho rato at which it waspurchased from tho company and the prico ait which it was,sold to tho public.It was argued in tho prosont caso that the partnership profits rolatbd only totho commission in respect of those products which remained the proportyof tho company and were entrustod to tho firm for sale on behalf of the companyand not to profits realised by tho resale of articles purchased outright fromtho company which on delivery bocamo tho property of tho agont. It was;contended on behalf of tho defendant that tho profits from the lubricating oil,greases, otc., were solely his, earned by him independently of the partnershipand wore not includod in tho partnership agreement.
SINNETAMBY, J.—Rdtnam v. Perera
196
Held, that the word “ agent ” in the contract between the company and thefirm was used in a 'commercial and not in the legal sense. Although in thecase of the lubricating oils, greases, etc., the arrangement was docribed as a saleto the agent and a resale by-the agent, it differed very little, in actual practice,from the arrangement in regard to the petrol, kerosine and diesoline, exceptthat in the case of the latter the amount of profit was fixed whilst in the former,. it depended on the price at which the agent resold it, subject to the restrictedmaximum price. Accordingly, the profits derived from the lubricating oils,greases, etc., were accountable to the partnership.
-Al PPEAL from a judgment of the District Court, Kurunegala.
Ranganathan, for the defendant-appellant.
Thiagalingam, Q.C., with C. de Silva, for the plaintiff-respondent.
Cur. adv. vidl.
November 3, 1961. SnrcnsT ambit, J.—
This is an action by one partner against another asking for an accountof the partnership business which had been dissolved, and for adistribution of the profits and assets. It would appear that the plaintiffand the defendant were originally brought together by one Siebel, whowas an employee of the Shell Company, for the purpose of conductingthe business of the Shell Petrol Station at Kurunegala. The defendanthad earlier, in conjunction with one Mendis, been doing this business andhad considerable experience in managing such an installation. Whenthe Shell Company terminated its contract with Mendis, Siebel lookedout for some responsible person who could in partnership with the defen-dant carry on the business. The defendant did not have the requisitecapital, and on Siebel’s suggestion, it was agreed that the plaintiff, whowas one of the biggest consumers of Shell products in the district, shouldbe brought into the business as a partner of the defendant. They enteredinto a partnership agreement, and, in due course, registered the partner-ship business in terms of the Business Names Registration Ordinanceon 29th November, 1943. The certificate of registration has beenproduced marked D. 170. The business was to commence on 1st January,1944. The partnership agreement P. 1 was actually drawn up later ;viz.: on 13th May, 1944, though the business, inpoint of fact, commencedon 1st January, 1944.
Under the terms of that agreement, the parties agreed to become the“ Agents ” of The Shell Co. of Ceylon Ltd. at Kurunegala, and otherplaces : the partnership business was to be conducted under the nameof “ Ratnam & Perera ” : the minimum capital was fixed at Rs. 20,000/-of which Ratnam contributed Rs. 5,000/- and Perera Rs. 15,000/- :provision was made that proper books of accounts be kept and entriesof all transactions made in those books : there was a further provisionthat a trial balance should be struck at the end of every month and that
200
SINNETAMBY, J.—Ratnam v. Per era
an annual balance sheet should be struck on the 31st March of eachyear: the defendant Ratnam was to be the managing partner. Inregard to profits, article 14 provided that the “agency commission”wliich is paid at the end of each month by the Shell Company was to bedivided in the proportion of l/3rd to Ratnam and 2/3rds to Perera.It further provided that neither party should draw “ by way of advanceor otherwise any other sum from the partnership funds Article 18provided that in the event of the partnership being dissolved, the assetsshall be divided between the parties in the proportion 1 /4th to Ratnamand 3/4ths to Perera.
The partnership business was terminated by the Shell Company on30th October, 1953, and the present action was instituted by the plaintiffPerera alleging that the defendant had failed to render true and properaccounts and to pay to the plaintiff his share of the capital assets, profits,and agency commission. Plaintiff estimated the amount due to him atRs. 224,(577/- of which Rs. 86,314/- had been paid, and after giving creditto the defendant in Rs. 4,476/13, claimed the balance: the credit ofRs. 4,476/13 was the defendant’s share in respect of a business of a likenature which the plaintiff carried on at Malpitiya from 1st November,1951. In Iris prayer the plaintiff asked for an order on the defendant torender a true and proper account of the business from its inceptiontill the dissolution of the partnership and for judgment in respect ofthe amount eventually found by Court to be due to the plaintiff.
The defendant in his answer denied that a cause of action had accruedto the plaintiff and pleaded that the accounts of the partnership wereannually balanced and the plaintiff looked into, accepted and actedupon the said accounts as correct and held out to the defendant thathe was satisfied -with them for the entire period e^ded 31st March, 1952.He further pleaded that the accounts from 3rd March, 1952, had beenduly audited and show a sum of Rs. 7,182/22 as due from the plaintiffto the defendant which he claimed in reconvention. In respect ofthe Malpitiya Agency he claimed a sum of Rs. 10,000/-. The defendantpleaded prescription as well as estoppel and settled accounts. Theplaintiff thereupon filed replication alleging that the conduct of thedefendant in relation to the accounts had been fraudulent; and thedefendant, having concealed the fraud, was not entitled to pleadprescription or estoppel.
The learned Judge, without making any order calling on the .defendantto file accounts awarded the plaintiff a sum of Rs. 79,000/- on accountof his share of capital profits and assets and allowed the defendant asum of Rs. 5,000/- on his claim in reconvention in respect of the Malpitiyabusiness. Against this judgment the defendant filed the present appeal;the plaintiff filed cross objections claiming a larger sum than the amountawarded to him.
It is apparent that the first question the learned trial Judge was calledupon to determine was whether he should order the defendant to fileaccounts and if so, for what period, the defendant’s contention being
SINNT5T AMBY, J.—Jlatnam v. Per era
201
that he had rendered accounts for the period ended March 1952. Fromthe answer it is clear that for the period commencing 1st April, 1952,till the termination of the partnership no accounts had been renderedand the defendant would have been obliged in any event to file an accountfor at least that period. In regard to the earlier period the learned trialJudge had first to determine whether there were, as alleged, settledaccounts and if so, to what extent the plaintiff was entitled to eitherre-open, or falsify and surcharge those rendered. I have in an earlier case(S. C. 351/58 (F) D. C. Kurunegala No. 5S10/M—Ariya Pathiranev. RobertWatte Pathirane, S. C. Minutes of 25 July, 1961J) set out the procedurethat should be adopted in actions for accounts as between partners ;and, if the learned trial Judge had followed that procedure, he wouldhave saved himself much time and trouble and it would have also enabledhim to keep the proceedings within reasonably manageable proportions.As I pointed out in my judgment in that case, Section 508 of the CivilProcedure Code expressly provides that in actions of account the courtmay decide piece-meal upon the matters in issue. In this case theproper course for the Court to have adopted was first to have decidedwhether it should caU upon the defendant to file an account and forwhat period ; and only thereafter, after giving the plaintiff an opportunityto falsify and surcharge, proceeded to determine what amounts weredue either to the plaintiff or to the defendant as the case may be. Insteadof doing that, the learned trial Judge framed a whole series of issueswhich covered the question of not only whether the defendant shouldbe ordered to file accounts but also the entire claims of the plaintiff anddefendant and included even matters which were admitted. In theresult, when the time came for the learned Judge to answer the issues,while he held that the defendant was liable to render accounts, he never-theless said no purpose would be served by ordering him to do so.
It is the plaintiff’s contention that no proper accounts were renderedto him. He admits that monthly statements of commission were sentto him and that annually, for a certain period of time, a statement ofthe total commission received less total working expenses was sent to himfrom which the nett income was ascertained and allotted in the proportionof 2/3 rds and l/3rd. It was not suggested that all sums of moneyshown to be due were paid in accordance with those statements. Thestatements merely show the amounts payable to each of the partiesfrom the commission received. It certainly was not a balance sheet ofthe nature contemplated by article 15 of the partnership agreement.Issue 12 is as follows :—
“ Has the defendant rendered to the plaintiff monthly and annually
accounts of the partnership as required in the Agreement ?
t
It should immediately have been answered in the negative. Indeed,at the hearing in appeal the learned counsel for the appellant did notcontend that the monthly statements, which appear to have been sent,operated in any way as settled or stated accounts ; nor could he contend
1 (1961) 63 N. L. R. 370,
202
SINNETAMJ3Y, J.—Ralnam v. Percra
that the annual accounts were,-as formulated in the issue, in terms ofthe partnership agreement, which required a balance sheet. A balancesheet should contain several items of account not shown in the statementsrendered: there is, for instance, no statement of stocks, no statementof drawings by the partners and no statement of balances due to or fromeach of them. Issues 13 and 14 are as follows :—
“ 13. Did the plaintiff—
(а)Look into ;
(б)Accept;
(c) Act upon
the accounts so submitted to him up to 31.10.51 ?
14. If so, is the plaintiff estopped from claiming an accountingup to that date ? ”
They also should have been answered'in the negative for the same reason.The plaintiff would have, therefore, been entitled to obtain an order onthe defendant to file a statement of his accounts from the date of thecommencement of the business.
The item which formed the main contest between the parties relatedto whether the profits derived from miscellaneous sales of Shell products,other than petrol, kerosene and diesoline, are accountable to.the partner-ship. The defendant contended that it was his separate business and' that he was not liable to bring it into the partnership accounts ; butthere is an overwhelming body of evidence which shows that the Shellcompany consigned these miscellaneous articles, consisting mainly ofShell oil and greases to the firm of Ratnam & Perera, that they creditedthe firm of Ratnam & Perera for payments made in respect thereof,and that they would never have consigned the articles to Ratnam alone :there is also evidence to suggest that payments were made out of partner-ship funds. At the commencement of the business, Shell, kerosene,petrol and diesoline were consigned to the “ agents ” to be kept in theinstallation and issued to customers at prices fixed by the Company,the partnership being paid a commission or a rebate in respect of actualsales. No payment was made for the petrol, etc., to the Company bythe “ agent ” at the time of delivery. In the case of lubricating oils,and so on, the partnership had to pay in advance, when taking delivery.-at certain specified rates, subject to the condition that they should sellit at the installation at rates not above a certain fixed ceiling price.It was contended on behalf of the defendant that the profits from lubri-cating oil, greases, etc., were solely his, earned by him independently ofthe partnership and were not included in the partnership agreement.It was argued that the partnership profits related only of the commissionin respect of those products which remained the property of the companyand were entrusted to the firm for sale on behalf of the company andnot to the profits realised by the resale of articles purchased outright from-the company which on delivery became the property of the agent.
SINNETAMBY, J.—TtcUnam v. Per era
203
The learned trial Judge has expressed himself strongly against thecredibility of the plaintiff and defendant and was not prepared to actupon the uncorroborated testimony of either of them. The question,therefore, has to be decided on a.consideration mainly of the documentsand the conduct of the parties. It becomes necessary, therefore,first to examine the agreement between the Shell Company and thepartnership. That agreement has been produced marked P.2. Thefirm of Ratnam & Perera in that agreement is referred to as the “ agent ”and the Shell Company as “ The Company Paragraph I of thatagreement expressly states that the “ agent ” shall serve the companyfor the purpose of among other things “ selling, storing and distributingthe company’s products entrusted to its charge ”. The expression“ company’s products ” is defined to include petrol, kerosene oildiesel oil, lubricating oil and other goods from time to time entrustedby the company to the agent under this agreement for “ selling, distribu-tion and storage ”. If, therefore, lubricating oil has been entrustedto the “agent” for storage, sale and distribution, it would clearly comewithin the ambit of the agreement. It is not denied that lubricatingoil, etc., were consigned to the firm, had to be stored in the company’sinstallation, and had to be sold at prices below a fixed ceiling price.The agreement further provided that the agent shall not sell any petroleumproducts other than the company’s products. It is true that paragraphIS provides that in consideration of the services to be rendered by theagent the company shall pay to the agent “ a commission at a rate tobe fixed in writing and that such commission is to be paid monthly ”,that paragraph 6 provides that the property entrusted to the agentfor sale shall remain the property of the company until sold, and thatparagraph 8 provides that the agent shall sell the products at pricesfixed by the company. It was contended on behalf of the defendantthat this agreement applied only to Shell diesoline and kerosene oil,in respect of which a “ commission ” was paid at rates which had beenfixed earlier in a letter addressed to the firm by the Shell Company dated3rd December, 1943, marked D. 95. The rate of commission on petroleurhproducts like petrol and kerosene is mentioned, but no mention is madeof lubricating oil nor is there any reference to diesoline. In the caseof petrol, lubricating oil, and diesoline, no payment was made at the timeof delivery by the company to the agents ; the petrol* kerosene, anddiesoline had to remain the property of the company and the agenthad to sell it at a fixed price. He had to make a return weekly showingthe quantities sold and on those he was allowed a commission at a certainspecified rate per gallon. In the case of lubricating oil the remunerationfor the agent’s services took, as stated earlier, a different form. Accordingto the agreement, therefore, in the case of petrol, kerosene, and diesoline,commission at a fixed rate was paid but in the case of lubricating oiland other miscellaneous articles, the services were paid for by thedifference in price between the rate at which it was purchased from thecompany and the price at which it was sold to the public. In actualpractice, as would appear from the statements of accounts rendered to the
204
SINNETAMBY, • J.—Ralnam v. Perera
firm, credit was allowed even in respect of greases and oils delivered tothe firm. The evidence of the company’s representative is that thegreases and oils would never have been sold to Ratnam in his individualcapacity. It was sold to the firm and it had to be kept in the company’spremises at Kurunegala, where the oil pumps and tanks were installedand it had to be sold there. Clearly, although in the case of the oils,etc., the arrangement was described as a sale to the agent and a resaleby the agent, in actual practice, it differed very little from the arrangementin regard to the petrol, kerosene, and diesoline, except that in the caseof the latter the amount of profit was fixed whilst in the former it dependedon the price at which the agent resold it, subject, however, to a restricted .maximum price.
In a contract of this kind, what the Court has to consider is not themere name given to it but the substance of the transaction and decidewhat it would in truth and in fact amount to on a consideration of allthe facts relating to it, vide Fernando v. Cooray x. In Weiner v. Harris 2the transaction the Court was called upon to construe was described bythe words “ sale or return ”, Goods were entrusted to a mercantile agentfor “ sale or return ” and the expression “ sale or return ”'in the agreement,it was held, did not make the agent a purchaser. He was remuneratedby being given half the excess of his selling price over and above theprice he paid for it to his principal. The Master of the Rolls Cozens-Hardy said:—
“ So here the mere fact that goods are said to be taken on sale orreturn is not in any way conclusive of the real nature of the contract.The Court must look at the contract as a whole and see whether thatis the real meaning and effect of it. ”
and Moulton, X«.J. observed :—
“ 1 fully agree with what the Master of the Rolls has said, thatno phrase can enable a person to misdescribe the contract, but thatyou must look at what the contract really is and not at what theparties say it is. ”
Now the use of the word “ agent ” in the contract P.2 does not makethe defendant firm “ agent ” in the legal sense of the Shell Company,for if it did, their acts, contracts with customers, etc., would bind ShellCompany. The agreement expressly excludes this. There are otherterms, to some of which I have already referred, which offend against theprinciples governing the law of agency. The term “ agent ” is used in• a commercial or complimentary sense and not in the legal sense. AsScrutton L.J. observed in W. T. Lamb <Ss Sons v. Goring Brick Go.s,
“ Anyone with experience of commercial matters knows that incertain trades the word * agent ’ is used without any reference toits meaning at law. ”
1 (1957) 59 N. L. R. 169 at 179.2 101 Law Times 647.
3 146 Law Times 318.
SINNETAMBY, J.—Batnam v. Per era.
205
Greer, L. J. said in the same ease :—
“It is a somewhat remarkable fact that, notwithstanding thenumerous commercial and other cases in which the distinction.betweenthe position of a buyer and that of an agent for sale has been statedand interpreted, there are still innumerable people engaged in businesswho do not understand the simple and logical distinction betweena buyer and an agent for sale, and they use the two terms as if theywere equivalent, the one to the other. ”
In regard to the contention that the profits of the partnership wasrestricted to the commission paid under paragraph 18 of the contractwith the company and was confined to petrol, kerosene, and cliesoline,it is difficult to understand why, if that were so, there was expressprovision in article 14 to the following effect :—
“ but neither party shall draw by way of advance or otherwise anysum from the partnership funds. ”
The defendant tried to explain this by saying that this provision wasincluded to prevent partners from drawing the capital they contributed,but it is clear law that no one partner is entitled without the consentof the other partners to withdraw any capital he brought into the partner-ship business. It was not necessary to include such a provision in a .partnership deed nor would the withdrawal of capital be referred to inthe way in which this particular provision is worded. Paragraph 14suggests that apart from the commission payable in respect of kerosene,etc., there was other profit accruing to the firm. If the agency commissionon petrol, kerosene and diesoline was the sole source of income of thepartnership, how could it have been paid at the end of the month to eachof the partners who contemplated selling petroleum products on creditto customers as would appear from article 18 of the partnership deed?The plaintiff tried to give an. explanation for this which to my mind isnot very convincing. He probably was aware that he was not beingpaid a share of the profits from the lubricating oils but apparently hedid not know the extent of such profits till he started the MalpitiyaAgency in 1951. He raised the matter in writing for the first time inhis letter P.49 of 13.2.53, complaining of the non-inclusion of the lubricat-ing oil profits in the accounts, and, as the learned trial Judge says, it isextremely likely that he would have complained about it orally earlier.The defendant did not reply to P.49. In fact he says that the arrange-ment between the partners was that the defendant should appropriatethe profits from the lubricating oils to himself. If that was so, he wouldhave immediately so replied to P. 49 ; and, he does not appear to havetaken such a forthright attitude even when the representative of theShell Company discussed matters with the partners with a view to bring-ing about a settlement. Although the agreement with the Shell Companydid not expressly refer to the profits made by the partnership on lubri-cating oils etc. as “ commission ” there is not the slightest doubt thatthat was the remuneration payable by the company to the partners for
20 G
SINNETAMBY, J.—Ratnam v. Perera
handling these Shell products and the word “ commission ” used in thecontract must be considered to include this profit. In this connectionit would be relevant to consider the manner in which the agreement wasregarded by the parties after D.100 was executed. D.100 is a newagreement which superseded P.2 in regard to motor spirits, and after
100 was executed, the firm bought petrol in much the same way asit had earlier purchased the lubricating oils. It paid for it at the timeof delivery and had to resell it within the company’s premises from thecompany’s containers and tanks at prices fixed by the company. Theagreement is dated 6.2.1950 and in regard to motor spirits contains thesame restrictions as in P.2. The agent who is therein referred to asthe “ buyer ” is required to buy at a certain rate and resell it at a pricefixed by the company and notified to the buyer. That agreement also'provided for the purchase and resale by the firm of motor lubricants andother petroleum products which the seller considered necessary for thepurpose of maintaining a full service. In the case of petrol sales after
100 was executed, the difference in price was regarded by both the com- •pany in their statements to the firm and by the firm as “ commission iyand were so included in the several commission statements submittedsubsequently to the plaintiff by the defendant, such as P.17, P.18, etc.If the defendant’s contention in regard to lubricating oil is correct,then, he would not be liable to account for the difference in the pur-chase price and the resale price of petrol after document D.100 wasexecuted : the firm was, thereafter, not paid a commission as such cal-culated at a certain rate per cent on the sale price of the petrol but waspermitted to retain the profit derived by resale to the public at a higherfixed price.
The reason why the Shell Company adopted the form of agreement set ■out in D. 100 is not clear ; perhaps, they intended that the risk shouldpass to their agents on delivery. If so, it has yet to be decided whetherthey have effectively done so. The “ buyer ” in D. 100 did not exercisecomplete ownership of the property sold to him. He could not deal withit in the same way as he could with the other property’ in his ownership.He could not store it where he liked. He could not sell it at whateverprice he liked. His powers were restricted and the new transaction insubstance was no different to the old one.
Commission need not necessarily be restricted to a fixed rate. It canbe variable but it should be capable of determination. As Jessel M.B-.observed in Ex parte Bright Re. Smith 1:—. •»
“ There is nothing to prevent a principal remunerating his agentby a commission varying.according to the profit obtained by the vendor.A fortiori there is nothing to prevent his paying a commission depend-ing on the surplus the agent can obtain over and above the price whichwill satisfy the principal. The amount of commission doe3 not turnthe agent into a purchaser. The principal says to the agent * sell mygoods and whatever you get for them over and above the price, I amwilling to accept shall be your commission
1 39 Law Times 651.
SINNETAMBY, J.—Ratnam v. Per era,
207
In my opinion, therefore, the word “ commission ” in the agreementP. 2 must he equated to “ remuneration ** which in one case, namelypetrol, was fixed and which in the other case, namely lubricating oils,capable of being fixed on resale. It was a convenient term to use inreferring to payments made to the firm for the services by the ShellCompany.
Having regard to the principles enunciated in the cases I have referredto and on a consideration of all the terms of the contract between theShell Company and the partnership and the course of conduct betweenthem, I am of the opinion that the agents did not become purchasers ofthe lubricating oil, etc., but only, if I may borrow an expression, agentsfor sale. The mere circumstance that the agents either paid for or weregiven credit in the books of the company for the cost of lubricating oils,etc., on delivery and had to sell it at the installation at prices below acertain ceiling price does not, in my view, alter the nature of thetransaction.
If the plaintiff has based his claim on a secret profit which the defendantas a partner made by using the firm’s name and property and using theagreement which the firm had entered into with the Shell Company, nodefence whatever would have been available to the defendant and hewould have been liable to account for that secret profit. The learnedcounsel for the appellant, however, contended that that was not thebasis on which the plaintiff came into court and this was conceded by thelearned counsel for the respondent.
It is to be noted that the defendant produced no books of account.He is alleged to have given them to a person by the name of Chary whowas living at the time action was instituted but died subsequently beforehe could be called as a witness. The books were alleged to have beengiven to Chary and are not available : the defendant’s evidence wasthat the books have been lost. It is very difficult to accept this storyand the learned Judge has rightly rejected it. These accounts alone willshow the amount of money derived by the defendant as profits from thesale of lubricants. The defendant deliberately chose to keep them awayfrom the Courts and in the circumstances the court is entitled to drawevery inference adverse to the defendant from suph refusal. Indeed,the Court would have been perfectly justified in accepting the amountassessed by the plaintiff as the profits derived from the sale of lubricants :fortunately, in this case, there is a statement supplied by the ShellCompany and from that it is possible to ascertain the profits. This sumhas been fixed by the learned trial Judge at Rs. 60,000 and the amountawarded has not been contested. The learned counsel for the respondentwho had filed a cross appeal did not press his cross appeal which relatedto profits from miscellaneous products other than the lubricating oil. Thelearned trial Judge has fixed the profits payable from the Malpitiyaagency to the defendant at Rs. 5,000 and I see no reason to interfere withthat finding.
308
WEERA SO 0R1Y A, J.—~J3ininda v. Scdiria Singho
In the result, the appeal of the defendant-appellant is dismissed withcosts and the cross appeal by the plaintiff-respondent is dismissedwithout costs.
T. S. Fernando, J. — I agree.
Appeal dismissed.