Supreme Court of Mauritius, 9 juin 2020, 2020 INT 60 – Eastern Mix Ltd v R. S. Tilluck

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Eastern Mix Ltd v R. S. Tilluck

2020 INT 60

CN1834/2015 THE INTERMEDIATE COURT OF MAURITIUS (CIVIL) In the matter of: – Eastern Mix Ltd Plaintiff v/s

Ravi Shankar Tilluck

Defendant JUDGMENT

1) The plaintiff avers that it is a private limited company and trades inter alia in the manufacturing and supply of ready mixed concrete and building materials. The defendant was employed as salesman since 17 November 2008 and drew a salary of Rs10,135. The defendant’s duties consisted inter alia in collecting money from clients for items purchased and remitting same to the accounts department, but he pocketed the money without right, title or capacity. The plaintiff reported the matter to the police and the defendant was prosecuted and pleaded guilty to 17 charges of embezzlement. The acts and doings of the defendant amount to a serious breach of his obligation and/or contract of employment which resulted in serious prejudice to the plaintiff and which prejudice the defendant is bound in law to make good to it. The plaintiff therefore prays for a judgment condemning and ordering the defendant to pay to it the sum of Rs722,874 which represents money embezzled from November 2008 to December 2009, with interest at the legal rate as from the date of entry of the plaint until final payment and with costs.

2) The defendant pleads in limine litis that the plaint should be set aside as no mise en demeure has been served on him prior to entering the present plaint. On the merits he admits the status of the plaintiff and his employment with the company. He denies the other material averments in the plaint and avers that civil and criminal matters cannot be mixed. He avers that he is not indebted in any sum and therefore moves that the action be dismissed, with costs.

3) The trial was postponed five times for, amongst others, an offer being made to the plaintiff which was eventually refused, the absence of counsel, the absence of a witness and the plaint being amended. On 13 November 2019 the trial was fixed to 17 March 2020 as per the common dates suggested by counsel.

4) On 17 March 2020 the case was called at 9.36am and 9.55am and the defendant was not present at either time, whereas his counsel, Mr C. Baboolall, was present. Mr Baboolall informed the court that he could not explain the defendant’s absence. The court therefore acceded to the motion of Mr V. Rampoortab, counsel for the plaintiff, to proceed with the case in the absence of the defendant.

5) It is to be noted that the case was fixed for Arguments on the plea in limine litis on 6 September 2017, but that on such date Ms Busgeeth, counsel replacing Mr Baboolall for the defendant, informed the court that the defendant was not insisting on the point of law raised. The plea in limine litis was not reiterated and no evidence was adduced in support of same and counsel did

not submit upon it at any time after 6 September 2017. Therefore, the plea in limine litis is no more a live issue before the court.

The case for the plaintiff

6) The gist of evidence adduced for the plaintiff as per the testimony of Mr Woochit is as follows: the plaintiff company manufactures and delivers concrete items. It was incorporated on 19 July 2005 (Documents A and B). The defendant was employed as salesman and earned a salary of Rs10,135. His duties consisted in taking orders, filling quotation forms, taking money, issuing receipts to clients and remitting the money to the accounts department. There were corporate clients who made deposits and paid on credit and the defendant was responsible for collecting the money and remitting same to the accounts department. The defendant got money from clients, but did not remit it to the company: he kept it for himself. Mr Woochit reported the matter to the CID and there was a case: the defendant pleaded guilty and was convicted on 17 charges of embezzlement (Document C). The defendant took Rs722,874 in the period November 2008 to December 2009, which money he had to remit to the company, as per the statement of account and invoices, which documents were also remitted to the CID (Documents D and E, E1 to E51). The defendant received the money mentioned in the 52 receipts, which are summaries. He is praying for a judgment to condemn and order the defendant to pay the company the sum of Rs722,874 that he embezzled in the period November 2008 to December 2009. He is not insisting on interest. He denied that the defendant is not indebted to the company.

The case for the defendant

7) No evidence was adduced for the defendant since he was absent without any valid reason and no witness was called on his behalf.

Discussion

8) It is admitted by the defendant that the plaintiff is a company that deals in the manufacturing and supply of ready mixed concrete and building materials and that he was employed as salesman by the plaintiff since 17 November 20028 and was paid a monthly salary of Rs10,135.

9) The defendant denies that his duties were as per the averments at paragraph 3 of the plaint, but as he has not adduced any evidence Mr Woochit’s version that his duties included the collection of money from clients who purchased building materials and the remittance of same to the accounts department of the company remains unrebutted. I further find undisputed Mr Woochit’s evidence that the defendant failed, in compliance with his duties as salesman, to remit to the accounts department the sum of Rs722,874 that clients had given to him for orders they placed for the period November 2008 to December 2009.

10) The Statement of Account produced is based on the invoices issued on behalf of the plaintiff company: I find that those documents have not been challenged since Mr Woochit has not been cross-examined on their content.

11) The defendant has averred at paragraph 3 of his plea that “civil and criminal matter cannot be mixed” (sic). Section 7(2) of the Criminal Procedure Act provides as follows:

(2) The verdict or judgment in the one case shall not be admitted as evidence in the other.

12) The plaintiff has not made any averment of the verdict or judgment in the alleged criminal case. Furthermore, I find that the plaintiff has not mixed civil and criminal matters. The fact that the defendant was prosecuted for a criminal offence does not preclude the plaintiff from claiming from the defendant the money that the latter should have remitted to it as part of his duties as salesman employed by the company.

13) It was the contention of counsel for the defendant that since there are 52 invoices, the defendant should have been prosecuted on 52 charges. It does not necessarily follow that because there are 52 invoices, there should have been 52 charges. In any event, it is the prerogative of the Director of Public Prosecutions to decide on how many charges to prosecute an individual. The fact that the defendant may was prosecuted under 17 charges has no incidence on the claim of the plaintiff before this court.

14) It is to be noted that the defendant has not adduced any evidence to challenge the amount which is being claimed from him.

15) In the circumstances, I find that the plaintiff company has established that the defendant has failed to remit the sum of Rs722,874 to it in the course of his employment as salesman and that the defendant therefore owes the said sum of Rs722,874 to the plaintiff company.

Conclusion

16) For all the reasons given above, I find that the plaintiff has proved its case against the defendant on a balance of probabilities and I order the defendant to pay to the plaintiff the sum of Rs722,874.

17) The representative of the plaintiff not having prayed for costs I do not allow any.

W. V. Rangan President, Intermediate Court (Civil Division)

This 09 June 2020