2015 QCCQ 10928, 2015 QCCQ 10928

Kapoor c. Granit Depot Plus 2015 QCCQ 10928 COURT OF QUÉBEC Small Claims Division CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL Civil Division No. 500-32-138397-130 DATE: October 22, 2015 ______________________________________________________________________ PRESIDED BY JUDGE HENRI RICHARD, J.C.Q. ______________________________________________________________________ MANMOHAN RAI KAPOOR Plaintiff v.

GRANIT DEPOT PLUS Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Manmohan Rai Kapoor is requesting the cancellation of the contract of sale for granite tiles and is claiming $6,000 from Granit Depot Plus ( Granit ), including $5,000 for the reimbursement of his deposit and $1,000 for the injury suffered. [ 2 ] In its defence, Granit is claiming that despite the timeframe for delivery of the granite tiles at issue, Mr Kapoor approved the sample supplied and nevertheless refused to accept delivery of the tiles. [ 3 ] That being said, in a cross demand, Granit is claiming $5,000 from Mr Kapoor, alleging that the "Defendant will try to sell the granite at the best cost possible but anticipates a loss of at least $5,000.00".

Questions in dispute [ 4 ]

a) Was the expected delivery timeframe in the contract respected?

b) Did the granite tiles proposed conform w ith the initial samples?

c) Was Mr Kapoor justified in requesting that the contract of sale reached with Granit be cancelled?

d) To what damages is Mr Kapoor entitled?

e) Has Granit presented evidence in support of its cross demand? Context and analysis [ 5 ] On November 1, 2012, Mr Kapoor purchased 1,750 square feet of "Kashmir Gold Granit" from Granit, "as per samples provided", at a cost of $14,000, plus applicable taxes. On the date of the contract, Mr Kapoor made a deposit of $5,000. [ 6 ] In the contract of sale, the parties specified that delivery would be made within no more than 2½ months. [ 7 ] Mr Kapoor did business with Granit through its representative, G.K. Sanger. [ 8 ] At the hearing, Mr Sanger did not testify, as he was no longer employed by Granit.

With regard to the delivery timeframe, Granit's representative at the hearing, Vince Gidari, testified that Mr Sanger had "misled the client". [ 9 ] From mid-January 2013, the expected delivery date for the tiles purchased, Mr Kapoor attempted to contact Mr Sanger, who did not return his calls.

[ 10 ] Exasperated by the delay and the lack of communication with Granit, Mr Kapoor gave Granit formal notice, by letter on March 18, 2013, in which he requested that the contract be cancelled and his $5,000 deposit reimbursed. [ 11 ] Since his formal notice letter, sent by registered mail, was returned and marked "Unclaimed", Mr Kapoor sent the formal notice to Mr Sanger by email.

The latter answered him on March 22, 2013, indicating particularly "your decision is right" and "also pl note your deposit is with us which refundable"[ sic ]. [ 12 ] In addition, the sample tiles sent to Mr Kapoor did not correspond with the tiles that were the subject of the contract of November 1, 2012. [ 13 ] After the hearing, the Court received from Granit's representative, Vince Gidari, evidence that the Court could not admit since it was in Granit's possession prior to the hearing and prevented Mr Kapoor from contesting it or from cross-examining the persons who signed some of the documents. [ 14 ] In any event, Granit is bound by the statements of its representative, Mr Sanger, when he agreed to cancel the contract of sale and told Mr Kapoor that his deposit was reimbursable, as provided for in

article 2160 of the Civil Code of Québec : 2160. A mandator is liable to third persons for the acts performed by the mandatary in the performance and within the limits of his mandate unless, under the agreement or by virtue of usage, the mandatary alone is liable.

The mandator is also liable for any acts which exceeded the limits of the mandate, if he has ratified them. [ 15 ] As Granit's representative, Mr Sanger is its mandatary and binds Granit through his statements and his actions. [1] [ 16 ] Mr Sanger's statements are sufficient to settle this dispute with regard to Mr Kapoor's request to cancel the contract of sale and to be reimbursed the amount of his deposit. [ 17 ] With respect to Mr Kapoor's count of damages of $1,000 relative to the injury suffered as a result of Granit's non-performance of its obligations, the Court cannot grant the count, given the absence of direct evidence in support of it. [ 18 ] As regards the cross demand, the Court notes that Granit did not present any evidence in support of it and that it is ill-founded, given Granit's acquiescence to cancel the contract of sale, through the statements and comments of its representative, G.K.

Sanger. THEREFORE, the Court: ALLOWS in part Manmohan Rai Kapoor’s claim; CANCELS , for all legal purposes, the contract of sale concluded between the parties on November 1, 2012; CONDEMNS Granit Depot Plus to pay Manmohan Rai Kapoor $5,000 plus interest at the legal rate, and the additional indemnity provided for in

article 1619 of the Civil Code of Québec , from April 17, 2013; DISMISSES Granit Depot Plus’ cross demand; CONDEMNS Granit Depot Plus to pay Manmohan Rai Kapoor $167 for legal costs. __________________________________ Henri Richard J.C.Q. Date of hearing: September 21, 2015