Cassation No. 50 of 2021 - Commercial
Issued on 31/08/2021
Court Panel: Chaired by Mr. Judge Shihab Abdul Rahman Al-Hammadi, Chief Judge of the Circuit, accompanied with Messrs. Judges: Al-Bashir bin Al-Hadi Zaytoun and Abdullah Bu Bakr Al-Siri serving as counsellors.
1- The trial court is obligated to thoroughly familiarise itself with all the elements of the case, including its evidence, and shall address the pleas and meritorious defences presented by the opposing parties.
2- The determination of the scope of expertise work.
3- Reference on purely legal matters pertaining to the interpretation of contracts and documents is impermissible, as this squarely falls within the court's inherent jurisdiction.
4- A check is an instrument of payment and represents, at its minimum, a debt instrument empowering the bearer to demand its value directly from the drawee bank. In the event of a bounced check, the signatory and the account holder remain jointly liable for its value, without necessitating proof of the reason for its issuance, unless the debtor successfully establishes discharge of liability, debt expiration, or non-maturity.
5- The contested ruling failed to scrutinise the combined evidence related to the appellants' entitlements as contained in the checks signed by the representatives of the respondents. This pertained specifically to their newly assumed responsibilities as delineated in a subsequent agreement, distinct from the initial agreement, and was substantiated by relevant supporting documents, on the basis of the reversing ruling, which underscored the significance and imperative nature of investigating such evidence to unveil the intentions of the opposing parties and establish their legal relationships and obligations. Additionally, the contested ruling exclusively relied on technical expertise to substantiate its conclusion, overlooking the legal validity attributed to the check as a payment instrument and a presumption for proving indebtedness.
(1) Court "Trial Court: shall examine all the elements and evidence of the case".
The Trial Court shall thoroughly familiarise itself with all the elements of the case and its evidence and respond to the pleas and defences made by the opposing parties. The reason for that.
(2) Expertise "Expertise work: Scope of the expertise work".
Expertise Work: The scope of expertise work is confined to technical and factual matters, while legal issues fall squarely within the jurisdiction of the trial court and are not subject to referral to technical expertise.
(3) Commercial papers "Check: Issuing a check the responsibility of its signatory and account holder.
Check. Payment instrument. Bounced check from the drawee bank without payment. Effect thereof. Both its signatory and the holder of the account are jointly liable for its value without the necessity to establish the reason for its issuance. reason for that.
(4) Commercial papers "Check: its binding force in establishing the indebtedness". Expertise. "Legal issues do not fall within the scope of expertise work."
The appellants upheld that they filed their counterclaim to assert their entitlements as reflected in the checks signed by the respondent's representative, pertaining to their newly assumed duties outlined in a subsequent agreement, distinct from the initial agreement. They provided supporting documents in this regard. The contested ruling failed to scrutinise this collective evidence, on the basis of reversing ruling, which emphasised the significance and necessity of examining such evidence to discern the intentions of the opposing parties and establish their legal relationships and obligations. The ruling exclusively leaned on technical expertise to support its decision, discrediting the check as a valid payment instrument and evidentiary proof of indebtedness. Consequently, the contested ruling is considered to have erred in the application of the law, exhibiting flaws in inference, deficiencies in reasoning, and a breach of the right of defence.
1- It is prescribed, as per the ruling of this court, that the trial court shall thoroughly acquaint itself with all facets of the case and its evidence, and shall address, in reference and response, the pleas and meritorious defences raised by the opposing parties. This is imperative to ensure that its ruling is grounded upon valid reasons leading to the resultant outcome.
2- Additionally, it is prescribed, as per the ruling of this court, that the scope of expertise work is confined to technical and factual matters within the relevant field, the veracity of which necessitates the expertise of specialists. Conversely, purely legal issues pertaining to the interpretation of contracts and documents, aimed at elucidating the intent of the signatories and establishing their ensuing rights and obligations, as well as ensuring the correct application of the law or contractual terms, fall within the exclusive jurisdiction of the court and are not subject to referral to technical expertise.
3- Further, it is prescribed, as per the ruling of this court, that a check is an instrument of payment and represents, at its minimum, a debt instrument, conferring upon its bearer the entitlement to demand its value directly from the drawee bank. In the event of dishonour without payment, both the signatory of the check and the account holder are jointly liable for the check's value, without the necessity of proving the reason for its issuance. This liability persists unless it is demonstrated that the debtor has been discharged from liability, the debt has expired, is not yet due, or not urgent.
4- Whereas it is evident from the documents and the appellants' defence memoranda, presented both before the court and the experts, that they filed their counterclaims to seek remuneration included in checks signed by the representative of the respondents for the services rendered in connection with the project. This claim is based on their performance of new tasks outlined in the agreement executed on 21/8/2014. This subsequent agreement stands independently of the initial agreement drafted on 13/8/2013. In the latter agreement, the appellants were originally designated for administrative and technical supervision of the project in exchange for a monthly lump sum. However, the subsequent agreement expanded their responsibilities, entrusting them with direct supervision of the project's implementation and ensuring its delivery in a completed state to its owner. To substantiate their assertion, the appellants presented documents duly signed by the opposing party as evidence of the commencement of the implementation of the commitments made. These documents include instances wherein settlements were made with prior contractors, and certain contracts were terminated or renewed. A specific illustration of this is evident in the case of the company [Name], whose previous contract was under the supervision of the appellant. Subsequently, the contract was terminated and subsequently renewed under revised conditions, as delineated in the agreement dated 13/11/2014. Additionally, the appellants presented a declaration issued by the project's consulting engineer, acknowledging and approving the completed works up until the termination of the contract in January 2015. This declaration received endorsement from the respondent's representative, who authorised the issuance and signing of checks as a means of fulfilling the corresponding dues... Henceforth, the contested ruling, guided by the reversing ruling, should not have omitted the examination of this combined evidence for discerning the intentions of the opposing parties and establishing their legal relationships and obligations. These combined pieces of evidence serve as the foundational basis for adjudicating the case, particularly considering that the reversing ruling underscored their significance and the imperative need to scrutinise the appellants' defence in light of such evidence. Moreover, it is established that proof in commercial transactions is permissible through all available means. However, the ruling, relying on technical expertise, and adopting the last expert report as a basis for its decision, failed to consider the significance of the documents presented. Simultaneously, it overlooked the legal validity attributed to the check as a payment instrument and a presumption for proving indebtedness. Notably, successive expert reports indicate the inability of the two respondents to establish an alternative reason for issuing the checks beyond what is stated in the appellants' defence. Consequently, the ruling is deemed to have erred in the application of the law, exhibiting flaws in inference, breaching the right of defence, and demonstrating deficiencies in reasoning, which necessitates its reversal.
The Court,
Whereas in the facts - as apparent pursuant to the perusal of the contested ruling and the remaining documents - the first respondent - [Name] Commercial Company - filed Case No. 193 of 2015 C-P-Sh, against the appellants, seeking a ruling to appoint an engineering expert to elucidate what the plaintiff paid to the defendants and what the latter remitted to the project contractors, with quantifying the damages incurred by the plaintiff due to project delays caused by the defendants' alleged failure to adequately monitor and implement their assigned tasks. The plaintiff sought to be granted the outcomes of the expertise report, inclusive of interest and expenses. The basis of the plaintiff's claim was that the first defendant, [Name], a company specialising in management consultations, was engaged by the plaintiff to oversee and supervise the execution of a water sports park project on the island of [Name]. In return, [Name] was to receive a monthly lump sum of ten thousand dollars, payable to the second defendant for administrative and technical consultations. [Name] was responsible for project oversight, contractor coordination, and disbursement of funds, including payments to contractors from funds transferred by the plaintiff. Allegedly, the plaintiff transferred the required funds for project implementation along with the defendants' dues. However, it was later discovered that the contractors' payments were not made from these funds, resulting in project delays. Consequently, the plaintiff filed the lawsuit. In response, the defendants appeared and submitted a counterclaim against the plaintiff. In this counterclaim, the second defendant, [Name], was introduced as a litigant. The defendants sought a provisional seizure on their funds amounting to 3,700,000 dirhams and imposed on the two defendants in the counterclaim to pay 12,375,000 dirhams. This amount represented the value of the completed work in the project. The counterclaim asserted that an agreement had been reached between the defendants and the plaintiff in the original claim to supervise and complete the aforementioned water park, in exchange for a lump sum of 16,500,000 dirhams. The opposing party introduced to the case personally committed to paying the specified amount upon execution, and to facilitate this commitment, the defendant issued checks totalling 3,700,000 dirhams. Unfortunately, these checks were dishonoured due to insufficient funds, leading to the criminal conviction of the drawer for this offence. In the session dated 28/10/2015, the court ruled to reject the seizure request, prompting the two plaintiffs in the counterclaim to file a grievance against this decision. Subsequently, on 30/12/2015, the court appointed an accounting expert who, in their report, substantiated that the defendants in the original claim had failed to disburse the dues owed to the project contractors from the funds transferred by the plaintiff. The expert's findings indicated that the defendants were indebted to the plaintiff in the amount of 1,705,157 dirhams. In the session held on 22/12/2017, the court in the original case ruled that the defendants were jointly obligated to pay the plaintiff the sum of 1,705,157 dirhams. The court further directed the defendants to return the original checks. Additionally, the court rejected the counterclaim and the grievance, thereby confirming the grieved-against ruling. The defendants filed Appeal No. 449 of 2019. The Court of Appeal reassigned the expert through a tripartite committee. This committee submitted a report, concluding that the appellants' capacity as the main contractors who had completed the works for which the checks in their possession had been issued is not substantiated. Furthermore, the committee found no evidence supporting the assertion that the sums of money and checks received by the appellants were intended for paying the contractors' dues. The Court of Appeal also conducted an interrogation involving the second appellant and the representative of the first respondent. In the session dated 10/4/2019, the court ruled to reject the appeal, relying on the expert report as the basis for its decision. Subsequently, the defendants (the two plaintiffs in the original claim) filed an appeal in cassation, designated as No. 308 of 2019, against this ruling before the Supreme Court. On 29/10/2019, the Supreme Court ruled to reverse the decision and remand the case for further consideration. This ruling was grounded in the identified deficiencies in reasoning during the examination of the appellants' defence concerning the accuracy of the task assigned to them by the respondent and their role in completing the project. The Supreme Court highlighted the importance of considering subsequent agreements signed by the parties, along with the documents and decisions issued by the employer's representative regarding the appellants' entitlements. Additionally, the Supreme Court criticised the undue reliance on technical expertise reports to resolve these legal issues. Upon remand, the court of the next instance reheard the appeal and re-assigned the committee previously tasked with examining the appellants' objections. This committee submitted a supplementary report, reaffirming its initial opinion. Consequently, in the session held on 29/12/2020, the court ruled to reject the appeal and confirm the previously contested ruling. Subsequently, the two plaintiffs in the counterclaim challenged this ruling for the second time in the present cassation. The case file was presented to this court, convened in a Council Chamber, and deemed valid for consideration. A pleading session was scheduled, and the opposing parties were duly notified.
The appellants object to the contested ruling, asserting errors in the application of the law, a breach of the right of defence, flaws in inference, and deficiencies in reasoning. Their objection is grounded in the court's failure to rectify the deficiencies and violations identified in the initial ruling, as emphasised by the reversing ruling. Specifically, the court neglected to thoroughly examine the appellants' defence concerning the nature of the relationship that connected them to the first respondent and the various stages it traversed from its initiation to the date of termination. The two appellants consistently upheld throughout all stages of the litigation and before the involved experts that their interaction with the respondent and the agreements reached underwent two distinct stages: The initial stage was governed by the agreement executed on 23/8/2013, which assigned the second appellant the responsibility of technical and administrative supervision over the project's progress. This was in exchange for a lump sum payment amounting to ten thousand dollars per month. The subsequent stage of their dealings was regulated by the agreement dated 21/8/2014, as well as subsequent memorandums of understanding with the representative of the project owner and subcontracting companies. Additionally, declarations issued by the project consultant or the respondent's representative were considered pivotal in outlining the stages of implementation and corresponding dues. Under the terms of the last agreement, the appellants were bestowed with the responsibility of overseeing the entire completion of the project and ensuring its delivery in a finished state to the owner. This included the authorisation to review and reconsider contracts previously executed between the respondent and the contractors. The appellants were empowered to terminate these contracts through settlement or re-subcontracting with parties they deemed more suitable and capable of fulfilling the project requirements. The checks upon which the appellants rely in their lawsuit constitute remuneration for the tasks executed within the scope of this agreement, spanning until the termination of the contract in January 2015. Despite the approved expert reports concluding that the respondent failed to furnish evidence substantiating the reason for signing these checks or challenging the entitlement of the appellants, their value was still deducted during the calculation process. This discrepancy arose because the assigned experts did not comprehend the true nature of the last contract and the appellants' role within it. Instead, they adhered to their prior stance with the reversing ruling, focusing on the implementation of the initial supervision contract without recognising the influence of subsequent agreements and understandings. Given this scenario, whereas the contested ruling relied on the approved expert reports to determine essential factual and legal matters and endorsed these reports without delving into the technical intricacies of the case, the issuing court has effectively abdicated its responsibility to provide a legal opinion on matters within its jurisdiction. The court's decision led to a result that contradicts the correct application of the law, undermining the validity of the ruling. As outlined in the grounds for cassation, these flaws necessitate the reversal of the contested ruling.
The objection raised holds merits, since is prescribed, as per the ruling of this court, that the trial court shall thoroughly acquaint itself with all facets of the case and its evidence, and shall address, in reference and response, the pleas and meritorious defences raised by the opposing parties. This is imperative to ensure that its ruling is grounded upon valid reasons leading to the resultant outcome.
Additionally, it is prescribed, as per the ruling of this court, that the scope of expertise work is confined to technical and factual matters within the relevant field, the veracity of which necessitates the expertise of specialists.
Conversely, purely legal issues pertaining to the interpretation of contracts and documents, aimed at elucidating the intent of the signatories and establishing their ensuing rights and obligations, as well as ensuring the correct application of the law or contractual terms, fall within the exclusive jurisdiction of the court and are not subject to referral to technical expertise.
Further, it is prescribed, as per the ruling of this court, that a check is an instrument of payment and represents, at its minimum, a debt instrument, conferring upon its bearer the entitlement to demand its value directly from the drawee bank n. In the event of dishonour without payment, both the signatory of the check and the account holder are jointly liable for the check's value, without the necessity of proving the reason for its issuance. This liability persists unless it is demonstrated that the debtor has been discharged from liability, the debt has expired, is not yet due, or not urgent.
Whereas it is evident from the documents and the appellants' defence memoranda, presented both before the court and the experts, that they filed their counterclaims to seek remuneration included in checks signed by the representative of the respondents for the services rendered in connection with the project. This claim is based on their performance of new tasks outlined in the agreement executed on 21/8/2014. This subsequent agreement stands independently of the initial agreement drafted on 13/8/2013. In the latter agreement, the appellants were originally designated for administrative and technical supervision of the project in exchange for a monthly lump sum. However, the subsequent agreement expanded their responsibilities, entrusting them with direct supervision of the project's implementation and ensuring its delivery in a completed state to its owner. To substantiate their assertion, the appellants presented documents duly signed by the opposing party as evidence of the commencement of the implementation of the commitments made. These documents include instances wherein settlements were made with prior contractors, and certain contracts were terminated or renewed. A specific illustration of this is evident in the case of the company [Name], ‌whose previous contract was under the supervision of the appellant. Subsequently, the contract was terminated and subsequently renewed under revised conditions, as delineated in the agreement dated 13/11/2014. Additionally, the appellants presented a declaration issued by the project's consulting engineer, acknowledging and approving the completed works up until the termination of the contract in January 2015. This declaration received endorsement from the respondent's representative, who authorised the issuance and signing of checks as a means of fulfilling the corresponding dues... Henceforth, the contested ruling, guided by the reversing ruling, should not have omitted the examination of this combined evidence for discerning the intentions of the opposing parties and establishing their legal relationships and obligations. These combined pieces of evidence serve as the foundational basis for adjudicating the case, particularly considering that the reversing ruling underscored their significance and the imperative need to scrutinise the appellants' defence in light of such evidence. Moreover, it is established that proof in commercial transactions is permissible through all available means. However, the ruling, relying on technical expertise, and adopting the last expert report as a basis for its decision, failed to consider the significance of the documents presented. Simultaneously, it overlooked the legal validity attributed to the check as a payment instrument and a presumption for proving indebtedness. Notably, successive expert reports indicate the inability of the two respondents to establish an alternative reason for issuing the checks beyond what is stated in the appellants' defence. Consequently, the ruling is deemed to have erred in the application of the law, exhibiting flaws in inference, breaching the right of defence, and demonstrating deficiencies in reasoning, which necessitates its reversal.
In light of the fact that the cassation has been filed for the second time and the merits are deemed valid for adjudication, this court proceeds to address and decide on the merits of the cassation. It is determined that the substance of the appellants' counterclaim is indeed linked to the services they rendered in the project, in accordance with the agreement executed on 21/8/2014 and subsequent understandings. This agreement stands independently in its content and parties from the preceding consultation agreement with the second appellant. The amount of 2,300,000 dirhams, proven to have been paid to the appellants, constitutes part of the dues owed to them and was remitted by the respondent after recovering the checks initially delivered for this purpose. Regarding the remaining seven checks subject to the latest requests, a combination of presumptions and evidence strongly suggests that they were issued in exchange for the work and services performed by the appellants, with a legitimate reason. The respondents failed to substantiate an alternative explanation. Consequently, it is imperative to revert to the legal principle that a check represents a commitment to pay upon presentation and, in this case, a debt obligation of three million seven hundred thousand dirhams owed to the appellants. Given that the appealed ruling diverged from this interpretation, it is hereby cancelled. The case shall be re-adjudicated, encompassing both the original claim and the counterclaim, as will be specified in the enacting terms.

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