Bangalore District Court
Manish Pachauri vs Indian Institute Of Hardware ... on 10 June, 2024
KABC170036762022
IN THE COURT OF LXXXIII ADDL. CITY CIVIL & SESSIONS JUDGE,
COMMERCIAL COURT, BENGALURU (CCH-84)
Present: Sri S. Sudindranath, LL.M., M.B.L.,
LXXXIII ADDL. CITY CIVIL & SESSIONS JUDGE
BENGALURU.
COM.OS.No.6694/2007
Dated on this 10th day of June 2024
Plaintiff Mr.Manish machauri,
S/o late S.S.Pachauri,
Aged about 38 years,
Proprietor
M/s. OHM Computers,
No.A2, Pai Complex,
Bareilly Road, Haldwani,
Uttaranchal,
Also at:
T-7, Durga city Centre,
3rd Floor, Bhotia Parao,
Haldwani-263141,
Uttaranchal.
(By Sri.R.P.N, Advocate)
// versus //
Defendants 1. Indian Institute of Hardware
Technology Limited,
having its registered office at:
No.63, Infantry Road,
Bengaluru-560001.
Also at:
A/2A, 2nd Floor,
2
CT 1390_Com.O.S.6694-2007_Judgment.doc
KABC170036762022
Aurobindo Marg,
Green Park Main,
New Delhi-110016.
Represented by its Director
and Chief Executive Officer.
2. M/s. VAP Technology,
A partnership firm
represented by Mr.Vinod Pathak
S/o D.D.Pathak,
Major, having office at
1st Floor, Sijwali Tower,
Kala Dungi Road,
Haldwani-263139
Nainital District, Uttarakhand.
Also at:
IIHT Training Centre,
1st Floor, NCC Building,
Bhotia Parao,
Haldwani-263139,
Nainital District,
Uttarakhand.
(By Sri.A.R, Advocate)
Date of Institution of suit : 14/08/2007
Nature of the suit : Declaration &
Injunction
Date of commencement of : 18/02/2009
recording of the evidence
Date on which the : 10/06/2024
Judgment was pronounced.
: Year Month/ Day/s
Total duration /s s
16 09 27
3
CT 1390_Com.O.S.6694-2007_Judgment.doc
KABC170036762022
JUDGMENT
This is a suit filed by the Plaintiff, initially, against sole defendant and thereafter, defendant No. 2 has been impleaded. Further, it is to be noted that, initially the suit was filed only seeking the relief of declaration against termination of the agreement dated 4-10-2006 and mandatory injunction and permanent injunction and thereafter, the Plaint was amended initially for seeking recovery of sum of Rs. 13,34,32,869 and later on, once again, the Plaint was amended to limit the sum sought to be recovered to Rs. 5,85,75,000/= on the ground that the plaintiff is unable to pay the court fee for the rest of the sum.
2. The case of the plaintiff in brief is that, the defendant No. 1 is in the business of providing training and education in computer hardware technology to students. The plaintiff wanted to set up a training centre in his hometown of Haldwani, Uttaranchal to train students interested in computer hardware technology. Thereby, the plaintiff and defendant No. 1 entered into MOU dated 30-8-2006 under 4 CT 1390_Com.O.S.6694-2007_Judgment.doc KABC170036762022 which plaintiff paid license fees of Rs. 1,30,000. This was followed by agreement for running IIHT training centre between the parties dated 4-10-2006. It is pleaded that, although the agreement is dated 4-10-2006, the plaintiff was not furnished copy of the same till 10-7-2007. Anyhow, the plaintiff by investing huge amount for setting up training centre, commenced activities of the training centre in Haldwani, Uttaranchal on 21-04-2007. Within a period of 4 months i.e. on 03-8-2007, the agreement was terminated and the training centre of plaintiff was derecognized. The events leading up to the termination and derecognition as pleaded by the plaintiff are as follows. It is pleaded that, initially, on commencement of the training centre, due to the good work carried out by the plaintiff in advertising and marketing, there were record No. of enrollments and by email dated 1-6-2007, the plaintiff informed Defendant No. 1 that 89 students are enrolled and total course fees collected is Rs. 10,79,159 for which there were congratulatory emails by the hierarchy of officials of Defendant No. 1. Even before that on 29-05-2007, the plaintiff had placed an order with Defendant No. 1 for 40 5 CT 1390_Com.O.S.6694-2007_Judgment.doc KABC170036762022 course material and 200 career catalogues. However, the course material and the catalogues were not supplied by Defendant No. 1 which resulted in unrest and agitation among the students who had paid the fees but not received the course material. In the meantime, things aggravated due to a visit by regional manager of Defendant No. 1 to the plaintiff's training centre on 24-07-2007 in which there were misunderstandings and allegations of misbehaviour by each side against the other. In the meantime, on 26-07-2007, plaintiff received letter dated 11-07-2007 issued by the Defendant No. 1 demanding the plaintiff to make payment towards royalty, advertisement charges, etc. This prompted the plaintiff to issue two emails dated 27-07-2007 and 28-07- 2007 calling to attention of Defendant No. 1 that delay in dispatching course material was resulting in agitation among the students which may reach boiling point. It is at that stage that the termination notice dated 03-08-2007 was issued by Defendant No. 1 terminating the agreement to run the training centre dated 04-10-2006 and derecognizing plaintiff's training centre. This was followed by public notice 6 CT 1390_Com.O.S.6694-2007_Judgment.doc KABC170036762022 in Dainik Jagran newspaper dated 10-08-2007 issued by Defendant No. 1 bringing to the notice of the public at large and students in particular that the agreement with plaintiff is terminated and the training centre is derecognized. Apart from this, the public notice contained a statement which alarmed the students stating that it is no more the responsibility of Defendant No. 1 to train the students already enrolled with plaintiff. It is the case of the plaintiff that, as a direct result of such issuance of public notice by Defendant No. 1, the students who had enrolled got enraged and attacked the training centre of plaintiff and in the ensuing riots the entire training centre was destroyed resulting in huge loss to the plaintiff. With these pleadings, the plaintiff is before the court seeking Declaration that the termination of the agreement dated 04-10-2006 by legal notice dated 3-08- 2007 is null and void, Mandatory injunction directing the defendant to supply course material to the plaintiff as per the agreement dated 04-10-2006 and discharge all obligations under the agreement till completion of the term-period stipulated under the agreement, Recovery of sum of Rs 7 CT 1390_Com.O.S.6694-2007_Judgment.doc KABC170036762022 5,85,75,000 as compensation for loss suffered by the plaintiff and Permanent injunction restraining the defendant or anybody claiming through the defendant from opening any training centre in Haldwani, Uttaranchal to impart hardware and network technology courses till the term-period contemplated under the agreement dated 04-10-2006 has expired.
3. As already noted Supra, although initially the suit was filed only against Defendant No. 1, subsequently, Defendant No. 2 was impleaded on the ground that, after terminating the agreement of plaintiff, the Defendant No. 1 has granted the franchisee rights in favour of Defendant No. 2 which is an act of conspiracy in order to unjustly enrich themselves at the cost of the hard work put in by the plaintiff in getting enrollment of students for the courses. Another allegation alleged against Defendant No. 2 is that, it was Defendant No. 2 who incited the students to destroy the plaintiff's training centre, by distributing handbills.
4. The Defendant No. 1 and 2 have entered appearance through counsels and filed separate written statements. 8
CT 1390_Com.O.S.6694-2007_Judgment.doc KABC170036762022
5. In the written statement filed by Defendant No. 1, apart from denying the plaint averments, it is contended that, the fact that there were record enrollments in the plaintiff's training centre was not because of any hard work or marketing strategy put in by the plaintiff but due to the reputation and goodwill enjoyed by Defendant No. 1 in the student community. It is pleaded that, although the training centre of the plaintiff commenced activities on 21-04-2007, it was only on 29-05-2007 that the plaintiff sought for 40 course materials, whereas according to the stand of the plaintiff himself there were already 89 enrollments as on that date and thereby it is contended that, as against 89 enrollments the plaintiff only sought for 40 course materials which discloses that the plaintiff was photocopying the course materials supplied along with the welcome kit and thereby violating the terms of the agreement. The plaint averments that there was delay on the part of the Defendant No. 1 in dispatching the course material is stoutly denied by contending that it was at the request of the plaintiff that the course material was sent through lorry transport instead of 9 CT 1390_Com.O.S.6694-2007_Judgment.doc KABC170036762022 the usual courier service which resulted in delay and even the course material which was subsequently sent by lorry has not been collected by the plaintiff. It is further contended that, there was violation of the agreement by the plaintiff in failing to remit and credit the royalty fee of 15% of the total fees collected to the Defendant No. 1 which is one of the salient terms of the agreement between the parties. Thereby the Defendant No. 1 justifies its act of terminating the agreement dated 04-10-2006 and contends that only to protect the interest of the students and caution the students from dealing further with the plaintiff, the public notice was issued. Another allegation made in the written statement of Defendant No. 1 is that the plaintiff enrolled students by issuing receipts of OHM computers which is the proprietorship concern of plaintiff whereas the students should have been enrolled under the receipt of Defendant No. 1 i.e. IIHT. Another allegation made is that, at the time of inspection of the training centre on 24-07-2007 the plaintiff did not allow the representatives of Defendant No.1 to enter 10 CT 1390_Com.O.S.6694-2007_Judgment.doc KABC170036762022 the training center. With these pleadings the Defendant No. 1 has prayed for dismissal of the suit.
6. The Defendant No. 2 has filed written statement professing ignorance about most of the plaint averments which contains allegations against Defendant No. 1 and Defendant No. 2 has essentially taken up the stand that, it was only after termination of agreement of the plaintiff that Defendant No. 2 entered into the picture and became franchisee of Defendant No. 1 and thereby denying all allegations against Defendant No. 2, the Defendant No. 2 has prayed for dismissal of the suit.
7. To the written statement filed by Defendant No. 1 the plaintiff has filed a rejoinder / replication which is taken on record by allowing IA No. 7 under Order 8 rule 9 CPC. In the replication filed by the plaintiff, the plaintiff has met the contentions raised in written statement about photocopying etc. by contending that, out of the total students enrolled, 24 students were enrolled for HCL industrial training and there was no need to give course material to them since they would 11 CT 1390_Com.O.S.6694-2007_Judgment.doc KABC170036762022 be spending their whole day in HCL company and 30 course material had already been received earlier and therefore 40 course material ordered was adequate. The contention is raised that, if really it was the intention of the plaintiff to photocopy course material, there was no need to even order 40 course material since the course material in one set supplied along with the welcome kit would be sufficient to cater to any No. of students by photocopying the same. Further, it is contended that, the very allegation of photocopying of course material is ridiculous because ultimately when the certificate has to be issued by IIHT, the plaintiff would gain nothing by suppressing the No. of students enrolled. The delay in sending the course material is reiterated in the replication by contending that, on earlier occasion the course material was sent by courier which demanded unjustifiable amount of Rs. 550 per box of 10 books and for this reason, the plaintiff requested for alternative mode of dispatch of the course material and the very fact that, the officers of the defendant No. 1 kept the issue pending for 42 days in order to pressurize the plaintiff 12 CT 1390_Com.O.S.6694-2007_Judgment.doc KABC170036762022 to agree to receive the course material from that particular courier leads to inference that the defendant No. 1 is selecting that particular courier which charges exorbitant rates, with oblique motive and in order to make unjust gain. It is contended that, the public notice was issued with a view to damage the interest of the plaintiff being well aware that it lead to rioting by the students. The allegation of enrolling students under the receipt of OHM computers which is proprietorship concern of plaintiff is sought to be justified by contending that, all such receipts are dated subsequent to 25-07-2007 by which time the relationship had strained and in any event, the receipt books were not supplied to the plaintiff by Defendant No. 1 and therefore, the plaintiff had no option but to use his own receipts. In answer to the allegation that royalty payments were not remitted by plaintiff it is contended that defendant cannot insist on payment of royalty without discharging reciprocal obligation of providing course material and in any event as required under the agreement the designated account was not opened by the defendant No. 1 and therefore there is no question of plaintiff depositing 13 CT 1390_Com.O.S.6694-2007_Judgment.doc KABC170036762022 amount into the designated account. Ultimately it is contended that plaintiff is highly qualified being a alumnus of reputed institution and his years of hard labour and high reputation gained has been damaged due to one single public notice caused by defendant No. 1 and therefore plaintiff is justified in seeking recovery of the sum as prayed for in the suit. It is further contended that the second franchisee agreement executed in favour of defendant No. 2 is on more beneficial terms in order to help defendant No. 2 and thereby it is contended that, in conspiracy the defendants have used some trivial justification to terminate the agreement of the plaintiff in order to hand over the franchisee to defendant No.
2. On these grounds the plaintiff, in the replication reiterates the plaint averments and seeks the decree as prayed for in the Plaint.
8. On the basis of the above rival pleadings the following issues are framed;
1) Whether the plaintiff proves termination of the agreement dated 04-10-2006 between plaintiff and defendant No. 1 by 14 CT 1390_Com.O.S.6694-2007_Judgment.doc KABC170036762022 the legal notice dated 3-08-2007 of first defendant is null and void?
2) Whether the plaintiff further proves that defendant No. 1 has not supplied the course material to the plaintiff in accordance with the agreement dated 04- 10-2006 and defendant No. 1 has failed to discharge all its obligations under the agreement?
3) Whether the first defendant proves that plaintiff has committed breach of terms and conditions of the agreement dated 04- 10-2006 as alleged in written statement, so the action on the part of the defendant in terminating the agreement is just, legal and proper?
4) Whether the plaintiff is entitled for sum of Rs 5,85,75,000 from the defendants as compensation for the loss suffered by him?
5) Do the defendants prove that suit of the plaintiff is not maintainable as alleged in the written statement?
6) Do the defendants further prove that court fee paid by the plaintiff is insufficient?
7) Whether the plaintiff has got no cause of action to file the suit ?
8) To what relief plaintiff is entitled?
9) What order or decree?
15
CT 1390_Com.O.S.6694-2007_Judgment.doc KABC170036762022
9. In the trial the plaintiff has examined himself as PW1 and got marked Ex. P1 to P53. On behalf of the defendants the official of defendant No. 1 company is examined as DW1 and has got marked Ex. D1 to D9.
10. It is to be noted that, the initial cross-examination of DW1 was recorded through court commissioner and it appears that, before the court commissioner, interrogatories were furnished, in response to which DW1 produced certain documents and the court commissioner has submitted commissioner's report on 4-06-2011 producing the deposition recorded before him and the documents produced before him, but, the said documents produced in response to the interrogatories have not been got marked.
11. After closure of evidence of both sides I have heard the arguments of both sides and perused the records of the case.
12. My answer to the issues are as follows :
Issue No. 1, 4, 5, 6 : In the negative Issue No. 2, 7 & 8 : As per finding Issue No. 3 : In the affirmative Issue No. 9 : As per final order, for the following :-16
CT 1390_Com.O.S.6694-2007_Judgment.doc KABC170036762022 REASONS Issue No. 1 to 3 :-
13. These issues require common discussion and hence considered together.
14. The case of the plaintiff is that, the defendant No. 1 is in the business of providing training and education in computer hardware technology to students. The plaintiff wanted to set up a training centre in his hometown of Haldwani, Uttaranchal to train students interested in computer hardware technology. Thereby, the plaintiff and defendant No. 1 entered into MOU dated 30-8-2006 under which plaintiff paid license fees of Rs. 1,30,000. This was followed by agreement for running IIHT training centre between the parties dated 4-10-2006. It is pleaded that, although the agreement is dated 4-10-2006, the plaintiff was not furnished copy of the same till 10-7-2007. Anyhow, the plaintiff by investing huge amount for setting up training centre, commenced activities of the training centre in Haldwani, Uttaranchal on 21-04-2007. Within a period of 4 months i.e. 17 CT 1390_Com.O.S.6694-2007_Judgment.doc KABC170036762022 on 03-8-2007, the agreement was terminated and the training centre of plaintiff was derecognized. The events leading up to the termination and derecognition as pleaded by the plaintiff are as follows. It is pleaded that, initially, on commencement of the training centre, due to the good work carried out by the plaintiff in advertising and marketing, there were record No. of enrollments and by email dated 1-6-2007, the plaintiff informed Defendant No. 1 that 89 students are enrolled and total course fees collected is Rs. 10,79,159 for which there were congratulatory emails by the hierarchy of officials of Defendant No. 1. Even before that on 29-05-2007, the plaintiff had placed an order with Defendant No. 1 for 40 course material and 200 career catalogues. However, the course material and the catalogues were not supplied by Defendant No. 1 which resulted in unrest and agitation among the students who had paid the fees but not received the course material. In the meantime, things aggravated due to a visit by regional manager of Defendant No. 1 to the plaintiff's training centre on 24-07-2007 in which there were misunderstandings and allegations of misbehaviour by each 18 CT 1390_Com.O.S.6694-2007_Judgment.doc KABC170036762022 side against the other. In the meantime, on 26-07-2007, plaintiff received letter dated 11-07-2007 issued by the Defendant No. 1 demanding the plaintiff to make payment towards royalty, advertisement charges, etc. This prompted the plaintiff to issue two emails dated 27-07-2007 and 28-07- 2007 calling to attention of Defendant No. 1 that delay in dispatching course material was resulting in agitation among the students which may reach boiling point. It is at that stage that the termination notice dated 03-08-2007 was issued by Defendant No. 1 terminating the agreement to run the training centre dated 04-10-2006 and derecognizing plaintiff's training centre. This was followed by public notice in Dainik Jagran newspaper dated 10-08-2007 issued by Defendant No. 1 bringing to the notice of the public at large and students in particular that the agreement with plaintiff is terminated and the training centre is derecognized. Apart from this, the public notice contained a statement which alarmed the students stating that it is no more the responsibility of Defendant No. 1 to train the students already enrolled with plaintiff. It is the case of the plaintiff that, as a 19 CT 1390_Com.O.S.6694-2007_Judgment.doc KABC170036762022 direct result of such issuance of public notice by Defendant No. 1, the students who had enrolled got enraged and attacked the training centre of plaintiff and in the ensuing riots the entire training centre was destroyed resulting in huge loss to the plaintiff. With these pleadings, the plaintiff is before the court seeking the following reliefs;
i. Declaration that the termination of the agreement dated 04-10-2006 by legal notice dated 3-08-2007 is null and void.
ii. Mandatory injunction directing the defendant to supply course material to the plaintiff as per the agreement dated 04-10- 2006 and discharge all obligations under the agreement till completion of the term-period stipulated under the agreement.
iii. Recovery of sum of Rs 5,85,75,000 as
compensation for loss suffered by the
plaintiff.
iv. Permanent injunction restraining the
defendant or anybody claiming through the defendant from opening any training centre in Haldwani, Uttaranchal to impart hardware and network technology courses till the term- 20
CT 1390_Com.O.S.6694-2007_Judgment.doc KABC170036762022 period contemplated under the agreement dated 04-10-2006 has expired.
15. Initially the suit was filed only against Defendant No. 1, but subsequently, Defendant No. 2 was impleaded on the ground that, after terminating the agreement of plaintiff, the Defendant No. 1 has granted the franchisee rights in favour of Defendant No. 2 which is an act of conspiracy in order to unjustly enrich themselves at the cost of the hard work put in by the plaintiff in getting enrollment of students for the courses. Another allegation alleged against Defendant No. 2 is that, it was Defendant No. 2 who incited the students to destroy the plaintiff's training centre, by distributing handbills.
16. Per contra, the case of Defendant No. 1 is that, the enrollments in the plaintiff's training centre was not because of any hard work or marketing strategy put in by the plaintiff but due to the reputation and goodwill enjoyed by Defendant No. 1 in the student community. It is pleaded that, although the training centre of the plaintiff commenced activities on 21-04-2007, it was only on 29-05-2007 that the plaintiff 21 CT 1390_Com.O.S.6694-2007_Judgment.doc KABC170036762022 sought for 40 course materials, whereas according to the stand of the plaintiff himself there were already 89 enrollments as on that date and thereby it is contended that, as against 89 enrollments the plaintiff only sought for 40 course materials which discloses that the plaintiff was photocopying the course materials supplied along with the welcome kit and thereby violating the terms of the agreement. The plaint averments that there was delay on the part of the Defendant No. 1 in dispatching the course material is stoutly denied by contending that it was at the request of the plaintiff that the course material was sent through lorry transport instead of the usual courier service which resulted in delay and even the course material which was subsequently sent by lorry has not been collected by the plaintiff. It is further contended that, there was violation of the agreement by the plaintiff in failing to remit and credit the royalty fee of 15% of the total fees collected to the Defendant No. 1 which is one of the salient terms of the agreement between the parties. Thereby the Defendant No. 1 justifies its act of terminating the agreement dated 04-10-2006 and contends that only to 22 CT 1390_Com.O.S.6694-2007_Judgment.doc KABC170036762022 protect the interest of the students and caution the students from dealing further with the plaintiff, the public notice was issued. Another allegation made in the written statement of Defendant No. 1 is that the plaintiff enrolled students by issuing receipts of OHM computers which is the proprietorship concern of plaintiff whereas the students should have been enrolled under the receipt of Defendant No. 1 i.e. IIHT. Another allegation made is that, at the time of inspection of the training centre on 24-07-2007 the plaintiff did not allow the representatives of Defendant No.1 to enter the training center. With these pleadings the Defendant No. 1 has prayed for dismissal of the suit.
17. The case of Defendant No. 2 is that, it was only after termination of agreement of the plaintiff that Defendant No. 2 entered into the picture and became franchisee of Defendant No. 1 and thereby denying all allegations against Defendant No. 2, the Defendant No. 2 has prayed for dismissal of the suit.
18. To the written statement filed by Defendant No. 1 the plaintiff has filed a rejoinder / replication which is taken on 23 CT 1390_Com.O.S.6694-2007_Judgment.doc KABC170036762022 record by allowing IA No. 7 under Order 8 rule 9 CPC. In the replication filed by the plaintiff, the plaintiff has met the contentions raised in written statement about photocopying etc. by contending that, out of the total students enrolled, 24 students were enrolled for HCL industrial training and there was no need to give course material to them since they would be spending their whole day in HCL company and 30 course material had already been received earlier and therefore 40 course material ordered was adequate. The contention is raised that, if really it was the intention of the plaintiff to photocopy course material, there was no need to even order 40 course material since the course material in one set supplied along with the welcome kit would be sufficient to cater to any number of students by photocopying the same. Further, it is contended that, the very allegation of photocopying of course material is ridiculous because ultimately when the certificate has to be issued by IIHT, the plaintiff would gain nothing by suppressing the number of students enrolled. The delay in sending the course material is reiterated in the replication by contending that, on earlier 24 CT 1390_Com.O.S.6694-2007_Judgment.doc KABC170036762022 occasion the course material was sent by courier which demanded unjustifiable amount of Rs. 550 per box of 10 books and for this reason, the plaintiff requested for alternative mode of dispatch of the course material and the very fact that, the officers of the defendant No. 1 kept the issue pending for 42 days in order to pressurize the plaintiff to agree to receive the course material from that particular courier leads to inference that the defendant No. 1 is selecting that particular courier which charges exorbitant rates, with oblique motive and in order to make unjust gain. It is contended that, the public notice was issued with a view to damage the interest of the plaintiff being well aware that it would lead to rioting by the students. The allegation of enrolling students under the receipt of OHM computers which is proprietorship concern of plaintiff is sought to be justified by contending that, all such receipts are dated subsequent to 25-07-2007 by which time the relationship had strained and in any event, the receipt books were not supplied to the plaintiff by Defendant No. 1 and therefore, the plaintiff had no option but to use his own receipts. In answer to the allegation 25 CT 1390_Com.O.S.6694-2007_Judgment.doc KABC170036762022 that royalty payments were not remitted by plaintiff it is contended that defendant cannot insist on payment of royalty without discharging reciprocal obligation of providing course material and in any event as required under the agreement the designated account was not opened by the defendant No. 1 and therefore there is no question of plaintiff depositing amount into the designated account. Ultimately it is contended that plaintiff is highly qualified being a alumnus of reputed institution and his years of hard labour and high reputation gained has been damaged due to one single public notice caused by defendant No. 1 and therefore plaintiff is justified in seeking recovery of the sum as prayed for in the suit. It is further contended that the second franchisee agreement executed in favour of defendant No. 2 is on more beneficial terms in order to help defendant No. 2 and thereby it is contended that, in conspiracy, the defendants have used some trivial justification to terminate the agreement of the plaintiff in order to hand over the franchisee to defendant No.
2. On these grounds the plaintiff, in the replication reiterates 26 CT 1390_Com.O.S.6694-2007_Judgment.doc KABC170036762022 the plaint averments and seeks the decree as prayed for in the Plaint.
19. Turning to the evidence adduced by the parties, the plaintiff has examined himself as Pw1 and got marked Ex. P1 to P53.
20. Ex. P1 is the MOU dated 30-8-2006 between the plaintiff and Defendant No. 1 which was the prelude to the franchisee agreement dated 04-10-2006. Ex. P2 is receipt issued by Defendant No. 1 for having received Rs 10,000 towards affiliation fee. Ex. P3 is the agreement dated 04-10- 2006 for running IIHT training centre under which the plaintiff is constituted as franchisee of Defendant No. 1 for running the computer hardware training courses of Defendant No. 1 in plaintiff's training centre in Haldwani, Uttaranchal. The terms of this agreement hereafter referred to as the franchisee agreement are considered infra. Ex. P4 is a letter dated 29-03-2007 issued by the plaintiff to Defendant No. 1 complaining of certain grievances against one of the officials of Defendant No. 1 by name Mr. Sanjay. 27
CT 1390_Com.O.S.6694-2007_Judgment.doc KABC170036762022 The reply of said Mr. Sanjay to the allegations made against him in the said letter are found at Annexure 8 of the documents produced along with the Commissioner's report which is one of the documents produced by DW1 in response to the interrogatories. Anyhow, it is not necessary to go into the allegations made in Ex. P4 against said Mr. Sanjay and his response thereto, because it appears the said issues were addressed as per the email at Ex. P8 and the incharge-person in respect of plaintiff's training centre was changed from Mr. Sanjay to Mr. Om Prakash Mishra as requested by the plaintiff in his letter at Ex. P4. Ex. P5 is an email issued by one Mr. Sanjay who is official of Defendant No. 1 to plaintiff recording the minutes of meeting dated 20-3-2007. Ex. P6 is email furnishing the logo of Defendant No. 1 to the plaintiff. Ex. P7 is also email issued by official of Defendant No. 1 to the plaintiff enclosing certain list of expenditure. Ex. P8 as already noted supra is email issued by Defendant No. 1 addressing the concern of plaintiff and changing the incharge-person from Mr. Sanjay to Mr. Om Prakash Mishra. Ex. P9 and 10 are bank account statements of plaintiff. Ex. 28
CT 1390_Com.O.S.6694-2007_Judgment.doc KABC170036762022 P11 is an email issued by aforestated Mr. Sanjay to plaintiff alleging that when one of his colleagues visited the training centre of plaintiff, the plaintiff behaved rudely with him. Ex. P12 is an important document. It is email dated 1-6-2007 referred to in the Plaint in which plaintiff informed Defendant No. 1 about 89 admissions of students and collection of fees of Rs. 10,79,157. Ex. P13 and 14 are congratulatory emails by officials of Defendant No. 1 in respect of the above admissions of 89 students achieved by the plaintiff. Ex. P15 is another important document. It is a letter dated 11-7-2007 which according to the plaintiff was received by the plaintiff only on 26-7-2007 and under said letter Defendant No. 1 has called upon plaintiff to make pending payment of Rs. 31,000 against advertisement bills, Rs. 2,19,768 against service tax and Rs. 2,68,174 against pending royalty amount. Ex. P16 is the postal envelope in which the letter at Ex. P15 was received. Ex. P17 and 18 are emails dated 27-7- 2007 and 2-8-2007 written by plaintiff to Defendant No. 1 complaining about delay in dispatch of course material which is leading to dissatisfaction amongst the students. Ex. P19 is 29 CT 1390_Com.O.S.6694-2007_Judgment.doc KABC170036762022 an important document. It is the notice dated 3-8-2007 under which the franchisee agreement was terminated, inter alia on the ground of non-payment of royalty amount and other amounts due. Ex. P20 is the postal envelope in which the legal notice at Ex. P19 was received. Ex. P21 is another important document. It is the public notice issued by Defendant No. 1 on 10-7-2007 cautioning the members of the public that the franchise agreement of plaintiff has been terminated. It contains one important statement as follows;
"However, it is further informed that liability to serve the students already enrolled with the said franchisee centre before the date of termination shall continue to be that of the franchisee i.e. OHM Computer and its proprietor Shri Manish Pachuria."
21. It is this statement and this public notice which according to the plaintiff resulted in rioting by the students which ultimately destroyed the training centre of the plaintiff.
22. Ex. P22 is email issued by plaintiff seeking copy of the agreement. Ex. P23 to P51 are photographs which show the status of the plaintiff's training centre before and after the rioting of the students and shows the damage caused by the 30 CT 1390_Com.O.S.6694-2007_Judgment.doc KABC170036762022 rioting of the students. Ex. P52 and 53 are letters issued by the banker of the plaintiff in respect of pay order issued by the plaintiff for payment of Rs. 2 lakhs and Rs. 3 lakhs to the Defendant No. 1 on 22-08-2007 which was eventually cancelled since Defendant No. 1 refused to accept the payment.
23. Per contra on behalf of the defendant No. 1, official of Defendant No. 1 is examined as DW1 and got marked Ex. D1 to D9. Ex. D1 is authorization letter in favour of DW1 to adduce evidence in the present suit. Ex. D2 is MOU and Ex. D3 is franchisee agreement between Defendant No. 1 and Defendant No. 2 respectively which is subsequent to termination of franchisee agreement of the plaintiff. Ex. D4 is a letter issued by Defendant No. 2 stating that classes for the students will be commenced from 17-09-2007. Ex. D5 is an important document. It is the original consignment note issued by transporter and is produced to show that the course material was dispatched by Defendant No. 1 to the plaintiff on 10-7-2007. Ex. D6 is a newspaper containing a news report in respect of incident of rioting by the students in 31 CT 1390_Com.O.S.6694-2007_Judgment.doc KABC170036762022 the plaintiff's training centre. Ex. D7 is a second public notice issued by Defendant No. 1 in which it was clarified that students already enrolled with plaintiff's training centre will be served by the new franchisee of Defendant No. 1. Ex. D8 and D9 are again newspapers containing news report in respect of incident of rioting by the students which destroyed the plaintiff's training centre.
24. Having considered the rival cases of both sides and the oral and documentary evidence on record, at the outset, it is to be noted that the agreement dated 4-10-2006, entered into between the plaintiff and defendant No. 1, which is marked at Ex. P3, is an undisputed document. Under the said agreement, the plaintiff is constituted as the franchisee of defendant No. 1 for conducting the computer hardware courses of defendant No. 1 in plaintiff's training centre at Haldwani. At paragraph 10 of the plaint, the plaintiff states that the terms of the said agreement regarding payment are confusing. Therefore, let me briefly analyse the terms of the said franchisee agreement, which is titled as Agreement for Running IIHT Training Centre.
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25. Clause 2 of the agreement [Ex.P 3] deals with payments. It contemplates that the plaintiff shall pay 15% of the course fee received from the students as royalty to the defendant No. 1. In addition to payment of royalty, the franchisee / plaintiff is also liable to pay its share of advertising expenditure incurred under Clause 9.2. The manner in which the payment has to be made are detailed in Clause 2, which states at 2.2 that the franchisor, namely defendant No. 1, shall open bank account in a location convenient to the franchisee / plaintiff. Under Clause 2.1.1, all payments received by the plaintiff from the students shall be deposited into the said designated account not later than the succeeding day. In other words, all payment received from the students has to be deposited by the plaintiff into the designated bank account, which will be opened in the name of defendant No. 1. Thereafter, Clause 2.2 (i) contemplates that, from out of the amounts deposited into the bank account of defendant No. 1, 15% shall be retained by defendant No. 1 towards royalty and remaining amount after deducting any sums payable shall be transferred to the 33 CT 1390_Com.O.S.6694-2007_Judgment.doc KABC170036762022 plaintiff. The said amount so transferred to the plaintiff shall first be utilized by the plaintiff for conducting the training centre and remaining amount shall be the profit of the plaintiff. Clause 2.1.1 contemplates that non-deposit of amount into the designated bank account on the same day or succeeding day shall be considered as breach of the agreement. Clause 4.4 contemplates that non-payment of any amount by franchisee to franchisor within the prescribed time shall be construed as default and the franchisor shall be entitled to terminate the agreement forthwith. Further, Clause 2.1.1 and 4.5 contemplates that plaintiff cannot print any stationery or receipts but shall raise receipts in the blank receipt forms supplied by the defendant No. 1 to the plaintiff. Clause 11.4 contemplates that if there is any delay in payment of amount including royalty the defendant No. 1 can charge 18% simple interest. Clause 18 deals with termination and Clause 18.4 contemplates that in the event of plaintiff- franchisee committing an act of default and if such default is not remedied to the satisfaction of the defendant No. 1 34 CT 1390_Com.O.S.6694-2007_Judgment.doc KABC170036762022 within 15 days of receipt of notice the defendant No. 1 is entitled to terminate the agreement.
26. In the light of the above terms and conditions of the agreement this Court has to analyse whether the act of defendant No. 1 in terminating the franchisee agreement by notice dated 4-8-2007 which is at Ex. P-19 is justified. DWI in his Cross Examination dated 22-07-2009 at page 11 of deposition states that the major reasons for termination are non-payment of due amount, non-cooperation by plaintiff, non-disclosure, false report and other reasons are cutting own receipts, photocopy which refers to photocopying of course material and non-furnishing of books i.e. study materials.
27. Amongst these, the most important ground for termination is non-payment of royalty amount. In this regard, it is to be noted that, admittedly as pleaded in the Plaint at paragraph 8, by email dated 1-6-2007 plaintiff informed defendant No. 1 that plaintiff has enrolled 89 students and collected Rs 10,79,157 for May 2007. Therefore, 35 CT 1390_Com.O.S.6694-2007_Judgment.doc KABC170036762022 as per the above terms of the agreement the entire amount so collected had to be deposited in designated account in the name of defendant No. 1. The plaintiff contends that, admittedly, no such designated bank account was opened by defendant No. 1 and therefore the question of plaintiff depositing entire amount collected on the same day or next succeeding day into the designated account does not arise. This contention appears justified because admittedly defendant No. 1 had not opened any designated account at location convenient to the plaintiff. Anyhow, no communication is produced by DW1 showing that any such designated account was opened and communicated to the plaintiff. However, even conceding that, no such designated bank account was opened, there is no gain saying the fact that, out of the said amount collected by plaintiff, 15% was payable to Defendant No. 1 as royalty fee. Therefore, even if there is some justification for the plaintiff to contend that, he was not in breach of agreement for having failed to deposit the entire amount collected from the students into the bank account of defendant No. 1, the fact still remains that, the 36 CT 1390_Com.O.S.6694-2007_Judgment.doc KABC170036762022 plaintiff was under obligation to pay 15% of the said amount as royalty to defendant No. 1. The plaintiff cannot raise the ground of designated bank account having not been opened as an excuse for non-payment of 15% of the royalty amount for two reasons. Firstly, according to the plaintiff, as on 1-6- 2007 when he reported the said admissions to defendant No. 1 he did not even have a copy of the agreement, since, according to the plaintiff, as specifically pleaded at paragraph 10 of the Plaint, plaintiff received the copy of the agreement only on 10-7-2007. Therefore, Plaintiff could not put off the payment on ground of non-opening of designated account, as mandated in the agreement. The plaintiff was well aware of his liability to pay 15% of the royalty amount and even otherwise according to the plaintiff himself on 26-7-2007 plaintiff received letter dated 11-7-2007 as stated at paragraph 12 of the Plaint under which Defendant No. 1 demanded payment of certain sums of money. The said letter dated 11-7-2007 is marked as Ex. P-15 which categorically demands interim royalty amount of Rs. 2,68,174. Having received the said letter on 26-7-2007 as admitted in the 37 CT 1390_Com.O.S.6694-2007_Judgment.doc KABC170036762022 Plaint, the plaintiff in his e-mails dated 27-7-2007 and 2-8- 2007 which are marked as Ex. P-17 and 18 does not raise any contention that he is unable to remit the said amounts due to non-opening of designated bank account but his grievance in the said e-mails is only regarding delay in dispatch of course material. In fact, non-opening of designated bank account can never be considered as excuse for not making payment because the plaintiff was well aware of how to make payment to the defendant No. 1 since admittedly the plaintiff had issued DDs on 29-5-2007 ordering course material and after termination of the contract as per the documents at Ex. P-52 and 53 the plaintiff sought to make payment to defendant No. 1 vide pay order of Rs. 2 lakhs and Rs. 3 lakhs respectively which were cancelled since they were refused by the defendant No. 1. Therefore, the non- opening of designated bank account by defendant No. 1 could not have been a ground for the plaintiff to withhold the admitted royalty payment of 15% of the amount collected.
28. It is to be noted that, as already noted supra, in so far as termination of the agreement is concerned, although 38 CT 1390_Com.O.S.6694-2007_Judgment.doc KABC170036762022 clause 18.4 contemplates 15 days notice giving opportunity to the plaintiff to remedy any default on his part, under clause 4.4 of the agreement it is stated as follows;
"The franchisee shall duly and punctually make payment of all amounts due and payable to the franchisor under this agreement. Non-payment of any amount under this agreement by the franchisee to the franchisor within the prescribed period shall be constituted as an act of default and without prejudice to any other rights under this agreement to recover such amount from the franchisee, the franchisor shall be entitled to terminate this agreement forthwith."
(Emphasis Supplied)
29. Therefore, clause 18.4 is the general clause dealing with termination for default on the part of the plaintiff which contemplates 15 days notice giving opportunity to plaintiff to remedy the default whereas clause 4.4 is the specific clause dealing with delay in making payment on the part of plaintiff which provides for termination of the agreement forthwith without any notice period. Therefore, the special clause overrides the general clause particularly since clause 4.4 states "without prejudice to any other rights under the agreement". Therefore, the plaintiff is not justified in 39 CT 1390_Com.O.S.6694-2007_Judgment.doc KABC170036762022 contending that the defendant No. 1 should have first given 15 days notice calling upon plaintiff to remedy the default in making payment and only thereafter could terminate the agreement.
30. It is to be noted that, admittedly the plaintiff did not make payment of 15% royalty of the total amount received from the students. This much is admitted in the Plaint itself, since, it is stated at paragraph 9 of the Plaint as follows;
"He (Plaintiff) was not supplied with the course material although he had paid for the same. Under the circumstances, plaintiff tried to reason with the defendant that supply of course materials cannot be withheld pending payment of royalty. Whereas royalty is agreed to be paid once a month there is no such time period in respect of course material. The course material is required to be supplied as and when it is paid for. However, the defendant failed to keep up its obligation to supply the course material. Later, it made the payment of royalty a condition precedent for supply of course material putting the plaintiff to lot of hardship and inconvenience. The plaintiff was unable to service the students and restlessness was mounting in the training centre among the enrolled students."
(Emphasis Supplied)
31. Thereby, by making the above pleadings, the plaintiff categorically admits that defendant had made payment of 40 CT 1390_Com.O.S.6694-2007_Judgment.doc KABC170036762022 royalty a condition precedent for supply of course material which in turn implies that, plaintiff admits non-payment of royalty by the plaintiff.
32. Another contention raised by the plaintiff that agreement contemplated interest on unpaid royalty amount and therefore the defendant No. 1 could have claimed royalty amount with interest instead of terminating the agreement cannot be accepted because clause 2.4 itself makes it clear that, entitlement of defendant No. 1 to claim interest shall not preclude the right of defendant No. 1 to terminate the agreement for non-payment of amount due to defendant No. 1.
33. Another contention raised in the plaint that the defendant No. 1 was not entitled to claim royalty amount without raising debit notes cannot be accepted because admittedly defendant No. 1 made a demand for payment vide letter dated 11-07-2007 which was admittedly received by the plaintiff on 26-07-2007 and in spite of that the plaintiff did not make the payment of royalty.
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34. Therefore, from the above discussion it emerges that admittedly the plaintiff was liable to pay 15% of the total student fees received as royalty to defendant No. 1. Admittedly, although as on 1-06-2007, 89 students were enrolled and Rs 10 lakhs and odd was received by Plaintiff, 15% of the said amount was never paid by plaintiff to defendant No. 1, inspite of demand for payment vide letter dated 11-07-2007. The agreement contemplated that in case of non-payment, the defendant No. 1 is entitled to terminate the contract forthwith. Therefore, the only conclusion to be drawn is that the defendant No. 1 was justified in terminating the contract as per the legal notice at Ex. P-19.
35. Since termination of the contract on the ground of non- payment of royalty amount is held to be justified, the other grounds for termination namely photocopying of course material, issuance of receipts in the name of plaintiff's proprietorship concern etc. need not be considered.
36. Consequently, once it is held that the termination of agreement by defendant No. 1 was in accordance with law 42 CT 1390_Com.O.S.6694-2007_Judgment.doc KABC170036762022 and in accordance with the agreement it follows that plaintiff has failed to prove that termination is null and void and I answer issue No. 1 in the negative.
37. It further follows that defendant No. one has proved breach of the terms of the agreement by plaintiff and therefore I answer issue No. 3 in the affirmative.
38. In so far as issue No. 2 is concerned it is in respect of delay in supply of course material by defendant No. 1 to the plaintiff and this issue is framed in view of prayer (ii) of the Plaint seeking mandatory injunction directing defendant to supply the course material to the plaintiff in accordance with the agreement and to discharge all its obligations under the agreement. In this regard, Learned Counsel for Plaintiff vehemently argued that although the order for course material was placed on 29-05-2007 along with the DD for the 40 copies of course material and also 200 copies of career catalogues, there was deliberate delay on the part of the defendant No. 1 in supplying the same. He submitted that even as per the document produced by the defendant at Ex. 43
CT 1390_Com.O.S.6694-2007_Judgment.doc KABC170036762022 D5 which is the consignment note it shows that, the said material was dispatched through lorry transporter only on 10-07-2007 after inordinate delay since the order was placed on 29-05-2007. He further submitted that the original consignment note was with the defendant No. 1 since the same is produced as Ex. D5 and relied upon ruling of Hon'ble Madras High Court in the case of Amin & Co. v. Southern Roadways Ltd. reported in A.I.R. 1985 Madras 287 to contend that, it is only the person who has the original consignment note who can take delivery of the material and when the original consignment note was never handed over to the plaintiff, there was no question of plaintiff receiving delivery of the same and therefore he argued that, the delay in dispatch coupled with sending the material through lorry without furnishing the consignment note to the plaintiff was a ploy on the part of defendant No. 1 to somehow destroy the training centre of the plaintiff. Per contra, the case of defendant No. 1 is that, it was at the insistence of plaintiff that the course material was dispatched through lorry transporter instead of the regular courier agency which was 44 CT 1390_Com.O.S.6694-2007_Judgment.doc KABC170036762022 being used to supply the course material earlier and this was because plaintiff suspected a collusion between defendant No. 1 and courier agency on the ground that the courier agency is charging exorbitant amount. However, it is not necessary for this court to enter into the controversy as to whether there was deliberate delay on the part of defendant No. 1 in dispatching the course material or whether the delay was due to the act of the plaintiff in seeking alternative mode of dispatch for the simple reason that, admittedly, this relief of mandatory injunction to direct plaintiff to supply the course material has become infructuous. This is because, admittedly, the training centre of the plaintiff was closed down after the incident of rioting by the students which destroyed the entire training centre. Thereafter, the students who were enrolled with the plaintiff have been admitted and serviced in the successor franchisee of defendant No. 2. Therefore, at this point of time, there is no question of granting relief of mandatory injunction directing the defendant No. 1 to supply course material to the plaintiff. Therefore, since the said relief has become infructuous, there 45 CT 1390_Com.O.S.6694-2007_Judgment.doc KABC170036762022 is no need for this court to enter into the discussion as to whether there was delay in dispatching the said course material.
39. In so far as the other relief of mandatory injunction sought to direct the defendant No. 1 to discharge all its obligations under the agreement till the term stipulated under the agreement is completed, the question of granting such relief does not arise when I have already held that the agreement was lawfully terminated by defendant No. 1. Accordingly, I answer issue No. 2 as does not arise for consideration.
Issue No. 4 :-
40. In this suit, initially the plaintiff laid claim for recovery of sum of Rs. 13,34,32,869 which was later on limited to Rs. 5,85,75,000 on the ground that plaintiff can pay the court fee only for the said amount. The heads under which the plaintiff is seeking the said amount, are stated in table which is annexed to paragraph 16C of the Plaint. Although various heads of compensation are stated, they fall into two main 46 CT 1390_Com.O.S.6694-2007_Judgment.doc KABC170036762022 categories viz. compensation arising out of wrongful breach of the contract and compensation for destruction of the training centre, which is attributed to the act of defendant No. 1 in issuing the public notice, which according to the Plaintiff led to unrest among the students and which resulted in the students rioting and destroying the plaintiff's training centre. Insofar as the first head of compensation which fall in the category of compensation for breach of contract is concerned, the same cannot be granted for the simple reason that I have already held Supra, that the contract was rightfully terminated by defendant No. 1 and such being the case, all compensation which fall under the head of unlawful termination of the contract cannot be granted.
41. Insofar as the other head of compensation in respect of loss caused by destruction of the training centre of plaintiff is concerned, admittedly the plaintiff's training centre was destroyed by rioting on the part of the students. However, compensation is claimed from the defendant No. 1 on the ground that it was the public notice issued by defendant No. 1 which was the direct instigation for the students to riot and 47 CT 1390_Com.O.S.6694-2007_Judgment.doc KABC170036762022 destroy the training centre. In this regard, the Learned Counsel for Plaintiff relied upon the said public notice which is produced and marked as Ex. P-21. He highlighted that if the said public notice had only stated that the franchise agreement of plaintiff is terminated, the plaintiff may not have had grievance with the same. He took exception to one sentence in the public notice which states as follows;
"However, it is further informed that the liability to serve the students already enrolled with the said franchisee's centre before the date of termination shall continue to be that of the franchisee, i.e., M/s OHM Computer and its proprietor, Shri. Manish Pachuria."
42. Thereby, he highlighted that, in the public notice, the students are left high and dry by stating that, they have to be serviced by the plaintiff and the plaintiff cannot service them because the franchise of the plaintiff is terminated. He submitted that, this statement in the said public notice is diametrically opposed to the terms of the franchisee agreement which provides at clause 19.5 that the franchisor reserves the right to operate the centre after termination of the agreement to the extent of executing liabilities towards 48 CT 1390_Com.O.S.6694-2007_Judgment.doc KABC170036762022 the students enrolled. He then highlighted that, in a second public notice caused by Defendant No. 1 which is produced by DW1 and marked as Ex. D7, it is stated that validly enrolled students of the terminated franchisee centre may contact Defendant No. 2 for admissions and as a special case, keeping in view the larger interest of validly enrolled students, Defendant No. 1 has made arrangements to service them in its new franchisee centre. He submitted that, if this statement had been made in the first public notice, then the students would not have been incited to riot. Therefore, he submitted that an incorrect statement was made in the first public notice that servicing the enrolled students is the exclusive liability of the plaintiff only with a view to incite the students to riot and destroy the plaintiff's centre. On this ground, he submitted that, the destruction of Plaintiff's service center by the students is a foreseeable consequence of the irresponsible public notice caused by Defendant No. 1 and therefore, it is the liability of Defendant No. 1 to pay compensation for damage caused due to said destruction. 49
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43. Admittedly, in this case, the plaintiff's training centre has been destroyed by the students as forthcoming from the news reports at Ex. D6, 8 and 9. It is only if the plaintiff can prove that Defendant No. 1 issued the public notice at Ex. D21 being aware of its consequences that, it may result in incitement of the students to destroy the plaintiff's centre that the liability for compensating the plaintiff for destruction of the training centre can be imposed on Defendant No. 1. In the cross-examination of DW1 dated 23-07-2010, at page 18 of the deposition, a suggestion is put to DW1 by Learned Counsel for Plaintiff as follows;
"It is false to say that DW1 has issued such paper publication notice without knowing the consequences and its repercussions. Witnesses volunteers that such paper publication was issued in the interest of the students."
44. Although the above suggestion is denied, by putting the said suggestion, plaintiff admits that Defendant No. 1 issued the paper publication notice without being aware of its consequences and repercussions. When it is the admission of the plaintiff himself, by putting the above suggestion that 50 CT 1390_Com.O.S.6694-2007_Judgment.doc KABC170036762022 Defendant No. 1 could not be aware of the consequences of such public notice, it follows that Defendant No. 1 cannot be held liable and responsible for the act of the students in destroying the plaintiff's training centre. Therefore, plaintiff is not entitled to the compensation which fall under the head of destruction of his training centre also. The result of the above discussion is that plaintiff is not entitled to recovery of compensation or damages under any of the heads. Accordingly, I answer Issue No. 4 also in the negative. Issue No. 5 :-
45. This issue is framed in view of the specific contention raised by defendants that suit of the plaintiff is not maintainable. However, it is to be noted that, this is a suit for declaration, injunction (both mandatory and permanent) and for recovery of money and therefore it is within the jurisdiction of the court under section 9 of the CPC and therefore it is not possible to say that suit is not maintainable. However, on merits the suit is liable to be dismissed, in view of my answer to the above issues. Anyhow, 51 CT 1390_Com.O.S.6694-2007_Judgment.doc KABC170036762022 suit is maintainable before this court and hence I answer issue no. 5 in the negative.
Issue no. 6 :-
46. This issue is framed in view of the specific contention raised by defendants that court fee paid is insufficient. However, subsequently plaintiff has paid the court fee to the extent of recovery of sum of Rs. 5,85,75,000 and thereby limited his prayer for recovery of money to the said sum. Therefore, court fee paid is sufficient and I answer this issue in the negative.
Issue no. 7 :-
47. This issue is framed on question whether plaintiff does not have the cause of action to file the suit. It is to be noted that disclosure of cause of action in the plaint is different from plaintiff not having cause of action. In this case, the plaint discloses cause of action but on merits it is held that plaintiff is not entitled to any of the reliefs. Accordingly, I answer issue no. 7.
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CT 1390_Com.O.S.6694-2007_Judgment.doc KABC170036762022 Issue No. 8 :-
48. In view of my answer to issue No. 1 to 4, it follows that the plaintiff is not entitled to the reliefs claimed in prayer column (i, ii and iia). Insofar as the relief of permanent injunction claimed in prayer column (iii) to restrain the defendant or anybody claiming through or under him from opening a training centre in Haldwani, Uttaranchal till the term of the agreement dated 4-10-2006 has expired is concerned, when I have held while answering issue No. 1 that the franchisee agreement of plaintiff was validly terminated by defendant No. 1, it follows that defendant No. 1 cannot be restrained from appointing any other franchisee to run training centre in Haldwani. Therefore, plaintiff is also not entitled to relief of permanent injunction claimed in prayer column (iii). Accordingly, I hold that plaintiff is not entitled to any of the reliefs claimed and accordingly, I answer issue No. 8.
Issue no. 9 :-
49. Having answered issue no. 1 to 8 as above, I proceed to pass the following :-
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CT 1390_Com.O.S.6694-2007_Judgment.doc KABC170036762022 ORDER The suit is dismissed, with cost.
Office to draw decree accordingly.
Office to issue soft copy of this judgment to both sides, by email, if furnished.
[Dictated using Dragon Professional Speech Recognition Software Version 15.3, transcript revised, corrected, signed and then pronounced by me in open court on this the 10th day of June, 2024] (Sri. S. Sudindranath) LXXXIII ADDL.CITY CIVIL AND SESSIONS JUDGE, COMMERCIAL COURT; BANGALORE.
ANNEXURE
1. List of witnesses examined on behalf of Plaintiff:
PW.1 : Manish Pachauri
2. List of witnesses examined on behalf of Defendants:
DW.1 : Pranay Narang
3. List of documents marked on behalf of Plaintiff:
Ex.P.1 : Memorandum of Agreement dt.30/8/2006 Ex.P.2 : Receipt dt.30/08/2006. Ex.P.3 : Original Agreement for running IIHT Training Centre into between the plaintiff and 1st defendant dt.4/10/2006.54
CT 1390_Com.O.S.6694-2007_Judgment.doc KABC170036762022 Ex.P.4 : Office copy of letter dt.29/3/2007 addressed to Regional Manager, IIHT Ltd., New Delhi.
Ex.P.5to10 : Emails dt.20/3/2007, 9/4/2007, 17/5/2007, 30/1/2008 and 31/3/2008. Ex.P.11 : Printout of the defendants email dt.29/5/2007 Ex.P.12 : Printout of the plaintiffs email dt.1/6/2007 Ex.P.13 : Printout of defendants email dt.1/6/2007 Ex.P.14 : Defendants norther region president's email dt.5/6/2007.
Ex.P.15&16: Defendants letter dt.11/7/2007 and envelope.
Ex.P.17&18: Printout of plaintiffs email dt.27/7/2007 and 2/8/2007.
Ex.P.19to21: Defendants legal notice dt.3/8/2007, envelope, copy of news paper dt.10/8/2007 Ex.P.22 : Email dt.17/5/2007. Ex.P.23to51: Photograms.
Ex.P.52 : Certificate issued by ICICI bank dt.18/2/2009 Ex.P.53 : Certificate issued by HDFC Bank with enclosure dt.17/2/2009.
4. List of documents marked on behalf of Defendants:
Ex.D.1 : Certified true copy of the resolution passed by Board of Directors authorizing DW1 to conduct the case on behalf of defendant No.1.55
CT 1390_Com.O.S.6694-2007_Judgment.doc KABC170036762022 Ex.D.2 : Memorandum of Understanding dt.24/8/2007 Ex.D.3 : Agreement for r5unning IIHT training center dt.31/8/2007.
Ex.D.4 : Letter dt.12/9/2007 of M/s. VAP
Technology to the Regional Manager.
Ex.D.5 : Bill No.11671 dt.10/7/2007 issued by
daily Uttaranchal goods Carrier.
Ex.D.6 : Copy of newspaper namely Amar Ujala
National News dt.29/8/2007.
Ex.D.7 : Copy of newspaper namely Nainital
Jagaran dt.28/8/2007.
Ex.D.8 : Copy of newspaper namely nainital
Jagaran dt.11/9/2007.
Ex.D.9 : Copy of newspaper Nainital Dainik
Jagaran dt.28/8/2007.
(Sri. S. Sudindranath)
LXXXIII ADDL.CITY CIVIL AND SESSIONS JUDGE, COMMERCIAL COURT; BANGALORE.56
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