Bangalore District Court
Nandalaxmi Hegde Dr vs Rajeshwari Hegde on 16 April, 2024
KABC170096692020
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.5253/2016
Dated on this 16th day of April 2024
Plaintiff Dr.Nandalaxmi Hegde,
W/o Mr.Jyothiprasad Hegde,
Aged about 50 years,
Proprietrix
M/s. Medilab India,
No.37, G Floor, Service Road,
Domlur Layout,
Bengaluru-560071.
(By Sri.Chandrahasa K.S, Advocate)
// versus //
Defendants 1. Mrs. Rajeshwari Hegde,
W/o Pramod Hegde,
Aged about 38 years,
Proprietrix,
M/s. Meditek India,
Thirumala Opp Bejay Church Hall,
Mangaluru-575004.
2. Mr.Pramod Hegde,
S/o Shri K.Bhujanga Hegde,
Aged about 49 years,
R/at Thirumala,
Opp Bejay Church Hall,
Mangaluru-575004.
(By Sri.M.J.A, Advocate)
2
CT 1390_Com.O.S.5253-2016_Judgment.doc
KABC170096692020
Date of Institution of suit : 20/07/2016
Nature of the suit : Recovery of Money
Date of commencement of : 29/07/2019
recording of the evidence
Date on which the : 16/04/2024
Judgment was pronounced.
: Year Month/ Day/s
Total duration /s s
07 08 27
JUDGMENT
This is a suit filed by plaintiff against defendant No. 1 and 2 for recovery of sum of Rs 2,87,63,992/= towards business loss, sum of Rs 6,62,452 under various heads, Rs 20 lakhs towards loss of profit, damages of Rs 5 lakhs for mental harassment, mandatory injunction to the defendants to deliver back an instrument known as oxygen concentrator in good condition, declaration that disassociation of the defendants from the plaintiff as exclusive consignment agent is void in law and permanent injunction restraining the defendants from marketing and distributing their Meditek India products in Bangalore and Davangere. 3
CT 1390_Com.O.S.5253-2016_Judgment.doc KABC170096692020
2. The plaint averments in brief are that, Plaintiff is the proprietrix of Medilab India. The defendant No. 1 is the proprietrix of Meditek India and defendant No. 2 is her husband. In 2004, the defendant No. 2 on behalf of defendant No. 1 entrusted the marketing of the defendant's products to the plaintiff in Bangalore and Davangere. Initially, two products were entrusted for marketing and thereafter, plaintiff started marketing the entire portfolio of the defendant's products as the exclusive distributor in Bangalore and Davangere. It is the case of the plaintiff that due to her efforts, the defendant's products which had initially zero demand started doing very well in the market and reached turnover of nearly 32 lakhs per annum. The entire marketing for a period of nearly 9 years from 2004 to 2013 was done only on oral arrangement and trust, since defendant No. 2 was well known to the husband of the plaintiff. The trouble cropped up for the first time in a communication dated 4/10/2013 issued by defendant no.2 wherein he raised certain grievances which according to the Plaintiff are of trivial nature. It is pleaded that, thereafter there was change 4 CT 1390_Com.O.S.5253-2016_Judgment.doc KABC170096692020 in the behaviour of defendant no.2 which was motivated by greed and jealousy. Soon thereafter, defendant no.2 assured to continue business relationship on earlier agreed terms and resumed supply of products from 15/10/2013 to 31/10/2013. On 30/10/2013, the defendant sent draft of Memorandum of Association which was one-sided and not agreeable to the plaintiff. Soon thereafter, unilaterally the defendants terminated the distribution right of plaintiff. It is alleged that, this was due to certain bona fide advice given by the plaintiff to the defendants not to name their products after well-known trade names belonging to other companies and also due to jealousy since the plaintiff had done her work remarkably well raising the market share of the defendants' products from virtually zero to being a market leader. As a result of the untimely and unilateral termination of the distribution, certain unsold products of the defendants were lying with the plaintiff and when they were sent back, the defendants refused to give credit for the same on the ground that they were expired products. In this manner, it is alleged that products worth Rs. 4,84,000 and Rs. 3,59,999 were sent 5 CT 1390_Com.O.S.5253-2016_Judgment.doc KABC170096692020 back and although accepted by the defendants, the Defendants have refused to raise credit note for the same on the ground that they were expired products. Thereafter when the plaintiff returned products worth Rs. 3,87,000, the defendants even refused to take delivery of the same. In this manner, it is pleaded that products worth Rs. 4,84,000 and Rs. 3,59,999 have been sent back to the defendants and accepted by the defendants for which credit is not raised and there are products worth Rs. 12,65,330 lying with the plaintiffs. Apart from this, it is pleaded that, due to unilateral termination of the distribution agreement, the plaintiff had to continue the employment of marketing team for November, December 2013 and January 2014 and paid them their salary of Rs. 7,42,344. Apart from this, an oxygen concentrator was lent by the plaintiff to the defendants in November 2012 for which the defendants agreed to pay rent of Rs. 3,000 which has accumulated to an amount of Rs. 1,32,000. In this manner, the plaintiff claims that defendants are totally liable to pay Rs. 29,83,706 for which the breakup is as follows; 6
CT 1390_Com.O.S.5253-2016_Judgment.doc KABC170096692020
- Products returned and accepted by defendants for which credit note is not raised - Rs. 484,000 and Rs. 3,59,999;
- Products of defendants lying with the plaintiff which are unsold and cannot be sold now in view of termination of the distribution agreement - Rs. 12,65,330;
- Salaries paid to the staff for November 2013 to January 2014 Rs. 7,42,344;
- Arrears of rent in respect of oxygen concentrator Rs. 1,32,000.
3. It is pleaded that the defendants are claiming sum of Rs. 23,21,254 in a suit filed by them against the plaintiff as sum payable towards products supplied. Therefore, Plaintiff is claiming recovery of Rs. 6,62,452 from the Defendants [Rs. 29,83,706 which is payable to the Plaintiff minus Rs. 23,21,254 which is the amount claimed by Defendants in the other suit].
4. Apart from this, it is pleaded that the defendants filed OS-7234 of 2015 and obtained Ad Interim Injunction Order against the plaintiff from trading in the products under the trademark of TMR and the said interim order was in force 7 CT 1390_Com.O.S.5253-2016_Judgment.doc KABC170096692020 from 03-09-2015 to 02-01-2016. It is pleaded that, as a result of this interim order, the Plaintiff has suffered loss of profit of Rs. 20 lakhs and the said amount is also being claimed in the present suit. Apart from this, due to illegal termination of the distribution agreement, the plaintiff claims business loss of Rs. 2,87,63,992 which is also being claimed in the present suit. Apart from this, the other reliefs claimed in the present suit are damages of Rs. 5 lakhs and mandatory injunction directing the defendants to deliver back the oxygen concentrator which was lent by the plaintiff to the defendants. Declaration is also sought that disassociation of the defendants from the plaintiff is void and unlawful. Permanent injunction is sought to restrain the defendants from marketing and distributing the Mediatek products i.e., defendant's products in Bangalore and the Davangere, since, the plaintiff has the right of exclusive distribution of the said products in Bangalore and the Davangere. For the above reliefs, the present suit is filed.
5. The defendants have filed detailed written statement denying the plaint averments. It is pleaded that, when there is 8 CT 1390_Com.O.S.5253-2016_Judgment.doc KABC170096692020 no contract in writing and it was only an oral agency, the principal i.e., the defendants have the right to terminate the oral agency of the plaintiff at any point of time and the agent cannot question the same. It is further pleaded that, the plaintiff is seeking an injunction against the defendants from marketing their own products and the said relief militates against the principle that there can be no injunction granted against the true owner. It is pleaded that the distribution agreement which was nothing but a contract of agency was duly terminated by Letter dated 6/11/2013 for valid reasons and the plaintiff cannot challenge the same. On this ground, it is contended by the defendants that, when the termination of distribution agreement or agency is valid in law, the plaintiff cannot claim business loss of Rs. 2,87,63,992 from the defendants and also cannot claim damages of Rs. 5 lakhs or for declaration that disassociation is void. It is further pleaded that the relief for recovery of Rs. 6,62,452 is in the nature of a set-off which could have been claimed only in OS 78/2015 which was filed by Defendant No. 1 against the Plaintiff for recovery of Rs. 23,21,254 and the said relief 9 CT 1390_Com.O.S.5253-2016_Judgment.doc KABC170096692020 cannot be claimed in the present suit. In so far as loss of profit of Rs. 20 lakhs is concerned, it is contended that the defendants are well within their rights to approach the court in OS 7234/2015 and obtain restraint order against the plaintiff herein and on that ground the plaintiff cannot seek loss of profit from defendants. In so far as relief for re-delivery of Oxygen Concentrator is concerned, the defendants have denied having taken any Oxygen Concentrator on rent from the plaintiff. With these pleadings, the defendants have prayed for dismissal of the suit.
6. On the basis of the above rival pleadings, the following issues are framed;
1) Whether the plaintiff proves disassociation of the defendants with her in business is void and not binding on her?
2) Whether the plaintiff further proves that she has suffered business loss of Rs 2,87,63,992 on account of disassociation of the defendants with her in the business?
3) Whether the plaintiff further proves that she has suffered loss of profit of Rs 20,00,000 from the business of the products under the trademark TMR from 10 CT 1390_Com.O.S.5253-2016_Judgment.doc KABC170096692020 3/9/2015 to 2/1/2016 on account of the restraint order passed in OS 7234/2015 and as such she is entitled to recover it from the defendants?
4) Whether the plaintiff proves that defendants are liable to pay Rs 6,62,452 to her after deducting the alleged pay of Rs 23,21,254 claimed by them?
5) Whether the plaintiff further proves that she had entrusted oxygen concentrator to the defendants and as such she is entitled to recover it from them?
6) Whether the plaintiff is entitled for the damages of Rs 5,00,000 as claimed?
7) Whether the plaintiff is entitled for the relief of permanent injunction to restrain the defendants from marketing and distributing the Meditek India products in Bangalore and Davangere?
8) Whether the suit of the plaintiff is barred by principle of estoppel and doctrine of election?
9) Whether the suit of the plaintiff is barred under Order 2, Rule 2 of the CPC?
10) What order or decree?
11
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7. In the trial, the plaintiff examined herself as Pw 1 and also examined two of her employees as Pw 2 and Pw 3. Pw 1 has got marked Ex. P-1 to P-32 and Ex. P-43 to P48. Pw 2 got marked Ex. P-41 and 42 and Pw 3 got marked Ex. P-33 to 40 In addition, in the cross-examination of Dw 1 on behalf of the plaintiff, Ex. P-49 to 54 are got marked. On behalf of the defendants, the defendant No. 2 examined himself as Dw 1 but no documents are marked for the defendant.
8. After closure of evidence of both sides, I have heard the arguments of both sides and perused the records of the case.
9. My answer to the issues are as follows;
Issue No. 1 to 9 : In the negative Issue No. 10 : As per final order, for the following;
REASONS Issue No. 1 & 2 :-
10. The case of the plaintiff is that, Plaintiff is the proprietrix of Medilab India. The defendant No. 1 is the proprietrix of Meditek India and defendant No. 2 is her husband. In 2004, the defendant No. 2 on behalf of 12 CT 1390_Com.O.S.5253-2016_Judgment.doc KABC170096692020 defendant No. 1 entrusted the marketing of the defendants' products to the plaintiff in Bangalore and Davangere. Initially, two products were entrusted for marketing and thereafter, plaintiff started marketing the entire portfolio of the defendants' products as the exclusive distributor in Bangalore and Davangere. It is the case of the plaintiff that due to her efforts, the defendants' products which had initially zero demand started doing very well in the market and reached turnover of nearly Rs. 32 lakhs per annum. The entire marketing for a period of nearly 9 years from 2004 to 2013 was done only on oral arrangement and trust, since defendant No. 2 was well known to the husband of the plaintiff. The trouble cropped up for the first time in a communication dated 4/10/2013 issued by defendant no.2 wherein he raised certain grievances which according to the Plaintiff are of trivial nature. It is pleaded that, thereafter there was change in the behaviour of defendant no.2 which was motivated by greed and jealousy. Soon thereafter, defendant no.2 assured to continue business relationship on earlier agreed terms and resumed supply of products from 13 CT 1390_Com.O.S.5253-2016_Judgment.doc KABC170096692020 15/10/2013 to 31/10/2013. On 30/10/2013, the defendant sent draft of Memorandum of Association which was one- sided and not agreeable to the plaintiff. Soon thereafter, unilaterally the defendants terminated the distribution right of plaintiff. It is alleged that, this was due to certain bona fide advice given by the plaintiff to the defendants not to name their products after well-known trade names belonging to other companies and also due to jealousy since the plaintiff had done her work remarkably well raising the market share of the defendants' products from virtually zero to being a market leader. As a result of the untimely and unilateral termination of the distribution, certain unsold products of the defendants were lying with the plaintiff and when they were sent back, the defendants refused to give credit for the same on the ground that they were expired products. In this manner, it is alleged that products worth Rs. 4,84,000 and Rs. 3,59,999 were sent back and although accepted by the defendants, the Defendants have refused to raise credit note for the same on the ground that they were expired products. Thereafter when the plaintiff returned products worth Rs. 14
CT 1390_Com.O.S.5253-2016_Judgment.doc KABC170096692020 3,87,000, the defendants even refused to take delivery of the same. In this manner, it is pleaded that products worth Rs. 4,84,000 and Rs. 3,59,999 have been sent back to the defendants and accepted by the defendants for which credit is not raised and there are products worth Rs. 12,65,330 lying with the plaintiffs. Apart from this, it is pleaded that, due to unilateral termination of the distribution agreement, the plaintiff had to continue the employment of marketing team for November, December 2013 and January 2014 and paid them their salary of Rs. 7,42,344. Apart from this, an oxygen concentrator was lent by the plaintiff to the defendants in November 2012 for which the defendants agreed to pay rent of Rs. 3,000 which has accumulated to an amount of Rs. 1,32,000. In this manner, the plaintiff claims that defendants are totally liable to pay Rs. 29,83,706 for which the breakup is as follows;
- Products returned to defendants for which credit note is not raised - Rs. 484,000 and Rs. 3,59,999;
- Products of defendants lying with the plaintiff which are unsold and cannot be sold now 15 CT 1390_Com.O.S.5253-2016_Judgment.doc KABC170096692020 in view of termination of the distribution agreement - Rs. 12,65,330;
- Salaries paid to the staff for November 2013 to January 2014 Rs. 7,42,344;
- Arrears of rent in respect of oxygen concentrator Rs. 1,32,000.
11. It is pleaded that the defendants are claiming sum of Rs. 23,21,254 in a suit filed by them against the plaintiff as sum payable towards products supplied. Therefore, Plaintiff is claiming recovery of Rs. 6,62,452 from the Defendants [Rs. 29,83,706 which is payable to the Plaintiff minus Rs. 23,21,254 which is the amount claimed by Defendants in the other suit].
12. Apart from this, it is pleaded that the defendants filed OS-7234 of 2015 and obtained Ad Interim Injunction Order restraining the plaintiff from trading in products under the trademark of TMR and the said interim order was in force from 03-09-2015 to 02-01-2016. It is pleaded that, as a result of this interim order, the Plaintiff has suffered loss of profit of Rs. 20 lakhs and the said amount is also being claimed in the 16 CT 1390_Com.O.S.5253-2016_Judgment.doc KABC170096692020 present suit. Apart from this, due to illegal termination of the distribution agreement, the plaintiff claims business loss of Rs. 2,87,63,992 which is also being claimed in the present suit. Apart from this, the other reliefs claimed in the present suit are damages of Rs. 5 lakhs and mandatory injunction directing the defendants to deliver back the oxygen concentrator which was lent by the plaintiff to the defendants. Declaration is also sought that disassociation of the defendants from the plaintiff is void and unlawful. Permanent injunction is sought to restrain the defendants from marketing and distributing the Meditek products i.e., defendant's products in Bangalore and the Davangere, since, the plaintiff has the right of exclusive distribution of the said products in Bangalore and the Davangere. For the above reliefs, the present suit is filed.
13. In support of her case, the plaintiff has examined herself as Pw 1 and reiterated the plaint averments. In addition, the plaintiff has also examined two of her employees as Pw 2 and Pw 3 to speak to the fact that after unlawfully terminating the distribution agreement of plaintiff, the 17 CT 1390_Com.O.S.5253-2016_Judgment.doc KABC170096692020 defendants tried to entice the employees of the plaintiff to work for the defendants. Pw 2 and Pw 3 also speak to the fact that the plaintiff put in hard work and dedication in order to market the products of the defendants in Bangalore and Davangere. On behalf of the plaintiff through Pw 1 to Pw 3, Ex. P1 to P48 are marked and in addition in the cross- examination of Dw 1, Ex. P49 to P54 are marked.
14. Ex. P1 is a letter written by Defendant No. 2 to the husband of the plaintiff dated 4/10/2013 and according to the plaintiff, the genesis of the trouble between the parties started under the said letter in which certain trivial issues were raised by Defendant No. 2 and according to the plaintiff, till the writing of the said letter, all was well between the parties. Ex. P2 is letter dated 1/11/2013 again written by Defendant No. 2 to the husband of the plaintiff, in which, Defendant No. 2 has expressed dissatisfaction due to the plaintiff's husband not meeting him on 30/10/2013 and called upon the plaintiff's husband to get back to him for clarification with respect to a draft memorandum of association which has been sent and stating certain changes 18 CT 1390_Com.O.S.5253-2016_Judgment.doc KABC170096692020 in the manner of doing business effective from 13/11/2013. Ex. P3 is a letter issued by the plaintiff's husband to Defendant No. 2 which is in the nature of a reply to the letter at Ex. P2. Ex. P4 is a letter dated 5/11/2013 by which Defendant No. 2 has stated that defendants have decided to appoint a C&F agent to replace the plaintiff. Ex. P5 is a letter dated 6/11/2013 issued by defendants stating that they have discontinued their association with plaintiff and have appointed one Vimal Pharma International as consignee agent for their products with effect from 6/11/2013. It is this Ex. P5 dated 6/11/2013 by which the plaintiff was removed as distributor for defendants' products in Bangalore and Davangere which is the cause of action for filing the present suit. Ex. P6 is another letter dated 6/11/2013, whereby the defendants have called upon the plaintiff to send back all goods belonging to the defendants along with BMD machine and assuring that they will be raising the credit note for the stocks sent by the plaintiff. In essence this is also a letter communicating to the plaintiff that the status of the plaintiff as Distributor has been discontinued and whereas Ex. P5 is 19 CT 1390_Com.O.S.5253-2016_Judgment.doc KABC170096692020 addressed to all the stockists, Ex. P6 is addressed to the plaintiff's proprietary concern. Ex. P7 is a letter issued by the defendants to the plaintiff stating that since the plaintiff has sent expired goods they cannot raise credit note for the same and henceforth not to send expired goods but only to send saleable goods. Ex. P8 is a notice dated 24-11-2010 issued by plaintiff and her husband to the defendants calling upon the defendants to pay tentative damages of Rs 50 lakhs. Ex. P9 is reply to the said notice. Ex. P10 is the certified copy of the plaint in OS 9073 of 2013 which was filed by defendant No. 2 against the plaintiff, for injunction to restrain the plaintiff herein from passing off goods under the trademark "TMR" which is deceptively similar to the trademark of TRP of Defendant No. 2 herein and other related reliefs. Admittedly the said suit was subsequently dismissed as withdrawn. Ex. P11 is the written statement filed by plaintiff herein in the said suit. Ex. P12 is the order sheet of the said suit which shows that the said suit was dismissed as withdrawn on 1-8- 2014. It is the case of the defendants that, the said suit was withdrawn since it was filed under the mistaken impression 20 CT 1390_Com.O.S.5253-2016_Judgment.doc KABC170096692020 that defendant No. 2 is the proprietor of Meditek, whereas in fact it is defendant No. 1 who is the proprietor of the said concern. Ex. P13 is email issued by transporter informing that, defendants have refused to accept consignment / return of goods sent by the plaintiff. Ex. P14 is a notice issued by Karnataka Chemists and Druggists Association to the plaintiff's proprietary concern in respect of a complaint lodged by the defendants in respect of outstanding amount of Rs. 23,20,723. Ex. P15 is a letter issued by husband of the plaintiff to the defendant No. 2 reiterating the history of business relationship between the parties and ultimately stating that defendant No. 2 refused to accept the stock and expired items and therefore the plaintiff is not responsible for any claims or liabilities towards defendant's products for the current financial year. Then a crucial statement is made that plaintiff has not received BMD machine of defendants but plaintiff is yet to receive oxygen concentrator machine which had been taken on rent in January 2013. This is important because this is contradictory to the plaint averment in paragraph 10 that rent on the oxygen concentrator machine 21 CT 1390_Com.O.S.5253-2016_Judgment.doc KABC170096692020 has accrued from November 2012 to July 2016, whereas in the said letter it is stated that the oxygen concentrator machine was given to the defendants only in January 2013. Ex. P16 is certified copy of plaint in OS 78 of 2015 filed by defendant No. 1 against the plaintiff herein for recovery of sum of Rs. 23,21,254 for materials supplied before the termination of distribution agency and other reliefs. Ex. P17 is the written statement filed by the plaintiff herein in the said suit. Ex. P18 is certified copy of the plaint in OS 7234 of 2015 filed by defendant No. 1 herein against the plaintiff for permanent injunction to restrain the plaintiff herein from passing off her goods under the trademark TMR which is deceptively similar to the established trademark of TRP of Defendant No. 1 herein and other reliefs and this is the suit which is filed after withdrawing the earlier suit. Ex. P19 is the written statement filed by the plaintiff herein in the said suit. Ex. P20 is the orders on IA no.1 to 3 dated 2-1-2016 in the said suit whereby IA no.1 filed by the plaintiff of the said suit namely defendant No. 1 herein was dismissed. It is to be noted that, one of the reliefs claimed in the present suit is 22 CT 1390_Com.O.S.5253-2016_Judgment.doc KABC170096692020 loss of profit of Rs 20 lakhs suffered by the plaintiff due to the restraint order passed in said OS 7234 of 2015 from 3-9-2015 to the date of passing of the said order on 2-1-2016 at Ex. P20. Ex. P21 is an email issued by the defendants to the plaintiff attaching the memorandum of agreement which as noted supra was found to be not agreeable to the plaintiff which ultimately resulted in the termination of distribution agency of the plaintiff. Ex. P22 is an email by the transporter regarding the goods being refused by the defendants and it is similar to the email already marked as Ex. P 13. Ex. P23 is an objection to trademark application of defendants. Ex. P24 are trademark certificates issued to third parties and they are produced in support of the plaint averments that defendant was marketing products similar to established trade names belonging to others and when plaintiff bona fide advised defendants to stop such practices, this was one of the reasons for the defendants to develop animosity against the plaintiff and terminate her distribution agency. Ex. P25 is a representation issued on behalf of the defendants stating that they have withdrawn their trademark application. Ex. P-26 is 23 CT 1390_Com.O.S.5253-2016_Judgment.doc KABC170096692020 an email issued by Defendant No. 2 to the husband of the plaintiff, dated 13-03-2014. Ex. P-27 is a letter issued by defendants to the husband of the plaintiff and the said letter is important since according to the plaintiff it contains an admission that oxygen concentrator is with the defendants. Ex. P28 and P29 are transcripts of recorded conversations along with respective pendrives said to contain the said conversations. Ex. P30 is the Profit and Loss Account of the Plaintiff for the year ending 31-03-2011. Ex. P31 is an e-mail. Ex. P32 is the 65B Certificate in support of the said e-mail. Ex. P33 to P40 which are got marked through Pw3 are print out of e-mails along with 65B Certificate. Ex. P41 and P42 which are got marked through Pw2 is print out of an e-mail and accompanying 65B Certificate.
15. Ex P43 to 48 are again got marked through PW1. Ex. P43 is a forensic report issued by Clue 4 Evidence in respect of certain recorded conversations and the transcript of the conversation in respect of which the report is issued is attached and part of the report. Ex. P44 is the tax invoice issued by the said forensic agency for having received fees of 24 CT 1390_Com.O.S.5253-2016_Judgment.doc KABC170096692020 Rs 24,740 for issuing the said report.
Ex. P45 is the communication issued to the plaintiff's concern by Assistant Drug Controller and Licensing Authority. Ex. P46 is the judgment in OS 7234 of 2015, dismissing the suit filed by Defendant No. 1 herein against the plaintiff herein for restraining her from passing off her products as that of the defendants. Ex. P47 is the decree in the said suit. Ex. P48 is 65B Certificate.
16. Ex. P49 to 54 are marked in cross-examination of DW 1. Ex. P49 is the Memorandum of Appeal in MFA 1911 of 2016, which was filed by Defendant No. 1 herein against the Orders dated 2-1-2016 passed by the Trial Court in O.S. 7234 of 2015 vacating the Ad Interim Injunction Order. The purpose of producing the said Memorandum of Appeal on behalf of the Plaintiff is to highlight that at Ground B of the said Appeal Memorandum, there is an admission by Defendant No. 1 that Plaintiff herein was the sole distributor of her products. Ex. P50 is Certified Copy of Price List. In respect of this document, it is suggested to DW1 that it is the margin given to sole distributor which he has denied. Anyhow, since DW1 25 CT 1390_Com.O.S.5253-2016_Judgment.doc KABC170096692020 has admitted that it is the price list showing the margin given to distributor and it is the certified copy of document produced by defendants themselves in O.S. 78 of 2015, the said document is got marked by confronting to DW1. Ex. P51 is the Certified Copy of Ledger Account of Defendants' Concern in respect of transactions with the Plaintiff and since it is admitted by DW1, it is got marked. Ex. P52 is the Deposition of Defendant No. 2 herein in O.S. 78 of 2015 and it is got marked on the ground that it contains certain admissions made by DW1. In this regard, it is highlighted that at page 12 of the deposition, DW1 herein who was PW1 in O.S. 78 of 2015 has admitted that it was plaintiff herein who introduced the products of the defendants herein in Bangalore. And at page 13, he has admitted that after plaintiff herein introduced his products into Bangalore his business improved. And at page 14, he has admitted that plaintiff herein was paying the money regularly. At page 17, he has admitted that in medical business even if the products are returned after expiry date, the manufacturers normally accept the same. At page 18 of the deposition, DW1 has 26 CT 1390_Com.O.S.5253-2016_Judgment.doc KABC170096692020 admitted that two consignments of stock were returned by the plaintiff herein to him. To highlight these admissions made, the said deposition is got marked in the present suit. Ex. P53 is certified copy of the plaint in O.S. 405 of 2015 filed by Defendant No. 1 against third party by name Tukaram. This is got marked to suggest to DW1 that Tukaram was earlier working for plaintiff's concern and defendants enticed him to work for them and then filed suit against him for recovery of Rs. 6 lakhs which was paid as consideration to Tukaram for leaving the plaintiff's concern and joining the defendant's concern but although DW1 has admitted the certified copy of the plaint, he has denied the other suggestions in this regard. Ex. P54 is Orders on IA No. 1 and 3 in OS 3872 of 2022 filed by Plaintiff herein against the Defendant No. 1 and two other business concerns and under the said orders, the defendants are restrained from infringing the Plaintiff's Registered Trademark / Trade Name of TMR.
17. Per CONTRA, the case of the defendants is denial of the plaint averments in toto and it is contended by the Defendants that, when there is no contract in writing and it 27 CT 1390_Com.O.S.5253-2016_Judgment.doc KABC170096692020 was only an oral agency, the principal i.e., the defendants have the right to terminate the oral agency of the plaintiff at any point of time and the agent cannot question the same. It is further pleaded that, the plaintiff is seeking an injunction against the defendants from marketing their own products and the said relief militates against the principle that there can be no injunction granted against the true owner. It is pleaded that the distribution agreement which was nothing but a contract of agency was duly terminated by Letter dated 6/11/2013 for valid reasons and the plaintiff cannot challenge the same. On this ground, it is contended by the defendants that, when the termination of distribution agreement or agency is valid in law, the plaintiff cannot claim business loss of Rs. 2,87,63,992 from the defendants and also cannot claim damages of Rs. 5 lakhs or for declaration that disassociation is void. It is further pleaded that the relief for recovery of Rs. 6,62,452 is in the nature of a set-off which could have been claimed only in OS 78/2015 which was filed by Defendant No. 1 against the Plaintiff for recovery of Rs. 23,21,254 and the said relief cannot be claimed in the 28 CT 1390_Com.O.S.5253-2016_Judgment.doc KABC170096692020 present suit. In so far as loss of profit of Rs. 20 lakhs is concerned, it is contended that the defendants are well within their rights to approach the court in OS 7234/2015 and obtain restraint order against the plaintiff herein and on that ground the plaintiff cannot seek loss of profit from defendants. In so far as relief for re-delivery of Oxygen Concentrator is concerned, the defendants have denied having taken any Oxygen Concentrator on rent from the plaintiff. With these pleadings, the defendants have prayed for dismissal of the suit.
18. In support of their case, the Defendants have examined Defendant No. 2 as DW 1, but , the defendants have not got marked any documents.
19. Having considered the rival contentions and the oral and documentary evidence on record, it is to be noted that, the primary fact which the plaintiff has to prove to succeed in the present suit is that, the disassociation by defendants from the plaintiff or in other words the termination of the distributorship of plaintiff by the defendants was unlawful 29 CT 1390_Com.O.S.5253-2016_Judgment.doc KABC170096692020 and illegal and contrary to law. In this regard, there is absolutely no dispute between the parties that the defendants who are husband and wife & of whom Defendant No. 1 is the proprietor of Meditek Business Concern had appointed the plaintiff to distribute their products in Bangalore and Davangere from 2004 onwards. As already noted Supra when DW1 has deposed in OS 78 of 2015 he has admitted that the plaintiff herein introduced his products in Bangalore and after plaintiff herein introduced his products in Bangalore his business improved. Therefore there is absolutely no dispute between the parties that the plaintiff was the distributor for the products of the defendant in Bangalore and Davangere and from 2004 up to 4/10/2013 which is the date of the letter at Ex. P1 the relationship between the parties was cordial and due to the work of the plaintiff as the distributor of defendants' products, the defendants' products found a wide market in Bangalore and the business of the defendants improved.
20. Although there is some dispute between the parties as to whether the plaintiff was the sole distributor or only one 30 CT 1390_Com.O.S.5253-2016_Judgment.doc KABC170096692020 among the several distributors of the defendants' products in Bangalore and Davangere, it is not really necessary for this court to consider the said question because the primary question to be decided is whether the termination of the plaintiff as distributor by the letter dated 6/11/2013 which is at Ex. P5 and P6 is in accordance with law.
21. In this regard the contention of the defendants is that even conceding that the plaintiff worked hard to establish the products of the defendants in Bangalore and Davangere and to improve the business of the defendants in these places, for her work, the plaintiff has been suitably compensated because the plaintiff was entitled to margins in respect of the products sold and the plaintiff has earned sufficient profits from her long association with the defendants from 2004 to 2013. The contention of the defendants is that, the plaintiff has no vested right, particularly, in the absence of written agreement to remain as a distributor of the defendants' products for Bangalore and Davangere in perpetuity and it is the case of the defendants that, the distributorship being merely a contract of agency, the principal namely the 31 CT 1390_Com.O.S.5253-2016_Judgment.doc KABC170096692020 defendants had the right at any point of time to terminate the agency and the agent cannot claim a vested right to continue as the agent of the defendants in perpetuity.
22. In this regard there is no dispute that, in respect of the plaintiff being appointed as distributor of the defendants' products for Bangalore and Davangere, there was never any written contract entered into between the parties. In this regard in the cross-examination of PW-1 dated 17/09/2019 she has candidly admitted in the very first paragraph that there is no contract entered into between her and the defendants. At page 26 of the deposition in the cross- examination dated 21/10/2019 she has again admitted that there was no written contract to the effect that she alone should market the pharma products of the defendants in Bangalore and Davangere and no other persons or entity should market it and she has clarified that there was oral understanding in this regard. Therefore, it is admitted fact that, in respect of entrusting the distributorship of defendants' products to the plaintiff there was no contract in writing and it was only an oral agreement. In other words, 32 CT 1390_Com.O.S.5253-2016_Judgment.doc KABC170096692020 under oral contract, the plaintiff was appointed as the agent of the defendants for marketing their products in Bangalore and Davangere.
23. Under Section 201 of the Contract Act, one of the manners in which an agency can be terminated is by the principal revoking his authority. In other words, the principal has the right at any stage or at any time to revoke the agency. This is precisely what has been done by the defendants by their letter dated 6-11-2013 at Ex. P-5 and P-6 whereby they have revoked the agency and terminated the plaintiff as the distributor of their products. The Learned Counsel for the Plaintiff argued that, under Section 202 of the Contract Act where agent has an interest in the subject matter of the agency, the agency cannot, in the absence of express contract, be terminated to the prejudice of such an interest. However, by no stretch of imagination, a distributor can claim to have an interest in the business of the principal to claim that the principal cannot terminate the distributorship. In this regard, the Learned Counsel for Plaintiff vehemently argued that, from 2004 to 2013, the plaintiff has worked hard 33 CT 1390_Com.O.S.5253-2016_Judgment.doc KABC170096692020 to build up market for the defendants' products in Bangalore and Davangere and thereby acquired an interest in the subject matter of the agency. This argument cannot be accepted particularly in the absence of any written contract stating that the distributorship agency was given for particular period of time. If the plaintiff has worked hard and built up market for the products of the defendants in Bangalore, the plaintiff has only done her duty as a distributor and marketing agent. As rightly contended by the Learned Counsel for Defendants, the plaintiff has earned corresponding profits for her work since plaintiff has earned profits by way of margin on the products of defendants sold in Bangalore and Davangere from 2004 to 2013. Therefore, when the distributorship agency was based only on oral agreement and there is no agreement in writing stipulating that the agency shall be continued for any particular period of time, it follows that, the principal had the right under Section 201 of the Contract Act to terminate the distributorship agency at any point of time without the consent of the plaintiff. Therefore, I hold that the plaintiff 34 CT 1390_Com.O.S.5253-2016_Judgment.doc KABC170096692020 has failed to prove that the distributorship agency of the plaintiff was unlawfully terminated by the defendants.
24. Once this conclusion is reached, it follows that the plaintiff is not entitled to business loss of Rs. 2,87,63,992 which is Payer A of the Plaint. This sum of money is being claimed on the ground that this is the business loss suffered by the plaintiff on account of intentional and unlawful act of disassociation by the defendants. However, when the disassociation or the termination of the distributorship agency is held to be in accordance with Section 201 of the Contract Act, it cannot be termed invalid or unlawful and therefore, the claim for above sum as business loss on the ground of illegal termination is unacceptable and is refused. Accordingly I answer Issue No. 1 & 2 in the negative. Issue no. 3 to 7
25. Issue No. 3 to 7 are framed in respect of the other reliefs claimed in the present suit and therefore, in order to avoid repetition of facts, they are all considered together. 35
CT 1390_Com.O.S.5253-2016_Judgment.doc KABC170096692020
26. Prayer B in the suit is for recovery of amount of Rs. 6,62,452. The computation of the said amount is as follows. It is pleaded at paragraph 10 of the plaint that two consignments of products worth Rs. 6,62,452 and Rs. 3,59,999 were sent back by the plaintiff to the defendants after the termination of the distributorship agency since once plaintiff was terminated as the distributor, the plaintiff could not sell the said products of the defendant. It is contended that the defendants although received the said two consignments, refused to issue credit note for the same on the ground that the said products have expired. Apart from this, it is contended that there was another consignment which was sent which was refused to be taken delivery of by the defendants and therefore, plaintiff has unsold stock worth Rs. 12,65,330 which plaintiff is neither able to sell nor able to return to the defendants and therefore, for the said stock, defendants are liable to indemnify the plaintiff. Apart from this, claim is made for a sum of Rs. 7,42,344 being the salaries paid by the plaintiff to her staff for the months of November 2013 to January 2014 and the liability to pay the 36 CT 1390_Com.O.S.5253-2016_Judgment.doc KABC170096692020 said salaries is sought to be imposed on the defendants because the defendants suddenly and unilaterally terminated the distributorship agency of the plaintiff. Apart from this, another sum of Rs. 1,32,000 is claimed towards rent of oxygen concentrator from November 2012 to July 2016. The total sum of the above amounts comes to Rs. 29,83,706 and from the said sum, the plaintiff has deducted Rs. 23,21,254 which is the sum being claimed by the defendants from the plaintiff for materials supplied in OS 78 of 2015 and the difference amount of Rs. 6,62,452 is being claimed in the present suit.
27. In so far as the returned goods and the goods still lying with the plaintiff which the defendant has refused to receive are concerned, for which claim is made for Rs. 4,84,000, Rs. 3,59,999 and Rs. 12,65,330 is concerned, the plaintiff bases her claim on two materials. Firstly, there is the letter at Ex. P6 issued by the defendants under which the distributorship agency of the plaintiff is terminated and defendants have stated therein, inter-alia as follows;
37
CT 1390_Com.O.S.5253-2016_Judgment.doc KABC170096692020 "You are hereby advised to send back all goods stationary belonging to Meditek India like visual aids, bags etc. along with BMD machine immediately to our Mangalore office. We shall be raising the credit note for the stocks sent by you."
28. Therefore, in the said letter, there is a categorical admission by the defendants that plaintiff is entitled to send the stock for which they will raise credit note. However, in the letter at Ex. P7, the defendants have stated as follows;
"We are surprised to be in receipt of expiry goods from you, vide LR No. 447490932 dated 8-11- 2013 - 2 boxes. As we have been supplying goods to you for the past 10 years at the rate which is almost the manufacturing cost itself, but received return for the first time till today. We are unable to issue a credit note for the same, henceforth do not send such expiry return to us."
29. Apart from this, in Ex. P52, which is the deposition of Defendant No. 1 herein, he has admitted that it is the common practice in the pharmaceutical industry for the manufacturer to take back return of unsold expired goods.
30. Based on the above material, Learned Counsel for plaintiff vehemently argued that in Ex. P6, defendants have admitted that they are liable to take return of unsold stock 38 CT 1390_Com.O.S.5253-2016_Judgment.doc KABC170096692020 and to raise credit for returned stock and in Ex. P52, DW1 has admitted that it is the common practice of pharmaceutical industry for the manufacturer to take return of expired unsold stock, whereas, in Ex. P7 - letter, the defendants have refused to raise credit note in respect of returned stock on the ground that it has expired. He submitted that when it is the general practice in the pharmaceutical industry to take back return of even expired goods, the defendants are not justified in refusing to raise credit note on the ground that the goods have expired. He further submitted that, apart from the said goods which were returned to the defendants, there was another consignment which was refused to be received and in this regard, he has relied upon the email at Ex. P22, which is sent by the transporter that defendants refused to take delivery of the consignment. Thereby, he submitted that the plaintiff is entitled to the amount claimed towards returned and unsold goods. He has highlighted that, when all of a sudden the defendants have terminated the distributorship agency of the plaintiff, the plaintiff was unable to sell the goods and hence 39 CT 1390_Com.O.S.5253-2016_Judgment.doc KABC170096692020 plaintiff is entitled to refund for the unsold and returned goods.
31. Having considered the said submissions, it is to be noted that, there is no serious dispute that the goods which were sought to be returned were expired goods. No doubt, DW1 has admitted in his cross-examination in another case, which is marked as Ex. P52 that it is the common industry practice of pharmaceutical industry for the manufacturer to take return even of expired goods. However, he has nowhere admitted that it was the agreement between the parties herein that the defendants are liable to take return of expired goods. In the letter at Ex. P7, it is specifically stated that throughout the term of distribution agency of the plaintiff, the goods were supplied to the plaintiff at virtually in manufacturing cost and on this ground it is contended by the defendants in Ex.P 7 that the defendants are not liable to take return of expired goods. Therefore, when a specific reason is given by the defendants for refusing to take return of expired goods and in Ex. P6 letter the defendants only called upon the plaintiffs to return the goods for which credit note will be raised and there 40 CT 1390_Com.O.S.5253-2016_Judgment.doc KABC170096692020 is no admission in Ex. P6 that the plaintiffs can return expired goods, the plaintiff cannot rely upon a general industry practice to contend that defendants are liable to take return even of expired goods. In this case, there was burden on the plaintiff to prove that it was the understanding between the parties that defendants shall take return even of expired unsold goods. As already noted supra, there is no written agreement between the parties and the business was done for a period of nearly 9 years only on oral understanding and trust. Therefore, in the absence of plaintiff proving a specific agreement between the parties that defendants agreed to take return of expired goods, the plaintiff cannot expect the defendants to raise credit note or pay the amount for unsold goods when the goods have admittedly expired. Therefore, the plaintiff is not entitled to the relief in respect of returned and unsold goods.
32. The next head under which the amount is claimed is sum of Rs. 7,42,344 towards the salary paid by plaintiff to her own employees. It is the case of the plaintiff that due to sudden termination of the distributorship Agency, the 41 CT 1390_Com.O.S.5253-2016_Judgment.doc KABC170096692020 plaintiff could not immediately let go of excess employees and plaintiff had to bear the salaries of her employees from November 2013 to January 2014 and under the said head the above sum of Rs. 7,42,344 is claimed. As already noted supra, the plaintiff has failed to prove that termination of the distributorship agency was invalid or unlawful. Therefore, when the defendants had the right to terminate the distributorship agency, the plaintiff cannot foist liability on the defendants for payment of salary to her own employees. The payment of salary to her employees is the exclusive lookout of the plaintiff and the plaintiff cannot expect the defendants to contribute for the same. Therefore, plaintiff is not entitled to relief under this head.
33. The next head for claim of money is sum of Rs. 1,32,000 as rent for oxygen concentrator. There is absolutely no material on record to show that the defendants at any point of time agreed to pay monthly rent of Rs. 3,000 towards oxygen concentrator. Learned Counsel for Plaintiff relied upon the letter at Ex. P-27 to contend that defendants have admitted that they are in custody of oxygen concentrator belonging to 42 CT 1390_Com.O.S.5253-2016_Judgment.doc KABC170096692020 the plaintiff. Ex. P-27 is a letter dated 22/09/2014 written by defendant No. 2 to the husband of the plaintiff. In the said letter, it is stated as follows;
"Hence, herewith you are advised to send the payment immediately and also return our BMD machine in good condition to us, which you are using to conduct camps. In return of that, we will return your oxygen concentrator, which we are not using at all (in good condition)."
34. No doubt, the said letter is an admission by defendants that they are in custody of oxygen concentrator belonging to the plaintiff. According to the plaintiff, the oxygen concentrator is worth about Rs. 45,000 and plaintiff is claiming monthly rent of Rs. 3,000 for the said oxygen concentrator from November 2012 to July 2016 i.e. total sum of Rs. 1,32,000. However, in the said letter, the admission that defendants will return the oxygen concentrator is qualified and conditional upon plaintiff returning BMD machine to the defendants. Therefore, the plaintiff without placing any material on record to show that the BMD machine has been returned to the defendant cannot claim return of the oxygen concentrator from the defendants. Also, 43 CT 1390_Com.O.S.5253-2016_Judgment.doc KABC170096692020 when absolutely no material is brought on record to show that defendants at any point of time agreed to pay monthly rent of Rs. 3,000 for the oxygen concentrator, the plaintiff is also not entitled to the amount of Rs. 1,32,000 towards accumulated rent of oxygen concentrator. Moreover, the suit having been filed on 20-07-2016, the plaintiff at the most could have claimed for accumulated rent for 3 years before filing of the suit and not from November 2012. Therefore, viewed from any angle, the plaintiff is not entitled either to mandatory injunction for return of the oxygen concentrator or for amount of Rs. 1,32,000 towards accumulated rent on the oxygen concentrator from November 2012 to July 2016. Therefore, in view of the above discussion, I hold that the plaintiff is not entitled to relief B of the prayer column for recovery of sum of Rs. 6,62,452 from the defendants or Prayer E for return of oxygen concentrator.
35. The next prayer is for loss of profit of Rs. 20 lakhs due to operation of interim order granted in OS 7234 of 2015 restraining the plaintiff from doing business of the products under the trade name of TMR from 3/9/2015 to 2/1/2016 44 CT 1390_Com.O.S.5253-2016_Judgment.doc KABC170096692020 which is the period during which the said interim order was in force. In this regard, Learned Counsel for Plaintiff has relied upon the judgment at Ex. P-54 in OS 3872 of 2022 whereby the suit filed by the plaintiff herein has been decreed and defendants in the said suit including defendant no. 1 herein has been restrained from infringing the plaintiff's registered trademark of TMR. Therefore, it is clear that the plaintiff has got trademark under the name and style of TMR. It is the contention of the plaintiff that due to the interim order in OS 7234 of 2015 which was in force from 3/9/2015 to 2/1/2016, the plaintiff was restrained from doing business under the trademark of TMR which has resulted in loss of Rs. 20 lakhs and since the said interim order was granted at the instance of the defendants herein, the defendants are liable to pay said Rs. 20 lakhs of loss of profit to the plaintiff.
36. This relief claimed by the plaintiff has to be rejected for two reasons. It is to be noted that the plaintiff has produced and got marked the plaint, written statement and orders dated 2/1/2016 in O.S. 7234/2015 at Ex. P-18 to P-20. However, the plaintiff has not produced and got marked the 45 CT 1390_Com.O.S.5253-2016_Judgment.doc KABC170096692020 order sheet in O.S. 7234/2015 to ascertain what was the nature of the ad-interim injunction which was granted in the said suit. From the orders passed in the said suit at Ex. P-20, it is only forthcoming that the plaintiff had filed an application under Order 39, Rule 1 and 2 of the CPC for temporary injunction to restrain the defendant namely the plaintiff herein from passing off the plaintiff's trademark of TRP by using offending trademark of TMR for medicinal and pharmaceutical products or any other deceptively and confusingly similar trademark. By the said orders, the application for temporary injunction filed by the plaintiff [Defendant No. 1 herein] has been rejected and the application filed by the defendant [plaintiff herein] for vacation of the interim order has been allowed and ex parte order has been vacated. However, what is the nature of the ex parte order passed on 3/9/2015 is not forthcoming from the said order or from any other material on record in the present suit. Such being the case, the plaintiff has failed to prove that as a result of ad-interim order passed at the instance of defendants, the plaintiff was restrained from doing business 46 CT 1390_Com.O.S.5253-2016_Judgment.doc KABC170096692020 under the trademark of TMR from 3/9/2015 to 20/1/2016. More importantly, if according to the plaintiff, she suffered loss as a result of any judicial order passed in OS- 7234/2015, it was for the plaintiff to seek relief in the said suit itself either on the ground of malicious prosecution or any other ground. However, in the present suit, the plaintiff cannot claim damages as a result of judicial order having been passed in OS-7234/2015. Needless to state, the defendants were well within their rights to file suit if they apprehended that their registered trademark is being diluted due to the acts of the plaintiff. No person can be penalized for approaching the court of law except in the case of malicious prosecution. In the case on hand, the plaintiff has not made out the ingredients to satisfy the court that filing of OS- 7234/2015 was an act of malicious prosecution by the defendants herein. No doubt, the said suit has been ultimately dismissed, but merely on that ground, it is not possible to conclude that the filing of the suit and obtaining of interim order was act of malicious prosecution by the defendants. In the absence of proving that the filing of the 47 CT 1390_Com.O.S.5253-2016_Judgment.doc KABC170096692020 suit and obtaining of the interim order was act of malicious prosecution, the plaintiff cannot seek damages from the defendants on the basis of judicial order passed in the said suit. Hence I hold that, the plaintiff has failed to prove that plaintiff is entitled to Rs 20 lakhs as loss of profit on account of interim order passed in OS-7234/2015.
37. The next relief sought is for damages of Rs 5 lakhs. When I have already held that, the termination of distributorship agency by the defendants was in accordance with law, the question of paying any damages does not arise and hence plaintiff is not entitled to the said relief at prayer D.
38. The next relief sought is for mandatory injunction to direct the defendants to deliver back oxygen concentrator, which is already discussed supra, in connection with the claim of the plaintiff for Rs 1,32,000 towards accumulated rent for the said oxygen concentrator and I have already held supra that plaintiff is not entitled to return of said oxygen 48 CT 1390_Com.O.S.5253-2016_Judgment.doc KABC170096692020 concentrator and accordingly I hold that plaintiff is also not entitled to the said relief.
39. The next relief claimed is for declaration that alleged disassociation by defendants is void and for permanent injunction to restrain the defendants from marketing and distributing the products of Meditek i.e. defendants products in Bangalore and Davangere. When I have already held that the termination of the distributorship agency by the defendants is in accordance with law, there is no question of granting either declaration or injunction and hence plaintiff is not entitled to these reliefs also. Accordingly I hold that plaintiff is not entitled to any of the reliefs claimed in the present suit and I answer issue No. 3 to 7 in the negative.
Issue No. 8 and 9.
40. These issues are raised in view of the contention raised by defendants that suit is barred by principle of estoppel, doctrine of election and under order 2 rule 2 of the CPC. However, the defendants have not produced any documents 49 CT 1390_Com.O.S.5253-2016_Judgment.doc KABC170096692020 to show that plaintiff has filed any other suit in respect of the same reliefs or related reliefs or on the same cause of action. In fact, the only other suit which is filed by the plaintiff herein which is brought on record is OS 3872 of 2022 the judgment of which has been marked by the plaintiff herself at Ex. P-54 which is a suit in respect of the trademark of the plaintiff and has nothing to do with the distributorship agency between plaintiff and defendants. Such being the case, it cannot be said that the present suit is barred either by principles of estoppel or doctrine of election or under Order 2 rule 2 of the CPC. Anyhow on merits I have held that the plaintiff is not entitled to any of the reliefs claimed and therefore these issues have become academic in nature. Be that as it may since the above issues are framed I have answered the same. Accordingly, I answer issue No. 8 and 9 in the negative.
41. Before parting it is necessary to refer briefly to the rulings relied upon by the Learned Counsel for Plaintiff. Learned Counsel for Plaintiff has laid upon the following rulings. Firstly, reliance is placed upon (2003 )8 SCC 740 for 50 CT 1390_Com.O.S.5253-2016_Judgment.doc KABC170096692020 proposition that where there is variance between pleadings and evidence, adverse inference has to be drawn. In the case on hand, the burden being on the plaintiff and the plaintiff having not proved her case that termination of the distributorship agreement is contrary to law, the plaintiff's case has to fail and therefore reliance on the said ruling will not help the Plaintiff. Next reliance is placed upon (2004) 11 SCC 364 for proposition of law that, misrepresentation amounts to fraud and suppression of material documents is fraud on court. The said ruling is inapplicable because this is the case where the plaintiff has failed to prove her case. Next reliance is placed upon (1994) 1 SCC 397. However, the said ruling turned on the facts of that case in which there was agreement in writing between the parties and on that basis Hon'ble Apex Court held that said agreement is on principal to principal basis and the facts being different the said ruling is inapplicable to the case on hand. Next reliance is placed upon AIR 1954 SC 364 for proposition regarding difference between relationship of master and servant and principal and agent. In the case on hand, there is no dispute that the 51 CT 1390_Com.O.S.5253-2016_Judgment.doc KABC170096692020 plaintiff was appointed as distributor for the defendants' products in Bangalore and Davangere and therefore the relationship between the parties was that of principal and agent and therefore the said ruling is not relevant for the purpose of deciding the present case. Next reliance is placed upon AIR 1990 NOC 87 for proposition that agent is not a servant. Again, the said ruling is not relevant for the purpose of the present case because admittedly in this case the plaintiff was appointed as distributor or agent of defendants and under section 201 of Contract Act as already held supra the defendants were entitled to terminate the said agency and therefore the said ruling is not applicable to the facts of the present case.
42. Accordingly in view of the detailed discussion held supra, I hold that plaintiff is not entitled to any of the reliefs claimed and the suit is liable to be dismissed. Issue No. 10 :-
43. Having answered Issue No. 1 to 9 as above, I proceed to pass the following :-
52
CT 1390_Com.O.S.5253-2016_Judgment.doc KABC170096692020 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 16th day of April, 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 : Dr.Nandalaxmi Jyothi Prasad Hegde. PW.2 : Avinash.
PW.3 : Praveen B.E.
2. List of witnesses examined on behalf of Defendants:
DW.1: Pramod Hegde.
3. List of documents marked on behalf of Plaintiff:
Ex.P.1: Copy of the letter by email expressing displeasure dt.4/10/2013 sent by defendant No.2 to the plaintiff.53
CT 1390_Com.O.S.5253-2016_Judgment.doc KABC170096692020 Ex.P.2 : Copy of email dt.1/11/2013 sent by defendant No.2 to plaintiff.
Ex.P.3 : Copy of letter dt.4/11/2013 sent by plaintiff to defendant No.2.
Ex.P.3(a): Mail message to show Ex.P.3 was sent to defendant No.2.
Ex.P.4 : Copy of email dt.5/11/2013 sent by defendant No.2 to plaintiff.
Ex.P.5 : Copy of the email dt.6/11/2013 sent by defendant No.2 to the plaintiff discontinuing association.
Ex.P.6 : Copy of email dt.6/11/2013 sent by defendant No.2 to plaintiff disclosing appointment of C and F. Ex.P.7 : Copy of emial dt.22/11/2013 sent by defendant No.2 to plaintiff refusing to entertain expiry goods.
Ex.P.8 : Copy of letter dt.24/11/2013 sent by plaintiff to defendants No.1 and 2.
Ex.P.9 : Reply dated 26/12/2013 sent by defendants to plaintiff.
Ex.P.10: C.C of plaint OS No.9073/2013 filed by defendant No.2 against the plaintiff. Ex.P.11: C.C of written statement of OS No.9073/2013 filed by defendant No.2 against the plaintiff. Ex.P.12: C.C of order dt.1/8/2014 passed in OS 9073/2013 filed by defendant No.2 against the plaintiff.
Ex.P.13: Email dt.29/1/2014 sent by the VRL. Ex.P.14 : Copy of the letter alleged claim of the defendants complaint dated 30/1/2014. Ex.P.15 : Copy of the reply letter dt.25/2/2014 sent by the plaintiff.
Ex.P.16 : C.C of the plaint in OS 78/2015. Ex.P.17 : C.C of the written statement in OS 78/2015. Ex.P.18 : C.C of the plaint in OS 7234/2015. Ex.P.19 : C.C of the written statement in OS 7234/2015 Ex.P.20 : C.C of the order dated 2/1/2016 passed in OS 7234/0215.54
CT 1390_Com.O.S.5253-2016_Judgment.doc KABC170096692020 Ex.P.21 : Copy of draft memorandum of agreement sent sent through email to the defendant, sent to the plaintiff by the defendant No.2. Ex.P.22 : Copy of email intimation dt.21/1/2014 sent by the VRL to the plaintiff pertaining to the refusal of the consignment.
Ex.P.23 : Website copy of trademark registry relating to affidavit from Modi Mundi Pharma regarding claim of sales of TRP dated 5/11/2014. Ex.P.24 : Website copy of trademark registry of registration certificate M-Norm dated 23/2/2006.
Ex.P.25 : Website copy of trademark registry relating to letter of withdrawal of Trade Mark Thiomid dated 7/12/2011.
Ex.P.26 : Copy of email communication between plaintiff and defendant regarding oxygen concentrator dated 13/3/2014. Ex.P.27 : Copy of email communication between plaintiff and defendant regarding oxygen concentrator dated 22/9/2014. Ex.P.28 : Pendrive relating to transcript of audio dt.11/10/2013 regarding conversation between defendant No.2 and husband of plaintiff on the visit of defendant No.2 to the office of plaintiff. Ex.P.29 : Pendrive relating to Transcript of audio of tele conversation between plaintiff 's Marketing Executive i.e. Avinash and defendant No.2. Ex.P.30 : Plaintiff's Audio Report. Ex.P.31 : Copy of email dt.9/11/2013 sent by defendant No.2 to plaintiff.
Ex.P.32 : Certificate U/Sec.65B of the Indian Evidence Act.
Ex.P.33to Ex.P.39 : Seven Email communications of different dates pertaining to the transactions. Ex.P.40 : Certificate U/S.65B of the Indian Evidence Act Ex.P.41 : Email communication pertaining to defendant. Ex.P.42 : Certificate U/S.65B of the Indian Evidence Act 55 CT 1390_Com.O.S.5253-2016_Judgment.doc KABC170096692020 Ex.P.43 : Report issued by Forensic lab. Ex.P.44 : Printout of invoice issued by Forensic lab. Ex.P.45 : Printout of the drug license. Ex.P.46& Ex.P.47 : C.C of the Judgment and Decree in OS 7234/2015.
Ex.P.48 : Certificate U/S.65B of Indian Evidence Act. Ex.P.49 : C.C of appeal Memo in MFA 1911/2016. Ex.P.50 : C.C of the price list produced in OS 78/2015 Ex.P.51 : C.C of the ledger account produced by plaintiff.
Ex.P.52 : C.C of evidence of PW.1 in OS 78/2015. Ex.P.53 : C.C of plaint in OS 405/2015. Ex.P.54 : C.C of order on I.A.I & II in OS 3872/2022 produced by the plaintiff.
4. List of documents marked on behalf of Defendants:
NIL (Sri. S. Sudindranath) LXXXIII ADDL.CITY CIVIL AND SESSIONS JUDGE, COMMERCIAL COURT; BANGALORE.56
CT 1390_Com.O.S.5253-2016_Judgment.doc KABC170096692020