Bangalore District Court
Hmt Watches Limited vs M/S.Rhythm on 25 June, 2019
IN THE COURT OF THE XXXVIII ADDITIONAL CITY
CIVIL JUDGE AT BENGALURU CITY
Dated this the 25th Day of June 2019
Present
Sri Devanand Puttappa Nayak B.A., LL.B.,(Spl.)
XXXVIII Additional City Civil & Judge,Bangalore City.
ORIGINAL SUIT NO.8625/2010
Plaintiff:
HMT WATCHES LIMITED, A company
registered under the Companies Act, 1956,
having its registered office at HMT
Bhavan,59, Bellary Road, Bangalore-560
032 and its Watch Marketing Division at
Ground Floor, "HMT Bhavan", No.59,
Bellary Road, Bangalore-560 032
represented by its authorized
representative and Accounts Officer
[by advocate M/s Cariappa & Co.,]
V/s
Defendants:
1. M/s.Rhythm, A proprietory concern,
Sibari Road, Malugram P.O. and
P.S.Silcar, District Cachar, Assam
Also at Park Road, Silchar, Assam-
788 001 represented by its Proprietor
Mr.Santanu Das.
2. Mr.Santanu Das, aged about 60
years, S/o late Saroj Kumar Das,
Resident of Sibari Road, Malugram
P.O. and P.S.Silcar, District Cachar,
Assam
[by advocate Sri T.S.Venkatesh]
2 O.S.No.8625/2010
10/12/2010
Date of Institution of the suit :
Nature of suit
: For recovery of money
Date of commencement of
Evidence : 24/07/2014
Date on which the judgment
is pronounced : 25/06/2019
Years Month Days
Duration taken for disposal :
08 06 15
JUDGMENT
This suit is filed by the Plaintiff's Company represented by its Accounts Officer for recovery of Rs.17,27,707/- from the defendants.
2. The case of the plaintiff as per the plaint averments is that the plaintiff is a Government Company registered under the Companies Act, 1956 having its registered office at No.59, Bellary road, Bengaluru-32 and is engaged in manufacture and sale of watches and watch components and is represented by its Authorised Representative and Accounts Officer. Prior to 3.3.2001, the plaintiff was a part of M/s HMT Ltd. Pursuant to a turnaround plan approved by the Government of India, the Watch Directorate, including the Watch Marketing 3 O.S.No.8625/2010 Division, and all watch units under the said HMT Limited, was de-merged from the said HMT Limited and came to vest with the Plaintiff's Company and all assets, liabilities including all contracts, claims etc., came to vest with the Plaintiff's Company.
The plaintiff further submits that in the year 1995, the defendant No.1 represented by its Proprietor, the defendant No.2, approached HMT Limited and requested the Plaintiff's Company to appoint defendant No.1 as Re- distribution Stockiest for watches and watch components and watch spare parts manufactured by the plaintiff. Accordingly defendant No.1 was appointed by the Plaintiff's Company as Re-distribution Stockiest for the territories of North Cachar hills, Karimganj, hailkandi and Cachar in Assam District, Entire Manipur, entire Mizoram and entire Tripura under Agreement dt.27.3.1995.
The plaintiff further submits that as per the terms of the Agreement dt.27.3.1995, the 4 O.S.No.8625/2010 term of the Re-distribution Stockiest was for a period of two years and could be renewed for a further period on the same terms and conditions. The said Agreement dt.27.3.1995 was renewed for a further period vide letter bearing No.WM/RDS/AGMT dt.13.1.1998 and the defendants were continued with the supply of watches and watch components and watch spare parts under the same terms and conditions, and as per the policies of the Plaintiff's Company.
The plaintiff further submits that as per the requirement of the defendants and the retailers of the defendants for watches and watch components and watch spare parts, the Plaintiff's Company used to raise invoices on the defendants and the retailers of the defendants on the instructions from the defendants towards the watches and watch components and watch spare parts supplied and delivered to the defendants and their 5 O.S.No.8625/2010 retailers till November, 2005. The transaction between the plaintiff and the defendants was that of a running account and the amount paid by the defendants was being adjusted towards the outstanding amount due. At the end of every financial year i.e. on 31st March of that year, the balance outstanding was informed to the defendants at regular intervals. As the transactions are under commercial terms and conditions, the Plaintiff's Company is entitled to interest at the rate of 18% p.a.and accordingly raised debit notes towards interest for delayed payment and the same has been communicated to the defendants. The plaintiff, through various letters and statement of accounts, had called upon the defendants to make payment of outstanding amount and interest. Being aggrieved by the said letters and demands, the Defendants filed a suit in the Court at Silichar in T.S.No.17/2008, contending that they are not liable to pay any interest and sought for 6 O.S.No.8625/2010 other reliefs. An application filed in the said suit seeking ad-interim temporary injunction was dismissed.
The plaintiff further submits that the defendants are due and liable to pay a sum of Rs.73,77,554.80 being the principal and interest on delayed payment towards supply of watches and watch components and watch spare parts as on 30.11.2008. The last payment of Rs.5000/- was received by the plaintiffs from the defendants on 19.12.2007 vide Demand Draft No.513246333 dt.14.12.2007.
The plaintiff further submits that based on the request of the defendants for issuance of Credit Notes with regard to taking back of Isolation and Securitisation Watches, the plaintiff has taken return of said watches and accordingly given credit in respect of the same. The plaintiff has also given credit to the defendants towards incentives, offers and 7 O.S.No.8625/2010 schemes. The plaintiff also raised certain Debit Notes in respect of the sales tax payable by the defendants for which the plaintiff had made payment. The plaintiff had raised certain debit notes towards reversal of additional discounts and price off schemes given in view of the plaintiff having taken back the returned watches. There were certain irregularities in the accounts raised in certain invoices, as such the plaintiff had raised a Debit note towards Invoice correction of the amount. The value of Debit Notes is in a sum of Rs.9,80,398/- and the value of Credit Notes is in a sum of 5,66,503/-.
The plaintiff further submits that the defendants are due and liable to pay a sum of Rs.20,36,178/- being the principal amount consisting of unpaid invoices towards supply of watches and watch components and watch spare parts and the Debit Notes raised towards reversal of additional discounts and price of 8 O.S.No.8625/2010 schemes given in view of the plaintiff having taken back the returned watches; towards the Invoice correction of the amount and towards Sales Tax payable. After taking into consideration the credit due to the defendants in a sum of Rs.2,66,503/- and the security deposit in a sum of Rs.3 lakhs available with the plaintiff, the defendants are due and liable to pay a sum of Rs.14,69,675/- being the principal amount. Though the defendants are due and liable to pay the accrued interest, the plaintiff has restricted its claim on interest and has claimed interest from 14.12.2007 till the date of filing of the suit on the principal amount of Rs.14,69,675/- with interest of Rs.2,58,032/-, in total a sum of Rs.17,27,707/- being the principal and interest. Therefore the defendants are liable to pay a sum of Rs.17,27,707/- towards principal and interest and future interest at the rate of 24% p.a. from 9 O.S.No.8625/2010 the date of filing of the suit till the date of realization.
The plaintiff further submits that the defendants have acknowledged their liability by making payments towards the outstanding amount due. In T.S.No.17/2008 at Silichar Court, the defendants have disputed only the interest, thereby acknowledging the liability of the principal amount. Hence the plaintiff has filed this suit for recovery of money from the defendants.
The Cause of action for the suit arose on various dates as mentioned above and under the Agreements referred to above and subsequently when the parties continued doing business on the same terms and conditions and on the date on which the defendants made the last payment vide Demand Draft No.513246333 dt.14.12.2007, on 19.12.2007 the date on which above said Demand Draft was realized and on the date on which the 10 O.S.No.8625/2010 defendants filed T.S.No.17/2008 acknowledging to pay the principal amount and on such other subsequent dates on which the defendants neglected to make payment. This Court has jurisdiction to entertain the suit as the Cause of action has arisen within the jurisdiction of this Court where the Re-distribution Stockiest Agreement dt.27.3.1995 was executed.
3. The defendant No.2 for and on behalf of Defendant No.1 appeared before the Court and filed his written statement, contending that the suit filed by the plaintiff is not maintainable either in law or on facts; lacks jurisdiction; Court Fee paid is insufficient and barred by limitation.
The defendant further contended in the written statement that the defendant No.1 was appointed as Re-distribution Stockiest on 27.3.1995 for a period of two years expiring on 26.3.1997. Being satisfied with the defendants' style of business, the Plaintiff's Company offered to renew the Re-distribution Stockiest 11 O.S.No.8625/2010 Agreement for a further period up to 31.3.2000 and the same was accepted by the defendants. The acceptance of RDS Agreement dt.27.3.1995 was concluded at Silchar.
The defendant further submitted at para 3 of the written statement that as per Agreement dt.27.3.1995, the defendants shall place Indent for supply of watches and on receipt of Intent, plaintiff shall send material to the doorsteps of the defendants. As per Clause 8 of the said Agreement, the defendants shall make payment for every off-take of products in cash.
The defendant further submits that due to influx of cheap foreign and spurious watches, the sales decreased drastically. However, the Plaintiff's Company fixed arbitrary targets and sent watches without requisition and Intent. Though target was a criteria while entering into Agreement dt.27.3.1995, later the Plaintiff's Company was arbitrarily fixing targets and sending products. The unplanned sending of 12 O.S.No.8625/2010 watches, beyond market requirements led to huge dumping of watches at defendant No.1's premises and the same resulted in serious business setback and inevitably the defendant was forced to close his business. Before closing the business, the defendant through his letter dt.5.11.2005, requested the Plaintiff's Company to take back the unsold stocks of watches and to settle the accounts and since then the defendant No.1 firm had become defunct.
In para 5 of the written statement, the defendant submits that though the request letter was sent on 5.11.2005, the plaintiff took back the stocks on 17.6.2006 without issuing valuation statement of the stocks taken back from the defendant No.1. Though the stocks were taken back in June 2006, after lapse of 14 months, the Plaintiff's Company issued 19 Debit Notes. But since the same was not in consonance with the accounts of the defendants, the defendants refuted the same 13 O.S.No.8625/2010 vide letter dt.29.12.2007. But the plaintiff forwarded a statement claiming huge sum by adding abnormal rate of interest. The Agreement dt.27.3.1995 nowhere mentions of levying interest. Aggrieved by the high handedness of the plaintiff, the defendant preferred T.S.No.17/2008 at Silchar and said suit is pending for consideration. During pendency of the above suit, the plaintiff has no right to file this suit.
The defendant further submits that this suit before this Court is not maintainable because the dispute in question is already seized before the Court at Silchar. The stocks were delivered at Silchar and payments were made at Silchar, and hence the Courts at Silchar have jurisdiction to entertain the claim and this Court lacks jurisdiction. The renewal letter of initial RDS Agreement dt.27.3.1995 was finally accepted at the office of the 1st defendant at Silchar and hence the contract got 14 O.S.No.8625/2010 concluded at Silchar and accordingly the Courts at Silchar are competent to adjudicate the dispute in question. The renewed Agreement got expired on 31.3.2000 and the defendant No.1 firm was closed on 8.1.2005 and hence the claim of the plaintiff is barred by limitation.
Further the defendant denied the averments made at para 5 to 13 of the plaint as false and untrue and further submits that the documents produced are afterthought documents, created on learning about the defence taken by the defendants. Hence the defendant requested the Court to dismiss the suit filed by the plaintiff.
4. On perusing the pleadings of the plaint and also written statement filed by the Defendant, on 21.09.2013, my predecessor has framed the following five Issues:-
1. Whether the plaintiff proves that the defendants are jointly and 15 O.S.No.8625/2010 severally liable to pay a sum of Rs.17,27,707/-?
2. Whether the plaintiff proves that the plaintiff is entitled for interest at the rate of 18% per annum from 14.12.2007 till the date of filing on the principal amount of Rs.14,69,695/-?
3. Whether the defendants prove that the suit is barred by limitation?
4. Whether the defendants prove that suit is not maintainable for want of jurisdiction?
5. What decree or Order?
5. In this case the retired Accounts Officer of the Plaintiff's Company has adduced his oral evidence by way of filing his sworn affidavit in lieu of his chief examination considered as PW1 and in further chief examination of PW1, the documents produced by him are marked as Ex.P1 to P59. In support of plaintiff's case, the Assistant General Manager(Finance), is examined as PW2 and no documents are marked in further chief examination of PW2. On the other hand, the defendant No.2 has adduced his oral evidence by way of filing his sworn 16 O.S.No.8625/2010 affidavit in lieu of his chief examination considered as DW1 and in further chief examination of DW1, the documents produced by him are marked as Ex.D1 and Ex.D2 and closed by the side of defendants. No independent witnesses have been examined by the side of defendants.
6. Heard oral arguments and also perused the written arguments file by both sides.
7. The findings of this Court on the above Issues are as follows:
Issue No.1 : Partly in the Affirmative Issue No.2 : Partly in the Affirmative. Issue No.3 : In the Negative. Issue No.4 : In the Negative Issue No.5 : As per final order, for the following:
REASONS ISSUE NOS.1 AND 2:
8. I have taken up these two Issues together for common discussion, since both these Issues are interrelated to each other and burden of proving these Issues lies on the plaintiff.
17 O.S.No.8625/2010
9. This suit is filed by the Plaintiff's Company represented by its Accounts Officer for recovery of Rs.17,27,707/- from the defendants, as prayed for in prayer column of the plaint.
10. Admittedly, the plaintiff is a Government Company registered under the Companies Act, 1956 and its registered office is situated at No.59, Bellary road, Bengaluru-32 and is engaged in manufacture and sale of watches and watch components. In the year 1995, the defendant No.1 represented by its Proprietor, the defendant No.2, was appointed by the Plaintiff's Company as Re-distribution Stockiest under Agreement dt.27.3.1995 for the territories of North Cachar hills, Karimganj, hailkandi and Cachar in Assam District, entire Manipur, entire Mizoram and entire Tripura. The said Agreement was for a period of two years and was renewed on 13.1.1998 for a further period of two years till 31.3.2000 under the same terms and conditions. As per the requirement of the defendants and the retailers of the defendants for watches, watch components and 18 O.S.No.8625/2010 watch spare parts, the Plaintiff's Company used to raise invoices for having supplied the watches, watch components and watch spare parts and delivered to the defendants and their retailers till November, 2005. The transaction between the plaintiff and the defendants was that of a running account and the amount paid by the defendants was being adjusted towards the outstanding amount due. At the end of every financial year i.e. on 31st March of that year, the balance outstanding was informed to the defendants at regular intervals. The plaintiff raised debit notes towards interest for delayed payment and the same has been communicated to the defendants. The plaintiff demanded the defendants to make payment of outstanding amount and interest. Being aggrieved by the said demands, the Defendants filed a suit in the Court at Silichar in T.S.No.17/2008, contending that they are not liable to pay any interest, thereby acknowledging the liability of principal amount. It is further case of the plaintiff that the defendants are due and liable to pay a sum 19 O.S.No.8625/2010 of Rs.14,69,675/- being the principal amount with interest of Rs.2,58,032/, in total a sum of Rs.17,27,707/-being the principal and interest.
11. In order to prove Issue Nos.1 and 2, the Plaintiff's Company relied on the oral evidence of PW1 who is retired Accounts Officer of the Plaintiff's Company. Here the facts narrated in the chief examination of PW1 are nothing but repetition of the pleadings of the plaint. Therefore again it need not requires further explanation. In further chief examination of PW1 the documents produced by him are marked as Ex.P1 to P6.
12. Here in the cross-examination of PW1, he deposed that as per the understanding, the plaintiff had to deliver the watches to the defendants and in turn the defendants had to make payment to the Plaintiff's Company. Here Ex.P3 is the Re- distribution Stockiest Agreement dt.27.3.1995 held between Plaintiff's Company and defendant No.1 represented by defendant No.2.
20 O.S.No.8625/2010
13. Here defendant No.2 on behalf of defendant No.1 filed written statement and also adduced his oral evidence by way of filing his sworn affidavit in lieu of chief examination as DW1. In the cross-examination of DW1 he clearly admitted that the 1st defendant company is proprietorship company and he is the owner of 1st defendant company. At page 10 of his cross-examination, he admitted that the agreement held in between him with the plaintiff was reduced in writing as per Ex.P.3 on 27.3.1995. DW1 further admitted that after understanding the contents of the agreement then he has signed on the said agreement. This goes to show that the defendant No.2 was appointed as Re-distribution Stockiest on behalf of defendant No.1 for purchasing the watches, watch components and watch spare parts from the Plaintiff's Company and selling the same in the territories of North Cachar hills, Karimganj, hailkandi and Cachar in Assam District, entire Manipur, entire Mizoram and entire Tripura.
21 O.S.No.8625/2010
14. Here defendant No.2 is the main distributor of watches supplied by the Plaintiff's Company and in turn defendant No.2 supplies the watches to the retail distributors. Ex.P4 is the Renewed Re-distribution Stockiest Agreement dt.27.3.1995 for further period upto 31.3.2000. Further in the cross-examination of DW1 at page 11, he categorically admitted that Agreement as per Ex.P3 was further extended for further period by mutual understanding between plaintiff and defendant No.2 on the same terms and conditions which are mentioned in Ex.P.3. DW1 also admitted that the plaintiff's company would supply the RDS to him and then as stockiest, he would supply to the retailers. So here the defendant No.2 on behalf defendant No.1 was appointed as Re-distribution Stockiest and this fact is admitted in the cross- examination of DW1. So here as per the Agreement dt.27.3.1995 which is marked as Ex.P3 and Renewal Agreement as per Ex.P4, the Plaintiff's Company has to supply watches, watch components and 22 O.S.No.8625/2010 watch spare parts to the defendants, and in turn the defendants have to make payment in cash or through Demand Draft to the Plaintiff's Company. But here in the cross-examination of PW1 there are no any contradictions. Because at the time of dispatching of watches, invoices will be raised by the Plaintiff's Company and along with invoices, delivery challans will be sent and some times there will be endorsement by the receiver on the delivery challan about the receipt of the goods. The Statement of accounts of defendant No.1 company is marked as Ex.P5. Ex.P7 to P59 are the Invoices raised by the Plaintiff's Company for having supplied watches,watch components and watch spare parts to the defendant and the defendant in turn after receipt of said goods, put his Signature on the delivery challan, which would be sent along with the invoices raised. So from Ex.P7 to P59, it goes to show that the Plaintiff's Company always used to raise Invoices against the goods supplied to the defendants. 23 O.S.No.8625/2010
15. In the written statement filed by defendant No.2 on behalf of defendant No.1, he took specific contention that due to influx of cheap foreign and spurious watches, the sale decreased drastically, however, the Plaintiff's Company fixed arbitrary targets and sent watches without requisition and Indent and the unplanned sending of watches, beyond market requirements led to huge dumping of watches at defendant No.1's premises and the same resulted in serious business setback and inevitably the defendant was forced to close his business and before closing the business, the defendant through his letter dt.5.11.2005, requested the Plaintiff's Company to take back the unsold stocks of watches and to settle the accounts. But here there is no document produced by DW1 in his further chief examination. The only documents produced by him are Certified copy of letter of Resignation from dealership and Certified copy of letter addressed to the plaintiff dated 29.11.2007. In the cross- examination of DW1 he admitted that whatever the 24 O.S.No.8625/2010 materials supplied by the plaintiff for which the defendant has to maintain the account book regarding sale and purchase. It is also admitted by DW1 that it is the condition of the 1st defendant to inform to the plaintiff with regard to the sale and purchase and it is duty of DW1 to intimate to the plaintiffs regarding the market position or situation. But here DW1 deposed that he will produce the books of accounts kept by the 1st defendant till the closure of company i.e from 1995 till 2005. Here the defendant has not produced any letter correspondence with regard to intimation given to the Plaintiff's Company regarding decrease in demand in the sale of HMT watches in the market. This goes to show that the defendant falsely made allegation against the Plaintiff's Company that there was no demand for HMT watches supplied by the Plaintiff's Company in the market. DW1 also deposed that he used to get the receipts from the plaintiffs company when ever he paid the amount in cash. DW1 also admitted that the 1st defendant 25 O.S.No.8625/2010 company used to send the monthly statement with regard to the stock and sale. If really stock was remained in possession of the defendants due to decrease in demand of watches, then the defendants could have produced the Stock Register or Sale and Purchase Register. But here no any such document has been produced by the defendants. Therefore the admissions in the cross-examination of DW1 itself goes to show that even after the year 2000 the business of defendants continued with the Plaintiff's Company till 2007 as admitted in the cross- examination of DW1. Here in the cross-examination of DW1 at pare 14, he admitted that the Plaintiff's Company used to deliver material as per the terms and conditions of the Agreement dt.27.3.1995 which are marked as Ex.P3 and P4. But here the DW1 has not at all produced any document to show when actually he intimated to the Plaintiff's Company through correspondence regarding decrease in the demand, and stock remained unsold. Here in the cross-examination of DW1 he admitted that in 26 O.S.No.8625/2010 general any man can make valuation before he takes back the unsold materials. But here DW1 has admitted that they have not mentioned the name of the goods, quality and number before returning the unsold materials and no such document has been produced by DW1. But here from the cross- examination of DW1 itself goes to show that DW1 alleged that there is discrepancy in the account kept by the Plaintiff's Company, then what prevented DW1 to produce his own account pertaining to sale and purchase, and stock remained unsold. Even in the cross-examination of DW1 he failed to depose the total turnover for the year 2005-06 and 2007-08. But DW1 falsely deposed that there is a record to show the turnover. But no such record has been produced by DW1 in order to clarify that there is discrepancy in the account Kept by the Plaintiff's Company. So also DW1 admitted that he was maintaining the record with regard to payment made to the Plaintiff's Company, but no such record has been produced by DW1.
27 O.S.No.8625/2010
16. Here in the cross-examination of DW1 he admitted that he has instituted a suit in T.S.No.17/2008 at Silichar Court with regard to imposing the rate of interest. The said Judgment and Decree produced by PW1 is marked as Ex.P6. Ex.P6 is the certified copy of Judgment and Decree passed in T.S.No.17/2008. The said suit was filed for permanent injunction and it was dismissed. The DW1 has admitted in his cross-examination that he has not cleared the due amount to be payable to the plaintiff since there is discrepancy in the account kept by the plaintiff. This admission itself is sufficient that there is amount due by the defendants to the Plaintiff's Company.
17. In this case one witness who is Assistant General Manager of the Plaintiff's Company has adduced his oral evidence as PW2. In the cross- examination of PW2 there are no any admissions or contradictions to dispute the case of the plaintiff. Because PW2 has not admitted the suggestions suggested by the counsel for the defendants that 28 O.S.No.8625/2010 Ex.P7 to P59 are created documents. Therefore the oral evidence of PW2 also establishes the facts that the Plaintiff's Company by supplying the goods to the defendants, used to raise Invoices and accordingly the defendants received the goods supplied by the Plaintiff's Company by putting their signatures on the challans or directly on the Invoices.
18. Here the defendants in the written statement and in oral evidence DW1 denied and not admitted Ex.P7 to P59 by alleging that those documents are concocted documents. But in order to falsify this fact, DW1 has not produced any counter document to prove that Ex.P7 to P59 are the concocted documents by the plaintiff.
19. Here in the prayer column of the paint, the Plaintiff's Company has prayed for recovery of sum of Rs.17,27,707/- and also future interest at the rate of 24% p.a. from the date of filing of this suit till the date of realization. But in this case as per Ex.P3 and P4 there is no specific term with regard to 29 O.S.No.8625/2010 payment of the interest on the principal amount due from the defendants. However at para 10 of the sworn affidavit of PW1, it is stated that the plaintiff has restricted its claim on interest and has claimed interest from 14.12.2007 till the date of filing of the suit on the principal amount of Rs.14,69,675/-. No doubt as admitted in the cross-examination of DW1, it is a commercial transaction. However there is no specification with regard to the specific interest to be payable on the principal amount as mentioned in Ex.P3 and P4. Here the interest asked for by the plaintiff in the prayer column of the plaint is at 24% p.a. from the date of suit till the date of realization, which is exorbitant. Therefore the plaintiff is not entitled the rate of interest at 24% p.a. as prayed for in prayer column of the plaint. The Court has got discretionary power for imposing the rate of interest looking to the facts and circumstances of the case and admissions in the cross-examination of PW1 and DW1. No doubt the nature of the business entered in between the Plaintiff's Company and 30 O.S.No.8625/2010 defendants is commercial in nature. However the interest claimed at 24% p.a. is excess. Hence the Court imposes rate of interest at 8% p.a. Therefore the Plaintiff's Company is entitled to rate of interest at 8% p.a. on the principal amount of Rs.14,69,675/-. Accordingly Issue Nos.1 and 2 are answered partly in the Affirmative. ISSUE NO.3:
20. In the written statement filed by the defendants at para 8 they took contention that The renewed Agreement got expired on 31.3.2000 and the defendant No.1 firm was closed on 8.1.2005 and hence the claim of the plaintiff is barred by limitation. In the cross-examination of DW1 he deposed that even though as per Ex.P3, the term of the Agreement dt.27.3.1995 was only two years, after expiry of two years, with mutual understanding between plaintiff and defendants, the business was being carried out even after stipulated period as per the terms and conditions mentioned in Ex.P3 and P4. Therefore in the cross-examination of DW1, he 31 O.S.No.8625/2010 admitted that he has not received notice of termination of Agreement dt.27.3.1995 till 2007 from the plaintiff. Further as per Ex.P6, the suit filed by the present defendants i.e., T.S.No.17/2008 was disposed of on January 2014. This goes to show that the said business between the plaintiff and the defendants is being carried on by mutual understanding till 2007. Ex.D2 is the letter correspondence dt.29.11.2007 made by the Plaintiff's Company to the defendant regarding settlement of outstanding payment. Therefore the suit filed by the Plaintiff's Company in the year 2010 is within limitation. So here the Agreement dt.27.3.1995 entered in between the plaintiff and defendant was renewed again for two years as per Ex.P4 as per the terms and conditions mentioned in Ex.P3. Further the averments made in the plaint at para 15, goes to show that the last payment of Rs.5000/- was received by the plaintiffs from the defendants on 19.12.2007 as per Demand Draft No.513246333 dt.14.12.2007. Further there is no 32 O.S.No.8625/2010 unequivocal evidence by the side of the defendants in order to prove that the suit filed by the Plaintiff's Company is barred by limitation. Hence looking to the admissions in the cross-examination of DW1 and the document produced by the defendants i.e., Ex.D2 itself goes to show that the letter correspondence held in between plaintiff and defendants with regard to the business being carried on between the plaintiff and defendants till December. 2007. Hence the suit filed by the plaintiff is within limitation. Accordingly I answered Issue No.3 in the Negative.
ISSUE NO.4:
21. In the written statement filed by the defendants, it is their specific contention at para 8 that the stocks were delivered at Silchar and payments were made at Silchar, and hence the Courts at Silchar have jurisdiction to entertain this suit and this Court lacks jurisdiction. Here the plaintiff has produced Ex.P6 which is the Judgment and Decree passed in T.S.No.17/2008 filed by the 33 O.S.No.8625/2010 present defendants against the Plaintiff's Company before the Silchar Court, wherein Issue No.3 was framed with regard to territorial jurisdiction to try the suit. At para 5 of the Judgment, the Silchar Court observed that it was an Agreement arrived between the parties that only the Court at Bengaluru shall have jurisdiction to entertain any dispute arising out of the Agreement and the transactions thereunder. As per Ex.P3 the Court at Bengaluru shall have jurisdiction to entertain any dispute arising out of the Agreement and the transactions thereunder. This fact is also admitted in the cross- examination of defendants. Under these circumstances the suit filed by the Plaintiff's Company is within jurisdiction of this Court and this Court has got territorial jurisdiction for conducting trial of this case since Agreement as per Ex.P3 itself goes to show that only the Court at Bengaluru shall have jurisdiction to entertain any dispute arising out of the Agreement and the transactions thereunder. Under these circumstances the defendant utterly 34 O.S.No.8625/2010 failed to prove Issue No.4. Hence I answered Issue No.4 in the Negative.
ISSUE NO.5:
22. In view of the foregoing discussion and observation made in all the above Issues, this Court proceeds to pass the following:-
ORDER Suit filed by the plaintiff is hereby partly decreed for a sum of Rs.14,69,675/-(Rupees Fourteen Lakhs Sixty Nine Thousand Six Hundred and Seventy Five only) with costs.
Further decreeing that the plaintiff is entitled to recover the decretal amount of Rs.14,69,675/- with interest at the rate of 8% p.a. from the date of suit till the date of realization.
It is directed to the defendants to repay the entire decretal amount along with interest as per the above order, within six months from the date of this order.
Draw decree accordingly.
(Dictated to the Judgment Writer, typed by her, corrected, signed and then pronounced by me in the open Court on this 25th day of June 2019) (DEVANAND PUTTAPPA NAYAK) XXXVIII Addl. City Civil & Sessions Judge, Bangalore City.
35 O.S.No.8625/2010
ANNEXURE
List of witnesses examined on behalf of the
Plaintiff
P.W.1 Amaresh Chandra Bhutta
P.W.2 T.S.Sridhar Murthy
List of documents marked on behalf of the Plaintiff:
Ex.P1 Special Power of Attorney
Ex.P2 Authorization letter
Ex.P3 Original Agreement dt.27.3.1995
Ex.P4 Renewal of the Agreement
dt.13.1.1998
Ex.P5 Statement of accounts in respect of
defendant
Ex.P6 Certified copy of Judgment and
Decree in This itself goes to show
that No.17/2008
Ex.P7 to 59 Invoices
List of witnesses examined on behalf of the Defendants:
D.W.1 Santanu Das
List of documents marked on behalf of the
Defendants:
Ex.D.1 Certified copy of letter of
Resignation from dealership.
Ex.D2 Certified copy of letter addressed
to the plaintiff dated 29.11.2007.
(DEVANAND PUTTAPPA NAYAK) XXXVIII Addl. City Civil & Sessions Judge, Bangalore City.