Document Fragment View

Matching Fragments

31. If the evidence adduced by PW 1 is looked into, it is seen that, a totally different case from that pleaded in the Plaint, is sought to be set up in the evidence of the Plaintiff. At paragraph 8 of the affidavit evidence, it is stated that the defendant had agreed to supply the branded garments at discount of 89.25% percent and if defendant had actually supplied the said material, the plaintiff would have earned profit of 37.28% i.e. Rs. 5,11,17,318/= and at paragraph 10 of the affidavit evidence of PW 1, it is stated that though the actual loss suffered by the plaintiff is Rs. 5,11,17,318/= plaintiff has restricted her claim to Rs. 2.70 crores. In support of this case set up in the evidence, the plaintiff has produced and got marked Ex. P6, which is styled as self-assessment of loss of profit due to non-performing of obligations by the defendant. In Ex. P6, it is stated that, defendant had agreed to supply 5,66,772 pieces of garments and average gross CT 1390_Com.OS.589-2022_Judgment.doc KABC170011542022 profit would have been 37.78% and loss of profit as per the above gross profit margin would be Rs. 5,11,17,318. It is on the basis of this statement at Ex. P6 that, in the affidavit evidence of PWI, it is stated that, plaintiff has incurred loss of Rs. 5.11 crores but restricted the claim to Rs. 2.70 crores. Thereby, it is clear that, in respect of the damages suffered by the plaintiff, plaintiff has set up contrary cases. In the Plaint, it is pleaded that, plaintiff suffered loss because the shops of the plaintiff was left with low stock due to non-supply of garments by the defendant as a result of which business decreased. To prove this pleading, it was necessary for the plaintiff to produce details of the turnover of the plaintiff during the preceding years and during the year 2021-22 to show that there was a decrease in business of the plaintiff due to non-supply of stock by the defendant. However, no such material has been produced by the plaintiff and therefore, this head of damages pleaded in the plaint has not been proved in the trial. The other head of damages claimed is regarding loss suffered by the plaintiff due to taking of loans to mobilize funds for paying the defendant, but the purpose of taking loans was not served because the defendant CT 1390_Com.OS.589-2022_Judgment.doc KABC170011542022 unilaterally terminated the contract. In this regard, no doubt some material is produced by the plaintiff. Ex. P5 is email by Axis Finance in respect of sanctioning loan of Rs 30 lakhs on 9-07-2021. However, Learned Counsel for Defendant was quick to point out that, the said loan is sanctioned to Venkateshwara Garments whereas plaintiff claims to be proprietor of Prem Textiles. For this, the reply of the Learned Counsel for the plaintiff was that, at paragraph 2 of the Plaint, it is pleaded that Venkateshwara garments is sister concern of the plaintiff. No material is produced by the plaintiff to show that, she is the proprietor of Venkateshwara garments as well as Prem textiles. However, in my view, even if it is conceded that Venkateshwara Garments is sister concern of the Plaintiff, it will not take the Plaintiff's case any further, because, even if it is accepted that Plaintiff availed the loan at Ex. P5 of Rs. 30 lakhs for mobilizing funds for the purpose of transaction with the defendant and the said purpose was not served when defendant unilaterally cancelled the agreement, the fact remains that plaintiff has not produced any material to show what is the damage or loss suffered by the plaintiff as a result of taking of the said loan.