Delhi District Court
Victor Trader vs Oxford University Press on 20 January, 2016
IN THE COURT OF SH. SURINDER S. RATHI: LD. ADDITIONAL DISTRICT
JUDGE03:PATIALA HOUSE COURT:
NEW DELHI DISTRICT
CS No. 101/2014
Victor Trader
Office: 37 D, College Row,
Kolkata700009
(though its sole proprietor)
Mr. Dipayan Sarkar. ......Plaintiff
VERSUS
Oxford University Press
YMCA Library Building,
Ist Floor, 1, Jai Singh Road,
New Delhi110001 .....Defendant
Date of Institution: 27.09.2012
Date of Final Arguments: 20.01.2016
Date of decision: 20.01.2016
JUDGMENT
The Case
1. This suit has been filed by plaintiff firm for recovery of Rs. 18 lacs with 24% interest per annum on account of damages for non supply of books despite placing of purchase order. This suit is opposed by the defendant on a plea that there is not privity of contract between them and the suit is without cause of action.
Appearance CS No.101/2014 Page 1 of 11
2. I have heard arguments of ld. Counsel of plaintiff Shri Rajdeep Banerjee and Ms. Joyeeta Banerjee and ld. Counsel for defendant Shri Sameer Tandon and have perused the case file.
Plaintiff's Case
3. The case of the plaintiff as per pleadings and evidence lead is that he is proprietor of M/s. Victor Trader and is engaged in the business of selling books . He had business relations with defendant since 2008. They had entered into a contract for supply of books on 15.11.2009 as Ex.PW1/1. Under the contract plaintiff started placing orders for purchase of books and a running account qua the same was maintained. The turnover between the two in the year 20082009 was around Rs.47,27,643/
4. In the month of November, 2009 defendant illegally decreased the plaintiff's credit limited to Rs.1.5 lacs which resulted into a negative impact on the turnover and the business reduced to Rs.27,62,166/ for the year 20092010. In May 2010 even though plaintiff placed three consecutive orders Ex.PW1/4 for purchase of books, the books were not supplied despite the fact that there was no unpaid debit balance. Defendant did not resume supply of books despite request which caused huge loss of business to the plaintiff. Plaintiff issued several request letters including email dated 15.06.2010 and letter dated 16.02.2011 Ex.PW1/5. He found that the supply of books has been stopped as per the instructions of the defendant's Head Office but no specific reason was provided. However, he was verbally told that on account of a CS No.101/2014 Page 2 of 11 dispute between defendant's company and one M/s. Nirmal Macro Line, a partnership concern of plaintiff's father, defendant had stopped supplying books to the plaintiff.
5. According to the plaintiff this is breach of the contract entered between two sides and that his Rs.76,451/ too have been withheld by the defendant apart from retaining his pre signed blank cheques. In this backdrop plaintiff filed the suit for seeking damages of Rs.18 lacs with interest. Defendant's Case
6. This suit was contested by the defendant company by filing a detailed Written Statement. It was pleaded that there is no privity of contract between the parties as the defendant used to supply goods to the plaintiff on credit upon receipt of orders subject to availability. As per them there was no mandate or compulsion on them to supply the books. According to them they have 7,000 retailers selling their books and defendant reserves the right and prerogative to supply or not to supply books to such retailers. Also according to them plaintiff used to sell books of several publishers as mentioned by them in the plaint and as such it is not proper for the plaintiff to plead and seek damage from the defendant for reduction of his business.
7. It is pleaded case of the defendant that no liability can be fastened upon it for claimed losses suffered by plaintiff. They denied that there was any conclusive or binding agreement between them as claimed. The figure of the turnover claimed in the plaint was also denied. It is also denied that the plaintiff was given a higher credit facility or that was subsequently reduced to CS No.101/2014 Page 3 of 11 Rs.1.5 lacs as claimed. It is pleaded that the allegations levelled against defendant are vague and they denied holding any money payable to the plaintiff. They prayed for dismissal of the suit as there is nothing on record to justify plaintiff's claim of Rs.18 lacs damages.
8. Upon completion of pleadings issues were identified on 12.04.2013 ISSUES
1. Whether there has been an illegal breach of contract by the defendant?
2. Whether the plaintiff is entitled to any damages on account of the alleged breach?
3. Whether the plaintiff is entitled to recovery of their dues?
4. Whether this Court has territorial jurisdiction to entertain and try the instant suit?
5. Whether the plaintiff's suit is not maintainable?
6. Relief.
9. To prove its case, plaintiff examined his proprietor Shri Dipayan Sarkar as PW1 while defendant examined Shri Amit Kumar Marwa, Manager Commercial as DW1.
CS No.101/2014 Page 4 of 11
10. Plaintiff has exhibited the following documents S.No. No. of Exhibits Details of the documents 1 Ex.PW1/1 Contract dated 15.11.2009 2 Ex.PW1/2 Copy of letter dated 19.06.2009 3 Ex.PW1/3 Certificate dated 04.03.2010 4 Ex.PW1/4 Copies of order no.10, 11 and 12 Ex.PW1/5 Copy of email dated 15.06.2010 and letter dated 5 16.02.2011 6 Ex.PW1/6 Counterfoil of the cheque book 7 Ex.PW1/7 Copy of letter dated 18.05.2010 8 Ex.PW1/8 Statement of account
11. Having heard both the sides at length, now I shall decide the individual issues identified in this case.
ISSUE No. 4
12. As far as issue of territorial jurisdiction is concerned a specific objection in this regard was taken in the pleadings by the defendant that every transaction which the plaintiff had with the defendant was executed at Kolkatta. All the documents purportedly issued by the defendant to the plaintiff which are placed, relied and proved and were issued from Kolkata on record carries only the Kolkatta address of the defendant. Upon being specifically asked ld. Counsel for plaintiff concedes that he has not placed or proved on record any document to show that defendant Oxford University Press has CS No.101/2014 Page 5 of 11 Head Office in Delhi. Furthermore, perusal of documents Ex.PW1/1 and PW1/3 filed and proved by the plaintiff on record also show that Managing Director of defendant Shri Manzar Khan sits in Kolkatta in so far all such letter pads contain this print on its top.
13. Furthermore, in his crossexamination plaintiff has conceded that his business is situated in Kolkatta, all the supplies were made by defendant to him in Kolkatta, payments were made by him to defendant in Kolkatta and no transaction and dealings were ever held in Delhi office of the defendant. He conceded that even the document Ex,.PW1/1 originated from Kolkatta and was handed over to him there itself.
14. There is absolutely nothing on record to show that any part of cause of action ever arose in Delhi or that in terms of Section 20 CPC explanation, the defendant have a Principal office in Delhi. In view of this, this issue is answered against the plaintiff and in favour of the defendant.
15. In terms of Order 20 Rule 5 CPC this Court is bound to give its findings on all the remaining issues even though it is herein above concluded that courts in Delhi do not have jurisdiction to try this suit and the appropriate court was District Courts in Kolkatta.
ISSUE No. 1, 2, 3, 5 and 6
16. As discussed supra the only relationship which plaintiff had with defendant Oxford University Press is that he was one of the several 1000s retailers who were selling books published by defendant. The shere fact that CS No.101/2014 Page 6 of 11 the defendant took a decision not to supply books to the plaintiff for sale in Kolkata does not ipso facto in law that the plaintiff has suffered damages to the tune of Rs. 18 lacs as pleaded. The document Ex. PW1/1 which is per se a term and condition letter is being sought to be projected as a binding contract. Admittedly, this document does not contain any locking period or any clause which would entitle the plaintiff retailer to seek any quantified/liquidated damages on any count. Either in the plaint or in the deposition filed through affidavit or in crossexamination or the annexed document, plaintiff has not been able to make out the case so as to justify incurring any loss at the hands of the defendant. Not only the claim Rs. 18 lacs loss has not been quantified in terms of breakup and justifications but in his crossexamination as well the plaintiff conceded that he has not filed any proof to substantiate the loss sought to be recovered by him from the defendant.
17. Not only in his plaint in para 2 but also in his crossexamination plaintiff pleads and concedes that he has been retailing books of not only defendant but also of several other publishers. In this factual scenario simply because plaintiff's business started dwindling and his turnover got reduced, he cannot shift the blame thereof upon the defendant.
18. It goes without saying that in the absence of any binding contract or locking period of appointment of dealership, defendant is well within its right to not to supply their publication material to the plaintiff for retail sale. Plaintiff has failed to show breach of any contractual on tortuous liability which CS No.101/2014 Page 7 of 11 defendant can be said to be having towards plaintiff.
19. This suit appears to be ill conceived, frivolous, based on concocted facts. The story put forth by the plaintiff that defendant had business dispute with the plaintiff's father firm are nothing but a lame excuse concocted to create a cause of action when there was none. Even that is not substantiated on record.
20. This suit is classic example of misuse of judicial forum.
21. These issues are accordingly answered in favour of the defendant and against the plaintiff.
In Subrata Roy Sahara v. Union of India, (2014) 8 SCC 470, J.S. Khehar, J. observed that the Indian judicial system is grossly afflicted with frivolous litigation and ways and means need to be evolved to deter litigants from their compulsive obsession towards senseless and illconsidered claims. The Supreme Court, discussed the menace of frivolous litigation. Relevant portions of the said judgment are as under:
"191. The Indian judicial system is grossly afflicted, with frivolous litigation. Ways and means need to be evolved, to deter litigants from their compulsive obsession, towards senseless and illconsidered claims. One needs to keep in mind, that in the process of litigation, there is an innocent sufferer on the other side, of every irresponsible and senseless claim. He suffers long drawn anxious periods of nervousness and restlessness, whilst the litigation is pending, without any fault on his part. He pays for the litigation, from out of his savings (or out of his borrowings), CS No.101/2014 Page 8 of 11 worrying that the other side may trick him into defeat, for no fault of his. He spends invaluable time briefing counsel and preparing them for his claim. Time which he should have spent at work, or with his family, is lost, for no fault of his. Should a litigant not be compensated for, what he has lost, for no fault?...
194. Does the concerned litigant realize, that the litigant on the other side has had to defend himself, from Court to Court, and has had to incur expenses towards such defence? And there are some litigants who continue to pursue senseless and illconsidered claims, to somehow or the other, defeat the process of law. ..."
In case titled Salem Advocate Bar Association Vs. Union of India, (2005) 6 SCC 344, Hon'ble Supreme Court observed:
Judicial notice can be taken of the fact that many unscrupulous parties take advantage of the fact that either the costs are not awarded or nominal costs are awarded on the unsuccessful party. Unfortunately, it has become a practice to direct parties to bear their own costs. In large number of cases, such an order is passed despite Section 35(2) of the Code. Such a practice also encourages filing of frivolous suits. It also leads to taking up of frivolous defences. Further wherever costs are awarded, ordinarily the same are not realistic and are nominal. When Section 35(2) provides for cost to follow the event, it is implicit that the costs have to be those which are reasonably incurred by a successful party except in those cases where the Court in its discretion may direct otherwise by recording reasons thereof.....Awarding of costs must be treated CS No.101/2014 Page 9 of 11 generally as mandatory in as much as it is the liberal attitude if the Courts in not awarding costs that has led to frivolous points being raised in appeals or frivolous appeals being filed in the courts.
In case titled S.P.Chengalvaraya Naidu (Dead) by LRs Vs. Jaganath (Dead) LRs and ors. AIR 1984 SC 853, Hon'ble Supreme Court observed :
'The Courts of Law are meant for imparting justice between the parties. One who comes to the court , must come with clean hands. We are constrained to say that more often then not, process of the court is being abused . Property grabbers taxevaders, bankloan dodgers and other unscrupulous persons from all walks of life find the court process a convenient level to retain the illegal gains indefinitely. We have no hesitation that a person whose case is based on falsehood has no right to approach the court. He can be summarily thrown out at any stage of litigation."
In case titled "C.B. Aggarwal Vs. P. Krishna Kapoor", AIR 1995 Delhi 154 Hon'ble High Court observed, "It is true that in a civilised society, legal process is the machinery for keeping order and doing justice. It can be used properly or it can be abused. It is used properly when it is invoked for vindication for men's right an enforcement of just claims. It is abused when it is diverted from its true course so as to serve extortion or oppression; or to exert pressure so as to achieve an improper end."
21. In view of the above these judgments of Hon'ble Supreme Court plaintiff is burdened with cost of Rs.75,000/ for filing this frivolous suit. The cost to be CS No.101/2014 Page 10 of 11 deposited in the name of defendant within four weeks. Ld. Counsel for the defendant that his client does not need money and this money be deposited with NDDLSA. Ordered accordingly. Copy of order be sent to Ld. Secretary NDDLSA for compliance.
Petition is disposed of accordingly.
Decree sheet be prepared accordingly.
File be consigned to record room.
Announced in an open Court On 20th day of January, 2016.
(Surinder S. Rathi) ADJ03/PHC/NEW DELHI 20.01.2016 CS No.101/2014 Page 11 of 11