Final Order 1

Order Details: Ex-parte Judgement
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MHCC010048912018 Presented on : 13-04-2018
Registered on : 12-06-2019
Decided on : 28-04-2022
Duration : Y M D
04 00 15
BEFORE THE CITY CIVIL COURT, MUMBAI
( Court No.14 )
(Presided Over by Sunil U. Hake)
COMMERCIAL SUIT NO.385 OF 2021
SUMMARY SUIT NO.598 OF 2019
Ex.07
Chetana Publications Pvt Ltd Company,
Having Office at 263C, Khatauwadi,
Goregaonkar Lane,
Behind Central Cinema,
Girgaon, Mumbai 04. ..Plaintiff
VERSUS
M/s. Sunitha Infovision Ltd
Plot No. 81,
Amar Jyothi Colony,
New Bownpally,
Secunderabad,
Pin Code500 011 ..Defendant
______________________________________________________
Ld. Advocate Madhuri Lakhani for plaintiff.
DefendantEx parte.
______________________________________________________
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JUDGMENT
(28 th April, 2022)
Summary Suit is filed for recovery of an amount of
Rs.9,59,178/ along with future interest.
Briefly stated, plaintiff's case, is as under:
2. Plaintiff is a leading educational book publisher.
Defendant entered into a marketing agreement dated 01/11/2015
with plaintiff. As per terms of the said agreement, defendant was
required to create a sales network for expanding plaintiff's
existing market in the States of Andhra Pradesh and Telangana.
Defendant was required to develop new market to promote
plaintiff's products by canvassing sales promotion strategies and
by other modes.
3. As per the terms of the agreement, defendant was
required to achieve minimum target business of Rs. Four crores.
Terms of the agreement further provides that if actual net sales
trend does not show planned growth, parties should review the
strategies to ensure that actual sales does not come below Rs.3
crores. Thus, as per terms of the agreement, it was the
responsibility of defendant to achieve minimum annual net
business of Rs. 4 Crores. In pursuance to the agreement, plaintiff
paid an amount of Rs.8.75 lacs as an advance to boost the
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momentum of venture. Said amount was to be adjusted towards
final annual commission payable to defendant. Plaintiff also paid
an amount of Rs.50,000/ for canvassing. However, defendant
failed to achieve the target as per the agreement, therefore,
plaintiff is entitled to get back the amount paid to defendant.
Plaintiff is also entitled for an amount of Rs.40,000/ towards the
demurrage charges. Plaintiff sent notice through advocate on
13/01/2017 asking defendant to pay the outstanding amount of
Rs. 9,59,178/. Inspite of service of notice, defendant failed to
pay the outstanding amount. Hence, this suit.
4. Inspite of service of summons(Service Affidavit Ex.4),
defendant failed to appear before the Court. Therefore, suit
proceeded without appearance of defendant by order dated
24/03/2022.
5. Heard Ld. advocate for plaintiff.
6. Following points arise for determination, findings
thereon for the reasons to follow are as under:
Sr.No. Points Findings
1. Does the plaintiff prove that an
amount of Rs. 9,59,178/ is
outstanding against defendant?
Proved
2. What order? Suit is decreed as
per final order.
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REASONS
Point No.1
7. In order to substantiate the claim, plaintiff tendered
claim affidavit at Ex.5. PW1, Shaji John has reiterated all the
facts pleaded in the plaint. He testifies that defendant entered
into a marketing agreement dated 01/11/2015 with plaintiff. As
per terms of the said agreement, defendant was required to create
a sales network for expanding plaintiff's existing market in the
States of Andhra Pradesh and Telangana. Defendant was
required to develop a new market to promote plaintiff's clients
product by canvassing sales promotion strategies and by other
modes. As per the terms of the agreement, defendant was
required to achieve minimum target business of Rs. Four crores.
PW1 Shaji further testifies that in pursuance to the agreement,
plaintiff paid an amount of Rs.8.75 lacs as an advance to boost
the momentum of venture. Said amount was to be adjusted
towards final annual commission payable to defendant. Plaintiff
also paid an amount of Rs.50,000/ for canvassing. However,
defendant failed to achieve the target as per the agreement,
therefore, plaintiff is entitled to get back the amount paid to
defendant alongwith an amount of Rs.40,000/ towards the
demurrage charges. Plaintiff relied upon agreement dated
01/11/2015. Original agreement is filed on record. As per clause
4.2.2 of the agreement dated 01/11/2015, plaintiff paid an
amount of Rs. 1.75 lacs per month towards advance commission
for five months. Plaintiff also paid an amount of Rs.50,000/ for
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canvassing and plaintiff incurred Rs.40,000/ for demurrage.
Defendant failed to achieve the target set out in the agreement
dated 01/11/2015. Amount paid by plaintiff was required to be
adjusted towards the final annual commission payable to
defendant. Defendant failed to achieve the target, therefore,
plaintiff is entitled to get back the amount paid to defendant.
Plaintiff's claim is well supported by the documents filed on
record. Thus, plaintiff has proved that an amount of
Rs.9,59,178/ is outstanding against defendant. Point No.1 is
answered accordingly.
8. Plaintiff claimed interest at the rate of 18% p.a.
Taking into consideration the nature of transaction between the
parties, plaintiff is entitled to the interest at the rate of 18% p.a.
In the result, following order:
ORDER
1. Commercial suit is decreed with costs.
2. Defendant shall pay an amount of Rs.9,59,178/
(Rupees Nine Lacs Fifty Nine Thousand One Hundred
and Seventy Eight only) alongwith interest @ 18% p.a.
to plaintiff from the date of the suit till it's realization
within two months.
3. Court fees be refunded as per (E) Rules framed
under Section 11(2) of the Bombay City Civil Court Act,
1948, for the refund of Institution Fee.
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4. Decree thus follow.
28/04/2022 SUNIL U.HAKE
JUDGE,
CITY CIVIL COURT,
GR.MUMBAI.
Dictated on : 28/04/2022
Transcribed on : 28/04/2022
Signed on : 28/04/2022
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER”.
30/04/22 at 04.40 pm.
Mrs.Tanushree C.Kamble
Name of the Judge HHJ SHRI SU Hake
Date of Pronouncement of
judgment/order 28/04/22
Judgment and order signed by P.O. 28/04/22
Judgment/order uploaded on 30/04/22
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