Interim Order 1

Order Details: Order below exhibit
Pdf Text: Comm.Suit No. 259/19. 1 Order below Exh.6.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
ORDER BELOW EXHIBIT 6
(APPLICATION FOR SUMMARY JUDGMENT NO. 3 OF 2020)
IN
COMMERCIAL SUIT NO. 259 OF 2019
Vijay Kumar Singhal, Proprietor of )
Computer Stationery, having office at )
7, Nav Bharat House, 2nd Floor, 6.8, )
Burjorji Bharucha Marg, Kala Ghoda, )
Fort, Mumbai – 400001 )...Plaintiff
Versus
Hewlett – Packard India Sales Pvt. Ltd. )
a Company incorporated under the )
Companies Act, 1956 having its registered )
office at 24, Salarpuria Arena, Hosur Main )
Road, Adugodi, Bangalore, )
Karnataka – 560030 )...Defendant
CORAM : HIS HONOUR JUDGE SHRI R.R.BHAGWAT.
(C.R.NO.31).
DATE : 12th OCTOBER, 2021.
Mr. Kunal Parekh, Advocate for the plaintiff.
Mr. Dhiraj Mehtre and Mr. Satyasrikant Vutha, Advocates for the
defendant.
ORDER
1. This is an application for summary judgment under Order
XIIIA Rule 1 of the CPC filed by the defendant. Perused application,
supporting affidavit (Exh.4), affidavit in reply (Exh.5), the plaint,
written statement, documents on record, written submissions of both
sides and citations. Heard learned counsel Mr. Dhiraj Mehtre and Mr.
Satyasrikant Vutha for the defendant. Heard learned counsel Mr. Kunal
Parekh for the plaintiff.
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Comm.Suit No. 259/19. 2 Order below Exh.6.
2. The defendant has contended in supporting affidavit that
no cause of action arose for filing the suit because the Partner
Agreement executed on 07/07/2010 stood terminated as per letter of
the plaintiff dated 13/06/2016. H.P.Partner Portal was activated only
for the purpose of the most valued customer memorandum of
understanding relating to the Department of Atomic Energy (for short
'DAE'). The plaintiff was entitled under the particular account of DAE.
The plaintiff will not be entitled to any other right as a H.P. partner.
The plaintiff acknowledged in the letter that portal will be reactivated
only for the purpose of lodging claims pertaining to DAE. It shows that
the plaintiff accepted the termination of Partnership Agreement without
any protest or demur. Therefore, no cause of action has arisen for filing
the suit.
3. The defendant further contended that the plaintiff claimed
approximate amount of Rs.25,00,000/. The defendant has actually
made payment of Rs.28,31,135/ towards dues payable to the plaintiff.
By giving details of the payment, the defendant claimed that the
plaintiff made baseless and vexatious claim. In addition to it, the
defendant raised the issue of jurisdiction by stating that the partner
agreement was last executed in Bangalore at the Registered Office of
the defendant and therefore, this Court has no territorial jurisdiction to
try and entertain the present suit. Even if office of the defendant
situated at Goregaon, is taken as a place of transaction, City Civil Court,
Dindoshi will have the territorial jurisdiction.
4. The plaintiff has sought declaratory reliefs which has to be
sought within three years from the date of cause of action. Partnership
Agreement is terminated on 13/06/2016. Fact of termination is said to
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Comm.Suit No. 259/19. 3 Order below Exh.6.
have been communicated to the plaintiff on 31/08/2016. The suit is
filed on 19/12/2019. Therefore, the plaintiff should have filed the suit
within three years from 31/08/2016. The plaintiff took advantage of
bonafide steps of the defendant while posing him as an authorized tier
2 partner. The suit is not filed within limitation and it suffers from a
grave and material defects. The defendant proceeded to explain his
own version from para 8a to 8v of the supporting affidavit. He has
contended that goods of the defendant have been supplied through the
plaintiff on account of a system error. The plaintiff took advantage of
bonafide measures taken by the defendant to mislead the members of
the public. The plaintiff has not approached the Court with clean
hands.
5. As the partnership agreement is terminated, it is null and
void. The plaintiff cannot specifically enforce the partnership
agreement as per Section 14 of the Specific Relief Act, 1963. Effect of
declaration regarding subsistence of the partner agreement would be
revival of the same and the plaintiff would continue to be tier 2
distributor of the defendant. Therefore, grant of such relief would
effectively mean specific performance of the partner agreement. It
would be foul play in respect of Section 14 of the Specific Relief Act,
1963. The plaintiff has deliberately suppressed material facts.
Continuance of the present suit is abuse of process of law. There exists
scant chance of success in the case of the commercial suit. By pleading
all these things, the defendant prayed for summary judgment in the
matter by dismissing the suit.
6. The plaintiff filed affidavit in reply (Exh.5) in which he has
stated that the last partner agreement was executed on 07/07/2010
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Comm.Suit No. 259/19. 4 Order below Exh.6.
and his long association with the defendant as a authorized channel
partner was continued. He used to work as a partner for the purchase,
resale and sublicense of the defendant's products and support. He
accepted Partner Internal Purchase Programme (PIPP). It is case of the
plaintiff that he addressed email to the defendant's representative on
30/08/2016 informing him that he was not able to login the partner
portal – 01750113 access. The defendant's representative Pawan Shetty
informed him by email dated 31/08/2016 that the partner status was
inactive. Another representative of the defendant namely Amit
Mukhopadhyay emailed to the plaintiff on 31/08/2016 and asked him
to wait. After giving details of all these emails conversation, the
plaintiff pleaded that he came to know for the first time through email
dated 31/08/2016 that the partner agreement was terminated as per
letter dated 13/06/2016. He never received the letter dated
13/06/2016. He further pointed out subsequent emails of the
defendant talking about processing the programme payout. With the
help of these emails issued by representatives of the defendant after
31/08/2016, he stated about subsistence of the partner agreement.
7. He further contended that by taking advantage of bank
guarantee of Rs.26,95,000/, the defendant compelled him to write a
letter dated 23/11/2016 for reactivation of the partner portal for
claiming under most valuable customer programme deal. He also
pleaded about the defendant continued the channel partner agreement
W 1231 by executing MOU on 23/02/2017 for supply of toner /
cartridges with Bharat Heavy Electricals Limited. The plaintiff relied
upon legal notice dated 04/04/2017 and other email communication.
He further clarified his claim of recovery of Rs.25,00,000/ towards
channel programme claims and Rs.5,00,000/ towards most valuable
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Comm.Suit No. 259/19. 5 Order below Exh.6.
customer programme claims. According to him, the defendants did not
give any proof regarding payment of Rs.28,31,135/. The defendants
paid Rs.8,81,172/ to the plaintiff in 2017, but he has not explained for
what purpose the said amount is paid. It is grievance of the plaintiff
that the defendant did not make payment for the work done by him
under the channel partner programme till 31/03/2017.
8. The plaintiff further contended that the defendant made
payment of Rs.8,81,172/ in his bank account in the Indian Overseas
Bank, Fort Branch, Mumbai and this transaction confers jurisdiction on
this Court to try and dispose off the suit. Similarly, part payment made
in June, 2017 shows that the suit is filed within limitation and it is not
barred by limitation. Question of limitation is a mixed question of fact
and law. Therefore, the suit ought not to be dismissed in a summary
manner. The defendant did not honour the cheque issued by him
towards his overwriting commission dues. As the defendant assured to
execute a fresh channel partner agreement with him after sometime, he
did not take action for recovery of his unpaid ORC dues and he
dishonoured the cheque. The plaintiff further stated about the
witnesses to whom he wants to examine in the matter in para 15 of
affidavit in reply. The plaintiff staked his claim for recovery of dues for
the work done till 31/12/2016 and prayed for dismissal of application
for summary judgment.
9. Learned counsel Shri Dhiraj Mehtre for the defendant
reiterated contents in application for summary judgment (Exh.6) and
argued that the defendant signed partner agreement on 05/10/2020 at
Bangalore and therefore, this Court does not have jurisdiction to decide
the suit. He further submitted that the access to purchase orders was
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Comm.Suit No. 259/19. 6 Order below Exh.6.
denied to the plaintiff. The plaintiff received termination notice dated
13/06/2016 on 31/08/2016. The suit is filed on 19/12/2019 after
expiry of three years from the date of termination of the agreement.
The suit is not within limitation. He further referred Section 14(c) of
the Specific Relief Act, 1963 and submitted that the contract in
determinable nature cannot be specifically enforced. In support of his
submission, he relied upon citations of Rajasthan Breweries Limited
V/s. The Stroh Brewery Company – 2000 SCC OnLine Del 481 in
which Hon'ble Delhi High Court observed that all revocable deeds and
voidable contracts fall within determinable contracts and specific
performance cannot be granted of a terminable contract. He also relied
upon para 25 in the case of Gopi Nath Sen and others V/s.
Bahadurmul Dulichand and others 1978 SCC OnLine Cal 270 and
submitted that averment of readiness and willingness are missing and
specific performance is not sought. Therefore, damages cannot be
granted. He further relied upon the case of privy council Ardeshir
Mama V/s. Flora Sassoon Vol. LII Bombay Series 597 and
submitted that damages can be awarded in a suit in which specific
performance had granted. According to him, no damages can be
granted if specific performance has become impossible.
10. The plaintiff has not disclosed receipt of Rs.28,00,000/ in
the plaint and he has suppressed the material facts. The plaintiff did
not approach the Court with clean hands. All payments are made to the
plaintiff by the defendant. There is nothing to be paid to the plaintiff.
The plaintiff did not disclose receipt of the amount in consonance with
Order XI Rule 1 of the CPC. Learned counsel Shri Dhiraj Mehtre
submitted that the plaintiff has no really prospect of succeeding on the
claim as per Order XIIIA Rule 3(a) of the CPC and he prayed that
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Comm.Suit No. 259/19. 7 Order below Exh.6.
application (Exh.6) may be allowed and the suit may be dismissed.
11. On the contrary, learned counsel Shri Kunal Parekh for the
plaintiff submitted that the plaintiff has sought reliefs of declaration and
recovery of money in the plaint. Termination letter is received for the
first time on 31/08/2016. He referred various email communications
between the parties and submitted that outstanding amount is admitted
by the defendant. He also referred partnership agreement dated
07/07/2010. Then he pointed out email dated 31/08/2016 in which
the defendant admitted dues for the month of JuneJuly, 2016. Similar
admission is given in other email communication dated 23/11/2016.
The defendant has affirmed the plaintiff to be the partner in January,
2017 as per renewal list dated 05/01/2017. He also referred relevant
documents in consonance with his submission. By pointing out these
aspects, he submitted that the defendant continued to treat the plaintiff
as a partner even after 31/08/2016 and therefore, the partner
agreement dated 07/07/2010 is still subsisting. He further submitted
that the defendant has submitted to the jurisdiction of this Court by
filing application for summary judgment and now, he cannot raise the
issue of jurisdiction. According to him, last payment is made by the
defendant in 2017. The plaintiff has claimed outstanding amount for
the work done by him under the channel partner agreement till
31/01/2017. Limitation is a mixed question of law and facts. As there
are several triable issues involved in the matter, the suit cannot be
dismissed at the threshold. He prayed for rejection of application
(Exh.6).
12. After considering submissions of both sides and material on
record, it appears that the plaintiff was appointed as an authorized
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Comm.Suit No. 259/19. 8 Order below Exh.6.
channel partner of the defendant as per Partner Agreement dated
07/07/2010. The Partner Agreement contains term and termination
clauses at sr.no.1.15(a) to 1.15(g). Clause 1.15(b) states about right of
either party to terminate the agreement without cause at any time upon
30 days written notice which is considered given upon receipt of notice.
If this clause is considered in the light of material on record, it is explicit
that the defendant claimed to have terminated the Partner Agreement
by virtue of notice dated 13/06/2016. The plaintiff has specifically
claimed that he received notice for the first time on 31/08/2016
through the email from the defendant. The defendant has not placed
on record any material to demonstrate service of written notice dated
13/06/2016 upon the plaintiff at earlier point of time before
31/08/2016. If service of termination notice is considered to have
effected on 31/08/2016, then the Partner Agreement can be treated to
have terminated after lapse of 30 days from 31/08/2016. In short,
there is paucity of material to treat the Partner Agreement to have come
to an end either in June, 2016 or July, 2016. The plaintiff has referred
various email conversation between the parties to demonstrate that the
plaintiff was treated as an authorized channel partner by the defendant
after 13/06/2016. In addition to it, amount of Rs.8,81,172/ is agreed
to be paid to the plaintiff for the work done by him till 30/09/2016.
Considering all these aspects, both sides can lead evidence to
substantiate their respective contentions with regard to subsistence or
termination of the Partner Agreement dated 07/07/2010.
13. The Partner Agreement contains clause 1.15(f) stating that
obligations concerning outstanding purchase orders, invoices,
marketing funds, promotional allowances, payments etc. will survive
termination of this agreement. Therefore, the plaintiff has justified in
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Comm.Suit No. 259/19. 9 Order below Exh.6.
filing the suit for legal dues payable to him by the defendant even after
alleged termination of the Partner Agreement. It is pertinent to note
that the plaintiff has sought declaration regarding subsistence of the
Partner Agreement and recovery of money towards channel programme
claims and towards most valued customer programme. The plaintiff has
not sought the relief of specific performance of the contract and he has
not claimed damages for breach of the contract. The plaintiff has kept
his claim restricted to outstanding amount with regard to the work
done by him. This is the suit for declaration and recovery of money.
Under such circumstances, Section 14(1)(c) of the Specific Relief Act,
1963 does not come into play. The defendant has wrongly applied this
provision of law while seeking the relief of dismissal of the suit at the
beginning of the trial.
14. The defendant has contended that amount of
Rs.28,31,135/ has been paid to the plaintiff during 19/12/2016 to
21/03/2017 and it is full and final settlement of the dues to the
plaintiff. On the contrary, access to the portal of the defendant was
denied to the plaintiff on 30/08/2016. It means that the plaintiff had
continued to work as a partner of the defendant till 30/08/2016. In
such circumstances, the plaintiff can explain maintainability of his
money claim to the Court by leading evidence.
15. Though the defendant has claimed to have terminated the
Partner Agreement in June, 2016 and thereafter on 31/08/2016, the
plaintiff has relied upon various emails of the defendant as per which
the Partner Agreement was continued in respect of its valued customers
like Department of Atomic Energy. In such circumstances, the suit
cannot be treated to have been barred by limitation by assuming
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Comm.Suit No. 259/19. 10 Order below Exh.6.
termination of the Partner Agreement as on 31/08/2016. In the present
case, limitation is the mixed question of law and facts and it cannot be
decided without extending an opportunity of adducing evidence to both
sides.
16. Similarly, the issue of jurisdiction can be dealt with
independently. Lack of jurisdiction implies that the suit should be
returned to the plaintiff for presentation to the competent court as per
Order VII Rule 10 and 10A of the CPC. Criteria laid down in Order
XIIIA Rule 3(a) of the Amended CPC as per Schedule to the
Commercial Courts Act, 2015 speaks about absence of real prospect of
succeeding in claim for giving summary judgment at the instance of the
defendant. Material on record does not demonstrate such contingency.
If Order XIIIA Rule 3 of the CPC is applied in the contingency of lack of
jurisdiction to the Court, it would result into throwing away the case of
the plaintiff in its entirety without allowing him to avail benefit of
presentation of the suit to the competent court as per Order VII Rule 10
of the CPC. For all these reasons, ground of lack of jurisdiction cannot
be allowed to be pressed for seeking summary judgment by the
defendant.
17. In the light of all above discussion, the plaintiff has pleaded
necessary details in support of his case and there are many factual as
well as legal issues which can be determined after allowing the parties
to lead the evidence. There is no scope to exercise powers conferred
upon the Court under Order XIIIA Rule 6 r/w Rule 1, 2 and 3 of the
CPC in the case in hand. Hence, I pass the following order :
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Comm.Suit No. 259/19. 11 Order below Exh.6.
ORDER
Application for Summary Judgment No. 3/2020 (Exh.6) is
dismissed.
(R.R.BHAGWAT)
Judge,
City Civil & Sessions Court,
Date : 12/10/2021. Mumbai.
1. Dictated on : 11 & 12/10/2021.
2. Transcribed on : 11 & 12/10/2021.
3. Signed on : 12/10/2021.
4. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
12/10/2021. 5.35 p.m. Miss M.A.Kulkarni.
Name of the Judge (with Court Room no.) HHJ Shri R.R.Bhagwat.
(Court Room No.31).
Date of Pronouncement of Judgment/Order 12/10/2021.
Judgment/Order signed by P.O. on 12/10/2021.
Judgment/Order uploaded on 12/10/2021.
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