Allahabad High Court
Ten Matan Helia Through Its Sole ... vs Mercury Laboratories ... on 22 March, 2013
Bench: Rajiv Sharma, Saeed-Uz-Zaman Siddiqi
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
RESERVED
First Appeal No.18 of 2008
Ten Matan Helia through its Sole Proprietor ... Appellant
Versus
Mercury Laboratories Limited ... Respondent
----------
Hon'ble Rajiv Sharma,J.
Hon'ble Saeed-Uz-Zaman Siddiqi,J.
1. This appeal has arisen out of the order dated 09.10.2007, passed by the learned Civil Judge, (S.D.), Lucknow in Regular Suit No.117 of 2007, by which the suit had been dismissed for want of prosecution due to arbitration clause by allowing application Paper No.10-C, moved by the defendant.
2. Brief facts of the case are that the plaintiff-appellant filed suit for recovery of Rs.8,60,000/- together with 18 per cent pendente lite and future interest on the grounds interalia that it is a proprietorship concern; the defendant appointed the plaintiff as sole distributor of medicines in the State of Uttar Pradesh and the plaintiff had agreed to purchase medicines from the defendant and order for supply of medicines were filled; there is a custom in the medicine business that if the medicines are not sold by the whole seller then the manufacturer takes back the medicines supplied by it; this is also a custom that if the purchaser informs the manufacturer in advance that the expiry of certain medicines is coming to an end, then the manufacturer takes back those medicines and either replaces the same or refunds its price. It is mentioned in paragraph no. 9 of the plaint that medicines were supplied on different dates of different amounts by defendant to the plaintiff; the defendant also asked the plaintiff to pay certain amount and price of good for the medicines that were supplied; there is dispute regarding payment. Hence, the suit was filed.
3. The defendant appeared and moved application No.10-C to the effect that the Court has no jurisdiction to try and entertain the present suit as there was an arbitration clause. The defendant also annexed therewith the copy of agreement. The plaintiff filed objections by pleading inter alia that no written statement has been filed and there was no arbitration agreement between the parties dated 10.05.2005. Learned Trial Court allowed the application of the defendant, against which this appeal has been preferred.
4. We have heard learned counsel for the appellant and have gone through the records. None appeared on behalf of the defendant/respondent. Paragraph nos.4 and 6 of the plaint are relevant which are reproduced below:-
"4. That the defendant appointed the plaintiff as its sole distributor of medicines for whole Uttar Pradesh and approached the plaintiff at Naya Gaon East, P.S. Kaiserbagh, Lucknow to purchase medicines manufactured by it.
6.That on this assurance of the defendant the plaintiff agreed to purchase medicines from the defendant and the order form for the supply of medicines was filled and written by Sri Prashant Kumar Srivastava, Regional Business Manager of the defendant in the presence of Sri Dinesh Gupta, general Manager of the defendant."
5. The plaintiff-appellant did not file any agreement and has relied upon mischievous pleadings as is evident from paragraph no.6 of the plaint as reproduced above. The defendant has filed photocopy of the agreement along with application paper no.10-C, which has not been denied by the plaintiff appellant in his objection paper no.13-C. He has vaguely alleged that there was no arbitration agreement. It has not been denied in this objection that there was no agreement at all and there is an admission in paragraph no.6 of the plaint that there was an agreement which was filled and written by Regional Business Manager of the defendant in presence of the General Manager of the defendant. This agreement is basis of the suit which should have been filed along with the suit and if the said agreement was not available with the plaintiff, in original, he should have made a request to the learned Trial Court that the defendant may be directed to produce the original agreement deed, which the plaintiff did not do.
6. It was argued by learned counsel for the plaintiff-appellant that the impugned order is bad in law on the ground that no issue has been framed and the suit should have been dismissed as beyond jurisdiction due to arbitration agreement only after framing of issues and leading of evidence. This argument is not tenable at law. When there is an arbitration agreement, acting upon which the defendant has supplied goods worth lacs of rupees as mentioned in paragraph no.8 of the plaint, the defendant cannot be said to have acted without any agreement. Paragraph no.20 of the agreement runs as follows:-
"20. Any dispute including rights and liabilities that may arise at any time between MLL and ERGACAP SUPER DISTRIBUTOR, in relation to or in connection with this Agreement shall be first discussed and negotiated between the parties with a view to finding any amicable solution, failing which such dispute (s) shall be finally settled by and through a sole Arbitrator to be appointed by the parties in accordance with the procedure laid down in the Arbitration and Conciliation Act, 1996 and the Rules framed there under. The venue of such arbitration shall be Baroda."
7. It is noteworthy that the defendant has moved preliminary objection which was legally maintainable. Learned counsel for the appellant has relied upon the law laid down by this Court in Saudul Azeez v. District Judge, Gorakhpur and others, [1999 (17) LCD-1356], which shows that photocopy of a document shall not be admissible. He has also relied upon certain other judgments of this Court as well as Hon'ble Apex Court regarding photostat documents as Rang Nath v. 6th Additional District Judge, Varanasi and others, [1999 (17) LCD 1363], Chandigarh Housing Board v. Devinder Singh and Anr. AIR 2007 SC 1723, Smt. J. Yashoda v. Smt. K. Shobha Rani, AIR 2007 SC 1721, Manohar Das and others v. The Board of Revenue, U.P., AIR 1971 Allahabad 523 etc. None of these authorities are attracted in this case as the plaintiff-appellant cannot put the blame to the defendant. He has neither filed the agreement, though mentioned in paragraph no.6 of the plaint nor he has sought the agency of the learned Trial Court to compel the defendant to file the agreement in original. The plaintiff-appellant has also nowhere alleged that the original agreement is not in his power or possession. The basis of the suit should have been filed. The instant suit exhibits the mischievous tendency of the plaintiff-appellant which has indulged in frivolous and dishonest litigation causing harassment to the defendant and wastage of Courts' precious time which is nothing but an abuse of the process of Court. Even if the photocopy of the agreement as filed by the defendant along with the application Paper No. 10-C is not admitted in evidence the application Paper No. 10-C deserves to be allowed and the allegations made in it in view of submissions made by the plaintiff in paragraph no. 4 and 6 of the plaint, particularly, because there is no specific denial of the arbitration agreement between the parties. The defendant has simply alleged in paragraph no. 4 of his objection Paper No. 13-C that there was no arbitration agreement between the parties on 10.05.2005 but he has meticulously and tactfully omitted to mention the date of agreement in paragraph no. 6 of the plaint through mischievous pleadings that the plaintiff intends to derive benefit of dragging the defendant into an uncalled for litigation.
8. The Hon'ble Apex Court in the case of Ramarameshwari Devi and Others v. Nirmala Devi and Others, (2011) 8 SCC 249, in paragraph nos.43, 47, 48, 49 and 50 has held as under:-
"43. We have carefully examined the written submissions of the learned Amicus Curiae and learned counsel for the parties. We are clearly of the view that unless we ensure that wrong- doers are denied profit or undue benefit from the frivolous litigation, it would be difficult to control frivolous and uncalled for litigations. In order to curb uncalled for and frivolous litigation, the courts have to ensure that there is no incentive or motive for uncalled for litigation. It is a matter of common experience that court's otherwise scarce and valuable time is consumed or more appropriately wasted in a large number of uncalled for cases.
47. We have to dispel the common impression that a party by obtaining an injunction based on even false averments and forged documents will tire out the true owner and ultimately the true owner will have to give up to the wrongdoer his legitimate profit. It is also a matter of common experience that to achieve clandestine objects, false pleas are often taken and forged documents are filed indiscriminately in our courts because they have hardly any apprehension of being prosecuted for perjury by the courts or even pay heavy costs. In Swaran Singh v. State of Punjab (2000) 5 SCC 668 this court was constrained to observe that perjury has become a way of life in our courts.
48. It is a typical example how a litigation proceeds and continues and in the end there is a profit for the wrongdoer.
49. Learned amicus articulated common man's general impression about litigation in following words:-
"Make any false averment, conceal any fact, raise any plea, produce any false document, deny any genuine document, it will successfully stall the litigation, and in any case, delay the matter endlessly. The other party will be coerced into a settlement which will be profitable for me and the probability of the court ordering prosecution for perjury is less than that of meeting with an accident while crossing the road."
50. This court in Swaran Singh (Supra) observed as under:
"36... ... ...Perjury has also become a way of life in the law courts. A trial Judge knows that the witness is telling a lie and is going back on his previous statement, yet he does not wish to punish him or even file a complaint against him. He is required to sign the complaint himself which deters him from filing the complaint."
9. In view of the observations as made above, the appeal deserves to be dismissed and is accordingly dismissed.
Dt.22.3.2013
Ram
(Hon'ble Rajiv Sharma,J.)
(Hon'ble Saeed-Uz-Zaman Siddiqi,J.)
