Maysore Sales Pvt. Ltd. vs Subham Agencies And Anr.
2006 Latest Caselaw 356 Del

JUDGMENT

Anil Kumar, J.

1. This judgment Will dispose of suit for recovery of Rs. 23,45,750/- filed against the defendants on account of balance price of goods.

2. The plaintiff contended that it is company duly incorporated under the Indian Companies Act and Shri A.M. Rao is the Secretary of the plaintiff company duly authorized to sign, verify the plaint ant to institute the suit on behalf of the plaintiff company.

3. The plaintiff is a sole selling agent for the sale of Karnataka State lottery tickets and defendants were appointed as stockiest for Rajasthan for the lottery 'Mysore Laxmi'. By letter dated 29th May, 1992, defendant No. 1, M/s. Subham Agencies was appointed as a main agent for the distribution and sale of Mysore Lakshmi Super Daily Single Digit Draw tickets. The terms and conditions for appointment as a stockiest were incorporated in the letter dated 29th May, 1992. The terms of appointment as a stockiest were accepted by defendants where defendant No. 2 as a partner of defendant no. 1 signed a copy of letter dated 29th May, 1992. The terms of appointment were settled and finalized at Delhi.

4. Pursuant to the appointment of defendants as agent they purchased tickets for total value of Rs. 57,85,000/- details of which were given by the plaintiff in the plaint. It was asserted by the plaintiff that a sum of Rs. 5,000/- was remitted by the defendants by a demand draft No. 811510 dated 22nd September, 1993. The defendants paid various other amounts totaling Rs. 41,92,520.00 from time to time, the details of which were given in para 7 of the plaint. After taking the account it transpired that an amount of Rs. 17,98,660 was due and therefore, the plaintiff had been writing to defendants to liquidate their liability.

5. The defendants acknowledged their liability by letter dated 20th October,1992 in reply to letter dated 17th October, 1992 of the plaintiff and sought time to pay the amounts in installments. Some amounts were paid or adjusted.

6. Plaintiff contended that he wrote a letter dated 19th January, 1993 to the defendants calling upon the them to pay the balance amount of Rs. 16,42,210.00. Thereafter more amounts were adjusted or paid and ultimately the plaintiff demanded a sum of Rs. 15,87,480.00 from the defendants which amount the defendant failed to pay and thus plaintiff filed the suit for recovery of Rs. 15,87,480.00 and Rs. 7,58,275.00 as interest, for a total amount of Rs. 23,45,750.00.

7. The defendants were served, however, they did not appeal and so they were proceeded ex-parte. On an application by the defendants being IA No. 986/1997 the ex-parte proceedings against them were set aside by order dated 20th October, 1997 and the defendants, thereafter, filed the written statement. The issues were also framed in the matter. During the pendency of the suit the defendant No. 2 died and his legal representatives were substituted in his place. The legal representatives of deceased defendant No. 2 did not appear despite service of notices and they were proceeded ex-parte by order dated 25th August, 2005 where after the evidence on affidavit was filed by the plaintiff.

8. On behalf of plaintiff, Shri A.M. Rao, General Manager (Company Secretary) of the plaintiff filed his deposition on affidavit and appeared there after before the Court and proved his affidavit and exhibited it as PW 1/A on 14the February, 2006 and also tendered in evidence the document PW 1/1A. The witness deposed that he is authorized on behalf of company and a special power of attorney dated 13th May, 1994 was executed in his favor. The power of attorney dated 13th May, 1994 was proved and exhibited as PW 1/1 and the copy of resolution dated 22nd May, 1985 as PW 1/1A. The witness of the plaintiff deposed that the defendants were appointed as sole selling agent and terms of appointment were incorporated in the letter dated 29th May, 1992 which letter was proved and exhibited as PW 1/2. It was deposed that the terms and conditions were accepted by defendant No. 2 as a partner of defendant No. 1 and the appointment letter was made and signed at Delhi.

9. It was deposed on behalf of plaintiff that defendants purchased the tickets of the total value of Rs. 57,85,000.00 at the rate of Rs. 445/- per 100 tickets and he proved the copies of the invoices and they were exhibited as PW1/3 to PW1/163. The witness proved the payments made by the defendants and proved the copies of the receipts given to the defendants which were exhibited PW1/164 to PW1/209. It was stated by the witness that the defendants thus became entitled to a credit of Rs. 41,97,520.00 on behalf of prize winning tickets and cash remittance.

10. The witness of the plaintiff categorically stated that an amount of Rs. 17,98,660.00 was to be liquidated by the defendants towards their outstanding and consequently a letter dated 17th October, 1992 was written to the defendants calling upon them to pay the said sum. The copy of letter dated 17th October, 1992 was proved and exhibited as PW1/210 and the letter written by defendants dated 20th October, 1992 acknowledging the said letter of the plaintiff dated 17th October, 1992 and their liability was proved and exhibited as PW1/211. The defendants also intimated the plaintiff that they are trying to recover money to make payment to the plaintiff. The letter dated 23rd December, 1992 was also proved and exhibited as PW1/212.

11. It was deposed on behalf of the plaintiff that by letter dated 19th January, 1993 defendants were asked to make payment of Rs. 16,42,210.00 and the letter dated 19th January, 1993 was proved and exhibited as PW1/213 and the AD card, as PW1/214. Thereafter defendants submitted prize winning ticket for Rs. 38,730.00 and after giving adjustment of the same, defendant still remained liable to pay a sum of Rs. 16,03,480.00 for which the demands were made on the defendants by letter dated 27th January, 1993 which was proved and exhibited as PW1/215. Another demand raised by the plaintiff by letter dated 23rd February, 1993 for a sum of Rs. 16,03,480.00 was also proved and letter was exhibited as PW1/216. The witness also deposed that thereafter another sum of Rs. 16,000.00 was paid and after giving credit for the same a sum of Rs. 15,87,480.00 remained due and outstanding against the defendants which amount has not been paid despite a legal notice dated 17th March, 1994. A copy of notice dated 17th march, 1994 was proved as exhibited as PW1/207 and its postal receipt as PW1/218.

12. The plaintiff's witness also deposed that the defendant is liable to pay interest at the rate of 24% per annum which rate of interest was agreed in terms of clause 5 of the agreement and thus the witness deposed about the liability of the defendants for a sum of Rs. 7,58,275.00 on account of interest and therefore on behalf of plaintiff it was deposed that the plaintiff is entitled to recover 23,45,750.00 from the defendants.

13. Though the written statement was filed and the issued were framed, however, no one appeared on behalf of defendants thereafter resulting into ex-parte proceedings against the defendant and directing plaintiff to prove the averments made by him. The pleas and contentions raised by the plaintiff and the deposition of the plaintiff witness have remained un-rebutted.

14. As the deposition of the plaintiff has remained unchallenged, the plaintiff has been able to establish the agreement appointing the defendants as sole selling agent which took place between the parties at Delhi. The plaintiff has also proved the letter dated 17th October, 1992 and the subsequent letters which have been also proved by the plaintiff. The plaintiff has thus established that for the goods sold and delivered to the defendants, amounts are due from the defendants to the plaintiff and that he is entitled for a sum of Rs. 15,87,480.00 on account of principal from the defendants. The plaintiff has also been able to prove that he is entitled for interest at the rate of 24% per annum in terms of clause 5 of the agreement entered between the parties. Thus plaintiff has also established that he is entitled for interest till the filing of the suit amounting to a sum of Rs. 7,58,275.00. Plaintiff has, thus, been able to establish that he is entitled for a decree for recovery of Rs. 23,45,750.00.

15. In the circumstances, the suit of the plaintiff for recovery of Rs. 23,45,750.00 is decreed and a decree for recovery of the said amount is passed in favor of plaintiff and against defendants. Pendent lite and future simple interest is also awarded to the plaintiff against the defendants at the rate of 9% per annum on the suit amount from the date of the suit till the realisation of the amount. Cost of the suit is also awarded to the plaintiff against the defendants.