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2012 DIGILAW 2249 (DEL)

Dentsply India Pvt. Ltd. v. Excel International

2012-07-10

VALMIKI J.MEHTA

body2012
JUDGMENT : Valmiki J. Mehta, J (Oral) 1. Issues are framed under Order 14 CPC. Issues are framed on material propositions of fact or law urged by one party and denied by the other. Framing of issues is considering the pleadings which are filed by the respective parties and also the other material on record. Consideration of the record at the time of framing issues prevents unnecessary issues from being framed and unnecessary evidence being led by both the parties, and, it also thus prevents unnecessary elongation of the case and prevents the record from becoming bulky. At the stage of framing of issues, Courts have to ensure that only those issues are framed which arise from the record of the case. If it is found that really the issue urged to be framed does not arise or the law bars the framing of the issue sought to be framed, then, such an issue need not be framed. 2. With this preface, let me set down the respective cases of the parties which are today being urged before me. The case of the plaintiff is simple. The plaintiff says that it deals with dental equipment and dental products. Plaintiff says that defendants were appointed by it as distributor of the goods of the plaintiff. The plaintiff, however, says that this relationship was a principal to principal basis i.e the plaintiff is the seller and the defendants are buyers of goods and consequently the defendants are liable to pay for the value of the goods which have not been paid. 3. Defendants have filed their written statement-cum-counter claim. A reading of the written statement shows that besides the complete denial of the claim of the plaintiff, defendants have taken up, what the defendants contend are ‘alternative’ stands. The defendants firstly, as per the stand taken before me today, contend that the relationship between the plaintiff and defendants was not on principal to principal basis, and the defendants were acting only as an agent who never purchased the goods from the plaintiff and the defendants simply transferred goods which were taken from the plaintiff ahead to other dealers/purchasers of the plaintiff. For providing of such services, the defendants received commission from the plaintiff. For providing of such services, the defendants received commission from the plaintiff. The defendants therefore, claim that since they have not purchased the goods from the plaintiff, they are not liable to pay value of the goods to the plaintiff, and if the plaintiff has to recover money, it has to recover moneys from and to whom the goods have been transferred by defendants. It is pleaded that defendants are entitled to various adjustments totaling to Rs. 46,57,815.84. This figure of Rs. 46,57,815.84 comprises of three claims. The first figure is the claim of commission of Rs. 27,85,663.54 for goods delivered to the dealers of plaintiff. The second figure of Rs. 9,50,874.55 is the value of the goods taken back by the plaintiff and for which adjustment is claimed. The third figure is an amount for Rs. 9,21,277.75 being the amount which the defendants say has been admitted by the plaintiff to be payable to defendants. Defendants have also pleaded what it says is an ‘alternative’ defence. Counsel for the defendants urges before me that this ‘alternative’ defence is that defendants should be taken as a buyer of the goods, however, the defendants are stated to be not liable on account of adjustments claimed in the written statement. Defendants seek to get issues framed on the basis of its defence which it calls ‘alternative’ defence. For the reasons given hereinafter, in my opinion, the ‘alternative’ stand that the defendants for being taken as the buyer of the goods from the plaintiff is not an ‘alternative’ stand but a mutually destructive stand when taken with the stand that defendants are only agents as stated above. Hence, I would not frame issues on this aspect. I say ‘mutually destructive’ because if the stand of the defendants being buyers is accepted, and which they will have to admit in their evidence, the same will lead to a most anomalous position and which if predicated destroys the first defence of principal and agent relationship. Alternative defences are permissible but not mutually destructive stands. Defendants also seek to get an issue as to territorial jurisdiction framed and which for the reasons given hereinafter I decline to frame. 4. The following issues arise as per the respective pleadings of the parties on the basis of which issues are sought to be framed:- 1. Whether the plaintiff is entitled to an amount of Rs. Defendants also seek to get an issue as to territorial jurisdiction framed and which for the reasons given hereinafter I decline to frame. 4. The following issues arise as per the respective pleadings of the parties on the basis of which issues are sought to be framed:- 1. Whether the plaintiff is entitled to an amount of Rs. 2,81,08,673.78 from the defendants? OPP 2. Whether the aforesaid amount of Rs. 2,81,08,673.78 is liable to be reduced on account of goods delivered back to the plaintiff during the pendency of the suit, and if so for what amount? – Onus on parties. 3. Whether the plaintiff is entitled to interest, if so from which date and at what rate? – OPP 4. Whether the plaintiff is not entitled to recover from the defendants any amounts inasmuch as the defendants were not acting with the plaintiff on principal to principal basis i.e. not with the plaintiff as the seller and the defendants as buyers, inasmuch as the defendants were only agents who transferred goods received from the plaintiff to further dealers of the plaintiff?- OPD 5. Whether the defendants are entitled to adjust an amount of Rs. 46,57,815.84/- in terms of their written statement?- OPD 6. Whether the defendants are discharged from the liability towards the plaintiff for an amount of Rs. 67,91,334/- inasmuch as the plaintiffs have already collected these amounts from their own dealers and with respect to goods which were supplied by the plaintiffs to the defendants, and which the defendants further transferred in their capacity as an agent to other dealers of the plaintiff?-OPD 7. Relief. 5. The defendants urge framing of an issue as to lack of territorial jurisdiction of this Court. In a contractual matter, the jurisdiction of a Court arises from four aspects. The first is where the contract is entered into. Second is where the contract is to be performed. The third is where moneys have to be paid under the contract and fourthly where the defendants in the suit are residing or voluntary working for gain. This is the ratio of the judgment of Supreme Court in the case of ABC Laminart Pvt. Ltd. & Anr. vs. A.P.Agencies, Salem, AIR 1989 SC 1239 . The third is where moneys have to be paid under the contract and fourthly where the defendants in the suit are residing or voluntary working for gain. This is the ratio of the judgment of Supreme Court in the case of ABC Laminart Pvt. Ltd. & Anr. vs. A.P.Agencies, Salem, AIR 1989 SC 1239 . If there is more than one Court which has territorial jurisdiction, then parties by contract can restrict the jurisdiction to one or more of the Courts which have jurisdiction, however, parties by consent cannot confer jurisdiction on a Court which otherwise does not have any. In the present case the only reason which is urged for pleading that this Court has no territorial jurisdiction is because the goods are alleged to be supplied by the plaintiff from its godowns at Gurgaon, taken with the fact that all the invoices specifically contain the condition that only the Courts in Haryana will have exclusive territorial jurisdiction. 6. In my opinion no issue arises as to lack of territorial jurisdiction of the Delhi Courts inasmuch as merely because the goods are dispatched from particular place, such place cannot be the court where territorial jurisdiction arises in contractual matter. It is the place where the goods are to be delivered is the place which would have territorial jurisdiction as that is the place where contract is performed. The place from where goods are dispatched is not the place where whole or part of the contract is said to be performed inasmuch as the buyer/defendant has not accepted delivery at Gurgaon. In the present case, Courts at Haryana thus have no territorial jurisdiction as no part of cause of action has arisen in such Court, and therefore, once Courts at Haryana are not such Courts where whole or part of the cause of action has arisen, then parties cannot by consent confer jurisdiction on such Court which does not have any. I thus decline to frame the issue of territorial jurisdiction, as mere pleading does not mean that issues have to be compulsorily framed once the issue is answered i.e. does not arise. 7. No other issues are pressed or arise. 8. Parties will file their list of witnesses within a period of four weeks from today. Plaintiff will file affidavits of its witnesses within a period of six weeks from today. 9. 7. No other issues are pressed or arise. 8. Parties will file their list of witnesses within a period of four weeks from today. Plaintiff will file affidavits of its witnesses within a period of six weeks from today. 9. List the matter on 6th August, 2012 before the Joint Registrar for fixing dates for cross-examination of the plaintiff’s witnesses.