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2013 DIGILAW 607 (AP)

Wipro Products Limited v. AKBAR S Noori

2013-07-30

L.NARASIMHA REDDY, S.V.BHATT

body2013
Judgment : (LNR, J.) Both the appeals arise out of a judgment and decree, dated 04.06.2011 in O.S.No.387 of 1987 on the file of the learned II Senior Civil Judge, City Civil Court, Hyderabad. For the sake of convenience, the parties are referred to as arrayed in the suit. The defendants are manufacturers of various products, including edible oil. The plaintiff is a trader in edible oils at Hyderabad. Somewhere in the year 1978, an oral agreement was made, under which, the defendants would supply edible oils to the plaintiff and the latter would be entitled for commission of Rs.2/- per tin supplied to him and Re.1/-in case goods are supplied directly to biscuit companies in and around Hyderabad. It is stated that on 30.03.1980, a consignment of 600 tins of edible oil was received by the plaintiff. The defendants however informed the plaintiff that the consignment was to be unloaded at their depot in Hyderabad and that the plaintiff was not entitled to receive it. The response of the plaintiff was not positive. That entailed in not only stoppage of further supplies to him but also filing of C.C.No.256 of 1980 against him. C.C.No.256 of 1980 ended in acquittal on 10.05.1985. Thereupon, the plaintiff got issued a notice to the defendants requiring them to pay several amounts towards malicious prosecution, loss of profit in the business, damages to the reputation in the business circle and refund of the deposit of Rs.1,10,000/-. The defendants did not accede to the request of the plaintiff. Therefore, the plaintiff filed the suit for recovery of (a) a sum of Rs.1,10,000/- deposited by him as a stockist; (b) a sum of Rs.3,00,000/- towards the compensation for the goodwill created by him for marketing of the product of the defendants; (c) sum of Rs.3,00,000/- towards damages for breach of contract on the part of the defendants or in the alternative for rendition of accounts; and (d) a sum of Rs.7,00,000/- towards damages for malicious prosecution. The relevant facts in support of each claim were pleaded in the plaint. On behalf of the defendants, a written statement was filed. They have raised the plea of limitation. According to them, the cause of action even according to the plaintiff arose in the year 1980 and filing of the suit in the year 1987 is barred by limitation. The relevant facts in support of each claim were pleaded in the plaint. On behalf of the defendants, a written statement was filed. They have raised the plea of limitation. According to them, the cause of action even according to the plaintiff arose in the year 1980 and filing of the suit in the year 1987 is barred by limitation. Regarding the claim of the plaintiff, for refund of the deposit, they stated that the plaintiff is under obligation to pay the cost of 600 tins of oil amounting to Rs.1,72,991/- and even after adjusting the deposit, they are entitled to be paid a sum of Rs.62,991/-. They pleaded that the claim of the plaintiff under the heads of goodwill and damages for breach of contract is false and baseless. As regards the claim for damages for malicious prosecution, their plea was that the acquittal of the plaintiff was on technical grounds and that the trial Court did not even mention that the complaint filed against him is false. Through its judgment, dated 04.06.2001, the trial Court partly decreed the suit allowing the claim for refund of deposit of Rs.1,10,000/-and rest of the claims were disallowed. While the plaintiff filed C.C.C.A.No.194 of 2001 feeling aggrieved by the denial of other claims, the defendants filed C.C.C.A.No.184 of 2001 assailing the decree passed by the trial Court for refund of Rs.1,10,000/-. Learned counsel for the plaintiff submits that the trial Court was not correct in its view that the suit is barred by limitation on other claims. He contends that the correspondence or other proceedings between the parties were going on almost till the criminal Court rendered its judgment and the suit was filed shortly thereafter. He submits that the allegation made against the plaintiff in the complaint before the police was found to be false and there is any amount of malice on the part of the defendants in prosecuting the plaintiff for false claims. He submits that the trial Court ought to have recorded a finding in favour of the plaintiff, even if the quantum of damages can be nominal. He further submits that the plaintiff has made out a case for award of damages under other heads also. He submits that the trial Court ought to have recorded a finding in favour of the plaintiff, even if the quantum of damages can be nominal. He further submits that the plaintiff has made out a case for award of damages under other heads also. Learned counsel for the defendants, on the other hand, submits that the suit was hopelessly barred by limitation, though the claim as to malicious prosecution can be said to be within time. He contends that once the criminal Court acquitted the plaintiff only on technical grounds and the plaintiff did not adduce any evidence to establish malice and that the trial Court was left with no alternative except to reject the claim. Even while attempting to sustain the decree in other respects, learned counsel submits that the trial Court was not justified in passing the decree for refund of Rs.1,10,000/-, particularly when the plaintiff did not plead and prove that the consideration for 600 oil tins was paid to them. A marathon exercise was undertaken before the trial Court. The claim was made under several heads and the contest was equally vigorous. This is evident from the fact that the trial Court had to frame as many as 16 issues viz., ISSUES: 1. Whether the defendants have maliciously prosecuted the plaintiff in criminal court? 2. Whether the reputation of the plaintiff was tarnished and be-littled in the eye of society by such prosecution? 3. Whether the plaintiff is entitled for Rs.7,00,000/- towards damages and malicious prosecution? 4. Whether the plaintiff is entitled for damages towards illegal termination of contract, a sum of Rs.3,00,000/-? 5. Whether the plaintiff is entitled to Rs.3,00,000/- towards good-will? 6. Whether the plaintiff is entitled for Rs.1,10,000/- towards refund of deposit amount and notice charges of Rs.500/-? 7. Whether the defendant stopped business relationship with effect from 1-4-1980? 8. Whether the plaintiff fell due a sum of Rs.62,991-16 ps. after adjusting Rs.1,10,000/-? 9. Whether all the claims made by the plaintiff are untenable and baseless? 10. Whether the claims made by the plaintiff are time barred? 11. Whether the defendant is entitled for exemplary costs of RS.3,000/-? ADDITIONAL ISSUE DATED:16.12.1997: 1. Whether the suit is liable to be dismissed on the technical ground that the plaintiff introduced the words “sole proprietor” to overcome the plea of the defendant that the plaintiff’s firm was unregistered partnership firm? ADDITIONAL ISSUE DATED:17.04.1998: 1. 11. Whether the defendant is entitled for exemplary costs of RS.3,000/-? ADDITIONAL ISSUE DATED:16.12.1997: 1. Whether the suit is liable to be dismissed on the technical ground that the plaintiff introduced the words “sole proprietor” to overcome the plea of the defendant that the plaintiff’s firm was unregistered partnership firm? ADDITIONAL ISSUE DATED:17.04.1998: 1. Whether the defendant’s plea about the termination of the contract is true, valid and tenable? 2. Whether the defendant is liable to render true account of all the sales of goods and if so for what period? 3. To what commission the plaintiff is entitled and for what period? The oral evidence on behalf of the plaintiff comprised of deposition of himself and three other witnesses i.e., P.Ws.2,3 and 4. The documentary evidence comprised of Exs.A.1 to A.1628. On behalf of the defendants, D.Ws.1 and 2 were examined and no documentary evidence was adduced. The suit was partly decreed by the trial Court, as indicated above. In view of the extensive submissions made before this Court by the learned counsel for the parties, the points that arise for consideration in these appeals are: 1. Whether the plaintiff proved the plea as to malicious prosecution against the defendants? 2. Whether the claim made by the plaintiff towards compensation for the goodwill said to have been created by him or the damages for breach of contract was within limitation? and 3. Whether the plaintiff was entitled for refund of the deposit of Rs.1,10,000/- made by him? The plaintiff claimed a sum of Rs.7,00,000/- towards damages for malicious prosecution. The basic facts that gave raise to filing of the suit for damages have already been stated in the preceding paragraphs. Alleging that the plaintiff has wrongfully appropriated the consignment of 600 tins of oil, the defendants submitted a complaint before the police, after their effort to get the return of the goods, failed. The complaint resulted in registration of criminal case and prosecution of the plaintiff. It is a matter of record that the plaintiff was acquitted in C.C.No.256 of 1980. The judgment dated 10.05.1985 rendered by the Court of III Metropolitan Magistrate, Hyderabad therein is filed as Ex.A.1582. A perusal of the same discloses that the acquittal was on account of the fact that the prosecution did not prove the facts to the satisfaction of the Court. The judgment dated 10.05.1985 rendered by the Court of III Metropolitan Magistrate, Hyderabad therein is filed as Ex.A.1582. A perusal of the same discloses that the acquittal was on account of the fact that the prosecution did not prove the facts to the satisfaction of the Court. No finding was recorded to the effect that the complaint submitted by the defendants against the plaintiff was false. The mere fact that an accused in a criminal case was acquitted does not, by itself bring about a cause of action for him to claim damages for malicious prosecution. It is only when the plaintiff in such a suit pleads and proves that the very submission of complaint against him, by the complainant i.e., defendants in the suit was motivated and was done with a malicious intention, that the occasion for the civil Court, to award damages would exist. Two facts become relevant in this regard. The first is that if there is any indication in the judgment of the criminal Court itself that the complaint itself was false and that the accused was subjected to unnecessary prosecution, the burden for such an accused to prove malice in the suit filed by him for damages, gets lightened to a substantial extent. The second is that the plaintiff must at least mention the facts, which according to him constitute the basis for initiation of false and malicious prosecution. Though motive is not required to be proved in case of torts, at least basic facts, which left an impression in the plaintiff, must be stated. On both fronts, the plaintiff in the instant case failed. The trial Court was left with no alternative, except to reject the claim under that head. We answer the first point accordingly. Coming to second point, even according to the plaintiff, the cause of action to file the suit arose in the year 1980, when supply of stocks was stopped. Other facts are also mentioned. There was every justification for him to wait till acquittal in the criminal case, to file a suit for damages for malicious prosecution. However that justification does not hold good for claiming damages under other heads, such as compensation for creation of market for the defendants, damages for breach of contract. Other facts are also mentioned. There was every justification for him to wait till acquittal in the criminal case, to file a suit for damages for malicious prosecution. However that justification does not hold good for claiming damages under other heads, such as compensation for creation of market for the defendants, damages for breach of contract. The suit was filed in the year 1987 and whatever clause of the Schedule to the Limitation Act applies, the suit for those claims stands barred by limitation. We uphold the finding of the trial Court on the relevant issues. In the ordinary course of business, the manufacturers appoint their dealers through written documents. In the instant case, however, the transaction between the parties started way back in the year 1978 and none of them felt the necessity of written document. Arrangement is said to be oral. It is not in dispute that the plaintiff made a deposit of Rs.1,10,000/- when he was appointed as stockist. One of the claims made by the plaintiff was refund of that amount. The defendants however made an attempt to raise the plea of counter claim. According to them, the cost of goods is Rs.1,72,991/-and even if the deposit of Rs.1,10,000/- is adjusted, still the plaintiff would be under obligation to pay a sum of Rs.62,991/- The claim of the defendants is a hybrid of set off and counter claim. Set off, because the total amount claimed by them viz., Rs.1,72,991/- is far less than the total claim in the suit; and counter claim, because it exceeded the deposit vis-à-vis which the adjustment is sought. Learned counsel for the plaintiff submits that the counter claim or set off could not have been entertained, since no court fee was paid. However, this objection can be ignored for the reason that even if it is to be treated as a counter claim vis-à-vis item No.1 of the suit claim, in the context of the entire suit claim, it can only answer the description of set off. Be that as it may, the defendants could have been extended the benefit of set off or counter claim, notwithstanding the fact that their claim was barred by limitation, in case they made any effort to recover that amount or kept the claim alive. Be that as it may, the defendants could have been extended the benefit of set off or counter claim, notwithstanding the fact that their claim was barred by limitation, in case they made any effort to recover that amount or kept the claim alive. There may have been proper justification for them in not demanding the cost of 600 tins of oil, as long as the criminal case was pending. Atleast when it ended in acquittal, they did not demand the amount at all. On the other hand, even while filing the written statement, they have stated that they reserved their right to demand that amount. The demand did not take place till now and the result is that they did not make any claim at all. The occasion to allow set off or counter claim, even of a time barred amount would arise, if only there was any claim or undisputed amount due. Since there is no such claim in the instant case, the trial Court was left with no alternative, except to pass a decree for refund of amount of Rs.1,10,000/- Point No.3 is answered accordingly. The appeals are accordingly dismissed. The miscellaneous petitions filed in these appeals shall also stand disposed of. There shall be no order as to costs.