This order dismisses a Regular Second Appeal against concurrent findings of the Trial and Appellate Courts which rejected an appellant's suit for recovery of money claiming a rebate of Rs.4,56,779/- under a distributor agreement.
Regular Second Appeal No. 494 of 2016 dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
NC: 2023:KHC:38561 RSA No. 494 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF OCTOBER, 2023 BEFORE
THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM REGULAR SECOND APPEAL NO. 494 OF 2016 (MON)
BETWEEN:
MR K MADHAVA KAMATH
S/O LATE K LAXMAN KAMATH
AGED 69 YEARS
Digitally signed by ALBHAGYA Location: HIGH COURT OF KARNATAKA
R/AT 4-15 LAXMAN BUILDING, KOTTARA CHOWKI MANGALURU
SINCE DEAD REPRESENTED BY LR’S
W/O LATE K MADHAVA KAMATH AGED 46 YEARS
W/O YOGISH MALLYA AGED 46 YEARS
S/O LATE MADHAVA KAMATH
AGED 44 YEARS
W/O NARESH NAYAK AGED 42 YEARS
ALL ARE R/AT NO.4-15 LAXMAN BUILDING KOTTARA CHOWKI MANGALURU D.K.
AMENDEMENT CARRIED OUT AS PER ORDER DATED 11.02.2021
…APPELLANTS
(BY SRI. S RAJASHEKAR, ADVOCATE)
AND:
M/S BRIGHT POINT INDIA PVT LTD 76, OKHLA INDUSTRIAL ESTATE PHASE-III NEW DELHI - 110 020. REP BY ITS MANAGING DIRECTOR MR. SANJEEV SAIGAL.
…RESPONDENT
(V/O DATED :26/3/2020, SERVICE OF NOTICE ON SOLE RESPONDENT IS H/S)
THIS RSA IS FILED UNDER SEC.100 OF CPC., PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 06.04.2015 PASSED IN R.A.NO.13/2015 ON THE FILE OF PRINCIPAL DISTRICT JUDGE, D.K. MANGALORE WHICH JUDGMENT AND DECREE HAS ARISEN OUT OF THE JUDGMENT AND DECREE DATED 19.12.2014 PASSED IN O.S.NO.27/2009 ON THE FILE OF FIRST ADDITIONAL SENIOR CIVIL JUGDE MANGALORE D.K. AND ETC.,
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
NC: 2023:KHC:38561 RSA No. 494 of 2016
JUDGMENT
The captioned Second Appeal is filed by the unsuccessful plaintiff, assailing the concurrent findings of the Courts below wherein the plaintiff’s suit for recovery of money is rejected by both the Courts. The concurrent findings are challenged by the unsuccessful plaintiff.
referred as they are ranked before the Trial Court.
Plaintiff has instituted the present suit seeking recovery of money. Plaintiff claimed that the defendant is the main distributor and has appointed several dealers to different places to sell their products. It is the specific case of the plaintiff that he was appointed as dealer to the entire South Canara, Udupi and North Canara Districts. The plaintiff’s case is that he is entitled to seek rebate from time to time depending upon the policy and in order to promote the sale of defendant’s products as per terms of the agreement, the plaintiff was required to deposit the cheque in advance in the Bank account of the defendant before the products were delivered to him. The
NC: 2023:KHC:38561 RSA No. 494 of 2016
plaintiff claims that it was agreed between the parties that the rebate / commission and other special offers were to be extended by the defendant / Company from time to time. The plaintiff contended that he has maintained books of accounts in the regular course of business transaction and in terms of the sales made by the plaintiff, the plaintiff claims that he is entitled for rebate to the tune of Rs.4,56,779/- as on 30.09.2006. The suit is filed alleging that inspite of repeated requests, the defendant has failed to make payments and hence, the present suit is filed seeking recovery of a sum of Rs.4,56,779/- with interest at 21% per annum on the outstanding amount.
NC: 2023:KHC:38561 RSA No. 494 of 2016
rebate in some cases and this rebate was allowed occasionally to the plaintiff and therefore the plaintiff cannot claim the same as a matter of right with respect to purchase made from the defendant. The defendant specifically contended that it has maintained regular accounts in the course of business transaction with regard to the distributors and an amount of Rs.61,347/- which was legally due to plaintiff is paid to the plaintiff vide Cheque No.350282 dated 12.06.2008.
NC: 2023:KHC:38561 RSA No. 494 of 2016
Rs.4,56,779/- was negatived by the Trial Court and the suit is dismissed.
by the plaintiff. The Appellate Court on independent assessment of the evidence on record has also recorded a categorical finding that the vouchers raised by the plaintiff are found to be unilateral and not with the consent of the defendant. Taking cognizance of Ex.D1 which is the ledger extract maintained by the defendant, the Appellate Court also held that the ledger extract does not disclose that any amounts are due to the plaintiff and since the plaintiff has not chosen to
NC: 2023:KHC:38561 RSA No. 494 of 2016
dispute this document and having admitted in clear terms with regard to the book of accounts and balance sheet maintained by the defendant for the respective financial year, proceeded to hold that the plaintiff has failed to substantiate that the defendant is due to the tune of Rs.4,56,779/-, consequently, dismissed the appeal. These concurrent findings of the Courts below are under challenge.
NC: 2023:KHC:38561 RSA No. 494 of 2016
succeeded in eliciting several admissions which are found to be fatal to the plaintiff’s claim. Both the Courts referring to rebuttal evidence vide Exhibits D1 and D2 coupled with the admissions elicited in the cross-examination of the plaintiff, have recorded a finding that the plaintiff has failed to substantiate his claim that he is entitled for rebate. Both the Courts have also held that the defendant has succeeded in substantiating that the plaintiff is not entitled to seek rebate as a matter of right. Both the Courts have taken cognizance of the admissions elicited in the cross of plaintiff who has admitted the terms and conditions under Ex.D2 which is the agreement which stipulates the terms and conditions between the plaintiff and the defendant.
of law would arise for consideration. Accordingly, the Regular Second Appeal is dismissed .
Sd/JUDGE
BSS
List No.: 1 Sl No.: 10
2 issues framed by the court
Whether the appellant is entitled to claim a sum of Rs.4,56,779/- as rebate and commission on sales made based on the agreement terms.
Whether the consistent findings of the Courts below that the appellant failed to substantiate the claim warrants allowing the appeal.
MR K MADHAVA KAMATH
SMT K SUMANA M KAMATH
MAYA MALLYA
ANANTH KAMATH
MALA NAYAK
M/S BRIGHT POINT INDIA PVT LTD
SACHIN SHANKAR MAGADUM
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
