IN THE COURT OF I ADDITIONAL DISTRICT JUDGE, TRICHY

O.S.No.128/2012

R.Balaji .. Plaintiff

Vs.

N.Balachandran & others .. Defendants

WRITTEN SUBMISSION FILED ON BEHALF OF THE 5th DEFENDANT

The suit is for recovery of money

a) For a sum of Rs.6,68,322/- from the defendants 1 to 3

b) For Rs.46,325/- from the defendants 1 to 5 as per the ledger

account

c) For Rs.5,47,146/- from the defendants 1 to 4 being the non-

payment for goods supplied and prepaid stocks returning

d) For Rs.8,20,589/- from the 4th & 5th defendant for the supply of

goods at the direction of 4th defendant to 3rd parties.

CASE OF THE PLAINTIFF:

The 1st defendant appointed the plaintiff as a super stockists. The

1st defendant entrusted his business activity to the 2 nd & 3rd defendants

who are the son and wife and subsequently joined the 1st defendant as

Marketing Manager in the 4th & 5th defendant concern. The 4th & 5th

defendants appointed the plaintiff on 11-05-2009 as distributor for the

State of Tamil Nadu vide Ex.A-2. The 1 st defendant entrusted his

business a Previk Nova to the 2nd and 3rd defendant. The 4th & 5th

defendant without justification rejected the entire claim from 28-09-2009

to 12-12-2011. The 4th & 5th defendant appointed the plaintiff as a

distributor after receiving Rs.5,00,000/-. The 4 th & 5th defendant had

honoured the terms of agreement finalized on 11-05-2009. Hence the

suit.

CASE OF THE DEFENDANTS 4 & 5:

 Originally the 4th defendant was added as a party. The 4 th

defendant filed a detailed written statement and in para 1, 2 & 3 of the

written statement. The 4th defendant raised viz.

a) the suit is in collusion between the plaintiff and the defendants 1

to 3.

b) there is no privity of contract between the plaintiff and the 4 th

defendant and therefore the 4 th defendant has not to comply in the

agreement dated 11.05.2009.

c) Adley Formations is a proprietary concern and the 4 th defendant

was only a direct marketing, the sole proprietor is Vijay Bathra. Apart

from the aforesaid technical pleas, the 4 th defendant raised that as there

was a consensus ad-idem alleged agreement dated 11.05.2009 was not

signed by the party and by an e-mail dt.12.07.2010 it was brought to the

notice of the 1st defendant and the plaintiff that the product cannot be

sold below the rates mentioned in the communication. However in utter

violation of the sale, the products have been sold.

The Trial was over and at the time of argument, it was pleased

before this Hon’ble Court by the 12th defendant that in view of the

decision of the Apex Court in AIR 2015 SC 901. The suit against the 4 th

defendant does not lie as a sole proprietor is concerned and without

impleading Vijay Batha, the suit does not lie for non-joinder of necessary

parties. The plaintiff subsequently filed an application in

I.A.No.396/2006 for impleading Vijay Bathra and the same was allowed

subsequently again the order of this Hon’ble Court Vijay Bathra filed a

revision in CRP (MD) No.1370 and 1371 before Hon’ble Madurai Bench of

Madras High Court. The Hon’ble High Court subsequently directed that

issue of limitation has to be gone into by this Hon’ble Court.

 The 5th defendant adopted the written statement filed by the 4 th

defendant. The issue which arose for consideration on

a) Whether the 4th & 5th defendant are liable for prayer 2, 3 & 4 in

the plaint

The 1st prayer is in respect of dealing the plaintiff and the

defendants 1 to 3 and therefore this defendant is refrained from any

submission in respect of the same. The suit against the defendants 4 &

5 does not lie for the reasons catalogued hereunder:

a) There is no privity of contract between the plaintiff and the 4 th & 5th

defendant. The entire fulcrum of the plaintiff’s case originally as per

the plaint vest on agreement dated 11.05.2009 marked as Ex.A-3.

However in the written submission such a plea has been given a go-

bye. The alleged agreement dated 11.05.2009 marked as Ex.A-3 was

not even signed with the defendants 4 & 5. It has been admitted by

PW1 in the cross examination made by the 4 th defendant on

26.02.2004 as follows:

th.rh.M 3-y; 4-k; gpujpthjp ifnaOj;J nra;atpy;iy vd;why; rupjhd;.

ehd; ifnaOj;J nra;J nfhupau; %yk; rz;bfUf;F mDg;gpNdd;. mij

mtu;fs; jpUg;gp mDg;gpdhu;fs;. me;j xg;ge;jj;Jld; ,izg;G fbjk; vJTk;

4-k; gpujpthjp itf;ftpy;iy. mtu; vjw;fhf mg;gb jpUg;gp

mDg;gdhu;fs; vd;why; xj;Jf; nfhz;L jpUg;gp mDg;gpdhu;fs;. Mdhy;

ehq;fs; tof;F NghLk; NghJ jhd; mjpy; ifnaOj;J ,y;yhjij ghu;j;Njhk;.”

b) This admission would show that Ex.A-3 has not been signed

either the 4th defendant or the 5th defendant. There was no

consensus ad-idem between the parties. There is no privity of

contract from the plaintiff and the 4 th & 5th defendant. On that
 aspect alone, the suit has to be dismissed in limine against the

4th & 5th defendant.

c) Under Ex.a-14 dt.12.07.2010, it has been ex-parte adverted to

that the drugs should not be sold below the price mentioned.

However it is admitted by PW1 in the cross examination “Mdhy;

xt;nthU invoice –Yk; tpiy ,Uf;Fk;. me;j invoice rz;bfupypUe;J tUk;.

Invoice vq;fsplk; cs;sJ. me;j invoice-y; nrhy;yg;gl;Ls;s tpiy

gl;baYk;> ehq;fs; tpw;w tpiyf;Fk; tpj;jpahrk; cs;sjh vd;why; rpyJ

gl;baypy; tpj;jpahrk; cz;L. rpyJ mNj khjpup ttpw;wpUf;Fk;.

mt;thW tpj;jpahrkfh tpw;gjw;F vq;fSf;F mjpfhuk; cs;sjh

vd;why; ,y;iy. This admission would show that the plaintiff is

guilty of selling the products. He got from the 1 st defendant at

the price far below the price mentioned. He is not supposed to

do. He did not produce the invoices. Under those

circumstances, having violated the same, the plaintiff cannot

make a claim at this point of time.

d) It is a matter of fact that the plaintiff on eve of the expiry of the

products seems to have returned the same. It is also a fact that

admitted by PW1 that one lot of the expiry of drugs have been

sent which cannot be sold otherwise. The plaintiff would

contend that for sending such expiry of goods he did not make

any claim but he has adjusted the same and arrived at

Rs.8,20,000/-. This unexpected and legally not sustainable.

e) Under Ex.A-14, dated 12.12.2011, the 4 th defendant sent a

letter. In that letter it has been categorically asserted by the 4 th

defendant that no part of the claim cannot be entertained as the

drugs have been sold and a price far below the market price.

PW1 admits as follows: 12-12-2011-y; th.rh.M.14-y; 4-k;

 gpujpthjp fbjk; mDg;gpAs;shu; vd;why; rupjhd;. mjpy; mtu;fs;

xj;Jf;nfhz;l njhifapd; fPo; tpw;f $lhJ vd;Wk;> me;j khjpup

tpw;wjw;F mtu; fpnubl; Nehl; xj;Jf; nfhs;s KbahJ vd;W nrhd;dhy;

vd;why; rupjhd;. me;j fbjj;jpw;F ehq;fs; gjpy; Nghltpy;iy.”. It

shows that even in respect of the medicines supplied by the 1 st

defendant to the defendants. The plaintiff was aware that he is

not entitled to reimbursement. If the product is sold at a lesser

price.

The Hon’ble Madurai Bench of Madras High Court by its order

dt.15-10-2018 in CRP (MD) No.1370/2016 and 1371/2016 left open the

question of limitation.

The cause of action for the suit arose on 19-11-2011 and the suit

was filed in the month of August 2012 in the written statement filed by

the defendant. It was brought to the notice of the other plaintiff that the

suit is bad for non-joinder of Vijay Bathra. The plaintiff closed to

conduct the file without impleading the 5 th defendant. Only after the

written argument was submitted on behalf of the 4 th defendant, an

application to implead was filed in the year 2016 in I.A.No.396/2016.

More than 5 years have lapsed from the date of the alleged cause of

action dated 19-11-2011 and more than 4 years passed from the date of

filing of the written statement. In so far as the 5 th defendant is

concerned, the suit is barred by limitation under Sec.3 of the Limitation

Act. Whether or not the defence is raised in the written statement, this

Hon’ble Court is competent to go into question of limitation. It is quite

obvious that the suit against the 5 th defendant is barred by limitation. It

is contended by the plaintiff that under Sec.21 of the Limitation Act, if it

is good faith. The court may direct the suit as regards the plaintiff and

the defendant shall be instituted on an earlier date. This Hon’ble Court

in I.A.No.395/2015 and 396/2015 as permitted to implead the 8 th

defendant. But he did not exercise the power under Sec.21 of the Proviso

viz. that in so far as the impleading party is concerned that it will operate

from the earlier date. In the absence of the same, it is not open for the

plaintiff now to contend that the suit can be passed against the 5 th

defendant from the date of the suit itself. It is against the tenor of Sec.21

of the Limitation Act. The plaintiff would like to reply upon the following

decisions:

It is contended by the plaintiff that under Sec.69 & 70 of the

beneficiary is liable to compensate for the service. The plaintiff had

relied some judgments which are not applicable to the facts of the case.

In the absence of contract, the question of fastening liability does not

arise. The 4th & 5th defendant is not a beneficiary in the real sense of the

contract. It is a matter of fact that the plaintiff admitted that he had

send only the expiry practice. Therefore the 4 th & 5h defendant has not

benefitted from any service from the plaintiff. Therefore the question of

Sec.69 & 70 Contract Act does not arise.

It is therefore prayed that this Hon’ble Court to set aside the decree

and judgment of both the courts below and to allow the appeal.

ADVOCATE FOR THE DEFENDANT

 IN THE COURT OF I ADDITIONAL DISTRICT JUDGE, TRICHY

O.S.No.128/2012

Rahul Bathra .. Petitioner/4th defendant

Vs.

1.R.Balaji
2.M.Balachandran
3.B.Vikram
4.Lalitha Balachandran
5.Vijay Bathra .. Respondents 2 to 5/defendants 1 to 3 and 5

AFFIDAVIT FILED ON BEHALF OF THE 4TH DEFENDANT

I, , advocate clerk, aged about ----------do hereby

solemnly affirm and sincerely state on oath as follows:

1.I am the advocate clerk of the petitioner and I know the state of the

case.

2. I submit that the suit was posted for argument on the side of the

defendants on 14-11-2019.

3. I submit the defendants 1 to 3 are also conducting the case with

different counsel and they had also relived the case them independently.

4. I submit that we were under the impression that only after

argument of the defendants 1 to 3 we may have to submit our argument

on behalf of the 4th defendant. Our advocate was aware from Madurai on

14-11-2019 and he could not make effective argument on that day as

well as not available. However at the defendants 1 to 3 did not turn up.

This Hon’ble Court passed over the matter in the morning. In the

evening, as advocate’s office it engaging another court and as the

defendants 1 to 3 could not make any representation. This Hon’ble

Court passed the matter of judgment on 19-11-2019.

5. I submit that the petitioner herein is a permanent resident of

Chandigarh and within few time we were not in a position to file the

affidavit from the party. However as it is only for making oral

submission and filing this affidavit on behalf of the petitioner.

It is therefore just and necessary that this Hon’ble Court may be

pleased to pass the order, the case is reopened for argument for making

oral submission on behalf of the 4th defendant, pass suitable orders and

thus render justice.

Solemnly affirm and

signed before me on
 IN THE COURT OF I ADDITIONAL DISTRICT JUDGE, TRICHY

O.S.No.128/2012

Rahul Bathra
915, NAIC Money Majra
II Floor, Chandigarh .. Petitioner/4th defendant

Vs.

1.R.Balaji, S/o Ramanathan

No.3, Seshapuram, Tennur, Trichy

2. M.Balachandran, S/o Marudaiah

56, Nataraj Nagar, Thiruparankundram
Madurai.

3. B.Vikram S/o Balachandran,

56, Nataraj Nagar, Thiruparankundram
Madurai.

4.Lalitha Balachandran, W/o Marudaiah

56, Nataraj Nagar, Thiruparankundram
Madurai.

5.Vijay Bathra
Proprietor
Adley Formulations,
915, NAIC Money Majra
II Floor, Chandigarh .. Respondents 2 to 5/defendants 1 to 3 and 5

PETITION FILED BY THE PETITIONER UNDER ORDER RULE

AND SEC.151 CPC

For the reasons stated in the accompanying affidavit, it is therefore,

prayed that this Hon’ble Court may be pleased pass the order, the case is

reopened for argument for making oral submission on behalf of the 4 th

defendant, pass suitable orders and thus render justice.

ADVOCATE FOR 4TH DEFENDANT