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Judgment
A.V. Chandrashekara, JJ.—This is an appeal filed by the plaintiff against the judgment and decree passed by the learned XIX Addl. City Civil Judge, Bangalore, in O.S. No. 7671/1999 on 17.04.2008 in so far as it relates to the conditions imposed in paragraphs 3 and 4 of the order portion at page-25 of the impugned judgment. Appellant is the plaintiff in the said case and respondent is the defendant in the said suit. Parties will be referred to as plaintiff and defendant.
The appellant had filed a suit for recovery of money and the Trial Court has partly decreed the suit. The Trial Court has held that the plaintiff can claim royalty charges after clearing the legal hurdle from De. Rauiter''s New Roses International in the Netherlands and NIRP International in France/Italy and this has to be done in a specified period of nine months. The plaintiff, being aggrieved by the said conditions imposed in paragraphs 3 and 4 of the operative portion of the judgment, has filed this appeal.
The appellant is a Company which is engaged in Floriculture and is holding licence in the territory of India for Paul Pekmez rose varieties. Defendant is a Company incorporated under the Companies Act and is engaged in floriculture and export of floriculture material including various kinds of flowers. The respondent raised a purchase order on the appellant to supply 60,000 rose plants (first red) at Rs. 62/- per plant. As such, the total value of 60,000 rose plants was Rs. 37,20,000/-. According to the plaintiff, the cost of the plant included royalty charges. The defendant had paid a sum of Rs. 4.5 lakhs as advance and appellant delivered 60,000 rose plants pursuant to the purchase order. Later on, the defendant paid certain sums as advance and in all, had paid a sum of Rs. 11.75 lakhs to the plaintiff. The defendant did not pay the balance and hence the appellant had to file a suit for recovery of money for a sum of Rs. 28,74,997/- claiming interest at 21% p.a.
The defendant appeared before the Trial Court and filed written statement. The main defence of the defendant, as could be seen from the written statement is that, it was not liable to pay the royalty charges as it had received a legal notice from one Steenbergen, Advocate, to the effect that one NIRP International is the worldwide owner of all rose varieties with variety denominations beginning with "Pek" and "NIRP" and that no representatives of late Mr. Pekmez including the appellant are entitled to exploit or represent the Pek variety without an explicit permission from NIRP International. On receipt of the said legal notice, the defendant denied its liability to pay royalty charges.
On the basis of the above pleadings, the following issues came to be framed:
Does Plaintiff proves that the defendant is due a sum of Rs. 24,25,000/- towards price and royalty of rose plants supplied?
Is Plaintiff entitled to interest as claimed?
Is Plaintiff entitled to the suit claim?
What relief?
On behalf of the plaintiff, Suresh J. Naidu, has been examined as PW 1 and G. Madan Mohan has been examined as DW 1 on behalf of the defendant. In all 33 documents have been got marked on behalf of the plaintiff and 22 documents have been got marked on behalf of the defendant. After hearing the arguments and perusing the evidence, the learned Judge has answered issue No. 1 partly in the affirmative and issue No. 2 partly in affirmative holding that plaintiff is entitled to claim 12% interest on Rs. 5,05,000/- from the date of suit till the realization and issue No. 3 has been held partly in the affirmative and issue No. 4 has also been held partly in the affirmative, subject to certain conditions.
The conditions imposed in page-25 of the impugned judgment relating to the reliefs granted are as follows:
It is made clear that the Plaintiff is not precluded to claim royalty charges after clearing the legal hurdle from De. Rauiter''s New Roses International in the Netherlands and NIRP International in France/Italy and this is to be done in a specified period of nine months. Thereafter the Plaintiff loses right.
If after nine months the Plaintiff clears the hurdle the defendant is liable to pay Rs. 18,45,000/- (Rupees Eighteen Lakhs Forty Five Thousand only). If he fails to pay the same it carries interest thereafter at the rate of 12% p.a.
Plaintiff is aggrieved as it has been directed to clear the legal hurdle from De. Rauiter''s New Roses International in the Netherlands and NIRP within a period of nine months and then only the plaintiff would be entitled to recover Rs. 18,45,000/- at 12% p.a.
Several grounds have been urged in the appeal memo filed before this Court. It is contended that the Trial Court has erred in imposing the conditions in paragraphs-3 and 4 of the operative portion of the judgment and that it could not have done so. It is further contended that Rs. 62/- per plant was inclusive of royalty charges. It is further contended that when the defendant and respondent has to pay royalty charges, it could not have imposed such conditions.
It is further contended that Ex. D15 is only a legal notice and on the basis of the same, the Trial Court has come to the conclusion that there is a lis between the appellant on the one hand and De. Rauiter''s New Roses International in the Netherlands on the other hand. It is contended that no document has been produced on behalf of the defendant to substantiate the contents of the legal notice and that the award stated to have been passed by the Arbitration Institute of France has not been produced and that contents of the alleged award are also not known, more so, when the appellant is not a party to the alleged proceedings. Hence it is contended that neither the award nor the legal notice got issued vide Ex. D15 by the plaintiff bind them. It is further contended that PW 1 has produced the certificate issued by Mr. Paul Pekmez which is in confirmation of the exclusive licence given to the appellant and agent in the territory of India for Paul Pekmez vide Ex. P25. The Trial Court is stated to have lost sight of Ex. P27, the approval issued by the Government, Ministry of Industries, for the collaboration with Paul Pekmez International, France. The Trial Court is stated to have not properly appreciated Ex. P25, which confirms that the appellant is the exclusive licence and agent in the territory of India for Paul Pekmez rose varieties.
Hence it is contended that the said conditions could not have been imposed by any stretch of imagination. The judgment and decree of the Trial Court insofar as it relates to two conditions in paragraphs 3 and 4 of the operative portion of the judgment is stated to be opposed to law, facts and probabilities. Hence, it is prayed to allow the appeal and decree the suit as prayed for.
We have heard the arguments of the learned Advocates at length and we have perused the records. After going through the records and hearing the arguments following points arise for our consideration:
Whether the learned Trial Judge is justified in imposing conditions on the plaintiff to claim royalty only after clearing the legal hurdle from De. Rauiter''s New Roses International in the Netherlands and NRIP International in France/Italy within nine months and thereafter only, it will be entitled to claim Rs. 18,45,000/- with interest at 12% p.a.?
Whether any interference is called for by this Court and if so, to what extent?
Re. Point No. 1:
The fact that the defendant had placed an order for supply of 60,000 roses of Paul Pekmez variety, is not in dispute. The fact that in all a sum of Rs. 11.75 lakhs had been paid as advance by the defendant to the plaintiff on various dates is also not in dispute. The balance payable by the defendant was Rs. 28,74,997/- with interest at 21% p.a.
Mr. Suresh J. Naidu, examined as PW 1 was the General Manager of the plaintiff-Company and he was well acquainted with the facts of the case. He has sworn to that the plaintiff is a Company engaged in floriculture and are exclusive licence and agent in the territory of India for Paul Pekmez rose variaties.
Suggestion put to him that plaintiff was not entitled or authorized to collect royalty has been specifically denied. To a suggestion put to him as to whether he had received any notice issued by Steenbergen, Advocate, from Amsterdam, he has specifically answered in the negative. That was confronted to him and got marked as Ex. D1. He has specifically denied the suggestion that the signature found in Ex. D1(a) is the signature of one Daniel, farm Supervisor of plaintiff-Company. The tenor of the cross-examination would disclose that it had been suggested to PW 1 that defendant was not expected to pay the royalty since the plaintiff was not the official representative to collect the royalty.
Per contra, G. Madan Mohan, Managing Director of the defendant-Company has been examined as DW 1. He has been cross-examined at length. As to a specific question whether any payment of royalty had been made by the defendant to the Company named as De. Rauiter''s New Roses International in the Netherlands, he has answered in the affirmative stating that payment had been made. According to him, they have not accepted the payment made through cheque and have returned it. But curiously enough defendant has not produced those cheques. Therefore, the probable inference that could be drawn is that no payment was made to De. Rauiter''s New Roses International regarding royalty and that they were not in fact entitled to collect the same. On the other hand, defendant has not produced any document to show that it had sent an amended purchase order to the plaintiff-Company. In fact, Exs. P25 to 27 were confronted to him. He has denied the same, but mere denial would not lessen the validity or authenticity of Exs. P25 to 27 which authorizes the plaintiff-Company to collect the royalty for supply of plants.
Therefore, we are of the considered opinion that the legal notice got issued would not come in the way of plaintiff claiming royalty, moreso, in the light of there being no specific inhibition to claim royalty. As already discussed, non-production of the so-called cheques is also a circumstance which goes against the defendant.
Taking into consideration the overall circumstances of the case and the evidence placed on record, we are of the considered opinion that the Trial Court is not justified in imposing conditions as found in paras-3 and 4 of the operative portion of the judgment, hence we answer point No. 1 in the negative.
Re. Point No. 2
In view of our negative finding on point No. 1, absolutely interference is called for by this Court and accordingly, the conditions imposed on the plaintiff in regard to the recovery of money of Rs. 18.45 lakhs from the defendant are to be deleted, thereby allowing the plaintiff to claim in all a sum of Rs. 23,50,000/- with interest at 12% p.a. from the date of suit till the realization. Consequently, the appeal is to be allowed with cost. The judgment and decree passed in O.S. No. 7671/1999 stands modified. The conditions imposed in paragraphs 3 and 4 of the operative portion of the judgment stand deleted.