M/s. Thakur Agency vs M/s. Campco Ltd. and Others

L.N. Mittal, J.

CM No. 4822-C of 2011:

Allowed as prayed for

Main Appeal:

This is second appeal by plaintiff M/s. Thakur Agency through its partner Ajay Singh Thakur, having remained unsuccessful in both the courts below.

Plaintiffs case is that defendant No.1 is manufacturer of Campco Chocolates, whereas defendant No. 3 is super stockiest thereof and defendant No. 2 is Sales Manager. Plaintiff is wholesale dealer of defendants No.1 and 2 for Campco Chocolates at Hoshiarpur. There is no other dealer at Hoshiarpur for the same. Plaintiff deposited security of Rs. 2,000/- with defendant No. 2. Plaintiff was admitted as wholesale dealer by defendants No.1 and 2. Defendant No. 3 super stockiest had been supplying Campco Chocolates, in Punjab including the plaintiff at Hoshiarpur. The plaintiff on 28.08.2002 sent draft for Rs. 4,200/- to defendant No. 3 for supply of the Chocolates, but defendant No. 3 instead of supplying the same returned the draft to the plaintiff vide letter dated 02.09.2002 and also informed the plaintiff that defendants have made retailers in Hoshiarpur town. The plaintiff alleged that defendant No. 3 has no right to stop supply of the Chocolates to the plaintiff because defendant No. 3 is neither manufacturer nor official of defendant No.l. It was pleaded that defendants No.1 and 2 have not issued any letter terminating the wholesale dealership of the plaintiff. Accordingly, plaintiff sought mandatory injunction directing the defendants to supply Campco Chocolates regularly to the plaintiff. Injunction restraining defendants from stopping the delivery of the Chocolates to the plaintiff and from supplying the Chocolates to any other dealer in Hoshiarpur was also claimed. Defendants No.1 and 2 in their written statement challenged territorial jurisdiction of the Court at Hoshiarpur, claiming that Head office of defendant No.1 is at Mangalore (Karnataka) and Regional offices are in Delhi, Mumbai, Kolkata and Bangalore and Branch office for Punjab State is at Chandigarh. It was also pleaded that defendant No. 3 has already appointed stockiest at Hoshiarpur who are necessary parties to the suit. It was, however, admitted that plaintiff was stockiest of defendant No.1 up to the year 1998. Thereafter, plaintiff became stockiest of defendant No. 3 (super stockiest) till September, 2002. Defendant No. 3 terminated the stockiest ship of the plaintiff vide letter dated 02.09.2002 because the plaintiff failed to carry on the business with proper devotion and care and could not promote the sales upto stipulated volume. Defendant No. 3 accordingly suffered great loss. Defendant No. 3 has appointed another stockiest for Hoshiarpur city. There was no contract between the parties that the plaintiff would remain wholesale dealer for the whole life. Various other pleas were also raised.

Defendant No. 3 also took similar stand as that of defendants No.1 and 2.

Learned Additional Civil Judge (Senior Division), Hoshiarpur vide judgment and decree dated 09.02.2006 dismissed the plaintiffs suit. First appeal preferred by plaintiff has been dismissed by learned Additional District Judge, Hoshiarpur vide judgment and decree dated 04.01.2011. Feeling aggrieved, plaintiff has filed the instant second appeal.

I have heard learned counsel for the appellant and perused the case file.

The plaintiffs claim is entirely misconceived and misplaced. It is not even the plaintiffs case that he was appointed wholesale dealer by the defendants for his whole life. Defendant No. 3 has already terminated the dealership of plaintiff vide letter dated 02.09.2002 as averred by the plaintiff himself. Consequently the plaintiff has no right to continue as wholesale dealer of the defendants.

Learned counsel for the appellant contended that dealership of the plaintiff has not been terminated. The contention cannot be accepted because the defendant No. 3 admittedly sent letter dated 02.09.2002 to the plaintiff, intimating that some other retailer had been appointed in Hoshiarpur town. Draft sent by the plaintiff for supply of Chocolates was also returned to him. Consequently it cannot be said mat dealership of the plaintiff has not been terminated. Even assuming for the sake of argument that the dealership of the plaintiff has not been terminated, even men the plaintiff would be entitled to damages and not mandatory and permanent injunction as prayed for. At the risk of repetition it has to be highlighted that it is not the plaintiffs case that he was appointed wholesale dealer for his whole life nor there is any material on record to depict that plaintiff has right to continue as wholesale dealer of the defendants, even if defendants do not want to retain him.

It is also worth mentioning that new dealer appointed by defendant No. 3 has not been made party to the suit, although his interests would also be adversely affected if the suit is decreed and, therefore, the suit is bad for non-joinder of the said dealer who is necessary party to the suit in the aforesaid circumstances. The plaintiff-appellant has to be non-suited for this added reason as well.

For the reasons aforesaid, I find no merit in the instant second appeal. Concurrent finding recorded by the courts below non-suiting the plaintiff is fully justified by the evidence of the parties. The said finding is not shown to be perverse or illegal in any manner nor it is based on misreading or mis-appreciation of the evidence, so as to call for interference in second appellate jurisdiction. The appeal does not raise any question of law, much less substantial question of law, for determination. Accordingly the appeal is dismissed in limine.