Sikand Standley Enterprises Pvt. Ltd. vs Rahul Parikh

Valmiki J Mehta, J.—The challenge by means of these Regular First Appeals u/s 96 of the Code of Civil Procedure, 1908 is to the impugned judgment and decree dated 29th November, 2010 whereby the suit of the Respondents/plaintiffs was decreed and by which decree Appellant/Defendant was directed to refund the security deposits of Rs. 8,00,000/- and Rs. 7,00,000/- along with the interest at 9% per annum simple.

The admitted facts are that the Appellant/Defendant received amounts from the Respondents/plaintiffs towards security deposit. Once the contract of distributorship between the parties came to an end, the Appellant/Defendant was duty-bound to refund the security deposits because admittedly no loss was proved before the Trial Court entitling the Appellant/Defendant to forfeit the security deposits. Also, the MOU dated 28.8.2004 (sic: 29.8.2004) did not provide any specific and minimum amount of sale which was to be done by the Respondents with the Appellant''s product, and what was expressed in the MOU was only a desire/expectation of the Appellant qua the Respondents/plaintiffs. The Trial Court has also noted that the Appellant failed to prove as to how the goods which were allegedly ordered by the Respondents, but not taken by them, could not be disposed of by the Appellant. There was no other argument before the Trial Court or this Court seeking forfeiture of the security deposits.

On merits therefore the Appellant has no case and nor is there any disputed finding of fact which calls for interference with the impugned judgment and decree passed by the Trial Court.

Learned Counsel for the Appellant argued two points before this Court. The first was based upon Para 7 of the impugned judgment whereby the Trial Court allowed amendment in the title of the suit and the plaintiff was treated as a sole proprietor instead of the sole proprietary concern, in whose name the suit was filed. I may note that though the Trial Court has referred to the decision in the case of Kedarnath Mattulal Vaish and Another Vs. Baboolal and Another, in support of its conclusion, I note that this issue is now settled by the Supreme Court in its judgment in the case of Ganesh Trading Co. Vs. Moji Ram, in which case, the Supreme Court allowed the amendment of the suit to correct the description of the plaintiff from the proprietorship firm to a proprietor stating that no prejudice at all in such cases is caused to the Defendant. I, therefore do not find that there exists any justifiable reason to find fault with the action of the Trial Court while deciding issue No. 1 in treating the suit as having been filed by the sole proprietor instead of sole proprietorship concern.

The second argument which was raised by counsel for the Appellant was that the MOU in question which was relied upon between the parties was the MOU dated 29.8.2004, but since the exhibit mark was put though wrongly, on the MOU dated 17.6.2004, Ex.PW1/3, therefore, the Trial Court in Para 9 could not have relied upon the MOU dated 29.8.2004. I am once again unable to agree with the contention put forth by learned Counsel for the Appellant inasmuch as simply because there is a clerical/administrative mistake in putting an exhibit mark on a wrong document, would not mean that the correct document is not exhibited. The Appellant itself had relied upon the MOU dated 29.8.2004 in support of his case, and which was the document which was sought to be exhibited as MOU, therefore the Trial Court rightly held that it has treated the MOU dated 29.8.2004 as Ex.PW1/3 instead of MOU dated 17.6.2004 on which the exhibit mark was wrongly put, and which latter MOU was not relied upon by any of the parties.

In view of the above, I do not find any merit in these appeals which are therefore dismissed leaving the parties to bear their own costs.

CM No. 3055/11 in RFA No. 97/11 & CM No. 3058/11 in RFA No. 98/11

Since the main appeal is disposed of, therefore all pending applications stand disposed of having become infructuous.