Mukesh Sharma v. M/S Faces Cosmetics (India) Pvt. Ltd. & Ors.

1. This Regular First Appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC ) is filed by the plaintiff in the suit impugning the Judgment of the Trial Court dated 28.3.2018 by which 2018:DHC:4878 the trial court has dismissed the suit for recovery of monies filed by the appellant/plaintiff for a sum of Rs.4,15,755/- along with interest.

2. I need not narrate the facts in detail however, the limited facts which require attention are that the appellant/plaintiff claims to have been appointed as a dealer for the cosmetics/goods by respondent nos. 1 and 2/defendant nos. 1 and 2 under an agreement but which agreement was kept with the respondent nos. 1 and 2/defendant nos. 1 and 2 and the appellant/plaintiff does not even have copy of the same. It is further the case of the appellant/plaintiff that the goods in question were to be sold and routed to the appellant/plaintiff through the Super-Stockist of respondent nos. 1 and 2/defendant nos. 1 and 2 and who was the respondent no.3/defendant no.3 in the suit. Since the accessories division was closed down by the respondent no.3/defendant no.3, consequently the cause of action pleaded in the plaint is that unsold stocks lying with the appellant/plaintiff should be taken over either by the respondent nos. 1 and 2/defendant nos. 1 and 2 with whom the appellant/plaintiff had an agreement or the respondent no.3/defendant no.3 from whom the stocks used to be purchased by the appellant/plaintiff.

3. Trial court has found that the appellant/plaintiff has only pleaded that there was a normal trade practice that the goods which remained unsold with a distributor on closure of business or distributorship, are to be taken back by the manufacturer or supplier, however, the trial court has found this as a matter of fact that there is no such agreement proved by the appellant/plaintiff with either of the respondents/defendants that the unsold stocks lying with the appellant/plaintiff had to be taken back by either of the respondent/defendants. I may also add that there is no written agreement filed on record by the appellant/plaintiff that the unsold stocks were to be taken back from the appellant/plaintiff by either of the respondents/defendants. Once that is so, the entire cause of action in the plaint has rightly been disbelieved by the trial court, and with which conclusion I agree because there does not arise an issue of an automatic entitlement of a purchaser of goods to return of the unsold stocks, and that return of such unsold stocks can only be on the basis of an agreement, but no such agreement has been proved by the appellant/plaintiff.

4. Dismissed.

AUGUST 06,2018/ib VALMIKI J. MEHTA, J