Recovery suit.
VENKATESH HEGDE
(Querist) 21 November 2011
This query is : Resolved
This is the case now I AM GOING FOR for appeal which is specially challenge for me. The brief facts of the case as follows: This is the franchise based courier business. one person approached the corporate office for the doing the Courier business as he filled the application form along with the security deposit of Rs 15,000/-. the same was registered and giving him a franchise code. After consultation with regional office, without having any franchise agreement he started the business with out knowledge of corporate office. After due inquiry the area of operations has overlapped so Regional office informed that person to due to this reason the agreement is with held by the corporate office & informed that person to stop the business. but that person did not ask the regional office &continued to do the business. After that the regional Manager personally visit that franchise office, & remove the sign board and again ask him to stop the business without having the franchise agreement & to stop to accepting the consignments.Againest the said action by the R.O he filed the recovery suit for compensation & damages.He produced the delivery challans, some receipts, security diposits, and some invoice & appointments letters of his staffs. After hearing the case & examines the wittiness the hon'ble sub court treated it as agency and act of that franchise is treated as implied agency under section 186& 187 of Indian Contract Act& awarded Rs 4 lakh as a compensation & damages. Now i am going for a appeal before the Highcourt taking the contention under section 235 and 236 of Indian Contract Act. In Evidance & Plaint the plaintiff accepted that the R.O instructed to stop the business without having any agreement but he did not ask them and continue the business in there name up to they denying to accept the consignment. Please advise how to continue and any favorable points & citations.( In Lower court company advocate not handling the case properly.. so No def evidence & documents.)
Raj Kumar Makkad
(Expert) 21 November 2011
As the defendant did not lead any evidence before lower court so court had no option but to decide the case on the basis of evidence led by plaintiff. You have not mentioned the reason why you failed to lead your evidence. I am asking this because further course of action depends upon this reason.
You shall have to file an appeal against the impugned judgment and decree and should have to file an application under order 41 rule 27 read with section 151 of cpc seeking additional evidence on the grounds to be mentioned by you therein.
VENKATESH HEGDE
(Querist) 21 November 2011
Thanks For the opinion.. but I have to disclose certain material facts,
1. There was not any proper agreement so Regional manager does not replayed any of the notices.
2. Regional manager does a fraud with corporate office he does not bring notice to the knowledge to C.O
3. advocate also does not ask any documents from the regional manager or he formally filed the objection and not appear the proceedings properly.He is not appearing for cross examination also.
4.the plaintiff evidence are only his employers.. so it is not a strong evidence.
5. finally after 6 month of prouncement of judgement only advocate applied the certifide order copy.. so order 41 rule 27 does not apply as per my knowledge.
6. Now Execution petition also filed as we are asked filed the objection.
so as per my knowledge i have taken a contention only under sec 235 & 236 of indian contract act becouse plaintiff already accepted that he does not ask when regional manager asked to stop the business. it is a strong evidence. atleast i have to convince the court to reduce the award amount ...please advise.
prabhakar singh
(Expert) 22 November 2011
An Executing Court can Not Go behind the decree is well settled principal of law?????
AA RAMAKRISHNAN
(Expert) 29 November 2011
You are fighting a loosing battle. You were not serious when the suit was filed. You were not serious when the evidence was lead. You were not serious when the judgement was pronounced. You were not serious how the matter started and ended. Still you are not serious about proceeding further in the matter. Now how serious you are for what ?
VENKATESH HEGDE
(Querist) 30 November 2011
Dear Mr. Ramamkrishnan.. we now the seriousness.. I know we are fighting without any arms .. but we have to fight.. As an advocate i have to defend them... please find the attachment of RFA Draft... If any valuable suggestion please suggest ...
