THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO A.S.NO.3108 OF 1992 JUDGMENT:- The defendant in O.S.No.513 of 1987 on the file of the court of I Additional Senior Civil Judge, Visakahapatnam is the appellant herein. The suit one was filed for recovery of Rs.87,236-47 paise. The allegations in the plaint goes to show that the plaintiff was appointed as a stockist and the dealer for the sale of the Novino batteries and agreement was entered on 08-04-1986 and later it was modified by the terms dated 12-02-1987. The plaintiff has to sell 66 cases, after evaluating stockist performance and the previous year sales. The monthly turnover should be an investment of Rs.1,25,000/- and 3% incentives will be given every month if the above target is reached. There will be 2% turnover discount against all the purchases under demand drafts. The plaintiff will be reimbursed with two sales-men’s salary of Rs.900/-, bus pass Rs.200/-, batta Rs.260/- and auto charges for 15 days @ 90/- coming to Rs.1,350/-. Half percent collection incentive will be paid on achieving a minimum of Rs.70,000/- target. It was agreed by another agreement that the agreement will be after 31- 12-1987. But without the knowledge of the plaintiff in November 1987 the agency was given to Veenus Marketing Enterprises. The plaintiff was not paid the incentives or 2% discount on turnover and the salary etc., for March-1987 in spite of repeated demands. The plaintiff is also entitled for the loss in December-1987 to a tune of Rs.10,220/- and Rs.5,110/- for the month of November. As the amounts were not paid, the suit was filed. The defendant filed a written statement contending that the subsequent minutes came into operation from 24-02-1987. It was pleaded that the plaintiff did not achieve the target and from 25-02- 1987 to 06-10-1987 the plaintiff purchased only 280 cases as against the agreed 570 cases. The plaintiff purchased only 10 cases in July; 34 cases in August; 21 cases in September and 6 cases in October. The plaintiff is not the sole distributor or stockist of Visakhapatnam district. It is the defendant that has suffered loss and damage. The suit is not maintainable and the court at Visakhapatnam has no jurisdiction. After framing the necessary issues, on behalf of the plaintiff PW.1 was examined and marked Exs.A-1 to A-6. On behalf of the defendant DW.1 was examined and marked Exs.B-1 to B-26. The lower court after considering the evidence on record decreed the suit for a sum of Rs.81,126-47 paise with interest @ 12% p.a. from the date of suit till date of realization. Aggrieved by the said judgment, the present appeal has been filed. Now the point that arises for consideration is:- Whether the plaintiff is entitled for the amount granted by the lower court? POINT:- There is no dispute about the fact that the plaintiff was appointed as a stockist and agent for sale of the batteries and initially under Ex.A-1 the terms were settled on 08-04-1986 and under Ex.A-2 there were altered terms to be effective from 24-02-1987. There is no dispute about the fact that the plaintiff was not paid the amounts from March-1987 onwards. It is also not in dispute that the agency was given to some other person. The learned counsel for the appellant contends that even as per the evidence on record and the findings of the lower court, it is quite clear that the plaintiff has not reached the target and consequently the enforcement of the terms under Ex.A-2 does not arise. Though a statement of account is filed by the plaintiff, the basis of calculation is not clear. The lower court has rejected the claim for loss for the months of November and December and there is no appeal against it. It is not in dispute as can be seen from the evidence of plaintiff that he did not achieve the minimum investment of Rs.1,25,000/- as agreed under Ex.A-2. So also there is no proof that even target of Rs.70,000/- was achieved for the half percent commission. In fact, the findings of the lower court on these two aspects is quite clear wherein in para.7 of the judgment, the lower court found that the plaintiff is admitted that he never reached the target as fixed under Ex.A-2. Therefore, the question as to whether in spite of failure to reach the target the plaintiff is entitled to the commission or incentives. In any business the incentives and the commission is meant for encouraging the agents and even without there being any business the question of payment of commission or incentives does not arise. There is no ambiguity in Ex.A-2 that under Clause.II the stockist has to invest Rs.1,25,000/- per month and under Clause.III 3% incentives will be given on the said amount. Therefore, the Clause II and III have to be read together and if they are read together, in the absence of reaching the target of Rs.1,25,000/- per month, the question of payment of incentives does not arise. So far as the Clause No.IV is concerned, there is an agreement to pay 2% turnover discount against all purchases made against demand drafts. It has nothing to do with the contract. Therefore, the plaintiff will be entitled to these amounts. So far as the salaries etc., is concerned, there is nothing to show that this shall be paid only when the contract is reached. Evidently, the plaintiff has employed staff and was doing business till November. Under Clause No.VIII, half percent collection incentive will be paid on achieving of Rs.70,000/- minimum target. For this also there is no material evidence on the side of the plaintiff. Therefore, from Ex.A- 2 it is quite clear that the defendant has to pay Rs.2,710/- per month irrespective of the target. Evidently, from March-1997 till November- 1997 this amount was not paid. For a period of nine(9) months this amount comes to Rs.24,390/-. So also 2% turnover incentive under Clause.IV has to be paid to the plaintiff and the bills are marked by the defendant himself. Ex.B-1 is the bill dated 27-04-1987 for a sum of Rs.13,940-59 paise and no discount is given. 2% of the discount comes to Rs.278/-. Under Ex.B-2 bill dated 04-04-1987 the discount was given. Under Ex.B-3 bill dated 27-05-1987 discount was not given and the value of the bill is Rs.32,088/- and the discount comes to Rs.640/. Ex.B-4 is the bill dated 27-05-1987 for Rs.22,006-96 paise and discount was not given and the discount comes to Rs.440/-. Ex.B-5 is the another bill dated 27-05-1987 for Rs.14,671-75 paise and no discount was given and the discount comes to Rs.292/-. Ex.B-6 is the bill dated 27-05-1987 for Rs.15,523-42 paise and 2% discount comes to Rs.310/-. Ex.B-7 is the bill dated 27- 06-1987 for a sum of Rs.9,624-29 paise and no discount was given and the discount comes to Rs.192/-. Ex.B-8 is the bill dated 27-06-1987 for Rs.10,367-91 paise and no discount is given and it comes to Rs.206/-. Ex.B-9 is the bill dated 30-06-1987 for Rs.27,200/- and the discount comes to Rs.544/-. Under Ex.B-10 discount was given. Ex.B-11 bill dated 31-08-1987 for Rs.10,283-52 paise and the discount comes to Rs.205/-. So also for the another bill Ex.B-12 dated 31-08-1987 for the same amount and the discount comes to Rs.205/-. Ex.B-13 is the bill dated 16-09-1987 for Rs.8,240-40 paise and no discount was given and it comes to Rs.165/-. Ex.B-14 is the bill dated 16-09-1987 for Rs.7,404- 24 paise and no discount is given and it comes to Rs.148/-. Ex.B-15 is the bill dated 10-08-1987 for Rs.5,603-76 paise and no discount is given and it comes to Rs.112/-. Ex.B-16 is the bill dated 24-08-1987 for Rs.18,523-92 paise for which no discount was given and it comes to Rs.370/-. Ex.B-17 is the bill dated 30-09-1987 for Rs.12,000/- and no discount was given and it comes to Rs.240/-. Ex.B-18 is the bill dated 06-10-1987 for Rs.8,347-92 paise and the discount comes to Rs.167/-. Under Exs.B-20 to B-22 discounts were given and Ex.B-23 is the bill for Rs.12,844-10 paise and no discount was given and it comes to Rs.256/- . Ex.B-24 is the bill dated 25-04-1987 for Rs.14,535-82 paise, for which no discount was given and it comes to Rs.295/-. Thus, the total discount that was denied is Rs.5,065/- and the total amount comes to Rs.29,455/- . But, however, it is not clear as to how the learned Judge has arrived at a sum of Rs.81,126-47 paise. As can be seen from Ex.A-4 the learned judge seems to have taken into consideration the damages for December-1987; damages to the stocks and after deducting only Rs.5,100/- for November damages the suit amount was decreed. When once the contract was terminated even by November and when there is no proof of damages to the stocks earlier given, the suit of the plaintiff should not have been decreed for such a sum. So far as the jurisdiction, which was raised before the lower court is concerned, evidently the first contract was entered into at Visakhapatnam and Ex.A-2 is a continuation of the same with altered conditions and the supply of batteries was at Visakhapatnam. Therefore, it cannot be contended that the court at Visakhapatnam has no jurisdiction. The total amount the plaintiff will be entitled to Rs.29,455/-. Accordingly, the Appeal Suit is allowed in part and the judgment and decree of the lower court is set aside and the suit of the plaintiff is decreed for a sum of Rs.29,455/- with 12% interest from the date of suit till date of decree and thereafter @ 6% from the date of decree till the date of realization. _______________________ N.R.L. NĀGESWARA RĀO,J 28-10-2011 TSNR