THE HON’BLE SRI JUSTICE ABHINAND KUMAR SHAVILI AND THE HON’BLE SRI JUSTICE VAKITI RAMAKRISHNA REDDY CITY CIVIL COURT APPEAL No. 314 of 2018 JUDGMENT: (Per Hon’ble Sri Justice Vakiti Ramakrishna Reddy This Appeal is filed by the appellant/plaintiff against the Judgment and Decree dated 23.01.2018 passed in O.S.No.514 of 2005 (hereinafter will be referred as ‘impugned judgment’) on the file of XVII Additional Senior Civil Judge, City Civil Court (hereinafter will be referred as ‘Trial Court’), wherein the suit filed by the plaintiff against the defendant for recovery of money was dismissed.

2. For the sake of convenience, the parties shall be referred to as they were arrayed before the Trial Court.

I. BRIEF FACTS:

3. The plaintiff and the defendant entered into a Memorandum of Understanding (MOU) dated 11.08.2001 under which the plaintiff agreed to transfer various cable networks, including Vimusha Vision, Meghana Vision, and Yamini Vision, collectively comprising about 10,000 subscribers, for a total consideration of Rs.3,01,50,000/-.

4. Pursuant to the MOU, several Business Transfer Agreements (BTAs) were executed on 29.11.2001, 13.11.2001, 27.12.2001, and 28.01.2002. Under the BTA dated 27.12.2001, the agreed consideration was Rs.40,25,000/- out of which Rs. 36,22,500/- was admittedly paid by the defendant, leaving a balance of Rs. 4,02,500/- payable within 60 days.

5. The plaintiff asserts that despite repeated demands and legal notices, the defendant failed to pay the balance. Including interest, the plaintiff claimed Rs. 6,07,675/- and instituted O.S. No. 514 of 2005 before the Trial Court.

6. The defendant resisted the claim, contending that under Clause 3.3.2 of the BTA, payment of the balance was conditional upon the plaintiff achieving 1370 paying subscribers and average monthly collections of Rs.1,75,000/- by 27.02.2002. It was pleaded that since the plaintiff failed to satisfy these conditions, the liability never arose.

II. ISSUES FRAMED BY THE TRIAL COURT:

7. On the basis of pleadings, the Trial Court framed the following issues:

(i) Whether the plaintiff is entitled for the recovery of suit amount of Rs.6,07,675/- with future interest at 18% per annum from the date of suit till realization?

(ii) Whether the defendant has entered into the Business Transfer Agreement dated 27.12.2001 with the plaintiff in good faith?

(iii) Whether the plaintiff is entitled for declaration of Clauses 5.5, 8 and 9 of the said Agreement on the ground of the clauses being unreasonable, opposed to public policy and unfair?

(iv) To what relief?

III. EVIDENCE ON RECORD:

8. The plaintiff examined himself as PW1 and produced Exs. A1 to A42, which comprised the MOU, BTAs, receipts, acknowledgments, and records of part payments.

9. The defendant did not examine himself nor adduce any oral or documentary evidence.

IV. FINDINGS OF THE TRIAL COURT:

10. The Trial Court dismissed the suit by judgment dated 23.01.2018, holding that:

a. The plaintiff failed to prove fulfillment of contractual conditions under Clause 3.3.2 of the BTA.

b. Without establishing subscriber strength and collection figures, the balance of Rs. 4,02,500/- did not become payable.

c. The clauses challenged by the plaintiff (5.5, 8 and 9) could not be said to be unconscionable or opposed to public policy.

d. Consequently, the plaintiff was not entitled to the relief claimed.

V. SUBMISSIONS OF THE PARTIES:

a). Submissions on behalf of the Appellant/Plaintiff (Party-in-Person): 11. The plaintiff, appearing in person, contended that the Trial Court gravely erred in ignoring Exs. A1–A42, which include admissions and acknowledgments of liability by the defendant. He argued that even during pendency, the defendant made part payments, which clearly establish subsistence of liability.

12. It is contended that the defendant, while setting up a defence under Clause 3.3.2, deliberately withheld the collection records which were in his exclusive possession. Further, the defendant never entered the witness box. Suc