USHA INTERCONTINENTAL INDIA Vs. OMICRON ELECTRONICS GMBH

JUDGEMENT

(1.) The Plaintiff has prayed for the issuance of an injunction retraining the Defendants from marketing/setting their products in India either directly or through an agent other than the Plaintiff. In respect of its application under Order XXXIX Rules 1 and 2 of the CPC an ex parte ad interim injunction had issued on the first date of hearing on 15,9.2004. This Order was partially modified on the following date, that is, 5.10.2004 permitting the Defendant to submit its Tenders for ABB (internally), ABB (KPCL), NTPC Auriry (KPCL), Siemens Mumbai and PowerGrid CIL (Southern R.). The Defendant has also filed an application under Order XXXIX Rule 4 seeking the recalling of the ex parte ad interim injunction. These applications shall be disposed of by these Orders.

(2.) Mr. Jaitley, learned Senior Counsel for the Plaintiff has read out extensively from the correspondence exchanged between the parties. It is his contention that a perusal of the correspondence discloses that the Defendant had contracted to sell its products in India exclusively through the Plaintiff. He has predicated his arguments on the fact that various third parties had been diverted by the Defendant to the Plaintiff for all trade purposes ; that representations have been made by the Defendant to the effect that the Plaintiff is its exclusive distributor in India and that the Defendant would be looking forward to serve all prospective clients through the Plaintiff; and that it had issued a General Certification dated 27,5.2002 stating that the Plaintiff is its sole authorised representative in India. These arguments were addressed specifically for the reason that avowedly no written contract exists between the parties hereto. At this stage of the proceedings the Court must be convinced that a prima facie case has been disclosed, namely, that there is a preponderant possibility that the Plaintiff may proved case after the Trial. For the issuance of a temporary injunction the Plaintiff is not required to conclusively or overwhelmingly prove all the necessary facts which would entitle it to a Decree. It certainly appears to me that Mr. Jaitley is correct in contending that over the years the fluid commercial relationship between the parties had transformed into a fixed one where the Plaintiff acted as the Sole Representative of the Defendant in India. I shall revert to the aspect of the existence of a prima facie case again, later in these Orders.

(3.) The argument of Mr. Jaitley is that the balance of convenience lies in favour of the Plaintiff. Business was being transacted in India by the Plaintiff on behalf of the Defendant for several years. There were parleys and negotiations of the manner in which this relationship could be brought to act end amicably and to the mutual benefit of both the parties. From the correspondence it is evictent that there was a proposal to continue with the relationship for periods ranging between three years to five years. Ordinarily the Court would lean towards the maintenance of status quo during the pendency of the legal action. In this case, however, the correspondence also bears out that the Plaintiff was well aware of the termination of the relationship with effect from 30.9.2004. The Plaint itself contains this recital and the claim of damages could have been prayed for only on the assumption of this termination