REPUBLIC STORES Vs. JAGAJIT INDUSTRIES LTD

JUDGEMENT

(1.) THIS appeal is by the plaintiff whose application for a temporary injunction has been dismissed. The plaintiff M/s Republic stores (Trade) instituted a suit against the defendant-respondent for a mandatory injunction directing the defendant to execute a formal agreement incorporating the terms, conditions and stipulations as set forth in the agreement dated 1st April, 1972 and also for other reliefs. In connection with that suit the plaintiff filed an application for a temporary injunction restraining the defendant from disturbing or interfering with the plaintiffs exclusive right of distribution, in the State of West Bengal, the products of the defendant company. The plaintiff claimed to be the sole distributor of the products of the defendant company throughout the State of West Bengal on the basis of a verbal renewal of an earlier written contract which expired on 31st March, 1975. It was alleged that in violation of the said agreement the defendant had been negotiating with other parties for the sale of its products through them, and thereby the defendant was causing or threatening to cause loss to the plaintiff. The application for temporary injunction was contested by the defendant who denied the material allegations in the application and asserted that after the expiry of the earlier agreement there had been no fresh concluded contract between the parties as alleged by the plaintiff. It was alleged by the defendant that the plaintiff had no right to act as the distributor of the products of the defendant company, far less to act as the sole distributor. The learned Judge was of the view that there was a bonafide contention between the parties but the plaintiff had its remedy by way of damages and the balance of conveyance was against the plaintiff. Upon this view the application for temporary injunction was rejected by the trial court.

(2.) MR. Banerjee appearing on behalf of the appellant has drawn our attention to certain annexure to the petitioner's affidavit-in-reply filed in this court and has contended that the minutes of the meeting between the plaintiff's representative and the defendant's representative as contained in the said annexure would show that there was a concluded contract between the parties on the same terms and conditions contained in the earlier agreement dated 1st April, 1972. By the said agreement dated 1st April, 1972 the plaintiff was appointed the distributor for the products of the defendant company, as mentioned in the said agreement, for the territory of the State of West Bengal. According to Mr. Banerjee although the word "sole distributor" does not appear in the said agreement yet on a reading of the agreement as a whole it follows by necessary implication that the plaintiff was appointed the sole distributor for the products of the defendant company, as mentioned in the said agreement, for the territory of West Bengal. Mr. Banerjee contended that as per verbal agreement between the parties there was a fresh concluded contract for such sole distributorship for another period of 3 years beginning from 1st April, 1975 on the same terms and conditions as in the earlier agreement. That being the position Mr. Banerjee contended that the trial court ought to have granted the injunction which was prayed for by the plaintiff.

(3.) ON behalf of the respondent it was contended that since clause 2 (b) of the agreement provides that nothing in the agreement would preclude the company from selling and supplying its products in the territory directly through other whole seller the appellant was not and could not have been the sole distributor of the products of the respondent company. Whether the appellant was the sole distributor or not is a matter to be decided in the suit itself. Clause 23 of the agreement entitles either party to that agreement to terminate the same by giving the other party 30 days notice in writing without liability to pay any compensation. That being so even assuming that the appellant was the sole distributor its distributorship can be terminated by the respondent by giving 30 days notice in writing. Therefore, even if there was a concluded contract between the parties such an agreement is determinable at the will of either party. Section 14 of the Specific Relief Act, 1963 provides that certain contracts cannot be specifically enforced. One of such contracts is a contract which is in its nature determinable. Section 41 of the said Act provides that an injunction cannot be granted inter alia, to prevent the breach of contract the performance of which would not be specifically enforced. In the present case the contract between the parties even if there be any could not be specifically enforced and as such an injunction cannot be granted. In support of his contention Mr. Banerjee relied upon the decisions in Chandidat Jha vs. Padmanan Singh Bahadur, ILR 22 Cal. 640 and M/s Begg Dunlop and Co. vs. Satish Chandra Chatterjee 28 CWN 677. On behalf of the respondent reliance was placed upon the decision in Dominion of India vs. R. B. Sohan Lal 1950 East Punjab 40; N. C. Sircar and Son vs. The Barabani Coal Concern Ltd. 16 CWN 289 and Regional director (Food), Ministry of Food and Agriculture vs. Arjan Singh Bhangoo 73 CWN 267. There is no dispute with regard to the propositions of law laid down in these decisions. But in view of the fact that the performance of the alleged agreement cannot be specifically enforced and therefore no injunction can be granted, it is not necessary for us to discuss the abovementioned cases cited by the parties. Moreover, temporary injunction Can be granted in aid of the main relief prayed for in the suit. If the mandatory injunction cannot be granted the prayer for temporary injunction cannot be allowed.