Andhra HC (Pre-Telangana)
Varun Motors Pvt. Ltd. vs Maheswari Plaza Resorts Pvt. Ltd. And ... on 1 September, 1999
Equivalent citations: 1999(6)ALD47
ORDER
1. Since both the CMAs and the CRP arise out of the same suit, they are being disposed of by a common order.
2. CMA 863 of 1998 arises out of IA No.316 of 1998 in OS No. 168 of 1998 on the File of the Court of the IV Senior Civil Judge, City Civil Court, Hyderabad, which is a petition filed under Order 39 Rules 1 and 2 read with Section 151 CPC to issue interim injunction against the appellants, who are defendants 1 and 2 in the suit, restraining them from permitting the 3rd respondent, i.e., 3rd defendant, from functioning as dealer of Maruti Cars for the twin Cities of Hyderabad and Secunderabad, pending the suit. CMA 982 of 1998 arises out of IA 428 of 1998 in IA 316 of 1998 in OS 168 of 1998 filed by the appellant (3rd defendant) under Order 39 Rule 4 CPC read with Section 151 CPC to vacate the ex parte order of injunction granted on 24-2-1998 in 1A 316 of 1998 in OS 168 of 1998, which was later extended on 23-3-1998. CRP No.1506 of 1998 arises out of IA 471 of 1998 in IA 316 of 1998 in OS 168 of 1998 filed by the 1st respondent/plaintiff under Order 11 Rule 14 read with Section 151 CPC to direct respondents 2 and 3 i.e., defendants 1 and 2 to produce all applications received by Maruti Udyog Limited in the year 1995, and the connected records.
3. 1st respondent in all the three proceedings is the plaintiff, appellant in CMA No.863 of 1998 and revision petitioner in CRP 1506 of 1998 is the 3rd defendant and the appellants in CMA 982 of 1998 are defendants 1 and 2 in OS 168 of 1998. For the sake of convenience, the parties would be referred to as 'plaintiff and 'defendants' hereinafter.
4. Plaintiff, which is a private limited company, filed the suit seeking a decree of mandatory injunction directing defendants 1 and 2 to appoint it as dealer for Hyderabad-Secunderabad for dealing in the cars manufactured by the Mamti Udyog Limited, and filed IA 316 of 1998 in the said suit seeking injunction against defendants I and 2 restraining them from permitting the 3rd defendant from functioning as dealer of Maruti Cars for the twin Cities of Hyderabad and Secunderabad. The learned trial Judge issued an order of ex parte injunction as prayed for. Thereupon, the 3rd defendant filed IA No.428 of 1998 to vacate the order of ex parte injunction passed against it. On behalf of defendants 1 and 2, a counter affidavit of the Secretary and Chief Legal Officer of Maruti Udyog Limited was filed in IA 316 of 1998. Both IA 316 of 1998 and IA 428 of 1998 were heard together. Exs.Al to All were marked on behalf of the plaintiff and Exs.Bl to B7 were marked on behalf of defendants in the trial Court. The trial Judge by a common order, allowed 1A 316 of 1998 and dismissed IA 428 of 1998 and made the interim ex parte order of injunction passed earlier absolute. During the pendency of IA 316 of 1998 plaintiff filed IA 471 of 1998 under Order 11, Rule 14 read with Section 151 CPC to direct defendants 1 and 2 to produce all the applications received by Maruti Udyog Limited in the year 1995, and also the connected record showing the scrutiny of the said applications and to produce the entire file relating to the appointment of the 3rd defendant as Dealer. The said petition was allowed by the trial Court by the order dated 23-3-1998, which is the subject matter of CRP 1506 of 1998.
5. The brief facts of the case are, during the month of June, 1995, 1st defendant invited applications for appointment of new Dealers for 20 Cities in various parts of the country, including the twin Cities of Hyderabad and Secunderabad, for the sale of Maruti Cars. As per the said terms and conditions, if one wants to apply for more than one city (place) he has to fill up separate application forms for each city, accompanied by Earnest Money Deposit of Rs.50,000/- for each application. All valid applications would be short-listed, as per the criteria mentioned therein, and the shortlisted applications would be considered for site visits by Maruti Officials. Based on the site visits, some applicants would be invited for interview, and a final short-list would be drawn up. After a final list of suitable applicants is drawn for each city, those applicants would be invited to make bids, indicating the amounts they are willing to deposit. The selection of Dealers is subject to the approval of the Board of Directors of Maruti Udyog Limited. One of the terms and conditions is that Companies, individuals and their near family relations, who are owning wholly or partly Maruti Dealership, are not eligible to make the application. In pursuance of the said advertisement, plaintiff submitted its application with a demand draft of Rs.50,000/-. By the letter dated 13-6-1996, plaintiff was informed that some of the officials of Maruti Udyog Limited would be visiting Hyderabad on 20-6-1996 for inspection of facilities and the site proposed to be offered for Maruti Dealership and also to interview the plaintiff. Accordingly, the officials made a visit. Thereafter, since the plaintiff did not receive any communication from defendants 1 and 2, plaintiff addressed several letters to them and later came to know that R.K.S. Motors are given the Dealership for Hyderabad, questioning it plaintiff filed a Writ Petition No.28308 of 1996 in this Court which is pending. On 22-2-1998 plaintiff saw a banner at the premises of the 3rd defendant that a show room of Maruti Cars is proposed to be opened there and, therefore, the plaintiff filed the suit for mandatory injunction directing the defendants 1 and 2 to appoint it as a Dealer, and filed IA 316 of 1998 seeking an injunction restraining defendants 1 and 2 from permitting the 3rd defendant functioning as dealer of Maruti Cars for Hyderabad-Secunderabad.
6. The1 contention of the defendants 1 and 2 is that the plaintiff was informed that his application for dealership was not considered suitable, and that the amount of Rs.50,000/-, sent towards Earnest Money Deposit, was returned to the plaintiff by way of a Pay Order No. 135793 dated 3-1-1997 drawn on Vijaya Bank, Hyderabad, through a registered letter and that they are entitled to enter into agreements and contracts, and act according to their wish and that the 3rd defendant was permitted to open a sales and service outlet in the twin Cities of Hyderabad and Secunderabad, pursuant to the terms of conditions of Dealership agreement entered into between Maruti Udyog Limited and the 3rd defendant, and in view of the writ petition filed by the plaintiff, which is pending, the suit and the petition are not maintainable. The contention of the 3rd defendant is that since no relief against him is claimed in the suit, no injunction can be issued against him in an interlocutory application.
CRT No. 1506 of 1998:
7. Before deciding the CMAs I would like to dispose of CRP 1506 of 1998, which arises out of the order to produce the documents, which are in the custody of defendants 1 and 2 as sought for by the plaintiff. The contention of the learned Counsel for 3rd defendant (revision petitioner) is that the documents, the production of which is sought by the plaintiff, have no relevancy to decide the injunction petition or the suit, because no relief is claimed against the 3rd defendant in the suit. He relied on the observations at page 384 of Vysya Bank Limited v. Seetharamaiah, 1993 ALT Supp. (1) 378, where it is held, after referring to M/s. J.S. Construction Private Ltd v. Damodar, , that before giving a direction to a party to make discovery of documents in his possession or power, or for production of the document, the Court has to be satisfied that the document in question is relevant for the purpose of adjudication of the matter involved in the suit, and that the privilege vested in a party to the suit by the provisions under Order 11, Rules 12 and 14 is not intended to enable him to cause a roving enquiry to fish out information which may or may not be relevant for the disposal of the suit; and contended that since the documents, the production of which is sought, are not relevant for the disposal of the suit, the trial Court was in error in ordering the production of the documents. The contention of the learned Counsel for the plaintiff is that since order of production of the documents is passed against defendants 1 and 2, and since they did not think it fit to question the same in revision, and since the trial Court exercised its discretion and ordered production of documents, this Court need not interfere with the said order in revision. He relied on C. Krishna Prasadv. K. AppaRao, , where it is held that under Order 16, Rule 6 CPC, summoning a person to produce documents, cannot be objected to on the ground of relevancy or admissibility, and that the same has to be decided by the Court only on receipt of the documents. He also relied on Zeenathunnisa v. Md. Abbas, , where it is held that mere illegality in passing an order is not a ground for interference in revision unless miscarriage of justice or enquiry is established.
8. As rightly contended by the learned Counsel for the plaintiff, the order of production of documents is made against defendants 1 and 2, who are in custody of the documents. Since defendants 1 and 2, against whom an order of production of documents is made, did not think it fit to question the order in revision, and since I find no miscarriage of justice by the order under revision in view of Zeenathunnisa v. Md. Abbas, (supra), relied on by the learned Counsel for the plaintiff, and for the view I am going to take in the CMAs, I do not wish to interfere with the order under revision, and hence the revision petition is dismissed.
CMA Nos.863 and 982 of 1998:
9. The main contention of Sri T. Jagdish, learned Counsel for the 3rd defendant is that since no relief is claimed against the 3rd defendant in the suit, no injunction or interim injunction can be granted against the 3rd defendant. He placed strong reliance on Aboobucker v. Kunhamoo, AIR 1958 Madras 287, where it is held that an interim relief granted during the pendency of the suit should not be of greater scope than what could be granted in the suit itself; Raman Hosiery Factory v. J.K. Synthetics, , where, following Aboobucker v. Kunhamoo, (supra), it is held that no interim injunction could be issued in cases where no final relief can be granted; Gujarat Electricity Board v, M/s. Mahesh Kumar & Co., , where it is held that in a suit where no permanent injunction is sought as final relief, ordinarily a temporary injunction cannot be granted, and that the principles which govern the grant of perpetual injunction would govern the grant of temporary injunction also; and M/s. Sagar Art Service, New Delhi v. Municipal Corporation, Gwalior, , where it is held that in case of alleged breach, no injunction can be granted against a party against whom an agreement cannot be specifically enforced. He also relied on Dwarikesh Sugar Industries Ltd. v. Prem Heavy Engineering Works (P) Ltd, , where it is held that when no allegation of fraud is made in the plaint against a beneficiary, bald averments made in the affidavit filed in support of an application for injunction cannot form the basis for the Court granting an interim injunction, and contended that since no relief of injunction is sought against the 3rd defendant in the suit, the trial Court was in error in granting an injunction against the 3rd defendant. He also placed strong reliance on U.P.F.C. v. Naini Oxygen, 1994 (4) Scale 1076, where it is held that Courts should not risk their judgments in commercial and business transactions for the judgments of the bodies to whom the task of taking such decision is assigned. The main contention of Sri Y.N. Lohita, the learned Counsel for defendants 1 and 2 is that the transaction between the defendants is purely a commercial transaction and hence is not justiciable and contended that since the relief claimed by the plaintiff does not come within the purview of any of the provisions of the Specific Relief Act, plaintiff has not established a prima facie case, and contended that the plaintiff, who filed a writ petition questioning the appointment of R.K.S. Motors as Dealer for the twin cities, cannot now file the suit and start a second round of litigation, and contended that the amount of Rs.50,000/- sent by the plaintiff as Earnest Money Deposit was in fact returned to the plaintiff by way of a Pay Order by registered post long time prior to filing of the suit, and since the plaintiff was disqualified after interview, there is no question the plaintiff being called for bidding, and contended that in pursuance of the common order of this Court dated 24-4-1998 in CMP No.7437 of 1998 in CMA 863 of 1998 and CMP No.8605 of 1998 in CMA 982 of 1998, the application of the plaintiff was re-appraised and was rejected again, and so the question of the plaintiff being appointed as a Dealer does not arise under the provisions of the Specific Relief Act, and contended that in pursuance of the agreement entered into between the 3rd defendant and Maruti Udyog Limited, the 3rd defendant was permitted by the Maruti Udyog Limited to open an Outlet for Sales and Service of Maruti Cars at Hyderabad, and that no new contract or dealership is given to the 3rd defendant, and contended that the defendants 1 and 2 are always ready and willing to produce the documents as ordered in IA No.471 of 1998 by the trial Court for perusal by the Court, but sufficient time was not granted to them for producing the same and so the plaintiff cannot make it an issue, and contended that the plaintiff cannot peruse the documents the production of which is ordered by the trial Court. He also contended that since the Maruti Udyog Limited is not a State or an instrumentality of the State, as contemplated by Article 12 of the Constitution of India, principles of Administrative Law have no application to the Company Maruti Udyog Limited, and relied on the unreported decisions P.B. Chayalod v. Maruti Udyog Limited, in CW No.3102 of 1990 dated 11-9-1991 of Delhi High Court, against which SLP No. 17844 of 1991 was dismissed by the Supreme Court; Devraj Garg and another v. Maruti Udyog Limited, in WP No.1302 of 1995 of Madhya Pradesh High Court, Jabalpur Bench at Gwalior, and the judgment of the Supreme Court in IA 6 in WP (Civil) No.588 of 1994 in Ashok Kutnasr Mittal v. Maruti Udyog Limited and another, vacating the earlier orders passed on 6-3-1996, 3-9-1987 and 15-9-1989 in view of the changed circumstances, all of which are being relied on by defendants 1 and 2 in WP No.28308 of 1996.
10. Sri Mahmood Ali, the learned Counsel for the plaintiff in his persuasive and attractive argument, inter alia, contended that the plaintiff, who spent a huge amount for the show room, after the stage of interview, had offered to deposit Rs.1,35,00,000/- as interest free deposit with the Maruti Udyog Limited, and since the plaintiff who has fulfilled all that it is supposed to do as per the advertisement, should have atleast been informed about the outcome of his application, but without intimating any thing to plaintiff, defendants 1 and 2 seem to have chosen the R.K.S. Motors for dealership, regarding which a writ petition is filed, which is still pending, and since suddenly 3rd defendant put up a., banner that it is going to open a new show room for Maruti Cars, plaintiff had to file the suit, and since the dealings between defendants 1 and 2, and 3rd defendant were kept as closely guarded secretes, plaintiff could not, at the time of filing of the suit, know the agreement allegedly entered into between the Maruti Udyog Limited and the 3rd defendant, and, therefore, plaintiff could not seek the relief of injunction against the 3rd defendant in the plaint, and after coming to know about the nature of agreement between Maruti Udyog Limited and 3rd defendant, plaintiff filed an application seeking leave of the Court to amend the plaint, and contended that since the Government of India owns more than 49% of the shares in the Maruti Udyog Limited it has to act fairly and with transparency and contended that the agreement being relied on by the 3rd defendant cannot be true in view of the fact that Ex.Al advertisement mandates that a separate application with earnest money deposit of Rs.50,000/- with each application being made, if application is made for more than one place and so, there cannot be an agency for the whole State, with subsequent permission to open Outlets, at the discretion of the company at any place in the State, as mentioned in Ex.B 1, which, prima facie, is contrary to the terms mentioned in Ex.Al, and so it is prima facie clear that Ex.Bl is the result of collusion between the defendants and contended in view of the embargo placed in Ex.Al that dealers etc,, who have Maruti Dealership are not eligible to apply and so 3rd defendant who has a dealership of Maruti Cars at Visakhapatnam, could not have applied for the dealership of the twin cities of Hyderabad and Secunderabad which also prima facie creates doubt about the genuineness of Ex.Bl, and contended that the plaintiff specifically averred in its reply affidavit that it did not receive the letter with the Pay Order of Rs.50,000/- allegedly sent by Maruti Udyog Limited and since defendants 1 and 2 have not produced the acknowledgment from the plaintiff to show that the plaintiff received the said communication allegedly sent and since in the counter affidavit filed in WP No.28308 of 1996 defendants 1 and 2 did not allege that the amount of Rs.50,000/- was returned to the plaintiff, the alleged return of Rs.50,000/- to the plaintiff under Ex.B3 and Ex.B4 is not true, and contended that the plaintiff can legitimately expect that Maruti Udyog Limited would act fairly and justly in accordance with the advertisement, and contended that the provisions contained in the Specific Relief Act are not exhaustive, and relied on Ashok Kumar Srivastav v. National Insurance Co. Ltd, 1988 (4) SCC 361, in support of his said contentions. He, relying on A.P. State Electricity Board v. Palel and Patel, , contended that the substance of the pleadings has to be looked into, and relying on Rameshwar v. Jot Ram, and Empire Industries Ltd, v. Union of India, , contended that subsequent events also can be taken into consideration in moulding the relief, and the Court can mould the relief according to the circumstances, and relying on A.P.C.M.E. Society v. Government of A.P., , contended that the Court has the power to lift the veil and look into the type of transaction, and contended that necessary inference has to be drawn against defendants in view of the ratio in Raghavamma v. Chenchamma, and Gangal Ram v. Stale ofHaryana, , for defendants 1 and 2 not producing the documents ordered to be produced and contending that the principles of promissory estoppel would apply to the facts of the case and relied on Gujarat State Finance Corporation v. Lotus Hotels, 1983 (1) Scale 584, He contended that plaintiff filed the suit immediately on seeing the banner at the premises of the 3rd defendant, and since Ex.Bl and B2 were kept a secret, and must have been brought into existence subsequently, if at all it is a mere mis-description of the 3rd defendant, which can be connected at any time and relied on Vidyasagar v. Anand Swarup, and A.P. State Electricity Board v. Patel and Patel, (supra) in support of the said contention, and contended that since the trial Court considered the entire material before it, and passed the order of injunction, there are no grounds to interfere with the order under the appeals. In reply, the contention of the learned Counsel for the defendants is that since the petition to amend the plaint filed by the plaintiff is still pending, and is not allowed, the averments in the plaint as they now stand alone have to be taken into consideration for deciding these appeals and the averments in the affidavit filed in support of the petition seeking leave to amend the plaint are not relevant to decide these appeals, and contended that since the amount was returned to the plaintiffby registered post and not by registered post with acknowledgment due, there is no scope for the defendants 1 and 2 producing the acknowledgment, and contended that the principles of Promissory Estoppel and legitimate expectation are not applicable to the private companies. Reliance is placed on Union of India v. Hindustan Development Corporation, , on the question of legitimate expectation.
11. The fact that the plaintiff filed Writ Petition No.28308 of 1996 questioning the appointment of R.S. Motors as Dealer of Maruti Cars is admitted. Ex.A10 is a copy of affidavit and writ petition. Counter affidavit filed on behalf of defendants 1 and 2 in the said writ petition is filed as an annexure to the counter affidavit filed on behalf of defendants 1 and 2 in IA No.316 of 1998. In paragraph 9 of the plaint, plaintiff admitted that defendants 1 and 2 filed their counter affidavit in the writ petition admitting most of the contentions raised in the writ petition, and that their main plank of defence is that the writ petition is not maintainable against Maruti Udyog Limited. In paragraph 11 of the counter affidavit filed on behalf of defendants 1 and 2 in WP No.28308 of 1996, it is specifically alleged:
"The interviews were conducted by a Committee comprising of Director (Marketing and Sales), Executive Director (Marketing and Sales) and Executive Director (Engineering) at Hyderabad. The petitioner herein was one of the applicants short-listed for interview. I submit that only two applicants viz., M/s. R.K.S. Motors and M/s. T.C.I. Finances were finally short-listed for the last stage of selection i.e., the Bid. There is no truth or substance in regard to the contention of the petitioner that they were finally short-listed. There is also further no truth or substance in the averment that the Interview Board was fully satisfied with the facilities and also with the interview of the petitioner herein."
The counter affidavit on behalf of defendants 1 and 2 in the writ petition was filed in March, 1999. The suit was filed on 24-2-1998 i.e., about 11 months after counter affidavit on behalf of defendants 1 and 2 was filed in the writ petition.
12. At this stage I would like to refer to Ex.A1 (terms and conditions of application). Conditions 2, 3 and 4 in ExA1 read:
"(2) Initially short-listed applicants will be considered for site visits, which will be undertaken by Maruti Officials.
(3) Based on the site visits, some applicants will be further invited for interviews and a final short-list will be drawn up.
(4) Once a final short-list of suitable applicants is made for each city based on the above steps, applicants would be required to make sealed bids indicating the amounts they are willing to deposit with Maruti Udyog for being awarded the Dealership....."
So, it is clear from clause (4) of Ex.A1, only such of the applicants in the final short-list, after site visit and interview, would be called for bids. As stated above, in Paragraph 11 of the counter affidavit filed on behalf of defendants 1 and 2 in the writ petition, it is specifically mentioned that only two applicants, i.e., R.K.S. Motors and T.C.I. Finances were finally short-listed for the last stage of selection i.e., bid. So, by the time the plaintiff filed the suit, he is made aware that he was not in the final short-list of candidates to be called for the last stage of selection i.e., bid. But yet, in Paragraph 9 of the plaint, it is alleged by the plaintiff:
"It is submitted that even as per the facilities of work shop and show room facilities, the plaintiff rank the best among the four short-listed applicants. The defendants 1 and 2 are under an application (sic) to invite bids from among the short-listed candidates in relation to the deposit along, that too by furnishing the short-listed candidates the details therein. This is a condition precedent for final selection, as contemplated by condition No.4 of the invitation for applications and all the concerned are bound by the said mandatory requirement. In selecting M/s. U.K.S. Motors Private Limited, the defendants 1 and 2 have violated the condition of the application."
Plaintiff has not stated as to who informed him or how he came to know that he is in the final list of short-listed applicants, though a specific averment was made in the counter affidavit filed on behalf of defendants 1 and 2 in WP No.28308 of 1996, about one year prior to the filing of the suit, that only R.K.S. Motors and T.C.I. Finance were finally short-listed for bids. Neither of conditions 3 and 4 contemplate furnishing the list of short-listed candidates to other applicants, as averred in paragraph 9 of the plaint. Since the name of plaintiff does not figure in the., final list of short-listed candidates, there is no obligation on the part of defendants 1 and 2 to call the plaintiff to participate in the bid. When the plaintiff did not qualify to reach the final stage of bid as per condition No.4 of Ex:A1, Maruti Udyog Limited is under no obligation to consider the offer of plaintiff to deposit 1.35 crores.
13. I am unable to agree with the contention of the learned Counsel for plaintiff that because the Government of India owns about 49% of the shares in the Maruti Udyog Limited, and as such substantial public interest is involved, and therefore it can be brought under the purview of the Administrative Law. As mentioned in the counter affidavit filed on behalf of defendants ] and 2 in the writ petition, the Delhi High Court, the Kerala High Court and the Madhya Pradesh High Court have held that Maniti Udyog Limited is not State or an instrumentality of the State. The Supreme Court also vacated the earlier orders passed in the Public Interest Litigation after Maruti Udyog Limited ceased to be a Government Company on 20-6-1992. The facts in Devraj Garg and another v. Maruti Udyog Limited, (WP No.1302 of 1995 on the file of the High Court of Madhya Pradesh, Jabalpur Bench at Gwalior) (supra), seem to be almost similar to the facts of this case. In that case the petitioners challenged the appointment of the 2nd respondent therein as Dealer of Maruti Udyog Limited in preference to the petitioner therein. The Madhya Pradesh High Court held that when respondent No.l thought that the offer of respondent No.2 is better, the wisdom of 1st respondent in entering into the commercial transaction with the 2nd respondent is not to be made the subject matter of judicial review. Since Maniti Udyog Limited is not 'State' or 'instrumentality of State' principles of administrative law have no application to it. So the doctrine of "legitimate expectation" and "promissory estoppel" can have no application to it. Hence the decisions relied on by the learned Counsel for the plaintiff relating to promissory estoppel, piercing the veil etc., have no application to the facts of this case.
14. Question of appointment of dealers by a manufacturer is a pure business transaction. It is for Maruti Udyog Limited to take decision as to whom it should prefer from among the applicants. Even as per the advertisement, Ex.Al, selection of Dealers will be subject to the approval of the Board of Directors of Maruti Udyog Limited. So, unless the Board of Directors has approved the selection, no person would be appointed as a dealer merely on the basis of the recommendations made by the Inspection Committees. As stated earlier Sri Lohita, learned Counsel for defendants t and 2 stated that in pursuance of the directions dated 24-4-1998 given by Sri Nee/am Sanjeeva Reddy, J. (as he then was) the plaintiffs application was reconsidered and was rejected. In U.P. Finance Corporation v. Naini Oxygen, (supra), the Supreme Court held that in commercial transactions the Court should not risk the judgment for the judgment of the bodies to whom the task is assigned. In the above circumstances it is difficult to hold mat the plaintiff established a prima facie case in its favour.
15. As rightly contended by the learned Counsel for the defendants, since the application filed by the plaintiff seeking leave to amend the plaint is not yet allowed, and is admittedly pending before the trial Court, the contents in the application seeking leave to amend the plaint need not and cannot be taken into consideration for deciding these appeals. The plaint, as it now stands, does not show that any relief is claimed against the 3rd defendant. So even if the suit is decreed today, since the relief sought is mandatory injunction against defendants 1 and 2 to appoint him as a dealer, what all the plaintiff is entitled to is his appointment as a Dealer of Maruti Cars for the twin Cities of Hyderabad and Secunderabad. While decreeing the suit there can be no scope for granting an injunction restraining the defendants 1 and 2 from permitting the 3rd defendant functioning as dealer of Maruti Cars, because no such prayer is made in the plaint and no Court-fee is paid for the said relief, which is a relief different from the relief of mandatory injunctions claimed by the plaintiff. The question whether there is a mis-description of the 3rd defendant, and if it is a bona fide mistake or not, is not very relevant for deciding these appeals. Similarly the power of the Court to take notice of subsequent events and to mould the relief suitably in appropriate cases, as laid down in the decisions relied on by the learned Counsel for plaintiff, have no application for deciding these appeals. It is well settled that injunctions under Order 39, Rule 1 and 2 or Section 151 or Section 94 CPC are granted as a temporary measure till the disposal of the suit, and nothing can be granted by way of an interim relief which cannot ultimately be granted when the suit is disposed of. In K.P.M. Aboobucker v. K. Kunhmoo, (supra), it is held at page 290 (Para 17):
"An interim relief is granted to a person on the footing that the person is prima facie entitled to the right, on which he based the claim for the main relief as well as the interim relief. That relief is granted as an interim measure till the disposal of the suit, in which is to be investigated the validity of the claim of the right that has been put forward.
If no such claim has been put forward in the suit it means that there can be no occasion for investigation of such a claim in the suit, there can be no justification for the grant of an interim relief which will just lapse on the termination of the suit, but will leave the parties in the same position in which they were before the institution of the suit, in the course of which the interim relief was sought and obtained....."
16. It is not the case of the plaintiff that the dealer to be appointed for the twin Cities of Hyderabad and Secunderabad in pursuance of the advertisement Ex.Al, is the sole distributor or sole dealer for the twin cities. So number of dealers can be appointed by Maruti Udyog Limited for Hyderabad to sell its cars even as per Ex.Al, The contention of the learned Counsel for the plaintiff that since the nature of agreement between Maruti Udyog Limited and 3rd defendant came to be known to the plaintiff only after the counters on behalf of defendants were filed and so no relief could be asked in the suit by the plaintiff against the 3rd defendant cannot be accepted in view of the averments in Para 9 and Para 10 of the plaint, reading:
"Plaintiff submits that on 22-2-1998 at the premises of the defendant No.3 a banner is displayed showing proposed showroom for Maruti Dealership. It is submitted that defendants 1 and 2 have been maintaining absolute secrecy in the appointment of dealer in order to avoid scrutiny of their illegal actions. The plaintiff submitted that the display of the banner at the site of defendant No.3 furnishes the plaintiff with the cause of action to file the present suit and the writ petition earlier filed by the plaintiff relates to a different cause of action."
In Paragraph 10 of the plaint, it is alleged.
"Therefore, the plaintiff is entitled to seek the relief of mandatory injunction from this Hon'ble Court directing the defendants 1 and 2 to appoint the plaintiff as the dealer of the defendant company for Hyderabad-Secunderabad since the plaintiff fulfilled all the terms and conditions for the said purpose. The plaintiff submits that the defendant No.3 cannot be permitted to act as a dealer ignoring the lawful claim of the plaintiff. The plaintiff is not aware about the stage at which the application of defendant No.3 is being dealt with by the defendants 1 and 2. In view of the above facts and circumstances, the defendant No.3 is not entitled to be appointed as dealer."
From the above averments it is seen that the case of the plaintiff is that 3rd defendant cannot be appointed as dealer for Hyderabad and Secunderabad. Nothing prevents the plaintiff, who sought an interim injunction restraining the 3rd defendant from acting as dealer for Hyderabad-Secunderabad, from claiming the relief of injunction in the suit, against defendants 1 and 2 from permitting the 3rd defendant to act as dealer. Plaintiff did not choose to seek such a prayer in the plaint, though in the cause of action para it is specifically alleged:
"....... on all days when the officials of Maruti Udyog Limited visited the proposed show room at Hyderabad and finally on 22-2-1998 when the defendant No.3 displayed banner at his premises at Begumpet showing the proposed show room for Maruti Dealership."
The prayer in the plaint is only for mandatory injunction to appoint him as a dealer.
17. As stated earlier, there is also no question of legitimate expectation or promissory estoppel in this case, because Maruti Udyog Limited is not a Government Company. For the same reason the question of transparency of actions of Maruti Udyog Limited also does not arise. For the same reasons there cannot be a judicial review of the action of Maruti Udyog Limited in pursuance of Ex.Al. Even if Maruti Udyog Limited did not follow the procedure in Ex.Al in appointing dealers or if it appointed dealers contrary to the procedure mentioned in Ex.Al, or appoints dealers clandestinely, as is sought to be contended, the same cannot be subjected to judicial review. Plaintiff, if at all, may have to sue for damages.
18. The question whether the plaintiff has received Pay Order for Rs.50,000/-sent by defendants 1 and 2 under Exs.B3 and B4 or not, may not be very relevant for deciding these appeals and can be decided at the time of trial of the suit. The fact remains that the address mentioned in Ex.B3 is the same as the address of the plaintiff mentioned in the plaint. Ex.B4 postal receipt shows that a letter was sent to the plaintiff by registered post from Janpath Post Office on 7-1-1997. No doubt it is true that the counter affidavit filed in the writ petition, on behalf of defendants 1 and 2, does not disclose that the defendants 1 and 2 sent a draft for Rs.50,000/- under Ex.B3 to the plaintiff. But in view of Ex.B4, a presumption can be drawn under Section 114 of the Evidence Act that the letter posted to the correct address of the plaintiff must have been received by him. Since the letter is not sent by registered post with acknowledgment due, there can be no scope for the defendants 1 and 2 to produce the acknowledgment from the plaintiff.
19. The various contentions raised on the validity and genuineness of Ex.Bl agreement and Ex.B2 and B7 and as to whether the 3rd defendant is a 'dealer', or is a 'retail out let' are not very relevant for deciding these appeals for the reasons mentioned above. Similarly the question whether Ex.Bl agreement was entered into in pursuance of Ex.At advertisement or not, need not be decided in these appeals, because no relief is claimed in the suit in respect of the dealership of the 3rd defendant. In view thereof, the non-production of the documents ordered to be produced in IA 471 of 1998 by defendants 1 and 2 is of no consequence for deciding these appeals and so there is no need to draw any inference against the defendants 1 and 2.
20. The number of cars sold through each dealer in twin Cities of Hyderabad and Secunderabad would be a matter of record. The commission of a dealer is fixed. So plaintiff would not suffer any irreparable loss if 3rd defendant continues to act as dealer because plaintiff can be compensated by damages for the commission, etc., lost by sale of cars through the 3rd defendant if he were to ultimately succeed in the suit. Apart from 3rd defendant there, admittedly, are other dealers for Maruti Cars in the twin Cities of Hyderabad and Secunderabad. If the 3rd defendant is not permitted to sell the cars of Maruti Udyog Limited the cars to be sold through 3rd defendant will be sold through other dealers, and thus the balance of convenience is not in favour of granting an injunction. Therefore, 1 hold that the plaintiff failed to establish a prima facie case, and that the balance of convenience is not in its favour, and that it does not suffer any loss much less irreparable loss if injunction is not granted. Therefore, the trial Court was in error in dismissing the vacate petition making the injunction absolute.
21. Before parting with the case, I wish to state that as per Ex.A 1 selection of dealers is subject to the approval of the Board of Directors of Maruti Udyog Limited. Maruti Udyog Limited is a company incorporated under the Companies Act and therefore, is a body corporate and can sue and be sued in its own name. Only the Board of Directors of the Maruti Udyog Limited can take policy decisions, and as per Ex.Al also has to approve the selection of dealers. The decree passed against Maruti Udyog Limited would be binding on defendants 1 and 2, but the decree passed against defendants I and 2 may not be binding on the Maruti Udyog Limited. Defendants 1 and 2, on their own, have no authority to appoint any dealer, even as per Ex.Al. So in my opinion the suit is bad for non-joinder of Maruti Udyog Limited as a party. Even if it is treated as a case of mis-description, unless the plaint is amended by no stretch of imagination can it be said that the present suit is against Maruti Udyog Limited.
22. It is well settled that what cannot be done directly cannot be permitted to be done in an indirect fashion. Had the plaintiff filed a suit for specific performance, since it offered to deposit 1.35 crores with Maruti Udyog Limited, it might have to value the suit for specific performance at that rate. Without doing so, it thought it fit to file a suit for a mandatory injunction to appoint it as a dealer, which is an indirect way of seeking specific performance. Admittedly there is no contract as such between the plaintiff and Maruti Udyog Limited, and even according to plaintiff, his offer came up to the stage of bidding only. In Courtney and Falrbraim Ltd. v. Tolaini Brothers (Hotels) Ltd and another, 1975 All. ER 716, Court of Appeal, Civil Division, held that a contract to negotiate, even though supported by consideration, is not a contract known to law, since it is too uncertain to have any binding force and no Court could estimate the damages for breach of such agreement.
23. Grant of mandatory injunction is governed by Section 39 of the Specific Relief Act, as per which two elements have to be taken into consideration before granting of a decree for mandatory injunction i.e., (1) the Court has to determine what acts are necessary in order to prevent the breach of obligation; and (2) the requisite acts must be such as the Court is capable of enforcing. Only if both the said conditions are fulfilled, would the relief of mandatory injunction be granted. So, it is clear that even for granting of a mandatory injunction, there must be an "obligation" or a "contract", which is enforceable in-favour of the plaintiff against the defendants. In Gibson v. Manchester City Council, 1979 (1) All. ER 972, an offer for sale was made by Manchester City Council, informing the tenant of Council House, that the Council "may be prepared to sell" the house to him and invited him to make a formal application to buy. The tenant completed the application and relumed the application to purchase. Later the Council refused to process the application following the change in policy. It was held that there is no concluded binding contract, for the Court to enforce the same. The facts in (his case also are similar. Plaintiff sent his application in pursuance of Ex.Al advertisement. No binding contract was arrived at between the plaintiff and Maniti Udyog Limited. So, it is prima facie doubtful whether the plaintiff would be entitled to the relief of mandatory injunction in view of Section 39 of the Specific Relief Act. It is settled that establishment of "prima facie case" is the Sine Qua tion for issuing an injunction under Order 39, Rules 1 and 2 CPC.
24. The observations made above, especially in Paragraphs 21 to 23 are only for the limited purpose of deciding these appeals and so, they should not be taken into consideration for disposal of the suit after trial or for dealing with the petition for amendment pendency before the trial Court.
25. In the result, CRP No. 1506 of 1998 is dismissed and CMA Nos.863 and 982 of 1998 are allowed and the common order under appeals is set aside and IA No.428 of 1998 in OS No.168 of 1998 on the file ofthe Court of IV Senior Civil Judge, City Civil Court, Hyderabad filed by the 3rd defendant, is allowed and IA No.316 of 1998 in the said suit filed by the plaintiff is dismissed. Parties are directed to bear their own costs in these appeals and the revision petition.