Calcutta High Court (Appellete Side)
Aloke Sony India Pvt. Ltd vs Madhuri Commodities Pvt. Ltd on 17 October, 2017
Author: Harish Tandon
Bench: Harish Tandon
1
F.M.A.T. 1116 of 2017
17.10.2017
2 with
Ct. No.8
C.A.N. 9833 of 2017
Vacation Bench
CHC/
Aloke Sony India Pvt. Ltd.
Vs.
Madhuri Commodities Pvt. Ltd.
Mr. Amitesh Banerjee,
Mr. Phiroze Edulji,
Mr. Sanjib Kumar Dan,
Ms. Alotriya Mukherjee
...for the appellant
Mr. Aniruddha Chatterjee,
Mr. Siddhartha Lahiri,
Mr. Suddhasatya Banerjee,
Mr. N. Lal
...for the respondent.
This is an application at the behest of the plaintiff/respondent for variation/vacation and setting aside of the interim order dated 25th September, 2017 passed by the Division Bench in the instant appeal. By the said order the Division Bench stayed the operation of the order dated 18th September, 2017 passed by the trial court while disposing of the application for temporary injunction. The said order is challenged in an appeal filed by the defendant/appellant. While staying the operation of the order the Division Bench observed that the trial 2 court ought to have recorded its finding on the prima facie case as to whether there is any existence of principal agent relationship between the parties and having failed to do so the order of temporary injunction cannot be sustained.
It appears from the findings recorded in the impugned order passed by the trial court that the claim of the petitioner as agent cannot be overruled as the interpretation of channel partner circular and its nature can only be decided after full-fledged trial. It is further observed that the question as to whether the channel partner circular constitute an agency agreement or not is a triable issue and proceeded to dispose of the said application by restraining the defendant/appellant from selling its goods into three districts within the State of West Bengal and also directed the respondent to submit quarterly report relating to the stock of goods to be prepared in presence of the learned advocates of both the parties.
The first and foremost point taken by the respondent in the instant application is that the Division Bench ought not to have stayed the operation of the temporary injunction which was passed on a contested 3 hearing at the time of admitting the appeal as it would tantamount to allowing the appeal itself. In support of the aforesaid contention reliance is placed on an unreported judgement of this Court in the case of Manbasa Devi vs. Calcutta Landing & Shipping Co. Ltd. & ors. in which one of us (Harish Tandon, J) who delivered the said judgement held that the Court should be slow, circumspect and seldom to stay the effect of the temporary injunction at the nebulous stage of admission as nothing would remain in the appeal to be decided at a later point of time.
The aforesaid proposition of law is not free from any exception as the Court in an exceptional and extraordinary case may stay the operation of the impugned order. According to the respondent once a right of agency coupled with an interest is created, it cannot be terminated unilaterally and, therefore, the trial court rightly observed that there is principal agent relationship between the parties and pass an order of temporary injunction.
On the other hand, the learned advocate for the defendant/appellant submits that the relationship between the parties was on principal to principal basis 4 and there was no principal agent relationship ever created or existed between the parties. It is further submitted that, the trial court did not record its satisfaction on the existence of a prima facie case and proceeded on a premise that the interpretation of the channel partner circular prima facie established principal and agent relationship which is the triable issue.
Our attention is drawn to the channel partner circular annexed to the instant application. After perusing the said document and the subsequent materials available from the record we do not feel that the way the trial court passed an order of temporary injunction is sound and within the circumference of the legal parameters. The trial court has proceeded to record that the interpretation of the said circular requires a full- fledged trial without venturing to record its finding on a prima facie case and its relevance to the stand taken by the respondent in the plaint filed in the said suit.
We are not unmindful of the proposition of law as laid down in the said unreported judgement that the Court, ordinarily, should not stay the operation of the order of temporary injunction at the admission stage without affording an opportunity of hearing to the other 5 side if the said order was passed by the trial court on contested hearing except in an exceptional and extraordinary circumstance. Since we venture to enter into the merits of the matter, we feel that it would not be proper to vary/modify and/or vacate the interim order passed by the Division Bench in the instant appeal solely on the ground that the it would amount to allowing the appeal or in other words, the appeal to be rendered paper appeal only. Though the findings recorded in an interlocutory application remains tentative yet it has some persuasive effect in the final adjudication and, therefore, we do not go into those aspect except that the order of temporary injunction passed by the trial court cannot be sustained in the form and manner in which it has been passed. The order impugned is thus modified to the extent that the petitioner shall return all the unused articles received by him from the appellant in a factory sealed condition within a month from date. The appellant shall accept the aforesaid articles and shall accordingly inform the respondent of the credit to be given therefor. The inventory of the articles shall be made by the representative of both the parties before the goods are handed over to the appellant. The damaged goods, if 6 there be any, duly acknowledged by the appellant, shall also be accepted by them. The invoice price of the returned goods shall be deposited by the appellant with the trial court and the same will abide by the result of the suit.
The trial court shall see that the said amount is invested in the short term fixed deposit in any nationalised bank and shall go on renewing the same until the disposal of the said suit or further order whichever is earlier. In the event, any dispute is raised on the acceptance of the articles to be returned by the respondent, it is open to the parties to approach the trial court for an appropriate direction and/or order. If approached, the trial court shall pass the directions without being swayed by the observations recorded hereinabove.
The order dated 18th September, 2017 passed by the learned Civil Judge, 10th Court, Alipore in Title Suit No.49 of 2017 is modified to the extent as indicated above.
In view of the modification of the impugned order there remains nothing in the parent appeal and the same is treated as on day's list and is accordingly disposed of. 7 All connected applications filed in the appeal shall stand disposed of accordingly.
The trial court is requested to make efforts to dispose of the suit as expeditiously as possible.
(Harish Tandon, J.) (Debangsu Basak, J.) 8