Delhi High Court
Unicure Pharmaceuticals vs Pamir International Pvt. Ltd. on 1 May, 1996
Equivalent citations: 1996IIIAD(DELHI)221, II(1996)BC104, 63(1996)DLT110
Author: Lokeshwar Prasad
Bench: Lokeshwar Prasad
JUDGMENT Lokeshwar Prasad, J.
(1) The plaintiff, named above, has filed the suit for permanent and mandatory injunction against the defendant. The case of the plaintiff, briefly stated, is that the plaintiff is a duly registered partnership firm inter-alia engaged in the business of manufacture of pharmaceuticals and that Shri Bharat Shah who is one of the registered partners of the plaintiff firm is fully conversant with the facts of the case and has signed and verified the plaint and instituted the present suit on behalf of the plaintiff firm.
1.1It is alleged that one Himalaya Limited of Afzal Market,3rd Floor, Post Box No. 1262, Kabul (Afganistan) placed an order on the plaintiff for the supply of TAB.PARACETAMOL- 500 Mg. vide letter dated 19th December, 1992 of a value of Us $ 59000. It is alleged that the defendant is the agent in the transaction as the plaintiff was to send the goods in question from Baroda to Delhi by road transport and thereafter by air through the defendant to the above said Himalaya Ltd. The plaintiff sent the goods to defendant as per the invoices and packing list as detailed in para 4 of the plaint. It is alleged that the plaintiff had delivered/sent the aforesaid consignment of goods to the defendant by road transport through Nitco Roadways who issued goods receipt/consignment notes bearing No. 885713,430771, 197141, 197159 and 430656.
1.2It is alleged that there is collusion between the defendant and the said Himalaya Ltd. and that the defendant manipulated and/or tampered and/or forged the documents with dishonest intention and that the defendant is attempting to himself misappropriate the goods belonging to the plaintiff with a view to make personal gain dishonestly. It is alleged that the defendant has no right, title, interest . and/or authority to dispose of and/or to hold the said goods contrary to the Will and directions of the plaintiff who alone being the owner has the right of disposal in respect of the said goods.
1.3It is averred that the plaintiff has bona fide and genuine apprehension that if the aforesaid goods are delivered by the defendant to the said Himalaya Limited or sold to anyone else or delivered and/or handed over to any one other than the plaintiff, as is being threatened by the defendant, then the plaintiff would suffer irreparable loss. The plaintiff is no longer interested in the said goods being delivered by the defendant to the said Himalaya Limited or to anyone else. It is alleged that the defendant is under a legal obligation not to deal with the said goods in any manner contrary to the wishes and/or direction of the plaintiff. It is alleged that the plaintiff has repeatedly called upon the defendant to return the aforesaid goods and not to sell the same and/or deliver the same to said Himalaya Limited or to any other buyer and/or purchaser and/or consignee. It is alleged that the defendant is threatening not to comply with the above request of the plaintiff. It is submitted on behalf of the plaintiff in the plaint that unless restrained the defendant is likely to sell and/or deliver the aforesaid goods to said Himalaya Limited and/ or to any other buyer or purchaser or consignee instead of returning the same to the plaintiff.
1.4It is alleged that the cause of action for instituting the present suit arose in favour of the plaintiff when the plaintiff delivered the said goods to the defendant vide goods receipts/consignment notes referred to above. It is further alleged that the cause of action also arose when the defendant started threatening to deliver the aforesaid goods to said Himalaya Limited or to some other buyer or purchaser. The cause of action also arose when the plaintiff called upon the defendant to deliver back the goods to the plaintiff but the defendant failed and/or neglected to comply with the above directions of the plaintiff and is continuing with its threats. It has been prayed that a decree of permanent injunction restraining the defendant from selling, delivering, exporting or locally disposing of and /or otherwise handing over the goods relating to invoices and packing list to the Himalaya Limited, Afzal Market, 3rd Floor, Post Box No.l262, Kabul (Afganistan) or any other buyer or purchaser and/or consignee, be passed in favour of the plaintiff and against the defendant. It is further prayed that the defendant be further restrained from causing any damage, deterioration and loss to the said goods from tampering with the seal of Central Excise Authorities. It has also been prayed that the defendant be directed to deliver back to the plain tiff the aforesaid consignment of goods relating to invoice (Annexure 'C' collectively) and packing list (Annexure "D" collectively). The plaintiff has also prayed for costs of the proceedings being awarded in his favour.
(2) As none appeared on behalf of the defendant, the defendant was directed to be proceed ex-parte in the present proceedings vide order dated 17th February, 1995. The plaintiff was permitted to lead ex-parte evidence by means of affidavit. The plaintiff, in support of its case, has filed the affidavit of Shri Bharat Shah, the partner of the plaintiff firm by way of ex-parte evidence. Shri Bharat Shah, the partner of the plaintiff firm, in his affidavit which has gone on record unrebutted and unchallenged has supported the case of the plaintiff in toto. I have heard the learned Counsel for the plaintiff and have also carefully gone through the documents/material on record. On a consideration of the pleadings, as contained in the plaint, and the facts as stated in the affidavit of Shri Bharat Shah, partner of the plaintiff firm and other material/documents on record, I am satisfied that the plaintiff which is a duly registered partnership firm, engaged in the business of manufacture of pharmaceuticals in pursuance of an order dated 19th December, 1992 placed by one Himalaya Limited of Afzal Market, 3rd Floor, Post Box No. 1262, Kabul (Afganistan), sent goods to the defendant who was the agent in transaction as per invoices as detailed in para 4 of the plaint, by road from Baroda to Delhi(to the place of the defendant) through Nitco Roadways Limited vide goods receipt/ consignment notice bearing Nos. 885713, 43001, 197141, 197159 and 430656. It is further established that the plaintiff has repeatedly called upon the defendant to return the plaintiff's goods and not to sell the same and/or deliver the same to said Himalaya Limited or to any other buyer or purchaser and/or consignee and that the defendant despite the repeated requests have refused and /or threatened not to comply with the same. It is also established that the defendant till date has not delivered and /or handed over the said goods to the plaintiff and unless restrained the defendant is likely to sell and/or deliver the aforesaid goods to said Himalaya Limited and/or to any other buyer and/or to the purchaser and/or to consignee instead of returning the same to the plaintiff. In view of the above discussion, a decree of permanent injunction, restraining the defendant from selling, delivering, exporting or locally disposing of and/or otherwise handing over the goods relating to invoices ( Annexure C collectively) and packing list ( Annexure D collectively ) to the Himalaya Limited, Afzal Market, 3rd Floor, Post Box No. 1262, Kabul (Afganistan) or to any other buyer and/or purchaser and/or consignee is passed. The defendant is further restrained from causing any damage, deterioration and from tampering with the seal of the Central Excise Authorities. The defendant is further directed to deliver back to the plaintiff the aforesaid consignment of goods mentioned herein above. The plaintiff is also awarded the costs of these proceedings against the defendant. Decree sheet drawn up accordingly and thereafter the file be consigned to record room.