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IN THE HIGH COURT OF BOMBAY
(AURANGABAD BENCH)
A.B. Palkar, J.
Bharat Petroleum Corporation Limited another..... Petitioners.
Versus
M/s Jethanand Thakordas Karachiwala others ..... Respondents.
Civil Rev. Application No. 292 of 1995, decided on 31-7-1998.
Advocates appeared :
Sudhir D. Kulkarni, for petitioners.
S.B. Talekar, for respondent No. 1.
Respondent Nos. 2 3 served.
Respondent Nos. 4 5 deleted as per Court’s order dated 19-6-1995.
Order XXXIX, Rules 1 and 2 - Temporary injunction-Grant of Prima facie case-Plaintiff miserably failed to make out the same in his favour-Not came out with clean hands to Court-Not entitled to temporary injunction.-It must be Bome in mind that while coming to the Court to seek relief of temporary injunction plaintiff must make out a prima facie case. A prima facie case means that the plaintiff can show to the Court that in all probabilities ultimately he would succeed in securing a permanent injunction and, therefore, refusal of relief pending the trial would make the final relief even if granted, infructuous and in order to make the same effective, it is necessary to grant the relief even pending suit. The plaintiff had miserably failed to make out a case that he would be in a position to claim a permanent injunction. Secondly, the above stated facts and admissions of plaintiff for having committed various breaches of the contract and having given connections to persons beyond the territorial limit and having accepted money without receipt and even stamp duty in cash without purchasing necessary stamp, plaintiff had perpetuated fraud and had obviously not come with clean hands to claim temporary injunction.
Sections 205 and 206 - Specific Relief Act, 1963, Sections 14 and 16-Civil Procedure Code, 1908, Order XXXIX, Rules 1 and 2-Contract-Distributorship of LPG gas - Flagrant and consistent breaches committed by agent-Admitted by agent-Termination of contract by Oil Company without notice is legal - Notice for termination required only when it was terminated for no fault of agent.- The agreement being revocable by either party in accordance with clause 28 by giving 30 days notice, the only relief which could be granted was of award of compensation. The plaintiff themselves had admitted commission of breach of contract. They were given repeated opportunities to correct the errors and to remedy the breach but had failed and, therefore, the defendant Corporation was justified in terminating the contract. Even if it is presumed for the sake of argument that such termination required a particular notice, the only remedy that could be sought against the Corporation by the plaintiff was of damages for the said period and no other remedy was available. By no stretch of imagination could the plaintiff (respondent) claim in continuation of the contract for indefinite period on the basis that one months notice was not given because even in that case the only remedy available to plaintiff was to claim the damages for that much period and nothing more. The contract could not be specifically enforceable, defendant company could not be compelled to continue the distributorship of the agent who has duped not only the defendants but even the customers.
2. The respondent/plaintiff filed suit for a permanent injunction restraining the present petitioners from removing the plaintiff/respondent from distributorship on the ground that termination of contract of distributorship of L.P.G. gas executed in favour of the plaintiff by the defendants was illegal and also for a mandatory injunction directing the defendants to return the Cylinders, Regulators, etc. taken in possession by them in pursuance of the termination of distributorship. The consequential prayer is also made that the distributorship given to defendants No. 4 and 5 being illegal, they should not be allowed to work as distributors. The learned Civil Judge allowed the application of respondents and even passed a mandatory order directing them to return the Cylinders, Regulators, etc. within eight days and from obstructing the plaintiff in doing business of distributorship of L.P.G. Gas without properly terminating the distributorship by giving one months notice as per the agreement.
3. This order was to some extent restricted by the learned 4th Additional District Judge by his order dated 2-2-1995 while dismissing the appeal of the respondents as well the cross objection of the plaintiff by deleting the words one months notice and substituting for it the words reasonable notice. Being aggrieved by these two concurrent orders of injunction, the defendants have come to this Court and although initially it was filed as a writ petition, it was later on converted into Civil Revision Petition as per order of this Court.
4. The material facts to understand the controversy and the points involved can be summarized as below. Suit was filed by the contesting respondent contending in the plaint that defendant No. 1 is a company having Divisional Office at Pune and defendant No. 2 manages the office at Pune.
5. Plaintiff had taken agency of Burshan Gas in the year 1975 and agreement for that purpose was entered into on 17-10-1975. When the plaintiff was looking after legitimately the business of distributorship in pursuance of the agreement, about 8 to 10 persons of the defendant company came to the plaintiff's shop on 18-10-1994 and took custody of all records of Bharat Gas Company, Regulators and Cylinders by force. Plaintiff, therefore, filed a complaint to the police station but the police did not help the plaintiff and so plaintiff filed an application to the Magistrate. Thereafter the distributorship was given to defendants Nos. 3 and 4 compelling the plaintiff to file the suit. The termination of distributorship of plaintiff is illegal as one month's notice is not given to plaintiff as required by the agreement. The deposit placed with defendants by the plaintiff is not returned and the entire act of the defendants is illegal and in violation of the principles of natural justice. On reading the notice published in newspaper on 19-10-1994 plaintiff came to know that the defendants have cancelled distributorship. Thus, defendants have not followed any legal procedure and have illegally taken in custody the Cylinders, Regulators have certain documents.
6. Along with the suit an application was filed for ad interim injunction and the learned Civil Judge issued ad interim injunction which came to be confirmed after hearing the parties.
7. This application was resisted by the defendant contending that the plaintiff has committed number of serious irregularities and breaches of the terms and conditions of agreement. Number of customers were registered unauthorisedly without the sanction of defendants in contravention of the agreement. The standard of service of plaintiff was also not proper and number of letters were sent to the plaintiff bringing to his notice repeatedly the breaches being committe
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