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2010 Supreme(Bom) 195
High Court of Judicature at Bombay
THE HONOURABLE MRS. JUSTICE ROSHAN DALVI
M/s.Indian Oil Corporation Ltd.
Versus
M/s.Vora Auto Service Centre Private Ltd. & Another
Appeal From Order No.300 of 2009 IN Notice of Motion No. of 2008 IN Suit No.791 of 2008
Decided on : 08-02-2010
For the Appellant:Gaurav Joshi with Mr.Naushad Engineer i/by M/s.RMG Law Associates, Advocates.
For the Respondents:R1 & R2, V.A. Thorat, Senior Advocate i/by R.A. Thorat, Advocate.
Headnote:Civil Procedure Code, 1908 - Order XXXIX, Rule 1 - Appeal - Challenging order granting injunction against appellant for enforcing their contractual right under lease and agreement - Held - Parties bound by respective covenants in subsisting lease - Separate dealership/COCO/maintenance handling agreement which expired by efflux of time determines right of respondents as dealers and not as lessors - Contract not governed by policy relied on by respondents/plaintiffs - Respondents right to ownership of land ceased by virtue of lease and right as contractors ceased by termination of agreement - Impugned order unjustified and not sustainable - Set aside - Appeal allowed. - It is seen that in the present legal relationship of the parties the plaintiffs right to ownership of the land has ceased by virtue of the lease which subsists. The plaintiffs right as contractors has ceased by the termination of the Agreement of Maintenance and Handling by efflux of time. It may indeed be an inequitable position between the parties. However, the plaintiffs as businessman, have sought to enter into the business contract and are bound by its terms and conditions. The plaintiffs would continue to have the right of the lessor under the lease deed dated 3.8.1999 which would expire in 2037. The plaintiffs have no right in the contract which has come to an end by efflux of time.
The plaintiffs have no subsisting right, the contract itself having been determined. The plaintiffs are not in possession they being the mere contractors. The plaintiffs therefore have made out no prima facie case to be granted the relief of prohibitory injunctions applied for. The learned Judge has granted reliefs specifically on a premise that the plaintiff are in possession and have sought to protect the plaintiffs possession. It is there that the learned Judge has made a fundamental error.
Consequently, the impugned order is seen to be wholly incorrect. It is, therefore, set aside. The appeal from Order is allowed accordingly.
1. The Appellant (original Defendant) has challenged the order of the Bombay City Civil Court dated 2.2.2009, granting injunction against the Appellant restraining it from interfering with the operation of the Petrol Pump and from the conduct of the business of the Respondents (original Plaintiffs) or their nominees in the Petrol Pump or in any manner interfering with their use, occupation and possession of the suit premises being the Petrol Pump described in the Plaint of the Respondents-predecessor-in-title.
2. The parties entered into a lease on 3.8.1999, under which the land admeasuring 3872 sq. meters in Survey No.25, village Shirsad, District Thane, came to be leased by the predecessor-in-title of the Plaintiffs to the predecessor-in-title of the Defendant. Under Clause 1(a) of the lease, the Defendant, who was the lessee, had the right to install, erect and maintain the demised premises. Under Clause 11(b) of the lease, the demised premises was to be used for any lawful purpose which the lessee desired and specially as a depot for the storage and sale of petroleum products as well as a service station. Under that clause, the Defendant had the right to construct and erect any buildings, pumping plants, accessories, etc. The Defendant, therefore, had freedom of access for its workmen, servants, agents, customers, etc. The lease work was for a term of 28 years commencing from 1st July 1999.
3. The Defendant wrote a letter to the Plaintiffs on 5th August 1999, 2 days after the execution of the lease setting out the lease which was entered into between the parties and in furtherance thereof, offered that in the event the Defendant decided not to operate the outlet as was then agreed to be operated as a Company Owned Company Operated (COCO),contract but decided to operate it through the dealer, the Company would first make an offer to the Defendant as the landlord, provided all the terms and conditions of the Company prevailing at the time were fulfilled by the Plaintiffs. That offer was personally made to the landlord and could not be assigned or transferred to any person.
4. The parties entered into a written maintenance and handling contract on 4.6.2007. Under that contract, the Defendant, as the lessee of the plot of land as well as the structures thereon, was stated to have installed its apparatus and equipments mentioned in the second Schedule to that agreement. The Defendant appointed the Plaintiffs as its contractors.
5. Clause 7 of the contract gave the right to the Plaintiffs to enter upon the premises for the sole purpose of operating the retail outfit for the sale of the products and render services enumerated in the agreement. The Plaintiffs were to have no right, title or interest whether as owners, lessees, tenants or otherwise in the premises nor in the outfit and were not to be entitled to claim right of lease, tenancy or any other interest in the premises or outfit. The Plaintiffs were not to be deemed to be in exclusive possession of the premises.
6. Under Clause 43 of the contract, on the termination of the licence and permission granted by the Defendant to the Plaintiffs to sell the products and operate the outfit, the Plaintiffs, as the contractors, were to immediately remove the goods, properties and effects belonging to the Plaintiffs from the premises and hand over vacant and peaceful possession of the premises to the Defendant who would be entitled to enter upon the premises without hindrance.
7. Under Clause 44 of the Agreement, upon termination, the possession of the contractors would automatically revert to and become vested in the Defendant-Company.
8. Such agreements have been entered into from time to time by the parties for a period of one year. They last of such contracts has terminated by efflux of time.
9. The Defendant is a wholly-owned Central Government Undertaking. The Government of India had issued certain circulars / notifications from time to time with regard to the appo
