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2014 Supreme(Ker) 998

IN THE HIGH COURT OF KERALA
N.K. Balakrishnan, J.
Haneefa – Appellant
Versus
I.B.P. Company Ltd. – Respondent
R.S.A. No.1305 of 2010
Decided On : 23-01-2014

Advocates Appeared:
For the Appellant : George Poonthottam, Philip T. Varghese, Sujith Mathew Jose & Manoj P. Kunjachan
For the Respondent: P. Gopakumaran Nair, N.K. Subramanian & C.S. Dias

Headnote:

Civil P.C. 1908, O.XLI Rule 31 - Specific Relief Act ,1963, Section 34 General agreement- Recorded in the judgment - Adopted by the Appellate - Shirking the duty -,Discernible or gatherable from the contract entered into between the parties -Held, declaration as to the legal character of the suit is perfectly maintainable but it may be remembered that if the plaintiffs are to obtain a declaration of the legal character as plaintiffs are to obtain a declaration of the legal character as dealers then it must be a case where the dealership had already been granted to them or that they were recognized as dealers then it must be a case where the dealership had already been granted to them or that they were recognized as dealers

JUDGMENT :

The suits involved in the first 10 appeals were filed before the Munsiffs Court, Ernakulam. A common judgment was pronounced by the trial court in those cases. All those suits were dismissed by the trial court. Appeals filed against those decrees and judgments were dismissed by the appellate court as per a common judgment.

2. The suits involved in the next 10 cases were filed before the Principal Munsiffs Court -I, Kozhikode. All those suits were dismissed by the trial court. Appeals filed against those decrees and judgments also met with the same fate. RSA 386 of 2012 which is involved in the 21st item was disposed of by another learned Munsiff of Kozhikode. That suit was also dismissed. The appeal against the same was also dismissed.

3. Suits in the first Batch were filed for a declaration that the second plaintiff therein, being the nominee of the first plaintiff, is the dealer of the 1st defendant Company for the Retail Outlet (hereinafter referred to as "RO") conducted in the plaint schedule property and for permanent prohibitory injunction restraining the defendants and their men and agents from entrusting the running of RO in the plaint schedule property by any person other than the plaintiff or appointing any other person as the dealer/contractor for conducting petroleum Retail Outlet in the plaint schedule property shown in the respective suits.

4. In almost all cases, one of the plaintiffs is the absolute owner of the properties mentioned in the respective suits. First defendant is a Company engaged in the business of petroleum products. It was stated that applications were invited on behalf of the defendants through advertisement in news papers from land owners, their nominees and agents in prominent location for taking on lease suitable land for a minimum period of 15 years. It is stated that the owner of the land (one of the plaintiffs in the respective suits) submitted applications offering to give the plaint schedule property shown in respective plaints for lease.

5. Owners of the property were called by the second defendant (Sr. Divisional Manager of the first defendant Company) for discussion at his office and accordingly discussions were had. It was alleged that defendants offered to grant dealership of RO to be installed in the property of the plaintiffs or their nominees and thus the rent payable by the first defendant Company was requested to be reduced. Since the grant of dealership would be beneficial to the owner of the land or his nominee, owner of the land agreed to reduce the rent to a considerable extent. The rent demanded and which was stated to have been reduced has been shown in respective suits.

6. According to plaintiffs, because of the representation that the dealership will be given to the owner of the land or his nominee, the rent was reduced. It was further alleged that the first plaintiff was called for a formal interview by defendants. The interview was conducted at Chennai. Later, defendants informed the plaintiff (owner of the land) that he had been selected by them for dealership of the new RO started in the plaint schedule property which was offered for lease by the owner of the land. Thus, according to the plaintiffs, they agreed to give the plaint schedule properties on lease to the first defendant Company and thus handed over possession of the land to defendants. The defendant thus established the RO in the plaint schedule property and later it was commissioned. The date of commissioning has been mentioned in respective plaints. More than three months thereafter, the lease deed was executed by the owners of the land in favour of the first defendant Company and it was registered. After commissioning of the RO, it was functioning without any interruption.

7. According to the plaintiffs, agreements were entered into between the first defendant and the second plaintiff, who is the nominee, termed as Maintenance and Handling agreement {hereinafter referred to as M & H agreement). It














































































































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