Case No: Civil Petition for Leave to Appeal No. 1428 of 2004
Judge: Mohammad Fazlul Karim ,
Court: Appellate Division ,,
Advocate: Mr. Rafique-ul-Huq,,
Citation: 57 DLR (AD) (2005) 117
Case Year: 2005
Appellant: Sonali Aansh Trading (Pvt.) Ltd.
Respondent: M/s Birla Tyres
Delivery Date: 2005-3-5
Syed JR Mudassir Husain CJ
Md Fazlul Karim J
MA Aziz J
Amirul Kabir Chowdhury J
Sonali Aansh Trading (Pvt.) Ltd & another
Birla Tyres & others
March 5th, 2005.
When a court may grant a temporary or mandatory injunction-
When plaintiffs’ distributorship was cancelled and newly appointed distributor was carrying on the business the plaintiffs have no prima facie case for injunction and as the balance of convenience and inconvenience is in favour of the defendant and the plaintiffs shall not suffer any irreparable loss and injury as such plaintiffs are not entitled to temporary or mandatory injunction. ..............(14)
Cases Referred To-
M.A. Naser Vs. Chairman, Pakistan Eastern Railways, PLD 1965 (SC) 83; Humayun Vohra Vs. ESPN Star Sports and others, 8 MLR AD 74.
Abdur Rob-1, Advocate, instructed by Md. Nawab Ali, Advocate-on-Record-For the Petitioners.
Rafiqul-Ul-Huq, Senior Advocate instructed by A.K.M Shahidul Huq, Advocate-on-Record- For Respondent No. 1.
Not represented- For Respondent No. 2-6.
Civil Petition for Leave to Appeal No. 1428 of 2004
Md. Fazlul Karim J.
1. The plaintiffs seek leave to appeal against the judgment and Order dated 21.7.2004 passed by the High Court Division in Civil Revision No.2347 of 2004 making the rule absolute setting aside those dated 4.7.2004 of the Additional District Judge, Second Court, Dhaka dismissing the Miscellaneous Appeal Nos.335 of 2003 and 299 of 2003 affirming the order No. 15 dated 9.11.2003 of the Senior Assistant Judge, Second Court, Dhaka granting temporary injunction restraining the defendant-respondent Nos. 1-3 from dealing and/or making any transaction underhand or overhand in any manner with any person or person in respect of Birla Brand Tyres and the order dated 14.8.2003 in the nature of temporary mandatory injunction directing the said defendants for stopping entry of all consignment of Birla Brand truck/non-truck tyres, LCV, Car tyres and other materials until the disposal of the application for the purpose.
2. The plaintiff filed the suit for declaration, inter alia, that the plaintiffs are the sole distributors, sole indentures and exclusive importer of Birla Tyres for Bangladesh on the basis of their appointment letters and contracts/ agreements made with them until condition is changed the Birla Tyres demand exceeding the limit and/or the target fixed by the defendants at 5000 Truck Tyres in addition to the 5000 sets of Non Truck Tyres for Bangladesh market. That the defendants have no lawful authority, power and/or jurisdiction to make any open or underhand dealing with any person or persons whatsoever in respect of Birla Brand materials for Bangladesh during the subsistence of the appointments/contracts/agreements and the contractual rights of the plaintiffs, for the decree declaring that all transactions made and actions taken by the defendants with the unauthorized persons in the purported name of importers for sale and supply of Birla Tyres in Bangladesh in underhand and clandestine manner during subsistence of the contracts/appointments/agreements with the plaintiffs who are sole distributors, sole indentures and exclusive importers of Birla Tyres and other materials for Bangladesh are illegal, malafide, void, without jurisdiction and a nullity and for a decree of permanent injunction restraining the defendants from doing any act and making any breach whether actual or threatened of the rights vested in the plaintiffs on the basis of the contracts/agreements/their appoints as the distributors, indentures and exclusive importers of Birla Truck, Non Trucks, LCV, Car Tyres and other materials for Bangladesh and/or doing any other acts and /or entering into any contract or agreement with any other person/persons until the condition is charged in the Birla Tyre market and demand increased exceeding the limit/target of 5000 Truck Tyres in addition of the 5000 Non-Truck limit per month in Bangladesh market and/or the appointments of the plaintiffs as distributors, indentures and exclusive importers are terminated or any other changes are made in the agreement/ appointments for valid reasons and grounds and for a decree for mandatory injunction directing the pro forma defendants to stop entry of all consignments of Birla Brand Truck, Non Truck, LCV and Car Tyres and other materials relating thereto shipped and/or trans-shipped as export goods of Birla Tyres materials for sale and supply by and/or through any other person or persons, importer or importers, distributor or distributors, sale representative or representatives excepting the plaintiffs in Bangladesh market, seize those consignments, goods and materials and forfeit them in accordance with law.
3. The learned Assistant Judge allowed the ad interim injunction and ad-interim mandatory injunction as aforesaid by order dated 9.8.2003 and 14.8.2003 respectively. On the appeal by the defendants the learned Additional District Judge, however, dismissed the appeals by order dated 19.10.2003. The respondents, however, successfully moved the High Court Division in Civil Revision No.2347 of 2004 which made the rule absolute setting aside the orders dated 4.7.2004, 9.8.2003 and 14.8.2003 granting temporary injunction and mandatory injunction respectively.
4. The defendant-respondents' case, in short, is that M/s. Birla Tyres also terminated the agency of the defendant No. 3 by letter dated 28.1.2003 and in its turn defendant No.3 having accepted such termination as a valid one and terminated the distributorship of the plaintiffs by letter dated 29.1.2003 with intimation to M/s. Birla Tyres dated 31.1.2003 that they have already terminated the agency of the distributorship of the plaintiffs and as such the plaintiffs were not entitled to any injunction which would adversely affect the defendants business and they shall as well suffer irreparable loss and injury as the business of the defendants would be closed. The defendants further alleged that the suit for declarations as prayed for is not maintainable, at best, if aggrieved; the plaintiffs could sue for damages or breach of contract, if any.
5. Mr. Abdur Rob-1, the learned Counsel appearing for the petitioners submitted that High Court Division relying on the letters dated 28.1.2003, 29.1.2003 and 30.1.2003 which are inadmissible papers being fake, false, forged, fraudulent, fabricated and collusive documents created by one R.K. Shah for using the same in the judicial proceeding with malafide intention and the latter's fraudulent acts of exporting inferior quality of Birla Brand Tyres in Bangladesh and designed to frustrate the Title Suit No.276 of 2003 filed by the petitioners for declarations with prayers for an order of temporary and ad-interim mandatory injunction, erred in law in holding that the distributorship of plaintiffs (petitioners) was already terminated and as such they are not entitled to any injunction. The learned Counsel further submitted that the impugned order dated 21.7.2004 making the rule absolute setting aside the order dated 4.7.2004 is illegal, void and without jurisdiction inasmuch as, the said impugned order is based on non-consideration of all the material papers and documents including Annexures-J series and non-application of judicial mind to the facts of the case of the plaintiffs (petitioners) as made out in the plaints of the Title Suit No.276 of 2003 and Money Suit No.53 of 2003, the contents and grounds raised and taken in the counter-affidavit filed by the petitioners in the Civil Revision No. 2347 of 2004 and Annexures-J series and also other relevant papers filed as Annexures and the submission of the learned Advocate of the petitioners as well as upon misconception, misconstruction, misunderstanding of those papers and documents and consequent misapplication of the legal decisions which have no application to the case of the petitioners. The learned Counsel has further submitted that in view of section 194 and 202 of the Contract Act the plaintiffs must be held to be an agent directly under the principal Birla Tyre Ltd. And in that view of the matter the defendant No. 3 had no right to terminate the distributorship of the plaintiffs and in the absence of any valid termination the plaintiffs are entitled to continue as such by way of an injunction, otherwise, the plaintiffs shall suffer irreparable loss and injury.
6. Mr. Rafique-Ul-Huq, the learned Counsel appearing for the respondent, however, submitted that the subject matter of the suit being termination of distributorship of the plaintiff and even if, any termination of the distributorship of the plaintiffs is found to be invalid, the plaintiffs are not entitled to any injunction as compensation/damage is the only adequate remedy in a suit arising out of a breach of contract.
7. The plaintiffs' distributorship was alleged to be terminated on 29.1.2003 by the defendant No. 3 pursuant to the termination of their agency on 28.1.2003 by the defendant Nos.1 and 2. The plaintiffs have filed the suit for declaration as detailed above on 9.8.2003 suppressing the fact that the distributorship has already been cancelled by the defendant No.3. The plaintiffs have, however, alleged the letter dated 28.1.2003, 29.1.2003 and 30.1.2003 to be forged and fabricated.
8. Under section 42 of the Specific Relief Act a suit for declaration is only maintainable where there is a subsisting legal character or legal status existing between the parties but on the face of the conflicting claims of the parties i.e., the plaintiffs' assertion that their distributorship is still subsisting and the defendants have alleged that the distributorship has been terminated with effect from 29.1.2003 and that the defendants have been carrying on business through a different distributor since then, it is to be ascertained as to whether the suit for declaration is maintainable or not. Admittedly the suit has been filed on 9.8.2003 when allegedly there is prima facie no subsisting relationship between the parties or a legal character existing for declaration sought for in the suit, which is to be determined in the suit. In view of the assertion of the defendant that the distributorship of the plaintiffs have already been cancelled on 29.1.2003 and in case of any illegal cancellation the only remedy of the petitioner would lie in damages or compensation.
9. It is yet to be decided in the suit as to whether the plaintiffs are entitled to any legal character or to legal right to the distributorship for obtaining a decree for declaratory relief in respect of their title to such character or right to property.
10. Reference may be held to the case reported in the case of M.A. Naser Vs. Chairman, Pakistan Eastern Railways reported in PLD 1965 (SC) 83 wherein it has been held that:-
"Under the provisions of section 42 of the Specific Relief Act a person entitled "to any legal character" or to "any right to property" can institute a suit for a declaratory relief in respect of his title to such legal character or right to property."
11. In view of the aforesaid conflicting claims the instant suit for declaration at the instance of the plaintiff that the distributorship is still in subsistence and the defendant's assertion as to the alleged termination of their distributorship on 29.1.2003, in such situation the plaintiff have been seeking for a interlocutory order of temporary injunction but prima facie the injury alleged to have been caused could be compensated by money which would be an adequate remedy.
12. In the instant case, the relationship between the plaintiffs and the defendant could be at best one of agent and principal, the former being an alleged distributor of the defendants under a contract. The plaintiffs alleging that the contract is subsisting and the plaintiffs is entitled to lift the tyres but the defendant have alleged that the relationship since been ceased with effect from 19.1.2003 with the cancellation of distributorship. All that the plaintiffs want by an order of injunction and mandatory injunction is that under the cover of injunction the plaintiffs could carry on the business in respect of the alleged cancelled distributorship and in view of the conflicting assertions, granting of an 'injunction would mean forcing the defendant to restore with the distributorship of the plaintiffs although the same had already alleged to have been cancelled and the defendants have been carrying on the business by appointing another distributor.
13. It appears that the plaintiff was alleged to have been appointed distributor under the defendant Nos.1 and 2 and that admittedly the petitioner continued as a distributor till 29.1.2003. The alleged violation of any contract between the plaintiffs and the defendant could be compensated by monetary compensation and as such the plaintiffs are not entitled to any injunction. Reference may be made in the Humayun M. Vohra Vs. ESPN Star Sports and others reported in 8 MLR AD 74.
14. We are also of the view that since the alleged cancellation was dated 29.1.2003 with the assertion of the defendants that they have been carrying on their business appointing another distributor for the purpose and that the suit has been filed on 9.8.2003, the plaintiffs do not have any prima facie case for injunction inasmuch as the balance of convenience and inconvenience is in favour of the defendant and the plaintiff shall not also suffer any irreparable loss and injury and accordingly, the plaintiffs are not entitled to temporary injunction or mandatory injunction as sought for.
15. In such situation, we are of the view that the plaintiffs are not entitled to any injunction or less mandatory injunction and the High Court Division has rightly made the rule absolute setting aside the ad interim injunction and mandatory injunction.
The petition is dismissed.