Calcutta High Court
Drishti Powertech Llp vs Nsk Bearing India Private Limited ... on 2 August, 2023
IA No. GA 1 of 2023
APOT No. 242 of 2023
with
CS No. 147 of 2023
IN THE HIGH COURT AT CALCUTTA
In appeal from its
ORDINARY ORIGINAL CIVIL JURISDICTION
CIVIL APPELLATE JURISDICTION
(Commercial Bench)
Drishti Powertech LLP
Versus
NSK Bearing India Private Limited & Ors.
Before:
The Hon'ble Justice I. P. MUKERJI
And
The Hon'ble Justice PRASENJIT BISWAS
Date: 2nd August 2023
Appearance:
Mr. Abhrajit Mitra, Sr. Advocate
Mr. Chayan Gupta, Advocate
Mr. Aviroop Mitra, Advocate
for the appellant
The Court: Order in terms of prayer (a) of the stay petition.
We admit the appeal.
Interim protection was sought from the learned single judge ex
parte. It was refused by a judgment and order dated 31st July 2023.
We allowed the appellant/plaintiff to move this appeal ex parte
for those self-same reliefs.
On scrutiny of the impugned judgment and order we find that
the learned single judge more or less applied the correct principles of
law in taking the view that when termination of an agency is
challenged, the agent does not have the right to seek specific
performance of the agency agreement but would be confined to
damages. While doing so the learned judge seems to have not
appreciated clause 14.5 of the agreement between the parties, which is
in the following terms:
"14.5. Upon the expiration or termination of this
Agreement:
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(a) the Company may, at its option, complete all
orders for the Products which have been
accepted by the Company prior to the effective
date of termination or expiration, but for any
Products the delivery of which has not yet been
made, and the Distributor shall purchase the
Products at the price agreed between the
Parties;
(b) the Distributor shall be entitled to continue to
sell any Products it has already purchased
through its normal channels of distribution for a
period of six (6) months following the date of
termination;
(c) the Distributor shall discontinue all use of any
Trademark and shall have not further rights,
title or interest in any Intellectual Property
Rights of the Company or its Affiliates;
(d) the Distributor shall immediately cease to use
Intellectual Property Rights; discontinue the use
of any printed matter identifying it as a
distributor of the Company's Products; remove
all signage from the exterior and interior of its
building or premises so identifying it; take all
necessary steps to change its listing in any
directories; and do all other acts necessary to
remove any other identification of Distributor as
a distributor of the Company's Products;
(e) The Distributor shall immediately return to the
Company all communications, price lists, sales
and technical literature, internal and legal
documents, samples and other materials
owned by the Company and in Distributor's
possession."
Sub-clause (b) is important here. It permits the distributor to
continue to sell any product it has already purchased from the
principal.
Mr. Abhrajit Mitra, learned senior advocate appearing for the
appellant/plaintiff submits that his client has already bought several
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products from the respondent/defendant nos. 1 and 3. In respect of
those products it has entered into several contracts of sale with the
respondent nos. 4 to 17. Now even if it is assumed that the contract
between the appellant/plaintiff and the respondent/defendant nos. 1
and 3 stands terminated, still under clause 14.5, the former retains
the right to honour its contracts with the said other defendants.
A prima facie case has been made out.
Till 11th August 2023 or until further orders whichever is
earlier, the respondent no. 3 shall not do any act or deed including
writing letters which would interfere with the performance of the
contracts between the appellant/plaintiff and the respondent nos. 4 to
17.
We make this application returnable on 8th August 2023.
Advocate-on-record for the appellant/plaintiff shall serve a
copy of the stay/injunction petition upon the respondents and file an
affidavit of service on the next date.
(I. P. MUKERJI, J.)
(PRASENJIT BISWAS, J.)
R. Bose
