Aditi Marketing vs Birla3M Ltd. And Anr.
1994 Latest Caselaw 319 Del

JUDGMENT

Sat Pal, J.

(1) By this order I am disposing of two applications bearing Ia 2520/94 & Ia 3399/94. Ia 2520/94 was filed on behalf of the plaintiff under Order 39 Rules I & 2 read with Section 151 of the Code of Civil Procedure (hereinafter referred to as the Code) and in this application it was prayed that the defendants, their servants, agents be restrained from appointing any other person as Distributor of Scrub Pads in the Union Territory of Delhi. This application came up for hearing on 9th March, 1994 and on that date an ex-parte injunction was granted in favor of the plaintiff and the defendant their agents, servants were restrained from appointing any other distributor of Scrub Pads in the Union Territory of Delhi. Notice of this application was issued to the defendants and reply has been filed on behalf of the defendants controverting the averments and allegations made in the application.

(2) Ia 3399/94 has been filed on behalf of the defendants under Order 39 Rule 4 read with Section 151 of the Code and in this application it has been prayed that the interim ex-parte order made on 9th March, 1994 be set aside and the ex- parte injunction granted on that date be vacated. Reply to this application has been filed on behalf of the plaintiff.

(3) Mr. Arora, learned counsel appearing on behalf of the plaintiff has drawn my attention to the letter dated 30th June, 1993 which was written by the defendants to the plaintiff and Along with this letter, the terms and conditions for distributorship were annexed. Learned counsel submitted that in terms of this letter the plaintiff was granted distributorship by the defendants of their product Scrub Pads for the Union Territory of Delhi w.e.f. 30th June, 1993 and after the expiry of six months from the date of the said letter, the defendants were required to sign the formal distributor agreement in favor of the plaintiff. He further submitted that since the defendants continued supplying the material even after 30th December, 1993, the defendants are deemed to have appointed the plaintiff as distributor w.e.f 31st December, 1993. He further submitted that the plaintiff had made elaborate arrangements for the sale of the goods of the defendants and it was because of non-supply of the goods in sufficient quantity that the plaintiffs could not reach the target as prescribed in the terms and conditions of distributorship. He, therefore, contended that the in term order granted on 9th March, 1994 be confirmed.

(4) Mr. Oberoi, learned counsel appearing on behalf of the defendant also drew my attention to the terms and conditions for distributorship annexed with the letter dated 30th June, 1993 and submitted that in terms of the said letter the plaintiff was designated as authorised representative for a period of six months and thereafter a formal distributor agreement was to be signed by the defendants only on satisfactory completion of the trial period. He submitted that since during the trial period, the defendants were not satisfied with the performance of the plaintiff, the agreement between the plaintiff and the defendants was terminated vide letter dated 28th February, 1994 and Along with this letter the details of various areas of lack of performance of the plaintiff were also attached. Learned counsel further pointed out that the said details of the lack of performance were, however, deliberately not annexed by the plaintiff Along with the copy of the letter dated 28th February, 1994 which was filed with the plaint.

(5) The learned counsel also submitted that in terms of the agreement dated 30th June, 1993, the plaintiff was required to deposit a sum of Rs.5.00 lacs for qualifying order. He further submitted that against the said amount of Rs.5.00 lacs a sum of Rs.3.00 lacs was deposited by the plaintiff on 23rd July, 1993 and the balance amount was deposited on 3rd August, 1993. The deposit of the balance amount of Rs.2.00 lacs on 3rd August, 1993 has not been controverter by the learned counsel for plaintiff. Learned counsel, therefore, submitted that since the defendants were not satisfied with the performance of the plaintiff during the trial period, they did not sign the distributor agreement. Finally the learned counsel submitted that the defendants had already granted the distributorship to M/s. T.T.K. Pharma Ltd. vide their letter dated 3rd March, 1994 and the said distributorship had already been accepted by the said company on 5th March, 1994. Copies of the said letter dated 3rd and 5th March, 1994 have been annexed Along with the Ia 3399/94.

(6) I have given my thoughtful consideration to the submissions made by the learned counsel for the parties and have perused the records. From the terms and conditions annexed with the letter dated 30th June, 1993, it is clear that the plaintiff was appointed only authorised representative for a period of six months from the date of the qualifying order. Admittedly the qualifying order was designated from the date of the deposit of Rs.5.00 lacs i.e. from 3rd August, 1993. After the expiry of six months from 3rd August, 1993, the defendants were to take a decision for grant of distributorship in favor of the plaintiff. The defendants took the decision vide letter dated 28th February, 1994, which is admittedly after the expiry of six months. I do not find any merit in the contention of learned counsel for the plaintiff that the decision ought to have been taken exactly on the date immediately after the expiry of six months.

(7) Besides, Along with letter dated 28th February, 1994, the defendants had annexed a sheet containing the details of various areas of lack of performance on the part of the plaintiff. It is disturbing to note that the plaintiff did not annex the said sheet with the letter dated 28th February, 1994 when the plaintiff was granted ex- parte in-junction by this Court. This fact itself is sufficient to vacate the stay granted on 9th March, 1994. Further admittedly the distributorship was granted by the defendants to another Company on 3rd March, 1994 which was duly accepted by the said Company on 5th March, 1994 i.e. prior to 9th March, 1994 when ex-parte injunction was granted to the plaintiff.

(8) In view of the above discussion, the ex- parte injunction granted on 9th March, 1994 is hereby vacated. Parties are, however, left to bear their own costs. With this order both these IAs stand disposed of.