Delhi High Court
Air Liquide North India Pvt Ltd vs Hella India Electronics Pvt Ltd on 4 October, 2013
Author: Rajiv Shakdher
$~38
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on : 04.10.2013
+ O.M.P. 1002/2013
AIR LIQUIDE NORTH INDIA PVT LTD ..... Petitioner
Through: Mr. Atul Y. Chitale, Sr. Advocate with
Mrs. Suchitra A. Chitale and Mr. Karan Kanwal,
Advocates
versus
HELLA INDIA ELECTRONICS PVT LTD ..... Respondent
Through
CORAM:
HON'BLE MR. JUSTICE RAJIV SHAKDHER
RAJIV SHAKDHER, J.
1. This is a petition filed in which there are two prayers made.
First, an injunction is sought against the respondent, its employees,
agents and servants from dismantling the Nitrogen tank installed by
the petitioner, on the respondent's premises, situate in Gurgaon,
Haryana.
2. Secondly, an appointment of a Commissioner is sought to
inspect the said Nitrogen tank installed by the petitioner at the
respondent's premises.
3. Briefly, what is averred in the petition is as follows :-
3.1 The petitioner had entered into an agreement with the
O.M.P. 1002/2013 page 1 of 3
respondent dated 22.02.2011/15.03.2011 for supply of liquid
Nitrogen. According to the petitioner, the said agreement has a tenure
of five (5) years. It is averred that the agreement is renewable,
thereafter, under clause 10 of the General Conditions of the contract,
for a further period of three (3) years.
4. The dispute between the parties as per the averments made in
the petition revolves around the pricing of liquid Nitrogen. On this,
correspondence has flowed back and forth between the parties herein.
On the specific aspect, with regard to the injunction sought on the
dismantling of the Nitrogen tank, there is a reference to an email
dated 12.09.2013, issued by the respondent, whereby the petitioner
had been asked to dismantle the said tank by the respondent.
5. It appears, thereafter, meetings were held, which did not lead
to any fruitful result from the point of view of the petitioner.
6. As a matter of fact, by email dated 23.09.2013, the respondent
appears to have communicated to the petitioner that it had already
commenced dismantling of the Nitrogen tank.
6.1 The petitioner, however, has appended other emails, which
seem to suggest that the dismantling by the respondent of the
petitioner's tank has not taken place. In this behalf, reference is made
by the petitioner to email dated 25.09.2013 sent to it by the
respondent.
7. The petitioner, appears to have sent a legal notice dated
26.09.2013 to the respondent calling upon it to desist from
dismantling the Nitrogen tank. The aforesaid legal notice was
O.M.P. 1002/2013 page 2 of 3
followed by yet another notice dated 30.09.2013, whereby the
arbitration clause was triggered by the petitioner. The petitioner, in
fact, named its nominee from the list of arbitrators maintained by
FICCI.
8. Mr. Chitale, the learned senior counsel for the petitioner says
that the relief as prayed ought to be granted to the petitioner in view
of the fact that under the agreement, there is an obligation on the
respondent to accept supplies from the petitioner for a period of five
(5) years. It is stated that since that agreement is valid, he will be
entitled to specific performance.
9. According to me, no relief of specific performance is available
vis-a-vis the movable property unless it is pleaded that the same is not
an ordinary article of commerce. There is no such averment in the
petition. See Dominion Coal Co. Ltd. Vs. Dominion Iron & Steel
Co. Ltd. (1909) A.C. 293.
10. In any event, in my view, this is a case where if there is a
breach, as alleged by the petitioner, of the contract, damages would be
available as a remedy to the petitioner, therefore, injunction sought,
cannot be granted.
11. The petition is accordingly disposed of.
12. Needless to say, the aforesaid are only prima facie observations
which would have no bearing on the merits in case arbitration or any
other action is initiated as between the parties.
RAJIV SHAKDHER, J
OCTOBER 04, 2013/yg
O.M.P. 1002/2013 page 3 of 3
