Delhi High Court
Shree Rani Sati Sales Pvt. Ltd vs Hamdard Laboratories India & Ors on 17 June, 2016
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Order reserved on: 31st May, 2016
Order pronounced on: 17th June, 2016
+ O.M.P. (I) (COMM.) No.240/2016
SHREE RANI SATI SALES PVT. LTD ..... Petitioner
Through Mr.K.K. Rai, Sr. Adv. with Mr.S.K.
Pandey and Mr.Awanish Kumar,
Advs.
versus
HAMDARD LABORATORIES INDIA & ORS ..... Respondents
Through Mr.Rajiv Nayar, Sr. Adv. with
Mr.Simran Mehta, Adv. for R-1.
Mr.Bobby Lao, Adv. for R-1 & 2.
+ O.M.P. (I) (COMM.) No.241/2016
ASHUTOSH ENTERPRISE ..... Petitioner
Through Mr.K.K. Rai, Sr. Adv. with Mr.S.K.
Pandey and Mr.Awanish Kumar,
Advs.
versus
HAMDARD LABORATORIES INDIA & ORS ..... Respondents
Through Mr.Rajiv Nayar, Sr. Adv. with
Mr.Simran Mehta, Adv. for R-1.
Mr.Bobby Lao, Adv. for R-1 & 2.
CORAM:
HON'BLE MR.JUSTICE MANMOHAN SINGH
MANMOHAN SINGH, J.
1. Both the petitioners have filed the abovementioned fresh
petitions which were listed before Court on 31st May, 2016. After
issuance of notice, the respondents duly appeared. A preliminary
objection was raised by Mr.Rajiv Nayar, learned Senior counsel
appearing on behalf of one of the factions of respondent No.1 that the
petitions are not maintainable as the same are barred by the principles
of res judicata. Learned Senior counsel submits that the same very
petitioners earlier filed the two petitions being O.M.P. (I) (COMM.)
Nos.82/2016 & 83/2016 seeking the following reliefs:-
"A. to Pass appropriate order/direction by way of ad-
interim injunction injucting the Respondents and their
authorized representatives, signatories, agents or any
other person on behalf of the Respondents to take any
further action pursuant to void and illegal impugned
termination notice dated 08.02.2016 which purport to
terminate the C & F Agreement dated 01.10.2014.
B. and or to pass Ad-interim Ex- Parte order/direction
injuncting the Respondents and their authorised
representatives, signatories, agents or any other person on
behalf of the Respondents to take modify, alter or seek
amendment in the C & F Agreement dated 01.10.2014."
The said petitions were withdrawn by the petitioners on filing of
the applications under Order XXIII Rule 1 CPC whereupon the order
was passed on 16th May, 2016. The fresh petitions are not
maintainable. The other faction, who is also appearing on behalf of
respondents No.1 and 2, submits that the petitions are maintainable.
The objection is not sustainable.
2. Learned Senior counsel appearing on behalf of the petitioners
submits that the present petitions have been filed on the basis of fresh
cause of action. After small submissions, notices were issued on 31 st
May, 2016. It was also directed that till the order is pronounced on
the objection raised, parties shall maintain the status-quo with regard
to the possession of the suit property. It is true that the petitioners
had earlier filed two petitions before this Court and after small
hearing, on 30th March, 2016, the following order was passed in the
said petitions:-
"Two sets of replies have been filed. One is filed on behalf
of the respondent No.1 and another one is filed by
different counsel on behalf of the respondents No.1 and 2.
It appears that there are disputes inter se between the
management of respondent No.1. Rejoinders be filed
within two weeks.
Learned counsel for the petitioner is pressing for
interim order. He submits that in view of the inter se
disputes between the family, the petitioner is
unnecessarily dragged into the same whereby the C & F
Agreement dated 1st October, 2014 has been terminated
on 8th February, 2016 by CEO of respondent No.1 who
individually is not the party to the agreement executed
between the petitioner and respondent No.1.
It is further stated by the learned counsel for the
petitioner that the Impugned Termination Notice dated 8th
February, 2016 issued by the CEO though has been
withdrawn by the letter dated 9th February, 2016 sent by
the present Chief Mutawalli Respondent No.2. However it
would show that although there is no existence of the CEO
in the affairs and governance of the Respondent and
further the earlier decision of appointing CEO has been
withdrawn by the Chief Mutawalli vide its letter date 26th
March, 2016, and therefore the reference of CEO in the
C&F Agreement is completely redundant, inoperative and
non-est.
Counsel for the petitioner further states that even in
the termination notice there is no allegation against the
petitioner in terms of clause 43 of the agreement.
Clause 42 of the agreement reads as under:
"42. Either Party may terminate this Agreement by
providing the non-terminating Party sixty (60) days
prior written notice of the terminating Party's intent
to terminate."
It appears from the said clause that the termination
is subject to the 60 days prior notice is a condition
precedent with intent to terminate the agreement. The
said notice has not been issued to the petitioner before
termination letter dated 8th February, 2016. Mr.Harish
Malhotra, learned Senior counsel for respondent No.1,
submits that even if the agreement is wrongly terminated,
the only remedy which lies with the petitioner is to claim
the damages and compensation and the petitioner is not
entitled for interim order as prayed for. Without
expressing any opinion at this stage, it is to be considered
as to whether the termination notice has been issued by
the competent party or not. Let the pleadings in the
matters be completed. The arguments of both the parties
will be heard on merit.
List on 21st April, 2016.
Till the next date of hearing, the operation of the
impugned termination notice dated 8th February, 2016
which purports to terminate C & F Agreement dated 1st
October, 2014 shall remain stayed.
Dasti under the signatures of the Court Master."
3. After completion of pleadings when the matter came up on 16th
May, 2016, the petitioners filed two applications under Order XXIII
Rule 1 CPC to withdraw the petitions in view of the resolution dated 4th
May, 2016 confirming the decision dated 9th February, 2016 of the
Chief Mutawalli which declares the decision of Mr.Abdul Majeed
regarding the termination of C&F Agent Agreement of the petitioners
as null and void.
4. The extracts of the order dated 16th May, 2016 have been
reproduced here as under:-
"I.A. No.6167/2016 (u/o XXIII R 1 CPC) & O.M.P.(I)
(COMM.) 82/2016 & I.A. No.6168/2016 (u/o XXIII
R 1 CPC) & O.M.P.(I) (COMM.) 83/2016
The above mentioned application has been filed by
the petitioner to withdraw the present petitions in view of
the averments made in paras 2 and 3 of the application.
The same read as under:
"2. That as submitted in the Petition and thereafter
during the course of proceeding of the
abovementioned Petition the inter-se disputes
between Chief Mutawalli and Mutawallis has become
apparent that Mr. Abdul Majeed is disputing the
authority 'of Respondent No.1 & 2.
3. That on 11.05.2016 the Counsel appearing for
Respondent-No. 1&2 had handed over and also
placed on record the copy of the Extracts of the
Resolution passed in Majlis-e-Ayan, which is the
highest decision making body of Respondent No. 1.
The 'said Resolution confirms the Decision dated
09.02.2016 of the Chief Mutawalli which declares the
decision of Mr. Abdul Majeed regarding the
termination of C&F Agent Agreement of the Petitioner
as null and void. The copy of the Resolution dated
04.05.2016 passed in Majlis-eAyan is annexed
herewith as Annexure P-1."
Counsel for the contesting respondent disputes the same.
According to the petitioner, it is a valid resolution.
In view of paras 2 and 3 of the application, the present
petitions are dismissed as withdrawn. The interim order
already granted stands vacated."
5. The case of the petitioners is that the petitions were withdrawn
with bonafide belief while considering that there would be no further
action pursuant to the impugned notice dated 8th February, 2016.
However, the petitioners were constrained to approach this Court
again in view of the e-mail dated 27th May, 2016 sent by Mr.Rajeev
Dave, Chief Officer - Supply Chain Management of respondent No.1-
Company to the petitioners, informing that respondent No.1
Management has decided to take over the Patna CFA's warehouse
w.e.f. 1st June, 2016. The petitioners were requested to handover the
stock and operation.
6. It is stated that the other faction has now sought to take over
the warehouse of the petitioners at Patna with effect from 1 st June,
2016, therefore, the petitions are maintainable on the basis of fresh
cause of action. Copy of the e-mail dated 27th May, 2016 has been
filed which was issued by the faction who had issued the notice of
termination. It is alleged by the petitioners that as per the Wakf deed,
the administration of respondent No.1 entirely and exclusively vests
with the Chief Mutawalli who is assisted by other Mutawallis.
However, the other faction of respondent No.1 is against the
petitioners, who has issued the termination notice dated 8th February,
2016 to the petitioners which is illegal.
7. From the averments made in the petition, it appears that
respondent No.2 is claiming that he is the Chief Mutawalli and the rival
party is also claiming the rights in respondent No.1. There is a dispute
between the two factions of respondent No.1. Respondent No.1 is a
Hamdard Laboratory. As far as the merit of the case is concerned, the
same has to be considered after the filing of the reply. At present, it
cannot be concluded at the initial stage that the petitions filed by the
petitioners are barred by the principle of res judicata, as admittedly,
the petitions have been filed on the basis of fresh cause of action.
Earlier, similar petitions were withdrawn on the basis of the Resolution
dated 4th May, 2016 passed by the Majlis-e-Aiyan. As the petitioners
after the withdrawal have been threatened to take the possession by
e-mail, which is admittedly sent to the petitioners, at present, it
cannot be concluded that the petitions filed by the petitioners are
barred by res judicata. Thus, the status quo order already granted on
31st May, 2016 shall continue till the completion of the pleadings in
both the matters. Respondents No.2 to 5 are granted six weeks time
to file the reply, with an advance copy thereof to the learned counsel
for the petitioners who may file the rejoinder within four weeks
thereafter.
8. List on 14th September, 2016.
(MANMOHAN SINGH)
JUDGE
JUNE 17, 2016
