Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 902/20(Comm-St-2336/20)
MHCC010024172020
IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
INTERIM ORDER
IN
NOTICE OF MOTION NO.902/2020
IN
COMMERCIAL SUIT (ST.) NO.2336/2020
Spearhead Destinations Pvt. Ltd. ..Applicant
In the matter of :
Spearhead Destinations Pvt Ltd .. Plaintiff
V/s.
1. UTS Travel
2. BrandIt Marketing and Promotions
Pvt.Ltd. .. Defendants.
Appearance:-
Adv. Mr. Dalal for plaintiff.
Adv. Mr. Aditya Pimpale for defendant no.1
Adv. Mr. Pritesh Rajgor for defendant no.2
CORAM : HHJ Shri V.V Vidwans.
C. R. No.03.
DATE : 9.3.2020.
ORAL ORDER
1. After hearing Ld. Counsel for the plaintiff, as per order
dated 18.2.2020, this court had granted interim relief to the plaintiff in
terms of prayer clause(d) and the relief in terms of prayer clause(b) was
also partly granted to the plaintiff, and the defendant no.1, through his
agents, servants and representatives were directed to maintain status-
quo as on date and not to act upon in furtherance of any agreement
with respect to the scope of work under the plaintiff's agreement
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through defendant no.2 or any other entity or person other than the
plaintiff, till next date.
2. Thereafter the said interim order was communicated to the
defendant by Ld. Counsel for the plaintiff in compliance with the
provision of Order 39 Rule 3 of CPC and on 4.3.2020, I had heard Ld
Counsel for the plaintiff and defendants no.1 and 2 regarding
continuation of the interim relief granted by this court on 18.2.2020.
3. In the course of hearing, Ld Counsel for the defendant no.1
submitted that, the interim order granted by this court on 18.2.2020
cannot be continued in view of submission made by him before the
court and as per ratio of the authorities of the Hon‘ble Bombay High
Court reported in the cases of (1) M/s. Polimer Media Pvt. Ltd V/s. Zee
Entertainment Enterprises Ltd. (2016 SCC OnLine Bom 7699) AND (2)
Indian Oil Corporation Ltd V/s. Amritsar Gas Service and others
((1991) 1 Supreme Court Cases 533).
4. I have gone through the above authorities and find that, in
the first authority Hon’ble Bombay High Court has held that, in a case
where claim of the plaintiff is based on agreement which is by its nature
determinable, no interim or ad-interim relief can be granted in favour of
the plaintiff. Reference was also made to Sec.41(e) of Specific Relief
Act, that no injunction can be granted to prevent breach of contract,
performance of which cannot be specifically enforced. Therefore, it was
held that, once the court is satisfied that contract cannot be specifically
enforced being one covered by Sec.14(1)(c) of Specific Relief Act, the
question of grant of injunction to the plaintiff does not arise.
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5. In the second authority, in para 12, Hon’ble Bombay High
Court, after considering the contentions of the both sides, had held that,
there was finding in the award by arbitrator that distributorship
agreement was revocable and same being admittedly for rendering
personal service, the relevant provisions of the Specific Relief Act was
attracted and as per Sec.14(1) of the said Act, the contract which
cannot be specifically enforced is in the nature of the contract which is
determinable. Therefore, it was held that, no relief can be granted to
the plaintiff.
6. Opposing the above submission made by Ld. Counsel for
defendant no.1, Ld. Counsel for the plaintiff has referred to the interim
protection granted by this court vide sub-clause(d) and (b) in part, and
that there is purported termination of agreement dated 6.3.2018 by the
defendants communicated vide email dated 12.12.2019 but the facts
pertaining to the same are in dispute between the parties, and said
agreement is valid for two years w.e.f 15.4.2018 to 15.4.2020 and the
alleged act of defendant no.1 and 2 about which the plaintiff has made
grievance in the present notice of motion have taken place during
subsistence of the agreement. Therefore, interim protection was granted
by this court and it needs to be continued till decision on the notice of
motion at the earliest. The plaintiff has no objection for speedy hearing
on the notice of motion on merits.
7. So far as the authorities submitted and relied upon by the
Ld Counsel for defendant no.1 are concerned, Ld. Adv. Mr. Dalal for the
plaintiff submitted that the same are distinguishable on facts and the
ratio is not strictly applicable to the facts of the present case, because
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the present case is not covered by the provisions of Sec.14(1) of CPC a
the purported termination of the agreement by the defendant no.1 is
itself not legal, proper and binding on the plaintiff. Therefore,
Sec.41(e) of the Specific Relief Act is also not applicable in the present
case.
8. After considering the submissions made by Ld. Counsels for
both sides and after considering the ratio of the authorities submitted
and relied upon by Ld. Counsel for defendant no.1, I am of the opinion
that, the first authority in the case of
M/s. Polimer Media Pvt. Ltd V/s.
Zee Entertainment Enterprises Ltd. (supra), as per clause 12.1, the
agreement between the parties provided that either of the party shall be
entitled to terminate the agreement by giving 30 days prior written
notice to other party. Therefore, it was held that, the agreement was
determinable and covered by Sec.14(1)(c) of Specific Relief Act and the
only relief which the plaintiff would be entitled would be that of
damages, as alternative relief in the suit.
9. In the second authority in the case of
Indian Oil
Corporation Ltd V/s. Amritsar Gas Service and others (supra), it was
held that distributorship agreement was for an indefinite period but
subject to termination in accordance with the clauses 27 and 28 and
therefore, covered by Sec.14(1) of Specific Relief Act. Therefore the
plaintiff was held only liable for damages.
10. Considering the ratio of the above authorities and
submissions made by Ld. Counsels for both sides, I am of the view that,
the interim protection granted on 18.2.2020 in favour of the plaintiff
with reference to the prayer clause(d) and (b) of the notice of motion
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cannot be continued as and the same will have to be modified because
in the facts and circumstances of the case, it is possible that prayer
clause(d) of the notice of motion would become infructuous, because in
the present case the fact of termination of the agreement dated
6.3.2018 is itself in dispute and the court has not formed any prima
facie opinion about its existence and continuation is presumed in
absence of affidavit in reply of the defendants. At this stage, it will have
to be held to be in existence and binding on the parties. Therefore, the
interim relief granted to the plaintiff as per prayer clause (b) of the
notice of motion will have to be continued. Hence, I proceed to pass
following order :-
ORDER
Order of interim relief passed by this Court dated
18.2.2020 is hereby modified as under :-
1. The order of status-quo granted in favour of the plaintiff
is hereby vacated and the directions against defendant
no.1 through its agents, servants, representatives not to
act upon in furtherance of any agreement with respect
to the scope of work under the plaintiff's agreement
through defendant no.2 or any other entity or any
person other than the plaintiff are continued till decision
on merit on the notice of motion.
2. Authenticated copy of today’s
Roznama be given to the
Ld Counsels for both sides for information and
compliance.
3. Parties to act upon the authenticated copy.
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4. Sheristedar of the court is directed to do the needful.
Interim order stands modified accordingly.
(V.V. Vidwans)
Date: 9.3.2020 Judge, City Civil Court,
Gr. Bombay (C.R. 03)
Dictated on : 9.3.2020
Transcribed on :11.3.2020
Draft given on 11.3.2020
Signed by HHJ on : 12.3.2020
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ ORDER.
UPLOADED ON : 12.3.2020.
(NITIN V. UBALE)
SELECTION GR. STENOGRAPHER.
Name of the judge (with Court Room No.) Shri V.V. Vidwans, Judge, (C.R. 03)
Date of pronouncement of Judgment/ Order 9.3.2020
Judgment/ order signed by P.O on 12.3.2020
Judgment/ order uploaded on 12.3.2020
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