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F.M.A.T. 1116 of 2017

17.10.2017
2 with
Ct. No.8
C.A.N. 9833 of 2017
Vacation Bench
CHC/
Aloke Sony India Pvt. Ltd.
Vs.
Madhuri Commodities Pvt. Ltd.

Mr. Amitesh Banerjee,

Mr. Phiroze Edulji,
Mr. Sanjib Kumar Dan,
Ms. Alotriya Mukherjee
…for the appellant

Mr. Aniruddha Chatterjee,

Mr. Siddhartha Lahiri,
Mr. Suddhasatya Banerjee,
Mr. N. Lal
…for the respondent.

This is an application at the behest of the

plaintiff/respondent for variation/vacation and setting

aside of the interim order dated 25th September, 2017

passed by the Division Bench in the instant appeal. By

the said order the Division Bench stayed the operation of

the order dated 18th September, 2017 passed by the trial

court while disposing of the application for temporary

injunction. The said order is challenged in an appeal filed

by the defendant/appellant. While staying the operation

of the order the Division Bench observed that the trial

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court ought to have recorded its finding on the prima

facie case as to whether there is any existence of

principal agent relationship between the parties and

having failed to do so the order of temporary injunction

cannot be sustained.

It appears from the findings recorded in the

impugned order passed by the trial court that the claim

of the petitioner as agent cannot be overruled as the

interpretation of channel partner circular and its nature

can only be decided after full-fledged trial. It is further

observed that the question as to whether the channel

partner circular constitute an agency agreement or not is

a triable issue and proceeded to dispose of the said

application by restraining the defendant/appellant from

selling its goods into three districts within the State of

West Bengal and also directed the respondent to submit

quarterly report relating to the stock of goods to be

prepared in presence of the learned advocates of both the

parties.

The first and foremost point taken by the

respondent in the instant application is that the Division

Bench ought not to have stayed the operation of the

temporary injunction which was passed on a contested

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hearing at the time of admitting the appeal as it would

tantamount to allowing the appeal itself. In support of the

aforesaid contention reliance is placed on an unreported

judgement of this Court in the case of Manbasa Devi vs.

Calcutta Landing & Shipping Co. Ltd. & ors. in which

one of us (Harish Tandon, J) who delivered the said

judgement held that the Court should be slow,

circumspect and seldom to stay the effect of the

temporary injunction at the nebulous stage of admission

as nothing would remain in the appeal to be decided at a

later point of time.

The aforesaid proposition of law is not free from any

exception as the Court in an exceptional and

extraordinary case may stay the operation of the

impugned order. According to the respondent once a right

of agency coupled with an interest is created, it cannot be

terminated unilaterally and, therefore, the trial court

rightly observed that there is principal agent relationship

between the parties and pass an order of temporary

injunction.

On the other hand, the learned advocate for the

defendant/appellant submits that the relationship

between the parties was on principal to principal basis

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and there was no principal agent relationship ever

created or existed between the parties. It is further

submitted that, the trial court did not record its

satisfaction on the existence of a prima facie case and

proceeded on a premise that the interpretation of the

channel partner circular prima facie established principal

and agent relationship which is the triable issue.

Our attention is drawn to the channel partner

circular annexed to the instant application. After

perusing the said document and the subsequent

materials available from the record we do not feel that the

way the trial court passed an order of temporary

injunction is sound and within the circumference of the

legal parameters. The trial court has proceeded to record

that the interpretation of the said circular requires a full-

fledged trial without venturing to record its finding on a

prima facie case and its relevance to the stand taken by

the respondent in the plaint filed in the said suit.

We are not unmindful of the proposition of law as

laid down in the said unreported judgement that the

Court, ordinarily, should not stay the operation of the

order of temporary injunction at the admission stage

without affording an opportunity of hearing to the other

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side if the said order was passed by the trial court on

contested hearing except in an exceptional and

extraordinary circumstance. Since we venture to enter

into the merits of the matter, we feel that it would not be

proper to vary/modify and/or vacate the interim order

passed by the Division Bench in the instant appeal solely

on the ground that the it would amount to allowing the

appeal or in other words, the appeal to be rendered paper

appeal only. Though the findings recorded in an

interlocutory application remains tentative yet it has

some persuasive effect in the final adjudication and,

therefore, we do not go into those aspect except that the

order of temporary injunction passed by the trial court

cannot be sustained in the form and manner in which it

has been passed. The order impugned is thus modified to

the extent that the petitioner shall return all the unused

articles received by him from the appellant in a factory

sealed condition within a month from date. The appellant

shall accept the aforesaid articles and shall accordingly

inform the respondent of the credit to be given therefor.

The inventory of the articles shall be made by the

representative of both the parties before the goods are

handed over to the appellant. The damaged goods, if

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there be any, duly acknowledged by the appellant, shall

also be accepted by them. The invoice price of the

returned goods shall be deposited by the appellant with

the trial court and the same will abide by the result of the

suit.

The trial court shall see that the said amount is

invested in the short term fixed deposit in any

nationalised bank and shall go on renewing the same

until the disposal of the said suit or further order

whichever is earlier. In the event, any dispute is raised on

the acceptance of the articles to be returned by the

respondent, it is open to the parties to approach the trial

court for an appropriate direction and/or order. If

approached, the trial court shall pass the directions

without being swayed by the observations recorded

hereinabove.

The order dated 18th September, 2017 passed by

the learned Civil Judge, 10th Court, Alipore in Title Suit

No.49 of 2017 is modified to the extent as indicated

above.

In view of the modification of the impugned order

there remains nothing in the parent appeal and the same

is treated as on day’s list and is accordingly disposed of.

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All connected applications filed in the appeal shall stand

disposed of accordingly.

The trial court is requested to make efforts to

dispose of the suit as expeditiously as possible.

(Harish Tandon, J.)

(Debangsu Basak, J.)

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